INDEMNIFICATION AGREEMENT

 

                            INDEMNIFICATION AGREEMENT

 

     This Indemnification Agreement (the "AGREEMENT") is made as of November 15,

2005, by and between LXU   Healthcare,   Inc., a   Massachusetts   corporation   (the

"COMPANY"), and Robert W. Fisher (the "INDEMNITEE").

 

 

                                    RECITALS

 

     The Company and Indemnitee recognize the increasing difficulty in obtaining

liability insurance for directors,   non-voting   observers on the Company's Board

of   Directors   ("non-voting   observers"),   officers and key   employees,   and the

significant   increases in the cost of such insurance and the general   reductions

in the coverage of such insurance.   The Company and Indemnitee further recognize

the   substantial   increase   in   corporate   litigation   in   general,    subjecting

directors,   non-voting   observers,   officers   and   key   employees   to   expensive

litigation   risks at the same time as the availability and coverage of liability

insurance   has been   severely   limited.   Indemnitee   does not regard the current

protection available as adequate under the present circumstances, and Indemnitee

and agents of the   Company   may not be willing to continue to serve as agents of

the Company without   additional   protection.   The Company desires to attract and

retain the services of highly qualified individuals,   such as Indemnitee, and to

indemnify its directors,   non-voting observers, officers and key employees so as

to provide them with the maximum protection permitted by law.

 

                                     AGREEMENT

 

     In   consideration   of the mutual promises made in this   Agreement,   and for

other good and valuable consideration,   receipt of which is hereby acknowledged,

the Company and Indemnitee hereby agree as follows:

 

     1. INDEMNIFICATION.

 

     (a) THIRD PARTY   PROCEEDINGS.   The Company   shall   indemnify   Indemnitee if

Indemnitee is or was a party or   participant or is threatened to be made a party

to or   participant   in any   threatened,   pending or   completed   action,   suit or

proceeding, whether civil, criminal, administrative or investigative (other than

an   action   by or in the   right of the   Company)   by   reason   of the   fact   that

Indemnitee   is or   was,   or is or was   alleged   to be,   a   director,   non-voting

observer,   officer,   employee or agent of the Company,   or any subsidiary of the

Company, by reason of any action or inaction,   or alleged action or inaction, on

the part of Indemnitee   while an officer,   director or non-voting   observer,   or

while alleged to be an officer, director or non-voting observer, or by reason of

the fact that   Indemnitee is or was, or is or was alleged to be,   serving at the

request of the   Company as a   director,   officer,   employee   or agent of another

corporation,   partnership,   joint venture,   trust or other   enterprise,   against

expenses   (including   attorneys'   fees),   judgments,   fines and amounts   paid in

settlement   (if such   settlement   is approved in advance by the   Company,   which

approval shall not be unreasonably withheld) actually and reasonably incurred by

Indemnitee   in   connection   with such action,   suit or   proceeding if Indemnitee

acted in good faith and in a manner Indemnitee   reasonably   believed to be in or

not opposed to the best   interests   of the   Company,   and,   with   respect to any

criminal action or proceeding,   had no reasonable cause to believe   Indemnitee's

conduct was   unlawful.   The   termination   of any action,   suit or   proceeding by

judgment,   order, settlement,   conviction,   or upon a plea of nolo contendere or

its equivalent,   shall not, of itself,   create a presumption that Indemnitee did

not act in good faith and in a manner which Indemnitee reasonably believed to be

in or not opposed to the best interests of the Company,   or, with respect to any

criminal action or proceeding,   that Indemnitee had reasonable   cause to believe

that Indemnitee's conduct was unlawful.

 

                                     - 1 -

<PAGE>

     (b)   PROCEEDINGS   BY OR IN THE   RIGHT OF THE   COMPANY.   The   Company   shall

indemnify Indemnitee if Indemnitee was or is a party to or participant in, or is

threatened to be made a party to or participant in, any   threatened,   pending or

completed   action   or   proceeding   by or in   the   right   of the   Company   or any

subsidiary   of the   Company to procure a judgment   in its favor by reason of the

fact   that   Indemnitee   is or   was,   or is or was   alleged   to be,   a   director,

non-voting   observer,   officer,   employee   or   agent   of   the   Company,   or   any

subsidiary   of the   Company,   by reason of any   action or   inaction,   or alleged

action or   inaction,   on the part of   Indemnitee   while an officer,   director or

non-voting observer,   or while alleged to be an officer,   director or non-voting

observer,   or by   reason   of the fact that   Indemnitee   is or was,   or is or was

alleged to be,   serving at the request of the   Company as a   director,   officer,

employee or agent of another corporation,   partnership,   joint venture, trust or

other   enterprise,   against   expenses   (including   attorneys'   fees) and, to the

fullest extent   permitted by law, amounts paid in settlement (if such settlement

is approved in advance by the Company,   which approval shall not be unreasonably

withheld),   in each case to the   extent   actually   and   reasonably   incurred   by

Indemnitee in   connection   with the defense or settlement of such action or suit

if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed

to be in   or   not   opposed   to   the   best   interests   of   the   Company   and   its

stockholders,   except   that no   indemnification   shall be made in respect of any

claim,   issue   or   matter   as   to   which   Indemnitee   shall   have   been   finally

adjudicated   by court   order or   judgment   to be   liable to the   Company   in the

performance of Indemnitee's duty to the Company and its stockholders   unless and

only to the extent that the court in which such action or   proceeding   is or was

pending shall determine upon application   that, in view of all the circumstances

of the case,   Indemnitee is fairly and reasonably entitled to indemnity for such

expenses which such court shall deem proper.

 

     (c) MANDATORY PAYMENT OF EXPENSES.   Notwithstanding   any other provision of

this   Agreement   other than Section 11, to the extent that   Indemnitee   has been

successful   on the   merits or   otherwise,   including,   without   limitation,   the

dismissal of an action without   prejudice,   in the defense of any action,   suit,

proceeding,   inquiry or   investigation   referred to in Section (1)(a) or Section

(1)(b)   hereof   or in the   defense   of   any   claim,   issue   or   matter   therein,

Indemnitee shall be indemnified against all expenses (including attorneys' fees,

all   other   costs,    expenses   and   obligations    incurred   in   connection   with

investigating, defending a witness in or participating in (including on appeal),

or   preparing   to defend,   be a witness in or   participate   in, any such action,

suit, proceeding,   alternative dispute resolution mechanism, hearing, inquiry or

investigation),   judgments,   fines, penalties and amounts paid in settlement (if

such settlement is approved in advance by the Company,   which approval shall not

be unreasonably withheld) of such claim and any federal, state, local or foreign

taxes imposed on   Indemnitee as a result of the actual or deemed   receipt of any

payments under this Agreement, actually and reasonably incurred by Indemnitee in

connection therewith.

 

                                     - 2 -

<PAGE>

     2.   CONTRIBUTION.   If the   indemnification   provided for in Section 1(a) or

Section 1(b) above for any reason is held by a court of   competent   jurisdiction

to be   unavailable   to   Indemnitee   in respect of any losses,   claims,   damages,

expenses   or   liabilities   referred   to therein,   then the   Company,   in lieu of

indemnifying   Indemnitee   thereunder,   shall   contribute   to the amount   paid or

payable by Indemnitee as a result of such losses, claims,   damages,   expenses or

liabilities   (i) in such   proportion as is   appropriate   to reflect the relative

benefits   received by the Company and the Indemnitee from the   transaction   from

which the claim arose, or (ii) if the allocation provided by clause (i) above is

not permitted by applicable law, in such proportion as is appropriate to reflect

not only the   relative   benefits   referred   to in clause   (i) above but also the

relative   fault of the Company and   Indemnitee in connection   with the action or

inaction   which   resulted   in   such   losses,    claims,    damages,    expenses   or

liabilities,   as   well   as any   other   relevant   equitable   considerations.   The

relative fault of the Company and of Indemnitee shall be determined by reference

to, among other   things,   the parties'   relative   intent,   knowledge,   access to

information and opportunity to correct or prevent the circumstances resulting in

such   losses,   claims,   damages,   expenses   or   liabilities.    The   Company   and

Indemnitee   agree   that it   would   not be just   and   equitable   if   contribution

pursuant to this Section 2 was   determined by pro rata or by any other method of

allocation which does not take account of the equitable   considerations referred

to in the immediately preceding paragraph.

 

     3. NO EMPLOYMENT RIGHTS. Nothing contained in this Agreement is intended to

create in Indemnitee any right to continued employment.

 

     4. EXPENSES; INDEMNIFICATION PROCEDURE.

 

     (a)   ADVANCEMENT   OF   EXPENSES.   The Company   shall   advance   all   expenses

incurred by Indemnitee in connection with the investigation, defense, settlement

or appeal of any civil or criminal   action,   suit or   proceeding   referred to in

Section   l(a)   or   Section   1(b)   hereof   (including   amounts   actually   paid in

settlement of any such action, suit or proceeding). Indemnitee hereby undertakes

to repay   such   amounts   advanced   only if,   and to the   extent   that,   it shall

ultimately be determined   that   Indemnitee is not entitled to be   indemnified by

the Company as authorized hereby.

 

     (b)   NOTICE/COOPERATION   BY INDEMNITEE.   Indemnitee   shall,   as a condition

precedent to his or her right to be indemnified   under this Agreement,   give the

Company   notice in writing   as soon as   practicable   of any claim   made   against

Indemnitee   for   which   indemnification   will or   could   be   sought   under   this

Agreement.   Notice to the   Company   shall be   directed   to the   Chief   Executive

Officer of the Company and shall be given in accordance   with the   provisions of

Section   15(d)   below.   In   addition,   Indemnitee   shall give the   Company   such

information and cooperation as it may reasonably   require and as shall be within

Indemnitee's power.

 

     (c) PROCEDURE.   Any   indemnification and advances provided for in Section 1

and this Section 4 shall be made no later than thirty (30) days after receipt of

the written request of Indemnitee.   If a claim under this   Agreement,   under any

statute, or under any provision of the Company's Certificate of Incorporation or

Bylaws providing for indemnification,   is not paid in full by the Company within

thirty   (30) days after a written   request   for   payment   thereof has first been

received by the Company,   Indemnitee   may, but need not, at any time   thereafter

bring an action   against the   Company to recover the unpaid   amount of the claim

and, subject to Section 14 of this Agreement,   Indemnitee shall also be entitled

to be paid for the expenses (including attorneys' fees) of bringing such action.

 

                                     - 3 -

<PAGE>

It shall be a   defense   to any such   action   (other   than an action   brought   to

enforce a claim for expenses   incurred in   connection   with any action,   suit or

proceeding in advance of its final   disposition) that Indemnitee has not met the

standards of conduct   which make it   permissible   under   applicable   law for the

Company   to   indemnify   Indemnitee   for the   amount   claimed,   but the burden of

proving such defense shall be on the Company and Indemnitee shall be entitled to

receive interim   payments of expenses   pursuant to Section 4(a) unless and until

such defense may be finally adjudicated by court order or judgment from which no

further right of appeal exists. It is the parties' intention that if the Company

contests   Indemnitee's   right to   indemnification,   the question of Indemnitee's

right to   indemnification   shall be for the court to   decide,   and   neither   the

failure of the Company   (including   its Board of   Directors,   any   committee   or

subgroup   of   the   Board   of   Directors,    independent   legal   counsel,   or   its

stockholders) to have made a determination that indemnification of Indemnitee is

proper in the circumstances   because Indemnitee has met the applicable   standard

of conduct   required   by   applicable   law,   nor an actual   determination   by the

Company   (including   its Board of   Directors,   any   committee or subgroup of the

Board   of   Directors,   independent   legal   counsel,   or its   stockholders)   that

Indemnitee   has not met such   applicable   standard   of conduct,   shall   create a

presumption   that   Indemnitee   has or has   not met the   applicable   standard   of

conduct.

 

     (d)   NOTICE TO   INSURERS.   If, at the time of the   receip