EXHIBIT 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of January __, 2000, by and between
GENTIVA HEALTH SERVICES, INC., a Delaware corporation (the "Company"), and
XXXXXX X. XXXXXXXXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, the Company desires that Executive continue to serve as
Chairman and Chief Executive Officer of the Company and Executive is willing to
continue to serve;
WHEREAS, the Company and Executive wish to enter into an agreement
embodying the terms of his employment as Chairman and Chief Executive Officer
(the "Agreement"); and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company and Executive hereby agree as follows:
1. EMPLOYMENT. Upon the terms and subject to the conditions of
this Agreement, the Company hereby agrees to continue to employ Executive and
Executive hereby agrees to continue his employment by the Company until the
third anniversary of the Effective Date (as defined below) of this Agreement.
The period during which Executive is employed pursuant to this Agreement shall
be referred to as the "Employment Period."
2. POSITION AND DUTIES. During the Employment Period, Executive
shall serve as Chairman and Chief Executive Officer of the Company and shall be
nominated for election, and if so elected, shall serve as a member of the Board
of Directors of the Company (the "Board"). In addition, Executive shall serve in
such other position or positions with the Company and its subsidiaries
commensurate with his position and experience as the Board shall from time to
time specify. During the Employment Period, Executive shall have the duties,
responsibilities and obligations customarily assigned to individuals serving as
the chairman and chief executive officer of comparable companies, and such other
duties, responsibilities and obligations as the Board shall from time to time
specify. Executive shall devote his full time to the services required of him
hereunder, except for vacation time and reasonable periods of absence due to
sickness, personal injury or other disability, and shall use his best efforts,
judgment, skill and energy to perform such services in a manner consonant with
the duties of his position and to improve and advance the business and interests
of the Company and its subsidiaries. Nothing contained in this Section 2 shall
preclude Executive from (i) serving on the board of directors of any business
corporation, unless such service would be
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contrary to applicable law, (ii) serving on the board of, or working for, any
charitable or community organization or (iii) pursuing his personal financial
and legal affairs, so long as such activities, individually or collectively, do
not interfere with the performance of Executive's duties hereunder or violate
any of the provisions of Section 6 hereof.
3. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Company shall
pay Executive a base salary at the annual rate of $600,000 per annum. The annual
base salary payable under this section shall be reduced, however, to the extent
Executive elects to defer such salary under the terms of any deferred
compensation or savings plan or arrangement maintained or established by the
Company or any other arrangement acceptable to the Company. The Board (or the
appropriate committee of the Board) shall annually review Executive's base
salary in light of competitive practices, the base salaries paid to other
executive officers of the Company and the performance of Executive and the
Company, and may, in its discretion, increase such base salary by an amount it
determines to be appropriate. Any such increase shall not reduce or limit any
other obligation of the Company hereunder. Executive's base salary (as set forth
or as may be increased from time to time) shall not be reduced, except that
Executive's base salary may be reduced in proportion to comparable reductions in
the base salaries of the Company's other executive officers (as determined for
purposes of Section 16(b) of the Securities Exchange Act of 1934, as amended).
Executive's annual base salary payable hereunder, as it may be increased from
time to time and without reduction for any amounts deferred as described above,
is referred to herein as "Base Salary." The Company shall pay Executive the
portion of his Base Salary not deferred not less frequently than in equal
bi-weekly installments.
(b) ANNUAL BONUS. For each calendar year ending during the
Employment Period, Executive shall have the opportunity to receive an annual
bonus ("Annual Target Bonus Opportunity"), based on the achievement of target
levels of performance, equal to 80% of his Base Salary, PROVIDED THAT, so long
as Executive is employed on the last day of the calendar year, in no event shall
the annual bonus payable to Executive for the Company's 2000 fiscal year be less
than an amount equal to 50% of Executive's Base Salary, regardless of whether
any applicable performance criteria have been met. Depending on actual results
as measured against the performance objectives established, Executive's actual
bonus payment may range from (i) a low of (A) 50% of Executive's Base Salary
with respect to the Company's 2000 fiscal year and (B) zero for subsequent
fiscal years to (ii) a maximum of 120% of Executive's Base Salary for each full
fiscal year during the Employment Period. Subject to the guaranteed minimum set
forth above, the actual bonus, if any, payable for any such year shall be
determined in accordance with the terms of the Company's Executive Officers'
Bonus Plan (the "Annual Plan") based upon the performance of the Company and/or
Executive against target objectives established under such Annual Plan. The
determination of whether
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and to what extent the requisite performance objectives have been met shall be
made by the Board committee responsible for administering the Annual Plan, whose
determination shall be final. Subject to Executive's election to defer all or a
portion of any annual bonus payable hereunder pursuant to the terms of any
deferred compensation or savings plan or arrangement maintained or established
by the Company, any annual bonus payable under this Section 3(b) shall be paid
to Executive in accordance with the terms of the Annual Plan, PROVIDED, however,
that, regardless of the terms of such Annual Plan, Executive shall have the
right to defer payment of up to that portion of his annual bonus which, when
coupled with any portion of his Base Salary deferred for the same year of
service, does not exceed 50% (or such greater percentage as the Company shall
permit) of the sum of his Base Salary and his annual bonus, PROVIDED, HOWEVER,
THAT, any portion of Executive's annual bonus which would not be deductible to
the Company pursuant to the provisions of Section 162(m) of the Internal Revenue
Code of 1986, as amended (the "Code"), shall be deferred. Unless Executive shall
otherwise elect a different payment date or dates or a different number of
payments, any portion of Executive's annual bonus and/or Base Salary which is
deferred in accordance with this Section 3 (whether at Executive's election or
by reason of Section 162(m)) shall be payable to Executive in a single lump sum
as soon as practicable following termination of Executive's employment for any
reason and shall be credited with interest, on a compounded basis, on the last
day of each calendar quarter, at 1% above the prime rate (as reported in The
Wall Street Journal, Eastern Edition), as in effect on the first day of each
such calendar quarter. Any election by Executive to change the timing of the
distribution of the deferred amounts and/or the number of payments to be made
shall be made in writing in a calendar year prior to the date payment is to be
made, and shall only be effective if Executive completes at least six months'
additional service as an employee following the date any such election is filed
with the Secretary of the Company.
4. BENEFITS, PERQUISITES AND EXPENSES.
(a) BENEFITS. During the Employment Period, Executive shall be
eligible to participate in (i) each welfare benefit plan sponsored or maintained
by the Company, including, without limitation, each group life, hospitalization,
medical, dental, health, accident or disability insurance or similar plan or
program of the Company, and (ii) each pension, retirement, deferred
compensation, savings or employee stock purchase plan sponsored or maintained by
the Company, and (iii) to the extent of any awards made from time to time by the
Board committee administering the plan, each stock option, restricted stock,
stock bonus or similar equity-based compensation plan sponsored or maintained by
the Company, in each case, whether now existing or established hereafter, to the
extent that Executive is eligible to participate in any such plan under the
generally applicable provisions thereof. Nothing in this Section 4(a) shall
limit the Company's right to amend or terminate any such plan in accordance with
the procedures set forth therein.
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(b) PERQUISITES. During the Employment Period, Executive shall be
entitled to at least four weeks' paid vacation annually and shall also be
entitled to receive such perquisites as are generally provided to other senior
officers of the Company in accordance with the then current policies and
practices of the Company, including leasing a car for Executive's use in
accordance with the Company's standard policy.
(c) BUSINESS EXPENSES. During the Employment Period, the Company
shall pay or reimburse Executive for all reasonable expenses incurred or paid by
Executive in the performance of Executive's duties hereunder, upon presentation
of expense statements or vouchers and such other information as the Company may
require and in accordance with the generally applicable policies and procedures
of the Company.
(d) INDEMNIFICATION. During the Employment Period, the Company
shall indemnify Executive and hold Executive harmless from and against any
claim, loss or cause of action arising from or out of Executive's performance as
an officer, director or employee of the Company or any of its subsidiaries or in
any other capacity, including any fiduciary capacity, in which Executive serves
at the request of the Company to the maximum extent permitted by applicable law
and the Company's Restated Certificate of Incorporation and By-Laws.
5. TERMINATION OF EMPLOYMENT.
(a) EARLY TERMINATION OF THE EMPLOYMENT PERIOD. Notwithstanding
Section 1, the Employment Period shall end upon the earliest to occur of (i) a
termination of Executive's employment on account of Executive's death, (ii) a
termination due to Executive's Disability, (iii) Termination for Cause, (iv) a
Termination Without Cause or (v) a Termination for Good Reason.
(b) BENEFITS PAYABLE UPON EARLY TERMINATION. Following the end of
the Employment Period pursuant to Section 5(a), Executive (or, in the event of
his death, his surviving spouse, if any, or his estate) shall be paid the type
or types of compensation determined to be payable in accordance with the
following table at the times established pursuant to Section 5(c):
SEVERANCE ADDITIONAL
EARNED SALARY VESTED BENEFITS BENEFITS BENEFITS
------------- --------------- -------- --------
Termination due Payable Payable Not payable Available
to death
Termination due Payable Payable Not payable Available
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SEVERANCE ADDITIONAL
EARNED SALARY VESTED BENEFITS BENEFITS BENEFITS
------------- --------------- -------- --------
to Disability
Termination for Payable Payable Not payable Not available
Cause
Termination for Payable Payable Payable Available
Good Reason
Termination Payable Payable Payable Available
Without Cause
(c) TIMING OF PAYMENTS. Earned Salary shall be paid in cash in a
single lump sum as soon as practicable, but in no event more than 10 days,
following the end of the Employment Period. Vested Benefits shall be payable in
accordance with the terms of the plan, policy, practice, program, contract or
agreement under which such benefits have been awarded or accrued. Severance
Benefits shall be paid in a single lump sum cash payment as soon as practicable,
but in no event later than 10 days after the Executive's termination. Additional
Benefits shall be provided or made available at the times specified below as to
each such Additional Benefit.
(d) DEFINITIONS. For purposes of Sections 5 and 6, capitalized
terms have the following meanings:
"Additional Benefits" means, if Executive's employment terminates due
to death or in a Termination due to Disability, the benefits described in
subclause (i) below, or if the Executive's employment is terminated in a
Termination Without Cause or a Termination for Good Reason, the benefits
described in subclauses (i) and (ii):
(i) All of the Executive's benefits accrued under the pension,
retirement, savings and deferred compensation plans of the Company shall become
vested in full; PROVIDED, HOWEVER, that to the extent such accelerated vesting
of benefits cannot be provided under one or more of such plans consistent with
applicable provisions of the Internal Revenue Code of 1986, as amended, such
benefits shall be paid to the Executive in a lump sum within 10 days after
termination of employment outside the applicable plan; and
(ii) Executive (and, to the extent applicable, his dependents) will
be entitled to continue participation in all of the Company's medical, dental
and vision care plans (the "Health Benefit Plans"), until the 24 month
anniversary of Executive's termination of
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employment; PROVIDED THAT Executive's participation in the Company's Health
Benefit Plans shall cease on any earlier date that Executive becomes eligible
for comparable benefits from a subsequent employer. Executive's participation in
the Health Benefit Plans will be on the same terms and conditions (including,
without limitation, any contributions that would have been required from
Executive) that would have applied had Executive continued to be employed by the
Company. To the extent any such benefits cannot be provided under the terms of
the applicable plan, policy or program, the Company shall provide a comparable
benefit under another plan or from the Company's general assets.
"Disability" means long-term disability within the meaning of the
Company's long-term disability plan or program.
"Earned Salary" means any Base Salary earned, but unpaid, for services
rendered to the Company on or prior to the date on which the Employment Period
ends pursuant to Section 5(a) (other than Base Salary deferred pursuant to
Executive's election, as provided in Section 3(a) of (b) hereof).
"Severance Benefit" means an amount equal to two times the Executive's
Base Salary; PROVIDED, HOWEVER, that Severance Benefits shall not be payable
under this Agreement to the Executive if the termination of the Executive's
employment results in the payment of severance benefits under the Executive's
Change in Control Agreement with the Company dated January __, 2000.
"Termination for Cause" means a termination of Executive's employment
by the Company due to (i) Executive's conviction of a felony, (ii) Executive's
willful and continued failure to perform the material duties of his position
which has had (or is expected to have) a material adverse effect on the business
of the Company or its subsidiaries, or (iii) Executive's breach of any material
Company policy or procedure which has had (or is expected to have) a material
adverse effect on the business of the Company or its subsidiaries.
"Termination for Good Reason" means a termination of Executive's
employment by Executive (i) within 90 days following (A) a material diminution
in Executive's positions, duties and responsibilities from those described in
Section 2 hereof, (B) the removal of Executive from, or the failure to re-elect
Executive as a member of, the Board, (C) a reduction in Executive's annual Base
Salary (other than any reduction therein which is in proportion to reductions in
the base salaries of all of the Company's executive officers, as contemplated by
Section 3(a) hereof), or (iv) failure by the Company to offer in writing, at
least six months prior to the end of the initial three year Employment Period,
to extend the term of this Agreement for at least one year, or (v) a material
breach by the Company of any other provision of this Agreement.
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"Termination Without Cause" means any termination of Executive's
employment by the Company other than a Termination for Cause.
"Vested Benefits" means amounts which are vested or which Executive is
otherwise entitled to receive under the terms of or in accordance with any plan,
policy, practice or program of, or any contract or agreement with, the Company
or any of its subsidiaries, at or subsequent to the date of his termination
without regard to the performance by Executive of further services or the
resolution of a contingency.
(e) FULL DISCHARGE OF COMPANY OBLIGATIONS. Except as expressly
provided in the last sentence of this Section 5(e), the amounts payable to
Executive pursuant to this Section 5 following termination of his employment
(including amounts payable with respect to Vested Benefits) shall be in full and
complete satisfaction of Executive's rights under this Agreement and any other
claims he may have in respect of his employment by the Company or any of its
subsidiaries. Such amounts shall constitute liquidated damages with respect to
any and all such rights and claims and, upon Executive's receipt of such
amounts, the Company shall be released and discharged from any and all liability
to Executive in connection with this Agreement or otherwise in connection with
Executive's employment with the Company and its subsidiaries. If requested by
the Company, Executive shall execute a release following termination of his
employment, in form and substance satisfactory to the Company (but not
inconsistent with the terms of this Agreement), as a prior condition to the
receipt of the benefits payable pursuant to this Section 5. Nothing in this
Section 5(e) shall be construed to release the Company from its commitment to
indemnify Executive and hold Executive harmless from and against any claim, loss
or cause of action as described in Section 4(e).
(f) EXCISE TAX CUT BACK.
(i) Anything in this Agreement to the contrary
notwithstanding, if it shall be determined that any payment, distribution or
benefit provided (including, without limitation, the acceleration of any
payment, distribution or benefit and the acceleration of exercisability of any
stock option) to the Executive or for his or her benefit (whether paid or
payable or distributed or distributable) pursuant to the terms of this Agreement
or otherwise would be subject, in whole or in part, to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Excise
Tax"), then the amounts payable to the Executive under this Agreement shall be
reduced (by the minimum possible amount) until no amount payable to the
Executive is subject to the Excise Tax; PROVIDED HOWEVER, that no such reduction
shall be made if the net after-tax benefit (after taking into account Federal,
state, local or other income, employment, self-employment and excise taxes) to
which the Executive would otherwise be entitled without such reduction would be
greater than the net after-tax benefit (after taking into account Federal,
state, local or other income, employment, self-employment and excise taxes) to
the Executive resulting from the receipt of such payments
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with such reduction. If, as a result of subsequent events or conditions, it is
determined that payments have been reduced by more than the minimum amount
required under this Section 5(f), then an additional payment shall be promptly
made to the Executive in an amount equal to the excess reduction.
(ii) All determinations required to be made under this
Section 5(f), including whether a payment would result in an Excise Tax shall be
made by PricewaterhouseCoopers LLP (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive as
requested by the Company or the Executive. All fees and expenses of the
Accounting Firm shall be borne solely by the Company and shall be paid by the
Company. Except as set forth in the last sentence of Section 5(f)(i) hereof, all
determinations made by the Accounting Firm under this Section 5(f) shall be
final and binding upon the Company and the Executive.
6. NONCOMPETITION AND CONFIDENTIALITY. By and in consideration of
the salary and benefits to be provided by the Company hereunder, including
particularly the severance arrangements set forth herein, Executive agrees that:
(a) NONCOMPETITION. Executive acknowledges that the Company and
its subsidiaries conduct business throughout the United States, the District of
Columbia, and Canada, and that his duties to Company relate to some or all of
these territories and to some or all business lines of the Company. During the
Employment Period and during the nine month period following any termination of
Executive's employment, other than a Termination Without Cause or a Termination
for Good Reason, Executive shall not directly or indirectly: (i) perform or
provide any services to any individual or business which is engaged in the type
of business(es) similar to the type of business(es) conducted by Company or any
of its subsidiaries; and/or (ii) own, manage, operate, control, be employed by,
participate in, provide services or financial assistance to, or be connected in
any manner with, the ownership, management, operation or control of any business
which directly competes with Company or any of its subsidiaries or engages in
the type of business(es) principally conducted by the Company or any of its
subsidiaries, EXCEPT THAT Executive may own for investment purposes up to 1% of
the capital stock of any such company whose stock is publicly traded.
(b) CONFIDENTIALITY. Except as may be required by the lawful order
of a court or agency of competent jurisdiction, or applicable law, or except to
the extent that Executive has express authorization from the Company, Executive
agrees to keep secret and confidential indefinitely all non-public information
(including, without limitation, information regarding litigation and pending
litigation and any information that may be subject to attorney-client privilege)
concerning the Company, its subsidiaries and affiliates (collectively, the
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"Company Group") which was acquired by or disclosed to Executive during the
course of Executive's employment with the Company, and not to disclose the same,
either directly or indirectly, to any other person, firm, or business entity, or
to use it in any way. Such non-public information shall include, but not be
limited to, the following:
(i) information which the Company Group has compiled to
identify, develop and service its clients and
customers, including "negative research" to identify
those entities who have not subscribed to the
services of the Company and its subsidiaries;
(ii) information which the Company Group has compiled
concerning the operations of the clients and
customers of the Company and its subsidiaries,
including key contacts within the clients' and
customers' business, familiarity with special needs
and customer characteristics, workers' compensation
information, billing rates, profit margins, sales
volumes, and other sensitive financial information;
and
(iii) information which the Company Group has compiled
concerning the employees and labor force at the
Company and its subsidiaries, including compilations
of their names, addresses, job skills, employment
histories and employment records.
Upon termination of Executive's employment, Executive shall promptly deliver to
the Company all materials of a confidential nature relating to the business of
the Company and its subsidiaries and which are Executive's possession or
control. To the extent that Executive obtained information on behalf of the
Company or any subsidiary or affiliate that may be subject to attorney-client
privilege, Executive shall take reasonable steps to maintain the confidentiality
of such information and to preserve such privilege.
(c) NON-SOLICITATION OF EMPLOYEES. During the Employment Period
and the one-year period following any termination of Executive's employment,
Executive shall not directly or indirectly, for his own benefit or that of any
other person, offer any employment in a similar field or business association to
any of the Company's employees, agents or representatives or suggest or in any
way encourage, any of the Company's employees, agents or representatives to
terminate their employment or business association with the Company.
(d) NON-SOLICITATION OF CLIENTS AND CUSTOMERS. During the
Employment Period and the one-year period following any termination of
Executive's employment, Executive shall not solicit or accept for Executive's
own benefit or the benefit of any other person any of the Company's customers
and/or clients with a view to selling or providing any product or service
competitive with any product or service sold or provided or under development by
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the Company. For the purposes of this Section 6(d), the term "customers" shall
include any person or entity to whom the Company has sold, provided or been
obligated to provide, any service or product, or who has otherwise received any
service or benefit from the Company within the last 24 months or within the
24-month period preceding the date Executive's employment terminates.
(e) COMPANY PROPERTY. Except as expressly provided herein,
promptly following Executive's termination of employment, Executive shall return
to the Company all property of the Company.
(f) INJUNCTIVE RELIEF AND OTHER REMEDIES WITH RESPECT TO
COVENANTS. Executive acknowledges and agrees that the covenants and obligations
of Executive with respect to noncompetition, nonsolicitation, confidentiality
and Company property, relate to special, unique and extraordinary matters and
that a violation of any of the terms of such covenants and obligations may cause
the Company irreparable injury for which adequate remedies are not available at
law. Therefore, Executive agrees that the Company shall be entitled to seek an
injunction, restraining order or such other equitable relief (without the
requirement to post bond) restraining Executive from committing any violation of
the covenants and obligations contained in this Section 6. This remedy is in
addition to any other rights and remedies the Company may have at law or in
equity.
7. MISCELLANEOUS.
(a) EFFECTIVE DATE. This Agreement shall become effective for all
purposes (the "Effective Date") at the Effective Time of the Merger contemplated
by the Agreement and Plan of Merger by and among Adecco SA, Staffing Acquisition
Corporation and Olsten Corporation dated as of August 17, 1999, as amended.
(b) SURVIVAL. Sections 5 (relating to early termination), 6
(relating to noncompetition, nonsolicitation and confidentiality), 7(c)
(relating to arbitration), 7(d) (relating to binding effect) and 7(n) (relating
to governing law) shall survive the termination hereof.
(c) ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be resolved by binding arbitration. This
arbitration shall be held in New York City and except to the extent inconsistent
with this Agreement, shall be conducted in accordance with the Expedited
Employment Arbitration Rules of the American Arbitration Association then in
effect at the time of the arbitration, and otherwise in accordance with
principles which would be applied by a court of law or equity. The arbitrator
shall be acceptable to both the Company and Executive. If the parties cannot
agree on an acceptable arbitrator, the dispute shall be held by a panel of three
arbitrators one appointed by each of the parties and the third appointed by the
other two arbitrators.
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(d) BINDING EFFECT. This Agreement shall be binding on, and shall
inure to the benefit of, the Company and any person or entity that succeeds to
the interest of the Company (regardless of whether such succession does or does
not occur by operation of law) by reason of the sale of all or a portion of the
Company's stock, a merger, consolidation or reorganization involving the Company
or, unless the Company otherwise elects in writing, a sale of the assets of the
business of the Company (or portion thereof) in which Executive performs a
majority of his services. This Agreement shall also inure to the benefit of
Executive's heirs, executors, administrators and legal representatives.
(e) ASSIGNMENT. Except as provided under Section 7(d), neither
this Agreement nor any of the rights or obligations hereunder shall be assigned
or delegated by any party hereto without the prior written consent of the other
party.
(f) ENTIRE AGREEMENT. This Agreement, together with the Change in
Control Agreement between the Company and the Executive dated January __, 2000,
constitute the entire agreement between the parties hereto with respect to the
matters referred to herein. No other agreement (other than awards made in
accordance with the terms of one of the Company's applicable compensatory plans,
programs or arrangements) relating to the terms of Executive's employment by the
Company, oral or otherwise, including, without limitation, the Employment
Agreement dated February 10, 1999 between the Executive and Olsten Corporation,
shall be binding between the parties. There are no promises, representations,
inducements or statements between the parties other than those that are
expressly contained herein. Executive acknowledges that he is entering into this
Agreement of his own free will and accord, and with no duress, that he has read
this Agreement and that he understands it and its legal consequences.
(g) SEVERABILITY; REFORMATION. In the event that one or more of
the provisions of this Agreement shall become invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby. In the event that any
of the provisions of any of Section 6(a), (b) or (c) is not enforceable in
accordance with its terms, Executive and the Company agree that such Section
shall be reformed to make such Section enforceable in a manner which provides
the Company the maximum rights permitted at law.
(h) WAIVER. Waiver by any party hereto of any breach or default by
the other party of any of the terms of this Agreement shall not operate as a
waiver of any other breach or default, whether similar to or different from the
breach or default waived. No waiver of any provision of this Agreement shall be
implied from any course of dealing between the parties hereto or from any
failure by either party hereto to assert its or his rights hereunder on any
occasion or series of occasions.
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(i) NOTICES. Any notice required or desired to be delivered under
this Agreement shall be in writing and shall be delivered personally, by courier
service, by certified mail, return receipt requested, or by telecopy and shall
be effective upon actual receipt by the party to which such notice shall be
directed, and shall be addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
If to the Company:
Gentiva Health Services, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
If to Executive:
Xxxxxx X. Xxxxxxxxxxxx
c/o Gentiva Health Services, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
(j) AMENDMENTS. This Agreement may not be altered, modified or
amended except by a written instrument signed by each of the parties hereto.
(k) HEADINGS. Headings to paragraphs in this Agreement are for the
convenience of the parties only and are not intended to be part of or to affect
the meaning or interpretation hereof.
(l) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
(m) WITHHOLDING. Any payments provided for herein shall be reduced
by any amounts required to be withheld by the Company from time to time under
applicable Federal, State or local income tax laws or similar statutes then in
effect.
(n) CHOICE OF LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to principles of conflict of laws thereof.
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IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed as of the day and year first above written.
GENTIVA HEALTH SERVICES, INC.
By:
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Xxxx X. Xxxxxx, Chairman,
Human Resources and
Compensation Committee
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Xxxxxx X. Xxxxxxxxxxxx
