Exhibit 10.1


INDEMNIFICATION
AGREEMENT


This Indemnification
Agreement (“Agreement”) is made as of                        ,
2007 by and between LifeWatch Corp., a Delaware corporation (the “Company”),
and                          
(“Indemnitee”).


RECITALS


WHEREAS, highly competent
persons have become more reluctant to serve publicly-held corporations as
directors or in other capacities unless they are provided with adequate
protection through insurance and/or adequate indemnification against inordinate
risks of claims and actions against them arising out of their service to and
activities on behalf of the corporation.


WHEREAS, although Indemnitee
may be entitled to indemnification pursuant to the Company’s Certificate of
Incorporation and Bylaws and the Delaware General Corporation Law (“DGCL”), the
DGCL expressly provides that the indemnification provisions set forth therein
are not exclusive, and thereby contemplates that contracts may be entered into
between the Company and members of the board of directors, officers and other
persons with respect to indemnification.


WHEREAS, the Company has
determined that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company’s stockholders and
that the Company should act to assure such persons that there will be increased
certainty of such protection in the future.


WHEREAS, it is reasonable,
prudent and necessary for the Company contractually to obligate itself to
indemnify, and to advance expenses on behalf of, such persons to the fullest
extent permitted by applicable law so that they will serve or continue to serve
the Company free from undue concern that they will not be so indemnified.


WHEREAS, this Agreement is a
supplement to and in furtherance of the Certificate of Incorporation and the
Bylaws of the Company and any resolutions adopted pursuant thereto, and shall
not be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder.


WHEREAS, Indemnitee believes
that this Agreement is desirable to augment the protection available under the
Company’s Certificate of Incorporation, the Company’s Bylaws and insurance, and
may not be willing to serve as a director or officer without the additional
protection provided for under this Agreement, and the Company desires
Indemnitee to serve in such capacity and Indemnitee is willing to serve and
continue to serve on the condition that he be so indemnified;


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


1.             SERVICES TO THE COMPANY.  Indemnitee will serve or continue to serve, at
the will of the Company in accordance with the Company’s Bylaws, as a director
or officer of 


 

















 


the Company for so long as Indemnitee is duly
elected or appointed or until Indemnitee tenders his or her resignation.


2.             DEFINITIONS. As used in this Agreement:


(a)           “Beneficial Owner” shall have the meaning given to such
term in Rule 13d-3 under the Exchange Act; provided, however,
that Beneficial Owner shall exclude any Person otherwise becoming a Beneficial
Owner by reason of the stockholders of the Company approving a merger of the
Company with another entity.


(b)           A “Change in Control” shall be deemed to occur upon the
earliest to occur after the date of this Agreement of any of the following
events:


(i)            Change in Board of Directors. During any period of two
(2) consecutive years (not including any period prior to the execution of this
Agreement), individuals who at the beginning of such period constitute the
Board of Directors of the Company (the “Board”), and any new director (other
than a director designated by a person who has entered into an agreement with
the Company to effect a transaction described in Sections 2(b)(ii) or 2(b)(iii))
whose election by the Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the directors
then still in office who either were directors at the beginning of the period
or whose election or nomination for election was previously so approved, cease
for any reason to constitute a least a majority of the members of the Board;


(ii)           Corporate Transactions. The effective date of a merger or
consolidation of the Company with any other entity, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 51% of the combined voting power
of the voting securities of the surviving entity outstanding immediately after
such merger or consolidation and with the power to elect at least a majority of
the board of directors or other governing body of such surviving entity;


(iii)          Liquidation. The approval by the stockholders of the
Company of a complete liquidation of the Company or an agreement for the sale
or disposition by the Company of all or substantially all of the Company’s
assets; and


(iv)          Other Events. There occurs any other event of a nature that
would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any similar schedule or
form) promulgated under the Exchange Act (as defined below), whether or not the
Company is then subject to such reporting requirement.


(c)           “Corporate Status” describes the status of a person who is
or was a director, officer, employee or agent of the Company or of any other
corporation, limited liability company, partnership or joint venture, trust,
employee benefit plan or other enterprise which such person is or was serving
at the request of the Company.


 


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(d)           “Disinterested Director” means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.


(e)           “Exchange Act” shall mean the Securities Exchange Act of
1934, as amended.


(f)            “Enterprise” shall mean the Company 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, employee, agent or
fiduciary.


(g)           “Expenses” shall include all reasonable attorneys’ fees
and expenses, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a Proceeding. Expenses also
shall include Expenses incurred in connection with any appeal resulting from
any Proceeding, including without limitation the premium, security for, and
other costs relating to any cost bond, supersedeas bond, or other appeal bond
or its equivalent. Expenses, however, shall not include amounts paid in
settlement by Indemnitee or the amount of judgments or fines against
Indemnitee.


(h)           Reference to “other enterprise” shall include employee
benefit plans; references to “fines” shall include any excise tax assessed with
respect to any employee benefit plan; references to “serving at the request of
the Company” shall include any service as a director, officer, employee or
agent of the Company which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the best interests of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in
manner “not opposed to the best interests of the Company” as referred to in
this Agreement.


(i)            “Person” shall have the meaning as set forth in Sections
13(d) and 14(d) of the Exchange Act; provided, however, that
Person shall exclude (i) the Company, (ii) any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, and (iii) any
corporation owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the
Company.


(j)            The term “Proceeding” shall include any threatened,
pending or completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought in the right of the Company
or otherwise and whether of a civil, criminal, administrative or investigative
nature, in which Indemnitee was, is or will be involved as a party or otherwise
by reason of the fact that Indemnitee is or was a director or officer of the
Company, by reason of any action taken by him or of any action on his part
while acting as director or officer of the Company, or by reason of the fact
that he is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, limited liability company, 


 


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partnership, joint venture, trust or other
enterprise, in each case whether or not serving in such capacity at the time
any liability or expense is incurred for which indemnification, reimbursement,
or advancement of expenses can be provided under this Agreement; except one
initiated by Indemnitee to enforce his rights under this Agreement; provided
that, the term Proceeding shall not include any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding by Indemnitee against the Company, including, but not
limited to, proceedings initiated by Indemnitee or involving a counterclaim by
Indemnitee.


(k)           “Independent Counsel” means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company
or Indemnitee in any matter material to either such party (other than with
respect to matters concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), 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. The Company agrees to pay the reasonable fees and expenses of the
Independent Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.


3.             INDEMNITY IN THIRD-PARTY PROCEEDINGS.  The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding, other
than a Proceeding by or in the right of the Company to procure a judgment in
its favor against you. Pursuant to this Section 3, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all
Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, regardless of outcome, if
Indemnitee acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company and, in the case of a
criminal proceeding had no reasonable cause to believe that his conduct was
unlawful.


4.             INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY.  The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 4 if Indemnitee
is, or is threatened to be made, a party to or a participant in any Proceeding
by or in the right of the Company to procure a judgment in its favor. Pursuant
to this Section 4, Indemnitee shall be indemnified to the fullest extent
permitted by applicable law against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if Indemnitee acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company. No indemnification for Expenses shall be made under this Section 4
in respect of any claim, issue or matter as to which Indemnitee shall have been
finally adjudged by a court to be liable to the Company unless, and only to the
extent that, the Delaware Court of Chancery or any court in which the
Proceeding was brought shall determine upon application that, despite the adjudication



 


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of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to indemnification.


5.             INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL.  Notwithstanding any
other provisions of this Agreement, to the fullest extent permitted by
applicable law and to the extent that Indemnitee is a party to (or a
participant in) and is successful, on the merits or otherwise, in any
Proceeding or in defense of any claim, issue or matter therein, in whole or in
part, the Company shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such Proceeding,
the Company shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. If the Indemnitee is not wholly
successful in such Proceeding, the Company also shall indemnify Indemnitee
against all Expenses reasonably incurred in connection with a claim, issue or
matter related to any claim, issue, or matter on which the Indemnitee was
successful. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.


6.             INDEMNIFICATION FOR EXPENSES OF A WITNESS.  Notwithstanding any other provision of this
Agreement, to the fullest extent permitted by applicable law and to the extent
that Indemnitee is, by reason of his Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.


7.             ADDITIONAL INDEMNIFICATION.


(a)           Notwithstanding any limitation in Sections 3, 4, or 5, the
Company shall indemnify Indemnitee to the fullest extent permitted by
applicable law if Indemnitee is a party to or threatened to be made a party to
any Proceeding (including a Proceeding by or in the right of the Company to
procure a judgment in its favor) against all Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee in
connection with the Proceeding; provided, however, that the
Company shall have the right to consent to any settlement, which consent shall
not be unreasonably withheld. No indemnity shall be made under this Section
7(a) on account of Indemnitee’s conduct which constitutes a breach of
Indemnitee’s duty of loyalty to the Company or its stockholders or is an act or
omission not in good faith or which involves intentional misconduct or a
knowing violation of the law.


(b)           For purposes of Section 7(a), the meaning of the phrase “to
the fullest extent permitted by applicable law” shall include, but not be
limited to:


(i)            to the fullest extent permitted by the provision of the
DGCL that authorizes or contemplates additional indemnification by agreement,
or the corresponding provision of any amendment to or replacement of the DGCL;
and


 


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(ii)           to the fullest extent authorized or permitted by any
amendments to or replacements of the DGCL adopted after the date of this
Agreement that increase the extent to which a corporation may indemnify its officers
and directors.


8.             EXCLUSIONS.  Notwithstanding
any provision in this Agreement, the Company shall not be obligated under this
Agreement to make any indemnity in connection with any claim made against
Indemnitee:


(a)           for which payment has actually been made to or on behalf
of Indemnitee under any insurance policy or under another valid and enforceable
indemnity provision, except with respect to any excess beyond the amount paid
under any insurance policy or other indemnity provision;


(b)           for an accounting of profits made from the purchase and
sale (or sale and purchase) by Indemnitee of securities of the Company within
the meaning of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of other federal or state statutory law or
common law; or


(c)           in connection with any Proceeding (or any part of any
Proceeding) initiated by Indemnitee, including any Proceeding (or any part of
any Proceeding) initiated by Indemnitee against the Company’s directors,
officers, employees or other indemnitees, unless


(i)            such indemnification is expressly required to be made by
applicable law;


(ii)           the Board of Directors of the Company authorized the
Proceeding (or any part of any Proceeding) prior to its initiation; or


(iii)          the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company to the fullest extent
permitted by applicable law.


9.             ADVANCES OF EXPENSES.  Notwithstanding any provision of this
Agreement to the contrary, to the fullest extent permitted by applicable law
the Company shall advance the expenses incurred by Indemnitee in connection
with any Proceeding within twenty (20) days after the receipt by the Company of
a statement or statements requesting such advances from time to time, whether
prior to or after final disposition of any Proceeding. Advances shall be
unsecured and interest free. Advances shall be made without regard to
Indemnitee’s ability to repay the expenses and without regard to Indemnitee’s
ultimate entitlement to indemnification under the other provisions of this
Agreement. Advances shall include any and all reasonable Expenses incurred
pursuing an action to enforce this right of advancement, including Expenses
incurred preparing and forwarding statements to the Company to support the
advances claimed. The Indemnitee shall qualify for advances solely upon the
execution and delivery to the Company of an undertaking providing that the
Indemnitee undertakes to repay the advance to the extent that it is ultimately
determined that Indemnitee is not entitled to be indemnified by the Company. This
Section 9 shall not apply to any claim made by Indemnitee for which indemnity
is excluded pursuant to Section 8.


 


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10.           PROCEDURE FOR NOTIFICATION AND DEFENSE OF CLAIM.


(a)           Within thirty (30) days after service of process of
Indemnitee relating to notice of the commencement of any Proceeding, Indemnitee
shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee and
is reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The omission to notify the Company within such
thirty (30) day period will not relieve the Company from any liability which it
may have to Indemnitee under this Agreement except to the extent the failure of
Indemnitee to provide such notice within thirty (30) days after receipt by
Indemnitee of notice of the commencement of any Proceeding adversely affects
the Company’s rights, legal position, ability to defend or ability to obtain
insurance coverage with respect to such Proceeding. The omission to notify the
Company will not relieve the Company from any liability which it may have to
Indemnitee otherwise than under this Agreement. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification, advise the
Board in writing that Indemnitee has requested indemnification.


(b)           If the Company shall be obligated to pay the Expenses of
any Proceeding against the Indemnitee, the Company shall be entitled to assume
and control the defense of such Proceeding (with counsel consented to by the
Indemnitee, which consent shall not be unreasonably withheld), upon the
delivery to the Indemnitee of written notice of its election so to do. After
delivery of such notice, consent to such counsel by the Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of separate counsel subsequently
incurred by the Indemnitee with respect to the same Proceeding, provided
that if (i) the employment of separate counsel by the Indemnitee has been
previously authorized by the Company, (ii) the Indemnitee or counsel selected
by the Company shall have concluded that there may be a conflict of interest
between the Company and the Indemnitee or among Indemnitees jointly represented
in the conduct of any such defense or (iii) the Company shall not, in fact,
have employed counsel, to which Indemnitee has consented as aforesaid, to
assume the defense of such Proceeding, then the reasonable fees and expenses of
Indemnitee’s counsel shall be at the expense of the Company. Notwithstanding
the foregoing, the Indemnitee shall have the right to employ counsel in any
such Proceeding at the Indemnitee’s expense.


(c)           The Company will be entitled to participate in the
Proceeding at its own expense. The Company will not, without prior written
consent of the Indemnitee, effect any settlement of a claim against the
Indemnitee in any threatened or pending Proceeding 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 or were threatened to
be made against the Indemnitee in the Proceeding.


11.           PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.


(a)           Upon written request by Indemnitee for indemnification
pursuant to the first sentence of Section 10(a), a determination, if required
by applicable law, with respect to Indemnitee’s entitlement thereto shall be
made in the specific case:


 


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(i)            if a Change in Control shall have occurred, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee; or


(ii)           if a Change in Control shall not have occurred,


(A)          by a majority vote of the
Disinterested Directors, even though less than a quorum of the Board,


(B)           by a committee of Disinterested
Directors designated by a majority vote of the Disinterested Directors, even
though less than a quorum of the Board,


(C)           if there are no such Disinterested
Directors or, if such Disinterested Directors so direct, by Independent Counsel
in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee or


(D)          if so directed by the Board, by the
stockholders of the Company; and, if it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination.


Indemnitee shall cooperate
with the person, persons or entity making such determination with respect to
Indemnitee’s entitlement to indemnification, including providing to such
person, persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys’ fees and expenses
and disbursements) incurred by Indemnitee in so cooperating with the person,
persons or entity making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.


(b)           In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 11(a)
hereof, the Independent Counsel shall be selected as provided in this Section
11(b). If a Change in Control shall not have occurred, the Independent Counsel
shall be selected by the Board of Directors, and the Company shall give written
notice to Indemnitee advising him of the identity of the Independent Counsel so
selected. If a Change in Control shall have occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors, in which event the preceding sentence
shall apply), and Indemnitee shall give written notice to the Company advising
it of the identity of the Independent Counsel so selected. In either event,
Indemnitee or the Company, as the case may be, may, within 10 days after such
written notice of selection shall have been given, deliver to the Company or to
Indemnitee, as the case may be, a written objection to such selection; provided,
however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Section 2 of this Agreement, and the 


 


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objection shall set forth with particularity the
factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If such written objection
is so made and substantiated, the Independent Counsel so selected may not serve
as Independent Counsel unless and until such objection is withdrawn or an arbitration
panel pursuant to Section 14 hereto has determined that such objection is
without merit. If, within 20 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 10(a) hereof, no Independent
Counsel shall have been selected and not objected to, either the Company or
Indemnitee may seek an arbitral determination pursuant to Section 14 hereto for
resolution of any objection which shall have been made by the Company or
Indemnitee to the other’s selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the arbitration
panel or by such other person as the arbitration panel shall designate, and the
person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 11(a) hereof. Upon the
due commencement of any arbitration pursuant to Section 14 of this Agreement,
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).


12.           PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.


(a)           In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 10(a) of this Agreement, and the Company shall have
the burden of proof to overcome that presumption in connection with the making
by any person, persons or entity of any determination contrary to that
presumption.


(b)           Neither the failure of the Company (including by its
directors or independent legal counsel) to have made a determination prior to
the commencement of any action pursuant to this Agreement that indemnification
is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company (including by
its directors or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that Indemnitee has not met the applicable standard of conduct.


(c)           If the person, persons or entity empowered or selected
under Section 11 of this Agreement to determine whether Indemnitee is entitled
to indemnification shall not have made a determination within sixty (60) days
after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification, absent a
prohibition of such indemnification under applicable law; provided, however,
that such 60-day period may be extended for a reasonable time, not to exceed an
additional thirty (30) days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of documentation
and/or information relating thereto; and provided, further, that
the foregoing provisions of this Section 12(b) shall not apply (i) if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 11(a) of this Agreement and if (A) within
fifteen (15) days after receipt by the Company of the request for such
determination the Board of Directors has 


 


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resolved to submit such determination to the
stockholders for their consideration at an annual meeting thereof to be held
within seventy-five (75) days after such receipt and such determination is made
thereat, or (B) a special meeting of stockholders is called within fifteen (15)
days after such receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after having been so
called and such determination is made thereat, or (ii) if the determination of
entitlement to indemnification is made by Independent Counsel pursuant to
Section 11(a) of this Agreement.


(d)           The termination of any Proceeding or of any claim, issue
or matter therein, by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was unlawful.


(e)           The Company acknowledges that a settlement or other
disposition short of final judgment may be successful if it permits a party to
avoid expense, delay, distraction, disruption and uncertainty.  In the event that any action, claim or
proceeding to which Indemnitee is a party is resolved in any manner other than
by adverse judgment against Indemnitee (including, without limitation,
settlement of such action, claim or proceeding with or without payment of money
or other consideration) it shall be presumed that Indemnitee has been
successful on the merits or otherwise in such action, suit or proceeding.  Anyone seeking to overcome this presumption
shall have the burden of proof and the burden of persuasion by clear and
convincing evidence.


(f)            RELIANCE AS SAFE HARBOR. For purposes of any
determination of good faith, Indemnitee shall be deemed to have acted in good
faith if Indemnitee’s action is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to
Indemnitee by the officers of the Enterprise in the course of their duties, or
on the advice of legal counsel for the Enterprise or on information or records
given or reports made to the Enterprise by an independent certified public
accountant or by an appraiser or other expert selected with the reasonable care
by the Enterprise. The provisions of this Section 12(e) shall not be deemed to
be exclusive or to limit in any way the other circumstances in which the
Indemnitee may be deemed to have met the applicable standard of conduct set
forth in this Agreement.


(g)           ACTIONS OF OTHERS. The knowledge and/or actions, or
failure to act, of any director, officer, agent or employee of the Enterprise
shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.


13.           REMEDIES OF INDEMNITEE.


(a)           In the event that


(i)            a determination is made pursuant to Section 11 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement,


 


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(ii)           advancement of Expenses is not timely made pursuant to
Section 9 of this Agreement,


(iii)          no determination of entitlement to indemnification shall
have been made pursuant to Section 11(a) of this Agreement within 45 days after
receipt by the Company of the request for indemnification,


(iv)          payment of indemnification is not made pursuant to Section
5 or 6 or the last sentence of Section 11(a) of this Agreement within ten (10)
days after receipt by the Company of a written request therefor, or


(v)           payment of indemnification pursuant to Section 3, 4 or 7
of this Agreement is not made within ten (10) days after a determination has
been made that Indemnitee is entitled to indemnification,


Indemnitee shall be entitled
to seek an arbitral award relating to his entitlement to such indemnification or
advancement of Expenses, with such arbitration to be governed by the provisions
of Section 14 hereto.


(b)           The Company shall indemnify Indemnitee against any and all
Expenses and, if requested by Indemnitee, shall (within ten (10) days after
receipt by the Company of a written request therefor) advance, to the extent
not prohibited by Section 402 of the Sarbanes-Oxley Act of 2002 or other
applicable law, such expenses to Indemnitee, which are incurred by Indemnitee
in connection with any action brought by Indemnitee for indemnification or
advance of Expenses from the Company under this Agreement or 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, advancement of Expenses or insurance recovery, as the
case may be.


14.           ARBITRATION


(a)           Except as otherwise provided in this Agreement, any
dispute, controversy or claim arising out of or in connection with this
Agreement, including the determination of remedies of Indemnitee pursuant to
Section 13, or the breach, termination or validity thereof, shall be settled
exclusively by binding arbitration in accordance with the then prevailing rules
of the American Arbitration Association. 
The arbitration shall be administered by a panel of three independent
and impartial arbitrators jointly selected by the parties and shall be held in
New York City, New York.


(b)           The arbitration panel shall have the power and authority
in its sole discretion to order pre-arbitration discovery.  The Company shall have the burden of proving
Indemnitee is not entitled to indemnification or advancement of Expenses, as
the case may be. The arbitration panel shall render its decision and award
within 30 days after the conclusion of the arbitration hearing, which hearing
shall be conducted on an expedited schedule. 
At the conclusion of the arbitration, the arbitrator shall award costs
and Expenses to the prevailing party.


 


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(c)           The arbitral award made and granted by the arbitration
panel shall be final, binding and not subject to judicial review, and judgment
thereon may be entered in any court having competent jurisdiction.


(d)           The Company shall be precluded from asserting in any
arbitration commenced pursuant to this Section 14 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable.


15.           NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; SUBROGATION.


(a)           The rights of indemnification and to receive advancement
of Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Company’s Certificate of Incorporation, the Company’s Bylaws, any agreement,
a vote of stockholders or a resolution of directors, or otherwise. 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 Corporate Status prior
to such amendment, alteration or repeal. To the extent that a change in
Delaware law, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded currently
under the Company’s Bylaws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change. 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, shall not prevent
the concurrent assertion or employment of any other right or remedy.


(b)           To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
employees, or agents of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which such
person serves at the request of the Company, Indemnitee shall be an insured
under such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer,
employee or agent under such policy or policies. The Company agrees to promptly
notify Indemnitee of any material change in any such policy. The Company may,
but will not be required to, create a trust fund, grant a security interest or
use other means, including, without limitation, a letter of credit, to ensure
the payment of such amounts as may be necessary to satisfy the obligations to
indemnify and advance Expenses pursuant to this Agreement. If, at the time of
the receipt of a notice of a claim pursuant to the terms hereof, the Company
has director and officer liability insurance in effect, the Company shall give
prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The
Company and Indemnitee shall mutually cooperate and take all reasonable actions
to cause such insurers to pay on behalf of the insureds, all amounts payable as
a result of such proceeding in accordance with the terms of all applicable
policies.


(c)           In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall 


 


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execute all papers required and take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights.


(d)           The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable (or for which advancement
is provided hereunder) hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, the
Certificate of Incorporation, the Bylaws, contract, agreement or otherwise.


(e)           The Company’s obligation to indemnify or advance Expenses
hereunder to Indemnitee who is or was serving at the request of the Company as
a director, officer, employee or agent of any other corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise shall be reduced by any amount Indemnitee has actually
received as indemnification or advancement of expenses from such other
corporation, limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise.


16.           WAIVER OF JURY TRIAL. 
Each of the parties hereby knowingly, voluntarily, and intentionally
waives any rights it may have to a trial by jury in respect of any litigation
based hereon or arising out of, under or in connection with this Agreement or
any course of conduct, course of dealing, statements (whether oral or written)
or actions of the parties hereto.


17.           DURATION OF AGREEMENT, SUCCESSORS AND
ASSIGNS.  This Agreement shall continue
until and terminate upon the later of: (a) twenty years after Indemnitee has
ceased to occupy any positions or have any relationships described in Section 1
of this Agreement; and (b) the final termination of all actions, suits,
proceedings or investigations pending or threatened during such twenty year
period to which Indemnitee may be subject by reason of the fact that Indemnitee
is or was a director or officer of the Company or is or was serving at the
request of the Company as a director, officer, employee agent or fiduciary of
any other entity, including, but not limited to, another corporation,
partnership, joint venture or trust, or by reason of anything done or not done
by Indemnitee in any such capacity. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of and be
enforceable by Indemnitee and his personal and legal representatives, heirs,
executors, administrators, distributees, legatees and other successors.


 


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18.           SEVERABILITY.  If any provision or provisions of this
Agreement or any application of any provision hereof shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including without limitation, each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent
permitted by law; (b) such provision or provisions shall be deemed reformed to
the extent necessary to conform to applicable law and to give the maximum
effect to the intent of the parties hereto; and (c) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
thereby.


19.           ENFORCEMENT.


(a)           The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as a director or officer of the Company, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as a director or
officer of the Company.


(b)           This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof; provided, however, that
this Agreement is a supplement to and in furtherance of the Certificate of
Incorporation of the Company, the Bylaws of the Company and applicable law, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any rights
of Indemnitee thereunder.


20.           MODIFICATION AND WAIVER.  No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the parties
thereto. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions of this Agreement nor
shall any waiver constitute a continuing waiver.


21.           NOTICE BY INDEMNITEE.  Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder. Indemnitee also agrees to promptly notify the Company of any
payments made to Indemnitee pursuant to director and officer liability
insurance policies to which the Company is entitled to credit or reimbursement
under this Agreement. The failure of Indemnitee to so notify the Company shall
not relieve the Company of any obligation which it may have to the Indemnitee
under this Agreement or otherwise.


 


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22.           NOTICES.  Any notices or other communications required
or permitted under, or otherwise in connection with this Agreement, shall be in
writing and shall be deemed to have been duly given when delivered in person or
upon confirmation of receipt when transmitted by facsimile transmission (but
only if followed by transmittal by national overnight courier or hand for
delivery on the next business day) or on receipt after dispatch by registered
or certified mail, postage prepaid, addressed, or on the next business day if
transmitted by national overnight courier, in each case as follows: (i) if to
the Company, directed to the Chief Executive Officer and General Counsel at its
principal place of business; and (ii) if to the Indemnitee, to such address as
set forth below their name on the signature page to this Agreement; or such
other persons or addresses as shall be furnished in writing by the Indemnitee
to the Company.


23.           CONTRIBUTION.  To
the fullest extent permissible by applicable law, if the indemnification
provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute
to the amount incurred by Indemnitee, whether for judgments, fines, penalties,
excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in
connection with any claim relating to an indemnifiable event under this
Agreement, in such proportion as is deemed fair and reasonable in light of all
of the circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative
fault of the Company (and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or transaction(s).  The Company hereby agrees to fully indemnify
and hold Indemnitee harmless from any claims of contribution which may be
brought by officers, directors or employees of the Company, other than
Indemnitee, who may be jointly liable with Indemnitee.


24.           APPLICABLE LAW AND CONSENT TO JURISDICTION.  This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware, without regard to its conflict of laws
rules.


25.           IDENTICAL 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 one and the same Agreement. Only one such counterpart
signed by the party against whom enforceability is sought needs to be produced
to evidence the existence of this Agreement.


26.           MISCELLANEOUS.  Use
of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.


 


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                IN WITNESS WHEREOF, the parties have caused this
Agreement to be signed as of the day and year first above written.


 


	
  LifeWatch Corp.

  	
   

  	
  Indemnitee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Frederick John Mindermann

  	
   

  	
  Name:

  	
   

  
	
   

  	
  Chief Executive Officer

  	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


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