** **

**Exhibit 10.3**

 

**INDEMNIFICATION AGREEMENT**

** **

THISINDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered March 10,2004 (the “Effective Date”), by and between Five Star Quality Care, Inc.,a Maryland Corporation (the “Company”), and Evrett W. Benton (“Indemnitee”).

 

WHEREASIndemnitee currently serves as an officer of the Company and may, in connectiontherewith, be subjected to claims, suits or proceedings arising from suchservice; and

 

WHEREAS,as an inducement to Indemnitee to continue to serve as such officer, the Company has agreed toindemnify and to advance expenses and costs incurred by Indemnitee inconnection with any such claims, suits or proceedings, to the fullest extentpermitted by law as hereinafter provided; and

 

NOW,THEREFORE, in consideration of the premises and the covenants contained herein,the Company and Indemnitee do hereby covenant and agree as follows:

 

Section 1.               Definitions.  For purposes of this Agreement:

 

### (a)           “Changein Control” means a change in control of the Company occurring after theEffective Date of a nature that would be required to be reported in response toItem 6(e) of Schedule 14A of Regulation 14A (or in response to anysimilar item on any similar schedule or form) promulgated under theSecurities Exchange Act of 1934, as amended (the “Act”), whether or not theCompany is then subject to such reporting requirement; provided, however, that,without limitation, such a Change in Control shall be deemed to have occurredif after the Effective Date (i) any “person” (as such term is used inSections 13(d) and 14(d) of the Act) is or becomes the “beneficialowner” (as defined in Rule 13d-3 under the Act), directly or indirectly,of securities of the Company representing 10%or more of the combined voting power in the election of directors of theCompany’s then outstanding securities without the prior approval of at leasttwo-thirds of the members of the Board of Directors in office immediately priorto such person attaining such percentage interest; (ii) there occurs aproxy contest, or the Company is a party to a merger, consolidation, sale ofassets, plan of liquidation or other reorganization not approved by at leasttwo-thirds of the members of the Board of Directors then in office, as aconsequence of which members of the Board of Directors in office immediatelyprior to such transaction or event constitute less than a majority of the Boardof Directors thereafter; or (iii) during any period of two consecutiveyears, other than as a result of an event described in clause (a)(ii) ofthis Section 1, individuals who at the beginning of such periodconstituted the Board of Directors (including for this purpose any new directorwhose election or nomination for election by the Company’s stockholders wasapproved by a vote of at least two-thirds of the directors then still in officewho were directors at the beginning of such period) cease for any reason toconstitute at least a majority of the Board of Directors.

###  

### (b)           “CorporateStatus” means the status of a person who is or was a director, trustee, officeror agent of the Company.

###  

### (c)           “DisinterestedDirector” means a director of the Company who is not and was not a party to theProceeding in respect of which indemnification is sought by Indemnitee.

###  

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### (d)           “Expenses”means all expenses, including, but not limited to, all reasonable attorneys’fees, retainers, court costs, transcript costs, fees of experts, witness fees,travel expenses, duplicating costs, printing and binding costs, telephonecharges, postage, delivery service fees, and all other disbursements orexpenses of the types customarily incurred in connection with prosecuting,defending, preparing to prosecute or defend, investigating, or being orpreparing to be a witness in a Proceeding.

###  

### (e)           “IndependentCounsel” means a law firm, or a member of a law firm, that is retained byIndemnitee and is not serving as counsel to the Company.

###  

### (f)            “Proceeding”means any threatened, pending or completed action, suit, arbitration, alternatedispute resolution mechanism, investigation, administrative hearing or anyother proceeding, whether civil, criminal, administrative or investigative(including on appeal), except one initiated by an Indemnitee pursuant to Section 9.

###  

Section 2.               Indemnification - General.  The Company shall indemnify, and advanceExpenses to, Indemnitee (a) as provided in this Agreement and (b) otherwiseto the fullest extent permitted by Maryland law in effect on the date hereofand as amended from time to time; provided, however, that nochange in Maryland law shall have the effect of reducing the benefits availableto Indemnitee hereunder based on Maryland law as in effect on the datehereof.  The rights of Indemniteeprovided in this Section 2 shall include, without limitation, therights set forth in the other sections of this Agreement, including anyadditional indemnification permitted by Section 2-418(g) of theMaryland General Corporation Law (“MGCL”).

 

Section 3.               Proceedings Other ThanProceedings by or in the Right of the Company.  Indemnitee shall be entitled to the rights ofindemnification provided in this Section 3 if, by reason of hisCorporate Status, he is, or is threatened to be, made a party to anythreatened, pending, or completed Proceeding, other than a Proceeding by or inthe right of the Company.  Pursuant tothis Section 3, Indemnitee shall be indemnified against alljudgments, penalties, fines and amounts paid in settlement and all Expensesincurred by him or on his behalf in connection with a Proceeding by reason ofIndemnitee’s Corporate Status unless it is established that (i) the act oromission of Indemnitee was material to the matter giving rise to the Proceedingand (a) was committed in bad faith or (b) was the result of activeand deliberate dishonesty, (ii) Indemnitee actually received an improperpersonal benefit in money, property or services, or (iii) in the case ofany criminal Proceeding, Indemnitee had reasonable cause to believe that hisconduct was unlawful.

 

Section 4.               Proceedings by or in the Rightof the Company.  Indemnitee shall beentitled to the rights of indemnification provided in this Section 4if, by reason of his Corporate Status, he is, or is threatened to be, made aparty to any threatened, pending or completed Proceeding brought by or in theright of the Company to procure a judgment in its favor.  Pursuant to this Section 4,Indemnitee shall be indemnified against all amounts paid in settlement and allExpenses incurred by him or on his behalf in connection with such Proceedingunless it is established that (i) the act or omission of Indemnitee wasmaterial to the matter giving rise to such a Proceeding and (a) wascommitted in bad faith or (b) was the result of active and

 

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deliberatedishonesty or (ii) Indemnitee actually received an improper personalbenefit in money, property or services.

 

Section 5.               Indemnification for Expensesof a Party Who is Partly Successful. Without limitation on Section 3 and Section 4,if Indemnitee is not wholly successful in any Proceeding covered by thisAgreement, but is successful, on the merits or otherwise, as to one or more butless than all claims, issues or matters in such Proceeding, the Company shallindemnify Indemnitee under this Section 5 for all Expenses incurredby him or on his behalf in connection with each successfully resolved claim,issue or matter, allocated on a reasonable and proportionate basis.  For purposes of this Section and withoutlimitation, the termination of any claim, issue or matter in such a Proceedingby dismissal, with or without prejudice, shall be deemed to be a successfulresult as to such claim, issue or matter.

 

## Section 6.               Advance of Expenses.  The Company shall advance all Expensesincurred by or on behalf of Indemnitee in connection with any Proceeding towhich Indemnitee is, or is threatened to be, made a party or a witness, withinten days after the receipt by the Company of a statement or statements fromIndemnitee requesting such advance or advances from time to time, whether priorto or after final disposition of such Proceeding.  Such statement or statements shall reasonablyevidence the Expenses incurred by Indemnitee and shall include or be precededor accompanied by a written affirmation by Indemnitee of Indemnitee’s good faithbelief that the standard of conduct necessary for indemnification by theCompany as authorized by law and by this Agreement has been met and a writtenundertaking by or on behalf of Indemnitee, in substantially the form attachedhereto as Exhibit A or in such form as may be required underapplicable law as in effect at the time of the execution thereof, to reimbursethe portion of any Expenses advanced to Indemnitee relating to claims, issuesor matters in the Proceeding as to which it shall ultimately be establishedthat the standard of conduct has not been met and which have not beensuccessfully resolved as described in Section 5.  To the extent that Expenses advanced toIndemnitee do not relate to a specific claim, issue or matter in theProceeding, such Expenses shall be allocated on a reasonable and proportionatebasis.  The undertaking required by this Section 6shall be an unlimited general obligation by or on behalf of Indemnitee andshall be accepted without reference to Indemnitee’s financial ability to repaysuch advanced Expenses and without any requirement to post security therefor.

##  

## Section 7.               Procedure for Determination of Entitlement toIndemnification.

##  

### (a)           Toobtain indemnification under this Agreement, Indemnitee shall submit to the Companya written request, including such documentation and information as isreasonably available to Indemnitee and is reasonably necessary to determinewhether and to what extent Indemnitee is entitled to indemnification.  The Secretary of the Company shall, promptlyupon receipt of such a request for indemnification, advise the Board ofDirectors in writing that Indemnitee has requested indemnification.

###  

### (b)           Uponwritten request by Indemnitee for indemnification pursuant to the firstsentence of Section 7(a) hereof, a determination, if requiredby applicable law, with respect to Indemnitee’s entitlement thereto shallpromptly be made in the specific case: (i) if a Change in Control shallhave occurred, by Independent Counsel in a written opinion to the Board of

 

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### Directors,a copy of which shall be delivered to Indemnitee; or (ii) if a Change ofControl shall not have occurred or if after a Change of Control Indemniteeshall so request, (A) by the Board of Directors (or a duly authorizedcommittee thereof) by a majority vote of a quorum consisting of DisinterestedDirectors (as herein defined), or (B) if a quorum of the Board ofDirectors consisting of Disinterested Directors is not obtainable or, even ifobtainable, such quorum of Disinterested Directors so directs, by IndependentCounsel in a written opinion to the Board of Directors, a copy of which shallbe delivered to Indemnitee, or (C) if so directed by a majority of themembers of the Board of Directors, by the stockholders of the Company; and, ifit is so determined that Indemnitee is entitled to indemnification, payment toIndemnitee shall be made within ten days after such determination.  Indemnitee shall cooperate with the person,persons or entity making such determination with respect to Indemnitee’sentitlement to indemnification, including providing to such person, persons orentity upon reasonable advance request any documentation or information whichis not privileged or otherwise protected from disclosure and which isreasonably available to Indemnitee and reasonably necessary to suchdetermination.  Any Expenses incurred byIndemnitee in so cooperating with the person, persons or entity making suchdetermination shall be borne by the Company (irrespective of the determinationas to Indemnitee’s entitlement to indemnification) and the Company shallindemnify and hold Indemnitee harmless therefrom.

###  

## Section 8.               Presumptions and Effect of Certain Proceedings.

##  

### (a)           Inmaking a determination with respect to entitlement to indemnificationhereunder, the person or persons or entity making such determination shallpresume that Indemnitee is entitled to indemnification under this Agreement ifIndemnitee has submitted a request for indemnification in accordance with Section 7(a) ofthis Agreement, and the Company shall have the burden of proof to overcome thatpresumption in connection with the making of any determination contrary to thatpresumption.

###  

### (b)           Thetermination of any Proceeding by judgment, order, settlement, conviction, aplea of nolocontendere or its equivalent, or an entry of anorder of probation prior to judgment, does not create a presumption thatIndemnitee did not meet the requisite standard of conduct described herein forindemnification.

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## Section 9.               Remedies of Indemnitee.

##  

### (a)           If(i) a determination is made pursuant to Section 7 thatIndemnitee is not entitled to indemnification under this Agreement, (ii) advanceof Expenses is not timely made pursuant to Section 6, (iii) nodetermination of entitlement to indemnification shall have been made pursuantto Section 7(b) within 30days after receipt by the Company of the request for indemnification, (iv) paymentof indemnification is not made pursuant to Section 5 within tendays after receipt by the Company of a written request therefor, or (v) paymentof indemnification is not made within ten days after a determination has beenmade that Indemnitee is entitled to indemnification, Indemnitee shall beentitled to an adjudication in an appropriate court of the State of Maryland,or in any other court of competent jurisdiction, of his entitlement to suchindemnification or advance of Expenses. Alternatively, Indemnitee, at his option, may seek an award inarbitration to be conducted by a single arbitrator pursuant to the commercial

 

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### ArbitrationRules of the American Arbitration Association.  Indemnitee shall commence such proceedingseeking an adjudication or an award in arbitration within 180 days followingthe date on which Indemnitee first has the right to commence such proceedingpursuant to this Section 9(a); provided, however,that the foregoing clause shall not apply in respect of a proceeding brought byIndemnitee to enforce his rights under Section 5.

###  

### (b)           Inany judicial proceeding or arbitration commenced pursuant to this Section 9,the Company shall have the burden of proving that Indemnitee is not entitled toindemnification or advance of Expenses, as the case may be.

###  

### (c)           Ifa determination shall have been made pursuant to Section 7(b) thatIndemnitee is entitled to indemnification, the Company shall be bound by suchdetermination in any judicial proceeding or arbitration commenced pursuant tothis Section 9, absent a misstatement by Indemnitee of a materialfact, or an omission of a material fact necessary to make Indemnitee’sstatement not materially misleading, in connection with the request forindemnification.

###  

### (d)           Inthe event that Indemnitee, pursuant to this Section 9, seeks a judicialadjudication of or an award in arbitration to enforce his rights under, or torecover damages for breach of, this Agreement, Indemnitee shall be entitled torecover from the Company, and shall be indemnified by the Company for, any andall Expenses incurred by him in such judicial adjudication or arbitration.  If it shall be determined in such judicialadjudication or arbitration that Indemnitee is entitled to receive part but notall of the indemnification or advance of Expenses sought, the Expenses incurredby Indemnitee in connection with such judicial adjudication or arbitrationshall be appropriately prorated.

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## Section 10.             Defense of the Underlying Proceeding.

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### (a)           Indemniteeshall notify the Company promptly upon being served with or receiving anysummons, citation, subpoena, complaint, indictment, information, notice,request or other document relating to any Proceeding which may result in theright to indemnification or the advance of Expenses hereunder; provided,however, that the failure to give any such notice shall not disqualifyIndemnitee from the right, or otherwise affect in any manner any right ofIndemnitee, to indemnification or the advance of Expenses under this Agreementunless the Company’s ability to defend in such Proceeding or to obtain proceedsunder any insurance policy is materially and adversely prejudiced thereby, andthen only to the extent the Company is thereby actually so prejudiced.

###  

### (b)           Subjectto the provisions of the last sentence of this Section 10(b) andof Section 10(c) below, the Company shall have the right todefend Indemnitee in any Proceeding which may give rise to indemnificationhereunder; provided, however, that the Company shall notifyIndemnitee of any such decision to defend within 15 calendar days followingreceipt of notice of any such Proceeding under Section 10(a) above.  The Company shall not, without the priorwritten consent of Indemnitee, which shall not be unreasonably withheld ordelayed, consent to the entry of any judgment against Indemnitee or enter intoany settlement or compromise which (i) includes an admission of fault ofIndemnitee or (ii) does not include, as an unconditional term thereof, thefull release of Indemnitee from all liability in respect of such Proceeding,which

 

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### releaseshall be in form and substance reasonably satisfactory to Indemnitee.  This Section 10(b) shall notapply to a Proceeding brought by Indemnitee under Section 9 aboveor Section 14.

###  

### (c)           Notwithstandingthe provisions of Section 10(b), if in a Proceeding to whichIndemnitee is a party by reason of Indemnitee’s Corporate Status, (i) Indemniteereasonably concludes, based upon an opinion of counsel approved by the Company,which approval shall not be unreasonably withheld, that he may have separatedefenses or counterclaims to assert with respect to any issue which may not beconsistent with other defendants in such Proceeding, (ii) Indemniteereasonably concludes, based upon an opinion of counsel approved by the Company,which approval shall not be unreasonably withheld, that an actual or apparentconflict of interest or potential conflict of interest exists betweenIndemnitee and the Company, or (iii) the Company fails to assume thedefense of such Proceeding in a timely manner, Indemnitee shall be entitled tobe represented by separate legal counsel of Indemnitee’s choice, subject to theprior approval of the Company, which shall not be unreasonably withheld, at theexpense of the Company.  In addition, ifthe Company fails to comply with any of its obligations under this Agreement orin the event that the Company or any other person takes any action to declarethis Agreement void or unenforceable, or institutes any Proceeding to deny orto recover from Indemnitee the benefits intended to be provided to Indemniteehereunder, Indemnitee shall have the right to retain counsel of Indemnitee’schoice, subject to the prior approval of the Company, which shall not beunreasonably withheld, at the expense of the Company (subject to Section 9(d)),to represent Indemnitee in connection with any such matter.

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## Section 11.             Non-Exclusivity; Survival of Rights.

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### (a)           Therights of indemnification and advance of Expenses as provided by this Agreementshall not be deemed exclusive of any other rights to which Indemnitee may atany time be entitled under applicable law, the Articles of Incorporation orBylaws of the Company, any agreement or a resolution of the stockholdersentitled to vote generally in the election of directors or of the Board ofDirectors, or otherwise.  No amendment,alteration or repeal of this Agreement or of any provision hereof shall limitor restrict any right of Indemnitee under this Agreement in respect of anyaction taken or omitted by such Indemnitee in his Corporate Status prior tosuch amendment, alteration or repeal.

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### (b)           Inthe event of any payment under this Agreement, the Company shall be subrogatedto 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 securesuch rights, including execution of such documents as are necessary to enablethe Company to bring suit to enforce such rights.

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### (c)           TheCompany shall not be liable under this Agreement to make any payment of amountsotherwise indemnifiable hereunder if and to the extent that Indemnitee hasotherwise actually received such payment under any insurance policy, contract,agreement or otherwise.

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## Section 12.             Duration of Agreement; Binding Effect.

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### (a)           ThisAgreement shall continue until and terminate ten years after the date thatIndemnitee shall have ceased to serve as a director, trustee, officer,employee, or agent of the

 

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### Companyor of any other corporation, partnership, joint venture, trust, employeebenefit plan or other enterprise which Indemnitee served at the request of theCompany; provided, however, that the rights of Indemniteehereunder shall continue until the final termination of any Proceeding thenpending in respect of which Indemnitee is granted rights of indemnification oradvance of Expenses hereunder and of any proceeding commenced by Indemniteepursuant to Section 9 relating thereto.

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### (b)           Theindemnification and advance of Expenses provided by, or granted pursuant to,this Agreement shall be binding upon and be enforceable by the parties heretoand their respective successors and assigns (including any direct or indirectsuccessor by purchase, merger, consolidation or otherwise to all or substantiallyall of the business or assets of the Company), shall continue as to anIndemnitee who has ceased to be a director, trustee, officer, employee or agentof the Company or of any other corporation, partnership, joint venture, trust,employee benefit plan or other enterprise which such person is or was servingat the written request of the Company, and shall inure to the benefit ofIndemnitee and his or her spouse, assigns, heirs, devisees, executors andadministrators and other legal representatives.

###  

### (c)           TheCompany shall require and cause any successor (whether direct or indirect bypurchase, merger, consolidation or otherwise) to all, substantially all or asubstantial part, of the business and/or assets of the Company, by writtenagreement in form and substance satisfactory to Indemnitee, expressly to assumeand agree to perform this Agreement in the same manner and to the same extentthat the Company would be required to perform if no such succession had takenplace.

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## Section 13.             Severability. If any provision or provisions of this Agreement shall be held to beinvalid, illegal or unenforceable for any reason whatsoever: (a) thevalidity, legality and enforceability of the remaining provisions of thisAgreement (including, without limitation, each portion of any section ofthis Agreement containing any such provision held to be invalid, illegal orunenforceable that is not itself invalid, illegal or unenforceable) shall notin any way be affected or impaired thereby; and (b) to the fullest extentpossible, the provisions of this Agreement (including, without limitation, eachportion of any section of this Agreement containing any such provisionheld to be invalid, illegal or unenforceable, that is not itself invalid,illegal or unenforceable) shall be construed so as to give effect to the intentmanifested thereby.

##  

## Section 14.             Limitation and Exception to Right of Indemnificationor Advance of Expenses. Notwithstanding any other provision of this Agreement, (a) anyindemnification or advance of Expenses to which Indemnitee is otherwiseentitled under the terms of this Agreement shall be made only to the extentsuch indemnification or advance of Expenses does not conflict with applicableMaryland law and (b) Indemnitee shall not be entitled to indemnificationor advance of Expenses under this Agreement with respect to any Proceedingbrought by Indemnitee, unless (i) the Proceeding is brought to enforceindemnification under this Agreement or otherwise or (ii) the Company’sBylaws, as amended, the Articles of Incorporation, a resolution of thestockholders entitled to vote generally in the election of directors or of theBoard of Directors or an agreement approved by the Board of Directors to whichthe Company is a party expressly provide otherwise.

 

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## Section 15.             Counterparts. This Agreement may be executed in one or more counterparts, each ofwhich shall for all purposes be deemed to be an original but all of whichtogether shall constitute one and the same Agreement.  One such counterpart signed by the partyagainst whom enforceability is sought shall be sufficient to evidence theexistence of this Agreement.

##  

## Section 16.             Headings. The headings of the paragraphs of this Agreement are inserted for convenienceonly and shall not be deemed to constitute part of this Agreement or to affectthe construction thereof.

##  

## Section 17.             Modification and Waiver.  No supplement, modification or amendment ofthis Agreement shall be binding unless executed in writing by both of theparties hereto.  No waiver of any of theprovisions of this Agreement shall be deemed or shall constitute a waiver ofany other provisions hereof (whether or not similar) nor shall such waiverconstitute a continuing waiver.

##  

## Section 18.             Notices. Any notice, report or other communication required or permitted to begiven hereunder shall be in writing unless some other method of giving suchnotice, report or other communication is accepted by the party to whom it isgiven, and shall be given by being delivered at the following addresses to theparties hereto:

##  

### (a)           Ifto Indemnitee, to:  The address set forthon the signature page hereto.

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### (b)           Ifto the Company to:

###  

FiveStar Quality Care, Inc.

400Centre Street

Newton,Massachusetts 02458

Attn:  Secretary

 

orto such other address as may have been furnished to Indemnitee by the Companyor to the Company by Indemnitee, as the case may be.

 

## Section 19.             Governing Law. The parties agree that this Agreement shall be governed by, andconstrued and enforced in accordance with, the laws of the State of Maryland,without regard to its conflicts of laws rules.

##  

[SIGNATURE PAGE FOLLOWS]

 

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INWITNESS WHEREOF, the parties hereto have executed this Agreement on the day andyear first above written.

 
| ATTEST:                  |   | FIVE  STAR QUALITY CARE, INC. |
|--------------------------|--------|-------------------------------|
|                     |   |                          |
|                     |   |                          |
| /s/  Jennifer B. Clark   |   | By:                           | /s/  Bruce J. Mackey Jr. | (SEAL) |
|                     |   | Name:                         | Bruce  J. Mackey Jr. |
|                     |   | Title:                        | Treasurer,  Chief Financial Officer and |
|                     |   |                          | Assistant  Secretary |
|                     |   |                          |
|                     |   |                          |
| WITNESS:                 |   | INDEMNITEE                    |
|                     |   |                          |
|                     |   |                          |
| /s/  Judith A. Stapleton |   | /s/  Evrett W. Benton         |   |
|                     |   | Name:  Evrett W. Benton  |
|                     |   | Address:  [address omitted]   |
|                          |        |                               |  |  |  |

 

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**EXHIBIT A**

** **

**FORM OFUNDERTAKING TO REPAY EXPENSES ADVANCED**

** **

TheBoard of Directors of Five Star Quality Care, Inc.

 

Re:  Undertaking to Repay Expenses Advanced

 

Ladiesand Gentlemen:

 

Thisundertaking is being provided pursuant to that certain IndemnificationAgreement dated                          ,2004, by and between Five Star Quality Care, Inc. (the “Company”) and theundersigned Indemnitee (the “Indemnification Agreement”), pursuant to which Iam entitled to advance of expenses in connection with **[Descriptionof Proceeding]** (the “Proceeding”).

 

Termsused herein and not otherwise defined shall have the meanings specified in theIndemnification Agreement.

 

Iam subject to the Proceeding by reason of my Corporate Status or by reason ofalleged actions or omissions by me in such capacity.  I hereby affirm that at all times, insofar asI was involved as **[a director]****[an officer]** of the Company, in any of the facts or eventsgiving rise to the Proceeding, I (1) acted in good faith and honestly, (2) didnot receive any improper personal benefit in money, property or services and (3) inthe case of any criminal proceeding, had no reasonable cause to believe thatany act or omission by me was unlawful.

 

Inconsideration of the advance of expenses by the Company for reasonable attorney’sfees and related expenses incurred by me in connection with the Proceeding (the“Advanced Expenses”), I hereby agree that if, in connection with theProceeding, it is established that (1) an act or omission by me wasmaterial to the matter giving rise to the Proceeding and (a) was committedin bad faith or (b) was the result of active and deliberate dishonesty or (2) Iactually received an improper personal benefit in money, property or servicesor (3) in the case of any criminal proceeding, I had reasonable cause tobelieve that the act or omission was unlawful, then I shall promptly reimbursethe portion of the Advanced Expenses relating to the claims, issues or mattersin the Proceeding as to which the foregoing findings have been established andwhich have not been successfully resolved as described in Section 5of the Indemnification Agreement.  To theextent that Advanced Expenses do not relate to a specific claim, issue ormatter in the Proceeding, I agree that such Expenses shall be allocated on areasonable and proportionate basis.

 

IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking onthis         day of                                        ,200    .

 

WITNESS:

 
|   |   |   |   | (SEAL) |
|--------|--------|--------|--------|--------|

 

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**Schedule toExhibit 10. 3**

 

The following individualsare parties to Indemnification Agreements with the Company which aresubstantially identical in all material respects to the representativeIndemnification Agreement filed herewith and are dated as of the respectivedates listed below.  The other Indemnification Agreements are omitted pursuantto Instruction 2 to Item 601 of Regulation S-K.

 
| **Name  of Signatory**   | ** ** | **Date**             |
|--------------------------|------------|----------------------|
| Evrett  W. Benton        |       | March 10,  2004 |
| Rosemary  Esposito, R.N. |       | March 10,  2004 |
| Bruce  M. Gans, M.D.     |       | March 10,  2004 |
| Barbara  D. Gilmore      |       | March 10,  2004 |
| Maryann  Hughes          |       | March 10,  2004 |
| Arthur  G. Koumantzelis  |       | March 10,  2004 |
| Bruce  J. Mackey Jr.     |       | March 10,  2004 |
| Gerard  M. Martin        |       | March 10,  2004 |
| Barry  M. Portnoy        |       | March 10,  2004 |
| William  J. Sheehan      |       | May 7,  2004    |
| Travis  K. Smith         |       | February  27, 2008   |

 

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