EXHIBIT
      10.1 

     

    INDEMNIFICATION
      AGREEMENT 

     

         This
      Indemnification Agreement (“Agreement”)
      is
      entered into as of                     
      by and
      between Xcorporeal, Inc. (“Company”),
      and
                    
      (“Indemnitee”).
      

     

    RECITALS 

     

         A. It
      is important to the Company to attract and retain as directors the most capable
      persons reasonably available. 

     

         B. Indemnitee
      is becoming a director of the Company. 

     

         C. Both
      the Company and Indemnitee recognize the increased risk of litigation and other
      claims being asserted against directors of companies in today’s environment.


     

         D. The
      Company’s Certificate of Incorporation and By-laws (the “Constituent
      Documents”)
      provide that the Company will indemnify its directors and the Company’s By-laws
      provide that the Company will advance expenses in connection therewith, and
      Indemnitee’s willingness to serve as a director of the Company is based in part
      on Indemnitee’s reliance on such provisions. 

     

         E. In
      recognition of Indemnitee’s need for substantial protection against personal
      liability in order to enhance Indemnitee’s continued service to the Company in
      an effective manner, and Indemnitee’s reliance on the aforesaid provisions of
      the Constituent Documents, and to provide Indemnitee with express contractual
      indemnification (regardless of, among other things, any amendment to or
      revocation of such provisions or any change in the composition of the Company’s
      Board of Directors (the “Board”)
      or any
      acquisition or business combination transaction relating to the Company), the
      Company wishes to provide in this Agreement for the indemnification of and
      the
      advancement of Expenses to Indemnitee as set forth in this Agreement and, to
      the
      extent insurance is maintained, for the continued coverage of Indemnitee under
      the Company’s directors’ and officers’ liability insurance policies.


     

         NOW,
      THEREFORE, the parties hereby agree as follows: 

     

         1. Definitions.
      In addition to terms defined elsewhere herein, the following terms have the
      following meanings when used in this Agreement with initial capital letters:
      

     

              (a)
      “Affiliate”
has
      the
      meaning given to that term in Rule 405 under the Securities Act of 1933,
      provided, however, that for purposes of this Agreement the Company and its
      subsidiaries will not be deemed to constitute Affiliates of Indemnitee or the
      Indemnitee. 

     

              (b)
      “Claim”
means
      any threatened, pending or completed action, suit or proceeding, or any inquiry
      or investigation, whether instituted, made or conducted by the Company or any
      other party, including without limitation any governmental entity, that
      Indemnitee determines might lead to the institution of any such action, suit
      or
      proceeding, whether civil, criminal, administrative, arbitrative, investigative
      or other. 

     

    
      
         

      

      
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              (c)
      “Expenses”
      includes attorneys’ and experts’ fees, expenses and charges and all other costs,
      expenses and obligations paid or 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 Claim. 

     

              (d)
      “Indemnifiable
      Losses”
means
      any and all Expenses, damages, losses, liabilities, judgments, fines, penalties
      and amounts paid in settlement (including without limitation all interest,
      assessments and other charges paid or payable in connection with or in respect
      of any of the foregoing) (collectively, “Losses”)
      relating to, resulting from or arising out of any act or failure to act by
      the
      Indemnitee, or his or her status as any person referred to in clause (i) of
      this sentence, (i) in his or her capacity as a director, officer, employee
      or agent of the Company, any of its Affiliates or any other entity as to which
      the indemnitee is or was serving at the request of the Company as a director,
      officer, employee, member, manager, trustee or agent of another corporation,
      limited liability company, partnership, joint venture, trust or other entity
      or
      enterprise, whether or not for profit and (ii) in respect of any business,
      transaction or other activity of any entity referred to in clause (i) of
      this sentence. 

     

         2. Indemnification.
      The
      Company will indemnify and hold harmless Indemnitee, to the fullest extent
      permitted by the laws of the State of Delaware in effect on the date hereof
      or
      as such laws may from time to time hereafter be amended to increase the scope
      of
      such permitted indemnification, against all Indemnifiable Losses relating to,
      resulting from or arising out of any Claim. The failure by Indemnitee to notify
      the Company of such Claim will not relieve the Company from any liability
      hereunder unless, and only to the extent that, the Company did not otherwise
      learn of the Claim and such failure results in forfeiture by the Company of
      substantial defenses, rights or insurance coverage. Except as provided in
Section 16,
      however, Indemnitee will not be entitled to indemnification pursuant to this
      Agreement in connection with any Claim initiated by Indemnitee against the
      Company or any director or officer of the Company unless the Company has joined
      in or consented to the initiation of such Claim. If so requested by Indemnitee,
      the Company will advance within two business days of such request any and all
      Expenses to Indemnitee which Indemnitee determines reasonably likely to be
      payable, provided, however, that Indemnitee will return, without interest,
      any
      such advance which remains unspent at the final conclusion of the Claim to
      which
      the advance related. 

     

         3. Additional
      Expenses.
      Without
      limiting the generality or effect of the foregoing, the Company will indemnify
      Indemnitee against and, if requested by Indemnitee, will within two business
      days of such request advance to Indemnitee, any and all attorneys’ fees and
      other Expenses paid or incurred by Indemnitee in connection with any Claim
      asserted or brought by Indemnitee for (i) indemnification or advance
      payment of Expenses by the Company under this Agreement or any other agreement
      or under any provision of the Company’s Constituent Documents now or hereafter
      in effect relating to Claims for Indemnifiable Losses and/or (ii) recovery
      under any directors’ and officers’ liability insurance policies maintained by
      the Company, regardless of whether Indemnitee ultimately is determined to be
      entitled to such indemnification, advance expense payment or insurance recovery,
      as the case may be. 

     

         4. Partial
      Indemnity.
      If
      Indemnitee is entitled under any provision of this Agreement to indemnification
      by the Company for some or a portion of any Indemnifiable Loss but not for
      all
      of the total amount thereof, the Company will nevertheless indemnify Indemnitee
      

     

    
      
         

      

      
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    for
      the
      portion thereof to which Indemnitee is entitled. Moreover, notwithstanding
      any
      other provision of this Agreement, to the extent that Indemnitee has been
      successful on the merits or otherwise in defense of any or all Claims relating
      in whole or in part to an Indemnifiable Loss or in defense of any issue or
      matter therein, including without limitation dismissal without prejudice,
      Indemnitee will be indemnified against all Expenses incurred in connection
      therewith. In connection with any determination as to whether Indemnitee is
      entitled to be indemnified hereunder, there will be a presumption that
      Indemnitee is so entitled, which presumption the Company may overcome only
      by
      its adducing clear and convincing evidence to the contrary. 

     

         5. No
      Other Presumption.
      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, will 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. 

     

         6. Non-Exclusivity.
      The
      rights of Indemnitee hereunder will be in addition to any other rights
      Indemnitee may have under the Constituent Documents, or the substantive laws
      of
      the Company’s jurisdiction of incorporation, any other contract or otherwise
      (collectively, “Other
      Indemnity Provisions”);
      provided, however, that (i) to the extent that Indemnitee otherwise would
      have any greater right to indemnification under any Other Indemnity Provision,
      Indemnitee will be deemed to have such greater right hereunder and (ii) to
      the extent that any change is made to any Other Indemnity Provision which
      permits any greater right to indemnification than that provided under this
      Agreement as of the date hereof, Indemnitee will be deemed to have such greater
      right hereunder. The Company will not adopt any amendment to any of the
      Constituent Documents the effect of which would be to deny, diminish or encumber
      Indemnitee’s right to indemnification under this Agreement or any Other
      Indemnity Provision. 

     

         7. Liability
      Insurance.
      To the
      extent the Company maintains an insurance policy or policies providing
      directors’ and officers’ liability insurance, Indemnitee will be covered by such
      policy or policies, in accordance with its or their terms, to the maximum extent
      of the coverage available for any director of the Company. The Company will
      not
      be required to create a trust fund, grant a security interest, obtain a letter
      of credit, or use other means to ensure the payment of such amounts as may
      be
      necessary to satisfy its obligations to indemnify and advance expenses pursuant
      to this Agreement. 

     

         8. Subrogation.
      In the
      event of payment under this Agreement, the Company will be subrogated to the
      extent of such payment to all of the related rights of recovery of Indemnitee
      against other persons or entities (other than Indemnitee’s successors). The
      Indemnitee will execute all papers reasonably required to evidence such rights
      of recovery (all of Indemnitee’s reasonable Expenses, including attorneys’ fees
      and charges, related thereto to be reimbursed by or, at the option of
      Indemnitee, advanced by the Company). 

     

         9. No
      Duplication of Payments.
      The
      Company will not be liable under this Agreement to make any payment in
      connection with any Indemnifiable Loss made against Indemnitee to the extent
      Indemnitee has otherwise actually received payment (net of Expenses incurred
      in
      connection therewith) under any insurance policy, the Constituent Documents
      and
      Other Indemnity Provisions or otherwise of the amounts otherwise indemnifiable
      hereunder. 

     

    
      
         

      

      
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         10. Defense
      of Claims.
      The
      Company will be entitled to participate in the defense of any Claim or to assume
      the defense thereof, with counsel reasonably satisfactory to the Indemnitee,
      provided that in the event that (i) the use of counsel chosen by the
      Company to represent Indemnitee would present such counsel with an actual or
      potential conflict, (ii) the named parties in any such Claim (including any
      impleaded parties) include both the Company and Indemnitee and Indemnitee shall
      conclude that there may be one or more legal defenses available to him or her
      that are different from or in addition to those available to the Company, or
      (iii) any such representation by the Company would be precluded under the
      applicable standards of professional conduct then prevailing, then Indemnitee
      will be entitled to retain separate counsel (but not more than one law firm
      in
      respect of any particular Claim) at the Company’s expense. The Company will not,
      without the prior written consent of the Indemnitee, effect any settlement
      of
      any threatened or pending Claim which the Indemnitee is or could have been
      a
      party unless such settlement solely involves the payment of money and includes
      an unconditional release of the Indemnitee from all liability on any claims
      that
      are the subject matter of such Claim. 

     

         11. Successors
      and Binding Agreement.
      

     

              (a) The
      Company will require any successor (whether direct or indirect, by purchase,
      merger, consolidation, reorganization or otherwise) to all or substantially
      all
      of the business or assets of the Company, by agreement in form and substance
      satisfactory to Indemnitee and his or her counsel, expressly to assume and
      agree
      to perform this Agreement in the same manner and to the same extent the Company
      would be required to perform if no such succession had taken place. This
      Agreement will be binding upon and inure to the benefit of the Company and
      any
      successor to the Company, including without limitation any person acquiring
      directly or indirectly all or substantially all of the business or assets of
      the
      Company whether by purchase, merger, consolidation, reorganization or otherwise
      (and such successor will thereafter be deemed the “Company”
for
      purposes of this Agreement), but will not otherwise be assignable or delegatable
      by the Company. 

     

              (b) This
      Agreement will inure to the benefit of and be enforceable by the Indemnitee’s
      personal or legal representatives, executors, administrators, successors, heirs,
      distributees, legatees and other successors. 

     

              (c) This
      Agreement is personal in nature and neither of the parties hereto will, without
      the consent of the other, assign or delegate this Agreement or any rights or
      obligations hereunder except as expressly provided in Sections 11(a)
      and 11(b).
      Without
      limiting the generality or effect of the foregoing, Indemnitee’s right to
      receive payments hereunder will not be assignable, whether by pledge, creation
      of a security interest or otherwise, other than by a transfer by the
      Indemnitee’s will or by the laws of descent and distribution, and, in the event
      of any attempted assignment or transfer contrary to this Section 11(c),
      the
      Company will have no liability to pay any amount so attempted to be assigned
      or
      transferred. 

     

         12. Notices.
      For all
      purposes of this Agreement, all communications, including without limitation
      notices, consents, requests or approvals, required or permitted to be given
      hereunder will be in writing and will be deemed to have been duly given when
      hand delivered or dispatched by electronic facsimile transmission (with receipt
      thereof orally confirmed), or five 

     

    
      
         

      

      
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    business
      days after having been mailed by United States registered or certified mail,
      return receipt requested, postage prepaid or one business day after having
      been
      sent for next-day delivery by a nationally recognized overnight courier service,
      addressed to the Company (to the attention of the Secretary of the Company)
      and
      to the Indemnitee at the addresses shown on the signature page hereto, or to
      such other address as any party may have furnished to the other in writing
      and
      in accordance herewith, except that notices of changes of address will be
      effective only upon receipt. 

     

         13. Governing
      Law.
      The
      validity, interpretation, construction and performance of this Agreement will
      be
      governed by and construed in accordance with the substantive laws of the State
      of Delaware, without giving effect to the principles of conflict of laws of
      such
      State. Each party consents to non-exclusive jurisdiction of any Delaware state
      or federal court or any court in any other jurisdiction in which a Claim is
      commenced by a third person for purposes of any action, suit or proceeding
      hereunder, waives any objection to venue therein or any defense based on forum
      non conveniens or similar theories and agrees that service of process may be
      effected in any such action, suit or proceeding by notice given in accordance
      with Section 12.
      

     

         14. Validity.
      If any
      provision of this Agreement or the application of any provision hereof to any
      person or circumstance is held invalid, unenforceable or otherwise illegal,
      the
      remainder of this Agreement and the application of such provision to any other
      person or circumstance will not be affected, and the provision so held to be
      invalid, unenforceable or otherwise illegal will be reformed to the extent,
      and
      only to the extent, necessary to make it enforceable, valid or legal.


     

         15. Miscellaneous.
      No
      provision of this Agreement may be waived, modified or discharged unless such
      waiver, modification or discharge is agreed to in writing signed by Indemnitee
      and the Company. No waiver by either party hereto at any time of any breach
      by
      the other party hereto or compliance with any condition or provision of this
      Agreement to be performed by such other party will be deemed a waiver of similar
      or dissimilar provisions or conditions at the same or at any prior or subsequent
      time. No agreements or representations, oral or otherwise, expressed or implied
      with respect to the subject matter hereof have been made by either party that
      are not set forth expressly in this Agreement. References to Sections are to
      references to Sections of this Agreement. 

     

         16. Legal
      Fees.
      It is
      the intent of the Company that the Indemnitee not be required to incur legal
      fees and or other Expenses associated with the interpretation, enforcement
      or
      defense of Indemnitee’s rights under this Agreement by litigation or otherwise
      because the cost and expense thereof would substantially detract from the
      benefits intended to be extended to the Indemnitee hereunder. Accordingly,
      without limiting the generality or effect of any other provision hereof, if
      it
      should appear to the Indemnitee that the Company has failed to comply with
      any
      of its obligations under this Agreement or in the event that the Company or
      any
      other person takes or threatens to take any action to declare this Agreement
      void or unenforceable, or institutes any litigation or other action or
      proceeding designed to deny, or to recover from, the Indemnitee the benefits
      provided or intended to be provided to the Indemnitee hereunder, the Company
      irrevocably authorizes the Indemnitee from time to time to retain counsel of
      Indemnitee’s choice, at the expense of the Company as hereafter provided, to
      advise and represent the Indemnitee in connection with any such interpretation,
      enforcement or defense, 

     

    
      
         

      

      
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    including
      without limitation the initiation or defense of any litigation or other legal
      action, whether by or against the Company or any director, officer, stockholder
      or other person affiliated with the Company, in any jurisdiction.
      Notwithstanding any existing or prior attorney-client relationship between
      the
      Company and such counsel, the Company irrevocably consents to the Indemnitee’s
      entering into an attorney-client relationship with such counsel, and in that
      connection the Company and the Indemnitee agree that a confidential relationship
      shall exist between the Indemnitee and such counsel. Without respect to whether
      the Indemnitee prevails, in whole or in part, in connection with any of the
      foregoing, the Company will pay and be solely financially responsible for any
      and all attorneys’ and related fees and expenses incurred by the Indemnitee in
      connection with any of the foregoing. 

     

         17. Interpretation.
      No
      provision of this Agreement will be interpreted in favor of, or against, either
      of the parties hereto by reason of the extent to which any such party or its
      counsel participated in the drafting thereof or by reason of the extent to
      which
      any such provision is inconsistent with any prior draft hereof or thereof.
      

     

         18. Counterparts.
      This
      Agreement may be executed by facsimile and in one or more counterparts, each
      of
      which will be deemed to be an original but all of which together will constitute
      one and the same agreement. 

     

         IN
      WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly
      authorized representative to execute this Agreement as of the date first above
      written. 

     

    INDEMNITEE:
      

    _________________________________

     

    
      	
              Name:
                

            	
               

            	
              _______________________________

            	
               

            	
               

            


    

     

    
      	
               

            	
              XCORPOREAL,
                INC.

               

            	
               

            
	
               

            	
              By:  

            	
               

            	
               

            
	
               

            	 	 	 	 
	
               

            	
              Name:  

            	
               

            	
               

            
	
               

            	 	 	 	 
	
               

            	
              Title:  

            	
               

            	
               

            


    

     

    
      
         

      

      
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