exv10w59



 








Exhibit
10.59




	 	 	 	 	 
	

	 	 	 	David S. Wise
	 

	 	Power To Renew A Life
	 	Vice President & General Counsel
	 

	 	 	 	281.228.7268 office
	 

	 	 	 	281.283.5369 facsimile
	 

	 	 	 	david .wise@cyberonics.com






October 12, 2006




Pamela B. Westbrook

26 Schubach Drive

Sugar Land, TX 77479




Re: Advancement of Attorney’s Fees




Dear Pam:




     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



Cyberonics, Inc.       100 Cyberonics Blvd.       Houston, TX 77058       800.332.1375       www.VNSTherapy.com




 









 





Pamela B. Westbrook

October 12, 2006

Page 2



amounts under any insurance policy procured by Cyberonics. The obligations of this paragraph shall
survive termination of this Agreement.




     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,




/s/
David S.Wise




David S.Wise




	 	 	 	 	 
	 

	 	 	 	 
	AGREED AND ACCEPTED:	 	 
	 
	 	 	 	 
	/s/ Pamela B. Westbrook	 	 
	 	 	 
	 
	 	 	 	 
	Print Name:

	 	Pamela B. Westbrook	 	 
	 
	 	 	 	 
	Date:

	 	October 12, 2006	 	 






Cyberonics, Inc.      100 Cyberonics Blvd.     Houston, TX 77058     800.332.1375       www.VNSTherapy.com