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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.
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(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
