Form of Indemnification Agreement



 Exhibit 10.1 
  
 NORTHSTAR NEUROSCIENCE, INC. 
  

INDEMNIFICATION AGREEMENT 
  
 This Indemnification Agreement (the “Agreement”) is entered into on
                         , 2006, between Northstar Neuroscience, Inc., a Washington corporation (the
“Company”), and                     , a director, officer, or both, of the Company and/or one or more of its subsidiaries
(“Indemnitee”), for good and valuable consideration as set forth below. 
  
 RECITALS 
  
 A. The Company
recognizes the importance, and increasing difficulty, of obtaining adequate liability insurance coverage for its directors, officers, employees, agents and fiduciaries. 
  
 B. The Company further recognizes that, at the same time as the availability and coverage of such insurance has become more
limited, litigation against corporate directors, officers, employees, agents and fiduciaries has continued to increase. 
  
 C. Article 5 of the Company’s Amended and Restated Articles of Incorporation (the “Articles”) provides for indemnification of the
Company’s directors and officers to the full extent authorized by the Washington Business Corporation Act (the “Statute”), and that such provisions are not exclusive and may be supplemented by agreements between the Company and
its officers and directors. 
  
 D. The Company desires to retain
and attract the services of highly qualified individuals, such as Indemnitee, to serve the Company and, in that connection, also desires to provide contractually for indemnification of, and advancement of expenses to, Indemnitee to the full extent
authorized by law. 
  
 AGREEMENT 
  
 1. Indemnification. 
  
 a. Scope. The Company agrees to hold harmless and indemnify
Indemnitee against any Damages (as defined in Section 1(c)) incurred by Indemnitee with respect to any Proceeding (as defined in Section 1(d)) to which Indemnitee is or is threatened to be made a party or in which Indemnitee is otherwise
involved (including, but not limited to, as a witness), to the full extent authorized by law, without regard to the limitations in RCW 23B.08.510 through 23B.08.550, and 23B.08.560(2), except that Indemnitee shall have no right to indemnification on
account of: (i) acts or omissions of Indemnitee that have been finally adjudged (by a court having proper jurisdiction, and after all rights of appeal have been exhausted or lapsed, herein “Finally Adjudged”) to be intentional
misconduct or a knowing violation of law; (ii) conduct of Indemnitee that has been Finally Adjudged to be in violation of RCW 23B.08.310; (iii) any transaction with respect to which it has been Finally Adjudged that Indemnitee personally
received a benefit in money, property or services to which Indemnitee was not legally entitled; or (iv) any suit in which it is Finally Adjudged that Indemnitee is liable for 







 an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto. 
  
 b. Changes to Indemnification Right. Indemnitee’s right to be indemnified to the full extent authorized by law shall include the benefits of
any change, after the date of this Agreement, in the Statute or other applicable law regarding the right of a Washington corporation to indemnify directors or officers, to the extent that it would expand Indemnitee’s rights hereunder. Any such
change that would narrow or interfere with Indemnitee’s rights hereunder shall not apply to, limit, or affect the interpretation of, this Agreement, unless and then only to the extent that it has been Finally Adjudged that its application
hereto does not constitute an unconstitutional impairment of Indemnitee’s contract rights or otherwise violate applicable law. 
  
 c. Indemnified Amounts. If Indemnitee is or is threatened to be made a party to, or is otherwise involved (including, but not limited to, as a
witness) in, any Proceeding, the Company shall hold harmless and indemnify Indemnitee from and against any and all losses, claims, damages, costs, expenses and liabilities incurred in connection with investigating, defending, being a witness in,
participating in or otherwise being involved in (including on appeal), or preparing to defend, be a witness in, participate in or otherwise be involved in (including on appeal), such Proceeding, including but not limited to attorneys’ fees,
judgments, fines, penalties, ERISA excise taxes, amounts paid in settlement, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments pursuant to this Agreement, and other expenses
(collectively, “Damages”), including all interest, assessments or charges paid or payable in connection with or in respect of such Damages. 
  
 d. Definition of Proceeding. For purposes of this Agreement, “Proceeding” shall mean any actual, pending, threatened or completed
action, suit, claim, investigation, hearing or proceeding (whether civil, criminal, administrative or investigative, and whether formal or informal) in which Indemnitee is, has been or becomes involved, or regarding which Indemnitee is threatened to
be made a named defendant or respondent, based in whole or in part on or arising out of the fact that Indemnitee is or was a director, officer, member of a board committee, employee or agent of the Company and/or any of its subsidiaries or that,
being or having been such a director, officer, member of a board committee, employee or agent, Indemnitee is or was serving at the request of the Company as a director, officer, partner, employee, trustee or agent of another corporation or of a
foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise (each, a “Related Company”), whether the basis of such action, suit, claim, investigation, hearing or proceeding is
alleged action or omission by Indemnitee in an official capacity as a director, officer, committee member, partner, employee, trustee or agent or in any other capacity while serving as a director, officer, committee member, partner, employee,
trustee or agent. “Proceeding” shall not, however, include any action, suit, claim, investigation, hearing or proceeding instituted by or at 
  

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 the direction of Indemnitee unless pursuant to an Enforcement Action (as defined in Section 3(a)) or its institution
has been authorized by the Company’s Board of Directors (the “Board”). 
  
 e. Notifications. 
  
 i.
Promptly after receipt by Indemnitee of notice of the commencement (including a threatened assertion or commencement) of any Proceeding, Indemnitee will, if it is reasonably foreseeable that a claim in respect thereof will be made against the
Company under this Agreement, notify the Chair of the Board’s Audit Committee of the commencement thereof (which notice shall be in the form of Exhibit A hereto) (the “Indemnification Notice”). A failure to notify the
Company in accordance with this subsection (e)(i) will not, however, relieve the Company from any liability to Indemnitee under this Agreement unless (and then only to the extent that) such failure is Finally Adjudged to have materially prejudiced
the Company’s ability to defend the Proceeding. 
  
 ii. At
the same time, or from time to time thereafter, Indemnitee may further notify the Chair of the Board’s Audit Committee, by delivery of a supplemental Indemnification Notice (or by checking the second box and providing the corresponding
information on the initial Indemnification Notice), of any Proceeding for which indemnification is being sought under this Agreement. 
  
 f. Determination of Entitlement. 
  
 i. To the extent Indemnitee has been wholly successful, on the merits or otherwise, in the defense of any Proceeding, the Company shall indemnify
Indemnitee against all expenses incurred by Indemnitee in connection with the Proceeding, within ten (10) days after receipt of an Indemnification Notice delivered pursuant to subsection (e)(ii). 
  
 ii. In the event that subsection (f)(i) above is inapplicable, or does not
apply to the entire Proceeding, the Company shall indemnify Indemnitee within thirty (30) days after receipt of an Indemnification Notice delivered pursuant to subsection (e)(ii) unless during such thirty (30) day period the Audit
Committee of the Board delivers to Indemnitee a written notice contesting Indemnitee’s indemnification claim (the “Contest Notice”), which Contest Notice shall state with particularity the reasons for the decision to challenge
Indemnitee’s indemnification claim and the evidence the Company would present in any forum in which Indemnitee might seek review of such decision. The Company’s failure to deliver a Contest Notice within thirty (30) days after the
Company’s receipt of an Indemnification Notice pursuant to subsection (e)(ii) shall obligate the Company unconditionally to indemnify Indemnitee to the extent requested in the Indemnification Notice. 
  
 iii. At any time following receipt of a Contest Notice, Indemnitee shall be
entitled to select a forum for the review of, and in which the Company will defend, the 
  

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 Contest Notice and the Company’s decision to challenge Indemnitee’s indemnification claim. Such selection shall
be made from among the following alternatives, by delivering a written notice to the Chair of the Board’s Audit Committee indicating Indemnitee’s selection of forum: 
  
 (a) A quorum of the Board consisting of directors who are not parties to the Proceeding for which indemnification is being
sought; 
  
 (b) Special Legal Counsel (as defined in subsection
(f)(vii) below); or 
  
 (c) A panel of three independent
arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitrators so selected, provided, that nothing in this Section 1(f) shall prevent
Indemnitee at any time from bringing suit against the Company to recover the amount of the indemnification claim (whether or not Indemnitee has otherwise exhausted its contractual remedies hereunder). In addition, any determination by a forum
selected by Indemnitee that Indemnitee is not entitled to indemnification, or any failure to make the payments requested in the Indemnification Notice, shall be subject to judicial review by any court of competent jurisdiction, as described in
Section 3. 
  
 iv. In any forum in which the Company defends
its Contest Notice and its decision to challenge Indemnitee’s indemnification claim under this Section 1(f), the presumptions, burdens and standard of review set forth in Section 3(c) shall apply and are incorporated into this
Section 1(f) by reference, except as otherwise expressly provided in Section 3(c). 
  
 v. As soon as practicable, and in no event later than fifteen (15) days after the forum has been selected pursuant to subsection (f)(iii) above, the Company shall, at its own expense, submit the defense of its
Contest Notice and the question of Indemnitee’s right to indemnification to the selected forum. 
  
 vi. The forum selected shall render its decision concerning the validity of the Contest Notice and the Company’s decision to deny Indemnitee’s
indemnification claim within thirty (30) days after the forum has been selected in accordance with subsection (f)(iii). 
  
 vii. For the purposes of this Agreement, “Special Legal Counsel” shall mean an attorney or firm of attorneys, selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld), who must not have performed other services for the Company or Indemnitee within the last three years. 
  
 2. Expense Advances. 
  
 a. Generally. The right to indemnification conferred by Section 1 shall include the right to have the Company pay Indemnitee’s
attorneys’ fees and other expenses, 
  

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 including but not limited to out of pocket costs and disbursements, incurred in connection with any Proceeding, or in
connection with bringing, defending and/or pursuing an Enforcement Action (as defined in Section 3(a)), as such expenses are incurred and in advance of the final disposition of such Proceeding or Enforcement Action (such entitlement is referred
to hereinafter as an “Expense Advance”). 
  
 b.
Undertaking. The Company’s obligation to provide an Expense Advance is subject only to the following condition: if the Proceeding arose in connection with Indemnitee’s service as a director and/or officer of the Company or member of
a committee of the Board (and not in any other capacity in which Indemnitee rendered service, including but not limited to service to any Related Company), then Indemnitee or his or her representative must have executed and delivered to the Chair of
the Board’s Audit Committee an undertaking (in the form of Exhibit B hereto) (the “Statement of Undertaking”) to repay all Expense Advances if and to the extent that it may be Finally Adjudged that Indemnitee is not
entitled to be indemnified for such Expense Advance under one or more of clauses (i) through (iv) of the first sentence of Section 1(a). The Statement of Undertaking need not be secured and shall be accepted by the Company without
reference to Indemnitee’s financial ability to make repayment. No interest shall be charged on any obligation to reimburse the Company for any Expense Advance. 
  
 c. Service as Witness. Notwithstanding any other provision of this Agreement, the Company’s obligation to
indemnify, or provide Expense Advances under Section 2, to Indemnitee in connection with Indemnitee’s appearance as a witness in a Proceeding at a time when Indemnitee has not been made a named defendant or respondent to the Proceeding
shall be absolute and unconditional, and not subject to any of the limitations on, or conditions to, Indemnitee’s right to indemnification or to receive an Expense Advance otherwise contained in this Agreement. 
  
 3. Procedures for Enforcement. 
  
 a. Enforcement. If a claim for indemnification made by Indemnitee
hereunder is not paid in full (whether or not the provisions of Section 1(f) have been complied with, or completed), or a claim for an Expense Advance made by Indemnitee hereunder is not paid in full within twenty (20) days from delivery
of a Statement of Undertaking to the Chair of the Board’s Audit Committee, Indemnitee may, but need not, at any time thereafter bring suit against the Company to recover the unpaid amount of the claim (an “Enforcement Action”).

  
 b. Required Indemnification. The court hearing the
Enforcement Action shall order the Company to provide indemnification or to advance expenses to Indemnitee to the full extent sought in the Enforcement Action if it determines that (i) the Enforcement Action is brought by Indemnitee to enforce
the Company’s obligation under Section 1(f)(ii) unconditionally to indemnify Indemnitee to the extent requested in the Indemnification Notice where the Company has failed timely to deliver a Contest Notice, or (ii) the Company failed
to 
  

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 prove by clear and convincing evidence that Indemnitee is not entitled to indemnification based on one or more of clauses
(i) through (iv) of the first sentence of Section 1(a). 
  
 c. Presumptions, Burdens and Standard of Review in Enforcement Action or Company Determination. In any Enforcement Action (and, except as otherwise expressly provided in this Section 3(c), in any review of a Contest Notice by a
forum described in Section 1(f)) the following presumptions (and limitations on presumptions), burdens and standard of review shall apply: 
  
 i. The Company shall conclusively be presumed to have entered into this Agreement and assumed the obligations imposed hereunder in order to induce
Indemnitee to serve or to continue to serve as an director and/or officer of the Company and/or one or more of its subsidiaries; 
  
 ii. This Agreement shall conclusively be presumed to be valid and Article 5 of the Articles shall conclusively be presumed to be effective to waive all
of the limitations in RCW 23B.08.510 through RCW 23B.08.550, and RCW 23B.08.560(2); 
  
 iii. Submission of an Indemnification Notice in accordance with Section 1(e)(ii) or a Statement of Undertaking to the Company shall create a presumption that Indemnitee is entitled to indemnification or an
Expense Advance hereunder, and thereafter the Company shall have the burden of proving by clear and convincing evidence (sufficient to rebut the foregoing presumption) that Indemnitee is not entitled to indemnification based on one or more of
clauses (i) through (iv) of the first sentence of Section 1(a); 
  
 iv. Indemnitee may establish a conclusive presumption of any objective fact related to an event or occurrence by delivering to the Company a declaration made under penalty of perjury that such fact is true,
provided, that no such presumption may be established with respect to the ultimate conclusions set forth in any of clauses (i) through (iv) of the first sentence of Section 1(a); 
  
 v. If Indemnitee is or was serving as a director, officer, employee, trustee
or agent of a corporation of which a majority of the shares entitled to vote in the election of its directors is held by the Company or in an executive or management capacity in a partnership, joint venture, trust or other enterprise of which the
Company or a wholly-owned subsidiary of the Company is a general partner or has a majority ownership, then such corporation, partnership, joint venture, trust or enterprise shall conclusively be deemed a Related Company and Indemnitee shall
conclusively be deemed to be serving such Related Company at the request of the Company; 
  
 vi. Neither (i) the failure of the Company (including but not limited to the Board, the Company’s officers, independent counsel, Special Legal Counsel, any arbitrator or the Company’s shareholders) to
make a determination prior to the commencement of the 
  

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 Enforcement Action whether indemnification, or payment of an Expense Advance, of Indemnitee is proper in the
circumstances nor (i) an actual determination by the Company, the Board, the Company’s officers, independent counsel, Special Legal Counsel, any arbitrator or the Company’s shareholders that Indemnitee is not entitled to
indemnification or payment of an Expense Advance shall be a defense to the Enforcement Action, create a presumption that Indemnitee is not entitled to indemnification hereunder or be considered by a court in an Enforcement Action, which shall
conduct a de novo review of the relevant issues; and 
  
 vii. If
the court hearing the Enforcement Action is unable to make either of the determinations specified in Sections 3(b)(i) or 3(b)(ii), the court hearing the Enforcement Action shall nonetheless order the Company to provide indemnification or to advance
expenses to Indemnitee to the full extent sought in the Enforcement Action if it determines that Indemnitee is fairly and reasonably entitled to such indemnification or Expense Advance in view of all of the relevant circumstances, and without regard
to the limitations set forth in clauses (i) through (iii) of the first sentence of Section 1(a). In determining whether Indemnitee is fairly and reasonably entitled to such indemnification or expense advance, the court shall weigh
(i) the relative benefits received by the Company and/or any of its subsidiaries or any Related Company, or any of their affiliates other than Indemnitee, on the one hand, and Indemnitee on the other from the transaction from which such
Proceeding arose or to which such Proceeding relates, and (ii) the relative fault of the Company and/or any of its subsidiaries or any Related Company, or any of their affiliates other than Indemnitee, on the one hand, and of Indemnitee on the
other in connection with the transaction that resulted in such Damages, as well as any other relevant equitable considerations. The relative fault of the Company and/or any of its subsidiaries or any Related Company, or any of their affiliates other
than Indemnitee, on the one hand, and of Indemnitee on the other shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances
resulting in such Damages. If either (i) the relative benefits received by the Company and/or any of its subsidiaries or any Related Company, or any of their affiliates other than Indemnitee, exceed the relative benefits received by Indemnitee,
or (ii) the relative fault of the Company and/or any of its subsidiaries or any Related Company, or any of their affiliates other than Indemnitee, exceeds the relative fault of Indemnitee, then Indemnitee shall be entitled to the full amount of
indemnification and/or Expense Advance sought in the Enforcement Proceeding. 
  
 d. Attorneys’ Fees and Expenses for Enforcement Action. In any Enforcement Action, the Company shall hold harmless and indemnify Indemnitee against all of Indemnitee’s attorneys’ fees and
expenses in bringing, defending and/or pursuing the Enforcement Action (including but not limited to attorneys’ fees at any stage, and on appeal); provided, however, that the Company shall not be required to provide such
indemnification for such fees and expenses if it is Finally Adjudged that Indemnitee knew prior to commencement of the Enforcement Action that Indemnitee was not entitled to indemnification based on any of clauses (i) through (iv) of the
first sentence of Section 1(a). 
  

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 4. Defense of Claim. 
  
 With respect to any Proceeding as to which Indemnitee has provided notice to the Company pursuant to Section 1(e)(i):

  
 a. The Company may participate therein at its own expense.

  
 b. The Company (jointly with any other indemnifying party
similarly notified, if any) may assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Company to Indemnitee of its election to so assume the defense thereof, the Company shall not be liable to
Indemnitee under this Agreement for any legal fees or other expenses (other than reasonable costs of investigation) subsequently incurred by Indemnitee in connection with the defense thereof unless (i) the employment of counsel by Indemnitee or
the incurring of such expenses has been authorized by the Company, (ii) Indemnitee shall have concluded that there is a reasonable possibility that a conflict of interest could arise between the Company and Indemnitee in the conduct of the
defense of such Proceeding, which conflict of interest shall be conclusively presumed to exist upon Indemnitee’s delivery to the Company of a written certification of such conclusion, or (iii) the Company shall not in fact have employed
counsel to assume the defense of such Proceeding, in each of which cases the legal fees and other expenses of Indemnitee shall be at the expense of the Company. The Company shall not be entitled to assume the defense of a Proceeding brought by or on
behalf of the Company or as to which Indemnitee shall have reached the conclusion described in clause (ii) above. 
  
 c. The Company shall not be liable for any amounts paid in settlement of any Proceeding effected without its written consent. 
  
 d. The Company shall not settle any Proceeding in any manner that would
impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. 
  
 e. Neither the Company nor Indemnitee will unreasonably withhold its or his or her consent to any proposed settlement of any Proceeding. 
  
 5. Maintenance of D&O Insurance. 
  
 a. Subject to Section 5(c) below, during the period (the “Coverage Period”) beginning on the date of
this Agreement and ending at the later of (i) six (6) years following the time Indemnitee is no longer serving as either a director or officer of the Company and/or one or more subsidiaries or any Related Company, or (ii) at the end
of such longer period during which Indemnitee believes that a reasonable possibility of exposure to a Proceeding or Damages persists (which extended period must be consented to by the Company, such consent not to be unreasonably withheld), the
Company shall maintain a directors’ and officers’ liability insurance policy in full force and effect or shall have purchased or otherwise provided for a run-off or tail policy or endorsement to such existing policy (“D&O
Insurance”), providing in all respects 
  

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 coverage at least comparable to and in similar amounts, and with similar exclusions, as that obtained by other similarly
situated companies as determined in good faith by any of the parties referenced in Section 1(f)(iii)(a) through (c). 
  
 b. Under all policies of D&O Insurance, Indemnitee shall during the Coverage Period be named as an insured in such a manner as to provide Indemnitee
the same rights and benefits, subject to the same limitations, as are accorded to the Company’s directors or officers most favorably insured by such policy, and each insurer under a policy of D&O Insurance shall be required to provide
Indemnitee written notice at least thirty (30) days prior to the effective date of termination of the policy. 
  
 c. The Company shall have no obligation to obtain or maintain D&O Insurance to the extent that such insurance is not reasonably available, the premium
costs for such insurance are disproportionate to the amount of coverage provided, or the coverage provided by such insurance is so limited by exclusions as to provide an insufficient benefit, such determination to be made by any of the parties
referenced in Section 1(f)(iii)(a) through (c). 
  
 d. It is
the intention of the parties in entering into this Agreement that the insurers under the D&O Insurance, if any, shall be obligated ultimately to pay any claims by Indemnitee which are covered by D&O Insurance, and nothing herein shall be
deemed to diminish or otherwise restrict the Company’s or Indemnitee’s right to proceed or collect against any insurers under D&O Insurance or to give such insurers any rights against the Company or Indemnitee under or with respect to
this Agreement, including but not limited to any right to be subrogated to the Company’s or Indemnitee’s rights hereunder, unless otherwise expressly agreed to by the Company and Indemnitee in writing. The obligation of such insurers to
the Company and Indemnitee shall not be deemed reduced or impaired in any respect by virtue of the provisions of this Agreement. 
  
 e. No indemnification pursuant to this Agreement shall be provided by the Company for Damages or Expense Advances that have been paid directly to
Indemnitee by an insurance carrier under a policy of D&O Insurance or other insurance maintained by the Company. 
  
 f. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of Indemnitee to
recover the same amounts from any insurer or other third person (other than another person with indemnification rights against the Company substantially similar those of Indemnitee under this Agreement). Indemnitee shall execute all documents
required and take all acts necessary to secure such rights and enable the Company effectively to bring suit to enforce such rights. 
  

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 6. Partial Indemnification; Mutual Acknowledgment; Contribution. 
  
 a. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a portion of any Damages in connection with a Proceeding, but not for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such
Damages to which Indemnitee is entitled. 
  
 b. Mutual
Acknowledgment. The Company and Indemnitee acknowledge that, in certain instances, federal law or public policy may override applicable state law and prohibit the Company from indemnifying Indemnitee under this Agreement or otherwise. For
example, the Company and Indemnitee acknowledge that the Securities and Exchange Commission (the “SEC”) has taken the position that indemnification is not permissible for liabilities arising under certain federal securities laws,
and federal legislation prohibits indemnification for certain ERISA violations. Furthermore, Indemnitee understands that the Company has undertaken or may be required in the future to undertake with the SEC to submit for judicial determination the
issue of the Company’s power to indemnify Indemnitee in certain circumstances; all of the Company’s obligations under this Agreement will be subject to the requirements of any such undertaking required by the SEC to be made by the Company.

  
 c. Contribution. If the indemnification provided under
Sections 1, 2 and 6 is unavailable by reason of any of the circumstances specified in one or more of clauses (i) through (iii) of the first sentence of Section 1(a) then, in respect of any Proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such Proceeding), the Company shall contribute to the amount of Damages (including attorneys’ fees) actually and reasonably incurred and paid or payable by Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company and/or any of its subsidiaries or any Related Company, or any of their affiliates other than Indemnitee, on the one hand, and Indemnitee on the other from the transaction
or events from which such Proceeding arose or to which such Proceeding relates, and (ii) the relative fault of the Company and/or any of its subsidiaries or any Related Company, or any of their affiliates other than Indemnitee, on the one hand,
and of Indemnitee on the other in connection with the transaction or events that resulted in such Damages, as well as any other relevant equitable considerations. The relative fault of the Company and/or any of its subsidiaries or any Related
Company, or any of their affiliates other than Indemnitee, on the one hand, and of Indemnitee on the other shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent the circumstances resulting in such Damages. The Company agrees that it would not be just and equitable if contribution pursuant to this Section 6(c) were determined by pro rata allocation or any other method of allocation
that does not take account of the foregoing equitable considerations. 
  
 7. Release of Claims Relating to Officer’s Failure to Discharge Duties. If Indemnitee is an officer of the Company and/or one or more of its subsidiaries, the indemnification and other rights and benefits provided to Indemnitee
by this Agreement shall apply fully with respect to any Proceeding in which it is claimed or adjudicated that Indemnitee 
  

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 is liable to the Company and/or one or more of its subsidiaries by reason of having failed to discharge the duties of
Indemnitee’s office, and the Company hereby irrevocably releases all such claims and liabilities, agrees to cause its subsidiaries to release all such claims, and agrees to hold Indemnitee harmless with respect to any such claims;
provided, however, that the foregoing indemnification, release and hold harmless obligations of the Company shall have no application with respect to claims by and liabilities to the Company based upon actions or omissions described in
one or more of clauses (i) through (iv) of the first sentence of Section 1(a). 
  
 8. Miscellaneous. 
  
 a.
This Agreement shall be interpreted and enforced in accordance with the laws of the State of Washington. 
  
 b. This Agreement shall be binding upon Indemnitee and upon the Company, its successors and assigns, and shall inure to the benefit of Indemnitee,
Indemnitee’s heirs, personal representatives and assigns and to the benefit of the Company, its successors and assigns. The Company shall require any successor to the Company (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the Company, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession
had taken place. 
  
 c. Indemnitee’s rights to
indemnification and advancement of expenses under this Agreement shall not be deemed exclusive of any other or additional rights to which Indemnitee may be entitled under the Articles or the Bylaws of the Company, any vote of shareholders or
disinterested directors, the Statute or otherwise, whether as to actions or omissions in Indemnitee’s official capacity or otherwise. 
  
 d. Nothing in this Agreement shall confer upon Indemnitee the right to continue to serve as a director and\or officer of the Company or any of its
subsidiaries or any Related Company. If Indemnitee is an officer of the Company, then, unless otherwise expressly provided in a written employment agreement between the Company and Indemnitee, the employment of Indemnitee with the Company shall be
terminable at will by either party. The indemnification and release provided under this Agreement shall apply to any and all Proceedings, notwithstanding that Indemnitee has ceased to be a director, officer, partner, employee, trustee or agent of
the Company, any of its subsidiaries or a Related Company, and shall inure to the benefit of the heirs, executors and administrators of Indemnitee. 
  
 e. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever, then: (i) the
validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, all portions of any paragraphs of this Agreement containing any such invalid, illegal or 
  

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 unenforceable provision that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraphs of this Agreement containing any such invalid, illegal or unenforceable provision, that
are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable. 
  
 f. Any notices or communications to be given or required to be given under this Agreement shall be given by personal
delivery or registered airmail, overnight courier, telex, facsimile or electronic mail at the following address (or such other address as the relevant party provides the other party in writing and referencing this Section 8(f)): 
  

	
	Company:
	
	Northstar Neuroscience, Inc.
	2401 Fourth Avenue, Suite 300
	Seattle, Washington 98121
	(Fax) 1-206-902-2019
	(Tel) 1-206-902-1477
	 Attn: Chief Financial Officer
 electronic mail:
rcalvert@northstarneuro.com

	
	Indemnitee:
	
	______________________
	
	______________________
	
	______________________
	
	(Fax)______________
	(Tel) ______________
	electronic mail: _______________________________

  
 Notices and communications shall be
deemed received by the addressee on the date of delivery if delivered in person, on the third (3rd) day after mailing if delivered by registered airmail, on the next business day after mailing if sent by overnight courier, on the next business
day if sent by telex or facsimile, or upon confirmation of delivery when directed to the electronic mail address described above if sent by electronic mail. 
  
 g. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.

  
 h. If Indemnitee has previously executed an indemnification
agreement with the Company, this Agreement supersedes such prior indemnification agreement in its entirety. 
  

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 i. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but
both of which together shall constitute one and the same instrument. 
  
 IN WITNESS WHEREOF, the parties have executed and delivered this Agreement effective as of the day and year first set forth above. 
  

					
	 “Company”
	 	NORTHSTAR NEUROSCIENCE, INC.
			
	 	 	By:	 	  


	 	 	Name:	 	  


	 	 	Its:	 	  


		
	 “Indemnitee”
	 	  


		
	 	 	  


	 	 	[Type name]

  

 13