-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hsgeo+sC4axhfriqDUYtoAmt1o7S5eVBQI9AZ2zYZ5Br5wJyDnad2FEsazRnN+fh oBgD55nrJ9RrNKRIW3CwEQ== 0000950162-00-000502.txt : 20080521 0000950162-00-000502.hdr.sgml : 20080521 20000327173000 ACCESSION NUMBER: 0000950162-00-000502 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000327 DATE AS OF CHANGE: 20080521 EFFECTIVENESS DATE: 20000327 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENTIVA HEALTH SERVICES INC CENTRAL INDEX KEY: 0001096142 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HELP SUPPLY SERVICES [7363] IRS NUMBER: 364335801 STATE OF INCORPORATION: DE FISCAL YEAR END: 0101 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-88663 FILM NUMBER: 00580133 BUSINESS ADDRESS: STREET 1: 3 HUNTINGTON QUADRANGLE 2S CITY: MELVILLE STATE: NY ZIP: 11747-8943 BUSINESS PHONE: 6315017000 MAIL ADDRESS: STREET 1: 3 HUNTINGTON QUADRANGLE 2S CITY: MELVILLE STATE: NY ZIP: 11747-8943 FORMER COMPANY: FORMER CONFORMED NAME: OLSTEN HEALTH SERVICES HOLDING CORP DATE OF NAME CHANGE: 19991001 S-8 POS 1 POST-EFFECTIVE AMENDMENT NO. 1 As filed with the Securities and Exchange Commission on March 27, 2000 Registration No. 333-88663 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------- POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------- GENTIVA HEALTH SERVICES, INC. (Exact name of registrant as specified in its charter) Delaware 11-345104 (State or other jurisdiction of (I.R.S. Employer Identification Number) incorporation or organization) 175 Broad Hollow Road, Melville, New York 11747 (Address of principal executive offices) (Zip Code) STOCK OPTION AGREEMENTS WITH OLSTEN CORPORATION (as assumed by Gentiva Health Services, Inc.) GENTIVA HEALTH SERVICES, INC. 1999 STOCK INCENTIVE PLAN GENTIVA HEALTH SERVICES, INC. STOCK & DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS GENTIVA HEALTH SERVICES, INC. EMPLOYEE STOCK PURCHASE PLAN (Full title of the plans) ------------------- Edward A. Blechschmidt Gentiva Health Services, Inc. 175 Broad Hollow Road Melville, New York 11747 (Name and address of agent for service) (631) 844-7800 (Telephone number, including area code, of agent for service) With copies to: Kenneth W. Orce, Esq. Cahill Gordon & Reindel 80 Pine Street New York, New York 10005 -------------------
CALCULATION OF REGISTRATION FEE ================================================================================================================ Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of be Registered (1) Registered (2) Offering Price Per Aggregate Offering Registration Share (3) Price (3) Fee - ---------------------------------------------------------------------------------------------------------------- Common stock, par value $.10 per share, of 8,085,693 $5.88 $47,543,874.84 $12,551.58 Gentiva Health Services, Inc. ================================================================================================================
(1) This registration statement also pertains to rights ("Rights") to purchase series A participating preferred stock of Gentiva Health Services, Inc. ("Gentiva"). The Rights are attached to and will be issued with each share of common stock, par value $.10 per share, of Gentiva (the "Common Stock"). Until the occurrence of certain prescribed events, the Rights are not exercisable, are evidenced by the certificates or the Common Stock and will be transferred along with and only with the Common Stock. Thereafter, separate Rights certificates will be issued representing one Right for each share of Common Stock held, subject to adjustment pursuant to anti-dilution provisions. In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Gentiva Stock & Deferred Compensation Plan for Non-Employee Directors and the Gentiva Employee Stock Purchase Plan, each described herein. (2) 8,085,693, the difference between (a) 9,862,430, the sum of (i) 3,512,430 the number of shares of Common Stock issuable upon exercise of options issued under stock option plans of Olsten Corporation, a Delaware corporation ("Olsten") the former corporate parent of Gentiva, which options were converted into options to purchase Common Stock pursuant to the split-off of Gentiva from Olsten (the "Split-Off"), which Split-Off was consummated on March 15, 2000, (ii) 5,000,000, the number of shares of common stock issuable under the 1999 Stock Incentive Plan, (iii) 150,000, the number of shares of common stock issuable under the Stock & Deferred Compensation Plan for Non-Employee Directors and (iv) 1,200,000, the number of shares of common stock issuable under the Employee Stock Purchase Plan and (b) 1,776,737, the difference between (i) 22,122,152, the number of shares of Common Stock registered on the registration statement on Form S-4 (333-88663) with respect to the Split-Off and (ii) 20,345,415, the number of shares of Common Stock actually issued to stockholders of Olsten in the Split-Off. In addition, pursuant to Rule 416, this registration statement will cover such indeterminate number of shares of Common Stock that may be issued in respect of stock splits, stock dividends and similar transactions. (3) Estimated solely for the purposes of computing the amount of the registration fee under Rules 457(c) and (h) of the Securities Act of 1933 based on the average of the high and low prices of the common stock reported in the consolidated reporting system by The Nasdaq Stock Market as of March 20, 2000. ================================================================================ Introductory Statement Gentiva Health Services, Inc. ("Gentiva" or the "Registrant") hereby amends its Registration Statement on Form S-4 (No. 333-88663) by filing this Post-Effective Amendment No. 1 on Form S-8 to Form S-4 (the "Registration Statement") relating to the sale of shares of common stock, par value $.10 per share, of Gentiva (the "Common Stock") issuable in connection with options, shares or rights to acquire shares, granted or to be granted (a) under the following plans of Gentiva: 1999 Stock Incentive Plan and Stock & Deferred Compensation Plan for Non-Employee Directors and Employee Stock Purchase Plan (collectively, the "Plans") and (b) under certain plans of Olsten Corporation, a Delaware corporation ("Olsten"), as described in the next paragraph. Pursuant to an Agreement and Plan of Merger (the "Merger Agreement"), as amended, dated as of August 17, 1999, by and among Adecco SA ("Adecco"), Staffing Acquisition Corporation, a wholly-owned subsidiary of Adecco, and Olsten, of which Gentiva was a wholly-owned subsidiary, on March 15, 2000, Olsten merged into Staffing Acquisition Corporation (the "Merger"), with Olsten becoming a wholly-owned subsidiary of Adecco after the Merger and with all of the outstanding shares of Common Stock being split off to Olsten stockholders (the "Split-Off"), at which time Gentiva became an independent public corporation. Outstanding options granted pursuant to Olsten's stock option plans prior to the Split-Off to persons who have become Gentiva's employees after the Split-Off have been converted into options to purchase Common Stock, subject to appropriate adjustments to the number of shares subject to the option and the exercise price thereof and Gentiva has assumed Olsten's obligations under the stock option agreements governing such options. Each outstanding option is otherwise exercisable upon the same terms and conditions as were applicable immediately prior to the Split-Off. PART I. Item 1. Plan Information. Omitted pursuant to the instructions and provisions of Form S-8. Item 2. Registrant Information and Employee Plan Annual Information. Omitted pursuant to the instructions and provisions of Form S-8. I-1 PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT. ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by Gentiva with the Securities and Exchange Commission (the "Commission") are hereby incorporated by reference in this Registration Statement: (1) Gentiva's prospectus filed pursuant to Rule 424(b) dated February 9, 2000; and (2) Gentiva's registration statement on Form 8-A, filed on February 4, 2000. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. None. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Gentiva is incorporated under the laws of the State of Delaware. Sections 102 and 145 of the Delaware General Corporation Law, or Delaware code, set forth the conditions and limitations governing the indemnification of officers, directors and other persons by Delaware corporations. Generally, section 145 of the Delaware code provides that a Delaware corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any action, suit or proceeding (except actions by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation against all expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. In addition, a Delaware corporation may similarly indemnify such person for expenses actually and reasonably incurred by him or her in connection with the defense or settlement of any action or suit by or in the right of the corporation, provided such person acted in good faith and in a manner he or she reasonably believed to be in the best interests of the corporation, and, in the case of claims, issues and matters as to which such person shall have been adjudged liable to the corporation, provided that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall have determined upon application, that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. To the extent that a present or former director or officer of a Delaware corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim issue or matter therein, such person shall be indemnified against expenses actually and reasonably incurred by such person in connection therewith. Generally, section 102(b)(7) of the Delaware code provides that the certificate of incorporation of a Delaware corporation may contain provisions eliminating or limiting the personal liability of a director to a corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided that such provision may not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for act or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) under section 174 of Title VIII, or (iv) for any transaction from which the director derived an improper personal benefit. No such provision may eliminate or limit the liability of a director for any act or omission occurring prior to the date which such provisions becomes effective. Section 145 of the Delaware code provides that a Delaware corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the corporation would have the power to indemnify such person against the same pursuant to the provisions of the Delaware code. Gentiva's certificate of incorporation and bylaws provide for indemnification of directors and officers for liabilities and expenses incurred in defending actions brought against them in such capacities. Gentiva's bylaws provide that Gentiva shall indemnify directors and officers of Gentiva to the maximum extent now or hereafter permitted by law, and may indemnify employees and agents of Gentiva to the extent required by law and may, as authorized hereafter by the board of directors, provide further indemnification to employees and agents of Gentiva to the maximum extent now or hereafter permitted by law. Gentiva maintains directors' and officers' liability insurance covering all directors and officers of Gentiva against claims arising out of the performance of their duties. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The following exhibits are filed as a part of this Registration Statement: 4.1 Gentiva Health Services, Inc. 1999 Stock Incentive Plan. 4.2 Gentiva Health Services, Inc. Stock & Deferred Compensation Plan for Non-Employee Directors (as Amended and Restated on April 1, 2000). 4.3 Gentiva Health Services, Inc. Employee Stock Purchase Plan (incorporated herein by reference to Annex I to the proxy statement/prospectus contained in Gentiva's registration statement on Form S-4 (File No. 333-88663)(the "Gentiva S-4")). 4.4 Restated Certificate of Incorporation of Registrant (incorporated by reference to the Gentiva S-4). 4.5 Restated By-Laws of Registrant (incorporated by reference to the Gentiva S-4). -2- 4.6 Specimen of Common Stock (incorporated by reference to the Gentiva S-4). 4.7 Form of Certificate of Designation of Series A Junior Participating Preferred Stock (incorporated by reference to the Gentiva S-4). 4.8 Form of Certificate of Designation of Series A Cumulative Non-Voting Redeemable Preferred Stock (incorporated by reference to the Gentiva S-4). 5 Opinion of Cahill Gordon & Reindel regarding legality of securities being registered. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Cahill Gordon & Reindel (opinion filed as Exhibit 5). 24 Powers of Attorney from Directors (reference is made to the Signatures contained herein). ITEM 9. UNDERTAKINGS. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of -3- the Exchange Act and each filing of each Plan's annual report pursuant to Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) To submit the Plans and any amendment thereto to the Internal Revenue Service in a timely manner and make all changes required by the Internal Revenue Service in order to qualify the Plans. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. -4- SIGNATURES The Registrant. 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 Melville, State of New York, on March 27, 2000. GENTIVA HEALTH SERVICES, INC. By: /s/ Edward A. Blechschmidt ---------------------------------------- Edward A. Blechschmidt President, Chief Executive Officer and Chairman of the Board of Directors Each person whose individual signature appears below hereby authorizes Edward A. Blechschmidt as attorney-in-fact, with full power of substitution, to execute in the name and on behalf of such person, individually and in each capacity stated below, and to file, any and all amendments to this registration statement, including any and all post-effective amendments. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on the 27th day of March, 2000.
Signature Title Date /s/ Edward A. Blechschmidt President, Chief Executive Officer and March 27, 2000 - ---------------------------------------- Chairman of the Board of Directors Edward A. Blechschmidt /s/ John J. Collura Executive Vice President, March 27, 2000 - ---------------------------------------- Chief Financial Officer and Treasurer John J. Collura /s/ Victor F. Ganzi Director March 27, 2000 - ---------------------------------------- Victor F. Ganzi /s/ Steven E. Grabowski Director March 27, 2000 - ---------------------------------------- Steven E. Grabowski /s/ Stuart R. Levine Director March 27, 2000 - ---------------------------------------- Stuart R. Levine /s/ Stuart Olsten Director March 27, 2000 - ---------------------------------------- Stuart Olsten /s/ Raymond S. Troubh Director March 27, 2000 - ---------------------------------------- Raymond S. Troubh Director March 27, 2000 - ---------------------------------------- Josh S. Weston /s/ Gail Wilensky Director March 27, 2000 - ---------------------------------------- Dr. Gail Wilensky
-5- Stock & Deferred Compensation Plan for Non-Employee Directors and Employee Stock Purchase Plan. Pursuant to the requirements of the Securities Act of 1933, the members of the Human Resources and Compensation Committee of the Registrant's board of directors, as the trustees under the Registrant's Stock & Deferred Compensation Plan for Non-Employee Directors and Employee Stock Purchase Plan duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized in the City of Melville, State of New York, on March 27, 2000. GENTIVA HEALTH SERVICES, INC. STOCK & DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS GENTIVA HEALTH SERVICES, INC. EMPLOYEE STOCK PURCHASE PLAN By: /s/ Edward A. Blechschmidt ---------------------------------------- Edward A. Blechschmidt Attorney-in-Fact Each person whose individual signature appears below hereby authorizes Edward A. Blechschmidt as attorney-in-fact, with full power of substitution, to execute in the name and on behalf of such person, individually and in each capacity stated below, and to file, any and all amendments to this registration statement, including any and all post-effective amendments. Signature Title Date --------- ----- ---- /s/ Stuart R. Levine Trustee March 27, 2000 - ---------------------------------------- Stuart R. Levine /s/ Raymond S. Troubh Trustee March 27, 2000 - ---------------------------------------- Raymond S. Troubh Trustee March 27, 2000 - ---------------------------------------- Josh S. Weston -6- EX-4.1 2 1999 STOCK INCENTIVE PLAN EXHIBIT 4.1 GENTIVA HEALTH SERVICES, INC. 1999 STOCK INCENTIVE PLAN 1. Purpose. The purpose of the Gentiva Health Services, Inc. 1999 Stock Incentive Plan (the "Plan"), is to enable Gentiva Health Services, Inc. (the "Company") and Related Companies (as defined below) to attract and retain employees, Directors (as defined below) and Consultants (as defined below) who contribute to the Company's success by their ability, ingenuity and industry, and to enable such employees, Directors and Consultants to participate in the long-term success and growth of the Company by giving them an equity interest in the Company. For purposes of the Plan, a "Related Company" means any corporation, partnership, joint venture or other entity in which the Company owns, directly or indirectly, at least a 20% beneficial ownership interest. 2. Types of Awards. Awards under the Plan may be in the form of (i) incentive stock options ("Incentive Stock Options") within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (hereinafter, including applicable regulations thereunder, the "Code") or any successor provisions thereto, and (ii) options that do not qualify as Incentive Stock Options ("Non-Qualified Stock Options") (collectively, "Stock Options"). 3. Administration. 3.1 The Plan shall be administered by a committee (the "Committee") of the Company's Board of Directors (the "Board") consisting of not less than two "non-employee directors" (as such term is defined in Rule 16b-3 under the Securities Exchange Act of 1934 (the "Exchange Act") or any successor rule) who, to the extent required to satisfy the exception for performance-based compensation under Section 162(m) of the Code, are also "outside directors" (within the meaning of Section 162(m) of the Code). The members of the Committee shall serve at the pleasure of the Board. 3.2 The Committee shall have the authority to grant awards to eligible employees, Directors and Consultants under the Plan; to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall deem advisable; to interpret the terms and provisions of the Plan and any award granted under the Plan; and to otherwise supervise the administration of the Plan. Subject to the terms of the Plan, the Committee's authority shall include, but not be limited to, the authority: (a) to determine whether and to what extent any award will be granted hereunder; (b) to select the employees, Directors and Consultants to whom awards will be granted; (c) to determine the number of shares of the common stock, par value $.10 per share of the Company (the "Common Stock") to be covered by each award granted hereunder; provided, however, that no more than 300,000 shares (subject to adjustment as provided in Section 4.3 herein) may be awarded under the Plan to any employee, Director or Consultant in any calendar year; (d) to determine the form and the terms and conditions of any award granted hereunder, including, but not limited to, any restrictions based on performance and such other factors as the Committee may determine, and to determine whether the terms and conditions of the award are satisfied; (e) to determine pursuant to a formula or otherwise the fair market value of the Common Stock on a given date; provided, however, that if the Committee fails to make such a determination, fair market value shall mean the closing sale price of the Common Stock on the principal stock exchange or stock market on which the Common Stock may be listed or admitted to trading on a given date; (f) to amend the terms of any award, prospectively or retroactively; provided, however, that no amendment shall impair the rights of the award holder without his or her consent; and (g) to substitute new Stock Options for previously granted Stock Options, or for options granted under other plans, in each case including previously granted options having higher option prices. 3.3 All determinations made by the Committee pursuant to the provisions of the Plan shall be final and binding on all persons, including the Company and Plan participants. 3.4 The Committee may delegate to officers or managers of the Company or any Related Company the authority, subject to such terms as the Committee shall determine, to perform administrative functions and, with respect to awards granted to persons not subject to Section 16 of the Exchange Act, to perform such other functions (including making awards hereunder) as the Committee may determine, to the extent permitted under Rule 16b-3 of the Exchange Act (if applicable) and applicable law. Without limiting the foregoing, unless otherwise determined by the Committee, the Company's Chief Executive Officer, in consultation with the head of the Company's Human Resources Department, may make awards of Stock Options to newly hired employees and recently promoted employees who, in either case, are not subject to Section 16 of the Exchange Act; provided, however, that the maximum number of shares of Common Stock subject to any such Stock Option shall be 10,000 shares (subject to adjustment as provided in Section 4.3 below). -2- 4. Stock Subject to Plan. 4.1 The total number of shares of Common Stock reserved and available for distribution under the Plan shall be 5,000,000 (subject to adjustment as provided in Section 4.3 below). Such shares may consist of authorized but unissued shares or treasury shares. 4.2 To the extent an option terminates without having been exercised, the shares subject to such award shall again be available for distribution in connection with future awards under the Plan. 4.3 In the event of any merger, reorganization, consolidation, sale of substantially all assets, recapitalization, Common Stock dividend, Common Stock split, spin-off, split-up, split-off, distribution of assets or other change in corporation structure affecting the Common Stock, a substitution or adjustment, as may be determined to be appropriate by the Committee in its sole discretion, shall be made in the aggregate number of shares reserved for issuance under the Plan, the number of shares available for any individual awards, the number and kind of shares, other securities or other consideration subject to outstanding awards and the exercise price to be paid by employees, Directors and Consultants with respect to outstanding awards; provided, however, that no such adjustment shall increase the aggregate value of any outstanding award. 5. Eligibility. Officers and other employees of the Company or a Related Company, members of the Board who are not employees of the Company or a Related Company ("Directors"), and Consultants to the Company or a Related Company are eligible to be granted awards under the Plan; provided, however, that, to the extent required under Section 422 of the Code, Incentive Stock Options may be granted only to officers and other employees of the Company or any subsidiary corporation in which the Company owns, directly or indirectly, stock having 50% or more of the total combined voting power of all classes of stock, within the meaning of Section 424(f) of the Code. For purposes hereof, "Consultant" means an individual who furnishes services to the Company or a Related Company and (i) is neither an employee of the Company or any Related Company nor a Director and (ii) in the determination of the Committee, has made a significant contribution to the growth and development of the Company. The participants under the Plan shall be selected from time to time by the Committee, in its sole discretion, from among those eligible. 6. Terms of Stock Options. -3- 6.1 Option Price. The option price per share of Common Stock purchasable under a Stock Option shall be determined by the Committee; provided, however, that the option price of Non-Qualified Stock Options shall not be less than 85%, and the option price of Incentive Stock Options shall not be less than 100%, of the fair market value of the Common Stock on the date of award of each such Stock Option. 6.2 Option Term. The term of each Stock Option shall be ten years from the date of grant thereof, unless a shorter term is provided for by the Committee at the time of grant, subject to earlier termination as provided in Sections 6.7 and 6.8 hereof. 6.3 Exercisability. Except as otherwise provided by the Committee at the time of grant, or as provided in Section 9 hereof, (i) Stock Options granted to employees of the Company or a Related Company shall vest and be first exercisable in annual installments of 25% of the shares originally subject thereto, commencing on the first anniversary of the date of grant of the Stock Option, and an additional 25% of such shares each year thereafter, (ii) Stock Options granted to Directors shall vest and become first exercisable one year after the date of grant, and (iii) Stock Options granted to Consultants of the Company or a Related Company shall vest and become first exercisable no earlier than six months nor later than five years from the date of grant, as determined by the Committee. The Committee may accelerate an exercise date of any Stock Option or otherwise waive the installment exercise provisions at any time (including at time of grant) in whole or in part. Except as provided in Section 6.7 and 6.8 or otherwise determined by the Committee at any time (including at the time of grant), a Stock Option shall not be exercisable unless the optionee is an employee of the Company or a Related Company, or is a Director of the Company or Consultant to the Company or a Related Company, at the time of exercise. 6.4 Method of Exercise. Stock Options may be exercised in whole or in part at any time during the option term by giving written notice of exercise to the Company specifying the number of shares to be purchased, accompanied by payment of the option price. Payment of the option price shall be made in cash or cash equivalents or, if permitted by the Committee (either in the option agreement or at the time of exercise), by delivery of shares of Common Stock already owned by the optionee or withholding of shares subject to awards hereunder (in each case, such shares having a fair market value on the date of exercise equal to the aggregate option price), or in any other manner permitted by law and as determined by the Committee, or any combination of the foregoing. 6.5 No Shareholder Rights. An optionee shall have neither rights to dividends or other rights of a shareholder with respect to shares subject to a Stock Option until the optionee has given written notice of exercise and has paid for such shares. 6.6 Non-transferability. Except as otherwise determined by the Committee, (i) no Stock Option shall be transferable by the optionee other than by will or by -4- the laws of descent and distribution, and (ii) during the optionee's lifetime, all Stock Options shall be exercisable only by the optionee. 6.7 Effect of Termination of Employment Under Certain Circumstances. If an optionee who is an employee of the Company or a Related Company ceases to be so employed, for any reason other than death, retirement, or permanent disability, any Stock Option held by such optionee under the Plan shall terminate 90 days after termination of employment. If any such optionee ceases to be an employee of the Company or a Related Company, by reason of retirement (at age 55 or later with ten or more years of service, at age 62 or later with five or more years of service, at age 65 or later, or at such other age as the Committee may determine) or permanent disability, any Stock Option held by such optionee may be exercised, to the extent exercisable on the day preceding the date of such cessation of employment, at any time within one year after such cessation of employment, at the end of which period the Stock Option shall terminate. Notwithstanding the foregoing, the Committee in its sole discretion may provide, at the time of grant or otherwise, for different rules to apply to the exercisability of Stock Options held by an optionee at the time of each optionee's cessation of employment. In no event shall a Stock Option be exercised after the expiration of the term thereof. 6.8 Death of Employee Optionees. If an optionee dies while an employee of the Company or a Related Company, or within one year after the optionee has ceased to be an employee by reason of retirement, or by reason of such optionee's permanent disability, such Stock Option may be exercised, to the extent exercisable on the day preceding the date such optionee ceases to be an employee by the estate of such deceased optionee, or by a person or persons who acquire the right to exercise such option by bequest or inheritance or by reason of the death of such optionee, at any time within one year after such optionee's death, or within such shorter period of time as shall be prescribed in the option agreement, at the end of which period such Stock Option shall terminate. In no event shall a Stock Option be exercised after the expiration of the term thereof. 6.9 Termination of Director and Consultant Options. Unless otherwise provided by the Committee at the time of grant or otherwise, Stock Options granted to Directors and Consultants shall be subject to the following events of termination: (a) in the event a Director is removed from the Board, all unexercised Stock Options held by such Director on the date of such removal (whether or not vested) shall expire immediately; (b) in the event a Director ceases to be a member of the Board, other than by reason of removal, all unexercised Stock Options held by such Director at the time the Director ceases to be a member of the Board shall expire, unless vested, and if vested must be exercised within one year of the Director's last day as a member of the Board; and -5- (c) in the event a Consultant no longer furnishes services to the Company or a Related Company, all unexercised Stock Options held by such Consultant at the time such Consultant ceases to furnish such services shall expire, unless vested, and if vested must be exercised within ninety (90) days of the time such Consultant so ceases to furnish services to the Company. Notwithstanding the foregoing, in no event shall a Stock Option be exercised after the expiration of the term thereof. 7. Tax Withholding. 7.1 Each optionee shall, no later than the date as of which the value of an award first becomes includible in the optionee's gross income for applicable tax purposes, pay to the Company, or make arrangements satisfactory to the Committee regarding payment of, any federal, state, local or other taxes of any kind required by law to be withheld with respect to the award. The obligations of the Company under the Plan shall be conditional on such payment or arrangements, and the Company (and, where applicable, any Related Company), shall to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the optionee. 7.2 To the extent permitted by the Committee, and subject to such terms and conditions as the Committee may provide, an optionee may elect to have the withholding tax obligation, or any additional tax obligation with respect to any awards hereunder, satisfied by (i) having the Company withhold shares of Common Stock (at its fair market value) otherwise deliverable to the optionee with respect to the award, or (ii) delivering to the Company shares of Common Stock (at its fair market value) already owned by the optionee. 8. Amendments and Termination. The Plan shall terminate on November 11, 2009, and no Stock Option shall be awarded under the Plan on or after such date. The Board may discontinue the Plan at any time and may amend it from time to time. No amendment or discontinuation of the Plan shall adversely affect any award previously granted without the written consent of the employee, non-employee director or Consultant. Amendments may be made without shareholder approval except as required to satisfy Section 162(m) of the Code or, with respect to Incentive Stock Options, Section 422 of the Code. -6- 9. Change of Control. 9.1 In the event of a Change of Control, unless otherwise determined by the Committee at the time of grant or by amendment (with the holder's consent) of such grant, all outstanding Stock Options awarded under the Plan shall become fully exercisable and vested. 9.2 A "Change of Control" shall be deemed to occur on the date that any of the following events occur: (a) any person or persons acting together which would constitute a "group" for purposes of Section 13(d) of the Exchange Act (other than the Company or any subsidiary and other than Permitted Holders) shall beneficially own (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, at least 25% of the total voting power of all classes of capital stock of the Company entitled to vote generally in the election of the Board; (b) either (i) Current Directors (as herein defined) shall cease for any reason to constitute at least a majority of the members of the Board (for these purposes, a "Current Director" shall mean any member of the Board as of the effective date of the Plan, and any successor of a Current Director whose election, or nomination for election by the Company's shareholders, was approved by at least two-thirds of the Current Directors then on the Board) or (ii) at any meeting of the shareholders of the Company called for the purpose of electing directors, a majority of the persons nominated by the Board for election as directors shall fail to be elected; (c) consummation of (i) a plan of complete liquidation of the Company, or (ii) a merger or consolidation of the Company (A) in which the Company is not the continuing or surviving corporation (other than a consolidation or merger with a wholly owned subsidiary of the Company in which all shares of Common Stock outstanding immediately prior to the effectiveness thereof are changed into or exchanged for common stock of the subsidiary) or (B) pursuant to which the Common Stock is converted into cash, securities or other property, except a consolidation or merger of the Company in which the holders of the Common Stock immediately prior to the consolidation or merger have, directly or indirectly, at least a majority of the common stock of the continuing or surviving corporation immediately after such consolidation or merger or in which the Board immediately prior to the merger or consolidation would, immediately after the merger or consolidation, constitute a majority of the board of directors of the continuing or surviving corporation; or (d) consummation of a sale or other disposition (in one transaction or a series of transactions) of all or substantially all of the assets of the Company. -7- 9.3 For purposes of this Section 9 under the Plan, "Permitted Holders" shall mean Miriam Olsten, Stuart Olsten, and Cheryl Olsten, and each of their spouses, their lineal descendants and their estates and their Affiliates or Associates (as defined in Rule 12b-2 of the Exchange Act) (collectively the "Olsten Stockholders"), so long as the Olsten Stockholders beneficially own 20% or less of the voting power of all classes of capital stock of the Company entitled to vote generally in the election of the Board; provided, however, such percentage shall be increased on a percentage basis (rounded to the nearest whole percent) to the extent the Olsten Stockholders acquire any such capital stock on conversion of the convertible trust preferred securities which they hold on March 15, 2000. 10. General Provisions. 10.1 Each award under the Plan shall be subject to the requirement that, if at any time the Committee shall determine that (i) the listing, registration or qualification of the Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body or (iii) an agreement by the recipient of an award with respect to the disposition of Common Stock is necessary or desirable (in connection with any requirement or interpretation of any federal or state securities law, rule or regulation) as a condition of, or in connection with, the granting of such award or the issuance, purchase or delivery of Common Stock thereunder, such award shall not be granted or exercised, in whole or in part, unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Committee. 10.2 Nothing set forth in this Plan shall prevent the Board from adopting other or additional compensation arrangements. Neither the adoption of the Plan nor any award hereunder shall confer upon: (i) any employee of the Company, or of a Related Company, any right to continued employment; (ii) any Director of the Company any right to continued service on the Board; or (iii) any Consultant to the Company or a Related Company any right to continued service as a consultant. 10.3 Determinations by the Committee under the Plan relating to the form, amount and terms and conditions of awards need not be uniform, and may be made selectively among persons, who receive or are eligible to receive awards under the Plan, whether or not such persons are similarly situated. 10.4 With respect to persons subject to Section 16 of the Exchange Act, transactions under the Plan are intended to comply with all applicable conditions of Rule 16b-3 or its successor under the Exchange Act. To the extent that any provision of the Plan or action by the Committee fails to so comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Committee. -8- 10.5 No member of the Board or the Committee, nor any officer or employee of the Company acting on behalf of the Board or the Committee, shall be personally liable for any action, determination or interpretation taken or made with respect to the Plan, and all members of the Board or the Committee and all officers or employees of the Company acting on their behalf shall, to the extent permitted by law, be fully indemnified and protected by the Company in respect of any such action, determination or interpretation. 11. Effective Date of Plan. The Plan was originally adopted by the Board on November 11, 1999. -9- EX-4.2 3 STOCK & DEF. COMP. PLAN FOR NON-EMP. DIRS. EXHIBIT 4.2 GENTIVA HEALTH SERVICES, INC. STOCK & DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS (As Amended and Restated as of April 1, 2000) SECTION 1. Introduction. The Gentiva Health Services, Inc. Stock & Deferred Compensation Plan for Non-Employee Directors (the "Plan") provides for the payment of annual retainer fees of non-employee directors of Gentiva Health Services, Inc. in the form of Shares or, at the election of a non-employee director, in up to 50% in cash and the remainder in the form of Shares. It also provides an opportunity for the non-employee directors to defer the portion of their annual retainer fees payable in Shares and have them deemed invested in Shares. The Plan is intended to encourage qualified individuals to accept nominations as directors of Gentiva Health Services, Inc. and to strengthen the mutuality of interest between the non-employee directors and Gentiva Health Services, Inc.'s other shareholders. SECTION 2. Definitions. For purposes of the Plan, the following terms shall be defined as set forth below: (a) "Board" means the Board of Directors of the Company. (b) "Code" means the Internal Revenue Code of 1986, as amended from time to time. References to any provision of the Code shall be deemed to include successor provisions thereto and regulations thereunder. (c) "Company" means Gentiva Health Services, Inc., a corporation organized under the laws of Delaware, or any successor corporation. (d) "Director" means a member of the Board who is not employed by the Company or any of its subsidiaries. (e) "Plan" means this Stock & Deferred Compensation Plan for Non-Employee Directors. (f) "Plan Benefits" means the benefits payable in Shares described in Sections 5 and 6 hereof. (g) "Plan Year" means a period of approximately twelve months beginning on the date of the Company's annual general meeting of shareholders for a year and ending on the day immediately preceding the Company's annual general meeting of shareholders for the following year; provided, however, that the first Plan Year shall begin on the Effective Date and end on the day immediately preceding the Company's annual general meeting of shareholders during calendar year 2001. (h) "Shares" means Common Stock, $0.10 par value per share, of the Company. SECTION 3. Administration. The Plan shall be administered by the Board. The Board shall have full authority to construe and interpret the Plan, and any action of the Board with respect to the Plan shall be final, conclusive, and binding on all persons. Subject to adjustment as provided in Section 7(g) hereof, the total number of Shares reserved for issuance under the Plan shall be 150,000. SECTION 4. Annual Retainer. (a) On and after the Effective Date of this Plan, each Director's annual retainer fee for a Plan Year shall, subject to any deferral election made pursuant to Section 5 below and subject to any election to be paid currently in cash under Section 4(c) below, be the number of Shares (rounded to the nearest 100 Shares) determined by dividing $25,000 by the average closing price of Shares on the principal stock exchange or stock market on which the Shares may be listed or admitted to trading for the ten trading days immediately preceding the date of the Company's annual general meeting of shareholders on the first day of the Plan Year at which Directors are elected or reelected. Such annual retainer fee shall be payable on an annual basis 30 days following such annual general meeting of shareholders. The annual retainer fee payable to a person who becomes a Director other than at an annual general meeting of shareholders shall, subject to any deferral election made pursuant to Section 5 below and subject to any election to be paid currently in cash under Section 4(c) below, be the number of Shares (rounded up to the nearest Share) determined by multiplying the number of Shares determined pursuant to the first sentence of this Section 4(a) for the Plan Year during which such person becomes a Director by a fraction, the numerator of which is 365 minus the number of days elapsed since the last annual general meeting of shareholders and the denominator of which is 365. Such Shares shall be payable on the 30th day following the day on which the person becomes a Director. (b) Shares distributed to a Director shall be vested in full at the time of distribution. (c) Each Director may make an irrevocable election on or before the December 31 immediately preceding the beginning of a Plan Year by written notice to the Company to receive payment in cash of up to 50% (in increments of 5%) of the compensation otherwise payable during the Plan Year as his or her annual retainer fee for service as a Director. Notwithstanding the foregoing, a Director may make such an election within ten days after the later of the Effective Date or first becoming eligible to participate in the Plan, with respect to compensation payable after the effective date of the election. An election under this Section 4(c) shall continue in effect until the Director notifies the Company in writing, on or prior to the December 31 immediately preceding the commencement of any Plan Year, that the Director wishes to change his or her election hereunder for compensation payable during such Plan Year and succeeding periods. All compensation which a Director elects to be paid in cash pursuant to this Section 4(c) shall be payable quarterly in advance. If a Director elects to receive a portion of his or her annual retainer fee in cash hereunder, the remainder of the annual retainer fee shall be payable, subject to any deferral election made pursuant to Section 5 below, in Shares in accordance with Section 4(a) above, with the number of such Shares determined and set forth in Section 4(a) above but substituting the amount of the annual retainer fee not payable in cash for $25,000 therein. SECTION 4. Share Unit Accounts. The Company shall maintain a Share unit account (an "Account") for each Director. Share units will be credited to each such Account as follows: (a) Each Director may make an irrevocable election on or before the December 31 immediately preceding the beginning of a Plan Year by written notice to the Company, to defer payment of all of the compensation otherwise payable in the form of Shares pursuant to Section 4 above during the Plan Year as his or her annual retainer fee for service as a Director. Notwithstanding the foregoing, a Director may make such an election within 10 days after the later of the Effective Date or first becoming eligible to participate in the Plan, with respect to compensation payable after the effective date of the -2- election. All compensation which a Director elects to defer pursuant to this Section 5(a) shall be credited in the form of Share units to the Director's Account. The number of units so credited will be equal to the number of Shares deferred by the Director in his or her deferral election. Deferrals of compensation hereunder shall continue until the Director notifies the Company in writing, on or prior to the December 31 immediately preceding the commencement of any Plan Year, that the Director wishes his or her compensation payable during such Plan Year and succeeding periods to be distributed as Shares or, in part, cash on a current basis, as provided above. (b) (a) If any dividends are payable on Shares during the deferral period, dividend equivalents equal to the dividend that would have been payable on the units credited to a Director's Account if such units had constituted Shares shall be paid to the Director in cash at the time the corresponding dividends are paid on Shares. SECTION 5. Plan Benefits. (a) Form. The Plan Benefit of a Director shall consist of Shares equal in number to the Share units in the Director's Account. Such Share units shall be fully vested at all times. Any fractional Share unit shall be paid in cash. (b) Distribution. (i) The Plan Benefit of a Director shall be distributed either (x) in single lump sum at the time of termination of the Director's service on the Board or (y) in up to three annual installments beginning at the time of termination of the Director's service on the Board. Each Director may elect the form of distribution, and such election must be made in the form designated by the Company from time to time, must be made within 10 days after the Director first becomes eligible to participate in the Plan, and shall be irrevocable once filed with the Company; provided, however, that Director may file a new election as to the form of distribution if such election is filed at least one year in advance of termination of service on the Board. In the absence of a timely election by a Director hereunder, the Director shall be deemed to have elected to have his or her Plan Benefit distributed in a single lump sum at the time of termination of the Director's service on the Board. (ii) In the case of the death of a Director, the Director's Plan Benefit shall be distributed, within a reasonable time as determined by the Company, after the Director's death to the Director's beneficiary or beneficiaries, as specified by the Director on a form furnished by and filed with the Secretary of the Company. If no beneficiary has been designated by the Director or if no beneficiary survives the Director, the undistributed balance of his or her Plan Benefit shall be distributed to the Director's surviving spouse as beneficiary if such spouse is still living or, if not living, in equal shares to the then living children of the Director as beneficiaries or, if none, to the Director's estate as beneficiary. SECTION 1. General. (a) Nontransferability. Except as provided in Section 6(b)(ii), no payment of any Plan Benefit of a Director shall be anticipated, assigned, attached, garnished, optioned, transferred or made subject to any creditor's process, whether voluntarily or involuntarily or by operation of law. Any act in violation of this subsection shall be void. (b) Compliance with Legal and Trading Requirements. The Plan shall be subject to all applicable laws, rules and regulations, including, but not limited to, federal and state laws, rules and regulations, and to such approvals by any regulatory or governmental agency as may be required. No provision of the Plan shall be interpreted or construed to obligate the Company to register any Shares under -3- federal or state securities laws. The transfer by a Director of Shares distributed pursuant to the Plan will be subject to such restrictions as the Company deems necessary or desirable in connection with federal or state securities laws, and Share certificates will bear a legend setting forth any such restriction. (c) Taxes. The Company is authorized to withhold from any payment made under this Plan any amounts of withholding and other taxes due in connection therewith, and to take such other action as the Company may deem advisable to enable the Company and a Director to satisfy obligations for the payment of any withholding taxes and other tax obligations relating thereto. (d) Amendment. The Board may amend, alter, suspend, discontinue, or terminate the Plan (including, without limitation, amending the dollar amount set forth in Section 4(a) hereof) without the consent of shareholders of the Company or individual Directors; provided, however, that, without the consent of an affected Director, no amendment, alteration, suspension, discontinuation, or termination of the Plan may materially impair the rights or, in any other manner, materially and adversely affect the rights of such Director hereunder. (e) Unfunded Status of Awards. This Plan (other than Section 4 hereof) is intended to constitute an "unfunded" plan of deferred compensation. With respect to any payments not yet made to a Director, nothing contained in the Plan shall give any such Director any rights that are greater than those of a general creditor of the Company; provided, however, that the Company may authorize the creation of trusts or make other arrangements to meet the Company's obligations under the Plan to deliver Shares, or other property pursuant to any award, which trusts or other arrangements shall be consistent with the "unfunded" status of the Plan unless the Company otherwise determines with the consent of each affected Director. (f) Nonexclusivity of the Plan. The adoption of the Plan by the Board shall not be construed as creating any limitations on the power of the Board to adopt such other compensation arrangements as it may deem desirable, including, without limitation, the granting of options on Shares and other awards otherwise than under the Plan, and such arrangements may be either applicable generally or only in specific cases. (g) Adjustments. In the event that subsequent to the Effective Date any dividend in Shares, recapitalization, Share split, reverse split, reorganization, merger, consolidation, spin-off, combination, repurchase, or share exchange, or other such change, affects the Shares such that they are increased or decreased or changed into or exchanged for a different number or kind of Shares, other securities of the Company or of another corporation or other consideration, then in order to maintain the proportionate interest of the Directors and preserve the value of the Directors' Share units and to maintain the value of the Plan, there shall automatically be substituted (i) for each Share unit a new unit and (ii) for the number of Shares set forth in Section 3 above a number of Shares or other consideration, in the case of (i) and (ii) above, representing the number and kind of Shares, other securities or other consideration into which each outstanding Share shall be changed or for which each such Share shall be exchanged. The substituted units shall be subject to the same terms and conditions as the original Share units. (h) No Right to Remain on the Board. Neither the Plan nor the crediting of Share units under the Plan shall be deemed to give any individual a right to remain a director of the Company or create any obligation on the part of the Board to nominate any Director for reelection by the shareholders of the Company. (i) Governing Law. The validity, construction, and effect of the Plan shall be determined in accordance with the laws of the State of New York, without giving effect to principles of conflict of laws thereof. -4- (j) Effective Date. The Plan shall become effective on April 1, 2000 (the "Effective Date"). (k) Titles and Headings. The titles and headings of the Sections in the Plan are for convenience of reference only. In the event of any conflict, the text of the Plan, rather than such titles or headings, shall control. -5- EX-5 4 OPINION OF CAHILL GORDON & REINDEL EXHIBIT 5 [Letterhead of Cahill Gordon & Reindel] March 22, 2000 (212) 701-3000 Gentiva Health Services, Inc. 175 Broad Hollow Road Melville, New York 11747 Re: Gentiva Health Services, Inc. ---------------------------- Ladies and Gentlemen: We have acted as counsel to Gentiva Health Services, Inc., a Delaware corporation (the "Company") in connection with its Post-Effective Amendment No. 1 on Form S-8 to Form S-4 (No. 333-88663) (the "Post-Effective Amendment") filed by the Company with the Securities and Exchange Commission (the "Commission") registering under the Securities Act of 1933, as amended (the "Act") 8,085,693 shares of the Company's Common Stock, par value $.10 per share issuable under the Company's 1999 Stock Incentive Plan, Stock & Deferred Compensation Plan for Non-Employee Directors, and Employee Stock Purchase Plan (collectively, the "Plans") and under stock option agreements (collectively, the "Stock Option Agreements") with Olsten Corporation, a Delaware corporation ("Olsten"), and assumed by the Company upon the consummation of the merger of Olsten and Staffing Acquisition Corporation, a Delaware corporation ("Staffing") and the split-off of the Company from Olsten, each pursuant to an Agreement and Plan of Merger, dated August 17, 1999, by and among Olsten, Staffing and Adecco SA, a societe anonyme organized under the laws of Switzerland, as amended. We have examined copies of such corporate records and made such inquiries as we have deemed necessary for purposes of rendering the opinion set forth below. Based upon the foregoing, in our opinion, the shares of Common Stock to be issued by the Company, when issued in the manner contemplated by the Plans and the Stock Option Agreements, as applicable, will be duly and validly issued, fully paid and non-assessable. In rendering the opinion set forth above, we express no opinion as to the laws of any jurisdiction other than the General Corporation law of the State of Delaware, including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting the laws, and the federal laws of the United States of America. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, /s/ Cahill Gordon & Reindel EX-23.1 5 CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.1 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4 of our report dated February 28, 1999, except as to the information presented in Notes 4, 8 and 16, for which the date is September 29, 1999, relating to the financial statements and financial statement schedule of Gentiva Health Services, Inc., which appears in Gentiva Health Services, Inc.'s Form S-4 dated February 9, 2000. /s/ PricewaterhouseCoopers LLP New York, New York March 21, 2000 -----END PRIVACY-ENHANCED MESSAGE-----