8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 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)

November 19, 2021 (November 18, 2021)

Diversicare Healthcare Services, Inc.

(Exact Name of Registrant as Specified in Charter)

Delaware	001-12996	62-1559667
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

1621 Galleria Boulevard, Brentwood, TN 37027

(Address of Principal Executive Offices) (Zip Code)

(615) 771-7575

(Registrant's telephone number, including area code)

Not applicable

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

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, $0.01 par value per share	DVCR	OTCQX

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))

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.		☐

Introductory Note

On November 19, 2021 (the “Closing Date”), pursuant to the terms of the Agreement and Plan of Merger (the “Merger Agreement”), dated as of August 26, 2021, by and among Diversicare Healthcare Services, Inc. (the “Company”), DAC Acquisition LLC, a Delaware limited liability company (“Parent”), and DVCR Acquisition Corporation, a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), Parent completed its acquisition of the Company through the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent.

Item 1.02. Termination of a Material Definitive Agreement.

The information set forth in Item 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 1.02.

Immediately following the Effective Time (as defined below), the Diversicare Healthcare Services, Inc. 2010 Long-Term Incentive Plan, as amended from time to time, was terminated.

Item 2.01. Completion of Acquisition or Disposition of Assets.

At the effective time of the Merger (the “Effective Time”), each share of Company common stock, par value $0.01 per share (the “Company Common Stock”), issued and outstanding immediately prior to the Effective Time (other than (i) shares of Company Common Stock held by the Company as treasury stock or owned by Parent or Merger Sub and (ii) shares of Company Common Stock held by stockholders who have properly and validly exercised their statutory rights of appraisal in respect of such shares) was automatically converted into the right to receive cash in an amount equal to $10.10 per share, net of applicable withholding taxes and without interest thereon (the “Merger Consideration”).

In addition, at the Effective Time, by virtue of the Mergerand without any action on the part of the holders, (i) each outstanding option to purchase shares of Company Common Stock (each, a “Company Option”) issued under the Diversicare Healthcare Services, Inc. 2010 Long-Term Incentive Plan, (the “Incentive Plan”), whether or not vested, was cancelled and, in consideration thereof, the holder of such Company Option received an amount (such amount, the “Company Option Consideration”) in cash equal to, net of applicable tax withholding, the product of (x) the excess, if any, of the Merger Consideration over the exercise price per share of Company Common Stock underlying such Company Option, multiplied by (y) the total number of shares of Company Common Stock subject to such Company Option; (ii) each outstanding restricted stock unit of the Company (each, a “Company RSU Award”) issued under the Incentive Plan, whether or not vested, was cancelled and, in consideration thereof, the holder of such Company RSU Award received an amount (such amount, the “Company RSU Award Consideration”) in cash equal to, net of applicable tax withholding, the Merger Consideration in respect of each share of Company Common Stock subject to such Company RSU Award; (iii) each outstanding share of restricted stock (each a “Company Restricted Stock Award”) issued under the Incentive Plan, whether or not vested, was cancelled and, in consideration thereof, the holder of such Company Restricted Stock Award received an amount (such amount, the “Company Restricted Stock Award Consideration”) in cash equal to, net of applicable tax withholding, the Merger Consideration in respect of each share of Company Common Stock subject to such Company Restricted Stock Award; and (iv) each outstanding stock appreciation right (each, a “Company Stock Appreciation Right”) issued under the Incentive Plan, and had an exercise price per share of Company Common Stock that was less than the Merger Consideration, was cancelled and, in consideration thereof, the holder of such Company Stock Appreciation Right received an amount (such amount, the “Company Stock Appreciation Right Consideration”) in cash equal to, net of applicable tax withholding, the product of (x) the excess, if any, of the Merger Consideration over the exercise price per share of Company Common Stock underlying such Company Stock Appreciation Right, multiplied by (y) the total number of shares of Company Common Stock subject to such Company Stock Appreciation Right. For the avoidance of doubt, any Company Option or Company Stock Appreciation Right with an exercise price equal to or greater than the Merger Consideration was canceled for no consideration.

The Company’s definitive proxy statement, filed with the Securities and Exchange Commission (the “SEC”) on October 20, 2021 (the “Proxy Statement”), and the Company’s Current Report on Form 8-K, filed with the SEC on November 12, 2021, contain additional information about the Merger and the Merger Agreement, including information concerning the interests of directors, executive officers and affiliates of the Company in the Merger.

The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which was filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the SEC on August 27, 2021, and is incorporated by reference herein.

Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

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

As a result of the Merger, all of the issued and outstanding stock of the Company is currently owned by Parent. The Company intends to timely file with the SEC a certification on Form 15 under the Exchange Act requesting that the Company’s reporting obligations under Section 13 and 15(d) of the Exchange Act be suspended.

Item 3.03. Material Modification to Rights of Security Holders.

The information set forth in the Introductory Note and Items 2.01, 3.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

At the Effective Time, each holder of Company Common Stock issued and outstanding immediately prior to the Effective Time ceased to have any rights as a stockholder of the Company (other than the right to receive the Merger Consideration pursuant to the Merger Agreement).

Item 5.01. Change in Control of Registrant.

The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.05.

At the Effective Time, as a result of the Merger, a change in control of the Company occurred and the Company is now a wholly owned subsidiary of Parent.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Termination of Executive Employment Agreements and Entry into Release Agreements

Immediately prior to the Effective Time, on November 19, 2021, the Company terminated (i) that certain Amended and Restated Employment Agreement, dated July 6, 2018, with James R. McKnight, Jr. (the “McKnight Employment Agreement”), (ii) that certain Employment Agreement, dated September 4, 2018, with Kerry D. Massey (the “Massey Employment Agreement”), and (iii) that certain Employment Agreement, dated March 2, 2020, with Rebecca B. Bodie (the “Bodie Employment Agreement,” and collectively, with the McKnight Employment Agreement and the Massey Employment Agreement, the “ExecutiveEmployment Agreements”).

The termination of the Executive Employment Agreements accelerates payment of the severance benefits due under such agreements.

On November 19, 2021, in connection with the termination of the Executive Employment Agreements and as a condition precedent to receipt of the severance benefits due under the respective Executive Employment Agreement, the Company entered into separate Termination and Release Agreements with (i) James R. McKnight, Jr. (the “McKnight Release Agreement”), (ii) Kerry D. Massey (the “Massey Release Agreement”), and (iii) Rebecca B. Bodie (the “Bodie Release Agreement,” and collectively with the McKnight Release Agreement and the Massey Release Agreement, the “Release Agreements”).

The Release Agreements provide that each of Messrs. McKnight and Massey and Ms. Bodie are entitled to the payments and other severance benefits set forth in Section XI of the McKnight Employment Agreement, Section XI of the Massey Employment Agreement and Section VIII.A of the Bodie Employment Agreement. Following the termination of the Executive Employment Agreements and entry into the Release Agreements, Messrs. McKnight and Massey and Ms. Bodie will remain as at-will employees of the Company.

McKnight Release Agreement

Pursuant to the McKnight Release Agreement, Mr. McKnight has granted a general release in favor of the Company as a condition of receiving the payments and other severance benefits specified in the McKnight Release Agreement. If not revoked by Mr. McKnight within seven days pursuant to his statutory right to do so unilaterally, the McKnight Release Agreement will be effective on November 26, 2021.

Under the terms of the McKnight Release Agreement, Mr. McKnight will receive base salary of $1,000,000, a bonus of $702,000, a bonus for the fiscal year ended December 31, 2021 of $441,096, and other benefits of $86,600, for total severance payments of $2,229,696.

Massey Release Agreement

Pursuant to the Massey Release Agreement, Mr. Massey has granted a general release in favor of the Company as a condition of receiving the payments and other severance benefits specified in the Massey Release Agreement. If not revoked by Mr. Massey within seven days pursuant to his statutory right to do so unilaterally, the Massey Release Agreement will be effective on November 26, 2021.

Under the terms of the Massey Release Agreement, Mr. Massey will receive base salary of $300,000, a bonus for the fiscal year ended December 31, 2021 of $264,657, and other benefits of $26,000, for total severance payments of $590,657.

Bodie Release Agreement

Pursuant to the Bodie Release Agreement, Ms. Bodie has granted a general release in favor of the Company as a condition of receiving the payments and other severance benefits specified in the Bodie Release Agreement. If not revoked by Ms. Bodie within seven days pursuant to her statutory right to do so unilaterally, the Bodie Release Agreement will be effective on November 26, 2021.

Under the terms of the Bodie Release Agreement, Ms. Bodie will receive base salary of $320,000, a bonus for the fiscal year ended December 31, 2021 of $282,301, and other benefits of $43,300, for total severance payments of $645,601.

The foregoing description of the Release Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the McKnight Release Agreement, Massey Release Agreement and Bodie Release Agreement, which are filed as Exhibits 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K, and are incorporated by reference herein.

Post-Merger Officers and Directors

Notwithstanding the termination of the Executive Employment Agreements, as of the Effective Time, in accordance with the Merger Agreement, the officers of the Company immediately prior to the Merger remained in their respective positions as officers of the Company.

Immediately following the Effective Time, pursuant to the terms of the Merger Agreement, Chad A. McCurdy, Ben R. Leedle, Jr., James R. McKnight, Jr., Leslie K. Morgan, Richard M. Brame, Robert Z. Hensley, and Robert A. McCabe, Jr. ceased to be directors of the Company and Ephram Lahasky, Eran Ratner and Brian Kohn, the directors of Merger Sub immediately prior to the Effective Time, were appointed as directors of the Company.The departure of the directors was in connection with the Merger and was not due to any disagreement or dispute with the Company on any matter.

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

At the Effective Time and in accordance with the Merger Agreement, the Certificate of Incorporation of the Company, as amended from time to time, was amended and restated as set forth in the Amended and Restated Certificate of Incorporation filed as Exhibit 3.1 hereto and is incorporated herein by reference.

Immediately after the Effective Time and in accordance with the Merger Agreement, the Amended and Restated Bylaws of the Company, as amended from time to time, were amended and restated as set forth in the Amended and Restated Bylaws are filed as Exhibit 3.2 hereto and are incorporated herein by reference.

The foregoing descriptions of the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws do not purport to be complete and are qualified in their entirety by reference to the full text of such amendments, which are filed as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

Item 5.07. Submission of Matters to a Vote of Security Holders.

On November 18, 2021, the Company held a special meeting of stockholders (the “Special Meeting”) to consider certain proposals relating to the Merger Agreement. Such proposals are described in more detail in the Proxy Statement.

As of the close of business on October 5, 2021, the record date for the Special Meeting, there were 6,949,104 shares of common stock, par value $0.01 per share, of the Company (the “Company Common Stock”) outstanding, each of which was entitled to one vote on each proposal at the Special Meeting. At the Special Meeting, a total of 6,200,748 shares of Company Common Stock, representing approximately 89% of the outstanding shares of Company Common Stock entitled to vote, were present or represented by proxy, constituting a quorum to conduct business.

Set forth below are the proposals, and the action taken by the Company’s stockholders with respect to each proposal at the Special Meeting.

Proposal No. 1: Approval of the Merger Proposal

The Company’s stockholders approved the proposal to adopt the Merger Agreement. Approval of the Merger Proposal required the affirmative vote of a majority of the shares of Company Common Stock that were outstanding and entitled to vote as of the record date. The voting results for this proposal were as follows:

Votes For	Votes Against	Abstentions
6,189,271	6,465	5,012

Proposal No. 2: Approval of the Advisory, Non-Binding Compensation Proposal

The Company’s stockholders approved, on a non-binding, advisory basis, the compensation that may be paid or become payable to the Company’s named executive officers in connection with the Merger. Approval of this proposal required the affirmative vote of a majority of the outstanding shares of Company Common Stock that were present at the Special Meeting and entitled to vote as of the record date. The voting results for this proposal were as follows:

Votes For	Votes Against	Abstentions
6,153,032	38,052	9,664

Proposal No. 3: Approval of the Adjournment Proposal

The proposal to approve the adjournment or postponement of the Special Meeting to a later date or time, if necessary or appropriate as determined by the Company, to solicit additional proxies if there were insufficient votes to adopt the Merger Agreement at the time of the Special Meeting, was not voted upon at the Special Meeting because sufficient votes were received to approve the adoption of the Merger Agreement.

Item 7.01. Regulation FD Disclosure.

On November 19, 2021, the Company issued a press release announcing adoption of the Merger Agreement by the Company’s stockholders at the Special Meeting and the completion of the Merger, a copy of which is attached hereto as Exhibit 99.1 and is incorporated by reference herein.

Pursuant to the rules and regulations of the SEC, the information in this Item 7.01 disclosure, including Exhibit 99.1, and information set forth therein, is deemed to have been furnished and shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section. Such information shall not be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

Exhibit Number	Description of Exhibits
2.1†	Agreement and Plan of Merger by and among DAC Acquisitions LLC, DVCR Acquisition Corporation and Diversicare Healthcare Services, Inc. dated August 26, 2021 (incorporated by reference to Exhibit 2.1 to the Company's current report on Form 8-K Filed with the SEC on August 27, 2021).
3.1*	Amended and Restated Certificate of Incorporation of Diversicare Healthcare Services, Inc.
3.2*	Amended and Restated Bylaws of Diversicare Healthcare Services, Inc.
10.1*	Termination and Release Agreement, dated November 19, 2021, by and between Diversicare Healthcare Services, Inc. and James R. McKnight, Jr.
10.2*	Termination and Release Agreement, dated November 19, 2021, by and between Diversicare Healthcare Services, Inc. and Kerry D. Massey.
10.3*	Termination and Release Agreement, dated November 19, 2021, by and between Diversicare Healthcare Services, Inc. and Rebecca B. Bodie.
99.1*	Press Release, dated November 19, 2021.
104	Cover Page Interactive Data File (embedded within the Inline XBRL document)

†The schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish supplementally a copy of such schedules and exhibits, or any section thereof, to the SEC upon request.

*Filed herewith.

SIGNATURES

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

Diversicare Healthcare Services, Inc.

By: /s/ Kerry D. Massey

Name: Kerry D. Massey

Title: Chief Financial Officer

Date: November 19, 2021

EX-3.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

DIVERSICARE HEALTHCARE SERVICES, INC.

ARTICLE I: The name of the corporation is Diversicare Healthcare Services, Inc. (the “Corporation”).

ARTICLE II: The registered office of the Corporation in the State of Delaware is located at 251 Little Falls Drive, Wilmington, County of New Castle, Delaware 19808. The registered agent of the Corporation at that address is Corporation Service Company.

ARTICLE III: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).

ARTICLE IV: The total number of shares of stock which the Corporation is authorized to issue is one hundred (100) shares of common stock having a par value of $0.01 per share.

ARTICLE V: The Corporation is to have perpetual existence.

ARTICLE VI: The business and affairs of the Corporation shall be managed by or under the direction of the board of directors, and the directors need not be elected by ballot unless required by the bylaws of the Corporation.

ARTICLE VII: In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the board of directors is expressly authorized to make, amend and repeal the bylaws, subject to the powers of the stockholder of the Corporation to adopt bylaws or to amend or repeal any bylaws adopted or amended by the board of directors of the Corporation.

ARTICLE VIII: Meetings of stockholders may be held within or without the State of Delaware, as the bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the bylaws of the Corporation.

ARTICLE IX: Every person who was or is a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another Corporation, or as its representative in a partnership, joint venture, trust or other enterprise, whether the basis of such action, suit or proceeding is any alleged action in an official capacity as director, officer or representative, or in any other capacity while serving as a director, officer or representative, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against all expenses, liability and loss (including attorneys’ fees, judgments, fines, excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by him or her in connection therewith; provided, however, that the Corporation shall indemnify any such person in connection with any action, suit or proceeding (or part thereof) initiated by such person only if such action, suit or proceeding (or part thereof) was authorized by the board of directors of the Corporation. Such right shall be a contract right and shall include the right to be paid by the Corporation expenses incurred in defending any action, suit or proceeding in advance of its final disposition upon delivery to the Corporation of an undertaking, by or on behalf of such person, to repay all amounts so advanced unless it should be determined ultimately that such person is entitled to be indemnified under this Article IX or otherwise.

The rights conferred by this Article IX shall not be exclusive of any other right which such persons may have or hereafter acquire under any statute, provision of the certificate of incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise.

ARTICLE X: A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL, or (d) for any transaction from which the director derived an improper personal benefit, it being the intention of this Article X that a director of the Corporation shall, to the fullest extent permitted by the DGCL as the same exists or may hereafter be amended, not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.

ARTICLE XI: The Corporation expressly elects not to be governed by Section 203 of the DGCL.

ARTICLE XII: The Corporation reserves the right to amend or repeal any provision contained in the certificate of incorporation in the manner prescribed by the laws of the State of Delaware. All rights herein conferred are granted subject to this reservation.

*****

EX-3.2

AMENDED AND RESTATED

BYLAWS

OF

DIVERSICARE HEALTHCARE SERVICES, INC.

(the “Corporation”)

1.Stockholders

(a)     Annual Meeting. The annual meeting of stockholders shall be held for the election of directors each year at such place, date and time as shall be designated by the Board of Directors. Any other proper business may be transacted at the annual meeting. If no date for the annual meeting is established or said meeting is not held on the date established as provided above, a special meeting in lieu thereof may be held or there may be action by written consent of the stockholders on matters to be voted on at the annual meeting, and such special meeting or written consent shall have for the purposes of these Amended and Restated Bylaws of the Corporation (these “Bylaws”) or otherwise all the force and effect of an annual meeting.

(b)     Special Meetings. Special meetings of stockholders may be called by the Chief Executive Officer, if one is elected, or, if there is no Chief Executive Officer, a President, or by the Board of Directors, but such special meetings may not be called by any other person or persons. The call for the meeting shall state the place, date, hour and purposes of the meeting. Only the purposes specified in the notice of special meeting shall be considered or dealt with at such special meeting.

(c)    Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present and vote at such meeting, and, in the case of a special meeting, the purpose or purposes of the meeting, shall be given by the Secretary (or other person authorized by these Bylaws or by law) not less than ten (10) nor more than sixty (60) days before the meeting to each stockholder entitled to vote thereat and to each stockholder who, under the Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”) or under these Bylaws is entitled to such notice. If mailed, notice is given when deposited in the mail, postage prepaid, directed to such stockholder at such stockholder’s address as it appears in the records of the Corporation. Without limiting the manner by which notice otherwise may be effectively given to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the Delaware General Corporation Law (the “DGCL”).

If a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place, if any, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken, except that if the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

(d)    Quorum. The holders of a majority in interest of all stock issued, outstanding and entitled to vote at a meeting, present in person or represented by proxy, shall constitute a quorum. Any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question, whether or not a quorum is present. The stockholders present at a duly constituted meeting may continue to transact business until adjournment notwithstanding the withdrawal of enough stockholders to reduce the voting shares below a quorum.

(e)    Voting and Proxies. Except as otherwise provided by the Certificate of Incorporation or by law, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by either written proxy or by a transmission permitted by Section 212(c) of the DGCL, but no proxy shall be voted or acted upon after three years from its date, unless the

proxy provides for a longer period or is irrevocable and coupled with an interest. Proxies shall be filed with the Secretary of the meeting, or of any adjournment thereof. Except as otherwise limited therein, proxies shall entitle the persons authorized thereby to vote at any adjournment of such meeting.

(f)    Action at Meeting. When a quorum is present, any matter before the meeting shall be decided by vote of the holders of a majority of the shares of stock voting on such matter except where a larger vote is required by law, by the Certificate of Incorporation or by these Bylaws. Any election of directors by stockholders shall be determined by a plurality of the votes cast, except where a larger vote is required by law, by the Certificate of Incorporation or by these Bylaws. The Corporation shall not directly or indirectly vote any share of its own stock; provided, however, that the Corporation may vote shares which it holds in a fiduciary capacity to the extent permitted by law.

(g)    Presiding Officer. Meetings of stockholders shall be presided over by the Chairman of the Board, if one is elected, or in his or her absence, the Vice Chairman of the Board, if one is elected, or if neither is elected or in their absence, a President. The Board of Directors shall have the authority to appoint a temporary presiding officer to serve at any meeting of the stockholders if the Chairman of the Board, the Vice Chairman of the Board or a President is unable to do so for any reason.

(h)    Conduct of Meetings. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the presiding officer of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding officer of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the presiding officer of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

(i)    Action without a Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted by law to be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and votedand shall be delivered to the Corporation by delivery to its registered office, by hand or by certified mail, return receipt requested, or to the Corporation's principal place of business or to the officer of the Corporation having custody of the minute book. Every written consent shall bear the date of signature and no written consent shall be effective unless, within sixty (60) days of the earliest dated consent delivered pursuant to these Bylaws, written consents signed by a sufficient numberof stockholders entitled to take action are delivered to the Corporation in the manner set forth in these Bylaws. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

(j)    Stockholder Lists. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Nothing contained in this Section 1(j) shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any

stockholder, for any purpose germane to the meeting, for a period of at least ten (10) days prior to the meeting in the manner provided by law. The list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law.

2.     Directors

(a)    Powers. The business of the Corporation shall be managed by or under the direction of a Board of Directors who may exercise all the powers of the Corporation except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled.

(b)    Number and Qualification. Unless otherwise provided in the Certificate of Incorporation or in these Bylaws, the number of directors which shall constitute the whole board shall be determined from time to time by resolution of the Board of Directors or of a majority of the stockholders. Directors need not be stockholders.

(c)    Vacancies; Reduction of Board. A majority of the directors then in office, although less than a quorum, or a sole remaining Director, may fill vacancies in the Board of Directors occurring for any reason and newly created directorships resulting from any increase in the authorized number of directors. In lieu of filling any vacancy, the Board of Directors may reduce the number of directors.

(d)    Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws, directors shall hold office until their successors are elected and qualified or until their earlier resignation or removal. Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.

(e)    Removal. To the extent permitted by law, a director may be removed from office with or without cause by vote of the holders of a majority of the shares of stock entitled to vote in the election of directors.

(f)    Meetings. Regular meetings of the Board of Directors may be held without notice at such time, date and place as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called, orally or in writing, by the Chief Executive Officer, if one is elected, or, if there is no Chief Executive Officer, the President, or by two or more Directors, designating the time, date and place thereof. Directors may participate in meetings of the Board of Directors by means of conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each other, and participation in a meeting in accordance herewith shall constitute presence in person at such meeting.

(g)    Notice of Meetings. Notice of the time, date and place of all special meetings of the Board of Directors shall be given to each director by the Secretary, or Assistant Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the officer or one of the directors calling the meeting. Notice shall be given to each director in person, by telephone, or by facsimile, electronic mail or other form of electronic communications, sent to such director’s business or home address at least twenty‑four (24) hours in advance of the meeting, or by written notice mailed to such director’s business or home address at least forty‑eight (48) hours in advance of the meeting.

(h)    Quorum. At any meeting of the Board of Directors, the greater of (a) a majority of the directors then in office at the time quorum is to be determined and (b) one-third of the total number of directors fixed pursuant to Section 2(b) of these Bylaws shall constitute a quorum for the transaction of business. Less than a quorum may adjourn any meeting from time to time and the meeting may be held as adjourned without further notice.

(i)    Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, unless otherwise provided in the following sentence, a majority of the directors present may take any action on behalf of the Board of Directors, unless a larger number is required by law, by the Certificate of Incorporation or by these Bylaws. So long as there are two (2) or fewer Directors, any action to be taken by the Board of Directors shall require the approval of all Directors.

(j)    Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the records of the meetings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

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

Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to the following: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval or (ii) adopting, amending or repealing any provision of these Bylaws.

Except as the Board of Directors may otherwise determine, any such committee may make rules for the conduct of its business, but in the absence of such rules its business shall be conducted so far as possible in the same manner as is provided in these Bylaws for the Board of Directors. All members of such committees shall hold their committee offices at the pleasure of the Board of Directors, and the Board may abolish any committee at any time.

3.     Officers

(a)    Enumeration. The officers of the Corporation shall consist of one or more Presidents (who, if there is more than one, shall be referred to as Co-Presidents), a Treasurer, a Secretary, and such other officers, including, without limitation, a Chief Executive Officer and one or more Vice Presidents (including Executive Vice Presidents or Senior Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as the Board of Directors may determine. The Board of Directors may elect from among its members a Chairman of the Board and a Vice Chairman of the Board.

(b)    Election. The Presidents, Treasurer and Secretary shall be elected annually by the Board of Directors at their first meeting following the annual meeting of stockholders. Other officers may be chosen by the Board of Directors at such meeting or at any other meeting.

(c)    Qualification. No officer need be a stockholder or Director. Any two or more offices may be held by the same person. Any officer may be required by the Board of Directors to give bond for the faithful performance of such officer’s duties in such amount and with such sureties as the Board of Directors may determine.

(d)    Tenure. Except as otherwise provided by the Certificate of Incorporation or by these Bylaws, each of the officers of the Corporation shall hold office until the first meeting of the Board of Directors following the next annual meeting of stockholders and until such officer’s successor is elected and qualified or until such officer’s earlier resignation or removal. Any officer may resign by delivering his or her written resignation to the Corporation, and such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.

(e)    Removal. The Board of Directors may remove any officer with or without cause by a vote of a majority of the directors then in office.

(f)    Vacancies. Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors.

(g)    Chairman of the Board and Vice Chairman. Unless otherwise provided by the Board of Directors, the Chairman of the Board of Directors, if one is elected, shall preside, when present, at all meetings of the stockholders and the Board of Directors. The Chairman of the Board shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.

Unless otherwise provided by the Board of Directors, in the absence of the Chairman of the Board, the Vice Chairman of the Board, if one is elected, shall preside, when present, at all meetings of the stockholders and the Board of Directors. The Vice Chairman of the Board shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.

(h)    Chief Executive Officer. The Chief Executive Officer, if one is elected, shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.

(i)    Presidents. The Presidents shall, subject to the direction of the Board of Directors, each have general supervision and control of the Corporation’s business and any action that would typically be taken by a President may be taken by any Co-President. If there is no Chairman of the Board or Vice Chairman of the Board, a President shall preside, when present, at all meetings of stockholders and the Board of Directors. The Presidents shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.

(j)    Vice Presidents and Assistant Vice Presidents. Any Vice President (including any Executive Vice President or Senior Vice President) and any Assistant Vice President shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.

(k)    Treasurer and Assistant Treasurers. The Treasurer shall, subject to the direction of the Board of Directors, have general charge of the financial affairs of the Corporation and shall cause to be kept accurate books of account. The Treasurer shall have custody of all funds, securities, and valuable documents of the Corporation, except as the Board of Directors may otherwise provide. The Treasurer shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.

Any Assistant Treasurer shall have such powers and perform such duties as the Board of Directors may from time to time designate.

(l)    Secretary and Assistant Secretaries. The Secretary shall record the proceedings of all meetings of the stockholders and the Board of Directors (including committees of the Board) in books kept for that purpose. In the absence of the Secretary from any such meeting an Assistant Secretary, or if such person is absent, a temporary secretary chosen at the meeting, shall record the proceedings thereof. The Secretary shall have charge of the stock ledger (which may, however, be kept by any transfer or other agent of the Corporation) and shall have such other duties and powers as may be designated from time to time by the Board of Directors.

Any Assistant Secretary shall have such powers and perform such duties as the Board of Directors may from time to time designate.

(m)    Other Powers and Duties. Subject to these Bylaws, each officer of the Corporation shall have in addition to the duties and powers specifically set forth in these Bylaws, such duties and powers as are customarily incident to such officer’s office, and such duties and powers as may be designated from time to time by the Board of Directors.

4.     Capital Stock

(a)    Certificates of Stock. Each stockholder shall be entitled to a certificate of the capital stock of the Corporation in such form as may from time to time be prescribed by the Board of Directors. Such certificate shall be signed by, or in the name of, the Corporation by any two (2) authorized officers of the Corporation. Such signatures may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed on such certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the time of its issue. Every certificate for shares of stock which are subject to any restriction on transfer and every certificate issued when the Corporation is authorized to issue more

than one class or series of stock shall contain such legend with respect thereto as is required by law. The Corporation shall be permitted to issue fractional shares.

(b)    Transfers. Subject to any restrictions on transfer, shares of stock may be transferred on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate therefor properly endorsed or accompanied by a written assignment or power of attorney properly executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of signature as the Corporation or its transfer agent may reasonably require.

(c)    Record Holders. Except as may otherwise be required by law, by the Certificate of Incorporation or by these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.

It shall be the duty of each stockholder to notify the Corporation of such stockholder’s post office address.

(d)    Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not precede the date on which it is established, and which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, more than ten (10) days after the date on which the record date for stockholder consent without a meeting is established, nor more than sixty (60) days prior to any other action. In such case only stockholders of record on such record date shall be so entitled notwithstanding any transfer of stock on the books of the Corporation after the record date.

If no record date is fixed, (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, (ii) the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in this state, to its principal place of business, or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded, and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

(e)    Lost Certificates. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

5.    Indemnification

(a)    Definitions. For purposes of this Section 5:

(i)    “Corporate Status” describes the status of a person who is serving or has served (A) as a Director of the Corporation, (B) as an Officer of the Corporation, (C) as a Non-Officer Employee of the Corporation, or (D) as a director, partner, trustee, officer, employee or agent of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, foundation, association, organization or other legal entity for which such person is or was serving at the request of the Corporation. For purposes of this Section 5(a)(i), a Director, Officer or Non-Officer Employee of the Corporation who is serving or has served as a director, partner, trustee, officer, employee or

agent of a Subsidiary shall be deemed to be serving at the request of the Corporation. Notwithstanding the foregoing, “Corporate Status” shall not include the status of a person who is serving or has served as a director, officer, employee or agent of a constituent corporation absorbed in a merger or consolidation transaction with the Corporation with respect to such person’s activities prior to said transaction, unless specifically authorized by the Board of Directors or the stockholders of the Corporation;

(ii)    “Director” means any person who serves or has served the Corporation as a director on the Board of Directors of the Corporation;

(iii)    “Disinterested Director” means, with respect to each Proceeding in respect of which indemnification is sought hereunder, a Director of the Corporation who is not and was not a party to such Proceeding;

(iv)    “Expenses” means all reasonable attorneys fees, retainers, court costs, transcript costs, fees of expert witnesses, private investigators and professional advisors (including, without limitation, accountants and investment bankers), travel expenses, duplicating costs, printing and binding costs, costs of preparation of demonstrative evidence and other courtroom presentation aids and devices, costs incurred in connection with document review, organization, imaging and computerization, telephone charges, postage, delivery service fees, and all other disbursements, costs or expenses of the type customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or otherwise participating in, a Proceeding;

(v)    “Liabilities” means judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement;

(vi)    “Non-Officer Employee” means any person who serves or has served as an employee or agent of the Corporation, but who is not or was not a Director or Officer;

(vii)    “Officer” means any person who serves or has served the Corporation as an officer of the Corporation appointed by the Board of Directors of the Corporation;

(viii)    “Proceeding” means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative, arbitrative or investigative; and

(ix)    “Subsidiary” shall mean any corporation, partnership, limited liability company, joint venture, trust or other entity of which the Corporation owns (either directly or through or together with another Subsidiary of the Corporation) either (i) a general partner, managing member or other similar interest or (ii) (A) 50% or more of the voting power of the voting capital equity interests of such corporation, partnership, limited liability company, joint venture or other entity, or (B) 50% or more of the outstanding voting capital stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other entity.

(b)    Indemnification of Directors and Officers. Subject to the operation of Section 5(d) of these Bylaws, each Director and Officer shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), and to the extent authorized in subsections (i) through (iv) of this Section 5(b).

(i)    Actions, Suits and Proceedings Other than By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses and Liabilities that are incurred or paid by such Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein (other than an action by or in the right of the Corporation), which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.

(ii)    Actions, Suits and Proceedings By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses that are incurred by such Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein by or in the right of the Corporation, which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation; provided, however, that no indemnification shall be made under this Section 5(b)(ii) in respect of any claim, issue or matter as to which such Director or Officer shall have been finally adjudged by a court of competent jurisdiction to be liable to the Corporation, unless, and only to the extent that, the Court of Chancery or another court in which such Proceeding was brought shall determine upon application that, despite adjudication of liability, but in view of all the circumstances of the case, such Director or Officer is fairly and reasonably entitled to indemnification for such Expenses that such court deems proper.

(iii)    Survival of Rights. The rights of indemnification provided by this Section 5(b) shall continue as to a Director or Officer after he or she has ceased to be a Director or Officer and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives.

(iv)    Actions by Directors or Officers. Notwithstanding the foregoing, the Corporation shall indemnify any Director or Officer seeking indemnification in connection with a Proceeding initiated by such Director or Officer only if such Proceeding (including any parts of such Proceeding not initiated by such Director or Officer) was authorized in advance by the Board of Directors of the Corporation, unless such Proceeding was brought to enforce such Officer’s or Director’s rights to indemnification or, in the case of Directors, advancement of Expenses under these Bylaws in accordance with the provisions set forth herein.

(c)    Indemnification of Non-Officer Employees. Subject to the operation of Section 5(d) of these Bylaws, each Non-Officer Employee may, in the discretion of the Board of Directors of the Corporation, be indemnified by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against any or all Expenses and Liabilities that are incurred by such Non-Officer Employee or on such Non-Officer Employee’s behalf in connection with any threatened, pending or completed Proceeding, or any claim, issue or matter therein, which such Non-Officer Employee is, or is threatened to be made, a party to or participant in by reason of such Non-Officer Employee’s Corporate Status, if such Non-Officer Employee acted in good faith and in a manner such Non-Officer Employee reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of indemnification provided by this Section 5(c) shall exist as to a Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs, personal representatives, executors and administrators. Notwithstanding the foregoing, the Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized in advance by the Board of Directors of the Corporation.

(d)    Determination. Unless ordered by a court, no indemnification shall be provided pursuant to this Section 5 to a Director, to an Officer or to a Non-Officer Employee unless a determination shall have been made that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal Proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. Such determination shall be made by (i) a majority vote of the Disinterested Directors, even though less than a quorum of the Board of Directors, (ii) a committee comprised of Disinterested Directors, such committee having been designated by a majority vote of the Disinterested Directors (even though less than a quorum), (iii) if there are no such Disinterested Directors, or if a majority of Disinterested Directors so directs, by independent legal counsel in a written opinion, or (iv) by the stockholders of the Corporation.

(e)    Advancement of Expenses to Directors Prior to Final Disposition.

(i)    The Corporation shall advance all Expenses incurred by or on behalf of any Director in connection with any Proceeding in which such Director is involved by reason of such Director’s Corporate Status within thirty (30) days after the receipt by the Corporation of a written statement from such Director requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Director and shall be preceded or accompanied by an undertaking by or on behalf of such Director to repay any Expenses so advanced if it shall ultimately be determined that such Director is not entitled to be indemnified against such Expenses. Notwithstanding the foregoing, the Corporation shall advance all Expenses incurred by or on behalf of any Director seeking advancement of expenses hereunder in connection with a Proceeding initiated by such Director only if such Proceeding (including any parts of such Proceeding not initiated by such Director) was (A) authorized by the Board of Directors of the Corporation, or (B) brought to enforce such Director’s rights to indemnification or advancement of Expenses under these Bylaws.

(ii)    If a claim for advancement of Expenses hereunder by a Director is not paid in full by the Corporation within thirty (30) days after receipt by the Corporation of documentation of Expenses and the required undertaking, such Director may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and if successful in whole or in part, such Director shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such advancement of Expenses under this Section 5 shall not be a defense to an action brought by a Director for recovery of the unpaid amount of an advancement claim and shall not create a presumption that such advancement is not permissible. The burden of proving that a Director is not entitled to an advancement of expenses shall be on the Corporation.

(iii)    In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Director has not met any applicable standard for indemnification set forth in the DGCL.

(f)    Advancement of Expenses to Officers and Non-Officer Employees Prior to Final Disposition.

(i)    The Corporation may, at the discretion of the Board of Directors of the Corporation, advance any or all Expenses incurred by or on behalf of any Officer or any Non-Officer Employee in connection with any Proceeding in which such person is involved by reason of his or her Corporate Status as an Officer or Non-Officer Employee upon the receipt by the Corporation of a statement or statements from such Officer or Non-Officer Employee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Officer or Non-Officer Employee and shall be preceded or accompanied by an undertaking by or on behalf of such person to repay any Expenses so advanced if it shall ultimately be determined that such Officer or Non-Officer Employee is not entitled to be indemnified against such Expenses.

(ii)    In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Officer or Non-Officer Employee has not met any applicable standard for indemnification set forth in the DGCL.

(g)    Contractual Nature of Rights.

(i)    The provisions of this Section 5 shall be deemed to be a contract between the Corporation and each Director and Officer entitled to the benefits hereof at any time while this Section 5 is in effect, in consideration of such person’s past or current and any future performance of services for the Corporation. Neither amendment, repeal or modification of any provision of this Section 5 nor the adoption of any provision of the Certificate of

Incorporation inconsistent with this Section 5 shall eliminate or reduce any right conferred by this Section 5 in respect of any act or omission occurring, or any cause of action or claim that accrues or arises or any state of facts existing, at the time of or before such amendment, repeal, modification or adoption of an inconsistent provision (even in the case of a proceeding based on such a state of facts that is commenced after such time), and all rights to indemnification and advancement of Expenses granted herein or arising out of any act or omission shall vest at the time of the act or omission in question, regardless of when or if any proceeding with respect to such act or omission is commenced. The rights to indemnification and to advancement of expenses provided by, or granted pursuant to, this Section 5 shall continue notwithstanding that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such person.

(ii)    If a claim for indemnification hereunder by a Director or Officer is not paid in full by the Corporation within sixty (60) days after receipt by the Corporation of a written claim for indemnification, such Director or Officer may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such Director or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such indemnification under this Section 5 shall not be a defense to an action brought by a Director or Officer for recovery of the unpaid amount of an indemnification claim and shall not create a presumption that such indemnification is not permissible. The burden of proving that a Director or Officer is not entitled to indemnification shall be on the Corporation.

(iii)    In any suit brought by a Director or Officer to enforce a right to indemnification hereunder, it shall be a defense that such Director or Officer has not met any applicable standard for indemnification set forth in the DGCL.

(h)    Non-Exclusivity of Rights. The rights to indemnification and advancement of Expenses set forth in this Section 5 shall not be exclusive of any other right which any Director, Officer, or Non-Officer Employee may have or hereafter acquire under any statute, provision of the Certificate or these Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise.

(i)    Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer or Non-Officer Employee against any liability of any character asserted against or incurred by the Corporation or any such Director, Officer or Non-Officer Employee, or arising out of any such person’s Corporate Status, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL or the provisions of this Section 5.

(j)    Other Indemnification. The Corporation’s obligation, if any, to indemnify or provide advancement of Expenses to any person under this Section 5 as a result of such person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount such person may collect as indemnification or advancement of Expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or enterprise (the “Primary Indemnitor”). Any indemnification or advancement of Expenses under this Section 5 owed by the Corporation as a result of a person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall only be in excess of, and shall be secondary to, the indemnification or advancement of Expenses available from the applicable Primary Indemnitor(s) and any applicable insurance policies.

6.     Miscellaneous Provisions

(a)    Fiscal Year. Except as otherwise determined by the Board of Directors, the fiscal year of the Corporation shall end on December 31 of each year.

(b)    Seal. The Board of Directors shall have power to adopt and alter the seal of the Corporation.

(c)    Execution of Instruments. Subject to any limitations which may be set forth in a resolution of the Board of Directors, all deeds, leases, transfers, contracts, bonds, notes and other obligations to be entered into by the Corporation in the ordinary course of its business without director action may be executed on behalf of the Corporation by, a President, or by any other officer, employee or agent of the Corporation as the Board of Directors may authorize.

(d)    Voting of Securities. Unless the Board of Directors otherwise provides, a President, any Vice President or the Treasurer may waive notice of and act on behalf of this Corporation, or appoint another person or persons to act as proxy or attorney in fact for this Corporation with or without discretionary power and/or power of substitution, at any meeting of stockholders or shareholders of any other corporation or organization, any of whose securities are held by this Corporation.

(e)    Resident Agent. The Board of Directors may appoint a resident agent upon whom legal process may be served in any action or proceeding against the Corporation.

(f)    Corporate Records. The original or attested copies of the Certificate of Incorporation, Bylaws and records of all meetings of the incorporators, stockholders and the Board of Directors and the stock and transfer records, which shall contain the names of all stockholders, their record addresses and the amount of stock held by each, shall be kept at the principal office of the Corporation, at the office of its counsel, or at an office of its transfer agent.

(g)    Certificate of Incorporation. All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and in effect from time to time.

(h)    Amendments. These Bylaws may be altered, amended or repealed, and new Bylaws may be adopted, by the stockholders or by the Board of Directors; provided, that (a) the Board of Directors may not alter, amend or repeal any provision of these Bylaws which by law, by the Certificate of Incorporation or by these Bylaws requires action by the stockholders and (b) any alteration, amendment or repeal of these Bylaws by the Board of Directors and any new Bylaw adopted by the Board of Directors may be altered, amended or repealed by the stockholders.

(i)    Waiver of Notice. Whenever notice is required to be given under any provision of these Bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any meeting needs to be specified in any written waiver or any waiver by electronic transmission.

Adopted November 19, 2021

EX-10.1

TERMINATION AND RELEASE AGREEMENT

This TERMINATION AND RELEASE AGREEMENT (this “Termination and Release Agreement”) is made and entered into on November 19, 2021, by and between Diversicare Healthcare Services, Inc., a Delaware corporation (the “Company”), and James R. McKnight, Jr. (“Employee”).

WHEREAS, the Company and Employee previously entered into an Amended and Restated Employment Agreement, effective as of July 6, 2018 (the “McKnight Agreement”);

WHEREAS, pursuant to the Action by Written Consent of the Company’s Board of Directors as of November 19, 2021, the McKnight Agreement has been terminated and the severance benefits due under Section XI of the McKnight Agreement will be accelerated and paid to Employee in accordance with Section 409A of the Internal Revenue Code and with Section 1.409A-3(j)(4)(ix)(B) of the Treasury Regulations; and

WHEREAS, Employee’s execution and non-revocation of this Release is a condition precedent to Employee’s receipt of the severance benefits due under Sections XI of the McKnight Agreement.

NOW THEREFORE, in consideration of the foregoing and the mutual promises contained herein, the parties agree as follows:

In consideration of the payments (the “Severance Benefits”) described in Section XI of the McKnight Agreement and the mutual promises contained herein, it is agreed by and between Employee and the Company as follows:

1.Termination Date. The McKnight Agreement has been terminated as of November 19, 2021, (the “Termination Date”).

2.Full Discharge of Obligations. Employee understands and agrees that Employee is not entitled to, and will not receive, any payments or benefits of any kind from the Company pursuant to the McKnight Agreement other than the Severance Benefits described in Section XI of the McKnight Agreement, as summarized on Exhibit A to this Termination and Release Agreement. Employee understands and agrees that the Severance Benefits represent, in part, consideration for signing this Termination and Release Agreement and are not an amount to which Employee was already entitled. Employee understands and agrees that he will not receive the Severance Benefits unless Employee executes this Termination and Release Agreement and does not revoke this Termination and Release Agreement within the time period permitted in Section 12, and Employee understands and agrees that Employee will not receive the Severance Benefits if he breaches this Termination and Release Agreement. Employee also acknowledges and represents that he has received all payments and benefits that Employee is entitled to receive (as of the date hereof) by virtue of providing services to the Company, other than any salary earned through the Termination Date, which will be paid pursuant to the Company’s normal payroll process.

3.Other Duties after the Period of Employment. Employee and the Company understand and agree that Employee will continue to be subject to the provisions of Section IX.A. and Section IX.B. of the McKnight Agreement and that the provisions of Section X of the McKnight Agreement will continue, but both parties agree that the provisions of Section IX.C. of the McKnight Agreement shall terminate as of the Termination Date.

4.Consulting Services. Employee and the Company both understand and agree that the provision in Section VIII.E with respect to consulting services shall remain in effect and shall apply for the six months following Employee’s termination of his employment as an “at will” employee as provided in Section 5.

5.Continuation as an “At Will” Employee. Employee understands and agrees that Employee may continue as an “at will” employee of the Company and will be entitled to compensation for services performed for the Company as an “at will” employee following the Termination Date, but that the rights and obligations of the McKnight Agreement, except as specifically described above, shall terminate as of the Termination Date.

6.Release.

(a) In consideration of the Company’s payment of the Severance Benefits, and for other good and valuable consideration, which Employee expressly agrees is adequate consideration to bind Employee’s releases in this Termination and Release Agreement, Employee, for himself, his agents, attorneys, heirs, administrators, executors, assignors, assignees, and anyone acting or claiming to act on him or their joint or several behalf, hereby waives, releases, and forever discharges the Company, its subsidiaries, business units, affiliates, parent companies, predecessors, and successors, and any respective officers, directors, employees, legal counsel and agents (hereinafter referred to collectively as the “Released Parties”) from any and all claims, causes of action, demands, damages, costs, expenses, liabilities, grievances, or other losses, whether known or unknown, that in anyway arise from, grow out of, or are related to Employee’s employment with the Company, or events or circumstances occurring prior to the date this Agreement is executed. Employee acknowledges that this General Release includes, but is not limited to, all common law causes of action of whatever nature, all claims arising under federal, state or local law prohibiting employment discrimination and all claims growing out of any legal restrictions on the Company’s right to terminate its employees, including any breach of contract claims. This General Release also specifically encompasses all claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981(a), the Employment Retirement Income Security Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the National Labor Relations Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, and the Equal Pay Act, the Tennessee Human Rights Act, the Tennessee Disability Act, the Tennessee Public Protection Act, as well as all federal and state executive orders including Executive Order 11246 and all claims under other applicable state and local codes, laws, regulations or ordinances concerning Employee’s employment. This General Release further specifically encompasses all claims related to compensation, benefits, incentive packages, or any other form of compensation Employee may or may not have received during his employment. In compliance with the Older Workers Benefit Protection Act, Employee acknowledges that Employee is also specifically waiving any claims under the federal Age Discrimination in Employment Act, as amended. Notwithstanding the foregoing, nothing herein shall constitute a release by Employee of a claim to the extent such claim is not waivable as a matter of applicable law.

(b) Employee hereby covenants and agrees that Employee has not, and will not to file, commence or initiate any suits, grievances, demands, or causes of action against the Released Parties based upon or relating to any of the claims released and forever discharged pursuant to this Agreement. In accordance with 29 C.F.R. § 1625.23(b), this covenant not to sue is not intended to preclude Employee from bringing a lawsuit to challenge the validity of the release language contained in this Agreement. If Employee breaches this covenant not to sue, Employee hereby agrees to pay all of the reasonable costs and attorneys’ fees actually incurred by the Released Parties in defending against such claims, demands, or causes of action, together with such and further damages as may result, directly or indirectly, from that breach. Moreover, Employee agrees that he will not persuade or instruct any person to file a suit, claim, or complaint with any state or federal court or administrative agency against the Released Parties. The parties agree that this Agreement will not prevent Employee from filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), or its equivalent state or local agencies, or otherwise participating in an administrative investigation. However, to the fullest extent permitted by law, Employee agrees to relinquish and forgo all legal relief, equitable relief, statutory relief, reinstatement, back pay, front pay, and any other damages, benefits, remedies, and relief to which Employee may be entitled as a result of any claim, charge, or complaint against the Released Parties and agrees to forgo and relinquish reinstatement, all back pay, front pay, and other damages, benefits, remedies, and relief that he could receive from claims, actions, or suits filed or charges instituted or pursued by any agency or commission based upon or arising out of the matters that are released and waived by this Agreement. The parties intend that this paragraph and the release of claims herein be construed as broadly as lawfully possible.

(c) Notwithstanding the other paragraphs in this Section 6, the release contained in this Section 6 shall not extend to, and in no event shall the claims which are being released hereunder include, (i) any rights to reimbursement or indemnification Employee holds in the capacity as an officer or a director of the Company or any parent or subsidiary of the Company under the governing documents of such entity, any agreement with such entity or any valid insurance policy, or (ii) Employee’s rights or obligations under any equity-based award agreement that survives termination of employment.

7. Non-Admission of Liability. This Termination and Release Agreement is not, and shall not in any way be construed as, an admission by the Company that it has acted wrongfully with respect to Employee or any other person, or that Employee has any rights whatsoever against the Company except as set forth herein,

and the Company specifically disclaims any liability to or wrongful acts against Employee or any other person, on the part of itself, its employees or its agents.

8. No Modification. This Termination and Release Agreement may not be amended, modified or changed (in whole or in part), except by a formal, definitive written agreement expressly referring to this Termination and Release Agreement, which agreement is executed by both of the parties hereto.

9. Breach of Agreement. If either party brings a claim for breach of the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and expenses incurred in prosecuting or defending such an action. This Agreement is to be governed by the laws of the State of Tennessee. The parties agree that venue and jurisdiction for any legal action arising out of or in connection with this Agreement will be exclusively with the state or federal courts sitting in Davidson County, Tennessee.

10. Confidentiality. Employee agrees that this Termination and Release Agreement is confidential and agrees not to disclose any information regarding the existence of this Termination and Release Agreement, the circumstances surrounding it, its terms, conditions or negotiation, including the dollar amounts referred to herein, except to immediate family and any tax, legal or other counsel that Employee has consulted regarding the meaning or effect hereof or as required by law, and Employee will instruct each of the foregoing not to disclose the same to anyone.

11. Entire Agreement; Severability of Terms. This Termination and Release Agreement contains the complete, entire understanding of the parties hereto concerning the subject matter hereof. In executing this Termination and Release Agreement, neither party relies on any term, condition, promise or representation other than those expressed in this Termination and Release Agreement. This Termination and Release Agreement supersedes all prior and contemporaneous oral and written agreements and discussions with respect to the subject matter hereof. If any provision of this Termination and Release Agreement is determined to be invalid or otherwise unenforceable, then that invalidity or unenforceability shall not affect any other provision of this Termination and Release Agreement, which shall continue and remain in full force and effect.

12. Warranties/Representations. Employee hereby warrants and represents that:

A. He has carefully read and fully understands the comprehensive terms and conditions of this Termination and Release Agreement and the releases set forth herein;

B.     He is executing this Termination and Release Agreement knowingly and voluntarily, without any duress, coercion or undue influence by the Company, its representatives, or any other person;

C. He has been given ample opportunity to consult with legal counsel of his own choice and at his own expense before executing this Termination and Release Agreement;

D. He has pending no claim, complaint, grievance or any document with any federal or state agency or any court seeking money damages or relief against any of the Released Parties;

E. The Severance Benefits recited above constitute good and valuable consideration for this release;

F. He is fully satisfied with the terms and conditions of this Termination and Release Agreement including, without limitation, the consideration paid to him by the Company;

G. He is not waiving rights or claims that may arise after the date this Termination and Release Agreement is executed;

H. Except as specifically provided herein, Employee has been paid all compensation owed to Employee by the Company pursuant to the McKnight Agreement;

I. He has the right to consider the terms of this Termination and Release Agreement for a full 21 days and he hereby waives any and all rights to any further review period; and

J. He has the right to revoke this Termination and Release Agreement within seven (7) calendar days after signing it (the “Revocation Period”) by providing prior to the expiration of the Revocation Period, written notice of revocation by hand delivery or electronic mail to Kerry D. Massey, Chief Financial Officer Diversicare Health Services, 1621 Galleria Boulevard, Brentwood, TN 37027, email: KMassey@DVCR.com. If he revokes this Termination and Release Agreement during the Revocation Period, the Termination and Release Agreement and all obligations hereunder become null and void in their entirety.

13. Compliance with the Older Worker Benefit Protection Act. Employee warrants and represents that he has been given 21 days to review this Termination and Release Agreement with legal counsel and that he has had fair and full opportunity to consider its terms and enters into this Agreement willingly and knowingly and knows he has the right to review this Agreement for 21 days and to revoke it within seven days after signing it. Employee has the right to sign this Agreement sooner than the expiration of the 21-day consideration period, and if he chooses to do so, he understands he is waiving his right to the full 21-day consideration period.

[Signature pages follow.]

IN WITNESS WHEREOF, the undersigned has executed this Termination and Release Agreement as of the date first written above.

COMPANY:

Diversicare Healthcare Services, Inc.,

a Delaware corporation

By: /s/ Kerry D. Massey

Name: Kerry D. Massey

Title: Chief Financial Officer

Date Executed: November 19, 2021

Date Delivered: November 19, 2021

EMPLOYEE:

By: /s/ James R. McKnight, Jr.

Name: James R. McKnight, Jr.

Date Executed: November 19, 2021

Exhibit A

Severance Benefits

The Employee and the Company agree that the Severance Benefits described in Section XI of the McKnight Agreement are as follows:

Base Salary Component$1,000,000

Bonus Component$702,000

2021 Bonus$441,096

Benefits Component$86,600

Total$2,229,696

EX-10.2

TERMINATION AND RELEASE AGREEMENT

This TERMINATION AND RELEASE AGREEMENT (this “Termination and Release Agreement”) is made and entered into on November 19, 2021, by and between Diversicare Healthcare Services, Inc., a Delaware corporation (the “Company”), and Kerry D. Massey (“Employee”).

WHEREAS, the Company and Employee previously entered into an Employment Agreement, effective as of September 4, 2018 (the “Massey Agreement”);

WHEREAS, pursuant to the Action by Written Consent of the Company’s Board of Directors as of November 19, 2021, the Massey Agreement has been terminated and the severance benefits due under Section XI of the Massey Agreement (including a lump sum cash equivalent payment to be paid with regard to the COBRA continuation of coverage benefit thereunder) will be accelerated and paid to the Employee in accordance with Section 409A of the Internal Revenue Code and with Section 1.409A-3(j)(4)(ix)(B) of the Treasury Regulations; and

WHEREAS, Employee’s execution and non-revocation of this Release is a condition precedent to Employee’s receipt of the severance benefits due under Section XI of the Massey Agreement.

NOW THEREFORE, in consideration of the foregoing and the mutual promises contained herein, the parties agree as follows:

In consideration of the payments (the “Severance Benefits”) described in Section XI of the Massey Agreement, which includes a lump sum cash equivalent to be paid with regard to the COBRA continuation of coverage benefit thereunder and the mutual promises contained herein, it is agreed by and between Employee and the Company as follows:

1.Termination Date. The Massey Agreement has been terminated as of November 19, 2021 (the “Termination Date”).

2.Full Discharge of Obligations. Employee understands and agrees that Employee is not entitled to, and will not receive, any payments or benefits of any kind from the Company pursuant to the Massey Agreement other than the Severance Benefits described in Section XI of the Massey Agreement, as summarized on Exhibit A to this Termination and Release Agreement. Employee understands and agrees that the Severance Benefits represent, in part, consideration for signing this Termination and Release Agreement and are not an amount to which Employee was already entitled. Employee understands and agrees that he will not receive the Severance Benefits unless Employee executes this Termination and Release Agreement and does not revoke this Termination and Release Agreement within the time period permitted in Section 11, and Employee understands and agrees that Employee will not receive the Severance Benefits if he breaches this Termination and Release Agreement. Employee also acknowledges and represents that he has received all payments and benefits that Employee is entitled to receive (as of the date hereof) by virtue of providing services to the Company, other than any salary earned through the Termination Date, which will be paid pursuant to the Company’s normal payroll process.

3.Other Duties after the Period of Employment. Employee and the Company understand and agree that Employee will continue to be subject to the provisions of Section IX.A. and Section IX.B. of the Massey Agreement and that the provisions of Section X of the Massey Agreement will continue, but both parties agree that the provisions of Section IX.C. of the Massey Agreement shall terminate as of the Termination Date.

4.Continuation as an “At Will” Employee. Employee understands and agrees that Employee may continue as an “at will” employee of the Company and will be entitled to compensation for services performed for the Company as an “at will” employee following the Termination Date, but that the rights and obligations of the Massey Agreement, except as specifically described above, shall terminate as of the Termination Date.

5.Release.

(a) In consideration of the Company’s payment of the Severance Benefits, and for other good and valuable consideration, which Employee expressly agrees is adequate consideration to bind Employee’s releases in this Termination and Release Agreement, Employee, for himself, his agents, attorneys, heirs, administrators, executors, assignors, assignees, and anyone acting or claiming to act on him or their joint or several behalf, hereby waives, releases, and forever discharges the Company, its subsidiaries, business units, affiliates, parent companies, predecessors, and successors, and any respective officers, directors, employees, legal counsel and agents (hereinafter referred to collectively as the “Released Parties”) from any and all claims, causes of action, demands, damages, costs, expenses, liabilities, grievances, or other losses, whether known or unknown, that in anyway arise from, grow out of, or are related to Employee’s employment with the Company, or events or circumstances occurring prior to the date this Agreement is executed. Employee acknowledges that this General Release includes, but is not limited to, all common law causes of action of whatever nature, all claims arising under federal, state or local law prohibiting employment discrimination and all claims growing out of any legal restrictions on the Company’s right to terminate its employees, including any breach of contract claims. This General Release also specifically encompasses all claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981(a), the Employment Retirement Income Security Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the National Labor Relations Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, and the Equal Pay Act, the Tennessee Human Rights Act, the Tennessee Disability Act, the Tennessee Public Protection Act, as well as all federal and state executive orders including Executive Order 11246 and all claims under other applicable state and local codes, laws, regulations or ordinances concerning Employee’s employment. This General Release further specifically encompasses all claims related to compensation, benefits, incentive packages, or any other form of compensation Employee may or may not have received during his employment. In compliance with the Older Workers Benefit Protection Act, Employee acknowledges that Employee is also specifically waiving any claims under the federal Age Discrimination in Employment Act, as amended. Notwithstanding the foregoing, nothing herein shall constitute a release by Employee of a claim to the extent such claim is not waivable as a matter of applicable law.

(b) Employee hereby covenants and agrees that Employee has not, and will not to file, commence or initiate any suits, grievances, demands, or causes of action against the Released Parties based upon or relating to any of the claims released and forever discharged pursuant to this Agreement. In accordance with 29 C.F.R. § 1625.23(b), this covenant not to sue is not intended to preclude Employee from bringing a lawsuit to challenge the validity of the release language contained in this Agreement. If Employee breaches this covenant not to sue, Employee hereby agrees to pay all of the reasonable costs and attorneys’ fees actually incurred by the Released Parties in defending against such claims, demands, or causes of action, together with such and further damages as may result, directly or indirectly, from that breach. Moreover, Employee agrees that he will not persuade or instruct any person to file a suit, claim, or complaint with any state or federal court or administrative agency against the Released Parties. The parties agree that this Agreement will not prevent Employee from filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), or its equivalent state or local agencies, or otherwise participating in an administrative investigation. However, to the fullest extent permitted by law, Employee agrees to relinquish and forgo all legal relief, equitable relief, statutory relief, reinstatement, back pay, front pay, and any other damages, benefits, remedies, and relief to which Employee may be entitled as a result of any claim, charge, or complaint against the Released Parties and agrees to forgo and relinquish reinstatement, all back pay, front pay, and other damages, benefits, remedies, and relief that he could receive from claims, actions, or suits filed or charges instituted or pursued by any agency or commission based upon or arising out of the matters that are released and waived by this Agreement. The parties intend that this paragraph and the release of claims herein be construed as broadly as lawfully possible.

(c) Notwithstanding the other paragraphs in this Section 5, the release contained in this Section 5 shall not extend to, and in no event shall the claims which are being released hereunder include, (i) any rights to reimbursement or indemnification Employee holds in the capacity as an officer or a director of the Company or any parent or subsidiary of the Company under the governing documents of such entity, any agreement with such entity or any valid insurance policy, or (ii) Employee’s rights or obligations under any equity-based award agreement that survives termination of employment.

6. Non-Admission of Liability. This Termination and Release Agreement is not, and shall not in any way be construed as, an admission by the Company that it has acted wrongfully with respect to Employee or any other person, or that Employee has any rights whatsoever against the Company except as set forth herein, and the

Company specifically disclaims any liability to or wrongful acts against Employee or any other person, on the part of itself, its employees or its agents.

7. No Modification. This Termination and Release Agreement may not be amended, modified or changed (in whole or in part), except by a formal, definitive written agreement expressly referring to this Termination and Release Agreement, which agreement is executed by both of the parties hereto.

8. Breach of Agreement. If either party brings a claim for breach of the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and expenses incurred in prosecuting or defending such an action. This Agreement is to be governed by the laws of the State of Tennessee. The parties agree that venue and jurisdiction for any legal action arising out of or in connection with this Agreement will be exclusively with the state or federal courts sitting in Davidson County, Tennessee.

9. Confidentiality. Employee agrees that this Termination and Release Agreement is confidential and agrees not to disclose any information regarding the existence of this Termination and Release Agreement, the circumstances surrounding it, its terms, conditions or negotiation, including the dollar amounts referred to herein, except to immediate family and any tax, legal or other counsel that Employee has consulted regarding the meaning or effect hereof or as required by law, and Employee will instruct each of the foregoing not to disclose the same to anyone.

10. Entire Agreement; Severability of Terms. This Termination and Release Agreement contains the complete, entire understanding of the parties hereto concerning the subject matter hereof. In executing this Termination and Release Agreement, neither party relies on any term, condition, promise or representation other than those expressed in this Termination and Release Agreement. This Termination and Release Agreement supersedes all prior and contemporaneous oral and written agreements and discussions with respect to the subject matter hereof. If any provision of this Termination and Release Agreement is determined to be invalid or otherwise unenforceable, then that invalidity or unenforceability shall not affect any other provision of this Termination and Release Agreement, which shall continue and remain in full force and effect.

11. Warranties/Representations. Employee hereby warrants and represents that:

A. He has carefully read and fully understands the comprehensive terms and conditions of this Termination and Release Agreement and the releases set forth herein;

B. He is executing this Termination and Release Agreement knowingly and voluntarily, without any duress, coercion or undue influence by the Company, its representatives, or any other person;

C. He has been given ample opportunity to consult with legal counsel of his own choice and at his own expense before executing this Termination and Release Agreement;

D. He has pending no claim, complaint, grievance or any document with any federal or state agency or any court seeking money damages or relief against any of the Released Parties;

E. The Severance Benefits recited above constitute good and valuable consideration for this release;

F.     He is fully satisfied with the terms and conditions of this Termination and Release Agreement including, without limitation, the consideration paid to him by the Company;

G. He is not waiving rights or claims that may arise after the date this Termination and Release Agreement is executed;

H. Except as specifically provided herein, Employee has been paid all compensation owed to Employee by the Company pursuant to the Massey Agreement;

I. He has the right to consider the terms of this Termination and Release Agreement for a full 21 days and he hereby waives any and all rights to any further review period; and

J. He has the right to revoke this Termination and Release Agreement within seven (7) calendar days after signing it (the “Revocation Period”) by providing prior to the expiration of the Revocation Period, written notice of revocation by hand delivery or electronic mail to James R. McKnight, Jr., Chief Executive Officer, Diversicare Health Services, 1621 Galleria Boulevard, Brentwood, TN 37027, email: jay.mcknight@dvcr.com. If he revokes this Termination and Release Agreement during the Revocation Period, the Termination and Release Agreement and all obligations hereunder become null and void in their entirety.

1.Compliance with the Older Worker Benefit Protection Act. Employee warrants and represents that he has been given 21 days to review this Termination and Release Agreement with legal counsel and that he has had fair and full opportunity to consider its terms and enters into this Agreement willingly and knowingly and knows he has the right to review this Agreement for 21 days and to revoke it within seven days after signing it. Employee has the right to sign this Agreement sooner than the expiration of the 21-day consideration period, and if he chooses to do so, he understands he is waiving his right to the full 21-day consideration period.

[Signature pages follow.]

IN WITNESS WHEREOF, the undersigned has executed this Termination and Release Agreement as of the date first written above.

COMPANY:

Diversicare Healthcare Services, Inc.,

a Delaware corporation

By: /s/ James R. McKnight, Jr.

Name: James R. McKnight, Jr.

Title: President and Chief Executive Officer

Date Executed: November 19, 2021

Date Delivered: November 19, 2021

EMPLOYEE:

By: /s/ Kerry D. Massey

Name: Kerry D. Massey

Date Executed: November 19, 2021

Exhibit A

Severance Benefits

The Employee and the Company agree that the Severance Benefits described in Section XI of the Massey Agreement are as follows:

Base Salary Component$ 300,000

2021 Bonus$264,657

Benefits Component$26,000

Total$ 590,657

EX-10.3

TERMINATION AND RELEASE AGREEMENT

This TERMINATION AND RELEASE AGREEMENT (this “Termination and Release Agreement”) is made and entered into on November 19, 2021, by and between Diversicare Healthcare Services, Inc., a Delaware corporation (the “Company”), and Rebecca B. Bodie (“Employee”).

WHEREAS, the Company and Employee previously entered into an Employment Agreement, effective as of March 2, 2020 (the “Bodie Agreement”);

WHEREAS, pursuant to the Action by Written Consent of the Company’s Board of Directors as of November 19, 2021, the Bodie Agreement has been terminated, which serves to accelerate payment of the severance benefits due under Section VIII.A. of the Bodie Agreement in accordance with Section 409A of the Internal Revenue Code and with Section 1.409A-3(j)(4)(ix)(B) of the Treasury Regulations; and

WHEREAS, Employee’s execution and non-revocation of this Release is a condition precedent to Employee’s receipt of the severance benefits due under Section VIII.A. of the Bodie Agreement.

NOW THEREFORE, in consideration of the foregoing and the mutual promises contained herein, the parties agree as follows:

In consideration of the payments (the “Severance Benefits”) described in Section VIII.A. of the Bodie Agreement, and the mutual promises contained herein, it is agreed by and between Employee and the Company as follows:

1.Termination Date. The Bodie Agreement has been terminated as of November 19, 2021 (the “Termination Date”).

2.Full Discharge of Obligations. Employee understands and agrees that Employee is not entitled to, and will not receive, any payments or benefits of any kind from the Company pursuant to the Bodie Agreement other than the Severance Benefits described in Section VIII.A. of the Bodie Agreement, as summarized on Exhibit A to this Termination and Release Agreement. Employee understands and agrees that the Severance Benefits represent, in part, consideration for signing this Termination and Release Agreement and are not an amount to which Employee was already entitled. Employee understands and agrees that she will not receive the Severance Benefits unless Employee executes this Termination and Release Agreement and does not revoke this Termination and Release Agreement within the time period permitted in Section 11, and Employee understands and agrees that Employee will not receive the Severance Benefits if she breaches this Termination and Release Agreement. Employee also acknowledges and represents that she has received all payments and benefits that Employee is entitled to receive (as of the date hereof) by virtue of providing services to the Company, other than any salary earned through the Termination Date, which will be paid pursuant to the Company’s normal payroll process.

3.Other Duties after the Period of Employment. Employee and the Company understand and agree that Employee will continue to be subject to the provisions of Section IX.A., Section IX.B., and Section IX.C, of the Bodie Agreement and that the provisions of Section X of the Bodie Agreement will continue, but both parties agree that the provisions of Section IX.D. of the Bodie Agreement shall terminate as of the Termination Date.

4.Continuation as an “At Will” Employee. Employee understands and agrees that Employee may continue as an “at will” employee of the Company and will be entitled to compensation for services performed for the Company as an “at will” employee following the Termination Date, but that the rights and obligations of the Bodie Agreement, except as specifically described above, shall terminate as of the Termination Date.

5.Release.

(a) In consideration of the Company’s payment of the Severance Benefits, and for other good and valuable consideration, which Employee expressly agrees is adequate consideration to bind Employee’s releases in this Termination and Release Agreement, Employee, for herself, her agents, attorneys, heirs, administrators, executors, assignors, assignees, and anyone acting or claiming to act on her or their joint or several behalf, hereby

waives, releases, and forever discharges the Company, its subsidiaries, business units, affiliates, parent companies, predecessors, and successors, and any respective officers, directors, employees, legal counsel and agents (hereinafter referred to collectively as the “Released Parties”) from any and all claims, causes of action, demands, damages, costs, expenses, liabilities, grievances, or other losses, whether known or unknown, that in anyway arise from, grow out of, or are related to Employee’s employment with the Company, or events or circumstances occurring prior to the date this Agreement is executed. Employee acknowledges that this General Release includes, but is not limited to, all common law causes of action of whatever nature, all claims arising under federal, state or local law prohibiting employment discrimination and all claims growing out of any legal restrictions on the Company’s right to terminate its employees, including any breach of contract claims. This General Release also specifically encompasses all claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981(a), the Employment Retirement Income Security Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the National Labor Relations Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, and the Equal Pay Act, the Tennessee Human Rights Act, the Tennessee Disability Act, the Tennessee Public Protection Act, as well as all federal and state executive orders including Executive Order 11246 and all claims under other applicable state and local codes, laws, regulations or ordinances concerning Employee’s employment. This General Release further specifically encompasses all claims related to compensation, benefits, incentive packages, or any other form of compensation Employee may or may not have received during her employment. In compliance with the Older Workers Benefit Protection Act, Employee acknowledges that Employee is also specifically waiving any claims under the federal Age Discrimination in Employment Act, as amended. Notwithstanding the foregoing, nothing herein shall constitute a release by Employee of a claim to the extent such claim is not waivable as a matter of applicable law.

(b) Employee hereby covenants and agrees that Employee has not, and will not to file, commence or initiate any suits, grievances, demands, or causes of action against the Released Parties based upon or relating to any of the claims released and forever discharged pursuant to this Agreement. In accordance with 29 C.F.R. § 1625.23(b), this covenant not to sue is not intended to preclude Employee from bringing a lawsuit to challenge the validity of the release language contained in this Agreement. If Employee breaches this covenant not to sue, Employee hereby agrees to pay all of the reasonable costs and attorneys’ fees actually incurred by the Released Parties in defending against such claims, demands, or causes of action, together with such and further damages as may result, directly or indirectly, from that breach. Moreover, Employee agrees that she will not persuade or instruct any person to file a suit, claim, or complaint with any state or federal court or administrative agency against the Released Parties. The parties agree that this Agreement will not prevent Employee from filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), or its equivalent state or local agencies, or otherwise participating in an administrative investigation. However, to the fullest extent permitted by law, Employee agrees to relinquish and forgo all legal relief, equitable relief, statutory relief, reinstatement, back pay, front pay, and any other damages, benefits, remedies, and relief to which Employee may be entitled as a result of any claim, charge, or complaint against the Released Parties and agrees to forgo and relinquish reinstatement, all back pay, front pay, and other damages, benefits, remedies, and relief that she could receive from claims, actions, or suits filed or charges instituted or pursued by any agency or commission based upon or arising out of the matters that are released and waived by this Agreement. The parties intend that this paragraph and the release of claims herein be construed as broadly as lawfully possible.

(c) Notwithstanding the other paragraphs in this Section 5, the release contained in this Section 5 shall not extend to, and in no event shall the claims which are being released hereunder include, (i) any rights to reimbursement or indemnification Employee holds in the capacity as an officer or a director of the Company or any parent or subsidiary of the Company under the governing documents of such entity, any agreement with such entity or any valid insurance policy, or (ii) Employee’s rights or obligations under any equity-based award agreement that survives termination of employment.

6. Non-Admission of Liability. This Termination and Release Agreement is not, and shall not in any way be construed as, an admission by the Company that it has acted wrongfully with respect to Employee or any other person, or that Employee has any rights whatsoever against the Company except as set forth herein, and the Company specifically disclaims any liability to or wrongful acts against Employee or any other person, on the part of itself, its employees or its agents.

7. No Modification. This Termination and Release Agreement may not be amended, modified or changed (in whole or in part), except by a formal, definitive written agreement expressly referring to this Termination and Release Agreement, which agreement is executed by both of the parties hereto.

8. Breach of Agreement. If either party brings a claim for breach of the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and expenses incurred in prosecuting or defending such an action. This Agreement is to be governed by the laws of the State of Tennessee. The parties agree that venue and jurisdiction for any legal action arising out of or in connection with this Agreement will be exclusively with the state or federal courts sitting in Davidson County, Tennessee.

9. Confidentiality. Employee agrees that this Termination and Release Agreement is confidential and agrees not to disclose any information regarding the existence of this Termination and Release Agreement, the circumstances surrounding it, its terms, conditions or negotiation, including the dollar amounts referred to herein, except to immediate family and any tax, legal or other counsel that Employee has consulted regarding the meaning or effect hereof or as required by law, and Employee will instruct each of the foregoing not to disclose the same to anyone.

10. Entire Agreement; Severability of Terms. This Termination and Release Agreement contains the complete, entire understanding of the parties hereto concerning the subject matter hereof. In executing this Termination and Release Agreement, neither party relies on any term, condition, promise or representation other than those expressed in this Termination and Release Agreement. This Termination and Release Agreement supersedes all prior and contemporaneous oral and written agreements and discussions with respect to the subject matter hereof. If any provision of this Termination and Release Agreement is determined to be invalid or otherwise unenforceable, then that invalidity or unenforceability shall not affect any other provision of this Termination and Release Agreement, which shall continue and remain in full force and effect.

11. Warranties/Representations. Employee hereby warrants and represents that:

A. She has carefully read and fully understands the comprehensive terms and conditions of this Termination and Release Agreement and the releases set forth herein;

B.     She is executing this Termination and Release Agreement knowingly and voluntarily, without any duress, coercion or undue influence by the Company, its representatives, or any other person;

C. She has been given ample opportunity to consult with legal counsel of her own choice and at her own expense before executing this Termination and Release Agreement;

D. She has pending no claim, complaint, grievance or any document with any federal or state agency or any court seeking money damages or relief against any of the Released Parties;

E. The Severance Benefits recited above constitute good and valuable consideration for this release;

F. She is fully satisfied with the terms and conditions of this Termination and Release Agreement including, without limitation, the consideration paid to her by the Company;

G. She is not waiving rights or claims that may arise after the date this Termination and Release Agreement is executed;

H. Except as specifically provided herein, Employee has been paid all compensation owed to Employee by the Company pursuant to the Bodie Agreement;

I. She has the right to consider the terms of this Termination and Release Agreement for a full 21 days and she hereby waives any and all rights to any further review period; and

J. She has the right to revoke this Termination and Release Agreement within seven (7) calendar days after signing it (the “Revocation Period”) by providing prior to the expiration of the Revocation Period, written notice of revocation by hand delivery or electronic mail to James R. McKnight, Jr., Chief Executive Officer, Diversicare Health Services, 1621 Galleria Boulevard, Brentwood, TN 37027, email: jay.mcknight@dvcr.com. If she revokes this Termination and Release Agreement during the Revocation Period, the Termination and Release Agreement and all obligations hereunder become null and void in their entirety.

12.     Compliance with the Older Worker Benefit Protection Act. Employee warrants and represents that she has been given 21 days to review this Termination and Release Agreement with legal counsel and that she has had fair and full opportunity to consider its terms and enters into this Agreement willingly and knowingly and knows she has the right to review this Agreement for 21 days and to revoke it within seven days after signing it. Employee has the right to sign this Agreement sooner than the expiration of the 21-day consideration period, and if she chooses to do so, she understands she is waiving his right to the full 21-day consideration period.

[Signature pages follow.]

IN WITNESS WHEREOF, the undersigned has executed this Termination and Release Agreement as of the date first written above.

COMPANY:

Diversicare Healthcare Services, Inc.,

a Delaware corporation

By: /s/ James R. McKnight, Jr.

Name: James R. McKnight, Jr.

Title: President and Chief Executive Officer

Date Executed: November 19, 2021

Date Delivered: November 19, 2021

EMPLOYEE:

By: /s/ Rebecca B. Bodie

Name: Rebecca B. Bodie

Date Executed: November 19, 2021

Exhibit A

Severance Benefits

The Employee and the Company agree that the Severance Benefits described in Section VIII.A of the Bodie Agreement are as follows:

Base Salary Component$320,000

2021 Bonus$282,301

Benefits Component$43,300

Total$ 645,601

EX-99.1

Company Contact:
James R. McKnight, Jr.
Chief Executive Officer
615-771-7575    Investor Relations:       Kerry D. Massey       Chief Financial Officer       615-771-7575

DAC Acquisition LLC Completes Acquisition of

Diversicare Healthcare Services, Inc.

BRENTWOOD, TN, (November 19, 2021) – Diversicare Healthcare Services, Inc. (“Diversicare”) (OTCQX: DVCR), today announced the completion of the previously announced acquisition by merger of Diversicare by DAC Acquisition LLC.

The closing follows approval of the transaction by Diversicare’s stockholders at a special meeting held November 18, 2021. Over 99% of the Diversicare common stock represented in person or by proxy at the special meeting, and over 89% of the total number of Diversicare common stock outstanding, were voted in favor of the merger transaction.

As a result of the completion of the merger, Diversicare has become wholly owned by DAC Acquisition LLC, and Diversicare’s stockholders will receive an amount of cash equal to $10.10 per share of Diversicare common stock. As a private company, shares of Diversicare’s common stock will no longer be listed for trading on the OTCQX.

Diversicare will continue to be managed by its current management team consisting of Jay McKnight, President and CEO; Becky Bodie, Executive Vice President and COO; and Kerry Massey, Executive Vice President and CFO.

Current shareholders whose shares are held in “street name” do not need to take action at this time unless advised to do so by their brokers or unless they are contacted by Computershare, the Paying Agent of DAC.

Advisors

Brentwood Capital Advisors LLC is acting as financial advisor and Bass Berry & Sims PLC is acting as legal counsel to Diversicare. Krieger and Prager LLP and Novack Burnbaum and Crystal LLC are acting as counsel to DAC Acquisition.

About Diversicare

Diversicare provides long-term care services to patients in 61 nursing centers and 7,250 skilled nursing beds. For additional information about the Company, visit Diversicare's web site: www.DVCR.com.

About DAC Acquisition LLC

DAC Acquisition LLC is a privately held Delaware limited liability company of which Ephram Lahasky serves as the Manager. Mr. Lahasky, who has owned and operated Ambulance and Ambulette services since 1990, has significant affiliations with in excess of 100 owned and/or leased skilled nursing and similar centers in over 20 states.