mm03-0310_8ke101.htm


     

    Exhibit
10.1


    

      GENTIVA
HEALTH SERVICES, INC.

       

      INDEMNIFICATION
AGREEMENT

       

      THIS INDEMNIFICATION AGREEMENT
(this “Agreement”) dated
as of  [●], 2010,
is made by and between Gentiva
Health Services, Inc., a Delaware corporation (the “Company”), and [●] (“Indemnitee”).

       

      RECITALS

       

      A.           The
Company desires to attract and retain the services of highly qualified
individuals as directors and officers.

       

      B.           The
Company’s Amended and Restated Certificate of Incorporation (the “Certificate”) and Amended and
Restated By-Laws (the “Bylaws”) require the Company
to indemnify its directors and officers to the fullest extent permitted by the
Delaware General Corporation Law, as amended (the “DGCL”), under which the
Company is organized, and expressly provide that the indemnification provided
therein is not exclusive of any other indemnification rights the Company
provides and contemplates that the Company may enter into separate agreements
with its directors, officers, other employees and agents as shall be expressly
authorized by the Board of Directors of the Company, to set forth specific
indemnification provisions.

       

      C.           The
Company desires and has requested Indemnitee to serve or continue to serve as a
director or officer of the Company and has proffered this Agreement to
Indemnitee as an additional inducement to serve in such capacity.

       

      D.           Indemnitee
is willing to serve, or to continue to serve, as a director or officer of the
Company if Indemnitee is furnished the indemnity provided for herein by the
Company.

       

      AGREEMENT

       

      NOW THEREFORE, in
consideration of the mutual covenants and agreements set forth herein, the
parties hereto, intending to be legally bound, hereby agree as
follows:

       

      1.    Definitions.

       

      (a) Expenses.  For
purposes of this Agreement, the term “expenses” shall be broadly construed and
shall include, without limitation, all out-of-pocket costs of any type or nature
whatsoever (including, without limitation, all attorneys fees, other
professional and expert fees and related disbursements, witness fees, and any
premiums, security for and other costs relating to any appeal bond) actually and
reasonably incurred by Indemnitee in connection with investigating, defending,
responding to or appealing a proceeding or establishing or enforcing a right to
indemnification or advancement of expenses under this Agreement.  In
the event Indemnitee is required to spend more than three hours in the



      
        
           


        

        
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      course of
any day (including travel time) as a witness (including as a deposition witness)
in connection with a proceeding (other than a proceeding in respect of which
Indemnitee is not entitled to indemnification in accordance with Section 10(b)
hereof or has been determined not to be entitled to indemnification in
accordance with Section 7 hereof), Indemnitee shall be entitled to reasonable
compensation from the Company for his or her time so spent and, accordingly in
such event, the term “expenses” shall also include reasonable compensation for
such time spent by Indemnitee (as well as travel expenses reasonably incurred by
Indemnitee in connection with attending such a proceeding), but only if,
Indemnitee at such time is not serving as a director or officer of, and is not
in the employment of, or otherwise providing services for compensation to, the
Company or any subsidiary.  The rate of compensation to be provided to
Indemnitee in such event shall be comparable to that provided to an independent
director of the Company for a comparable commitment of time in accordance with
the Company’s then existing director compensation policies (if
any).  For such purpose, if the Company’s director compensation policy
provides for a “per meeting” fee, the amount of such fee shall be presumed to be
reasonable compensation for the time so spent by the Indemnitee as if the time
so spent had been spent at a meeting of the Board of Directors of the
Company.

       

      (b) Judgments.  For
purposes of this Agreement, “judgments” shall be broadly construed and shall
include any judgment (including, without limitation, any award of damages and
any mandatory or prohibitory injunction, rescission, imposition of a
constructive trust, an accounting or any other equitable relief or a declaratory
judgment), arbitral award, fine or penalty, or any tax for which the Company or
any subsidiary would also or otherwise be liable, for which judgments Indemnitee
shall become liable or to which Indemnitee shall become subject as a result of
any proceeding and any amount paid in settlement of any proceeding.

       

      (c) Proceeding.  For
purposes of this Agreement, the term “proceeding” shall be broadly construed and
shall include any threatened, pending, or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or other proceeding, whether brought in the right of the Company or
otherwise and whether of a civil, criminal, legislative, administrative or
investigative nature (including, without limitation, any notice of liability for
any tax), and in which Indemnitee was, is or is threatened to be, involved as a
party, a witness or otherwise by reason of:  (i) the fact that
Indemnitee is or was a director or officer of the Company; (ii) the fact that
any action was taken or omitted, or is alleged to have been taken or omitted, by
Indemnitee as a director or officer of the Company or, at a time when Indemnitee
was serving as a director or officer of the Company, in any other capacity on
behalf of the Company or any subsidiary; or (iii) the fact that Indemnitee is or
was serving at the request of the Company as a director, officer, trustee,
partner, employee or fiduciary of another corporation or a partnership, joint
venture, 

       


      
        
           


        

        
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      trust,
employee benefit plan or other enterprise (as the case may be), whether or not
Indemnitee is serving in any such capacity at the time when any liability or
expense is incurred for which indemnification, reimbursement, or advancement of
expenses is provided under this Agreement.

       

      (d) Subsidiary.  For
purposes of this Agreement, the term “subsidiary” means any corporation or
limited liability company of which more than 50% of the outstanding voting
securities or equity interests are owned, directly or indirectly, by the Company
and one or more of its subsidiaries, and any other corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise of which Indemnitee is or was serving at the request of the
Company as a director, officer, trustee, partner, employee or
fiduciary.

       

      (e) Independent
Counsel.  For purposes of this Agreement, the term “independent
counsel” means a law firm, or a partner (or, if applicable, member) of such a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five (5) years has been, retained to
represent:  (i) the Company or Indemnitee in any matter material to
either such party 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 Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement.

       

      2.    Consideration.

       

      (a) The
Company acknowledges that its obligations imposed under this Agreement are in
addition to and of force and effect independent of its obligations to Indemnitee
under the Certificate or Bylaws, that this Agreement is intended to induce
Indemnitee to serve, or continue to serve, as a director or officer of the
Company, and that Indemnitee is relying upon this Agreement in serving as a
director or officer of the Company.

       

      (b) In
reliance upon the Company’s obligations under this Agreement, Indemnitee is
commencing or continuing to serve as a director or officer of the
Company.  Indemnitee may at any time and for any reason resign from
such position (subject to any other contractual obligation or any obligation
imposed by operation of law).  The Company shall have no obligation
under this Agreement to continue Indemnitee in such position or any other
position for any period of time and shall not be precluded by the provisions of
this Agreement from removing Indemnitee from any such position at any
time.

       


      
        
           


        

        
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      3.    Rights
to Indemnification.

       

      (a) Indemnification Respecting Third
Party Proceedings.  Subject to Sections 7 and 10 hereof, the
Company shall indemnify Indemnitee if Indemnitee is, or is threatened to be,
made a party to or otherwise involved in any proceeding, other than a proceeding
by or in the right of the Company to procure a judgment in its favor, from and
against any and all judgments and expenses incurred by Indemnitee in connection
with such proceeding and any judgments resulting from such a proceeding
(including, without limitation, any tax also or otherwise payable by the Company
or any subsidiary for which Indemnitee becomes liable and which Indemnitee has
paid).

       

      (b) Indemnification Respecting Derivative
Actions and Direct Actions by the Company.  Subject to Sections
7 and 10 hereof, the Company shall indemnify Indemnitee, if Indemnitee is, or is
threatened to be, made a party to or otherwise involved in any proceeding by or
in the right of the Company to procure a judgment in its favor against any and
all judgments and expenses incurred by Indemnitee in connection with such
proceeding; provided, however, that indemnification shall be provided for any
claim, issue or matter as to which Indemnitee has been adjudged to be liable to
the Company only to the extent that a court of competent jurisdiction shall
ultimately determine in a final judgment, not subject to appeal, that, despite
the adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper.

       

      For the
avoidance of doubt, it is understood and agreed that any expenses incurred by
Indemnitee in connection with Indemnitee or any person associated with
Indemnitee soliciting proxies with respect to the election of a director of the
Company or any other matter submitted for a vote of the stockholders of the
Company shall not be considered expenses relating to a proceeding subject to
indemnification or advancement pursuant to this Agreement; it being further
understood, however, that (i) expenses incurred by Indemnitee in connection with
a proceeding to which Indemnitee is made a party or otherwise involved or
threatened to be made a party or otherwise involved and that arises out of or
relates to any such proxy solicitation shall be expenses subject to
indemnification and advancement pursuant to this Agreement except as otherwise
provided by Sections 7 or 10 hereof and (ii) nothing in this sentence is
intended to limit the Company’s expenditure of funds in connection with the
solicitation of proxies on behalf of the Board of Directors of the Company or
the reimbursement by the Company as permitted by law of costs or expenses in
connection with any other solicitation of proxies that is determined to have
been for the benefit of the Company.

       

      4.    Indemnification of Expenses of
Successful Defense.  Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee has been successful on the merits
or otherwise in defense of any proceeding or in defense of any claim, issue or
matter therein, including the dismissal of any proceeding without prejudice, the
Company 

       


      
        
           


        

        
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      shall
indemnify Indemnitee from and against all expenses incurred by Indemnitee in
connection with such proceeding.

       

      5.    Partial
Indemnification.  Subject to Sections 7 and 10 hereof, if
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of any expenses incurred by Indemnitee, but
is precluded by applicable law or the specific terms of this Agreement to
indemnification for the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled.

       

      6.    Right to Advancement of
Expenses.  To the extent not prohibited by law, the Company
shall as herein further provided advance to and reimburse Indemnitee, in advance
of determining Indemnitee’s entitlement to indemnification hereunder, for any
expenses incurred by Indemnitee in connection with a
proceeding.  Indemnitee shall also be entitled to advancement and
reimbursement of any and all expenses incurred by Indemnitee in preparing and
submitting to the Company information to support requests for indemnification or
advancement of expenses hereunder.  Such advancement or reimbursement
shall be made within twenty (20) days after the receipt by the Company of a
written statement or statements requesting such advances or reimbursement (which
shall include copies of invoices received by Indemnitee documenting with
reasonable particularity the services for which such expenses were incurred but,
in the case of invoices in connection with legal services, no references to
legal work performed or to expenditures made shall be required that, in the
reasonable judgment of Indemnitee’s counsel, would cause Indemnitee to waive any
privilege accorded by applicable law).  Upon request of the Company,
the Indemnitee shall provide an undertaking confirming Indemnitee’s obligation
to repay the advancement of expenses if and to the extent that it is ultimately
determined by a court of competent jurisdiction in a final judgment, not subject
to appeal, that Indemnitee is not entitled to be indemnified by the Company
against such expenses.  Advances shall be unsecured, interest free and
without regard to Indemnitee’s ability to repay the
expenses.  Indemnitee agrees that, without limiting the Company’s
right to seek further written confirmation from Indemnitee to such effect, the
execution and delivery of this Agreement by Indemnitee shall constitute an
undertaking by Indemnitee to repay to the Company any advance of expenses or
reimbursements made by the Company if and to the extent that it is ultimately
determined by a court of competent jurisdiction in a final judgment, not subject
to appeal, that Indemnitee is not entitled to be indemnified by the Company
against such expenses.  The right to advancement and reimbursement of
expenses under this Section 6 shall continue until final disposition of any
proceeding.  Notwithstanding the foregoing, Indemnitee shall not be
entitled to advancement or reimbursement of expenses incurred in a proceeding
commenced by Indemnitee for which Indemnitee has been determined not to be
entitled to indemnification in accordance with Section 7 hereof or is not
entitled to indemnification in accordance with Section 10 hereof, provided that
the Company shall make a determination with respect thereto within 20 days after
receiving a request from Indemnitee for such advancement or reimbursement (but
the Company shall not be

       


      
        
           


        

        
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      precluded
from thereafter making such determination based on additional facts or
information that becomes available to it).

       

      7.    Notice
and Other Procedures.

       

      (a) Notification of
Proceeding.  Indemnitee will notify the Company in writing
promptly upon being served with any summons, citation, subpoena, complaint,
indictment, information, notice of liability or other document relating to any
proceeding which may be subject to indemnification or advancement of expenses
hereunder; provided, however, that the failure of Indemnitee to so notify the
Company shall not relieve the Company of any obligation which it may have to
provide indemnification or to advance expenses to Indemnitee under this
Agreement or otherwise unless the Company shall have been materially prejudiced
by not having notice of such proceeding.

       

      (b) Request for Indemnification and
Indemnification Payments.  Indemnitee shall notify the Company
in writing promptly upon receiving notice of the issuance of any judgment or
arbitral award or any demand or other requirement to make a payment of a
judgment or a tax in respect of which Indemnitee believes Indemnitee is entitled
to indemnification under the terms of this Agreement; provided, however, that
the failure of Indemnitee so to notify the Company shall not relieve the Company
of any obligation which it may have to provide indemnification to Indemnitee
against such judgment or tax under this Agreement or otherwise, unless the
Company shall have been materially prejudiced by not having notice of the
issuance of any such judgment or arbitral award or any demand or other
requirement under this Section 7(b).

       

      (c) Indemnification
Determinations.  Upon request of Indemnitee, the Company, to
the extent required by the DGCL, shall promptly (and in any event in accordance
with the following timing requirements), make a determination in good faith as
to whether with respect to the matter as to which such indemnification is
requested Indemnitee satisfied the applicable standard for conduct established
under the DGCL for indemnification, such determination to be made:

       

      (i) if
Indemnitee is a director or officer at the time the determination is to be made,
by (A) the Board of Directors of the Company by the vote at a meeting thereof of
a majority of the members of the Board who are not parties to such proceeding,
even if less than a quorum (or by the unanimous written consent of all the Board
members, provided there are members who are not parties to such proceeding) or
(B) by a committee of the Board of Directors composed of directors who are not
parties to such proceeding and authorized and designated to make such decision
by the vote at a meeting of the Board of Directors of a majority of the members
of the Board who are not parties to such proceeding, even if less than a quorum
(or authorized and designated by the unanimous written consent of all the Board
members, provided there are members who are not parties to such proceeding) or
(C) if there are no directors

       


      
        
           


        

        
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      who are
not parties to such proceeding, or if so directed by the Board by action of the
directors satisfying the requirements of clause (A) of this subparagraph or if
so directed by a committee of the Board composed and designated in compliance
with the requirements of clause (B) of this subparagraph, by independent legal
counsel in a written opinion; or

       

      (ii) if
Indemnitee is not a director or officer at the time the determination is to be
made, (A) by the Board of Directors or a committee thereof by action thereof
satisfying the requirements of clause (A) or (B) of subparagraph (i) of this
Section or (B) if directed by the Board of Directors or a duly authorized
committee, by independent legal counsel in a written opinion.

       

      The
Company shall use its best efforts to cause a meeting of the Board or a Board
committee to be held for purposes of making the determination of Indemnitee’s
satisfaction of the applicable standard of conduct, or the appointment of
independent legal counsel to make such determination, to be held within 15 days
of receipt of Indemnitee’s request for indemnification and to have any such
determination, including a determination to be made by independent legal counsel
if such a determination is to be made, completed within 60 days of such
receipt.  Alternatively, the Company may seek to have such
determination made by action of the shareholders of the Company at a duly held
meeting, provided that the Company has reasonably determined that such
determination can be made within 60 days of such receipt.  The Company
shall give Indemnitee: (i) prompt written notice of the scheduling of any such
Board, Board committee or shareholder meeting; (ii) an opportunity to present in
person Indemnitee’s views on the matter, along with any supporting
documentation; and (iii) notice of the making of any such
determination.

       

      (d) Standards to be
Applied.  Any such determination shall be reasonably made by
the decision-making party based upon the facts known to the decision-making
party at the time such determination is made.  The termination of a
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent shall not, by itself, create a presumption that the
Indemnitee did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interest of the Company, and, with
respect to any criminal proceeding, had reasonable cause to believe that his or
her conduct was unlawful.  With respect to actions concerning an
employee benefit plan of the Company or any subsidiary, if Indemnitee acted in
good faith and in a manner he or she reasonably believed to be in the interest
of the participants and beneficiaries of the employee benefit plan, the
Indemnitee shall be deemed to have acted in a manner not opposed to the best
interests of the Company.  If the determination shall be to the effect
that Indemnitee satisfied the applicable standard of conduct, the amount of
indemnity to which Indemnitee shall be entitled shall be paid to Indemnitee
promptly.  If the determination is to the effect that the Indemnitee
did not meet the applicable


      
        
           


        

        
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      standard
of conduct in respect of the matter for which indemnification is sought
hereunder, the Company shall give Indemnitee a reasonably detailed statement of
the reasons for such determination.  Such determination shall be
without prejudice to Indemnitee’s right to have a court determination thereof
made in accordance with Section 8 hereof.  Claims for advancement of
expenses shall be made under the provisions of Section 6 hereof rather than
Section 7(c) and this Section 7(d).

       

      (e) Assumption of
Defense.  In the event the Company shall be requested by
Indemnitee to pay the expenses of any proceeding and the Company shall
acknowledge in writing to Indemnitee its obligation under Section 6 hereof to
pay such expenses, the Company shall be entitled to assume the defense of such
proceeding, or to participate to the extent permissible in such proceeding, with
counsel reasonably acceptable to Indemnitee.  Upon assumption of the
defense by the Company and the retention of such counsel by the Company, the
Company shall not be liable to Indemnitee under this Agreement for any fees of
counsel subsequently incurred by Indemnitee with respect to the same proceeding,
provided that Indemnitee shall have the right to employ separate counsel in such
proceeding at Indemnitee’s sole cost and expense.  Notwithstanding the
foregoing, if Indemnitee’s counsel delivers a written notice to the Company
stating that such counsel has reasonably concluded that there is an actual or
potential conflict of interest between the Company and Indemnitee in the conduct
of any such defense or the Company shall not, in fact, have employed counsel or
otherwise actively pursued the defense of such proceeding within a reasonable
time, then in any such event the fees and expenses of Indemnitee’s counsel to
review whether there is such a conflict of interest and provide notice of a
conflict of interest and to defend such proceeding shall be subject to the
indemnification and advancement of expense provisions of this
Agreement.

       

      8.    Enforcement
of Rights Hereunder.

       

      (a) Enforcement.  In the
event the Company (i) fails to make a timely indemnification payment or a timely
determination of Indemnitee’s entitlement to indemnification in accordance with
Section 7(c) and (d) and Section 10 hereof or (ii) determines in accordance with
Section 7(c) and (d) hereof that Indemnitee is not entitled to indemnification
or (iii) fails to advance in a timely manner expenses in accordance with Section
6 hereof, then, subject to Section 18, Indemnitee shall have the right to apply
to any court of competent jurisdiction for the purpose of determining
Indemnitee’s entitlement to indemnification or enforcing Indemnitee’s right to
indemnification or advancement of expenses pursuant to this Agreement, as
applicable.  In such a proceeding, the burden of proof shall be on the
Company to prove that indemnification or advancement of expenses to Indemnitee
is not required under this Agreement or permitted by applicable
law.  Any determination by the Company (including its Board of
Directors, stockholders or independent counsel) that Indemnitee is not entitled
to indemnification hereunder shall not be a defense by the Company to an action
to determine Indemnitee’s entitlement to indemnification nor create any
presumption that Indemnitee is not entitled 

       


      
        
           


        

        
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      to
indemnification or advancement of expenses hereunder and Indemnitee shall be
entitled to a de novo determination of Indemnitee’s entitlement thereto in any
court of competent jurisdiction.

       

      (b) Indemnification of Enforcement and
Certain Other Expenses.  The Company shall indemnify Indemnitee
against all expenses actually and reasonably incurred by Indemnitee in
connection with any proceeding to determine, or enforce, Indemnitee’s right to
indemnification or advancement of expenses hereunder (including any proceeding
commenced by Indemnitee), except in a situation where (i) the Company has
determined that Indemnitee is not entitled to indemnification in accordance with
Section 7 hereof or has determined that Indemnitee is not entitled to
indemnification in accordance with Section 10 hereof and (ii) the Company
prevails on the merits in all material respects in such proceeding with respect
to such determination; it being understood that Indemnitee shall not be entitled
hereunder to advancement by the Company of expenses incurred by Indemnitee in
connection with a proceeding commenced by Indemnitee to enforce his or her right
to advancement of expenses or indemnification hereunder (but shall be entitled
hereunder to indemnification against such expenses as were actually and
reasonably incurred by Indemnitee in connection with such a proceeding upon
conclusion thereof unless it has been determined in such proceeding that
Indemnitee was not entitled to the advancement of expenses or indemnification
sought by Indemnitee to be enforced). 

       

      
            (c) No Offset.  Indemnitee’s rights hereunder to receive payment of
amounts as indemnification or advancement of expenses shall not be subject to
offset, set-off or reduction on account of, and shall be separate from, any
obligation or liability that Indemnitee may have to the Company or any
subsidiary and shall be paid without regard
thereto.

      

       

      9.    Insurance.  Unless
the Board of Directors of the Company determines that the expense of such policy
is unreasonable, the Company shall maintain an insurance policy or policies
providing liability insurance for directors and officers of the Company,
including any “tail coverage” (“D&O Insurance”), and the
Company shall use its best efforts to cause Indemnitee, at the Company’s
expense, to be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any then-current
director or officer of the Company or any subsidiary under such policy or
policies.  The Indemnitee is entitled to the receipt of a copy of any
such policy.  If, at the time of its receipt of a notice of a
proceeding pursuant to the terms hereof, the Company has D&O Insurance in
effect and the proceeding relates to one or more claims that could be covered by
such D&O Insurance, the Company shall give prompt notice of the commencement
of such proceeding to the Indemnitee and 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 proceeding in
accordance with the terms of such policies and shall not discriminate against
Indemnitee

       


      
        
           


        

        
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      in regard
to the Indemnitee’s access to coverage under such policy or policies in
comparison to any other then-current director or officer.  Indemnitee
agrees to cooperate with the Company by providing any reasonable release
requested by the insurance carrier and corresponding release of the Company for
payments made to Indemnitee in satisfaction of the Company’s indemnification and
other obligations hereunder.

       

      10.    Exceptions.

       

      (a) Certain
Matters.  Any provision herein to the contrary notwithstanding,
the Company shall not be obligated pursuant to the terms of this Agreement to
indemnify Indemnitee on account of (i) any proceeding with respect to
remuneration paid to Indemnitee as a director or officer if it is determined by
final judgment or other final adjudication that such remuneration was provided
in violation of law (it being understood, however, that Indemnitee’s right to
indemnification and advancement of expenses with regard to remuneration matters
are further limited as provided by Section 7 above and 10(b) below) or (ii) a
final judgment rendered against Indemnitee for an accounting, disgorgement or
repayment of profits made from the purchase or sale by Indemnitee of securities
of the Company, or in connection with a settlement by or on behalf of Indemnitee
to the extent it is acknowledged by Indemnitee and the Company that such amount
paid in settlement resulted from Indemnitee’s conduct from which Indemnitee
received monetary personal profit, in violation of the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended, or (iii) any
proceeding for which the Board (or any committee thereof) has determined prior
to the date of this Agreement that the Indemnitee is not entitled to
indemnification.  For purposes of the foregoing sentence, a final
judgment or other adjudication may be reached in either the underlying
proceeding in connection with which indemnification is sought or a separate
proceeding to establish rights and liabilities under this
Agreement.  The exclusion provided by clause (i) of the first sentence
of this Section 10(a) hereof shall not limit the exclusion provided by Section
10(b) hereof.

       

      (b) Claims Initiated by
Indemnitee.  Any provision herein to the contrary
notwithstanding, the Company shall not be obligated to indemnify or advance
expenses to Indemnitee with respect to proceedings or claims initiated or
brought by Indemnitee against the Company or its current or former directors,
officers, employees or other agents and not by way of defense, except (i) with
respect to proceedings brought to establish or enforce a right to
indemnification or advancement of expenses under this Agreement or under any
other agreement, provision in the Certificate or Bylaws or applicable law or
(ii) with respect to any other proceeding initiated by Indemnitee that is either
approved by the Board of Directors or with respect to which Indemnitee’s
participation is required by applicable law.  However, indemnification
or advancement of expenses may be provided by the Company in specific cases as
to which indemnification or advancement of expenses is excluded by the foregoing
provisions of this Section 10(b) if the Board of Directors determines it to
be appropriate.

       


      
        
           


        

        
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      (c) Unauthorized
Settlements.  Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee under this Agreement for any amounts paid
in settlement of a proceeding effected without the Company’s written
consent.  Neither the Company nor Indemnitee shall unreasonably
withhold consent to any proposed settlement; provided, however, that the Company
may in any event decline to consent to (or to otherwise admit or agree to any
liability for indemnification hereunder in respect of) any proposed settlement
if the Company is also a party in such proceeding and determines in good faith
that such settlement is not in the best interests of the Company and its
stockholders.

       

      (d) Securities Law
Liabilities.  Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee or otherwise act in violation of any
undertaking appearing in and required by the rules and regulations promulgated
under the Securities Act of 1933, as amended (the “Act”), or in any registration
statement filed with the Securities and Exchange Commission (the “SEC”) under the
Act.  Indemnitee acknowledges that paragraph (h) of Item 512 of
Regulation S-K currently generally requires the Company to undertake in
connection with any registration statement filed under the Act to submit the
issue of the enforceability of Indemnitee’s rights under this Agreement in
connection with any liability under the Act to a court of appropriate
jurisdiction with respect to the consistency of the indemnification provided
hereunder with public policy and to be governed by any final adjudication of
such issue.  Indemnitee specifically agrees that any such undertaking
shall supersede any contrary provisions of this Agreement and that Indemnitee’s
rights hereunder shall be subject to any such undertaking.  In
addition, Indemnitee acknowledges that the SEC believes that indemnification for
liabilities arising under the federal securities laws is against public policy
and is, therefore, unenforceable and that claims for indemnification should be
submitted to appropriate courts for adjudication.  Accordingly,
Indemnitee further acknowledges that the Company may submit claims for
indemnification against liabilities imposed under such laws made by Indemnitee
hereunder to such adjudication in connection with handling such claims in
accordance with Section 7 hereof.

       

      11.    Nonexclusivity and Survival of
Rights.  The provisions for indemnification and advancement of
expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which Indemnitee may at any time be entitled under any provision of
applicable law, the Certificate, Bylaws, any insurance policy or other
agreements, both as to action in Indemnitee’s capacity as a director, officer or
any other capacity.  However, where they are applicable, the
procedures and standards provided by this Agreement shall apply with respect to
Indemnitee’s right to indemnification and advancement of
expenses.  Indemnitee’s rights hereunder shall continue after
Indemnitee has ceased acting as a director or officer of the Company and shall
inure to the benefit of the heirs, executors, administrators, legal
representatives and assigns of Indemnitee.  The

       


      
        
           


        

        
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      obligations
and duties of the Company to Indemnitee under this Agreement shall be binding on
the Company and its successors and assigns until terminated in accordance with
its terms.  The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, expressly to assume
and agree in writing to 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.  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 or her status as such prior to such amendment, alteration or
repeal.  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, by
Indemnitee shall not prevent the concurrent assertion or employment of any other
right or remedy by Indemnitee.

       

      12.    Term;
Termination.  All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee is a director or
officer of the Company or is serving at the request of the Company as a
director, officer, trustee, partner, employee or fiduciary of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise and shall continue thereafter with respect to any possible claims
based on the fact that Indemnitee was a director or officer of the Company or
was serving at the request of the Company as a director, officer, trustee,
partner, employee or fiduciary of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise.

       

      13.    Subrogation.  In the
event a payment is made to Indemnitee under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who, at the request and expense of the Company, shall execute all
papers required and shall do everything that may be reasonably necessary to
secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such
rights.

       

      14.    Interpretation of
Agreement.  It is understood that the parties hereto intend
this Agreement to be interpreted and enforced so as to provide indemnification
to Indemnitee to the fullest extent now or hereafter permitted by
law.  To the extent that a change in the DGCL, whether by statute or
judicial decision, permits greater indemnification or advancement of expenses
than would be afforded currently under the Certificate, Bylaws and this
Agreement, it is the intent of the parties hereto that Indemnitee be entitled to
the greater benefits afforded by such change.

       

      15.    Severability.  If
any provision of this Agreement shall be held to be invalid, illegal or
unenforceable for any reason whatsoever, (a) the validity, legality and
enforceability of the remaining provisions of the Agreement (including without
limitation, all portions of any paragraphs of this Agreement containing any such
provision held to be invalid, illegal or

       


      
        
           


        

        
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      unenforceable,
that are not themselves invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of any
paragraph of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable and to give effect to
Section 14 hereof.

       

      16.    Amendment and
Waiver.  No supplement, modification, amendment, termination,
waiver or cancellation of this Agreement shall be binding unless executed in
writing by the parties hereto.  No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.

       

      17.    Notice.  Except as
otherwise provided herein, any notice, demand or other communications to be
given pursuant to the terms of this Agreement shall be in writing sent by hand
delivery, first-class or overnight mail or courier service, facsimile
transmission or electronic mail.  If by facsimile transmission or
electronic mail, shall be deemed to have been validly served, given or delivered
when sent, if by hand delivery, overnight mail or courier service, shall be
deemed to have been validly served, given or delivered upon actual delivery and,
if mailed, shall be deemed to have been validly served, given or delivered three
(3) business days after deposit in the United States mail, as registered or
certified mail, with proper postage prepaid to the addresses listed
below:

       

      If to the
Company:

       

      Gentiva
Health Services, Inc.

       

      3350
Riverwood Parkway, Suite 1400

       

      Atlanta,
Georgia 30339

       

      Telephone:  (770)
951-6450

       

      Facsimile:  (770)
541-3712

       

      Attention:
General Counsel

       

      If to the
Indemnitee:

       

      [                     ]

       

      18.    Governing Law; Jurisdiction; Waiver
of Jury Trial.  This Agreement shall be governed exclusively by
and construed according to the laws of the State of Delaware, without giving
effect to the principles, policies or provisions thereof governing conflict or
choice of laws.  All proceedings arising out of or relating to this
Agreement shall be heard and determined in a court of competent jurisdiction in
the State of Delaware, and the parties hereby irrevocably submit to the
exclusive jurisdiction of such court in any such proceeding and irrevocably
waive any defense of inconvenient forum to the maintenance of any such
proceeding in such court.  The parties agree that a final judgment in
any such proceeding shall be conclusive and may be enforced 


      
        
           


        

        
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      in other
jurisdictions by suit on the judgment or in any other manner provided by
applicable law.  The parties hereby waive any and all right to trial
by jury in any proceeding arising out of or relating to this
Agreement.

       

      19.    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 but one and the same Agreement.  Only one such counterpart
need be produced to evidence the existence of this Agreement.

       

      20.    Headings.  The
headings of the sections of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or to affect the
construction hereof.

       

      21.    Entire
Agreement.  This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, understandings and negotiations, written and oral, between the
parties with respect to the subject matter of this Agreement; provided, however,
that this Agreement is a supplement to and in furtherance of the Certificate,
the Bylaws, the DGCL and any other applicable law, and shall not be deemed a
substitute therefor, and does not diminish or abrogate any rights of Indemnitee
thereunder.

       

      22.    Representations.  Each
of the Company and Indemnitee hereby represents that this Agreement constitutes
a valid and binding obligation of the Company and Indemnitee, as applicable,
enforceable against each of them in accordance with its terms (subject in each
case to the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors’ rights generally, to general
principles of equity and to public policy).

       

      23.    Interpretation.  All
notices, waivers, requests, consents or determinations made pursuant to this
Agreement shall be made and delivered in writing.  Whenever the words
“include”, “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation”.  The words
“hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.  The term “or” is not exclusive and means
“and/or.”  Any agreement, instrument or statute defined or referred to
herein or in any agreement or instrument that is referred to herein means such
agreement, instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver or
consent and (in the case of statutes) by succession of comparable successor
statutes and references to all attachments thereto and instruments incorporated
therein.

       

      


       


      
        
           


        

        
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      IN WITNESS WHEREOF, the
parties hereto have entered into this Agreement effective as of the date first
above written.

       

      
        	 
      	
                GENTIVA
      HEALTH SERVICES, INC.

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                INDEMNITEE

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      


      

      



      
         

        
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