exv10w34



 







Exhibit
10.34








David S. Wise

Vice President

General Counsel

(281) 228-7268 Direct Line

(281) 283-5369 Facsimile




September 28, 2006



Robert P. Cummins

4 Wexford Court 

Houston, TX 77024



Re:
Advancement of Attorney ’s Fees 



Dear Mr. Cummins:




     This Agreement, Affirmation and Undertaking is to confirm the terms under which Cyberonics,
Inc., a Delaware corporation, (“Cyberonics” or the “Company”) will agree to your request that it
advance your reasonable attorney’s fees and costs (collectively, “Fees”) in connection with any
action, suit or proceeding, whether civil, criminal, administrative, or investigative, regarding
Cyberonics’ practices and procedures for granting stock options (collectively, “Proceedings”).



     The terms are as follows:



     1. Subject to the terms of this Agreement, the Company’s bylaws and articles of
incorporation, and applicable law, Cyberonics agrees to advance Fees incurred by you in
connection with the Proceedings.



     2. You agree to undertake to repay all Fees advanced by Cyberonics pursuant to this Agreement
if it shall ultimately be determined that you are not entitled to indemnification. The obligations
of this paragraph shall survive termination of this Agreement.



     3. You agree that with respect to any amounts advanced to you or on your behalf by Cyberonics
in connection with the Proceedings: (i) Cyberonics will be subrogated to any right you have to
recover such amounts from any third party including, but not limited to, any right you have to any
insurance coverage that may be available to you under any insurance policy procured by or on behalf
of Cyberonics; (ii) you will cooperate with Cyberonics and take any action reasonably necessary to
assist or enable Cyberonics to exercise the rights to which it is subrogated under the preceding
clause including, but not limited to, executing any formal assignment or other legal instrument
that may be required in order for Cyberonics to pursue or enforce such rights; and (iii) you will
cooperate with Cyberonics and take any action reasonably necessary to assist or enable Cyberonics
to obtain reimbursement or direct payment of such amounts under any insurance policy procured by
Cyberonics. The obligations of this paragraph shall survive termination of this Agreement.



100 Cyberonics Blvd • Houston, TX 77058 • Tel: (800) 332-1375 • Fax:(281) 218-9332

Belgicastraat 9 • 1930 Zaventem • Belgium • Tel: 32 2 720 95 93 • Fax: 32 2 720 60 53

www.cyberonics.com





 









 








			
	Robert P. Cummins 

September 28, 2006
	 	Page 2






     4. You shall cause your legal counsel to send to Cyberonics, each month, an invoice for the
fees and expenses of counsel for the immediately preceding month. All such invoices shall provide a
description of the services performed (subject to the reasonable requirements for you to maintain
the attorney-client privilege), shall set forth the hours worked and the hourly rate of the
attorney who performed the services, shall conform to any applicable billing guidelines and
procedures, and shall otherwise be in form and substance acceptable to Cyberonics.



     5. You shall send all invoices and notices under this Agreement to: Office of General
Counsel, Cyberonics, Inc., 100 Cyberonics Boulevard, Houston, TX 77058.



     6. This Agreement covers only the advancement of Fees in connection with a Proceeding. The
rights and obligations of you and Cyberonics regarding any possible claim of indemnification by you
from or against any damages, fines, penalties or awards, whether in connection with a Proceeding or
otherwise, are not governed by this Agreement, but will be determined under the bylaws and articles
of incorporation of Cyberonics, applicable law, and any applicable contract.



     7. To the extent there is any inconsistency between this Agreement and the terms of the
Company’s bylaws and articles of incorporation or applicable law, the Company’s bylaws and articles
of incorporation and applicable law shall govern over the terms herein.



     To indicate your agreement with the terms of this Agreement, please execute a copy in the
space provided below and return it to Cyberonics’ General Counsel.



	 	 	 	 	 
	 	Sincerely,

Cyberonics, Inc.

 	 
	 	By:  	/s/
David S. Wise
 	 
	 	 	David S. Wise  	 
	 	 	Vice President & General Counsel 	 
	 



	 	 	 
	 

	 	 
	AGREED AND ACCEPTED:
	 	 
	 
	 	 
	/s/
Robert P. Cummins 
	 	 
	 	 	 
	Robert P. Cummins 
	 	 





Date: 10/3/06