SC 13D/A

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

SOLE VOTING POWER

0

SHARED VOTING POWER

3,647,353

SOLE DISPOSITIVE POWER

0

SHARED DISPOSITIVE POWER

3,647,353

0001193125-20-153140.txt : 20200527 0001193125-20-153140.hdr.sgml : 20200527 20200527163906 ACCESSION NUMBER: 0001193125-20-153140 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20200527 DATE AS OF CHANGE: 20200527 GROUP MEMBERS: BLUEMOUNTAIN FOINAVEN GP, LLC GROUP MEMBERS: BLUEMOUNTAIN FOINAVEN MASTER FUND L.P. GROUP MEMBERS: BLUEMOUNTAIN GP HOLDINGS, LLC GROUP MEMBERS: BLUEMOUNTAIN SUMMIT OPPORTUNITIES GP II, LLC GROUP MEMBERS: BMSB L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AdaptHealth Corp. CENTRAL INDEX KEY: 0001725255 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HOME HEALTH CARE SERVICES [8082] IRS NUMBER: 823677704 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-90401 FILM NUMBER: 20915684 BUSINESS ADDRESS: STREET 1: 220 WEST GERMANTOWN PIKE STREET 2: SUITE 250 CITY: PLYMOUTH MEETING STATE: PA ZIP: 19462 BUSINESS PHONE: 610-630-6357 MAIL ADDRESS: STREET 1: 220 WEST GERMANTOWN PIKE STREET 2: SUITE 250 CITY: PLYMOUTH MEETING STATE: PA ZIP: 19462 FORMER COMPANY: FORMER CONFORMED NAME: DFB Healthcare Acquisitions Corp. DATE OF NAME CHANGE: 20171213 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BlueMountain Capital Management, LLC CENTRAL INDEX KEY: 0001427430 IRS NUMBER: 261523875 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE, 12TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: (212) 905-3900 MAIL ADDRESS: STREET 1: 280 PARK AVENUE, 12TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D/A 1 d864583dsc13da.htm SC 13D/A SC 13D/A

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13D

UNDER THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 1)*

ADAPTHEALTH CORP.

(Name of Issuer)

Class A Common Stock, par value $0.0001 per share

(Title of Class of Securities)

00653Q102

(CUSIP Number)

Eric M. Albert

BlueMountain Capital Management, LLC

280 Park Avenue, 12^th Floor

New York, New York 10017

212-905-5647

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

May 25, 2020

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


CUSIP No. 00653Q102		Page 2


1		NAMES OF REPORTING PERSONS BlueMountain Capital Management, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See instructions) (a) ☒ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (See instructions) OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware, United States of America

(1)	The percentage set forth in Row 13 of this Cover Page is based on the 45,432,240 shares of Class A Common Stock (as defined in Item 1) outstanding as of May 1, 2020, as reported on Form 10-Q (as defined in Item 5).


CUSIP No. 00653Q102		Page 3


1		NAMES OF REPORTING PERSONS BlueMountain GP Holdings, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See instructions) (a) ☒ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (See instructions) OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware, United States of America

(1)	The percentage set forth in Row 13 of this Cover Page is based on the 45,432,240 shares of Class A Common Stock outstanding as of May 1, 2020, as reported on Form 10-Q.


CUSIP No. 00653Q102		Page 4


1		NAMES OF REPORTING PERSONS BlueMountain Summit Opportunities GP II, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See instructions) (a) ☒ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (See instructions) OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware, United States of America

(1)	The percentage set forth in Row 13 of this Cover Page is based on the 45,432,240 shares of Class A Common Stock outstanding as of May 1, 2020, as reported on Form 10-Q.


CUSIP No. 00653Q102		Page 5


1		NAMES OF REPORTING PERSONS BMSB L.P.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See instructions) (a) ☒ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (See instructions) OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware, United States of America

(1)	The percentage set forth in Row 13 of this Cover Page is based on the 45,432,240 shares of Class A Common Stock outstanding as of May 1, 2020, as reported on Form 10-Q.


CUSIP No. 00653Q102		Page 6


1		NAMES OF REPORTING PERSONS BlueMountain Foinaven GP, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See instructions) (a) ☒ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (See instructions) OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware, United States of America

(1)	The percentage set forth in Row 13 of this Cover Page is based on the 45,432,240 shares of Class A Common Stock outstanding as of May 1, 2020, as reported on Form 10-Q.


CUSIP No. 00653Q102		Page 7


1		NAMES OF REPORTING PERSONS BlueMountain Foinaven Master Fund L.P.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See instructions) (a) ☒ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (See instructions) OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands

(1)	The percentage set forth in Row 13 of this Cover Page is based on the 45,432,240 shares of Class A Common Stock outstanding as of May 1, 2020, as reported on Form 10-Q.


CUSIP No. 00653Q102		Page 8

Item 1. Security of the Issuer.

This Amendment No. 1 amends the Schedule 13D relates to the shares of Class A Common Stock, par value $0.0001 per share (the “Class A Common Stock”), of AdaptHealth Corp., a Delaware corporation (the “Issuer”). The Issuer’s principal executive office is located at 220 West Germantown Pike, Suite 250, Plymouth Meeting, Pennsylvania 19462.

Item 2. Identity and Background.

Paragraphs (a), (b), (c) and (f) of the Schedule 13D are hereby deleted and replaced with the following:

(a-c) This Statement is being filed by the following beneficial owners of Class A Common Stock (each, a “Reporting Person”):

(i)

BMSB L.P., a Delaware limited partnership (“BMSB”), with respect to the Class A Common Stock directly owned by it;

(ii)

BlueMountain Summit Opportunities GP II, LLC, a Delaware limited liability company (“BMSB GP”), with respect to the Class A Common Stock directly owned by BMSB;

(iii)

BlueMountain Foinaven Master Fund L.P., a Cayman Islands exempted limited partnership (“BMFV” and, together with BMSB, the “BlueMountain Funds”), with respect to the Class A Common Stock directly owned by it;

(iv)

BlueMountain Foinaven GP, LLC, a Delaware limited liability company (“BMFV GP” and, together with BMSB GP, the “General Partners”), with respect to the Class A Common Stock directly owned by BMFV;

(v)

BlueMountain GP Holdings, LLC, a Delaware limited liability company (“GP Holdings”), which serves as the sole owner of each General Partner, with respect to the Class A Common Stock directly owned by each BlueMountain Fund; and

(vi)

BlueMountain Capital Management, LLC, a Delaware limited liability company (“BMCM” or the “Investment Manager”), with respect to the Class A Common Stock directly owned by it and with respect to the Class A Common Stock directly owned by the BlueMountain Funds and over which BMCM has investment discretion.

The principal business of: (i) each BlueMountain Fund is to serve as a private investment fund; (ii) each General Partner is to serve as the general partner of the applicable BlueMountain Fund; (iii) GP Holdings is to serve as the sole owner of each of the General Partners; and (iv) the Investment Manager is to serve as investment manager to, and to make investment decisions on behalf of, certain private investment funds including the BlueMountain Funds.

The executive officers, directors and control persons of the Reporting Persons are as follows:


Andrew Feldstein		Chief Executive Officer and Chief Investment Officer of the Investment Manager; Chief Executive Officer and Chief Investment Officer of GP Holdings; Manager of BMSB GP

Alan Gerstein		Manager of BMSB GP; Manager of BMFV GP

Elizabeth Gile		Manager of BMSB GP

Gary Linford		Manager of BMSB GP; Manager of BMFV GP

Mark Shapiro		Manager of BMSB GP; Manager of BMFV GP

The business address of BMFV is c/o Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands. The business address of BMSB, each General Partner, GP Holdings, the Investment Manager, Mr. Feldstein, Mr. Gerstein, Ms. Gile and Mr. Shapiro is 280 Park Avenue, 12^th Floor, New York, New York 10017. The business address of Mr. Linford is c/o HighWater, Pavilion Commercial Centre, 1^st Floor, 802 West Bay Road, P.O. Box 30599, KY1-1203, Grand Cayman, Cayman Islands.

(f) Mr. Feldstein, Mr. Gerstein, Ms. Gile and Mr. Shapiro are each U.S. citizens. Mr. Linford is a South African citizen.


CUSIP No. 00653Q102		Page 9

Item 5. Interest in Securities of the Issuer.

Paragraphs (a), (b) and (c) of the Schedule 13D are hereby deleted and replaced with the following:

(a-b) All percentages set forth in this Schedule 13D are based on the Issuer’s 45,432,240 shares of Class A Common Stock outstanding as of May 1, 2020, as reported on the Issuer’s Form 10-Q filed with the Securities and Exchange Commission on May 8, 2020 (“Form 10-Q”). The information set forth in Rows 7-13 of each Cover Page of this Schedule 13D is hereby incorporated herein by reference.

Each General Partner and GP Holdings expressly declare that this filing shall not be construed as an admission that each is, for the purposes of sections 13(d) or 13(g) of the Act, the beneficial owner of any securities covered by this filing. BMCM expressly declares that this filing shall not be construed as an admission that it is, for the purposes of sections 13(d) or 13(g) of the Act, the beneficial owner of any securities owned by the BlueMountain Funds.

None of the Reporting Persons beneficially own any other shares of Class A Common Stock of the Issuer.

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is hereby amended to include the following:

(vi) Put/Call Option and Consent Agreement

On May 25, 2020, the Issuer entered into a Put/Call Option and Consent Agreement (the “Put/Call Option Agreement”) with BMSB, BMFV and the other parties identified therein (the “Option Parties”) pursuant to which the Option Parties may require the Issuer to purchase certain securities of the Issuer held by the Option Parties (collectively, “Interests”) during an exercise period ending on October 31, 2020 (the “Option Period”). During the Option Period, the Issuer may also require the Option Parties to sell the Interests to the Issuer.

The foregoing description of the Put/Call Option Agreement is a summary only and is qualified in its entirety by reference to the Put/Call Option Agreement, which is filed as Exhibit 2 hereto and is incorporated herein by reference.

(vii) Voting Agreements

On May 25, 2020, each of BMSB and BMFV entered into a Voting Agreement (a “Voting Agreement”) with OEP AHCO Investment Holdings, LLC pursuant to which BMSB and BMFV agreed (i) to vote in favor of proposals made to shareholders regarding the removal of certain restrictions from securities of the Issuer and (ii) to vote against any proposals or other actions that would interfere with the removal of such restrictions.

The foregoing description of the Voting Agreements is a summary only and is qualified in its entirety by reference to the Voting Agreements, a form of which is filed as Exhibit 3 hereto and is incorporated herein by reference.

Item 7. Material to be Filed as Exhibits.

Item 7 of the 13D is hereby amended to include the following:

10. Put/Call Option and Consent Agreement dated as of May 25, 2020 by and among the parties identified therein, attached as Exhibit 2 hereto.

11. Form of Voting Agreement dated as of May 25, 2020, attached as Exhibit 3 hereto.


CUSIP No. 00653Q102		Page 10

SIGNATURES

After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement with respect to the undersigned is true, complete and correct.

Date: May 27, 2020


BLUEMOUNTAIN CAPITAL MANAGEMENT, LLC

By:		/s/ ERIC M. ALBERT
Name: Eric M. Albert, Chief Compliance Officer


BLUEMOUNTAIN GP HOLDINGS, LLC

By:		/s/ ERIC M. ALBERT
Name: Eric M. Albert, Chief Compliance Officer


BLUEMOUNTAIN SUMMIT OPPORTUNITIES GP II, LLC
BY: BLUEMOUNTAIN GP HOLDINGS, LLC

By:		/s/ ERIC M. ALBERT
Name: Eric M. Albert, Chief Compliance Officer


BMSB L.P.
BY: BLUEMOUNTAIN SUMMIT OPPORTUNITIES GP II, LLC
BY: BLUEMOUNTAIN GP HOLDINGS, LLC

By:		/s/ ERIC M. ALBERT
Name: Eric M. Albert, Chief Compliance Officer


BLUEMOUNTAIN FOINAVEN GP, LLC
BY: BLUEMOUNTAIN GP HOLDINGS, LLC

By:		/s/ ERIC M. ALBERT
Name: Eric M. Albert, Chief Compliance Officer


BLUEMOUNTAIN FOINAVEN MASTER FUND L.P.
BY: BLUEMOUNTAIN FOINAVEN GP, LLC
BY: BLUEMOUNTAIN GP HOLDINGS, LLC

By:		/s/ ERIC M. ALBERT
Name: Eric M. Albert, Chief Compliance Officer


CUSIP No. 00653Q102		Page 11

The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative’s authority to sign on behalf of such person shall be filed with the statement; provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature.

ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001)

EX-99.2 2 d864583dex992.htm EX-99.2 EX-99.2

Exhibit 2

PUT/CALL OPTION AND CONSENT AGREEMENT

This Put/Call Option and Consent Agreement (this “Agreement”) is made and entered into May 25, 2020, by and between AdaptHealth Corp., a Delaware corporation (“Pubco”), AdaptHealth Holdings LLC, a Delaware limited liability company (the “Company”), and the stockholders of Pubco or noteholders of the Company, as applicable, listed on the signature pages hereto (each, a “Holder” and collectively, the “Holders”). Pubco, the Company and the Holders are each referred to as a “Party” and, collectively, they are sometimes referred to as the “Parties.”

RECITALS

WHEREAS, the Company, a subsidiary of Pubco, issued (a) those certain Promissory Notes, dated November 8, 2019, in favor of each of BMSB L.P., BlueMountain Fursan Fund L.P., BlueMountain Foinaven Master Fund L.P. and BlueMountain Summit Opportunities Fund II (US) L.P. and (b) those certain Amended and Restated Promissory Notes, dated March 20, 2019, in favor of each of BlueMountain Summit Opportunities Fund II (US) L.P., BlueMountain Foinaven Master Fund L.P., BlueMountain Fursan Fund L.P. and BMSB L.P. (the recipients of such Promissory Notes, collectively, the “Noteholders”, and such Promissory Notes, collectively, the “BM Notes”);

WHEREAS, the Company and certain other parties are party to that certain Fifth Amended and Restated Limited Liability Company Agreement of AdaptHealth LLC, dated as of November 8, 2019 (the “LLC Agreement”);

WHEREAS, (a) BlueMountain Foinaven Master Fund L.P., BMSB L.P. and BlueMountain Fursan Fund L.P. (collectively, the “Class A Stockholders”) collectively own 3,647,353 shares of Class A Common Stock, $0.0001 par value per share (“Class A Common Stock”), of Pubco and (b) BlueMountain Summit Opportunities Fund II (US) LP (together with the Class A Stockholders, the “Stockholders) own 150,581 Common Units of the Company and 150,581 Class B Common Stock of Pubco (collectively, the “Consideration Units”, and together with the Class A Common Stock, the “Interests”);

WHEREAS, Pubco, the Company and the Stockholders are party to that certain letter agreement with respect to certain limitations on transfer of the Interests, dated July 8, 2019 (the “Lock Up Agreement”);

WHEREAS, Pubco, the Company and the Stockholders are party to that letter agreement with respect to certain board designation rights, dated November 8, 2019 (the “Board Designation Letter”);

WHEREAS, Pubco and the Company intend to enter into that certain Stock Purchase Agreement and Agreement and Plan of Merger (the “Purchase Agreement”), by and among Pubco, the Company, Eleanor Merger Sub LLC (“Merger Sub”), Solara Holdings, LLC (“Solara”) and LCP Solara Blocker Seller, LLC, in its capacity as Blocker Seller and the Representative (in each case as defined therein), pursuant to which Pubco will purchase 100% of the issued and outstanding equity interests of LCP Solara Blocker Corp. (the “Blocker Purchase”) and Solara will merge with and into Merger Sub, with Solara as the surviving company (the “Merger”);

WHEREAS, in connection with the entry into the Purchase Agreement, Pubco intends to enter into that certain Investment Agreement (the “Investment Agreement”) on or about the date hereof with OEP AHCO Investment Holdings, LLC, a Delaware limited liability company (the “Purchaser”), and, solely for purposes of Section 3.10 thereof, One Equity Partners VII, L.P., a Delaware limited partnership, pursuant to which Pubco will issue to the Purchaser shares of Class A Common Stock and shares of a new series of preferred stock designated as “Series A Convertible Preferred Stock,” par value $0.0001 per share, of Pubco (“Series A Preferred Stock”);

WHEREAS, pursuant to Section 8(f)(i) of the Certificate of Designation, in the form attached to Annex I of the Investment Agreement, to be filed with the State of Delaware setting forth the rights, terms and conditions of the Series A Preferred Stock (the “Certificate of Designation”), the Series A Preferred Stock will be convertible into Class A Common Stock in an amount up to the Share Cap (as defined in the Certificate of Designation), provided

that the Purchaser may, subject to certain conditions and limitations set forth in the Certificate of Designation, request the conversion of Series A Preferred Stock in excess of the Share Cap in exchange for cash rather than shares of Class A Common Stock, in which case Pubco will be required to repurchase such shares of Series A Preferred Stock offered for conversion in excess of the Share Cap on the terms and conditions set forth in such Section 8(f)(i);

WHEREAS, the terms of Sections 2.9(g) and 2.10 of the Fifth Amended and Restated Limited Liability Company Agreement of the Company require, among other things, that the Company undertake all actions to maintain at all times a one-to-one ratio between the number of Common Units owned by Pubco and the number of outstanding shares of Common Stock of Pubco;

WHEREAS, Section 3(g)(ii) of each of the BM Notes prohibits the repurchase by the Company of any of its equity interests without the prior written consent of the respective Noteholder;

WHEREAS, Section 3(g)(viii) of each of the BM Notes generally prohibits the acquisition by the Company (including through any of its subsidiaries or affiliates) of any material portion of the assets or stock of any person involving consideration in excess of $175 million per annum; and

WHEREAS, the Parties desire to grant certain put rights, call rights and consents related to the aforementioned agreements.

NOW THEREFORE, for and in consideration of the Transactions contemplated in the Purchase Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

ARTICLE I

DEFINITIONS

Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the LLC Agreement.

(a) “Business Day” means any day except Saturday, Sunday and any day which shall be a legal holiday or a day on which banking institutions in the State of New York or State of Pennsylvania generally are authorized or required by law or other governmental action to close.

(b) “Current Market Price” per share of Class A Common Stock, as of any date of determination, means the volume-weighted average price per share of Class A Common Stock for the thirty (30) consecutive full Trading Day period ending on, and including, the Trading Day immediately preceding such day, appropriately adjusted to take into account the occurrence during such period of any stock split, reverse stock split, stock dividend, reorganization or similar event with regard to the Class A Common Stock, as reported by NASDAQ (or, if NASDAQ ceases to publish such price, any successor service reasonably chosen by Pubco), or if such information is unavailable, the market price of one (1) share of Class A Common Stock on such Trading Day determined, using a volume-weighted average method, as reasonably determined by the Board of Directors of Pubco.

(c) “Lien” means any mortgage, deed of trust, pledge, hypothecation, security interest, encumbrance, claim, escheat, encroachment, lien, charge of any kind, option, easement, purchase right, right of first refusal, right of pre-emption, conditional sale agreement, covenant, condition or other similar restriction (including restrictions on transfer) or any agreement to create any of the foregoing, other than restrictions under securities laws, the LLC Agreement, the Lock Up Agreement or the Voting Agreements.

(d) “Market Disruption Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Class A Common Stock is listed for trading or trades (or for purposes of determining the Current Market Price per share of Class A Common Stock, any period or periods

aggregating one half-hour or longer during the regular trading session on the relevant day), of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Class A Common Stock or in any options contracts or futures contracts relating to the Class A Common Stock.

(e) “NASDAQ” means the NASDAQ Stock Market (or its successor).

(f) “Trading Day” means a day on which the NASDAQ is open for the transaction of business and on which there has not occurred a Market Disruption Event.

(g) “Voting Agreements” mean those certain Voting Agreements, dated as of the date hereof, by and between each of the Stockholders, on the one hand, and the Stockholders, on the other hand.

ARTICLE II

CALL OPTION

Section 2.1 Call Option. Subject to Section 2.3 and Section 5.1 hereof, on or after the consummation of the Closing (as defined in the Purchase Agreement) of the Blocker Purchase and the Merger until 6:00 p.m. Eastern Time on October 31, 2020 (the “Option Period”), Pubco shall have the right, but not the obligation, to exercise a one-time option to purchase up to (i) 1,898,967 of the Interests (as adjusted to take into account the occurrence during such period of any stock split, reverse stock split, stock dividend, reorganization or similar event) held by the Stockholders minus (ii) the number of Put Interests subject to a Put Option Exercise Notice previously delivered by the Stockholders (subject to the last sentence of Section 5.1) (the “Call Option”) at a price per share of Class A Common Stock or Consideration Unit of $15.76 (the “Call Option Exercise Price”).

Section 2.2 Call Option Exercise Notice. In order to exercise the Call Option, Pubco shall send by written notice during the Option Period a completed irrevocable exercise notice in the applicable form attached hereto as Exhibit A to the Stockholders (the “Call Option Exercise Notice”) specifying the number of Interests to be purchased by Pubco pursuant to such exercise of the Call Option (such interests, the “Called Interests”).

Section 2.3 Call Option Mechanics. In connection with the exercise of the Call Option, the Stockholders shall determine, in their sole discretion, the allocation of the Called Interests among the Stockholders and their respective shares of Class A Common Stock and Consideration Units.

ARTICLE III

PUT OPTION

Section 3.1 Put Option. Subject to Section 5.1 hereof, during the Option Period, the Stockholders shall have the right, but not the obligation, to exercise a one-time option to cause Pubco to purchase up to (i) 1,898,967 of the Interests (as adjusted to take into account the occurrence during such period of any stock split, reverse stock split, stock dividend, reorganization or similar event) held by the Stockholders minus (ii) the number of Called Interests subject to a Call Option Exercise Notice previously delivered by Pubco (subject to the last sentence of Section 5.1) (the “Put Option”) at a price per share of Class A Common Stock or Consideration Unit equal to the greater of (x) $14.50 and (y) 85% of the Current Market Price on the date the Put Exercise Notice is delivered (the “Put Option Exercise Price”).

Section 3.2 Put Option Exercise Notice. In order to exercise the Put Option, the Stockholders shall send, by written notice during the Option Period a completed irrevocable exercise notice in the applicable form attached hereto as Exhibit A to the Stockholders (the “Put Option Exercise Notice”) specifying the number of Interests to be purchased by Pubco pursuant to such exercise of the Put Option (such Interests, the “Put Interests”).

ARTICLE IV

CONSENT TO TRANSACTIONS AND PIK ELECTION

Section 4.1 Consent to Repurchases. Each of the Noteholders hereby waives the restrictions set forth in Section 3(g)(ii) of each of the BM Notes to permit, and hereby consents and for all other purposes under the BM Note to, the repurchase and/or redemption by the Company of a corresponding number of units in the Company held by Pubco upon the repurchase from time to time by Pubco of shares of Series A Preferred Stock delivered for conversion by the Purchaser in excess of the Share Cap as required by the Certificate of Designation, to the extent necessary to permit the Company to comply with the terms of Section 2.9(g) and 2.10 of the LLC Agreement to maintain a one-to-one ratio between the number of Common Units owned by Pubco and the number of outstanding shares of Common Stock of Pubco.

Section 4.2 Consent to Acquisition. Each of the undersigned Noteholders hereby waives the restrictions set forth in Section 3(g)(viii), of each of the BM Notes to permit, and hereby consents for all other purposes under the BM Note to, the entry into and the consummation of the transactions contemplated by the Purchase Agreement, including, without limitation, the Blocker Purchase and the Merger. For the avoidance of doubt, this letter shall constitute a waiver and consent with respect to such transactions contemplated by the Purchase Agreement for the purposes of Section 3(e) of each of the BM Notes.

Section 4.3 Option to Pay PIK in Cash. Pubco hereby irrevocably elects, pursuant to the last sentence of Section 2(b)(ii) of each BM Note, to pay in cash the PIK Interest (as defined in each such BM Notes) payable on any date following the consummation of the Closing (as defined in the Purchase Agreement) of the Blocker Purchase and the Merger.

Section 4.4 No Other Waivers. Except as expressly waived or consented to hereby, all terms, conditions and restrictions set forth in the BM Notes shall remain in full force and effect in accordance with their terms.

ARTICLE V

COVENANTS AND AGREEMENTS

Section 5.1 Call/Put Option Procedures. Any Put Option or Call Option shall be settled, and the proceeds paid to the relevant Stockholders, no later than fifteen (15) Business Days following the delivery of the Put Option Exercise Notice or Call Option Exercise Notice, as applicable (such date of payment, the “Payment Date”). The Interests over which the Put Option or Call Option is exercised shall be delivered on the Payment Date to Pubco or its designee free and clear of all Liens, together with such stock powers, stock certificates or evidence of transfer as reasonably requested by Pubco, in exchange for the Put Option Exercise Price or Call Option Exercise Price, as applicable, payable by wire transfer of immediately available funds to the account or accounts designated by the Stockholders to Pubco at least two (2) Business Days prior to the Payment Date. If the Company delivers a Call Option Exercise Notice within two (2) calendar days of the delivery of a Put Option Exercise Notice, and the Put Option Exercise Price is greater than the Call Option Exercise Price, the Call Option Exercise Notice will be treated as if it was delivered and received first, regardless of the actual time when it was received relative to the Put Option Exercise Notice, and the Put Option Exercise Notice will be null and void with regard to the number of Interests covered by the Call Option Exercise Notice.

Section 5.2 Restrictions on Disposition. Subject to Transfers in accordance with Section 5.4 or the call rights or put rights set forth in Articles II and III hereto, and without limiting the obligations of the Stockholders pursuant to the terms of the Voting Agreements, no Stockholder shall sell, assign, transfer, give, encumber, pledge or in any other way dispose of any of the Interests (any such act is referred to herein as a “Transfer”), other than Interests held by the Stockholders in excess of the number of Interests that are subject to the Call Option and Put Option. Subject to the terms of this Agreement, the Stockholders shall be entitled to exercise all rights of ownership of their Interests.

Section 5.3 Transfer Matters. With respect to the BM Notes, the LLC Agreement and the Lock Up Agreement, Pubco and the Company hereby consent to the future transfer of any of the BM Notes or the Interests to any of the Stockholder’s or Noteholder’s, as the case may be, affiliates, equityholders or other fund(s) or entities

managed by BlueMountain Capital Management, LLC or managed by an affiliate of BlueMountain Capital Management, LLC, subject to the other provisions of such agreements. Pubco and the Company further acknowledge and agree that the rights under the Board Designation Letter can be transferred to a transferee of the BM Notes pursuant to the foregoing and Section 7(h) of each BM Note.

Section 5.4 Expressly Permitted Transfers.

(a) From the date hereof through the earlier to occur of (i) the termination of this Agreement and (ii) the expiration of the Option Period at 6:00 p.m. on October 31, 2020 (the earlier to occur, the “Transfer Restriction Expiration Time”, a Stockholder may Transfer any of its Interests or any interest therein (A) to any of Stockholder’s Affiliates or equityholders, or other funds or entities managed by BlueMountain Capital Management, LLC or any of its Affiliates, in each case, that execute a joinder to this Agreement in a form reasonably acceptable to Pubco, or (B) to any other person provided that Pubco has consented in writing to such Transfer, which consent can be withheld at the sole discretion of Pubco (any such transferee pursuant to this Section 5.3(a) shall be referred to herein as a “Permitted Transferee”). Any Transfer made pursuant to this Section 5.3(a) shall be effective only if such Permitted Transferee shall agree in writing to be bound by the terms and conditions of this Agreement.

(b) In the event a Transfer of any Interests has taken place in violation of the provisions of this Agreement, such Transfer shall be void and of no effect, and the voting and economic rights of such Interests on any matter whatsoever shall remain vested in the transferor.

Section 5.5 Stock Legend.

(a) From the date hereof until the Transfer Restriction Expiration Time, any stock certificates representing the Interests (other than any certificates representing shares of Class A Common Stock held through one or more global stock certificates by The Depository Trust & Clearing Corporation or its nominee) shall be revised to contain the following legend:

THIS CERTIFICATE IS TRANSFERABLE ONLY UPON COMPLIANCE WITH AND SUBJECT TO THE PROVISIONS OF THE PUT/CALL OPTION AGREEMENT DATED AS OF MAY 25, 2020, BY AND AMONG ADAPTHEALTH CORP. (THE “COMPANY”), THE STOCKHOLDERS SIGNATORY THERETO AND CERTAIN OTHER PARTIES THERETO. ANY TRANSFER WITHOUT SUCH COMPLIANCE AND APPROVAL SHALL BE VOID AND OF NO EFFECT. A COPY OF THE PUT/CALL OPTION AGREEMENT IS ON FILE IN THE OFFICE OF THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS. THE COMPANY WILL FURNISH A COPY OF SUCH AGREEMENT TO THE RECORD HOLDER OF THIS CERTIFICATE, WITHOUT CHARGE, UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE.

(b) Pubco and the Company shall cause the legend set forth in Section 5.5(a) hereof to be removed from any and all stock certificates or book-entries representing any of the Interests no later than the Business Day immediately following the Transfer Restriction Expiration Time.

Section 5.6 Purchase and Sale of Common Stock Upon Bankruptcy or Involuntary Transfer. In the event a Stockholder (i) voluntarily or involuntarily files for bankruptcy in any court of competent jurisdiction, or (ii) has its Interests Transferred by operation of law or otherwise involuntarily, unless provided to the contrary in a separate agreement between Pubco and such Stockholder, upon written notice to such Stockholder, Pubco shall have the continuing option to exercise its Call Option with respect to the Interests beneficially owned by such Stockholder in accordance with Article II hereto.

ARTICLE VI

REPRESENTATIONS AND WARRANTIES

Section 6.1 Mutual Representations and Warranties. Each Party represents and warrants to the other parties hereto as follows:

(a) it has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby.

(b) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of such Party and no other proceedings on the part of such Party are necessary therefor.

(c) this Agreement has been duly and validly executed and delivered by it and is valid, binding, and enforceable in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law)).

(d) the execution, delivery and performance by such Party of this Agreement does not and will not violate the organizational documents of such Party or any applicable law or any other agreement to which it is bound.

Section 6.2 Pubco Representations and Warranties. Prior to the entry into this Agreement, the board of directors of Pubco has approved, for all purposes of Section 16 of the Exchange Act and Rule 16b-3 thereunder, the acquisition, disposition and exercise by BlueMountain Capital Management, LLC (“BMCM”) and each of the Stockholders of the Call Option and the Put Option, as well as the acquisition and disposition of any shares of Class A Common Stock or Class B Common Stock by BMCM or any of the Stockholders in connection with the acquisition, disposition or exercise of the Call Option or the Put Option, in each case on the terms and conditions set forth in this Agreement.

ARTICLE VII

MISCELLANEOUS

Section 7.1 Further Assurances. The Parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other Party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement.

Section 7.2 Termination. This Agreement shall terminate upon the date on which the Purchase Agreement is terminated in accordance with its terms prior to the Closing (as defined therein).

Section 7.3 Amendments and Waivers. No amendment or waiver of any provision of this Agreement shall be valid unless in writing and signed by the Party to be charged with such amendment or waiver. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

Section 7.4 Notices. All notices permitted or required to be given pursuant to this Agreement shall be given (and will be deemed to have been duly given, if given) by hand delivery, courier service, facsimile, email, or mailed by registered or certified mail, postage prepaid, return receipt requested:

If to the Holders:

BlueMountain Capital Management, LLC

280 Park Avenue, 12^th Floor

New York, NY 10017

Attn: General Counsel

Email: legalnotices@bmcm.com

with a copy (which shall not constitute notice) to:

King & Spalding, LLP

1180 Peachtree Street

Atlanta, GA 30309

Attn: Raymond E. Baltz, Jr.

Email: rbaltz@kslaw.com

If to the Company or Pubco:

AdaptHealth Corp.

220 West Germantown Pike Suite 250

Plymouth Meeting, PA 19462

Attention: General Counsel

E-mail: cjoyce@adapthealth.com

with a copy (which shall not constitute notice) to:

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, NY 10019

Attention: Steven J. Gartner

Michael E. Brandt

Danielle Scalzo

E-mail: sgartner@willkie.com

mbrandt@willkie.com

dscalzo@willkie.com

Facsimile: 212-728-9962

Notice given by personal delivery, courier service or mail shall be effective upon actual receipt. Notice given by facsimile shall be confirmed by appropriate answer back and shall be effective upon actual receipt if receipt is received during the recipient’s normal business hours, or at the beginning of the recipient’s next Business Day after if not received during the recipient’s normal business hours. Any party may change any address to which notice is to be given to it by giving notice as provided above of such change of address.

Section 7.5 Entire Agreement. This Agreement supersedes all prior agreements between the Parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter.

Section 7.6 Assignments, Successors, and No Third-Party Rights. Subject to Section 5.4, no Party may assign any of its rights under this Agreement without the prior consent of the other Parties. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the Parties. Nothing expressed or referred to in this Agreement will be construed to give any person or entity other than the Parties to this Agreement any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement.

Section 7.7 Specific Performance. The Parties recognize and agree that immediate irreparable damages for which there is not adequate remedy at law would occur in the event that the provisions of this Agreement are not performed in accordance with the specific terms hereof or are otherwise breached. It is accordingly agreed that in the event of a failure by a Party to perform his, her or its obligations under this Agreement, each of the other Parties shall be entitled to specific performance through injunctive relief, without the necessity of posting a bond, to prevent breaches of the provisions and to enforce specifically the provisions of this Agreement, in addition to any other remedy to which such Party may be entitled, at law or in equity.

Section 7.8 Consent To Jurisdiction; Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware. The Parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in the State of Delaware for any

actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby. The Parties hereby irrevocably and unconditionally consent to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or proceeding and irrevocably waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the laying of the venue of any such action, suit or proceeding in any such court or that any such action, suit or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such action, suit or proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each Party agrees that service of process on such Party as provided in Section 7.8 shall be deemed effective service of process on such Party.

Section 7.9 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 7.10 Severability. Any term of this Agreement which would be invalid or unenforceable as written shall be deemed limited in scope and/or duration to the extent necessary to render it enforceable. The determination of any court that any provision is invalid or unenforceable shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity of the offending term or provision in any other situation or in any other jurisdiction.

Section 7.11 Construction. Wherever the context so permits, the use of words in this Agreement in the masculine, feminine or neuter gender shall be construed to include all of such genders. All references to articles, sections, subsections, or subparagraphs are to provisions of this Agreement unless the context dictates otherwise.

Section 7.12 Successors. All of the terms, agreements, covenants and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the Parties and their respective successors and permitted assigns. Neither this Agreement, nor any of the rights, interests or obligations hereunder shall be assigned by any of the Parties (whether by operation of law or otherwise) without the prior written consent of the other Parties.

Section 7.13 Delivery by PDF and Facsimile. This Agreement and any amendments hereto, to the extent signed and delivered by means of portable document format (“PDF”) or a facsimile machine, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any Party hereto, each other Party hereto shall re-execute original forms thereof and deliver them to all other Parties. No Party hereto shall raise the use of PDF or a facsimile machine to deliver a signature or the fact that any signature or this Agreement was transmitted or communicated through the use of PDF or a facsimile machine as a defense to the formation of a contract and each such Party forever waives any such defense.

[Signature Pages Follow]

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.


ADAPTHEALTH CORP.

By:		/s/ LUKE MCGEE
		Name: Luke McGee
		Title: Authorized Signatory


ADAPTHEALTH HOLDINGS LLC

By:		/s/ LUKE MCGEE
		Name: Luke McGee
		Title: Authorized Signatory


BLUEMOUNTAIN FOINAVEN MASTER FUND L.P.

By:		/s/ RICHARD HORNE
		Name: Richard Horne
		Title: Deputy General Counsel, Tax


BMSB L.P.

By:		/s/ RICHARD HORNE
		Name: Richard Horne
		Title: Deputy General Counsel, Tax


BLUEMOUNTAIN FURSAN FUND L.P.

By:		/s/ RICHARD HORNE
		Name: Richard Horne
		Title: Deputy General Counsel, Tax


BLUEMOUNTAIN SUMMIT OPPORTUNITIES FUND II (US) L.P.

By:		/s/ RICHARD HORNE
		Name: Richard Horne
		Title: Deputy General Counsel, Tax

[Signature page to the Put/Call Option and Consent Agreement]

EXHIBIT A

EXERCISE NOTICE

If exercise of Put Option:

NOTICE OF EXERCISE OF PUT OPTION

To AdaptHealth Corp.:

Date:

The undersigned Stockholders hereby irrevocably exercise their option to cause Pubco to purchase _____________ of the Interests held by the Stockholders, in accordance with Article III of the Put/Call Option and Consent Agreement dated May 25, 2020. The Interests to be sold to Pubco shall allocated as follows:


Stockholder	Class A Common Shares	Consideration Units
BMSB L.P.
BlueMountain Fursan Fund L.P.
BlueMountain Foinaven Master Fund L.P.
BlueMountain Summit Opportunities Fund II (US) L.P.


Stockholders:



By:


Name:


Title:

If exercise of Call Option:

NOTICE OF EXERCISE OF CALL OPTION

To: Stockholders

Date:

AdaptHealth Corp., a Delaware corporation, hereby irrevocably gives notice to the Stockholders of the exercise of its option to purchase _________ of the Interests held by the Stockholders at a price per Interest of $15.76 and an aggregate price of $_________________, in accordance with Article II of the Put/Call Option and Consent Agreement dated May 25, 2020.


ADAPTHEALTH CORP.



By:


Name:


Title:

EX-99.3 3 d864583dex993.htm EX-99.3 EX-99.3

Exhibit 3

FORM OF VOTING AGREEMENT

This Voting Agreement (this “Agreement”), dated as of May 25, 2020 between the undersigned stockholder (“Stockholder”) of AdaptHealth Corp., a Delaware corporation (the “Company”), and OEP AHCO Investment Holdings, LLC, a Delaware limited liability company (“Investor”).

WHEREAS, concurrently with or following the execution of this Agreement, the Company and Investor have entered, or will enter, into an Investment Agreement (as the same may be amended from time to time, the “Investment Agreement”), providing for, among other things, an equity financing transaction (the “Financing”); and

WHEREAS, to induce Investor to enter into the Investment Agreement, Stockholder is willing to make certain representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.0001 per share, of the Company (“Company Common Stock”), beneficially owned by Stockholder and set forth below Stockholder’s signature on the signature page hereto (the “Original Shares” and, together with any additional shares of Company Common Stock pursuant to Section 6 hereof, the “Shares”).

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1. Definitions. For purposes of this Agreement, capitalized terms used and not defined herein shall have the respective meanings ascribed to them in the Investment Agreement.

2. Representations of Stockholder. Stockholder represents and warrants to Investor that:

(a) As of the date hereof, (i) Stockholder owns beneficially (as such term is defined in Rule 13d-3 under the Exchange Act) all of the Original Shares free and clear of all Liens, other than restrictions on transfer imposed by applicable securities Laws or other agreements between Stockholder and the Company, and (ii) except pursuant hereto, pursuant to that certain letter agreement with the Company, dated July 8, 2019, or the Put/Call Option and Consent Agreement with the Company, dated as of the date hereof, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which Stockholder is a party relating to the pledge, disposition or voting of any of the Original Shares with respect to or otherwise affecting the matters covered herein and there are no voting trusts or voting agreements with respect to the Original Shares with respect to or otherwise affecting the matters covered herein.

(b) As of the date hereof, Stockholder does not beneficially own any shares of Company Common Stock or any security exercisable for or convertible into shares of Company Common Stock other than the Original Shares as set forth on the signature page of this Agreement.

(c) Stockholder has full power and authority to enter into, execute and deliver this Agreement and to perform fully Stockholder’s obligations hereunder. This Agreement has been duly and validly executed and delivered by Stockholder and constitutes the legal, valid and binding obligation of Stockholder, enforceable against Stockholder in accordance with its terms, except (a) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar Laws now or hereafter in effect relating to, or affecting generally, the enforcement of creditors’ and other obligees’ rights, (b) where the remedy of specific performance or other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceeding may be brought, and (c) where rights to indemnity and contribution thereunder may be limited by applicable Law and public policy.

(d) None of the execution and delivery of this Agreement by Stockholder, the consummation by Stockholder of the transactions contemplated hereby or compliance by Stockholder with any of the provisions hereof will conflict with or result in a material breach, or constitute a default (with or without notice of lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Stockholder or to Stockholder’s property or assets.

(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other Person on the part of Stockholder is required in connection with the valid execution and delivery of this Agreement, other than any such consents, approvals, authorizations, designations, declarations and filings that have already been obtained or made or filings required under the Exchange Act.

(f) As of the date hereof, there is no action, suit, or proceeding (whether judicial, arbitral, administrative, or other), or to the knowledge of Stockholder, investigation, pending against, or, to the knowledge of Stockholder, no such action, suit, proceeding or investigation threatened against or affecting, Stockholder that would reasonably be expected to materially impair or materially adversely affect the ability of Stockholder to perform Stockholder’s obligations hereunder or to consummate the transactions contemplated by this Agreement on a timely basis.

3. Agreement to Vote Shares.

(a) Stockholder agrees during the term of this Agreement to vote the Shares over which such Stockholder has the right to vote as of the applicable record date, and to cause any of its affiliates that are the holder of record of Shares to vote the Shares over which such affiliate has the right to vote as of the applicable record date: (i) in favor of the removal of the Conversion Restriction (as such term is defined in the Certificate of Designations) (the “Stockholder Approval”), at every meeting of the stockholders of the Company at which such matters are considered and at every adjournment or postponement thereof; and (ii) against (1) any action, proposal, transaction or agreement which would result in a breach of any covenant, representation or warranty or any other obligation or agreement of Stockholder under this Agreement and (2) any action, proposal, transaction or agreement that would reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the Stockholder Approval, including any change in any manner to the voting rights of any class of shares of the Company (including any amendments to the certificate of incorporation or bylaws of the Company) (provided, however, that the approval of the authorization or issuance of additional shares of capital stock of the Company not otherwise in breach of the restrictions set forth in Section 3.7 of the Investment Agreement shall not be deemed a change in any manner to the voting rights). Investor acknowledges and agrees that nothing in this Agreement shall restrict Stockholder from transferring or selling its Shares; provided, that if such transfer or sale is to an Affiliate of Stockholder, Stockholder shall cause such Affiliate to execute a joinder to this Agreement to be bound by all of the rights, interests and obligations of this Agreement as if such Affiliate were “Stockholder” hereunder.

(b) Solely in the event of a failure by Stockholder to act in accordance with Stockholder’s obligations as to voting pursuant to Section 3(a) (including in the event a Stockholder does not deliver a completed proxy card to the Company with respect to the matters contemplated herein at least 10 days prior to the applicable deadline thereof), Stockholder hereby appoints Investor and any designee of Investor, and each of them individually, its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the performance of the duties of Stockholder under this Agreement. Stockholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Stockholder with respect to the Shares. The power of attorney granted by Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Stockholder. Notwithstanding anything to the contrary herein, the proxy and power of attorney granted hereunder and each other covenant and agreement in this Section 3(b) shall terminate upon the termination of this Agreement.

4. Covenants.

(a) Stockholder agrees that Stockholder will not, and will not permit any entity under Stockholder’s control to, with respect to the matters covered herein, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to the voting of the Shares other than agreements entered into with Investor.

(b) Stockholder agrees that all shares of Company Common Stock that Stockholder purchases, acquires the right to vote or otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of after the execution of this Agreement shall be subject to the terms of this Agreement and shall constitute Shares for all purposes of this Agreement.

5. Termination. This Agreement shall terminate upon the earliest to occur of (i) the date on which the Stockholder Approval is obtained, and (ii) the date on which the Investment Agreement is terminated in accordance with its terms.

6. No Agreement as Director or Officer. Stockholder makes no agreement or understanding in this Agreement in Stockholder’s capacity as a director or officer of the Company or any of its subsidiaries or as a designator, employer or affiliate of any director or officer of the Company or any of its subsidiaries (if Stockholder’s designee, employee or affiliate holds such office), and nothing in this Agreement: (a) will limit or affect any actions or omissions taken by any designee, employee or affiliate of Stockholder as such a director or officer, including in exercising rights under the Investment Agreement, and no such actions or omissions shall be deemed a breach of this Agreement or (b) will be construed to prohibit, limit or restrict any designee, employee or affiliate of Stockholder from exercising his or her fiduciary duties as an officer or director to the Company or its stockholders.

7. Further Assurances. Stockholder agrees, from time to time, and without additional consideration, to execute and deliver such additional proxies, documents, and other instruments and to take all such further action as the Investor may reasonably request to consummate and make effective the transactions contemplated by this Agreement.

8. Miscellaneous.

(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to agreements made and to be performed entirely within such state, without regard to the conflicts of law principles of such state.

(b) The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of competent jurisdiction, in each case without proof of damages or otherwise (and each party hereto hereby waives any requirement for the securing or posting of any bond in connection with such remedy), this being in addition to any other remedy to which they are entitled at law or in equity. The parties hereto agree not to assert that a remedy of specific enforcement of the express terms hereof is unenforceable, invalid, contrary to law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide an adequate remedy.

(c) Each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction, any state or federal court within the State of Delaware), for the purposes of any Action or other proceeding arising out of this Agreement and the rights and obligations arising hereunder, and irrevocably and unconditionally waives any objection to the laying of venue of any such Action or proceeding in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Action or proceeding has been brought in an inconvenient forum. Each party hereto agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth on the signature pages hereto shall be effective service of process for any such Action or proceeding.

(d) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, CLAIM OR OTHER PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, CLAIM OR OTHER

PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8(d).

(e) This Agreement may be executed in two or more identical counterparts (including by facsimile or electronic transmission), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered (by facsimile, electronic transmission or otherwise) to the other parties.

(f) Each party hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.

(g) This Agreement supersedes all prior agreements, written or oral, between the parties hereto with respect to the subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.

(h) All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction or reference shall be derived therefrom.

(i) The obligations of Stockholder set forth in this Agreement shall not be effective or binding upon Stockholder until after such time as the Investment Agreement is executed and delivered by the Company and Investor, and the parties hereto agree that there is not and has not been any other agreement, arrangement or understanding between the parties hereto with respect to the matters set forth herein.

(j) Neither party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that Investor may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any of its Affiliates that own Class A Common Stock or Series A Preferred Stock. Any assignment contrary to the provisions of this Section 8(j) shall be null and void.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.


INVESTOR:

OEP AHCO INVESTMENT HOLDINGS, LLC



By:


Name:
Title:


STOCKHOLDER:

[_____]



By:


Name:
Title:
Number of Shares of Company Common Stock Beneficially Owned as of the Date of this Agreement: [_____]
Street Address: [_____]
City/State/Zip Code: [_____]

[SIGNATURE PAGE TO VOTING AGREEMENT]