S-8

As filed with the Securities and Exchange Commission on May 27, 2010
Registration No. 333-_________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549
FORM S–8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GENTIVA HEALTH SERVICES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware	36-4335801
(State or Other Jurisdiction of Incorporation or Organization)	(I.R.S. Employer Identification No.)
3350 Riverwood Parkway, Suite 1400, Atlanta, GA 30339-3314
(Address of Principal Executive Offices)
Gentiva Health Services, Inc. Employee Stock Purchase Plan
(Full Title of the Plan)
John N. Camperlengo, Esq. Senior Vice President, General Counsel, Chief Compliance Officer and Secretary Gentiva Health Services, Inc. 3350 Riverwood Parkway, Suite 1400 Atlanta, GA 30339-3314 (770) 951-6450
(Name and Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copies of all communications to: Raymond O. Gietz, Esq. Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 (212) 310-8000 Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b- 2 of the Exchange Act. Large accelerated filer £           Accelerated filer R           Non-accelerated filer £           Smaller reporting company £                                                          (Do not check if a smaller reporting company)

CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered	Amount to be Registered(1)	Proposed Maximum Offering Price Per Share(2)	Proposed Maximum Aggregate Offering Price(2)	Amount of Registration Fee
Common Stock, par value $0.10 per share	1,500,000	$   25.315	$37,972,500	$2707.44

(1) Pursuant to Rule 416 under the Securities Act of 1933 (the “Securities Act”), this Registration Statement shall also cover such additional shares of common stock of the Registrant as may be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

(2) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h) and Rule 457(c) under the Securities Act, based on the average of the high and low sale prices for shares of the Registrant’s common stock as reported on The NASDAQ Global Select Market on May 21, 2010.

1

EXPLANATORY NOTE

We are filing this Registration Statement to register an additional 1,500,000 shares of our common stock, par value $0.10 per share, for issuance under the Gentiva Health Services, Inc. Employee Stock Purchase Plan (the “Plan”).

In accordance with General Instruction E to Form S-8, the contents of the previous Registration Statement on Form S-8 related to the Plan prior to its amendment (SEC File No. 333-129116), filed on October 19, 2005, with the Securities and Exchange Commission (“SEC”) is incorporated by reference herein and made a part of this Registration Statement, except as amended hereby.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.  Incorporation of Documents by Reference.

The Registrant hereby incorporates by reference into this Registration Statement the following documents filed by the Registrant with the SEC (SEC File No. 001-15669):

(a)   The Registrant’s Annual Report on Form 10-K for the fiscal year ended January 3, 2010;

(b)   The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended April 4, 2010;

(c)   The Registrant’s Current Reports on Form 8-K filed with the SEC on January 12, 2010, January 28, 2010, March 3, 2010, May 6, 2010 (excluding Items 2.02 and 9.01(d)), May 19, 2010 and May 24, 2010 (excluding Item 7.01 and Exhibit 99.2 in Item 9.01(d)); and

(d)   The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A as filed with the SEC on February 4, 2000, as amended, including any amendment or report filed for the purpose of updating such description.

All reports and definitive proxy or information statements filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (other than the portions of those documents not deemed to be filed) subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents.

Item 8.  Exhibits.

Exhibit No.	Exhibit Description
4.1	Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Form 8-K of the Registrant filed on May 12, 2008)
4.2	Amended and Restated By-Laws of the Registrant (incorporated by reference to Form 8-K of the Registrant filed on May 12, 2008)
5.1	Opinion of Weil, Gotshal & Manges LLP*
23.1	Consent of PricewaterhouseCoopers LLP*
23.2	Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1 hereto)*
24	Power of Attorney (included on the signature page hereto)*
99.1	Employee Stock Purchase Plan, as amended*

__________________

* Filed herewith

2

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Atlanta, State of Georgia, on this 27th day of May, 2010.

GENTIVA HEALTH SERVICES, INC.
By:	/s/  Tony Strange
	Tony Strange
	Chief Executive Officer and President

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below (each being an officer and/or director of the Registrant) does hereby constitute and appoint Tony Strange, Eric R. Slusser and John N. Camperlengo and each of them, with full power of substitution, such person’s true and lawful attorneys-in-fact and agents for such person in such person’s name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully, to all intents and purposes, as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof. This Power of Attorney may be signed in one or more counterparts.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:

Signature	Capacity	Date
/s/ Tony Strange	Chief Executive Officer, President and Director (Principal Executive Officer)	May 27, 2010
Tony Strange
/s/ Eric R. Slusser	Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)	May 27, 2010
Eric R. Slusser
/s/ Robert S. Forman, Jr.	Director	May 27, 2010
Robert S. Forman, Jr.
/s/ Victor F. Ganzi	Director	May 27, 2010
Victor F. Ganzi
/s/ Philip R. Lochner, Jr.	Director	May 27, 2010
Philip R. Lochner, Jr.
/s/ Ronald A. Malone	Director	May 27, 2010
Ronald A. Malone

3

/s/ Stuart Olsten	Director	May 27, 2010
Stuart Olsten
/s/ Sheldon M. Retchin	Director	May 27, 2010
Sheldon M. Retchin
/s/ Raymond S. Troubh	Director	May 27, 2010
Raymond S. Troubh
/s/ Rodney D. Windley	Director	May 27, 2010
Rodney D. Windley

4

EXHIBIT INDEX

Exhibit No.	Exhibit Description
4.1	Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Form 8-K of the Registrant filed on May 12, 2008)
4.2	Amended and Restated By-Laws of the Registrant (incorporated by reference to Form 8-K of the Registrant filed on May 12, 2008)
5.1	Opinion of Weil, Gotshal & Manges LLP*
23.1	Consent of PricewaterhouseCoopers LLP*
23.2	Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1 hereto)*
24	Power of Attorney (included on the signature page hereto)*
99.1	Employee Stock Purchase Plan, as amended*

__________________

* Filed herewith

5

EX-5.1

Exhibit 5.1

Weil, Gotshal & Manges llp 767 FIFTH AVENUE • NEW YORK, NY 10153-0119 (212) 310-8000 FAX: (212) 310-8007     BEIJING BOSTON BUDAPEST DALLAS DUBAI FRANKFURT HONG KONG HOUSTON LONDON MIAMI MUNICH PARIS PRAGUE PROVIDENCE SHANGHAI SILICON VALLEY WARSAW WASHINGTON, D.C.

May 27, 2010

Gentiva Health Services, Inc.

3350 Riverwood Parkway, Suite 1400

Atlanta, Georgia 30339-3314

Ladies and Gentlemen:

We have acted as counsel to Gentiva Health Services, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of the Company’s Registration Statement on Form S-8  (the “Registration Statement”) under the Securities Act of 1933, as amended, relating to the registration of an additional 1,500,000 shares of common stock, par value $0.10 per share of the Company (the “Common Stock”), which may be issued by the Company pursuant to the terms of the Gentiva Health Services, Inc. Employee Stock Purchase Plan, as amended (the “Plan”).

In so acting, we have examined originals or copies (certified or otherwise identified to our satisfaction) of the Registration Statement, the Plan and such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth.

In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to these opinions that have been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company.

Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that the 1,500,000 shares of Common Stock being registered for issuance pursuant to the Registration Statement have been duly authorized and, when issued and delivered upon receipt by the Company of consideration constituting lawful consideration under Delaware law in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable.

Gentiva Health Services, Inc.

May 27, 2010

Page 2

We hereby consent to the filing of a copy of this opinion letter as an exhibit to the Registration Statement.

Very truly yours,

/s/ Weil, Gotshal & Manges LLP

EX-23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 16, 2010 relating to the consolidated financial statements, financial statement scheduleand the effectiveness of internal control over financial reporting of Gentiva Health Services, Inc., which appears in Gentiva Health Services, Inc.Annual Report on Form 10-K for the year ended January 3, 2010.

/s/ PricewaterhouseCoopers LLP

PricewaterhouseCoopers LLP

Atlanta, Georgia

May 26, 2010

EX-99.1

Exhibit 99.1

GENTIVA HEALTH SERVICES, INC.

EMPLOYEE STOCK PURCHASE PLAN

(amended as of February 25, 2010)

 1. Purpose.

The purpose of this Plan is to provide eligible employees the opportunity to purchase Gentiva Health Services, Inc. Common Stock on a basis that qualifies for the tax treatment prescribed by Section 423 of the Code.

2.   Definitions.

The following terms, when used in the Plan, shall have the following meanings:

(a)   "Board" or "Board of Directors" means the Board of Directors of the Company, as constituted from time to time.

(b)   "Code" means the Internal Revenue Code of 1986, as amended from time to time. References to a particular section of the Code include any successor provisions.

(c)   "Committee" means the committee appointed by the Board of Directors to administer the Plan pursuant to the provisions of Section 3(a) below.

(d)  "Common Stock" means common stock, par value $.10 per share, of the Company.

(e)"Company" means Gentiva Health Services, Inc., a Delaware corporation.

(f) "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time.

(g)   "Fair Market Value" on a particular date means the mean between the highest and lowest sales prices of a share of Common Stock on the principal stock exchange or stock market on which the Common Stock may be listed or admitted to trading. If there were no sales on such date, the respective prices on the most recent prior day on which sales were reported shall be used. If the foregoing method of determining fair market value should be inconsistent with Section 423 of the Code, "Fair Market Value" shall be determined by the Committee in a manner consistent with Section 423 of the Code and shall mean the value as so determined.

(h)   "Offering" means a period, designated by the Committee in accordance with the provisions of Section 6 of the Plan, on the first day of which options will be granted to eligible employees pursuant to Section 8(a) of the Plan and on the last day of which such options will be deemed exercised or will expire, as applicable, in accordance with Section 8(b) of the Plan.

(i)   "Participant" or "Participating Employee" means an employee of the Company or a Participating Subsidiary who is eligible to participate in an Offering under the Plan pursuant to Section 5 below and who elects to participate in such Offering in accordance with Section 6 below.

1

(j) "Participating Subsidiary" means, with respect to an Offering under the Plan, a Subsidiary the employees of which are authorized by the Committee as provided in Section 5 below to participate in such Offering.

(k) "Plan" means the Gentiva Health Services, Inc. Employee Stock Purchase Plan set forth herein, as amended from time to time.

(l) "Parent" means a parent corporation as defined in Section 424(e) of the Code, including a corporation which becomes such a parent in the future.

(m) "Subsidiary" means a subsidiary corporation as defined in Section 424 (f) of the Code, including a corporation which becomes such a subsidiary in the future.

(n) "Total Compensation" means, with respect to any Offering, all remuneration, as defined in Section 3401(a) of the Code (for purposes of income tax withholding at the source), but determined without regard to any rules that limit remuneration included in wages based on the nature and location of employment or the services performed, for services paid to an employee during, or coincident with the end of, such Offering; provided, however, that "Total Compensation" shall not include the following items (even if includable in gross income):  (1) reimbursement or other expense allowances; (2) fringe benefits (cash and non cash); (3) moving expenses and gross up for taxes; (4) welfare benefits (including disability income from insurance policies); (5) payments on account of severance of the employee from employment; (6) payments on account of early retirement of the employee; (7) income arising from the grant or exercise of stock options; (8) restricted stock awards; and (9) distributions under this Plan.

 3. Administration.

(a) The Plan shall be administered by a committee of the Board consisting of two or more directors appointed from time to time by the Board.

(b) Subject to the provisions of the Plan, the powers of the Committee shall include having the authority, in its discretion, to:

(i) define, prescribe, amend and rescind rules, regulations, procedures, terms and conditions relating to the Plan; and

(ii) interpret, administer and construe the Plan and make all other determinations necessary or advisable for the administration of the Plan, including but not limited to correcting defects, reconciling inconsistencies and resolving ambiguities.

(c) The interpretation by the Committee of the terms and conditions of the Plan, and its administration of the Plan, and all action taken by the Committee, shall be final, binding and conclusive on the Company, its stockholders, Subsidiaries, all Participants and employees, and upon their respective successors and assigns, and upon all other persons claiming under or through any of them.

(d) Members of the Board, members of the Committee and persons to whom authority is delegated under Section 3(e) below acting under this Plan shall be fully protected in relying in good faith upon the advice of counsel and shall incur no liability except for gross or willful misconduct in the performance of their duties.

2

(e)   The Committee may delegate its authority to administer the Plan to any individuals as the Committee may determine and such individuals shall serve solely at the pleasure of the Committee. Any individuals who are authorized by the Committee to administer the Plan shall have the full power to act on behalf of the Committee, but shall at all times be subordinate to the Committee and the Committee shall retain ultimate authority for the administration of the Plan.

 4. Stock Subject to the Plan.

(a) Subject to paragraph (c) below, as of the initial adoption of the Plan, the aggregate number of shares of Common Stock which may be sold under the Plan is 1,200,000 shares of Common Stock.  Effective as of February 24, 2005, (but subject to shareholder approval within 12 months of that date), an additional 1,200,000 shares of Common Stock may be sold under the Plan, such that the aggregate number of shares of Common Stock which may be sold under the Plan is increased to 2,400,000 shares.  Effective as of February 25, 2010, (but subject to shareholder approval within 12 months of that date), an additional 1,500,000 shares of Common Stock may be sold under the Plan, such that the aggregate number of shares of Common Stock which may be sold under the Plan is increased to 3,900,000 shares.

(b) If the number of shares of Common Stock that Participating Employees become entitled to purchase is greater than the number of shares of Common Stock that are offered in a particular Offering or that remain available under the Plan, the available shares of Common Stock shall be allocated by the Committee among such Participating Employees in such manner as it deems fair and equitable.

(c) In the event of any change in the Common Stock, through recapitalization, merger, consolidation, stock dividend or split, combination or exchange of shares, spin-off or otherwise, the Committee may make such equitable adjustments in the Plan and the then outstanding Offerings as it deems necessary and appropriate including, but not limited to, changing the number of shares of Common Stock reserved under the Plan, and the purchase price of shares in the current Offering; provided that any such adjustments shall be consistent with Sections 423 and 424 of the Code.

(d) Shares of Common Stock which are to be delivered under the Plan may be obtained by the Company from its treasury, by purchasing such shares on the open market or from private sources, or by issuing authorized but unissued shares of its Common Stock. Shares of authorized but unissued Common Stock may not be delivered under the Plan if the purchase price thereof is less than the par value (if any) of the Common Stock at the time. The Committee may (but need not) provide at any time or from time to time (including without limitation upon or in contemplation of a change in control) for a number of shares of Common Stock equal in number to the number of shares then subject to options under this Plan to be issued or transferred to, or acquired by, a trust (including but not limited to a grantor trust) for the purpose of satisfying the Company's obligations under such options, and, unless prohibited by applicable law, such shares held in trust shall be considered authorized and issued shares with full dividend and voting rights, notwithstanding that the options to which such shares relate might not be exercisable at the time.

3

5. Eligibility.

All employees of the Company and any Subsidiaries designated by the Committee from time to time will be eligible to participate in the Plan, in accordance with and subject to such rules and regulations as the Committee may prescribe; provided, however, that:

(a)   such rules shall comply with the requirements of the Code (including but not limited to Section 423(b)(3), (4) and (8) thereof);

(b)   the Committee may (but need not) in its discretion exclude employees who have been employed by the Company or a Participating Subsidiary less than two years and/or highly compensated employees within the meaning of Section 414(q) of the Code from being eligible to participate in the Plan or any Offering, but unless and until otherwise determined by the Committee, no employees will be excluded pursuant to this Section 5(b);

(c)   no employee may be granted an option under the Plan if such employee, immediately after the option is granted, owns stock possessing 5% or more of the total combined voting power or value of all classes of stock of his employer corporation or any Parent or Subsidiary (with the rules of Section 424(d) of the Code applicable in determining the stock ownership of an employee, and stock which the employee may purchase under outstanding options, whether or not such options qualify for the special tax treatment afforded by Section 421(a) of the Code, shall be treated as stock owned by the employee); and

(d)   all Participating Employees shall have the same rights and privileges except as otherwise permitted by Section 423(b)(5) of the Code.

Offerings; Participation.

The Company may make Offerings of up to 27 months' duration each, to eligible employees to purchase shares of Common Stock under the Plan, until all shares authorized to be delivered under the Plan have been exhausted or until the Plan is sooner terminated by the Board. Subject to the preceding sentence, the number, commencement date and duration of any Offerings shall be determined by the Committee in its sole discretion; provided that, unless the Committee determines otherwise, (a) the first Offering shall commence on February 1, 2000 and shall terminate on June 30, 2000, and (b) a new six-month Offering shall commence immediately after the end of the previous Offering.  The duration of any Offering need not be the same as the duration of any other Offering, and more than one Offering may commence or terminate on the same date if the Committee so provides. Subject to such rules and procedures as the Committee may prescribe, an eligible employee may elect to participate in an Offering at such time(s) as the Committee may permit by authorizing a payroll deduction for such purpose in one percent increments of up to a maximum of ten percent of his or her Total Compensation with respect to such Offering or such lesser amount as the Committee may prescribe.  Participant elections may be made in any manner deemed appropriate by the Committee from time to time, including by voice response or through the internet.  The Committee may (but need not) permit employee contributions to be made by means other than payroll deductions, provided that in no event shall an employee's contributions (excluding interest, if any, credited pursuant to Section 7(a) below) from all sources in any Offering exceed ten percent of his or her Total Compensation with respect to such Offering or such lesser amount as the Committee may prescribe. The Committee may at any time suspend or accelerate the completion of an Offering if required by law or deemed by the Committee to be in the best interests of the Company, including in the event of a change in ownership or control of the Company or any Subsidiary.

4

 7. Payroll Deductions.

(a)   The Company will maintain payroll deduction accounts on its books for all Participating Employees, and may (but need not) credit such accounts with interest if (and only if) the Committee so directs at such rate (if any) as the Committee may prescribe. All employee contributions and any interest thereon which the Committee may authorize in accordance with the preceding sentence shall be credited to such accounts. Employee contributions and any interest credited to the payroll deduction accounts of Participating Employees need not be segregated from other corporate funds and may be used for any corporate purpose.

(b)   At such times as the Committee may permit and subject to such rules and procedures as the Committee may prescribe, a Participating Employee may suspend his or her payroll deduction during an Offering, or may withdraw the balance of his or her payroll deduction account and thereby withdraw from participation in an Offering.

(c)   Any balance remaining in an employee's payroll deduction account after shares have been purchased in an Offering pursuant to Section 8(b) below will be refunded to the Participating Employee. Upon termination of the Plan, all amounts in the accounts of Participating Employees shall be carried forward into their payroll deduction accounts under a successor plan, if any, or refunded to them, as the Committee may decide.

(d)   In the event of the termination of a Participating Employee's employment for any reason, his or her participation in any Offering under the Plan shall cease, no further amounts shall be deducted pursuant to the Plan and the balance in the employee's account shall be paid as soon as practicable following such termination of employment to the employee, or, in the event of the employee's death, to the employee's estate.

 8. Purchase; Limitations.

(a)   Subject to Section 5 above and within the limitations of Section 8(d) below, each person who is an eligible employee of the Company or a Participating Subsidiary on the first day of an Offering under the Plan is hereby granted an option, on the first day of such Offering, to purchase a number of whole and/or partial shares of Common Stock at the end of such Offering determined by dividing ten percent (or such lesser percentage as may be specified by the Committee as the maximum employee contribution percentage in such Offering) of such employee's Total Compensation with respect to such Offering, plus such interest (if any) as the Committee may authorize to be credited during such Offering in accordance with Section 7(a) above, by 85 percent of the Fair Market Value of a share of Common Stock on the last date of such Offering(or such other Fair Market Value as the Committee may have specified in advance of such Offering), provided that in no event shall the number of shares of Common Stock that may be purchased under any such option exceed 5,000 shares or such higher or lower number of whole or partial shares as the Committee may have specified in advance of such Offering as the maximum amount of stock which may be purchased by an employee in such Offering. The purchase price of such shares under such options shall be determined in accordance with Section 8(c) below. The Company's obligation to sell and deliver Common Stock in any Offering or pursuant to any such option shall be subject to the approval of any governmental authority whose approval the Committee determines it is necessary or advisable to obtain in connection with the authorization, issuance, offer or sale of such Common Stock.

5

(b)   As of the last day of the Offering, the payroll deduction account of each Participating Employee shall be totaled. Subject to the provisions of Section 7(b) above and 8(d) below, if such account contains sufficient funds as of that date to purchase one or more whole or partial shares of Common Stock at the price determined under Section 8(c) below, the Participating Employee shall be conclusively deemed to have exercised the option granted pursuant to Section 8(a) above for as many whole or partial shares of Common Stock as the amount of his or her payroll deduction account (including any contributions made by means other than payroll deductions and including any interest credited to the account) at the end of the Offering can purchase (but in no event for more than the total number of shares that are subject to the option); such employee's account will be charged for the amount of the purchase and for all purposes under the Plan the employee will be deemed to have acquired the shares on that date; and either a stock certificate representing such shares will be issued to him or her, or the Company's record keeper will make an entry on its books and records evidencing that such shares have been duly issued or transferred as of that date, as the Committee may direct. Notwithstanding any provision of the Plan to the contrary, unless otherwise determined by the Committee, fractional shares may be purchased under the Plan. Any option granted pursuant to Section 8(a) above which is not deemed exercised as of the last day of the Offering in accordance with the foregoing provisions of this Section 8(b) shall expire on that date.

(c)   Unless the Committee determines before the first day of an Offering that a different price that complies with Section 423 of the Code shall apply, the price at which shares of Common Stock may be purchased under each option granted pursuant to Section 8(a) above shall be an amount equal to 85 percent of the Fair Market Value of the Common Stock at the time such option is exercised.

(d)   In addition to any other limitations set forth in the Plan, no employee may be granted an option under the Plan which permits his or her rights to purchase stock under the Plan, and any other stock purchase plan of his or her employer corporation and its Parent and Subsidiary that is qualified under Section 423 of the Code, to accrue at a rate which exceeds $25,000 of the Fair Market Value of such stock (determined at the time such option is granted) for each calendar year in which the option is outstanding at any time. The Committee may further limit the amount of Common Stock which may be purchased by any employee during an Offering in accordance with Section 423(b)(5) of the Code.

 9. No Transfer.

(a)   No option, right or benefit under the Plan may be transferred by any employee, whether by will, the laws of descent and distribution, or otherwise, and all options, rights and benefits under the Plan may be exercised during an employee's lifetime only by such employee.

(b)   Book entry accounts and certificates for shares of Common Stock purchased under the Plan may be maintained or registered, as the case may be, only in the name of the Participating Employee or, if such employee so indicates in accordance with the procedures prescribed by the Committee, , in his or her name jointly with a member of his or her family, with right of survivorship.

10. Effective Date and Duration of Plan.

The Plan shall become effective when adopted by the Board, provided that the stockholders of the Company approve it within 12 months thereafter. If not so approved by shareholders, the Plan shall be

6

null, void and of no force or effect. If so approved, the Plan shall remain in effect until all shares authorized to be issued or transferred hereunder have been exhausted or until the Plan is sooner terminated by the Board of Directors, and may continue in effect thereafter with respect to any options outstanding at the time of such termination if the Board of Directors so provides.

11. Amendment and Termination of the Plan.

The Plan may be amended by the Board of Directors, without shareholder approval, at any time and in any respect, unless shareholder approval of the amendment in question is required under Section 423 of the Code. The Plan may also be terminated at any time by the Board of Directors.

12. General Provisions.

(a)   Nothing contained in this Plan shall be deemed to confer upon any person any right to continue as an employee of or to be associated in any other way with the Company for any period of time or at any particular rate of compensation.

(b)   No person shall have any rights as a stockholder of the Company with respect to any shares optioned under the Plan until such shares are issued or transferred to him or her.

(c)   All expenses of adopting and administering the Plan shall be borne by the Company, and none of such expenses shall be charged to any employee.

(d)   The Plan shall be governed by and construed under the laws of the State of New York, without giving effect to the principles of conflicts of laws of that State.

(e)   The Plan and each Offering under the Plan is intended to qualify as an "employee stock purchase plan" within the meaning of Section 423 of the Code.  Transactions under the Plan by or with respect to persons subject to Section 16(b) of the Exchange Act with respect to transactions involving equity securities of the Company are also intended to qualify for exemption under SEC Rule 16b-3, unless the Committee specifically determines otherwise. Every provision of the Plan shall be administered, interpreted and construed to carry out those intentions.

7