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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): October 16, 2024
AdaptHealth
Corp.
(Exact name of registrant as specified in its
charter)
| Delaware | |
001-38399 | |
82-3677704 |
(State
or other jurisdiction of
incorporation) | |
(Commission
File Number) | |
(IRS
Employer Identification No.) |
220
West Germantown Pike, Suite
250
Plymouth
Meeting, PA |
|
19462 |
| (Address
of principal executive offices) |
|
(Zip
Code) |
| |
|
|
| (610)
424-4515 |
(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)) |
Securities registered pursuant to
Section 12(b) of the Act:
| Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which
registered |
| Common Stock, par value $0.0001 per share |
|
AHCO |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 5.02. Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On October 16, 2024, following the recommendation of the nominating
and governance committee of AdaptHealth Corp. (the “Company”), the Board of Directors of the Company (the “Board”)
appointed Diana L. Nole, age 59, to the Board, effective October 16, 2024. Ms. Nole will serve as a Class I director until her term expires
at the 2026 annual meeting of stockholders, at which time she will stand for election by the Company’s stockholders.
From June 1, 2020 to October 4, 2024, Ms. Nole served as the Executive
Vice President and General Manager of the Healthcare Division of Nuance Communications (which was acquired by Microsoft Corp. in 2022).
Ms. Nole has previously served as the chief executive officer of Wolter Kluwers’ Healthcare division, president of Carestream’s
Digital Medical Solutions business, and vice president of strategy, product management, and marketing for Eastman Kodak’s Healthcare
Information Technology Solutions business. Ms. Nole has dual degrees in Computer Science and Math from the State University of New York
at Potsdam and earned her MBA from the University of Rochester’s Simon School.
Ms. Nole will receive the same compensation opportunities as the Company’s
other non-employee directors (pro-rated for the current year). A description of such compensation arrangement can be found on the Company’s
Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on April 26, 2024. The Board has determined
that Ms. Nole is “independent” within the meaning of the applicable rules and regulations of the Securities and Exchange Commission
and the listing standards of the Nasdaq Stock Market.
There are no arrangements or understandings between Ms. Nole and any
other person pursuant to which Ms. Nole was selected as a director, and there are no family relationships between Ms. Nole and any of
the Company’s directors or executive officers. Ms. Nole does not have any direct or indirect material interest in any transaction
or proposed transaction required to be reported under Item 404(a) of Regulation S-K.
On October 16, 2024, the Company entered into an indemnification agreement
with Ms. Nole, a form which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein, which provides
that, subject to limited exceptions, and among other things, the Company will indemnify Ms. Nole to the fullest extent permitted by law
for claims arising in her capacity as a director of the Company. The foregoing description of the indemnification agreement does not
purport to be complete and is qualified in its entirety by the terms and conditions of the form of indemnification agreement.
Item 7.01 Regulation FD Disclosure
The Company issued a press release on October 17, 2024, announcing
the events described in Item 5.02 above. A copy of the press release is furnished as Exhibit 99.1.
The information in Item 7.01 of this Current Report on Form 8-K, including
Exhibit 99.1, is being furnished and shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed
incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth
by specific reference in such a filing.
Item 9.01. Financial Statements and Exhibits.
SIGNATURE
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.
Dated: October 22, 2024
| |
AdaptHealth Corp. |
| |
|
| |
By: |
/s/ Jonathan B. Bush |
| |
|
Name: |
Jonathan B. Bush |
| |
|
Title: |
General Counsel |
Exhibit 10.1
ADAPTHEALTH CORP
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this
“Agreement”) is made as of October 16, 2024, by and between AdaptHealth Corp., a Delaware corporation (the
“Company”), and [·] (“Indemnitee”). This
Agreement supersedes and replaces any and all previous Agreements between the Company and Indemnitee covering the subject matter of
this Agreement. Certain capitalized terms used herein are defined in Section 2 hereof.
RECITALS
WHEREAS, individuals are reluctant to serve publicly-held
corporations as directors, officers or in other capacities unless they are provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of
the corporation;
WHEREAS, the Board of Directors of the Company
(the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to
maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from
certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based
corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may
be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons
in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating
to, among other things, matters that traditionally would have been brought only against the corporation or business enterprise itself;
WHEREAS, the Second Amended and Restated Bylaws
(the “Bylaws”) and Fourth Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”)
of the Company require indemnification of the officers and directors of the Company and Indemnitee may also be entitled to indemnification
pursuant to the General Corporation Law of the State of Delaware (the “DGCL”). The Bylaws, Certificate of Incorporation
and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts
may be entered into between the Company and members of the Board, officers and other persons with respect to indemnification;
WHEREAS, the uncertainties relating to such insurance
and to indemnification have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased
difficulty in attracting and retaining such persons is detrimental to the best interests of the Company and its stockholders and that
the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary
for the Company to contractually obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so
indemnified;
WHEREAS, this Agreement is a supplement to and
in furtherance of the indemnification provided in the Bylaws, the Certificate of Incorporation and any resolutions adopted pursuant thereto,
as well as any rights of Indemnitee under any directors’ and officers’ liability insurance policy, and this Agreement shall
not be deemed a substitute therefor, nor to limit, diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee does not regard the protection
available under the Bylaws, Certificate of Incorporation and insurance as adequate in the present circumstances, and may not be willing
to serve as an officer or director without adequate protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee
is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that she be
so indemnified.
NOW, THEREFORE, in consideration of the premises
and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
Section 1 Services
to the Company. Indemnitee agrees to serve as a director, officer, employee or agent of the Company, as applicable, or at the request
of the Company, as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other
enterprise, as applicable. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation
or any obligation imposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee
in such position. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries or any Enterprise
(as defined below)) and Indemnitee. Indemnitee specifically acknowledges that Indemnitee’s employment with the Company (or any of
its subsidiaries or any Enterprise), if any, is at will, and Indemnitee may be discharged at any time for any reason, with or without
cause, except as may be otherwise provided in any written employment contract between Indemnitee and the Company (or any of its subsidiaries
or any Enterprise), other applicable formal severance policies duly adopted by the Board or, with respect to service as a director, officer
or agent of the Company, by the Certificate of Incorporation, the Bylaws and the DGCL. The foregoing notwithstanding, this Agreement shall
continue in force after Indemnitee has ceased to serve as a director or, officer, employee or agent of the Company, as applicable, or,
at the request of the Company, as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise, as applicable, as provided in Section 16 hereof.
Section 2 Definitions.
As used in this Agreement:
(a) References
to “agent” shall mean any person who is or was a director, officer or employee of the Company or a subsidiary of the
Company or other person authorized by the Company to act for the Company or serve as a director, officer, employee, fiduciary or other
official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for
the convenience of or to represent the interests of the Company or a subsidiary of the Company.
(b)
A “Change in Control” shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of
the following events:
i. Acquisition
of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly,
of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding
securities unless the change in relative Beneficial Ownership of the Company’s securities by any Person results solely from a reduction
in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;
ii. Change
in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this
Agreement), individuals who at the beginning of such period constitute the Board, and any new director whose election by the Board or
nomination for election by the Company’s stockholders was approved by a vote of at least a majority of the directors then still
in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority of the members of the Board;
iii. Corporate
Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation
that would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than a majority
of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation
and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
iv. Liquidation.
The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company’s assets; and
v. Other
Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act, whether or not
the Company is then subject to such reporting requirement.
For purposes of this Section 2(b), the following
terms shall have the following meanings:
(A) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
(B) “Person”
shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person
shall exclude (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the
Company and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company.
(C) “Beneficial
Owner” shall have the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however,
that Beneficial Owner shall exclude any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving
a merger of the Company with another entity.
(c) “Corporate
Status” describes the status of a person who is or was a director, trustee, partner, managing member, officer, employee, agent
or fiduciary of the Company or of any other corporation, limited liability company, partnership or joint venture, trust or other enterprise
which such person is or was serving at the request of the Company.
(d) “Disinterested
Director” shall mean a director of the Company who is not and was not a party to the Proceeding (as defined below) in respect
of which indemnification is sought by Indemnitee.
(e) “Enterprise”
shall mean the Company and any other corporation, limited liability company, partnership, joint venture, trust or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director, officer, trustee, partner, managing member, employee,
agent or fiduciary.
(f) “Expenses”
shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees and costs of experts and other professionals,
witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, fax transmission
charges, secretarial services, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt
of any payments under this Agreement, ERISA excise taxes and penalties, and all other disbursements, obligations or expenses of the types
customarily incurred in connection with, or as a result of, prosecuting, defending, preparing to prosecute or defend, investigating, being
or preparing to be a deponent or witness in or otherwise participating in a Proceeding. Expenses also shall include (i) Expenses
incurred in connection with any appeal resulting from any Proceeding, including, without limitation, the premium, security for and other
costs relating to any cost bond, supersedes bond or other appeal bond or its equivalent, (ii) expenses incurred in connection with
recovery under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether
Indemnitee is ultimately determined to be entitled to such indemnification, advancement or Expenses or insurance recovery, as the case
may be, and (iii) for purposes of Section 14(d) only, Expenses incurred by or on behalf of Indemnitee in connection with
the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, the Certificate of Incorporation, the Bylaws
or under any officers’ liability insurance policies maintained by the Company, by litigation or otherwise. The parties agree that
for the purposes of any advancement of Expenses for which Indemnitee has made written demand to the Company in accordance with this Agreement,
all Expenses included in such demand that are certified by affidavit of Indemnitee’s counsel as being reasonable shall be presumed
conclusively to be reasonable. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments
or fines against Indemnitee.
(g) “Indemnity
Obligations” shall mean all obligations of the Company to Indemnitee under this Agreement, including the Company’s obligations
to provide indemnification to Indemnitee and advance Expenses to Indemnitee under this Agreement.
(h) “Independent
Counsel” shall mean a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such
party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of the Independent Counsel
referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
(i) The
term “Proceeding” shall include any threatened, pending or completed action, suit, claim, counterclaim, cross claim,
arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, regulatory,
legislative or investigative (formal or informal) nature, including any appeal therefrom and including without limitation any such Proceeding
pending as of the date of this Agreement, in which Indemnitee was, is or will be involved as a party, potential party, non-party witness
or otherwise by reason of the fact that Indemnitee is or was a director or officer of the Company, by reason of any action taken by her
(or a failure to take action by her) or of any action (or failure to act) on her part while acting pursuant to her Corporate Status, in
each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement
or advancement of Expenses can be provided under this Agreement. If Indemnitee believes in good faith that a given situation may lead
to or culminate in the institution of a Proceeding, this shall be considered a Proceeding under this paragraph.
(j) Reference
to “other enterprise” shall include employee benefit plans; references to “fines” shall include
any excise tax assessed with respect to any employee benefit plan; references to “serving at the request of the Company”
shall include any service as a director, officer, employee or agent of the Company that imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner she reasonably believed to be in the best interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in
this Agreement.
Section 3 Indemnity
in Third-Party Proceedings. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee
is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company
to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the fullest extent permitted
by applicable law against all Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, liabilities, fines, penalties
and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on her behalf in connection with such Proceeding or
any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner she reasonably believed to be in or not opposed
to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that her conduct was
unlawful. The parties hereto intend that this Agreement, to the fullest extent permitted by applicable law, shall provide for indemnification
in excess of that expressly permitted by statute, including, without limitation, any indemnification provided by the Certificate of Incorporation,
the Bylaws, vote of its stockholders or disinterested directors or applicable law.
Section 4 Indemnity
in Proceedings by or in the Right of the Company. The Company shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be indemnified to the fullest extent
permitted by applicable law against all Expenses actually and reasonably incurred by her or on her behalf in connection with such Proceeding
or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner she reasonably believed to be in or not opposed
to the best interests of the Company. If applicable law so provides, no indemnification for Expenses shall be made under this Section 4
in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been finally adjudged by a court of competent
jurisdiction to be liable to the Company, unless and only to the extent that the Chancery Court of the State of Delaware (the “Delaware
Court”) or any court in which the Proceeding was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such
Expenses as the Delaware Court or such other court shall deem proper.
Section 5 Indemnification
for Expenses of a Party who is wholly or partly successful. Notwithstanding any other provisions of this Agreement, to the fullest
extent permitted by applicable law and to the extent that Indemnitee is a party to (or a participant in) and is successful, on the merits
or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by her or on her behalf in connection therewith. If Indemnitee is not
wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues
or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by her or
on her behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by applicable
law. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
Section 6 Indemnification
for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the fullest extent permitted by applicable law
and to the extent that Indemnitee is, by reason of her Corporate Status, a witness, is or was made (or asked) to respond to discovery
requests in any Proceeding or otherwise asked to participate in any aspect of a Proceeding to which Indemnitee is not a party, she shall
be indemnified against all Expenses actually and reasonably incurred by her or on her behalf in connection therewith.
Section 7 Partial
Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion
of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof
to which Indemnitee is entitled.
Section 8 Additional
Indemnification.
(a) Notwithstanding
any limitation in Sections 3, 4 or 5, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee,
by reason of her or her Corporate Status is, or is a party to or threatened to be made a party to or a participant in any Proceeding (including
a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and amounts
paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses,
judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on her behalf in connection with the
Proceeding or any claim, issue or matter therein.
(b) For
purposes of Section 8(a), the meaning of the phrase “to the fullest extent permitted by applicable law” shall
include, but not be limited to:
i. to
the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or
the corresponding provision of any amendment to or replacement of the DGCL, and
ii. to
the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that
increase the extent to which a corporation may indemnify its officers and directors.
Section 9 Exclusions.
Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnification payment
in connection with any claim made against Indemnitee:
(a) for
which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with
respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or
(b) for
(i) an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of
the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory
law or common law; provided that the Company shall advance Expenses in connection with Indemnitee’s defense of a claim under Section 16(b),
which advances shall be repaid to the Company if it is ultimately determined that Indemnitee is not entitled to indemnification of such
Expenses; or (ii) any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation
or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including
any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act
of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee is held liable therefor (including
pursuant to any settlement arrangements);
(c) except
as provided in Section 14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated
by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors,
officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to
its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought
or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in
its sole discretion, pursuant to the powers vested in the Company under applicable law; or
(d) if
a court having jurisdiction in the matter shall determine by final non-appealable judgment or other final non-appealable adjudication
that such indemnification is not lawful.
Section 10 Advances
of Expenses. Notwithstanding any provision of this Agreement to the contrary (other than Section 14(d)), the Company shall advance,
to the extent not prohibited by applicable law, the Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding
(or any part of any Proceeding) not initiated by Indemnitee, and such advancement shall be made as soon as reasonably practicable, but
in any event no later than within thirty (30) days after the receipt by the Company of a written statement or statements requesting such
advances from time to time (which shall include invoices received by Indemnitee in connection with such Expenses or otherwise reasonably
evidence the Expenses incurred by Indemnitee, but, in the case of invoices in connection with legal services, any references to legal
work performed or to expenditures made that would cause Indemnitee to waive any privilege accorded by applicable law shall not be so included),
whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and interest-free. Advances shall be made without
regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification
under the other provisions of this Agreement. In accordance with Section 14(d), advances shall include any and all reasonable Expenses
incurred pursuing an action to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the
Company to support the advances claimed. Indemnitee shall qualify for advances upon the execution and delivery to the Company of this
Agreement which shall constitute an undertaking providing that Indemnitee shall reimburse the Company for all Expenses advanced (without
interest) by the Company pursuant to this Section 10, in the event and only to the extent that it shall be determined by final non-appealable
judgment or other final non-appealable adjudication under the provisions of any applicable law (as to which all rights of appeal therefrom
have been exhausted or lapsed) that Indemnitee is not entitled to be indemnified by the Company for such Expenses. This Section 10
shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 9.
Section 11 Procedure
for Notification and Defense of Claim.
(a) Indemnitee
shall notify the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification or advancement of Expenses
hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof or Indemnitee’s becoming
aware thereof. The written notification to the Company shall include, in reasonable detail, a description of the nature of the Proceeding
and the facts underlying the Proceeding, in each case, to the extent known to Indemnitee. To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available
to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following
the final disposition of such Proceeding. The failure by Indemnitee to notify the Company hereunder will not relieve the Company from
any liability that it may have to Indemnitee hereunder or otherwise than under this Agreement, and any delay in so notifying the Company
shall not constitute a waiver by Indemnitee of any rights under this Agreement, except to the extent (solely with respect to the indemnity
hereunder) that such failure or delay materially prejudices the Company. The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification. Any delay in providing
the request will not relieve the Company from its obligations under this Agreement, except to the extent such delay is prejudicial.
(b) The
Company will be entitled to participate in the Proceeding at its own expense.
(c) The
Company shall not settle any Proceeding (in whole or in part) if such settlement would impose any Expense, judgment, liability, fine,
penalty or limitation on Indemnitee which Indemnitee is not entitled to be indemnified hereunder without Indemnitee’s prior written
consent, which shall not be unreasonably withheld.
Section 12 Procedure
Upon Application for Indemnification.
(a) Upon
written request by Indemnitee for indemnification pursuant to Section 11(a), a determination, if required by applicable law, with
respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred,
by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in
Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board,
(B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than
a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent
Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (D) if so directed by the Board, by
the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall
be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity
upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that
is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including attorneys’
fees and disbursements) reasonably incurred by or on behalf of Indemnitee in so cooperating with the person, persons or entity making
such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification)
and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing
with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis
for which indemnification has been denied.
(b) In
the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof,
the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the
Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising her of the identity
of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee
shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee
or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver
to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis
of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection
is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection
is withdrawn or the Delaware Court has determined that such objection is without merit. If, within twenty (20) days after the later of
submission by Indemnitee of a written request for indemnification pursuant to Section 11(a) hereof and the final disposition
of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition
the Delaware Court for resolution of any objection that shall have been made by the Company or Indemnitee to the other’s selection
of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such court or by such other person as
such court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant
to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility
in such capacity (subject to the applicable standards of professional conduct then prevailing).
(c) If
the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the
disputed portion withheld pending resolution of any such dispute.
Section 13 Presumptions
and Effect of Certain Proceedings.
(a) In
making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination
shall, to the fullest extent not prohibited by applicable law, presume that Indemnitee is entitled to indemnification under this Agreement
if Indemnitee has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company
shall, to the fullest extent not prohibited by applicable law, have the burden of proof to overcome that presumption in connection with
the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including
by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement
that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination
by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall
be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(b) Subject
to Section 14(e), if the person, persons or entity empowered or selected under Section 12 of this Agreement to determine whether
Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent not prohibited by law, be
deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however,
that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or
entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining
or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions
of this Section 13(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders
pursuant to Section 12(a) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request
for such determination the Board has resolved to submit such determination to the stockholders for their consideration at an annual meeting
thereof to be held within seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting
of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held
for such purpose within sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination
of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) of this Agreement.
(c) The
termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect
the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which she
reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee
had reasonable cause to believe that her conduct was unlawful.
(d) For
purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action
is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee
by the directors or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or
on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser, investment
banker, or other expert selected with reasonable care by the Enterprise. The provisions of this Section 13(d) shall not be deemed
to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement. Whether or not the foregoing provisions of this Section 13(d) are satisfied, it shall in
any event be presumed that Indemnitee has at all times acted in good faith and in a manner she reasonably believed to be in or not opposed
to the best interests of the Company. The Company acknowledges that a settlement or other disposition short of final judgment may be successful
if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding to which Indemnitee
is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such
Proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits
or otherwise in such Proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion
by clear and convincing evidence.
(e) The
knowledge and/or actions, or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee
of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
Section 14 Remedies
of Indemnitee.
(a) Subject
to Section 14(e), in the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee
is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 10
of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 12(a) of
this Agreement within ninety (90) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification
is not made pursuant to Section 5, 6 or 7 or the last sentence of Section 12(a) of this Agreement within ten (10) days
after receipt by the Company of a written request therefor, (v) payment of indemnification pursuant to Section 3, 4 or 8 of
this Agreement is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification,
or (vi) the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or Proceeding designed to deny, or to recover from, Indemnitee the benefits provided or
intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by a court of her entitlement to
such indemnification or advancement of Expenses. Alternatively, Indemnitee, at her option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee
shall commence such proceeding seeking an adjudication or an award in arbitration within one-hundred eighty (180) days following the date
on which Indemnitee first has the right to commence such proceeding pursuant to this Section 14(a); provided, however,
that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce her rights under Section 5
of this Agreement. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) In
the event that a determination shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is not entitled
to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 shall be conducted in all respects
as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination.
In any judicial proceeding or arbitration commenced pursuant to this Section 14 the Company shall have the burden of proving Indemnitee
is not entitled to indemnification or advancement of Expenses, as the case may be.
(c) If
a determination shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification
under applicable law.
(d) The
Company shall, to the fullest extent not prohibited by law, be precluded from asserting in any judicial proceeding or arbitration commenced
pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement. It is the
intent of the Company that, to the fullest extent permitted by applicable law, Indemnitee not be required to incur legal fees or
other Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation
or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to Indemnitee
hereunder. The Company shall, to the fullest extent permitted by applicable law, indemnify Indemnitee against any and all Expenses and,
if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefor) advance, to the
extent not prohibited by law, such Expenses to Indemnitee, which are incurred by or on behalf of Indemnitee in connection with any action
brought by Indemnitee for indemnification or advancement of Expenses from the Company under this Agreement or under any directors’
and officers’ liability insurance policies maintained by the Company regardless of whether Indemnitee ultimately is determined to
be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may be.
(e) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement of Indemnitee to indemnification under this Agreement shall
be required to be made prior to the final disposition of the Proceeding.
Section 15 Non-exclusivity;
Survival of Rights; Insurance; Subrogation.
(a) The
rights of indemnification and to receive advancement of Expenses as provided by this Agreement (i) shall not be deemed exclusive
of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the Bylaws,
any agreement, a vote of stockholders or a resolution of directors, or otherwise and (ii) shall be interpreted independently of,
and without reference to, any other such rights to which Indemnitee may at any time be entitled. No amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action
taken or omitted by such Indemnitee in her Corporate Status prior to such amendment, alteration or repeal. The Company shall not adopt
any amendment or alteration to, or repeal of, the Certificate of Incorporation or the Bylaws, the effect of which would be to deny, diminish
or encumber the Indemnitee’s rights to indemnification pursuant to this Agreement, the Certificate of Incorporation, the Bylaws
or applicable law relative to such rights prior to such amendment, alteration or repeal. To the extent that a change in Delaware law,
whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under
the Bylaws, Certificate of Incorporation and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other
right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) To
the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees,
or agents of the Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies. If, at the time
of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect,
the Company shall give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the insurers in accordance
with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such
policies.
(c) In
the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery
of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to effectively bring suit to enforce such rights.
(d) The
Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (or for which advancement
is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
(e) The
Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company
as a director, officer, trustee, partner, managing member, fiduciary, employee or agent of any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received
as indemnification or advancement of Expenses from such other corporation, limited liability company, partnership, joint venture, trust
or other enterprise.
(f) The
Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement and insurance provided by one or more
Persons with whom or which Indemnitee may be associated. The Company hereby acknowledges and agrees that (i) the Company shall be
the indemnitor of first resort with respect to any Proceeding, Expense, liability or matter that is the subject of the Indemnity Obligations,
(ii) the Company shall be primarily liable for all Indemnity Obligations and any indemnification afforded to Indemnitee in respect
of any Proceeding, Expense, liability or matter that is the subject of Indemnity Obligations, whether created by applicable law, organizational
or constituent documents, contract (including this Agreement) or otherwise, (iii) any obligation of any other Persons with whom or
which Indemnitee may be associated to indemnify Indemnitee or advance Expenses or liabilities to Indemnitee in respect of any Proceeding
shall be secondary to the obligations of the Company hereunder, (iv) the Company shall be required to indemnify Indemnitee and advance
Expenses or liabilities to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have
against any other Person with whom or which Indemnitee may be associated or insurer of any such Person and (v) the Company irrevocably
waives, relinquishes and releases any other Person with whom or which Indemnitee may be associated from any claim of contribution, subrogation
or any other recovery of any kind in respect of amounts paid by the Company hereunder. In the event any other Person with whom or which
Indemnitee may be associated or their insurers advances or extinguishes any liability or loss which is the subject of any Indemnity Obligation
owed by the Company or payable under any Company insurance policy, the payor shall have a right of subrogation against the Company or
its insurer or insurers for all amounts so paid which would otherwise be payable by the Company or its insurer or insurers under this
Agreement. In no event will payment of an Indemnity Obligation by any other Person with whom or which Indemnitee may be associated or
their insurers affect the obligations of the Company hereunder or shift primary liability for any Indemnity Obligation to any other Person
with whom or which Indemnitee may be associated. Any indemnification, insurance or advancement provided by any other Person with whom
or which Indemnitee may be associated with respect to any liability arising as a result of Indemnitee’s status as director, officer,
employee or agent of the Company or capacity as an officer or director of any Person is specifically in excess over any Indemnity Obligation
of the Company or valid and any collectible insurance (including but not limited to any malpractice insurance or professional errors and
omissions insurance) provided by the Company under this Agreement.
Section 16 Duration
of Agreement. This Agreement shall continue until and terminate upon the later of (a) ten (10) years after the date that
Indemnitee shall have ceased to serve as a director, officer, employee or agent of the Company or (b) one year after the final termination
of any Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder
and of any proceeding (including any appeal thereof) commenced by Indemnitee pursuant to Section 14 of this Agreement relating thereto.
The indemnification and advancement of expenses rights provided by or granted pursuant to this Agreement shall be binding upon and be
enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), shall continue as to an Indemnitee
who has ceased to be a director, officer, employee or agent of the Company or of any other Enterprise, and shall inure to the benefit
of Indemnitee and her spouse, assigns, heirs, devisees, executors and administrators and other legal representatives. The Company shall
require and shall cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially
all of the business or assets of the Company to, by written agreement, expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if no such succession had taken place.
Section 17 Severability.
Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation
of applicable law. The Company’s inability, pursuant to court order or other applicable law, to perform its obligations hereunder
shall not constitute a breach of this Agreement. If any provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever, then (a) the validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by applicable law; (b) such provision or provisions shall be
deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto;
and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby.
Section 18 Enforcement.
The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve or continue to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee
is relying upon this Agreement in serving as a director or officer of the Company.
Section 19 Entire
Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject
matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation,
the Bylaws, any directors’ and officers’ insurance maintained by the Company and applicable law, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
Section 20 Modification
and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this
Agreement nor shall any waiver constitute a continuing waiver.
Section 21 Notice
by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement
of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which
it may have to Indemnitee under this Agreement or otherwise.
Section 22 Notices.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly
given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed,
(b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed,
(c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been
directed or (d) sent by electronic mail, on the date of such delivery:
(a) If
to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide
to the Company.
(b) If
to the Company to:
c/o AdaptHealth Corp.
220 West Germantown Pike, Suite 250
Plymouth Meeting, Pennsylvania 19462
Attention: Jonathan B. Bush, General Counsel
with a copy to (which shall not constitute notice):
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Michael Brandt and Danielle Scalzo
E-mail: mbrandt@willkie.com and DScalzo@willkie.com
or to any other address as may have been furnished to Indemnitee by
the Company.
Section 23 Contribution.
To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee
for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by or on behalf of
Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or payable in settlement and/or for Expenses, in connection
with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of
all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee
as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the
Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
Section 24 Applicable
Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, the Company and Indemnitee hereby irrevocably
and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought
only in the Delaware Court, and not in any other state or federal court in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of
or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in the Delaware
Court and (iv) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court
has been brought in an improper or inconvenient forum.
Section 25 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of
which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability
is sought needs to be produced to evidence the existence of this Agreement.
Section 26 Miscellaneous.
Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate. The headings of the paragraphs
of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction
thereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused this
Agreement to be signed as of the day and year first above written.
| ADAPTHEALTH CORP. |
|
INDEMNITEE |
| |
|
|
| By: |
|
|
|
| Name:Jonathan B. Bush |
|
Name: [·] |
| Title:General Counsel |
|
Address: [·] |
Exhibit 99.1
ADAPTHEALTH CORP.
FOR IMMEDIATE RELEASE
AdaptHealth Appoints Diana Nole to Board of Directors
PLYMOUTH MEETING, Pa. – October
17, 2024 – AdaptHealth Corp. (NASDAQ: AHCO) (“AdaptHealth” or the “Company”), a national leader in providing
patient-centered, healthcare-at-home solutions including home medical equipment, medical supplies, and related services, today announced
the appointment of Diana Nole to the Board of Directors, effective October 16, 2024.
“We are thrilled to welcome Diana to the AdaptHealth
Board of Directors. Her extensive leadership experience in the healthcare technology sector caught our eye and we soon discovered that
her decisive, resourceful leadership style and expertise in business transformation aligned perfectly with our current goals as an organization,”
said Dale Wolf, Chairman of the AdaptHealth Board of Directors.
Ms. Nole joins AdaptHealth with over 18 years of senior leadership
experience in the Healthcare AI and Healthcare IT industries. She most recently served as the EVP and General Manager of the Healthcare
division of Nuance Communications, a Microsoft Cloud & AI company that provides AI driven clinical documentation creation, clinical
revenue cycle integrity and diagnostic radiology cloud solutions to the global healthcare industry. In this role, she worked to accelerate
recuring revenue growth, successfully completed the divestiture of a declining business segment and developed the leadership team and
culture in an effort to create sustainable growth and innovation.
Prior to joining Nuance, Ms. Nole spent five years as CEO of the Healthcare
division of Wolters Kluwer, a company specializing in software solutions and services for healthcare professionals, where she directly
led the restructuring of the organization, IT systems, and operational processes.
“It’s an honor to be appointed to AdaptHealth’s
Board of Directors at such an exciting time for the Company. I am impressed by the plan laid out by the leadership team, and furthermore,
by the work they have already done to execute on it. I am eager to get a seat at the table and use my experience to help advise them on
their road ahead,” said Ms. Nole.
About AdaptHealth Corp.
AdaptHealth is a national leader in providing patient-centered,
healthcare-at-home solutions including home medical equipment (HME), medical supplies, and related services. The Company provides a full
suite of medical products and solutions designed to help patients manage chronic conditions in the home, adapt to challenges in their
activities of daily living, and thrive. Product and service offerings include (i) sleep therapy equipment, supplies, and related services
(including CPAP and bi PAP services) to individuals suffering from obstructive sleep apnea, (ii) medical devices and supplies to patients
for the treatment of diabetes (including continuous glucose monitors and insulin pumps), (iii) HME to patients discharged from acute care
and other facilities, (iv) oxygen and related chronic therapy services in the home, and (v) other HME devices and supplies on behalf of
chronically ill patients with wound care, urological, incontinence, ostomy and nutritional supply needs. The Company is proud to partner
with an extensive and highly diversified network of referral sources, including acute care hospitals, sleep labs, pulmonologists, skilled
nursing facilities, and clinics. AdaptHealth services beneficiaries of Medicare, Medicaid, and commercial insurance payors, reaching approximately
4.2 million patients annually in all 50 states through its network of approximately 670 locations in 47 states.
Contacts
AdaptHealth Corp.
Jason Clemens, CFA
Chief Financial Officer
Investor Relations
ICR Westwicke
IR@adapthealth.com
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