Current Report Filing (8-k)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): February 2, 2015

GENTIVA HEALTH SERVICES, INC.

(Exact name of registrant as specified in its charter)

Delaware

1-15669

36-4335801

(State or other jurisdiction

of incorporation)

(Commission

File No.)

(IRS Employer

Identification No.)


3350 Riverwood Parkway, Suite 1400, Atlanta, Georgia		30339-3314
(Address of principal executive offices)		(Zip Code)

(770) 951-6450

(Registrant’s telephone number, including area code)

Not applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.02

Termination of a Material Definitive Agreement

On February 2, 2015, Gentiva Health Services, Inc., a Delaware corporation (“Gentiva”) repaid all outstanding loans and terminated all commitments under the credit agreement dated as of October 18, 2013 among Gentiva, Barclays Bank PLC, as administrative agent, swing line lender and L/C issuer and the other lenders party thereto. In connection with such termination, Gentiva repaid all outstanding loans and interest accrued under the credit agreement through the date of termination, and all liens on assets of Gentiva and its subsidiaries guaranteeing such facility, together with such subsidiary guarantees, were released and terminated.

On February 2, 2015, an irrevocable notice of redemption of Gentiva’s 11.5% senior notes due 2018 (the “Existing Notes”) was delivered to the holders thereof, calling for redemption of the entire outstanding $325 million aggregate principal amount of the Existing Notes on March 4, 2015 (the “Redemption Date”) pursuant to the terms of the indenture dated as of August 17, 2010 (the “Existing Indenture”), as supplemented and amended from time to time, among Gentiva, the guaranteeing subsidiaries party thereto and, The Bank of New York Mellon Trust Company, N.A., as trustee. The redemption price for the Existing Notes to be redeemed (the “Redemption Price”) is equal to 105.750% of the principal amount of the Existing Notes plus accrued and unpaid interest on the Existing Notes to but excluding the Redemption Date plus the Applicable Premium as defined in the Existing Indenture. The Existing Indenture is filed as Exhibit 4.1 to Gentiva’s Current Report on Form 8-K filed with the SEC on August 17, 2010.

On February 2, 2015, Gentiva caused to be deposited an amount greater than or equal to the Redemption Price with the trustee for the Existing Notes, and provided the trustee with irrevocable instructions to apply the deposit to redeem the Existing Notes on the Redemption Date. Pursuant to these actions, the Existing Indenture was satisfied and discharged in accordance with its terms. As a result, Gentiva and the guaranteeing subsidiaries party thereto have been released from their obligations with respect to the Existing Indenture and the Existing Notes, except with respect to those provisions of the Existing Indenture that by their terms survive the satisfaction and discharge.

Item 2.01

Completion of Acquisition or Disposition of Assets.

As previously disclosed, on October 9, 2014, Gentiva entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Kindred Healthcare, Inc., a Delaware corporation (“Kindred”), and Kindred Healthcare Development 2, Inc., a Delaware corporation and wholly owned subsidiary of Kindred (“Merger Sub”). On February 2, 2015, pursuant to the terms of the Merger Agreement, Merger Sub merged with and into Gentiva, with Gentiva surviving as a wholly owned subsidiary of Kindred (the “Merger”).

At the effective time of the Merger on February 2, 2015 (the “Effective Time”), each share of common stock, par value $0.10 per share, of Gentiva issued and outstanding immediately prior to Effective Time (“Gentiva Common Stock”) (other than shares held by Kindred, Gentiva or their respective wholly owned subsidiaries (which were cancelled), and shares that are owned by stockholders who have properly exercised and perfected a demand for appraisal rights under Delaware law (together, the “Excluded Shares”)), including each deferred share unit, was converted into the right to receive $14.50 in cash (the “Cash Consideration”) and, and 0.257 of a share of common stock, par value $0.25 per share, of Kindred (“Kindred Common Stock”) (the “Stock Consideration”) (the Cash Consideration and the Stock Consideration together, the “Merger Consideration”). Kindred did not issue any fractional shares as a result of the Merger. Instead, Kindred paid cash for fractional shares of Kindred Common Stock that Gentiva’s former stockholders otherwise would have been entitled to receive.

Each option to purchase Gentiva Common Stock (a “Gentiva Option”) that was outstanding immediately prior to the effective time of the Merger with a per share exercise price below the sum of (1) the value of the Stock Consideration (based on the average closing price per share of Kindred Common Stock for the 10 consecutive trading days prior to the closing date (the “Parent Closing Price”) and (2) the Cash Consideration that was or that became vested as a result of the Merger, was cancelled and converted into the right to receive an amount in cash equal to the Cash Consideration plus the value of the Stock Consideration (based on the Parent Closing Price), less the exercise price, subject to withholding taxes. Each Gentiva Option that was outstanding immediately prior to the effective time of the Merger with a per share exercise price at or above the sum of the (1) value of the Stock Consideration (based on the Parent Closing Price) and (2) the Cash Consideration or that did not vest as a result of the Merger was converted into an option to purchase a number of shares of Kindred Common Stock determined by multiplying the number of shares of Gentiva Common Stock subject to such Gentiva Option by a fraction, the numerator of which was the sum of (i) the product of the Stock Consideration multiplied by the Parent Closing Price and (ii) the Cash Consideration and the denominator of which was the Parent Closing Price. Each Gentiva performance cash award that became vested as a result of the Merger was accelerated and the recipient thereof received an amount in cash equal to the target amount of such cash award (unless such performance cash award provided for the accelerated vesting of such award at the maximum level, in which case the recipient thereof received an amount in cash equal to the maximum amount of such cash award), subject to withholding taxes. Each Gentiva performance cash award that did not vest as a result of the Merger was converted into the right to receive a Kindred cash award, subject to the vesting conditions of such performance cash award prior to the Effective Time. Each outstanding restricted share of Gentiva Common Stock that vested as a result of the Merger and each outstanding Gentiva deferred share unit received the Merger Consideration, subject to withholding taxes. Each outstanding restricted share of Gentiva Common Stock that did not vest as a result of the Merger received the Merger Consideration in the form of a restricted Kindred cash award and restricted Kindred Common Stock, in each case subject to the vesting conditions of such restricted shares prior to the effective time of the Merger.

The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which was filed as Exhibit 2.1 to Form 8-K filed by Gentiva with the Securities and Exchange Commission (the “SEC”) on October 14, 2014, and is incorporated by reference herein.

The information set forth in Item 3.01, Item 5.01 and Item 5.02 of this Current Report on Form 8-K are incorporated by reference into this Item 2.01.

Item 3.01

Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

(d) Notice of Delisting of Gentiva Shares

In connection with the completion of the Merger on February 2, 2015, Gentiva (i) notified the NASDAQ Stock Market (“NASDAQ”) that the merger had been completed and (ii) requested that NASDAQ (x) suspend trading of shares of Gentiva Common Stock on NASDAQ and (y) file with the SEC a Form 25 Notification of Removal from Listing and/or Registration to delist and deregister Gentiva Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Pursuant to Gentiva’s request to NASDAQ, the listing of shares of Gentiva Common Stock on NASDAQ will be suspended following the close of trading on February 2, 2015. Additionally, Gentiva intends to file with the SEC a certification on Form 15 under the Exchange Act requesting the deregistration of the shares of Gentiva Common Stock under Section 12(g) of the Exchange Act and the suspension of Gentiva’s reporting obligations under Sections 13 and 15(d) of the Exchange Act.

The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.

Item 3.03

Material Modification to Rights of Security Holders.

At the Effective Time, each outstanding share of Gentiva Common Stock, other than the Excluded Shares, was converted into the right to receive the Merger Consideration as further described above in Item 2.01. At the Effective Time, holders of shares of Gentiva Common Stock immediately prior to the Effective Time ceased to have any rights as stockholders of Gentiva (other than their right to receive the Merger Consideration, or, in the case of shares as to which appraisal rights have been properly exercised and not withdrawn, the rights pursuant to Section 262 of the Delaware General Corporation Law).

The information set forth in the Item 2.01 and Item 3.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

Item 5.01

Changes in Control of Registrant.

As a result of the consummation of the Merger, a change in control of Gentiva occurred and Gentiva became a wholly-owned subsidiary of Kindred on February 2, 2015. The information set forth in the Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.

Kindred funded the aggregate cash portion of the Merger Consideration using (i) existing cash balances, (ii) the proceeds from the issuances of Kindred common stock, tangible equity units and senior notes and (iii) the proceeds from third-party financing.

In November 2014, following Kindred’s entry into the merger agreement, Kindred entered into an employment agreement with David A. Causby, who, prior to the Merger, was a named executive officer of Gentiva. This employment agreement was amended and restated in February 2015. At the Effective Time, Mr. Causby will became the President of the combined Kindred at Home business, an Executive Vice President of Kindred and a member of Kindred’s Executive Committee. Mr. Causby’s employment agreement has an initial term of one year with automatic one-day extensions for each day that Mr. Causby remains employed by Kindred. Mr. Causby’s annual base salary will be $550,000. In addition to his base, salary Mr. Causby is entitled to receive bonuses and other incentive compensation as the Kindred board of directors may approve from time to time. During the one year period following the Effective Time, Mr. Causby will be eligible to receive certain performance-based cash bonus awards based on the achievement of specific performance metrics to be determined by the Kindred board of directors (or its designee). Mr. Causby also is entitled to a one-time, non-refundable lump-sum cash payment of $1,000,000 payable within 30 days after the Effective Time in consideration for agreeing to certain non-competition, non-solicitation and confidentiality restrictions. The Executive Compensation Committee of the Kindred board of directors made a one-time grant to Mr. Causby of 135,940 restricted stock units of Kindred, which replaced certain of his change-in-control severance benefits, his Gentiva outstanding and unvested In-the-Money Options (as defined in the Merger Agreement) and his Gentiva outstanding and unvested Performance Cash Awards (as defined in the Merger Agreement).

Under the employment agreement, Mr. Causby will be eligible to participate in all pension benefit, welfare benefit and fringe benefit plans from time to time in effect for officers of Kindred, and such bonus, stock option, or other incentive compensation plans of Kindred and its affiliates in effect from time to time for officers of Kindred. At the next regularly scheduled meeting of the Kindred board of directors, the Kindred chief executive officer will recommend that the Executive Compensation Committee of the Kindred board of directors make a grant of an equity stock award to Mr. Causby with a grant date fair value of 150% of his base salary in the form of 50% restricted stock units and 50% performance based stock units, in each case subject to the terms and conditions of the Kindred 2011 Stock Incentive Plan, Amended and Restated, and the applicable award agreement related thereto. Subject to share availability, following the first anniversary of the Effective Time, Kindred will recommend to the Executive Compensation Committee of the Kindred board of directors that Mr. Causby receive annual equity grants based on market total direct compensation, internal pay equity and individual performance.

In the event Mr. Causby’s employment with Kindred is terminated during the term of the employment agreement but on or after the first anniversary of the effective date of the employment agreement by Kindred for a reason other than cause or by Mr. Causby for good reason, Mr. Causby will be entitled to the following payments in addition to base salary through the date of termination, unreimbursed business expenses, accrued but unused vacation time, and any amounts owed to him pursuant to the terms and conditions of Kindred’s benefit plans and programs at the time such payments are due:

•

within fourteen days following the date of termination, Kindred will pay him a cash severance payment in an amount equal to 1.5 times the sum of his base salary and target bonus as of the date of termination;

•

for a period of eighteen months following the date of termination (which we refer to as the benefit continuation period), Mr. Causby will be treated as if he had continued to be an executive for all purposes under Kindred’s health insurance plan and dental insurance plan; or if he is prohibited from participating in such plans, Kindred will otherwise provide such benefits;

•

for the benefit continuation period, Kindred will maintain in force, at its expense, Mr. Causby’s life insurance in effect under Kindred’s voluntary life insurance benefit plan as of the date of termination;

•

for the benefit continuation period, Kindred will provide short-term and long-term disability insurance benefits equivalent to the coverage that Mr. Causby would have had if he had remained employed under the disability insurance plans applicable to him on the date of termination;

•

within fifteen days after the date of termination, Kindred will pay Mr. Causby a cash payment in an amount, if any, necessary to compensate him for the unvested interests under Kindred’s retirement savings plan which are forfeited by Mr. Causby in connection with the termination of his employment; and

•

any outstanding unvested stock options, stock performance units or similar equity awards (other than restricted stock awards) held by Mr. Causby on the date of termination will continue to vest in accordance with their original terms (including any related performance measures) for the duration of the benefit continuation period as if he had remained an employee of Kindred through the end of such period and any such stock option, stock performance unit or other equity award (other than restricted stock awards) that has not vested as of the conclusion of such benefit continuation period will be immediately cancelled and forfeited as of such date. In addition, Mr. Causby will have the right to continue to exercise any outstanding vested stock options held by him during the benefit continuation period; provided that in no event will he be entitled to exercise any such option beyond the original expiration date of such option. Any outstanding restricted stock award held by Mr. Causby as of the date of termination that would have vested during the benefit continuation period had he remained an employee of Kindred through the end of such period will be immediately vested as of the date of termination and any restricted stock award that would not have vested as of the conclusion of such period shall be immediately cancelled and forfeited as of such date.

In order to receive any severance benefits set forth in the employment agreement, Mr. Causby must execute a general release of claims against Kindred. In addition, the employment agreement contains confidentiality provisions and, for a period of one year following termination of employment, Mr. Causby is subject to covenants not to compete and not to solicit Kindred’s employees.

As an executive officer of Kindred, Mr. Causby is subject to Kindred’s stock ownership policies, which require him to maintain a certain ownership level of shares of Kindred common stock and impose retention requirements on equity awards until the requisite ownership requirements are satisfied.

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On February 2, 2015, in connection with the Merger and immediately upon the effective time of the Merger, each of the following directors resigned from the board of directors of Gentiva (the “Board”) and from any and all memberships on any committee of the Board: Rodney D. Windley, Tony Strange, Robert S. Forman, Jr., Victor F. Ganzi, R. Steven Hicks, Philip R. Lochner, Jr., Stuart Olsten, Sheldon M. Retchin, and Raymond S. Troubh. These resignations were not a result of any disagreements between Gentiva and the current directors on any matter relating to Gentiva’s operations, policies or practices. At the Effective Time, Joseph L. Landenwich, Stephen Cunanan and Douglas L. Curnutte, became the directors of Gentiva.

Also, immediately following the effective time of the Merger, Tony Strange, Eric R. Slusser, John N. Camperlengo, Jeff Shaner, Dr. Charlotte A. Weaver and David L. Gieringer ceased to be officers of Gentiva. At the Effective Time, Benjamin A. Breier, President and Chief Operating Officer, Kent Wallace, Executive Vice President and Chief Operating Officer, David Causby, Executive Vice President and President, Kindred at Home, Kenneth T. Higgins, Chief Financial Officer, Joseph L. Landenwich, Co-General Counsel and Corporate Secretary, among others, became the officers of Gentiva.

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

(a) Amendments to Articles of Incorporation and Bylaws

Pursuant to the terms of the Merger Agreement, at Effective Time, Gentiva’s certificate of incorporation and bylaws were amended and restated in their entirety. Gentiva’s amended and restated certificate of incorporation is attached hereto as Exhibit 3.1 and incorporated herein by reference. The amended and restated by-laws of Gentiva are attached hereto as Exhibit 3.2 and incorporated herein by reference.

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits


Exhibit No.		Description

2.1		Agreement and Plan of Merger, dated as of October 9, 2014, by and between Gentiva Health Services, Inc., Kindred Healthcare, Inc. and Kindred Healthcare Development 2, Inc. (incorporated herein by reference to Exhibit 2.1 to Gentiva’s Current Report on Form 8-K filed with the SEC on October 14, 2014).
3.1		Amended and Restated Certificate of Incorporation of Gentiva Health Services, Inc.
3.2		Amended and Restated By-Laws of Gentiva Health Services, Inc.
3.3		Certificate of Merger of Kindred Healthcare Development 2, Inc. with and into Gentiva Health Services, Inc.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


GENTIVA HEALTH SERVICES, INC.

By:	/s/ Joseph L. Landenwich
	Name:	Joseph L. Landenwich
	Title:	Co-General Counsel and Corporate Secretary

Date: February 2, 2015

EXHIBIT INDEX


Exhibit No.		Description

2.1		Agreement and Plan of Merger, dated as of October 9, 2014, by and between Gentiva Health Services, Inc., Kindred Healthcare, Inc. and Kindred Healthcare Development 2, Inc. (incorporated herein by reference to Exhibit 2.1 to Gentiva’s Current Report on Form 8-K filed with the SEC on October 14, 2014).
3.1		Amended and Restated Certificate of Incorporation of Gentiva Health Services, Inc.
3.2		Amended and Restated By-Laws of Gentiva Health Services, Inc.
3.3		Certificate of Merger of Kindred Healthcare Development 2, Inc. with and into Gentiva Health Services, Inc.

Exhibit 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

GENTIVA HEALTH SERVICES, INC.

ARTICLE ONE

The name of the corporation is Gentiva Health Services, Inc. (the “Corporation”).

ARTICLE TWO

The registered office of the Company in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801, and the name of the registered agent whose office address will be the same as the registered office is The Corporation Trust Company.

ARTICLE THREE

The purpose of the Company is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware (the “Delaware General Corporation Law”).

ARTICLE FOUR

The total number of shares of capital stock that the Company has authority to issue is 1,000 shares, which will be designated Common Stock, par value $0.01 per share.

ARTICLE FIVE

Unless, and except to the extent that, the Bylaws of the Company (the “Bylaws”) so require, the election of directors need not be by written ballot.

ARTICLE SIX

The board of directors of the Company (the “Board of Directors”) may from time to time adopt, amend or repeal the Bylaws, subject to the power of the stockholders to adopt any Bylaws or to amend or repeal any Bylaws adopted, amended or repealed by the Board of Directors.

ARTICLE SEVEN

To the fullest extent that the Delaware General Corporation Law as it exists on the date hereof or as it may hereafter be amended permits the limitation or elimination of the liability of directors, no director of the Company will be liable to the Company or its stockholders for monetary damage for breach of fiduciary duty as a director. Any repeal or amendment of this Article will not adversely affect any limitation on the personal liability or alleged liability of a director arising from an act or omission of that director occurring prior to the time of such repeal or amendment.

ARTICLE EIGHT

The directors shall have powers without the assent or vote of the stockholders to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the Company; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends.

ARTICLE NINE

The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the Company which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and as binding upon the Company and upon all the stockholders as though it had been approved or ratified by every stockholder of the Company, whether or not the contract or act would otherwise be open to legal attack because of directors’ interest, or for any other reason.

ARTICLE TEN

In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Company; subject, nevertheless, to the provisions of the statutes of Delaware, of this certificate, and to any bylaws from time to time made by the stockholders; provided, however, that no bylaws so made shall invalidate any prior act of the directors which would have been valid if such bylaw had not been made.

ARTICLE ELEVEN

The Company shall, to the full extent required or permitted by the Delaware General Corporation Law, as amended from time to time, indemnify (A) its directors and officers, whether serving the Company or at its request, any other entity, including the advance of expenses under the procedures and to the full extent permitted by the law, and (B) other employees and agents to such extent as shall be expressly authorized by the Board of Directors or the Bylaws and as permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Directors may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such bylaws, resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this certificate or repeal of its provisions shall limit or eliminate the right to indemnification provided under this Article with respect to any acts or omissions occurring prior to such amendment or repeal.

ARTICLE TWELVE

Section 203 of the Delaware General Corporation Law, as amended from time to time, shall not apply to the Company.

Exhibit 3.2

BYLAWS

KINDRED HEALTHCARE DEVELOPMENT 2, INC.

ARTICLE I

OFFICES

SECTION 1. REGISTERED OFFICE. The registered office shall be established and maintained at the office of The Corporation Trust Company, in the City of Wilmington, in the County of New Castle, in the State of Delaware, and said corporation shall be the registered agent of this corporation in charge thereof.

SECTION 2. OTHER OFFICES. The corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require.

ARTICLE II

MEETING OF STOCKHOLDERS

SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the election of directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting. In the event the Board of Directors fails to so determine the time, date and place of meeting, the annual meeting of stockholders shall be held at the offices of the corporation in Delaware on the first Tuesday of April at 11:30 A.M.

If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting.

SECTION 2. OTHER MEETINGS. Meetings of stockholders for any purpose other than the election of directors may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of meeting.

SECTION 3. VOTING. Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation and in accordance with the provisions of these Bylaws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless

such proxy provides for a longer period. Upon the demand of any stockholder, the vote for directors and the vote upon any question before the meeting, shall be by ballot. All elections for directors shall be decided by plurality vote; all questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.

A complete list of the stockholders entitled to vote at the ensuing election, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the meeting and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

SECTION 4. QUORUM. Except as otherwise required by law, by the Certificate of Incorporation or by these Bylaws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.

SECTION 5. SPECIAL MEETINGS. Special meetings of the stockholders for any purpose or purposes may be called by the President and Chief Operating Officer, or by resolution of the directors.

SECTION 6. NOTICE OF MEETINGS. Written notice, stating the place, date and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his or her address as it appears on the records of the corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

SECTION 7. ACTION WITHOUT MEETING. Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

ARTICLE III

DIRECTORS

SECTION 1. NUMBER AND TERM. The number of directors shall be not less than one nor more than fifteen. The first Board of Directors shall consist of three directors. The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his or her successor shall be elected and shall qualify. Directors need not be stockholders.

SECTION 2. RESIGNATIONS. Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President and Chief Operating Officer or Secretary. The acceptance of a resignation shall not be necessary to make it effective.

SECTION 3. VACANCIES. If the office of any director, member of a committee or other officer becomes vacant, the remaining directors in office, though less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his or her successor shall be duly chosen.

SECTION 4. REMOVAL. Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders called for the purpose and the vacancies thus created may be filled, at the meeting held for the purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled to vote.

Unless the Certificate of Incorporation otherwise provides, stockholders may effect removal of a director who is a member of a classified Board of Directors only for cause. If the Certificate of Incorporation provides for cumulative voting and if less than the entire Board of Directors is to be removed, no director may be removed without cause if the votes cast against his or her removal would be sufficient to elect him or her if then cumulatively voted at an election of the entire Board of Directors, or if there be classes of directors, at an election of the class of directors of which he or she is a part.

If the holders of any class or series are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, these provisions shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole.

SECTION 5. INCREASE OF NUMBER. The number of directors may be increased by amendment of these Bylaws by the affirmative vote of a majority of the directors, though less than a quorum, or, by the affirmative vote of a majority interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify.

SECTION 6. POWERS. The Board of Directors shall exercise all of the powers of the corporation except such as are by law, or by the Certificate of Incorporation or by these Bylaws conferred upon or reserved to the stockholders.

SECTION 7. COMMITTEES. The Board of Directors may, by resolution or resolutions passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

Any such committee, to the extent provided in the resolution of the Board of Directors, or in these Bylaws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the Bylaws of the corporation; and, unless the resolution, these Bylaws, or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.

SECTION 8. MEETINGS. The newly elected directors may hold their first meeting for the purpose of organization and the transaction of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may be fixed by consent in writing of all the directors.

Regular meetings of the directors may be held without notice at such places and times as shall be determined from time to time by resolution of the directors.

Special meetings of the Board of Directors may be called by the President and Chief Operating Officer or by the Secretary on the written request of any two directors on at least two day’s notice to each director and shall be held at such place or places as may be determined by the directors, or shall be stated in the call of the meeting.

Unless otherwise restricted by the Certificate of Incorporation or by these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

SECTION 9. QUORUM. A majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned.

SECTION 10. COMPENSATION. Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the Board of Directors a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

SECTION 11. ACTION WITHOUT MEETING. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the Board of Directors, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or committee.

ARTICLE IV

OFFICERS

SECTION 1. OFFICERS. The Board of Directors may appoint such officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each annual meeting. More than two offices may be held by the same person.

SECTION 2. CHAIRMAN. The Chairman of the Board of Directors, if one be elected, shall preside at all meetings of the Board of Directors and shall have and perform such other duties as from time to time may be assigned to him or her by the Board of Directors.

SECTION 3. PRESIDENT AND CHIEF OPERATING OFFICER. The President and Chief Operating Officer, if one be elected, shall have the general powers and duties of supervision and management usually vested in the office of chief executive officer of a corporation. He or she shall preside at all meetings of the stockholders if present thereat, and in the absence or nonelection of the Chairman of the Board of Directors, at all meetings of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation. Except as the Board of Directors shall authorize the execution thereof in some other manner, he or she shall execute bonds, mortgages and other contracts in behalf of the corporation, and shall cause the seal to be affixed to any instrument requiring it and when so affixed the seal shall be attested by the signature of the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.

SECTION 4. PRESIDENT AND VICE-PRESIDENTS. The President and each Vice President, if one be elected, shall have such powers and shall perform such duties as shall be assigned to him or her by the directors.

SECTION 5. TREASURER. The Treasurer, if one be elected, shall have the custody of the corporate funds and securities and shall keep full and accurate account of receipts and disbursements in books belonging to the corporation. He or she shall deposit all moneys and other valuables in the name and to the credit of the corporation in such depositaries as may be designated by the Board of Directors.

The Treasurer shall disburse the funds of the corporation as may be ordered by the Board of Directors, or the President and Chief Operating Officer, taking proper vouchers for such disbursements. He or she shall render to the President and Chief Operating Officer and Board of Directors at the regular meetings of the Board of Directors, or whenever they may request it, an account of all his or her transactions as Treasurer and of the financial condition of the corporation. If required by the Board of Directors, he or she shall give the corporation a bond for the faithful discharge of his or her duties in such amount and with such surety as the Board of Directors shall prescribe.

SECTION 6. SECRETARY. The Secretary, if one be elected, shall give, or cause to be given, notice of all meetings of stockholders and directors, and all other notices required by law or by these Bylaws, and in case of his or her absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the President and Chief Operating Officer, or by the directors, or stockholders, upon whose requisition the meeting is called as provided in these Bylaws. He or she shall record all the proceedings of the meetings of the corporation and of the directors in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him or her by the directors or the President and Chief Operating Officer. He or she shall have the custody of the seal of the corporation and shall affix the same to all instruments requiring it, when authorized by the directors or the President and Chief Operating Officer, and attest the same.

SECTION 7. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant Treasurers and Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors.

ARTICLE V

MISCELLANEOUS

SECTION 1. UNCERTIFICATED SHARES. Shares of the corporation’s stock shall be issued in uncertificated form.

SECTION 2. TRANSFER OF SHARES. The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be

surrendered to the corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.

SECTION 3. STOCKHOLDERS RECORD DATE. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

SECTION 4. DIVIDENDS. Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the company.

SECTION 5. SEAL. The corporate seal shall be circular in form and shall contain the name of the corporation, the year of its creation and the words “CORPORATE SEAL DELAWARE”. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

SECTION 6. FISCAL YEAR. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

SECTION 7. CHECKS. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner as shall be determined from time to time by resolutions of the Board of Directors.

SECTION 8. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required by these Bylaws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if (i) given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his or her address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing, or (ii) sent by electronic mail or other form of electronic

communication or given personally or by telephone. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by law.

Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation or these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VI

AMENDMENTS

These Bylaws may be altered or repealed and Bylaws may be made at any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed alteration or repeal or Bylaw or Bylaws to be made be contained in the notice of such special meeting, by the affirmative vote of a majority of the stock issued and outstanding and entitled to vote thereat, or by the affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal, or Bylaw or Bylaws to be made, be contained in the notice of such special meeting.

Exhibit 3.3

CERTIFICATE OF MERGER

KINDRED HEALTHCARE DEVELOPMENT 2, INC.

(a Delaware corporation)

with and into

GENTIVA HEALTH SERVICES, INC.

(a Delaware corporation)

Pursuant to the provisions of Section 251(c) of the Delaware General Corporation Law (the “DGCL”), Gentiva Health Services, Inc., a Delaware corporation (“Gentiva”), hereby certifies the following information relating to the merger of Kindred Healthcare Development 2, Inc., a Delaware corporation, with and into Gentiva (the “Merger”):

FIRST: The names and states of incorporation of the constituent corporations (the “Constituent Corporations”) to the Merger are:


Name	State of Incorporation
Kindred Healthcare Development 2, Inc.		Delaware
Gentiva Health Services, Inc.		Delaware

SECOND: The Agreement and Plan of Merger, dated as of October 9, 2014, by and among Kindred Healthcare, Inc., Kindred Healthcare Development 2, Inc. and Gentiva (the “Merger Agreement”), setting forth the terms and conditions of the Merger, has been approved, adopted, certified, executed and acknowledged by each of the Constituent Corporations in accordance with the requirements of Section 251 of the DGCL.

THIRD: The name of the corporation surviving the Merger (the “Surviving Corporation”) is Gentiva Health Services, Inc., as provided in the Certificate of Incorporation of the Surviving Corporation attached hereto as Exhibit A.

FOURTH: The Certificate of Incorporation of Gentiva, as in effect immediately prior to the Effective Time (as defined in Article FIFTH), shall be amended and restated in its entirety at the Effective Time to read as set forth on Exhibit A and as so amended shall be the Certificate of Incorporation of the Surviving Corporation, until thereafter amended in accordance with its terms and applicable law.

FIFTH: The Merger shall be effective upon filing of this certificate (the “Effective Time”).

SIXTH: The executed Merger Agreement is on file at 3350 Riverwood Parkway, Suite 1400, Atlanta, Georgia, 30339, the principal place of business of the Surviving Corporation.

SEVENTH: A copy of the Merger Agreement will be furnished by the Surviving Corporation, on request and without cost, to any stockholder of any Constituent Corporation.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the Surviving Corporation has caused this Certificate of Merger to be executed by its duly authorized officer on February 2, 2015.