**EXHIBIT 10.11**

 

**INDEMNIFICATION AGREEMENT**

 

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

 

**RECITALS**

 

The Companyand Indemnitee recognize the increasing difficulty in obtaining liabilityinsurance for directors, officers and key employees, the significant increasesin the cost of such insurance and the general reductions in the coverage ofsuch insurance. The Company and Indemnitee further recognize the substantialincrease in corporate litigation in general, subjecting directors, officers andkey employees to expensive litigation risks at the same time as theavailability and coverage of liability insurance has been severely limited. Indemniteedoes not regard the current protection available as adequate under the presentcircumstances, and Indemnitee and agents of the Company may not be willing tocontinue to serve as agents of the Company without additional protection. TheCompany desires to attract and retain the services of highly qualifiedindividuals, such as Indemnitee, and to indemnify its directors, officers andkey employees so as to provide them with the maximum protection permitted bylaw.

 

**AGREEMENT**

 

Inconsideration of the mutual promises made in this Agreement, and for other goodand valuable consideration, receipt of which is hereby acknowledged, theCompany and Indemnitee hereby agree as follows:

 

1.                                       **Indemnification.**

 

(a)                                  **Third Party Proceedings.**The Companyshall indemnify Indemnitee if Indemnitee is or was a party or is threatened tobe made a party to any threatened, pending or completed action, suit orproceeding, whether civil, criminal, administrative or investigative (otherthan an action by or in the right of the Company) by reason of the fact thatIndemnitee is or was a director, officer, employee or agent of the Company, orany subsidiary of the Company, by reason of any action or inaction on the partof Indemnitee while an officer or director or by reason of the fact thatIndemnitee is or was serving at the request of the Company as a director,officer, employee or agent of another corporation, partnership, joint venture,trust or other enterprise, against Expenses, judgments, fines and amounts paidin settlement (if such settlement is approved in advance by the Company, whichapproval shall not be unreasonably withheld) actually and reasonably incurredby Indemnitee in connection with such action, suit or proceeding if Indemniteeacted in good faith and in a manner Indemnitee reasonably believed to be in ornot opposed to the best interests of the Company, and, with respect to anycriminal action or proceeding, had no reasonable cause to believe Indemnitee’sconduct was unlawful. The termination of any action, suit or proceeding byjudgment, order, settlement, conviction, or

 

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upon a plea ofnolo contendere or its equivalent, shall not, of itself, create a presumptionthat Indemnitee did not act in good faith and in a manner which Indemniteereasonably believed to be in or not opposed to the best interests of theCompany, or, with respect to any criminal action or proceeding, that Indemniteehad reasonable cause to believe that Indemnitee’s conduct was unlawful.

 

(b)                                 **Proceedings By or in the Right of the Company.**The Company shall indemnify Indemnitee if Indemnitee was or is a party oris threatened to be made a party to any threatened, pending or completed actionor proceeding by or in the right of the Company or any subsidiary of theCompany to procure a judgment in its favor by reason of the fact thatIndemnitee is or was a director, officer, employee or agent of the Company, orany subsidiary of the Company, by reason of any action or inaction on the part ofIndemnitee while an officer or director or by reason of the fact thatIndemnitee is or was serving at the request of the Company as a director,officer, employee or agent of another corporation, partnership, joint venture,trust or other enterprise, against Expenses and, to the fullest extentpermitted by law, amounts paid in settlement (if such settlement is approved inadvance by the Company, which approval shall not be unreasonably withheld), ineach case to the extent actually and reasonably incurred by Indemnitee inconnection with the defense or settlement of such action or suit if Indemniteeacted in good faith and in a manner Indemnitee reasonably believed to be in ornot opposed to the best interests of the Company and its stockholders, except thatno indemnification shall be made in respect of any claim, issue or matter as towhich Indemnitee shall have been finally adjudicated by court order or judgmentto be liable to the Company in the performance of Indemnitee’s duty to theCompany and its stockholders unless and only to the extent that the court inwhich such action or proceeding is or was pending shall determine uponapplication that, in view of all the circumstances of the case, Indemnitee isfairly and reasonably entitled to indemnity for such Expenses which such courtshall deem proper.

 

(c)                                  **Mandatory Payment of Expenses.**To theextent that Indemnitee has been successful on the merits or otherwise indefense of any action, suit or proceeding referred to in Section 1(a) orSection 1(b) or the defense of any claim, issue or matter therein,Indemnitee shall be indemnified against Expenses actually and reasonablyincurred by Indemnitee in connection therewith.

 

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

 

2.                                       **No Employment Rights.**Nothing containedin this Agreement is intended to create in Indemnitee any right to continuedemployment.

 

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3.                                       **Expenses; Indemnification Procedure.**

 

(a)                                  **Advancement of Expenses.**The Companyshall advance all Expenses incurred by Indemnitee in connection with theinvestigation, defense, settlement or appeal of any civil or criminal action,suit or proceeding referred to in Section l(a) or Section 1(b) hereof(including amounts actually paid in settlement of any such action, suit orproceeding). Indemnitee hereby undertakes to repay such amounts advanced onlyif, and to the extent that, it shall ultimately be determined that Indemniteeis not entitled to be indemnified by the Company as authorized hereby.

 

(b)                                 **Notice/Cooperation by Indemnitee.**Indemniteeshall, as a condition precedent to his or her right to be indemnified underthis Agreement, give the Company notice in writing as soon as practicable ofany claim made against Indemnitee for which indemnification will or could besought under this Agreement, but any delay in providing notice to the Companywill not relieve it from any liability which it may have to Indemnitee underthis Agreement unless the Company is materially prejudiced by such delay innotice. Notice to the Company shall be directed to the Chief Executive Officerof the Company and shall be given in accordance with the provisions of Section12(d) below. In addition, Indemnitee shall give the Company such informationand cooperation as it may reasonably require and as shall be within Indemnitee’spower.

 

(c)                                  **Procedure.**Any indemnification andadvances provided for in Section 1 and this Section 3 shall be madeno later than thirty (30) days after receipt of the written request ofIndemnitee. If a claim under this Agreement, under any statute, or under anyprovision of the Company’s Certificate of Incorporation or Bylaws providing forindemnification, is not paid in full by the Company within thirty (30) daysafter a written request for payment thereof has first been received by theCompany, Indemnitee may, but need not, at any time thereafter bring an actionagainst the Company to recover the unpaid amount of the claim and, subject toSection 11 of this Agreement, Indemnitee shall also be entitled to be paidfor the Expenses of bringing such action. It shall be a defense to any such action(other than an action brought to enforce a claim for Expenses incurred inconnection with any action, suit or proceeding in advance of its finaldisposition) that Indemnitee has not met the standards of conduct which make itpermissible under applicable law for the Company to indemnify Indemnitee forthe amount claimed, but the burden of proving such defense shall be on theCompany and Indemnitee shall be entitled to receive interim payments ofExpenses pursuant to Section 3(a) unless and until such defense may befinally adjudicated by court order or judgment from which no further right ofappeal exists. It is the parties’ intention that if the Company contestsIndemnitee’s right to indemnification, the question of Indemnitee’s right toindemnification shall be for the court to decide, and neither the failure ofthe Company (including its Board of Directors, any committee or subgroup of theBoard of Directors, independent legal counsel, or its stockholders) to havemade a determination that indemnification of Indemnitee is proper in thecircumstances because Indemnitee has met the applicable standard of conductrequired by applicable law, nor an actual determination by the Company(including its Board of Directors, any committee or subgroup of the Board ofDirectors, independent legal counsel, or its stockholders) that Indemnitee hasnot met such applicable standard of conduct, shall create a presumption thatIndemnitee has or has not met the applicable standard of conduct.

 

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(d)                                 **Notice to Insurers.**If, at the time ofthe receipt of a notice of a claim pursuant to Section 3(b) hereof, theCompany has director and officer liability insurance in effect, the Companyshall give prompt notice of the commencement of such proceeding to the insurersin accordance with the procedures set forth in the respective policies. TheCompany shall thereafter take all necessary or desirable action to cause suchinsurers to pay, on behalf of the Indemnitee, all amounts payable as a resultof such proceeding in accordance with the terms of such policies.

 

(e)                                  **Selection of Counsel.**In the event theCompany shall be obligated under Section 3(a) hereof to pay the Expenses of anyproceeding against Indemnitee, the Company, if appropriate, shall be entitledto assume the defense of such proceeding, with counsel reasonably acceptable toIndemnitee, upon the delivery to Indemnitee of written notice of its electionso to do. After delivery of such notice, approval of such counsel by Indemniteeand the retention of such counsel by the Company, the Company will not beliable to Indemnitee under this Agreement for any fees of counsel subsequentlyincurred by Indemnitee with respect to the same proceeding, provided that(i) Indemnitee shall have the right to employ counsel in any suchproceeding at Indemnitee’s expense; and (ii) if (A) the employment ofcounsel by Indemnitee has been previously authorized by the Company,(B) Indemnitee shall have reasonably concluded that there may be a conflictof interest between the Company and Indemnitee in the conduct of any suchdefense or (C) the Company shall not, in fact, have employed counsel toassume the defense of such proceeding, then the fees and expenses of Indemnitee’scounsel shall be at the expense of the Company.

 

4.                                       **Additional Indemnification Rights; Nonexclusivity.**

 

(a)                                  **Scope.**Notwithstanding any otherprovision of this Agreement, the Company hereby agrees to indemnify theIndemnitee to the fullest extent permitted by law, notwithstanding that suchindemnification is not specifically authorized by the other provisions of thisAgreement, the Company’s Certificate of Incorporation, the Company’s Bylaws orby statute. In the event of any change, after the date of this Agreement, inany applicable law, statute, or rule which expands the right of a Delawarecorporation to indemnify a member of its board of directors or an officer, suchchanges shall be deemed to be within the purview of Indemnitee’s rights and theCompany’s obligations under this Agreement. In the event of any change in anyapplicable law, statute or rule which narrows the right of a Delawarecorporation to indemnify a member of its board of directors or an officer, suchchanges, to the extent not otherwise required by such law, statute or rule tobe applied to this Agreement shall have no effect on this Agreement or theparties’ rights and obligations hereunder.

 

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

 

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

 

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

 

6.                                       **Mutual Acknowledgment.**Both the Companyand Indemnitee acknowledge that in certain instances, Federal law or publicpolicy may override applicable state law and prohibit the Company fromindemnifying its directors and officers under this Agreement or otherwise. Forexample, the Company and Indemnitee acknowledge that the Securities andExchange Commission (the “SEC”) has taken the position thatindemnification is not permissible for liabilities arising under certainfederal securities laws, and federal legislation prohibits indemnification forcertain ERISA violations. Indemnitee understands and acknowledges that theCompany has undertaken or may be required in the future to undertake with theSEC to submit the question of indemnification to a court in certaincircumstances for a determination of the Company’s right under public policy toindemnify Indemnitee.

 

7.                                       **Officer and Director Liability Insurance.**TheCompany represents and warrants that it shall obtain and maintain insuranceproviding the officers and directors of the Company with coverage for lossesfrom wrongful acts, or to ensure the Company’s performance of itsindemnification obligations under this Agreement. In all policies of directorand officer liability insurance, Indemnitee shall be named as an insured insuch a manner as to provide Indemnitee the same rights and benefits as areaccorded to the most favorably insured of the Company’s directors, ifIndemnitee is a director; or the Company’s officers, if Indemnitee is not adirector of the Company but is an officer; or of the Company’s key employees,if Indemnitee is not an officer or director but is a key employee. Notwithstandingthe foregoing, the Company shall have no obligation to obtain or maintain suchinsurance if the Company’s Board of Directors determines in good faith thatsuch insurance is not reasonably available, if the premium costs for suchinsurance are disproportionate to the amount of coverage provided, if thecoverage provided by such insurance is limited by exclusions so as to providean insufficient benefit, or if Indemnitee is covered by similar insurancemaintained by a parent or subsidiary of the Company. Indemnitee shall beimmediately notified in the event the Company determines not to obtain ormaintain such insurance on behalf of Indemnitee.

 

8.                                       **Severability.**Nothing in this Agreementis intended to require or shall be construed as requiring the Company to do orfail to do any act in violation of applicable law. The Company’s inability,pursuant to court order, to perform its obligations under this Agreement shallnot constitute a breach of this Agreement. The provisions of this Agreementshall be severable as provided in this Section 8. If this Agreement or anyportion hereof shall be invalidated on any ground by any court of competentjurisdiction, then the Company shall nevertheless indemnify Indemnitee to thefull extent permitted by any applicable portion of this

 

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

 

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

 

(a)                                  **Claims Initiated by Indemnitee.**Toindemnify or advance Expenses to Indemnitee with respect to proceedings orclaims initiated or brought voluntarily by Indemnitee and not by way ofdefense, except with respect to proceedings brought to establish or enforce aright to indemnification under this Agreement or any other statute or law orotherwise as required under Section 145 of the Delaware GeneralCorporation Law, but such indemnification or advancement of Expenses may beprovided by the Company in specific cases if the Board of Directors finds it tobe appropriate;

 

(b)                                 **Lack of Good Faith.**To indemnifyIndemnitee for any Expenses incurred by Indemnitee with respect to anyproceeding instituted by Indemnitee to enforce or interpret this Agreement, ifa court of competent jurisdiction determines that each of the materialassertions made by Indemnitee in such proceeding was not made in good faith orwas frivolous;

 

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

 

(d)                                 **Claims under Section 16(b).**Toindemnify Indemnitee for Expenses or the payment of profits arising from thepurchase and sale by Indemnitee of securities in violation ofSection 16(b) of the Securities Exchange Act of 1934, as amended, or anysimilar successor statute.

 

10.                                 **Construction of Certain Phrases.**

 

(a)                                  Forpurposes of this Agreement, references to the “Company” shall include,in addition to the resulting corporation, any constituent corporation(including any constituent of a constituent) absorbed in a consolidation ormerger which, if its separate existence had continued, would have had power andauthority to indemnify its directors, officers, and employees or agents, sothat if Indemnitee is or was a director, officer, employee or agent of suchconstituent corporation, or is or was serving at the request of suchconstituent corporation as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust or other enterprise, Indemniteeshall stand in the same position under the provisions of this Agreement withrespect to the resulting or surviving corporation as Indemnitee would have withrespect to such constituent corporation if its separate existence hadcontinued.

 

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

 

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the Company”shall include any service as a director, officer, employee or agent of theCompany which imposes duties on, or involves services by, such director,officer, employee or agent with respect to an employee benefit plan, itsparticipants, or beneficiaries; and if Indemnitee acted in good faith and in amanner Indemnitee reasonably believed to be in the interest of the participantsand beneficiaries of an employee benefit plan, Indemnitee shall be deemed tohave acted in a manner “not opposed to the best interests of the Company”as referred to in this Agreement.

 

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

 

12.                                 **Miscellaneous.**

 

(a)                                  **Governing Law.**This Agreement and allacts and transactions pursuant hereto and the rights and obligations of theparties hereto shall be governed, construed and interpreted in accordance withthe laws of the State of Delaware, without giving effect to principles ofconflict of law.

 

(b)                                 **Entire Agreement; Enforcement of Rights.**ThisAgreement sets forth the entire agreement and understanding of the partiesrelating to the subject matter herein and merges all prior discussions betweenthem. No modification of or amendment to this Agreement, nor any waiver of anyrights under this Agreement, shall be effective unless in writing signed by theparties to this Agreement. The failure by either party to enforce any rightsunder this Agreement shall not be construed as a waiver of any rights of suchparty.

 

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

 

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

 

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

 

(f)                                    **Successors and Assigns.**This Agreementshall be binding upon the Company and its successors and assigns, and inure tothe benefit of Indemnitee and Indemnitee’s heirs, legal representatives andassigns.

 

(g)                                 **Subrogation**. In the event of paymentunder this Agreement, the Company shall be subrogated to the extent of suchpayment to all of the rights of recovery of Indemnitee, who shall execute alldocuments required and shall do all acts that may be necessary to secure suchrights and to enable the Company to effectively bring suit to enforce suchrights.

 

 

[Signature Page Follows]

 

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The partieshereto have executed this Agreement as of the day and year set forth on thefirst page of this Agreement.

 
|                     | iVOW, Inc.                  |
|--------------------------|-----------------------------|
|                     |                        |
|                     |                        |
|                     | By:                         |   |   |
|                     |                        |
|                     | Title:                      |   |   |
|                     |                        |
|                     | Address:                    | 11455 El  Camino Real |
|                     |                        | Suite 140 |
|                     |                        | San Diego, CA  92130-2098 |
|                     |                        |
|                     | Fax Number:  (858) 847-4811 |
|                     |                        |
| AGREED TO  AND ACCEPTED: |
|                     |
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| **[Name]**               |
|                     |
|                     |
|                     |                        |
| (Signature)              |                        |
|                     |                        |
| Address:                 |                        |   |   |
|                     |                        |   |   |
|                     |                        |
| Fax Number:              |                        |   |
|                          |                             |  |  |  |  |  |  |

 

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