EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this ____ day of
___________ 2006 between FAMILY HOME HEALTH SERVICES, INC., a Nevada corporation
(the "Corporation") and ________________ ("Indemnitee").
WITNESSETH:
WHEREAS, Indemnitee performs a valuable service for the Corporation; and
WHEREAS, the Board of Directors of the Corporation has adopted Bylaws (the
"Bylaws") providing for the indemnification of the officers and directors of the
Corporation to the maximum extent authorized by the Nevada Revised Statutes (the
"NRS"), including actions by or in the right of the Corporation by reason of the
fact that such person is or was a director, officer, partner, trustee, employee
or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise; and
WHEREAS, the Bylaws and the NRS, by their nonexclusive nature, permit
contracts between the Corporation and the officers or directors of the
Corporation with respect to indemnification of such officers or directors; and
WHEREAS, in accordance with the authorization as provided by the NRS, the
Corporation may purchase and maintain a policy or policies of director's and
officer's liability insurance ("D & O Insurance"), covering certain liabilities
which may be incurred by its officers or directors in the performance of their
duties to the Corporation; and
WHEREAS, in recognition of past services and in order to induce Indemnitee
to continue to serve the Corporation as a director and/or officer of the
Corporation or of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise, the Corporation has determined and agreed to
enter into this contract with Indemnitee.
NOW, THEREFORE, in consideration of Indemnitee's continued service as an
officer or director after the date hereof and the mutual covenants of the
parties set forth herein, the parties hereto agree as follows:
1. Indemnity of Indemnitee. The Corporation hereby agrees to hold harmless
and indemnify Indemnitee to the fullest extent permitted by law. In furtherance
of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the
Corporation. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 1 (a) if, by reason of his Corporate Status (as
hereinafter defined), he is, or is threatened to be made, a party to or
participant in any Proceeding (as hereinafter defined) other than a Proceeding
by or in the right of the Corporation. Pursuant to this Section 1(a), Indemnitee
shall be indemnified against all Expenses (as hereinafter defined), judgments,
penalties, fines (including any excise taxes assessed on Indemnitee with respect
to an employee benefit plan) and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
or any claim, issue or matter therein, if he acted in good faith and in a manner
he 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 conduct was unlawful.
(b) Proceedings by or in the Right of the Corporation. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1
(b) if, by reason of his Corporate Status, he is, or is threatened to be made, a
party to or participant in any Proceeding brought by or in the right of the
Corporation to procure a judgment in its favor. Pursuant to this Section 1 (b),
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation; provided, however, that, if applicable
law so provides, no indemnification against such Expenses shall be made in
respect of any claim, issue or matter in such Proceeding as to which Indemnitee
shall have been adjudged by a court of competent jurisdiction, after exhaustion
of all appeals therefrom, to be liable to the Corporation unless and only to the
extent that the court in which such action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in defense of any Proceeding, he shall
be indemnified to the maximum extent permitted by law against all Expenses
actually and reasonably incurred by him or on his behalf in connection with the
defense. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Corporation shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim, issue or matter.
For purposes of this Section and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
2. Contribution In the Event of Joint Liability.
(a) Whether or not the indemnification provided in Sections 1 and 2
hereof is available, in respect of any threatened, pending or completed action,
suit or proceeding in which the Corporation is jointly liable with Indemnitee,
the Corporation shall pay, in the first instance, the entire amount of any
judgment or settlement of such action, suit or proceeding without requiring
Indemnitee to contribute to such payment and the Corporation hereby waives and
relinquishes any right of contribution it may have against Indemnitee. The
Corporation shall not enter into any settlement of any action, suit or
proceeding in which the Corporation is jointly liable with Indemnitee unless
such settlement provides for a full and final release of all claims asserted
against Indemnitee.
(b) Without diminishing or impairing the obligations of the
Corporation set forth in the preceding subparagraph, if, for any reason,
Indemnitee shall elect or be required to pay all or any portion of any judgment
or settlement in any threatened, pending or completed action, suit or proceeding
in which the Corporation is jointly liable with Indemnitee, the
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Corporation shall contribute to the amount of expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by Indemnitee in proportion to the relative
benefits received by the Corporation and all officers, directors or employees of
the Corporation other than Indemnitee who are jointly liable with Indemnitee (or
would be if joined in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, from the transaction from which such action, suit
or proceeding arose; provided, however, that the proportion determined on the
basis of relative benefit may, to the extent necessary to conform to law, be
further adjusted by reference to the relative fault of the Corporation and all
officers, directors or employees of the Corporation other than Indemnitee who
are jointly liable with Indemnitee (or would be if joined in such action, suit
or proceeding), on the one hand, and Indemnitee, on the other hand, in
connection with the events that resulted in such expenses, judgments, fines or
settlement amounts, as well as any other equitable considerations which the law
may require to be considered. The relative fault of the Corporation and all
officers, directors or employees of the Corporation other than Indemnitee who
are jointly liable with Indemnitee (or would be if joined in such action, suit
or proceeding), on the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary, and the degree to which
their conduct is active or passive.
(c) The Corporation hereby agrees fully to indemnify and hold
Indemnitee harmless from any claims of contribution which may be brought by
officers, directors or employees of the Corporation other than Indemnitee who
may be jointly liable with Indemnitee.
3. Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding to which Indemnitee is not a
party, he shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.
4. Advancement of Expenses. Notwithstanding any other provision of this
Agreement, the Corporation shall advance all reasonable Expenses incurred by or
on behalf of Indemnitee in connection with any Proceeding by reason of
Indemnitee's Corporate Status within ten (10) days after the receipt by the
Corporation of a statement or statements from Indemnitee 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 Indemnitee and shall include or be preceded or accompanied
by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced
if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses. Any advances and undertakings to repay
pursuant to this Section 4 shall, to the maximum extent permitted by law, be
unsecured and interest free. Notwithstanding the foregoing, in the event the
Corporation decides to advance Expenses pursuant to this Section 4, if, when and
to the extent that the Corporation determines that Indemnitee would not be
permitted to be indemnified under applicable law, the Corporation shall be
entitled to be reimbursed, within thirty (30) days of such determination, by
Indemnitee (who hereby agrees to reimburse the Corporation) for all such amounts
theretofore paid; provided, however, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that Indemnitee should be indemnified under applicable
law, any determination made by the Corporation that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Corporation for any advance of
Expenses until a final judicial determination is made with respect thereto (as
to which all rights of appeal therefrom have been exhausted or lapsed).
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5. Procedures and Presumptions for Determination of Entitlement to
Indemnification. It is the intent of this Agreement to secure for Indemnitee
rights of indemnity that are as favorable as may be permitted under the law and
public policy of the State of Nevada. Accordingly, the parties agree that the
following procedures and presumptions shall apply in the event of any question
as to whether Indemnitee is entitled to indemnification under this Agreement.
(a) To obtain indemnification (including, but not limited to, the
advancement of Expenses and contribution by the Corporation) under this
Agreement, Indemnitee shall submit to the Corporation a written request,
including therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The
General Counsel or other appropriate officer or employee of the Corporation
shall, promptly upon receipt of such a request for indemnification, advise the
Board of Directors in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to
the first sentence of Section 5(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall be made
in the specific case by the Reviewing Party (as defined in Section 11 hereof.
(c) If the determination of entitlement to indemnification is to be
made by Independent Counsel, the Independent Counsel shall be selected as
provided in this Section 5(c). The Independent Counsel shall be selected by the
Indemnitee, unless the Corporation shall, within 10 days after such written
notice of selection shall have been given, deliver to the Indemnitee a written
objection to such selection; provided, however, that such objection may be
asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of "Independent Counsel" as defined in Section 11 of this
Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has determined
that such objection is without merit. If, within 20 days after submission by
Indemnitee of a written request for indemnification pursuant to Section 5(a)
hereof, no Independent Counsel shall have been selected and not objected to, the
Corporation or Indemnitee may petition an appropriate court of competent
jurisdiction for resolution of any objection which shall have been made by the
Corporation to the Indemnitee's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the court or by such
other person as the court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 5(b) hereof. The Corporation shall pay any and
all reasonable fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to Section 5(b) hereof,
and the Corporation shall pay all reasonable fees and expenses incident to the
procedures of this Section 5(c), regardless of the manner in which such
Independent Counsel was selected or appointed.
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(d) In making a determination with respect to entitlement to
indemnification hereunder, the Reviewing Party shall presume that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 5(a) of this Agreement.
Anyone seeking to overcome this presumption shall have the burden of proof and
the burden of persuasion, by clear and convincing evidence.
(e) Indemnitee shall be deemed to have acted in good faith if
Indemnitee's action is based on the records or books of account of the
Corporation (as defined in Section 11), including financial statements, or on
information supplied to Indemnitee by the officers of the Corporation in the
course of their duties, or on the advice of legal counsel for the Corporation or
on information or records given or reports made to the Corporation by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation. In addition, the knowledge
and/or actions, or failure to act, of any director, officer, agent or employee
of the Corporation shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement. Whether or not
the foregoing provisions of this Section 5(e) are satisfied, it shall in any
event be presumed that Indemnitee has at all times acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion, by clear and convincing evidence.
(f) The Corporation acknowledges that a settlement or other
disposition short of final judgment may be successful if it permits a party to
avoid expense, delay, distraction, disruption and uncertainty. In the event that
any action, claim or proceeding to which Indemnitee is a party is resolved in
any manner other than by adverse judgment against Indemnitee (including without
limitation, settlement of such action, claim or proceeding with or without
payment of money or other consideration) it shall be presumed that Indemnitee
has been successful on the merits or otherwise in such action, suit or
proceeding. Anyone seeking to overcome this presumption shall have the burden of
proof and the burden of persuasion, by clear and convincing evidence.
(g) If the Reviewing Party empowered or selected under Section 5 to
determine whether Indemnitee is entitled to indemnification shall not have made
a determination within 30 days after receipt by the Corporation of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law; provided,
however, that such 30-day period may be extended for a reasonable time, not to
exceed an additional 15 days, if the person, persons or entity making the
determination with respect to entitlement of indemnification in good faith
requires such additional time for the obtaining or evaluating documentation
and/or information relating thereto.
(h) Indemnitee shall cooperate with the Reviewing Party making such
determination with respect to Indemnitee's entitlement to indemnification,
including providing to such Reviewing Party upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any Reviewing Party shall act
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reasonably and in good faith in making a determination under this Agreement of
the Indemnitee's entitlement to indemnification. Any costs or expenses
(including attorneys' fees and disbursements) incurred by Indemnitee in so
cooperating with Reviewing Party shall be borne by the Corporation (irrespective
of the determination as to Indemnitee's entitlement to indemnification) and the
Corporation hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
6. Remedies of Indemnitee
(a) In the event that (i) a determination is made pursuant to Section
5 of this Agreement that Indemnitee is not entitled to indemnification under
this Agreement, (ii) no determination of entitlement to indemnification shall
have been made pursuant to Section 5(b) of this Agreement within 90 days after
receipt by the Corporation of the request for indemnification, (iv) payment of
indemnification is not made pursuant to this Agreement within ten (10) days
after receipt by the Corporation of a written request therefor, or (v) payment
of indemnification is not made within ten (10) days after a determination has
been made that Indemnitee is entitled to indemnification or such determination
is deemed to have been made pursuant to Section 5 of this Agreement, Indemnitee
shall be entitled to an adjudication in an appropriate court of competent
jurisdiction of his entitlement to such indemnification. Indemnitee shall
commence such proceeding seeking an adjudication within 180 days following the
date on which Indemnitee first has the right to commence such proceeding
pursuant to this Section 6(a). The Corporation shall not oppose Indemnitee's
right to seek any such adjudication.
(b) In the event that a determination shall have been made pursuant to
Section 5(b) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding commenced pursuant to this Section 6
shall be conducted in all respects as a de novo trial, on the merits and
Indemnitee shall not be prejudiced by reason of adverse determination.
(c) If a determination shall have been made pursuant to Section 5(b)
of this Agreement that Indemnitee is entitled to indemnification, the
Corporation shall have the right to appeal such determination before any court
of competent jurisdiction, and any such judicial proceeding commenced pursuant
to this Section 6 shall be conducted in all respects as a de novo trial, on the
merits and the Corporation shall not be prejudiced by reason of adverse
determination.
(d) In the event that Indemnitee, pursuant to this Section 6, seeks a
judicial adjudication of his rights under, or to recover damages for breach of
this Agreement, or to recover under any directors' and officers' liability
insurance policies maintained by the Corporation, the Corporation shall pay on
his behalf, in advance, any and all expenses (of the types described in the
definition of Expenses in Section 11 of this Agreement) actually and reasonably
incurred by him in such judicial adjudication, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advancement of
expenses or insurance recovery.
(e) The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 6 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court that the Corporation is bound by the provisions of
this Agreement.
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7. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall
not be deemed exclusive of any other rights to which Indemnitee may at any time
be entitled under applicable law, the Articles of Incorporation of the
Corporation, the Bylaws, any agreement, a vote of stockholders or a resolution
of directors, or otherwise. No amendment, alteration or repeal of this Agreement
or of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in
his Corporate Status prior to such amendment, alteration or repeal. To the
extent that a change in the NRS, whether by statute or judicial decision,
permits greater indemnification that would be afforded currently under the
Bylaws and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change. No right or remedy herein conferred is intended to be exclusive of
any other right or remedy, and every other right and remedy shall be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) To the extent that the Corporation maintains an insurance policy
or policies providing liability insurance for directors, officers, employees, or
agents or fiduciaries of the Corporation or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Corporation, Indemnitee shall be
covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer,
employee or agent under such policy or policies.
(c) In the event of any payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Corporation to bring suit to enforce such rights.
(d) The Corporation shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
8. Exceptions to Right of Indemnification. Notwithstanding any other
provision of this Agreement, Indemnitee shall not be entitled to indemnification
under this Agreement.
(a) with respect to any Proceeding brought by Indemnitee, or any claim
therein, unless (i) the bringing of such proceeding or making of such claim
shall have been approved by the Board of Directors, or (ii) such Proceeding is
being brought by the Indemnitee to assert his rights under this Agreement.
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(b) On account of any suit in which a final, unappealable judgment is
rendered against Indemnitee for an accounting of profits made from the purchase
or sale by Indemnitee of securities of the Company in violation of the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended;
(c) With respect to remuneration paid to Indemnitee if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law; or
(d) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
9. Duration of Agreement. All agreements and obligations of the Corporation
contained herein shall continue during the period Indemnitee is a director,
officer, partner, trustee, employee or agent of the Corporation or is serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise) and
shall continue thereafter so long as Indemnitee shall be subject to any
Proceeding (or any proceeding commenced under Section 8(a) hereof) by reason of
his Corporate Status, whether or not he is acting or serving in any such
capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement.
10. Cooperation. Indemnitee shall give the Corporation such information and
cooperation as it may reasonably request and as shall be within Indemnitee's
power to provide with respect to any Proceeding.
11. Definitions. For purposes of this Agreement.
(a) "Corporate Status" describes the status of a person who is or was
or may be deemed to be a director, officer, partner, trustee, employee or agent
of the Corporation or is or was or may be deemed to be serving at the request of
the Corporation as a director, officer, employee or agent or fiduciary of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise.
(b) "Corporation" shall mean the Corporation and any other domestic or
foreign corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise of which Indemnitee is or was serving at the express written
request of the Corporation as a director, officer, employee, agent or fiduciary.
(c) "Disinterested Director" means a director of the Corporation who
is not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(d) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, participating, or being or preparing to
be a witness in a Proceeding.
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(e) "Indemnitee" means the Indemnitee as defined above and includes
Indemnitee's spouse, family members and agents and any person who controls any
of them or who may be liable within the meaning of Section 15 of the Securities
Act of 1933, as amended or Section 20 of the Securities Exchange Act of 1934, as
amended.
(f) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Corporation or
Indemnitee in any matter material to either such party (other than with respect
to matters concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnization agreements), or (ii) any other party to
the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Corporation or Indemnitee in an action to determine Indemnitee's rights under
this Agreement. The Corporation agrees to pay the reasonable fees of the
Independent counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages arising out of or
relating to his Agreement or its engagement pursuant hereto.
(g) "Proceeding" includes any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or completed
proceeding, whether brought by or in the right of the Corporation or otherwise
and whether civil, criminal administrative or investigative, in which Indemnitee
was, is or will be involved as a party or otherwise, by reason of the
Indemnitee's Corporate Status or by reason of any action taken by him or of any
inaction in the Indemnitee's Corporate Status; in each case whether or not he is
acting or serving in any such capacity at the time any liability or expense is
incurred for which indemnification can be provided under this Agreement;
including one pending on or before the date of this Agreement; and excluding one
initiated by an Indemnitee pursuant to Section 6 of this Agreement to enforce
his rights under this Agreement.
(h) "Reviewing Party" means any appropriate person or body consisting
of a of a majority of Disinterested Directors, including the Audit Committee or
any other person or body appointed by the Board of Directors or the Audit
Committee who is not a party to the particular claim for which Indemnitee is
seeking indemnification, or Independent Counsel.
12. Severability. If any provision or provisions of this Agreement shall be
held by a court of competent jurisdiction to be invalid, void, illegal or
otherwise unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable. that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law; and
(b) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.
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13. Notice by Indemnitee. Indemnitee agrees promptly to notify the
Corporation in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification covered hereunder. The failure
to so notify the Corporation shall not relieve the Corporation of any obligation
which it may have to the Indemnitee under this Agreement or otherwise.
14. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed. or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(a) If to Indemnitee, to the address set forth below Indemnitee
signature hereto.
(b) If to the Corporation, to:
Family Home Health Services Inc.
801 W. Ann Arbor Trail
Suite 200
Plymouth, MI 48170
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
15. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.
16. Headings. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
17. Governing Law. The parties agree that this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of
Nevada without application of the conflict of laws principles thereof.
18. Gender. Use of the masculine pronoun shall be deemed to include usage
of the feminine pronoun where appropriate.
19. Binding Effect, Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors, assigns, including any direct or indirect successor
by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Company, spouses, heirs, and personal and
legal representatives. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all or a substantial part, of the business and/or assets of
the Company, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to
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perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place. This
Agreement shall continue in effect with respect to Claims relating to
Indemnifiable Events regardless of whether Indemnitee continues to serve as a
director, officer, employee, agent, controlling person, or fiduciary of the
Company, at the Company's request.
20. Period of Limitation. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company against Indemnitee
after the expiration of five (5) years from the date of accrual of such cause of
action, and any claim or cause of action of the Company shall be extinguished
and deemed released unless asserted by the timely filing of a legal action
within such five (5) year period; PROVIDED, HOWEVER, that if any shorter period
of limitations is otherwise applicable to any such cause of action, such shorter
period shall govern.
21. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed
by the parties to be bound thereby. Notice of same shall be provided to all
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a wavier of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
22. Integration. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral, written and implied, between the
parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
FAMILY HOME HEALTH SERVICES, INC.
By:
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Name:
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Its:
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, Indemnitee
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Address:
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