KBS International Holdings Inc.: Exhibit 10.26 - Filed by newsfilecorp.com






Exhibit 10.26

BAY PEAK 1 OPPORTUNITY CORP. 

INDEMNIFICATION AGREEMENT 

This Indemnification Agreement (this “Agreement”)
is dated as of December 20, 2010, and is between Bay Peak 1 Opportunity Corp., a
Nevada corporation (the “Company”), and David Steele
(“Indemnitee”). 

RECITALS 

A. Indemnitee’s service to the Company substantially benefits
the Company. 

B. Individuals are reluctant to serve as directors or officers
of corporations or in certain other capacities unless they are provided with
adequate protection through insurance or indemnification against the risks of
claims and actions against them arising out of such service. 

C. Indemnitee does not regard the protection currently provided
by applicable law, the Company’s governing documents, and any insurance as
adequate under the present circumstances, and Indemnitee may not be willing to
serve as a director or officer without additional protection. 

D. In order to induce Indemnitee to continue to provide
services to the Company, it is reasonable, prudent, and necessary for the
Company to contractually obligate itself to indemnify, and to advance expenses
on behalf of, Indemnitee as permitted by applicable law. 

E. This Agreement is a supplement to and in furtherance of the
indemnification provided in the Company’s articles of incorporation, bylaws, and
any resolutions adopted pursuant thereto, and this Agreement shall not be deemed
a substitute therefor, nor shall this Agreement be deemed to limit, diminish, or
abrogate any rights of Indemnitee thereunder. 

The parties therefore agree as follows:

1. Definitions. 

(a) 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) Corporate Transactions. The
effective date of the acquisition of the Company by another entity by means of
any transaction or series of related transactions to which the Company is party
(including, without limitation, any stock acquisition, reorganization, merger,
or consolidation, but excluding any sale of stock for capital raising purposes)
other than a transaction or series of related transactions in which the holders
of the voting securities of the Company outstanding immediately prior to such
transaction or series of related transactions retain, immediately after such
transaction or series of related transactions, as a result of shares in the
Company held by such holders prior to such transaction or series of related
transactions, at least a majority of the total voting power represented by the
outstanding voting securities of the Company or such other surviving or resulting entity (or if the Company or such other
surviving or resulting entity is a wholly-owned subsidiary immediately following
such acquisition, its parent); or 




(ii) 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. 

(b) “Corporate Status”
describes the status of a person who is or was a director, trustee, general
partner, managing member, officer, employee, agent, or fiduciary of the Company
or any other Enterprise. 

(c) “NRS” means the
Revised Statutes of the State of Nevada. 

(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) “Enterprise” means
the Company and any other corporation, partnership, limited liability company,
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,
trustee, general partner, managing member, officer, employee, agent, or
fiduciary. 

(f) “Expenses” include
all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees
and costs 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 include (i) 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 their equivalent, and (ii) for purposes of Section 12(d),
Expenses incurred by Indemnitee in connection with the interpretation,
enforcement, or defense of Indemnitee’s rights under this Agreement or under any
directors’ and officers’ liability insurance policies maintained by the Company.
Expenses, however, shall not include amounts paid in settlement by Indemnitee or
the amount of judgments or fines against Indemnitee. 

(g) “Independent Counsel”
means a law firm, or a partner or 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 as Independent Counsel with respect to
matters concerning Indemnitee under this Agreement, or 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. 

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(h) “Proceeding” means
any threatened, pending, or completed action, suit, arbitration, mediation,
alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing, or proceeding, whether brought in the right of the Company or otherwise
and whether of a civil, criminal, administrative, or investigative nature,
including any appeal therefrom, in which Indemnitee was, is, or will be involved
as a party, a potential party, a non-party witness, or otherwise by reason of
(i) the fact that Indemnitee is or was a director or officer of the Company,
(ii) any action taken by Indemnitee or any action or inaction on Indemnitee’s
part while acting as a director or officer of the Company, or (iii) the fact
that he or she is or was serving at the request of the Company as a director,
trustee, general partner, managing member, officer, employee, agent, or
fiduciary of the Company or any other Enterprise, in each case whether or not
serving in such capacity at the time any liability or Expense is incurred for
which indemnification or advancement of expenses can be provided under this
Agreement. 

(i) Reference to “other
enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on a person 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 or she 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 a manner “not opposed to the best
interests of the Company” as referred to in this Agreement. 

2. Indemnity in Third-Party Proceedings.
The Company shall indemnify Indemnitee in accordance with the provisions of this
Section 2 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. Pursuant to this Section 2,
Indenmitee 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 or her behalf in
connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he or she 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 that his
or her conduct was unlawful. 

3. Indemnity in Proceedings by or in the Right
of the Company. 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 by or in the right of the Company
to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall
be indemnified to the fullest extent permitted by applicable law against all
Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with such Proceeding or any claim, issue or matter therein,
if Indemnitee acted in good faith and in a manner he or she 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 3
in respect of any claim, issue, or matter as to which Indemnitee shall have been
adjudged by a court of competent jurisdiction to be liable to the Company,
unless and only to the extent that the Nevada Business Court or any court in
which the Proceeding was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for such
expenses as the Nevada Business Court or such other court shall deem proper. 

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4. Indemnification for Expenses of a Party Who
is Wholly or Partly Successful. To the extent that Indemnitee is a party to
or a participant in and is successful (on the merits or otherwise) in defense of
any Proceeding or any claim, issue or matter therein, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection therewith. To the extent
permitted by applicable law, if Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, in defense of 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 Indemnitee or on Indemnitee’s behalf in connection with (a) each
successfully resolved claim, issue, or matter and (b) any claim, issue, or
matter related to any such successfully resolved claim, issue, or matter. For
purposes of this section, 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. 

5. Indemnification for Expenses of a
Witness. To the extent that Indemnitee is, by reason of his or her Corporate
Status, a witness in any Proceeding to which Indemnitee is not a party,
Indemnitee shall be indemnified to the extent permitted by applicable law
against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. 

6. Additional Indemnification. 

(a) Notwithstanding any limitation in
Sections 2, 3, or 4, the Company shall indemnify Indemnitee to the fullest
extent permitted by applicable law if Indemnitee is, or is threatened to be
made, a party to or a participant in 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 or on his or her behalf in connection with the
Proceeding or any claim, issue, or matter therein. 

(b) For purposes of Section 6(a), the
meaning of the phrase “to the fullest extent permitted by applicable
law” shall include, but not be limited to: 

(i) the fullest extent permitted by
the provisions of the NRS that authorize or contemplate additional
indemnification by agreement, or the corresponding provision of any amendment to
or replacement of the NRS; and 

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

7. Exclusions. Notwithstanding any
provision in this Agreement, the Company shall not be obligated under this
Agreement to make any indemnity in connection with any Proceeding (or any part
of any Proceeding): 

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

(b) for an accounting or disgorgement
of profits pursuant to Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of federal, state, or local statutory law or
common law, if Indemnitee is held liable therefor (including pursuant to any
settlement arrangements); 

(c) for any reimbursement of the
Company by Indemnitee of any bonus or other incentive-based or equity-based
compensation or of any profits realized by Indemnitee from the sale of
securities of the Company, as required in each case under the Securities
Exchange Act of 1934, as amended (including any such reimbursements that arise
from an accounting restatement of the Company pursuant to Section 304 of the
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the
payment to the Company of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act),
if Indemnitee is held liable therefor (including pursuant to any settlement
arrangements); 

(d) initiated by Indemnitee, including
any Proceeding (or any part of any Proceeding) initiated by Indemnitee against
the Company or its directors, officers, employees, agents, or other indemnitees,
unless (i) the Company’s board of directors authorized the Proceeding (or the
relevant part of the Proceeding) prior to its initiation, (ii) the Company
provides the indemnification, in its sole discretion, pursuant to the powers
vested in the Company under applicable law, (iii) otherwise authorized in
Section 12(d), or (iv) otherwise required by applicable law; or 

(e) if prohibited by applicable law.


8. Advances of Expenses. The Company shall
advance the Expenses incurred by Indemnitee in connection with any Proceeding,
and such advancement shall be made as soon as reasonably practicable, but in any
event no later than 60 days, after the receipt by the Company of a written
statement or statements requesting such advances from time to time (which shall
include invoices received by Indemnitee in connection with such Expenses but, in
the case of invoices in connection with legal services, any references to legal
work performed or to expenditure made that would cause Indemnitee to waive any
privilege accorded by applicable law shall not be included with the invoice).
Advances shall be unsecured and interest free and made without regard to
Indemnitee’s ability to repay such advances. Indemnitee hereby undertakes to
repay any advance to the extent that it is ultimately determined that Indemnitee
is not entitled to be indemnified by the Company. This Section 8 shall not apply
to the extent advancement is prohibited by law and shall not apply to any
Proceeding for which indemnity is not permitted under this Agreement, but shall
apply to any Proceeding referenced in Section 7(b) or 7(c) prior to a
determination that Indemnitee is not entitled to be indemnified by the Company. 

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9. Procedures for Notification and Defense of
Claim. 

(a) Indemnitee shall notify the Company
in writing of any matter with respect to which Indemnitee intends to seek
indemnification or advancement of Expenses as soon as reasonably practicable
following the receipt by Indemnitee of notice thereof. The written notification
to the Company shall include, in reasonable detail, a description of the nature
of the Proceeding and the facts underlying the Proceeding. The failure by
Indemnitee to notify the Company will not relieve the Company from any liability
which it may have to Indemnitee hereunder or otherwise than under this
Agreement, and any delay in so notifying the Company shall not constitute a
waiver by Indemnitee of any rights. 

(b) If, at the time of the receipt of a
notice of a Proceeding pursuant to the terms hereof, the Company has directors’
and officers’ liability insurance in effect, the Company shall give prompt
notice of the commencement of the Proceeding to the insurers in accordance with
the procedures set forth in the applicable policies. The Company shall
thereafter take all commercially-reasonable action to cause such insurers to
pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding
in accordance with the terms of such policies. 

(c) In the event the Company may be
obligated to make any indemnity in connection with a Proceeding, the Company
shall be entitled to assume the defense of such Proceeding with counsel approved
by Indemnitee, which approval shall not be unreasonably withheld, upon the
delivery to Indemnitee of written notice of its election to do so. 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 for any fees or expenses of counsel subsequently incurred by
Indemnitee with respect to the same Proceeding. Notwithstanding the Company’s
assumption of the defense of any such Proceeding, the Company shall be obligated
to pay the fees and expenses of Indemnitee’s counsel to the extent (i) the
employment of counsel by Indemnitee is authorized by the Company, (ii) counsel
for the Company or Indemnitee shall have reasonably concluded that there is a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense such that Indemnitee needs to be separately represented, (iii) the
fees and expenses are non-duplicative and reasonably incurred in connection with
Indemnitee’s role in the Proceeding despite the Company’s assumption of the
defense, (iv) the Company is not financially or legally able to perform its
indemnification obligations, or (v) the Company shall not have retained, or
shall not continue to retain, such counsel to defend such Proceeding. The
Company shall have the right to conduct such defense as it sees fit in its sole
discretion. Regardless of any provision in this Agreement, Indemnitee shall have
the right to employ counsel in any Proceeding at Indemnitee’s personal expense.
The Company shall not be entitled, without the consent of Indemnitee, to assume the defense of any claim
brought by or in the right of the Company. 

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(d) Indemnitee shall give the Company
such information and cooperation in connection with the Proceeding as may be
reasonably appropriate. 

(e) The Company shall not be liable to
indemnify Indemnitee for any settlement of any Proceeding (or any part thereof)
without the Company’s prior written consent, which shall not be unreasonably
withheld. 

(f) The Company shall have the right to
settle any Proceeding (or any part thereof) without the consent of Indemnitee.


10. Procedures upon Application for
Indemnification. 

(a) To obtain indemnification,
Indemnitee shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to
Indemnitee and as is reasonably necessary to determine whether and to what
extent Indemnitee is entitled to indemnification following the final disposition
of the Proceeding. The Company shall, as soon as reasonably practicable after
receipt of such a request for indemnification, advise the board of directors
that Indemnitee has requested indemnification. Any delay in providing the
request will not relieve the Company from its obligations under this Agreement,
except to the extent such failure is prejudicial. 

(b) Upon written request by Indemnitee
for indemnification pursuant to Section 10(a), a determination, if required by
applicable law, with respect to Indemnitee’s entitlement thereto shall be made
in the specific case (i) if a Change in Control shall have occurred, by
Independent Counsel in a written opinion to the Company’s 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 Company’s board of directors, (B) by a
committee of Disinterested Directors designated by. a majority vote of the
Disinterested Directors, even though less than a quorum of the Company’s board
of directors, (C) if there are no such Disinterested Directors or, if such
Disinterested Directors so direct, by Independent Counsel in a written opinion
to the Company’s board of directors, a copy of which shall be delivered to
Indemnitee, or (D) if so directed by the Company’s board of directors, by the
stockholders of the Company. If it is so determined that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made within ten days after
such determination. Indemnitee shall cooperate with the person, persons, or
entity making the 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 that is not
privileged or otherwise protected from disclosure and that is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys’ fees and disbursements) reasonably
incurred by Indemnitee in so cooperating with the person, persons, or entity making such determination shall be borne by the Company, to the
extent permitted by applicable law.


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(c) In the event the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to
Section 10(b), the Independent Counsel shall be selected as provided in this
Section 10(c). If a Change in Control shall not have occurred, the Independent
Counsel shall be selected by the Company’s board of directors, and the Company
shall give written notice to Indemnitee advising him or her 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 Company’s 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 1 of this
Agreement, and the 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 a court has
determined that such objection is without merit. If, within 20 days after the
later of (i) submission by Indemnitee of a written request for indemnification
pursuant to Section 10(a) hereof and (ii) the final disposition of the
Proceeding, the parties have not agreed upon an Independent Counsel, either the
Company or Indemnitee may petition a court of competent jurisdiction for
resolution of any objection which shall have been made by the Company or
Indemnitee to the other’s selection of Independent Counsel and for the
appointment as Independent Counsel of a person selected by the court or by such
other person as the court 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 10(b) hereof. Upon the due commencement of any
judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement,
the Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing). 

(d) The Company agrees to pay the
reasonable fees and expenses of any Independent Counsel 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.


11. Presumptions and Effect of Certain
Proceedings. 

(a) In making a determination with
respect to entitlement to indemnification hereunder, the person, persons, or
entity making such determination shall, to the fullest extent not prohibited by
law, 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, to the fullest extent not prohibited by law, have the burden of
proof to overcome that presumption in connection with the making by such person,
persons, or entity of any determination contrary to that presumption. 

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(b) 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
or she 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 or her conduct was unlawful. 

(c) For purposes of any determination
of good faith, Indemnitee shall be deemed to have acted in good faith to the
extent Indemnitee relied in good faith on (i) the records or books of account of
the Enterprise, including financial statements, (ii) information supplied to
Indemnitee by the officers of the Enterprise in the course of their duties,
(iii) the advice of legal counsel for the Enterprise or its board of directors
or counsel selected by any committee of the board of directors, or (iv)
information or records given or reports made to the Enterprise by an independent
certified public accountant, an appraiser, investment banker, or other expert
selected with reasonable care by the Enterprise or its board of directors or any
committee of the board of directors. The provisions of this Section 11(c) shall
not be deemed to be exclusive or to limit in any way the other circumstances in
which Indemnitee may be deemed to have met the applicable standard of conduct
set forth in this Agreement. 

(d) Neither the knowledge, actions nor
failure to act of any other director, officer, agent or employee of the
Enterprise shall be imputed to Indemnitee for purposes of determining the right
to indemnification under this Agreement. 

12. Remedies of Indemnitee. 

(a) Subject to Section 12(e), in the
event that (i) a determination is made pursuant to Section 10 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 8 or 12(d) of
this Agreement, (iii) no determination of entitlement to indemnification shall
have been made pursuant to Section 10 of this Agreement within 90 days after the
later of the receipt by the Company of the request for indemnification or the
final disposition of the Proceeding, (iv) payment of indemnification pursuant to
this Agreement is not made (A) within 10 days after a determination has been
made that Indemnitee is entitled to indemnification, or (B) with respect to
indemnification pursuant to Sections 4, 5, and 12(d) of this Agreement, within
30 days after receipt by the Company of a written request therefor, or (v) the
Company or any other person or entity 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, Indemnitee the benefits provided or intended to be
provided to Indemnitee hereunder, Indemnitee shall be entitled to an
adjudication by a court of competent jurisdiction of his or her entitlement to
such indemnification or advancement of Expenses. Indemnitee shall commence such
proceeding seeking an adjudication within 180 days following the date on which
Indemnitee first has the right to commence such proceeding pursuant to this
Section 12(a); provided, however, that the foregoing clause shall not
apply in respect of a proceeding brought by Indemnitee to enforce his or her
rights under Section 4 of this Agreement. The Company shall not oppose
Indemnitee’s right to seek any such adjudication in accordance with this
Agreement. 

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(b) Neither (i) the failure of the
Company, its board of directors, any committee or subgroup of the board of
directors, Independent Counsel, or stockholders to have made a determination
that indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor (ii) an actual
determination by the Company, its board of directors, any committee or subgroup
of the board of directors, Independent Counsel, or stockholders that Indemnitee
has not met the applicable standard of conduct, shall be a defense to the action
or create a presumption that Indemnitee has or has not met the applicable
standard of conduct. In the event that a determination shall have been made
pursuant to Section 10 of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding commenced pursuant to this Section 12
shall be conducted in all respects as a de novo trial on the merits, and
Indemnitee shall not be prejudiced by reason of that adverse determination. In
any judicial proceeding commenced pursuant to this Section 12, the Company
shall, to the fullest extent not prohibited by law, have the burden of proving
Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be. 

(c) To the fullest extent not
prohibited by law, the Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 12 that the procedures and
presumptions of this Agreement are not valid, binding, and enforceable and shall
stipulate in any such court that the Company is bound by all the provisions of
this Agreement. If a determination shall have been made pursuant to Section 10
of this Agreement that Indemnitee is entitled to indemnification, the Company
shall be bound by such determination in any judicial proceeding commenced
pursuant to this Section 12, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee’s
statements not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable
law. 

(d) To the extent not prohibited by
law, the Company shall indemnify Indemnitee against all Expenses that are
incurred by Indemnitee in connection with any action for indemnification or
advancement of Expenses from the Company under this Agreement or under any
directors’ and officers’ liability insurance policies maintained by the Company
to the extent Indemnitee is successful in such action, and, if requested by
Indemnitee, shall (as soon as reasonably practicable, but in any event no later
than 60 days, after receipt by the Company of a written request therefor)
advance such Expenses to Indemnitee, subject to the provisions of Section 8.


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(e) Notwithstanding anything in this
Agreement to the contrary, no determination as to entitlement to indemnification
shall be required to be made prior to the final disposition of the Proceeding.


13. Contribution. To the fullest extent
permissible under applicable law, if the indemnification provided for in this
Agreement is unavailable to Indemnitee, the Company, in lieu of indemnifying
Indemnitee, shall contribute to the amounts incurred by Indemnitee, whether for
Expenses, judgments, fines, or amounts paid or to be paid in settlement, 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 events and
transactions giving rise to such Proceeding; and (ii) the relative fault of
Indemnitee and the Company (and its other directors, officers, employees, and
agents) in connection with such events and transactions. 

14. Non-exclusivity. 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 articles of
incorporation or bylaws, any agreement, a vote of stockholders, or a resolution
of directors, or otherwise. To the extent that a change in Nevada law, whether
by statute or judicial decision, permits greater indemnification or advancement
of Expenses than would be afforded currently under the Company’s articles of
incorporation, 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, subject to the restrictions expressly set forth herein
or therein. Except as expressly set forth herein, 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, in equity, or
otherwise. Except as expressly set forth herein, 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. 

15. No Duplication of Payments. The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder (or for which advancement is provided
hereunder) if and to the extent that Indemnitee has otherwise actually received
payment for such amounts under any insurance policy, contract, agreement, or
otherwise. 

16. Insurance. To the extent that the
Company maintains an insurance policy or policies providing liability insurance
for directors, trustees, general partners, managing members, officers,
employees, agents, or fiduciaries of the Company or any other Enterprise,
Indemnitee shall be covered by such policy or policies to the same extent as the
most favorably-insured persons under such policy or policies in a comparable
position. 

17. Subrogation. 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 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. 

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18. Services to the Company. Indemnitee
agrees to serve as a director or officer of the Company or, at the request of
the Company, as a director, trustee, general partner, managing member, officer,
employee, agent, or fiduciary of another Enterprise, for so long as Indemnitee
is duly elected or appointed or until Indemnitee tenders his or her resignation
or is removed from such position. Indemnitee may at any time and for any reason
resign from such position (subject to any other contractual obligation or any
obligation imposed by operation of law), in which event the Company shall have
no obligation under this Agreement to continue Indemnitee in such position. This
Agreement shall not be deemed an employment contract between the Company (or any
of its subsidiaries or any Enterprise) and Indemnitee. Indemnitee specifically
acknowledges that any employment with the Company (or any of its subsidiaries or
any Enterprise) is at will, and Indemnitee may be discharged at any time for any
reason, with or without cause, with or without notice, except as may be
otherwise expressly provided in any executed written employment contract between
Indemnitee and the Company (or any of its subsidiaries or any Enterprise), any
existing formal severance policies adopted by the Company’s board of directors
or, with respect to service as a director or officer of the Company, the
Company’s articles of incorporation, bylaws, or the NRS. No such document shall
be subject to any oral modification thereof. 

19. Duration. This Agreement shall
continue until and terminate upon the later of (a) 10 years after the date that
Indemnitee shall have ceased to serve as a director or officer of the Company or
as a director, trustee, general partner, managing member, officer, employee,
agent, or fiduciary of any other Enterprise, as applicable; or (b) 1 year after
the final termination of any Proceeding, including any appeal, then pending in
respect of which Indemnitee is granted rights of indemnification or advancement
of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 12 of this Agreement relating thereto. 

20. Successors. This Agreement shall be
binding upon the Company and its successors and assigns, including any direct or
indirect successor by purchase, merger, consolidation, or otherwise to all or
substantially all of the business or assets of the Company, and shall inure to
the benefit of Indemnitee and Indemnitee’s heirs, executors, and administrators.


21. 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 or other applicable law, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. If any provision or provisions of this Agreement shall be held to be
invalid, illegal, or unenforceable for any reason whatsoever: (i) 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; (ii) 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 (iii) 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. 

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22. Enforcement. 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. 

23. Entire Agreement. 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 Company’s articles of incorporation,
bylaws, and applicable law, and shall not be deemed a substitute therefor, nor
to diminish or abrogate any rights of Indemnitee thereunder. 

24. Modification and Waiver. No
supplement, modification, or amendment to this Agreement shall be binding unless
executed in writing by the parties hereto. No amendment, alteration, or repeal
of this Agreement shall adversely affect any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his or
her Corporate Status prior to such amendment, alteration, or repeal. No waiver
of any of the provisions of this Agreement shall constitute or be deemed a
waiver of any other provision of this Agreement nor shall any waiver constitute
a continuing waiver. 

25. Notices. All notices and other
communications required or permitted hereunder shall be in writing and shall be
mailed by registered or certified mail, postage prepaid, sent by facsimile or
electronic mail or otherwise delivered by hand, messenger, or courier service
addressed: 

(a) if to Indemnitee, to Indemnitee’s
address, facsimile number, or electronic mail address as shown on the signature
page of this Agreement or in the Company’s records, as may be updated in
accordance with the provisions hereof; or 

(b) if to the Company, to the attention
of the Chief Executive Officer or Chief Financial Officer of the Company at 169
Bolsa Avenue, Mill Valley, CA 94941, or at such other current address as the
Company shall have furnished to Indemnitee. 

Each such notice or other communication shall for all purposes
of this Agreement be treated as effective or haying been given (i) if delivered
by hand, messenger, or courier service, when delivered (or if sent via a
nationally-recognized overnight courier service, freight prepaid, specifying
next-business-day delivery, one business day after deposit with the courier), or
(ii) if sent via mail, at the earlier of its receipt or 5 days after the same
has been deposited in a regularly-maintained receptacle for the deposit of the
U.S. mail, addressed and mailed as aforesaid, or (iii) if sent via facsimile,
upon confirmation of facsimile transfer or, if sent via electronic mail, upon
confirmation of delivery when directed to the relevant electronic mail address, if sent during normal business hours of the recipient,
or if not sent during normal business hours of the recipient, then on the
recipient’s next business day. 

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26. 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 Nevada, without regard to its or any other jurisdiction’s conflict of
laws rules. The Company and Indemnitee hereby irrevocably and unconditionally
(i) agree that any action or proceeding arising out of or in connection with
this Agreement shall be brought only in the Nevada Business Courts, and not in
any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Nevada Business Courts for purposes of any action or proceeding arising
out of or in connection with this Agreement, (iii) waive any objection to the
laying of venue of any such action or proceeding in the Nevada Business Courts,
and (iv) waive, and agree not to plead or to make, any claim that any such
action or proceeding brought in the Nevada Business Courts has been brought in
an improper or inconvenient forum. 

27. 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. This Agreement may also be executed and delivered by facsimile
signature and in 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. 

28. Captions. 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. 

(signature page follows) 

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The parties are signing this Indemnification Agreement as of
the date stated in the introductory sentence. 

	 	THE COMPANY 	 
	 	By: /s/ Chris Jensen 	 
	 	Name:
      Chris Jensen 	 
	 	Title:
      Director and Secretary 	 
	 	 	 
	 	INDEMNITEE 	 
	 	By:
	 
	 	Name:
    	 
	 	Title:
    	 
	 	 	 
	 	(Street Address) 	 
	 	(City, State and Zip) 	 


15




The parties are signing this Indemnification Agreement as of
the date stated in the introductory sentence. 

	 	THE COMPANY 	 
	 	  	 
	 	By:
	 
	 	Name:
    	 
	 	Title:
    	 
	 	  	 
	 	INDEMNITEE 	 
	 	  	 
	 	By:
      /s/ David Steele 	 
	 	Name:
      David Steele 	 
	 	Title:
      President, CFO and Treasurer 	 
	 	8090
      N. 85th Way, Suite #101 	 
	 	(Street Address) 	 
	 	Scottsdale, AZ 85258 	 
	 	(City, State and Zip) 	 


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