exv10w28






Exhibit 10.28




INDEMNIFICATION AGREEMENT




          THIS AGREEMENT (“Agreement”), which provides for indemnification, expense advancement and
other rights under the terms and conditions set forth, is made and entered into between Kips
Bay Medical, Inc., a Delaware corporation (the “Company”), and Robert J. Sheehy (“Indemnitee”).
This Agreement shall become effective and binding on the Company and Indemnitee upon
Indemnitee’s election to the Company’s Board of Directors (the “Effective Date”).




RECITALS




          WHEREAS, At the Effective Date, Indemnitee is serving as a director and/or officer of the
Company, and as such is performing a valuable service for the Company; and




          WHEREAS, competent and experienced persons are becoming increasingly reluctant to serve
publicly-held corporations as directors and/or officers or in other fiduciary capacities at the
request of their companies unless they are provided with adequate protection through liability
insurance and adequate company indemnification against risks of claims and actions against them
arising out of their service to the corporation; and




          WHEREAS, the Board of Directors has determined that the ability to attract and retain
qualified persons to serve as directors and/or officers is in the best interests of the Company
and its stockholders, and that the Company should act to assure such persons that there will be
adequate certainty of protection through insurance and indemnification against risks of claims
and actions against them arising out of their service to and activities on behalf of the
Company; and




          WHEREAS, Section 145 of the General Corporation Law of Delaware permits the Company to
indemnify and advance expenses to its officers and directors and to indemnify and advance
expenses to persons who serve at the request of the Company as directors, officers, employees,
or agents of other corporations or enterprises; and




          WHEREAS, the Company has adopted provisions in its Bylaws addressing indemnification and
advancement of expenses to its officers and directors, and providing that the Company may enter
into indemnification agreements which specify the rights and obligations of the Company and
such persons with respect to indemnification, advancement of expenses and related matters; and




          WHEREAS, the Company desires to have Indemnitee continue to serve in an Official Capacity
(as defined below), and Indemnitee desires to continue so to serve the Company, provided, and
on the express condition, that Indemnitee is furnished with the indemnity and other rights set
forth in this Agreement;






 









 








AGREEMENT




          Now, therefore, in consideration of Indemnitee’s service to the Company in Indemnitee’s
Official Capacity, the parties hereto agree as follows:




     1. Definitions. For purposes of this Agreement:



     (a) “Change of Control” means a change in control of the Company occurring after the Effective
Date of a nature that would be required to be reported in response to Item 5.01 of Current Report
on Form 8-K (or in response to any similar item on any similar schedule or form) promulgated under
the Securities Exchange Act of 1934 (the “Act”), whether or not the Company is then subject to such
reporting requirement; provided, however, that, without limitation, such a Change of Control shall
be deemed to have occurred if after the Effective Date (i) any “person” (as such term
is used in Sections 13(d) and 14(d) of the Act) becomes the “beneficial owner” (as defined in Rule
13d-3 under the Act), directly or indirectly, of securities of the Company representing thirty
percent (30%) or more of the combined voting power of the Company’s then outstanding securities
without the prior approval of at least two-thirds of the members of the Board of Directors in
office immediately prior to such person attaining such percentage; (ii) the Company is a party to a
merger, consolidation, sale of assets or other reorganization, or a proxy contest, as a consequence
of which members of the Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors of the surviving corporation or parent
corporation (in the case of a merger in which the Company becomes a wholly-owned subsidiary of
another entity) thereafter; or (iii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (including for this purpose any new
director whose election or nomination for election by the Company’s shareholders was approved by a
vote of at least two-thirds of the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at least a majority of the Board of
Directors.



     (b) “Official Capacity” means Indemnitee’s corporate status as an officer and/or director and
any other fiduciary capacity in which Indemnitee serves the Company, its subsidiaries and
affiliates, and any other entity which Indemnitee serves in such capacity at the request of the
Company’s CEO, its Board of Directors or any committee of its Board of Directors. For purposes of
this Agreement, Indemnitee’s Official Capacity shall include Indemnitee’s consent to be named as a
potential director of the Company in the Company’s Form S-l Registration Statement relating to its
initial public offering.



     (c) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification or advancement of expenses is sought by
Indemnitee.



     (d) “Expenses” shall include all direct and indirect costs including, but not limited to,
reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness
fees, advisory 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 investigating, prosecuting,
defending (or preparing to investigate, prosecute or defend) a Proceeding, or being or preparing to
be a witness in a Proceeding.



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     (e) “Independent Counsel” means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor in the
past five (5) years has been, retained to represent: (i) the Company or Indemnitee in any
matter material to either such party, 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.



     (f) “Proceeding” includes any actual or threatened inquiry, investigation, action, suit,
arbitration, or any other such actual or threatened action or occurrence, whether civil,
criminal, administrative or investigative, whether or not initiated prior to the Effective
Date, except a proceeding initiated by an Indemnitee pursuant to Section  8 of this Agreement
to enforce his or her rights under this Agreement.



     2. Service by Indemnitee. Indemnitee will serve in Indemnitee’s Official Capacity
faithfully and to the best of Indemnitee’s ability so long as Indemnitee has or holds such
Official Capacity. Indemnitee may at any time and for any reason resign from Indemnitee’s
Official Capacity (subject to any other contractual obligation or any obligation imposed by
operation of law).



     3. Indemnification.



     (a) General. Except as otherwise provided in this Agreement, the Company shall
indemnify Indemnitee to the fullest extent permitted by the Delaware General Corporation Law as
such law may from time to time be amended. Indemnitee shall be entitled to the indemnification
provided in this Section if, by reason of his or her Official Capacity, Indemnitee
is a party or is threatened to be made a party to any Proceeding or by reason of anything done
or not done by Indemnitee in his or her Official Capacity. The Company shall indemnify
Indemnitee against all costs, judgments, penalties, fines, liabilities, amounts paid in
settlement by or on behalf of Indemnitee in any Proceeding, and Expenses actually and
reasonably incurred by Indemnitee in connection with such Proceeding, if Indemnitee is
determined to have met the standard of conduct set forth in Section 7(a).



     (b) Exceptions. Indemnitee shall receive no indemnification hereunder:




(i) to the extent such indemnification is expressly prohibited by Delaware
law or the public policies of Delaware, the United States of America or agencies
of any governmental authority in any jurisdiction governing the matter in
question;




(ii) to the extent payment is actually made to Indemnitee for the amount to
which Indemnitee would otherwise have been entitled under this Agreement pursuant
to an insurance policy, or another indemnity agreement or arrangement from the
Company or other person or entity;




(iii) in connection with any Proceeding, or part thereof (including claims
and permissive counterclaims) initiated by Indemnitee, except a judicial
proceeding



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pursuant to Section 8 to enforce rights under this Agreement, unless the
Proceeding (or part thereof) was authorized by the Board of Directors of the
Company;




(iv) with respect to any Proceeding brought by or on behalf of the Company
against Indemnitee if Indemnitee failed to act in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company;




(v) with respect to any claim, issue, or matter as to which Delaware law
expressly prohibits such indemnification by reason of any adjudication of
liability of Indemnitee to the Company, unless and only to the extent that the
Delaware Court of Chancery, or the court in which such action or suit was
brought, shall determine upon application that, despite an adjudication of
liability but in view of all the circumstances of the case, Indemnitee is
entitled to indemnification for such Expenses as such court shall deem proper.



     4. Advancement of Expenses.



     (a) General. Except as otherwise provided in this Agreement, the Company shall
advance Expenses to Indemnitee to the fullest extent permitted by the Delaware General
Corporation Law as such law may from time to time be amended. Indemnitee shall be entitled to
the advancement provided in this Section if, by reason of his or her Official
Capacity, Indemnitee is a party or is threatened to be made a party to any Proceeding or by
reason of anything done or not done by Indemnitee in his or her Official Capacity. The Company
shall advance to Indemnitee Expenses actually and reasonably incurred by Indemnitee in
connection with such Proceeding. Notwithstanding the foregoing, unless otherwise determined
pursuant to Section 5, the Company will not advance or continue to advance Expenses to any
person (except by reason of the fact that such person is or was a director of the Company in
which event this sentence will not apply) in any proceeding if a determination is reasonably
and promptly made (i) by the Board of Directors by a majority vote of Disinterested Directors,
even though less than a quorum (ii) if there are no Disinterested Directors or the
Disinterested Directors so direct, by Independent Counsel in a written opinion or (iii) by a
majority vote of a committee of Disinterested Directors designated by a majority vote of
Disinterested Directors, that the facts known to the decision-making party at the time such
determination is made demonstrate that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the Company, or, with
respect to any criminal proceeding, that such person had reasonable cause to believe his
conduct was unlawful. To the extent it is determined that advancement of Expenses is
appropriate, advancement of expenses shall continue until it is finally determined, after all
appeals by a court of competent jurisdiction, that the Indemnitee is not entitled to be
indemnified against expenses by the corporation as provided herein or otherwise; provided,
however, that in the event of a guilty plea by, or conviction of the Indemnitee, thereafter the
Company may continue, at its election, to advance expenses to Indemnitee upon such terms and
conditions, if any, as the Board of Directors deems appropriate, but shall have no obligation
to do so.



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     (b) Undertaking In Connection With Request For Advancement. As a condition
precedent to the Company’s advancement of Expenses to Indemnitee, Indemnitee shall provide the
Company with (a) a written affirmation by such person of his or her good faith belief that he
or she has met the standard of conduct necessary for indemnification under §145 of
the Delaware General Corporation Laws, and (b) an undertaking, in substantially the form
attached as Exhibit 1, by or on behalf of Indemnitee to reimburse such amount if
it is finally determined, after all appeals by a court of competent jurisdiction that
Indemnitee is not entitled to be indemnified against such Expenses by the Company as provided
by this Agreement or otherwise. Indemnitee’s undertaking to reimburse any such amounts is not
required to be secured.



     (c) Exceptions. The Company shall not be obligated to advance Expenses to
Indemnitee with respect to claims initiated or brought voluntarily by such Indemnitee and not
by way of defense, except (i) as set forth in Section 8(e); (ii) in specific cases if the
Company’s Board of Directors has approved the initiation or bringing of such a claim; or (iii)
as otherwise required under Section 145 of the DGCL.



     5. Indemnification for Expenses of Successful party. Notwithstanding the
limitations of any other provisions of this Agreement, to the extent that Indemnitee is
successful on the merits or otherwise in defense of any Proceeding, or in defense of any claim,
issue or matter therein, including, without limitation, the dismissal of any action without
prejudice, or if it is ultimately determined that Indemnitee is otherwise entitled to be
indemnified against Expenses, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred in connection therewith. If Indemnitee is partially successful on the
merits or otherwise in defense of any Proceeding, such indemnification shall be apportioned
appropriately to reflect the degree of success.



     6. Indemnification for Expenses Incurred in Serving as a Witness. Notwithstanding
any other provisions of this Agreement, Indemnitee shall be entitled to indemnification and
advancement against all Expenses reasonably incurred for serving as a witness by reason of
Indemnitee’s Official Capacity in any Proceeding with respect to which Indemnitee is not a
party.



     7. Determination of Entitlement to Indemnification.



     (a) Standard of Conduct. Except as provided in Section 5 above, Indemnitee shall
be entitled to indemnification pursuant to this Agreement only upon a
determination that Indemnitee acted in good faith and in a manner Indemnitee 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 Indemnitee’s conduct was
unlawful.



     (b) Manner of Determining Eligibility. Upon written request of the Indemnitee for
indemnification, the entitlement of Indemnitee to such requested indemnification shall be
determined by:




(i) the Board of Directors of the Company by a majority vote of
Disinterested Directors (defined above), whether or not such majority constitutes
a quorum; or



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(ii) a committee of Disinterested Directors designated by
majority vote of such Disinterested Directors, whether or not such majority
constitutes a quorum; or




(iii) Independent Counsel (defined above) in a written opinion
to the board of directors, or designated committee of the Board, with a copy to
Indemnitee, which Independent Counsel shall be selected by majority vote of the
Company’s directors at a meeting at which a quorum is present, or a majority
vote of the Disinterested Directors, or Committee of Disinterested Directors; or




(iv) the Company’s stockholders, by a majority vote of those in attendance
at a meeting at which a quorum is present; or




(v) in the event that a Change of Control has occurred, by Independent
Counsel (selected by Indemnitee) in a written opinion to the Board of Directors
of the Company, a copy of which shall be delivered to the Indemnitee.



     (d) Change of Control. The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control which has been approved by a
majority of the Company’s Board of Directors who were directors immediately prior to such
Change in Control) then with respect to all matters thereafter arising concerning the rights of
the Indemnitee to indemnification under this Agreement or any other agreements, Company Bylaw,
provision in the Certificate of Incorporation or any other document now or hereafter in effect
relating to such indemnification, the Company shall seek legal advice only from Independent
Counsel selected by Indemnitee. The Company agrees to pay the reasonable fees of the
Independent Counsel referred to above and to indemnify fully such counsel against any and all
expenses (including attorneys’ fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.



     (e) Payment of Costs of Determining Eligibility. The Company shall pay all costs
associated with its determination of Indemnitee’s eligibility for indemnification.



     (f) Presumptions and Effect of Certain Proceedings. The Secretary of
the Company shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in
writing the Board of Directors or such other person or persons empowered to make the
determination requested in Section 7(b), and the Company shall thereafter promptly make such
determination or initiate the appropriate process for making such determination. 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 Indemnitee 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 Indemnitee’s conduct was unlawful.



     8. Remedies of Indemnitee.



     (a) In the event that (i) a determination is made pursuant to Section 7 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii)



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advancement of Expenses, to the fullest extent permitted by applicable law, is not
timely made pursuant to Section 4 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to Section 7(b) or (c) of this
Agreement within sixty (60) days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 of this
Agreement within fifteen (15) business days after receipt by the Company of written request
therefor, or (v) payment of indemnification pursuant to Section 3 of this Agreement is not made
within fifteen (15) business days after a determination has been made that Indemnitee is
entitled to indemnification, Indemnitee shall be entitled to seek an adjudication by the United
States District Court, District of Minnesota, or the Ramsey County District Court in St. Paul,
Minnesota, of Indemnitee’s right to such indemnification or advancement of Expenses. The
Company shall not oppose Indemnitee’s right to seek any such adjudication.




     (b) In the event that a determination shall have been made pursuant to Section
7 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding
commenced pursuant to this Section 8 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 8, Indemnitee shall be presumed to
be entitled to indemnification under this Agreement and the Company shall have the burden of
proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case
may be, and the Company may not refer to or introduce into evidence any determination pursuant
to Section 7 of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a
judicial proceeding pursuant to this Section 8, Indemnitee shall not be required to reimburse
the Company for any advances pursuant to Section 4 until a final determination is made with
respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have
been exhausted or lapsed).



     (c) Neither the failure of the Company (including by its directors or Independent Counsel)
to have made a determination prior to the commencement of any action pursuant to this Agreement
that indemnification is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company (including by its directors or
Independent Counsel) that Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that Indemnitee has not met
the applicable standard of conduct. If a determination shall have been made pursuant to Section
7 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 8, absent
(i) a misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under
applicable law.



     (d) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 8 that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.



     (e) The Company shall indemnify and hold harmless Indemnitee to the fullest extent
permitted by law against all expenses (including reasonable attorneys’ fees) and, if requested
by




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an Indemnitee who has provided the affirmation and undertaking required by Section
4(b), shall (within ten (10) days after the Company’s receipt of such written request) advance
to Indemnitee, to the fullest extent permitted by applicable law, such expenses (including
reasonable attorneys’ fees) that are incurred by Indemnitee in connection with any judicial
proceeding brought by Indemnitee (i) to enforce Indemnitee’s rights under, or to recover
damages for breach of, this Agreement or any other indemnification agreement or provision of
the Certificate of Incorporation, or the Company’s Bylaws now or hereafter in effect; or (ii)
for recovery or advances under any insurance policy maintained by any person for the benefit of
Indemnitee, to the full extent Indemnitee ultimately is determined to be entitled to such
indemnification, advance or insurance recovery, as the case may be.




     (f) Notwithstanding anything in this Agreement to the contrary, no
determination as to entitlement to indemnification under this Agreement shall be required to be
made prior to the final disposition of the Proceeding.



     9. Continuation of Obligation of Company. All agreements and obligations of the
Company contained in this Agreement shall continue during the period of Indemnitee’s Official
Capacity and shall continue thereafter with respect to any Proceedings based on or arising out
of Indemnitee’s Official Capacity. This Agreement shall be binding upon all successors and
assigns of the Company (including any transferee of all or substantially all of its assets and
any successor by merger or operation of law) and shall inure to the benefit of Indemnitee’s
heirs, personal representatives and estate.



     10. Notification and Defense of Claim. Promptly after receipt by Indemnitee of
notice of any Proceeding, Indemnitee will notify the Company in writing of the commencement
thereof; but the omission so to notify the Company will not relieve it from any liability that
it may have to Indemnitee. Notwithstanding any other provision of this Agreement, with respect
to any such Proceeding of which Indemnitee notifies the Company:



     (a) Except as otherwise provided in Section 10(b), to the extent that it may wish, the
Company may, separately or jointly with any other indemnifying party, assume the defense of the
Proceeding. After notice from the Company to Indemnitee of its election to assume the defense
of the Proceeding, the Company shall not be liable to Indemnitee under this Agreement for any
Expenses subsequently incurred by Indemnitee except as otherwise provided below. Indemnitee
shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and
expenses of such counsel incurred after notice from the Company of its assumption of the
defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel by
Indemnitee has been authorized by the Company, (ii) Indemnitee shall have reasonably determined
that there is a conflict of interest between the Company and Indemnitee in the conduct of the
defense of the Proceeding, and such determination is supported by an opinion of qualified legal
counsel addressed to the Company, or (iii) the Company shall not within sixty (60) calendar
days of receipt of notice from Indemnitee in fact have employed counsel to assume the defense
of the Proceeding.



     (b) The Company shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Company, or as to which Indemnitee shall have made the
determination provided for in subparagraph (a)(ii) above.



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     (c) Regardless of whether the Company has assumed the defense of a Proceeding, the
Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid
in settlement of any Proceeding effected without the Company’s written consent, and the
Company shall not settle any Proceeding in any manner that would impose any penalty or
limitation on, or require any payment from, Indemnitee without Indemnitee’s written consent.
Neither the Company nor Indemnitee will unreasonably withhold its consent to any proposed
settlement.



     (d) Until the Company receives notice of a Proceeding from Indemnitee, the Company shall
have no obligation to indemnify or advance Expenses to Indemnitee as to Expenses incurred
prior to Indemnitee’s notification of Company.



     11. Separability; Prior Indemnification Agreements. If any provision of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever (a)
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 provision held to be invalid, illegal or unenforceable, that are not by themselves
invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and
(b) to the fullest extent possible, the provisions of this Agreement (including, without
limitation, all portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent of the parties that the
Company provide protection to Indemnitee to the fullest enforceable extent provided for in this
Agreement.



     12. Continuation After Cessation of Service. The indemnification provided under
this Agreement shall continue as to Indemnitee for any action such Indemnitee took or did not
take while serving in an Official Capacity even though the Indemnitee may have ceased to serve
in such Official Capacity.



     13. Non-attribution of Actions of Any Indemnitee to Any Other Indemnitee. For
purposes of determining whether Indemnitee is entitled to indemnification or advancement of
Expenses by the Company under this Agreement or otherwise, the actions or inactions of any
other indemnitee or group of indemnitees shall not be attributed to Indemnitee.



     14. Headings; References; Pronouns. The headings of the sections 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. References herein to section numbers are to sections of
this Agreement. All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as appropriate.



     15. Other Provisions.



     (a) This Agreement shall be interpreted and enforced in accordance with the laws of
Delaware.



     (b) 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



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same Agreement. Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced as evidence of the existence of this Agreement.




     (c) This Agreement shall not be deemed an employment contract between the Company and
Indemnitee, and the Company shall not be obligated to continue Indemnitee in Indemnitee’s
Official Capacity by reason of this Agreement.



     (d) Upon a payment to Indemnitee under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of Indemnitee to recover against
any person for such liability, and Indemnitee shall execute all documents and instruments
required and shall take such other actions as may be necessary to secure such rights, including
the execution of such documents as may be necessary for the Company to bring suit to enforce
such rights.



     (e) No supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.



     (f) The Company agrees to stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement and is precluded
from making any assertions to the contrary.



     (g) Indemnitee’s rights under this Agreement shall extend to Indemnitee’s spouse, members
of Indemnitee’s immediate family, and Indemnitee’s representative(s), guardian(s),
conservator(s), estate, executor(s), administrator(s), and trustee(s), (all of whom are
referred to as “Related Parties”), as the case may be, to the extent a Related Party or a
Related Party’s property is subject to a Proceeding by reason of Indemnitee’s Official
Capacity.



     (h) Notwithstanding anything to the contrary set forth in Section 3(b)(ii) above, the
Company hereby acknowledges that Indemnitee may have certain rights to indemnification,
advancement of expenses and/or insurance provided by an investment fund with which Indemnitee
may be affiliated and certain of its affiliates (collectively, the “Fund Indemnitors”). The
Company hereby agrees that (i) it is the indemnitor of first resort (i.e., its obligations to
Indemnitee are primary and any obligation of the Fund Indemnitors to advance expenses or to
provide indemnification for the same expenses or liabilities incurred by Indemnitee are
secondary), (ii) it shall be required to advance the full amount of Expenses incurred by
Indemnitee and shall be liable for the full amount of all Expenses, judgments, penalties, fines
and amounts paid in settlement to the extent legally permitted and as required by the terms of
this Agreement and the Company’s Certificate of Incorporation or Bylaws (or any other agreement
between the Company and Indemnitee), without regard to any rights Indemnitee may have against
the Fund Indemnitors, and (iii) it irrevocably waives, relinquishes and releases
the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution,
subrogation or any other recovery of any kind in respect thereof. The Company further agrees
that no advancement or payment by the Fund Indemnitors on behalf of Indemnitee with respect to
any claim for which Indemnitee has sought indemnification or advancement of Expenses from the
Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution



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and/or be subrogated to the extent of such indemnification, advancement or payment to all
of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree
that the Fund Indemnitors are express third party beneficiaries of this Section 15(h).




[Remainder of page intentionally left blank]








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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the
day and year first above written.






	 	 	 	 	 
	 	Kips Bay Medical, Inc.

 	 
	 	By:  	/s/
Manny Villafaña
 	 
	 	 	Name:  	Manny Villafaña 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	 	 
	 	 	                                     /s/ Robert J. Sheehy
 	 
	 	 	Indemnitee 	 



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EXHIBIT 1




UNDERTAKING TO REPAY INDEMNIFICATION EXPENSES



     I,                                         , agree to reimburse Kips Bay Medical, Inc., a Delaware corporation (the
“Company”), for all expenses paid to me by the Company for my defense in any civil or criminal
action, suit, or Proceeding (as defined in my Indemnification Agreement with the Company), in
the event, and to the extent that it shall ultimately be determined that I am not entitled to
be indemnified by the Company for such expenses.



	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 
	 

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