exv10w23









Exhibit 10.23




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 as of the 7th day
of June, 2010 between Kips Bay Medical, Inc., a Delaware corporation (the “Company”), and Manny
Villafaña (“Indemnitee”).



RECITALS




          WHEREAS, 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 continued 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.



     (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) “Effective Date” means the date first above written.



     (e) “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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     (f) “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.



     (g) “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 and/or continue to 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;



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

	 	 	 	 	 	 
	 	 	Name: Michael P. Winegar	 	 
	 	 	Title: Chief Operating Officer	 	 
	 
	 	 	 	 	 	 
	 	 	    /s/
Manny  Villafaña	 	 
	 	 	 	 	 
	 	 	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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