Exhibit 10.40
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement ("AGREEMENT") is entered into as of
November 16, 2005 by and between MT Ultimate Healthcare Corp., a
Nevada
corporation (the "COMPANY") and Keith C. Moore ("INDEMNITEE").
RECITALS
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A.
The Company and
Indemnitee recognize the continued difficulty in
obtaining liability insurance for its directors, officers,
employees,
agents and fiduciaries, the significant increases in the cost of
such
insurance and the general reductions in the coverage of such
insurance.
B.
The Company and
Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting
directors,
officers, employees, agents and fiduciaries to expensive litigation
risks
at the same time as the availability and coverage of liability
insurance
has been severely limited.
C.
Indemnitee does not
regard the current protection available as
adequate under the present circumstances, and Indemnitee and
other
directors, officers, employees, agents and fiduciaries of the
Company may
not be willing to continue to serve in such capacities without
additional
protection.
D.
The Company desires to
attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve the Company
and, in
part, in order to induce Indemnitee to continue to provide services
to the
Company, wishes to provide for the indemnification and advancing
of
expenses to Indemnitee to the maximum extent permitted by law.
E.
In view of the
considerations set forth above, the Company desires
that Indemnitee be indemnified by the Company as set forth
herein.
NOW,
THEREFORE, the Company and Indemnitee hereby agree as follows:
1.
Indemnification.
(a)
Indemnification of
Expenses. The Company
shall indemnify to the
fullest extent permitted by law if Indemnitee was or is or becomes
a party
to or witness or other participant in, or is threatened to be made
a party
to or witness or other participant in, any threatened, pending or
completed
action, suit, proceeding or alternative dispute resolution
mechanism, or
any hearing, inquiry or investigation that Indemnitee in good
faith
believes might lead to the institution of any such action, suit,
proceeding
or alternative dispute resolution mechanism, whether civil,
criminal,
administrative, investigative or other (hereinafter a "CLAIM") by
reason of
(or arising in part out of) any event or occurrence related to the
fact
that Indemnitee is or was a director, officer, employee, agent or
fiduciary
of the Company, or any subsidiary of the Company, or is or was
serving at
the request of the Company as a director, officer, employee, agent
or
fiduciary of another corporation, partnership, joint venture, trust
or
other enterprise, or by reason of any action or inaction on the
part of
Indemnitee while serving in such capacity (hereinafter an
"INDEMNIFIABLE
EVENT") against any and all expenses (including attorneys' fees and
all
other costs, expenses and obligations incurred in connection
with
investigating, defending, being a witness in or participating in
(including
on appeal), or preparing to defend, be a witness in or participate
in, any
such action, suit, proceeding, alternative dispute resolution
mechanism,
hearing, inquiry or investigation), judgments, fines, penalties and
amounts
paid in settlement (if such settlement is approved in advance by
the
Company, which approval shall not be unreasonably withheld) of such
Claim
and any federal, state, local or foreign taxes imposed on
Indemnitee as a
result of the actual or deemed receipt of any payments under this
Agreement
(collectively, hereinafter "EXPENSES"), including all interest,
assessments
and other charges paid or payable in connection with or in respect
of such
Expenses. Such payment
of Expenses shall be made by the Company as soon as
practicable but in any event no later than twenty (20) days after
written
demand by Indemnitee therefor is presented to the Company.
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(b)
Reviewing Party.
Notwithstanding the
foregoing, (i) the
obligations of the Company under Section 1(a) shall be subject to
the
condition that the Reviewing Party (as described in Section 10(e)
hereof)
shall not have determined (in a written opinion, in any case in
which the
Independent Legal Counsel referred to in Section 1(c) hereof is
involved)
that Indemnitee would not be permitted to be indemnified under
applicable
law, and (ii) the obligation of the Company to make an advance
payment of
Expenses to Indemnitee pursuant to Section 2(a) (an "EXPENSE
ADVANCE")
shall be subject to the condition that, if, when and to the extent
that the
Reviewing Party determines that Indemnitee would not be permitted
to be so
indemnified under applicable law, the Company shall be entitled to
be
reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for
all such amounts theretofore paid; provided, however, that if
Indemnitee
has commenced or thereafter commenced 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
Reviewing
Party 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 Company for any Expense Advance until a final
judicial
determination is made with respect thereto (as to which all rights
of
appeal therefrom have been exhausted or lapsed). The
Indemnitee's
obligation to reimburse the Company for any Expense Advance shall
be
unsecured and no interest shall be charged thereon. If there has not been
a Change in Control (as defined in Section 10(c) hereof), the
Reviewing
Party shall be selected by the Board of Directors, and if there has
been
such a Change in Control (other than a Change in Control which has
been
approved by a majority of the Company's Board of Directors who
were
directors immediately prior to such Change in Control), the
Reviewing Party
shall be the Independent Legal Counsel referred to in Section 1(c)
hereof.
If there has been no determination by the Reviewing Party or if
the
Reviewing Party determines that Indemnitee substantively would not
be
permitted to be indemnified in whole or in part under applicable
law,
Indemnitee shall have the right to commence litigation seeking an
initial
determination by the court or challenging any such determination by
the
Reviewing Party or any aspect thereof, including the legal or
factual bases
therefor, and the Company hereby consents to service of process and
to
appear in any such proceeding. Any determination by the Reviewing
Party
otherwise shall be conclusive and binding on the Company and
Indemnitee.
(c) Change in Control. The Company agrees that if there
is a Change
in Control of the Company (other than a Change in Control which has
been
approved by a majority of the Company's Board of Directors who
were
directors immediately prior to such Change in Control) then, with
respect
to all matters thereafter arising concerning the rights of
Indemnitees to
payments of Expenses and Expense Advances under this Agreement or
any other
agreement or under the Company's Articles of Incorporation, as
amended, or
Bylaws as now or hereafter in effect, Independent Legal Counsel (as
defined
in Section 10(d) hereof) shall be selected by Indemnitee and
approved by
the Company (which approval shall not be unreasonably withheld).
Such
counsel, among other things, shall render its written opinion to
the
Company and Indemnitee as to whether and to what extent Indemnitee
would be
permitted to be indemnified under applicable law and the Company
agrees to
abide by such opinion. The Company agrees to pay the reasonable
fees of the
Independent Legal Counsel referred to above and to fully indemnify
such
counsel against any and all expenses (including attorneys' fees),
claims,
liabilities and damages arising out of or relating to this
Agreement or its
engagement pursuant hereto.
(d) Mandatory Payment of Expenses.
Notwithstanding any
other
provision of this Agreement other than Section 9 hereof, to the
extent that
Indemnitee has been successful on the merits or otherwise,
including,
without limitation, the dismissal of an action without prejudice,
in
defense of any action, suit, proceeding, inquiry or investigation
referred
to in Section (1)(a) hereof or in the defense of any claim, issue
or matter
therein, Indemnitee shall be indemnified against all Expenses
incurred by
Indemnitee in connection therewith.
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2.
Expenses;
Indemnification Procedure.
(a)
Advancement of
Expenses. The Company
shall advance all Expenses
incurred by Indemnitee. The advances to be made hereunder shall be
paid by
the Company to Indemnitee as soon as practicable but in any event
no later
than twenty (20) days after written demand by Indemnitee therefor
to the
Company.
(b)
Notice/Cooperation by
Indemnitee. Indemnitee
shall, as a
condition precedent to Indemnitee's right to be indemnified under
this
Agreement, give the Company notice in writing as soon as
practicable of any
Claim made against Indemnitee for which indemnification will or
could be
sought under this Agreement. Notice to the Company shall be
directed to the
Board of Directors of the Company at the address set forth in
Section
14(d)(i) hereof (or such other address as the Company shall
designate in
writing to Indemnitee as provided in Section 14 hereof). In
addition,
Indemnitee shall give the Company such information and cooperation
as it
may reasonably require and as shall be within Indemnitee's
power.
(c)
No Presumptions;
Burden of Proof. For
purposes of this
Agreement, the termination of any Claim by judgment, order,
settlement
(whether with or without court approval) or conviction, or upon a
plea of
nolo contendere, or its equivalent, shall not create a presumption
that
Indemnitee did not meet any particular standard of conduct or have
any
particular belief or that a court has determined that
indemnification is
not permitted by applicable law. In addition, neither the failure
of the
Reviewing Party to have made a determination as to whether
Indemnitee has
met any particular standard of conduct or had any particular
belief, nor an
actual determination by the Reviewing Party that Indemnitee has not
met
such standard of conduct or did not have such belief, prior to
the
commencement of legal proceedings by Indemnitee to secure a
judicial
determination that Indemnitee should be indemnified under
applicable law,
shall be a defense to Indemnitee's claim or create a presumption
that
Indemnitee has not met any particular standard of conduct or did
not have
any particular belief.
In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled
to be
indemnified hereunder, the burden of proof shall be on the Company
to
establish that Indemnitee is not so entitled.
(d)
Notice to Insurers.
If, at the time of the
receipt by the
Company of a notice of a Claim pursuant to Section 2(b) hereof, the
Company
has liability insurance in effect which may cover such Claim, the
Company
shall give prompt notice of the commencement of such Claim to the
insurers
in accordance with the procedures set forth in the respective
policies. The
Company shall thereafter take all necessary or desirable action to
cause
such insurers to pay, on behalf of Indemnitee, all amounts payable
as a
result of such action, suit, proceeding, inquiry or investigation
in
accordance with the terms of such policies.
(e)
Selection of Counsel.
In the event the
Company shall be
obligated hereunder to pay the Expenses of any Claim, the Company
shall be
entitled to assume the defense of such Claim with counsel approved
by
Indemnitee, which approval shall not be unreasonably withheld, upon
the
delivery to Indemnitee of written notice of its election so to do.
After
delivery of such notice, approval of such counsel by Indemnitee and
the
retention of such counsel by the Company, the Company will not be
liable to
Indemnitee under this Agreement for any fees of counsel
subsequently
incurred by Indemnitee with respect to the same Claim; provided
that, (i)
Indemnitee shall have the right to employ Indemnitee's counsel in
any such
Claim at Indemnitee's expense and (ii) if (A) the employment of
counsel by
Indemnitee has been previously authorized by the Company, (B)
Indemnitee
shall have reasonably concluded that there is a conflict of
interest
between the Company and Indemnitee in the conduct of any such
defense, or
(C) the Company shall not continue to retain such counsel to defend
such
Claim, then the fees and expenses of Indemnitee's counsel shall be
at the
expense of the Company. The Company shall have the right to conduct
such
defense as it sees fit in its sole discretion, including the
right
