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Exhibit
10.3
GENTIVA HEALTH SERVICES,
INC.
STOCK & DEFERRED
COMPENSATION PLAN
FOR NON-EMPLOYEE
DIRECTORS
(As Amended and Restated as
of December 31, 2007
To Comply With Code
Section 409A)
SECTION 1.
INTRODUCTION.
The Gentiva Health Services,
Inc. Stock & Deferred Compensation Plan for Non-Employee
Directors (the “Plan”) provides for the deferral of a
portion of the annual retainer fees payable to non-employee
directors of Gentiva Health Services, Inc. into Units which are
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:
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(a) |
“Annual Shareholders Meeting” means the annual
general meeting of the Company’s shareholders. |
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(b) |
“Board” means the Board of Directors of the
Company. |
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(c) |
“Calculation Date” means the date as of which the
number of Units to be credited to an Account is to be calculated.
Generally, the Calculation Dates shall be
March 1, June 1, September 1 and
December 1; PROVIDED, HOWEVER, that if a person shall become a
Director other than at an Annual Shareholders Meeting, the first
Calculation Date applicable to such Director shall be the
Director’s first day of service. |
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(d) |
“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. |
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(e) |
“Company” means Gentiva Health Services, Inc., a
corporation organized under the laws of Delaware, or any successor
corporation. |
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(f) |
“Director” means a member of the Board who is not
employed by the Company or any of its subsidiaries. |
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(g) |
“Plan” means this Stock & Deferred
Compensation Plan for Non-Employee Directors. |
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(h) |
“Plan Benefits” means the benefits described in
Section 6 hereof. |
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(i) |
“Plan Year” means a period of approximately twelve
months beginning on the date of the Annual Shareholders Meeting for
a year and ending on the day immediately preceding the Annual
Shareholders Meeting in the following year. |
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(j) |
“Separation from Service” means a good-faith and
complete termination of the contractual relationship under which
services are performed for the Company and all of its subsidiaries.
Whether a Separation from Service has occurred will be determined
in accordance with the guidance issued under Code section
409A. |
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(k) |
“Shares” means Common Stock, $0.10 par value per
share, of the Company. |
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(l) |
“Specified Employee” means a Director who, as of
the date of the Director’s Separation from Service, is a
specified employee of the Company and its affiliates as determined
under the Specified Employee Determination Policy established by
the Company and maintained in accordance with the guidance issued
under Code section 409A. |
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(m) |
“Unit” means a contractual right, denominated in
Shares, to receive Shares of the Company, as described in this
Plan. |
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 300,000.
SECTION 4. ANNUAL
RETAINER DEFERRED INTO UNITS.
(a) GENERAL. The portion of
each Director’s annual retainer fee to be deferred into Units
for a Plan Year shall be $55,000.
(b) CALCULATING THE NUMBER OF
UNITS. The number of Units to be deferred and credited to a
Director’s Account as of any Calculation Date shall be
$13,750 (or in the case of a person who becomes a Director other
than at an Annual Shareholders Meeting, a pro-rated amount based on
the number of days in the calculation period the person will be a
Director) divided 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 Calculation Date, and the resulting quotient shall be
rounded to the nearest whole Unit.
SECTION 5. UNIT
ACCOUNTS.
The Company shall maintain a
Unit account (an “Account”) for each Director. Units
will be credited to each such Account as follows:
(a) CREDITING OF UNITS. Units
shall be credited as of the Calculation Date.
(b) DIVIDEND EQUIVALENTS. If
any dividends are payable on Shares, dividend equivalents, equal to
the dividend that would have been payable on the Units credited to
a Director’s Account as if such Units had constituted Shares,
shall be paid to the Director in cash at the same time the
corresponding dividends are paid on Shares.
SECTION 6. PLAN
BENEFITS.
(a) FORM. The Plan Benefit of
a Director shall consist of Shares equal in number to the Units in
the Director’s Account. Any fractional Unit shall be paid in
cash.
(b) DISTRIBUTION.
(i) The Plan Benefit of a
Director shall be distributed: (A) in a single lump sum as
soon as administratively practicable following the Director’s
Separation from Service, but in no event more than ninety
(90) days following such Separation from Service, (B) in
a single lump sum on a specific date up to one year after the
Director’s Separation from Service as designated by the
Director (e.g., six months following Separation from Service), or
(C) with respect to Units credited prior to January 1,
2004 only, in annual installments, as designated by the Director up
to a maximum of three (3), commencing as soon as administratively
practicable following the Director’s Separation from Service,
but in no event more than 90 days following the Director’s
Separation from Service.
(ii) Each Director may elect
the time of distribution in accordance with subsection (i), and
such election must be made in the form designated by the Company
from time to time and must be made within thirty (30) days
after the Director first becomes eligible to participate in the
Plan; provided the Director was not previously eligible to
participate in any nonqualified deferred compensation account
balance plan maintained by the Company or any of its subsidiaries.
If a Director was previously eligible to participate in any such
account balance plan or in the absence of a timely distribution
election by a Director hereunder, the Director shall be deemed to
have elected to hav
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