KBS International Holdings Inc.: Exhibit 10.27 - Filed by newsfilecorp.com






Exhibit 10.27

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 Chris E. Jensen
(“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. 

8 




(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/ Chris Jensen 	 
	 	Name:
      Chris Jensen 	 
	 	Title:
      Secretary 	 
	 	12012
      East Arabian Park Dr. 	 
	 	(Street Address) 	 
	 	Scottsdale, AZ 85259 	 
	 	(City, State and Zip) 	 


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