EXHIBIT 10.11


 


INDEMNIFICATION AGREEMENT


 


This
Indemnification Agreement (the “Agreement”) is made as of                           ,
2005, by and between iVOW, Inc., a Delaware corporation (the “Company”),
and                                          
(the “Indemnitee”).


 


RECITALS


 


The Company
and Indemnitee recognize the increasing difficulty in obtaining liability
insurance for directors, officers and key employees, 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, 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, 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 is threatened to
be made a party to 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 a director, officer, employee or agent of the Company, or
any subsidiary of the Company, by reason of any action or inaction on the part
of Indemnitee while an officer or director or by reason of the fact that
Indemnitee is or was 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, 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.


 


(b)                                 Proceedings By or in the Right of the Company.
The Company shall indemnify Indemnitee if Indemnitee was or is a party or
is threatened to be made a party to 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 a director, officer, employee or agent of the Company, or
any subsidiary of the Company, by reason of any action or inaction on the part of
Indemnitee while an officer or director or by reason of the fact that
Indemnitee is or was 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 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. To the
extent that Indemnitee has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 1(a) or
Section 1(b) or the defense of any claim, issue or matter therein,
Indemnitee shall be indemnified against Expenses actually and reasonably
incurred by Indemnitee in connection therewith.


 


(d)                                 Definition of Expenses. For purposes of
this Agreement, Expenses shall include, without limitation, attorneys’ fees,
retainers, court costs, transcripts, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, all other disbursements or out-of-pocket
expenses and reasonable compensation for time spent by Indemnitee for which
Indemnitee is otherwise not compensated by the Company.


 


2.                                       No Employment Rights. Nothing contained
in this Agreement is intended to create in Indemnitee any right to continued
employment.


 


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3.                                       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, but any delay in providing notice to the Company
will not relieve it from any liability which it may have to Indemnitee under
this Agreement unless the Company is materially prejudiced by such delay in
notice. 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
12(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 3 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 11 of this Agreement, Indemnitee shall also be entitled to be paid
for the Expenses of bringing such action. 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 3(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.


 


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(d)                                 Notice to Insurers. If, at the time of
the receipt of a notice of a claim pursuant to Section 3(b) 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 shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result
of such proceeding in accordance with the terms of such policies.


 


(e)                                  Selection of Counsel. In the event the
Company shall be obligated under Section 3(a) hereof to pay the Expenses of any
proceeding against Indemnitee, the Company, if appropriate, shall be entitled
to assume the defense of such proceeding, with counsel reasonably acceptable to
Indemnitee, upon the delivery to Indemnitee of written notice of its election
so to do. After delivery of such notice, approval of such counsel by Indemnitee
and the retention of such counsel by the Company, the Company will not be
liable to Indemnitee under this Agreement for any fees of counsel subsequently
incurred by Indemnitee with respect to the same proceeding, provided that
(i) Indemnitee shall have the right to employ counsel in any such
proceeding at Indemnitee’s expense; and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized by the Company,
(B) Indemnitee shall have reasonably concluded that there may be a conflict
of interest between the Company and Indemnitee in the conduct of any such
defense or (C) the Company shall not, in fact, have employed counsel to
assume the defense of such proceeding, then the fees and expenses of Indemnitee’s
counsel shall be at the expense of the Company.


 


4.                                       Additional Indemnification Rights; Nonexclusivity.


 


(a)                                  Scope. Notwithstanding any other
provision of this Agreement, the Company hereby agrees to indemnify the
Indemnitee to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company’s Certificate of Incorporation, the Company’s Bylaws or
by statute. In the event of any change, after the date of this Agreement, in
any applicable law, statute, or rule which expands the right of a Delaware
corporation to indemnify a member of its board of directors or an officer, such
changes shall be deemed to be within the purview of Indemnitee’s rights and the
Company’s obligations under this Agreement. In the event of any change in any
applicable law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its board of directors or an officer, such
changes, to the extent not otherwise required by such law, statute or rule to
be applied to this Agreement shall have no effect on this Agreement or the
parties’ rights and obligations hereunder.


 


(b)                                 Nonexclusivity. The indemnification
provided by this Agreement shall not be deemed exclusive of any rights to which
Indemnitee may be entitled under the Company’s Certificate of Incorporation,
its Bylaws, any agreement, any vote of stockholders or disinterested members of
the Company’s Board of Directors, the General Corporation Law of the State of
Delaware, or otherwise, both as to action in Indemnitee’s official capacity and
as to action in another capacity while holding such office. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified


 


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capacity even
though he or she may have ceased to serve in any such capacity at the time of
any action, suit or other covered proceeding.


 


5.                                       Partial Indemnification. If Indemnitee
is entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of the Expenses, judgments, fines or penalties
actually or reasonably incurred in the investigation, defense, appeal or
settlement of any civil or criminal action, suit or proceeding, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such Expenses, judgments,  fines or penalties to which Indemnitee is
entitled.


 


6.                                       Mutual Acknowledgment. Both the Company
and Indemnitee acknowledge that in certain instances, Federal law or public
policy may override applicable state law and prohibit the Company from
indemnifying its directors and officers under this Agreement or otherwise. For
example, the Company and Indemnitee acknowledge that the Securities and
Exchange Commission (the “SEC”) has taken the position that
indemnification is not permissible for liabilities arising under certain
federal securities laws, and federal legislation prohibits indemnification for
certain ERISA violations. Indemnitee understands and acknowledges that the
Company has undertaken or may be required in the future to undertake with the
SEC to submit the question of indemnification to a court in certain
circumstances for a determination of the Company’s right under public policy to
indemnify Indemnitee.


 


7.                                       Officer and Director Liability Insurance. The
Company represents and warrants that it shall obtain and maintain insurance
providing the officers and directors of the Company with coverage for losses
from wrongful acts, or to ensure the Company’s performance of its
indemnification obligations under this Agreement. In all policies of director
and officer liability insurance, Indemnitee shall be named as an insured in
such a manner as to provide Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company’s directors, if
Indemnitee is a director; or the Company’s officers, if Indemnitee is not a
director of the Company but is an officer; or of the Company’s key employees,
if Indemnitee is not an officer or director but is a key employee. Notwithstanding
the foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company’s Board of Directors determines in good faith that
such insurance is not reasonably available, if the premium costs for such
insurance are disproportionate to the amount of coverage provided, if the
coverage provided by such insurance is limited by exclusions so as to provide
an insufficient benefit, or if Indemnitee is covered by similar insurance
maintained by a parent or subsidiary of the Company. Indemnitee shall be
immediately notified in the event the Company determines not to obtain or
maintain such insurance on behalf of Indemnitee.


 


8.                                       Severability. Nothing in this Agreement
is intended to require or shall be construed as requiring the Company to do or
fail to do any act in violation of applicable law. The Company’s inability,
pursuant to court order, to perform its obligations under this Agreement shall
not constitute a breach of this Agreement. The provisions of this Agreement
shall be severable as provided in this Section 8. If this Agreement or any
portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify Indemnitee to the
full extent permitted by any applicable portion of this


 


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Agreement that
shall not have been invalidated, and the balance of this Agreement not so
invalidated shall be enforceable in accordance with its terms.


 


9.                                       Exceptions. Any other provision herein
to the contrary notwithstanding, the Company shall not be obligated pursuant to
the terms of this Agreement:


 


(a)                                  Claims Initiated by Indemnitee. To
indemnify or advance Expenses to Indemnitee with respect to proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of
defense, except with respect to proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other statute or law or
otherwise as required under Section 145 of the Delaware General
Corporation Law, but such indemnification or advancement of Expenses may be
provided by the Company in specific cases if the Board of Directors finds it to
be appropriate;


 


(b)                                 Lack of Good Faith. To indemnify
Indemnitee for any Expenses incurred by Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this Agreement, if
a court of competent jurisdiction determines that each of the material
assertions made by Indemnitee in such proceeding was not made in good faith or
was frivolous;


 


(c)                                  Insured Claims. To indemnify Indemnitee
for Expenses or liabilities of any type whatsoever (including, but not limited
to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) to the extent such Expenses or liabilities have been paid directly
to Indemnitee by an insurance carrier under a policy of officers’ and directors’
liability insurance maintained by the Company; or


 


(d)                                 Claims under Section 16(b). To
indemnify Indemnitee for Expenses or the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any
similar successor statute.


 


10.                                 Construction of Certain Phrases.


 


(a)                                  For
purposes of this Agreement, references to the “Company” shall include,
in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so
that if Indemnitee is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, Indemnitee
shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as Indemnitee would have with
respect to such constituent corporation if its separate existence had
continued.


 


(b)                                 For
purposes of this Agreement, references to “other enterprises” shall
include employee benefit plans; references to “fines” shall include any
excise taxes assessed on Indemnitee with respect to an employee benefit plan;
and references to “serving at the request of


 


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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 if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to
have acted in a manner “not opposed to the best interests of the Company”
as referred to in this Agreement.


 


11.                                 Attorneys’ Fees. In the event that any
action is instituted by Indemnitee under this Agreement to enforce or interpret
any of the terms hereof, Indemnitee shall be entitled to be paid all court
costs and Expenses as incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement or to enforce
or interpret any of the terms of this Agreement, Indemnitee shall be entitled
to be paid all court costs and Expenses incurred by Indemnitee in defense of
such action (including with respect to Indemnitee’s counterclaims and
cross-claims made in such action), unless as a part of such action the court
determines that each of Indemnitee’s material defenses to such action were made
in bad faith or were frivolous.


 


12.                                 Miscellaneous.


 


(a)                                  Governing Law. This Agreement and all
acts and transactions pursuant hereto and the rights and obligations of the
parties hereto shall be governed, construed and interpreted in accordance with
the laws of the State of Delaware, without giving effect to principles of
conflict of law.


 


(b)                                 Entire Agreement; Enforcement of Rights. This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter herein and merges all prior discussions between
them. No modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, shall be effective unless in writing signed by the
parties to this Agreement. The failure by either party to enforce any rights
under this Agreement shall not be construed as a waiver of any rights of such
party.


 


(c)                                  Construction. This Agreement is the
result of negotiations between and has been reviewed by each of the parties
hereto and their respective counsel, if any; 
accordingly, this Agreement shall be deemed to be the product of all of
the parties hereto, and no ambiguity shall be construed in favor of or against
any one of the parties hereto.


 


(d)                                 Notices. Any notice, demand or request
required or permitted to be given under this Agreement shall be in writing and
shall be deemed sufficient when delivered personally or sent by fax or 48 hours
after being sent by nationally-recognized courier or deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party’s address or fax number as set forth
below or as subsequently modified by written notice.


 


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(e)                                  Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one instrument.


 


(f)                                    Successors and Assigns. This Agreement
shall be binding upon the Company and its successors and assigns, and inure to
the benefit of Indemnitee and Indemnitee’s heirs, legal representatives and
assigns.


 


(g)                                 Subrogation. In the event of 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 execute all
documents required and shall do all acts that may be necessary to secure such
rights and to enable the Company to effectively bring suit to enforce such
rights.


 


 


[Signature Page Follows]


 


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The parties
hereto have executed this Agreement as of the day and year set forth on the
first page of this Agreement.


 


	
   

  	
  iVOW, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  11455 El
  Camino Real

  
	
   

  	
   

  	
  Suite 140

  
	
   

  	
   

  	
  San Diego, CA
  92130-2098

  
	
   

  	
   

  
	
   

  	
  Fax Number:
  (858) 847-4811

  
	
   

  	
   

  
	
  AGREED TO
  AND ACCEPTED:

  
	
   

  
	
   

  
	
  [Name]

  
	
   

  
	
   

  
	
   

  	
   

  
	
  (Signature)

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Fax Number:

  	
   

  	
   

  
								



 


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