S-8 1 mm05-2610_s8.htm mm05-2610_s8.htm

 
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.
 

 
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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

 
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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
 
 
 
 
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/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


 
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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

 
 
 
 
 
 
 
 
 
 
 
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