Exhibit 10.40


 


INDEMNIFICATION
AGREEMENT


 


This Indemnification
Agreement (“Agreement”), dated as of
              
    , 2010 is made by and between Tornier N.V., a public
company with limited liability, organized and existing under the laws of the Netherlands
(the “Company”) and
                        
(“Indemnitee”).


 


RECITALS


 


A.           The Company recognizes that competent and experienced
persons are increasingly reluctant to serve or to continue to serve as
directors and officers of corporations unless they are protected by
comprehensive liability insurance or indemnification, or both, due to increased
exposure to litigation costs and risks resulting from their service to such
corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors.


 


B.            The Company’s amended and restated articles of
association (the “Articles of Association”)
require the Company to indemnify its directors and officers against any and all
liabilities and expenses, provided they acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Company.  The Articles of Association
expressly provide that the indemnification provisions set forth therein are not
exclusive, and contemplate that contracts may be entered into between the
Company and its directors and officers with respect to indemnification.


 


C.            The Company’s board of directors (the “Board of Directors”) has determined that contractual
indemnification as set forth herein is not only reasonable and prudent but also
promotes the best interests of the Company and its shareholders.


 


D.            In connection with Indemnitee’s continued service on the
Board of Directors, the Company and Indemnitee agree that the Company will
furnish Indemnitee the indemnity provided for herein.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth below, and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:


 


Section 1.               Certain
Definitions. For purposes of this Agreement, the following definitions
shall apply:


 


(a)           The term “action, suit or proceeding” shall be broadly construed and
shall include, without limitation, the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of testimony in,
any threatened, pending or completed claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative, including any inquiry,
investigation, or examination, whether made, instituted, or conducted by 


 

















 


the Company or any other person, including without
limitation any federal, state or other governmental entity, that Indemnitee determines
might lead to the institution of any such action, suit or proceeding.  For the avoidance of doubt, the Company
intends indemnity to be provided hereunder in respect of acts or failure to act
prior to, on, or after the date hereof.


 


(b)           The term “by reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Company, or while serving as a director or officer of
the Company, is or was serving or has agreed to serve at the request of the
Company as a director, officer, employee or agent of or in any other capacity
with another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise” shall be broadly construed and shall
include, without limitation, any actual or alleged act or omission to act.


 


(c)           The term “expenses” shall be broadly and reasonably construed and shall
include, without limitation, all direct and indirect costs of any type or
nature whatsoever actually and reasonably incurred by Indemnitee in connection
with either the investigation, defense or appeal of a proceeding (including
serving as a witness in or participating in (including on appeal), or preparing
to investigate, defend, be a witness in or participate in (including on
appeal), a proceeding, or establishing or enforcing a right to indemnification
under this Agreement, applicable law or otherwise).  For the avoidance of doubt, the term “expenses”
shall include, without limitation, all reasonable attorneys’ fees and related
disbursements and costs of attachment or similar bonds, appeal bonds, and other
out-of-pocket costs.


 


(d)           The term “judgments, fines and amounts paid in settlement” shall be
broadly construed and shall include, without limitation, all direct and
indirect payments of any type or nature whatsoever (including, without
limitation, all penalties and amounts required to be forfeited or reimbursed to
the Company), as well as any penalties or excise taxes assessed on a person
with respect to an employee benefit plan.


 


(e)           The term “Company” shall include, without limitation and in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of or in any other
capacity with another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.


 


(f)            The term “other enterprises” shall include, without limitation, employee
benefit plans and administrative committees thereof.


 


(g)           The term “serving at the request of the Company” shall include, without
limitation, any service as a director, officer, employee or agent of the
Company which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries.


 


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(h)           A person who acted in good faith and
in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner “not opposed to the
best interests of the Company” as referred to in this Agreement.


 


Section 2.               Generally.


 


To the fullest extent
permitted by law:


 


(a)           The Company shall indemnify
Indemnitee if Indemnitee was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
Indemnitee is or was or has agreed to serve at the request of the Company as a
director, officer, employee or agent of the Company or, while serving as a
director or officer of the Company, is or was serving or has agreed to serve at
the request of the Company as a director, officer, trustee, employee or agent
of or in any other capacity with any of the Company’s subsidiaries or with
another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity.  For the
avoidance of doubt, the foregoing indemnification obligation includes, without
limitation, (i) claims related to any subsequent lawsuits, United States
Securities and Exchange Commission (“SEC”)
examinations or investigations or tax examinations, (ii) claims for
monetary damages against Indemnitee in respect of an alleged breach of
fiduciary duties, to the fullest extent permitted under applicable law as in
existence on the date hereof, and (iii) expenses (including attorneys’
fees) incurred by Indemnitee in connection with a shareholder derivative action
on behalf of the Company or any similar action or proceeding.


 


(b)           The indemnification provided by this Section 2
shall be from and against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with such action, suit or
proceeding and any appeal therefrom, but shall only be provided if 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, suit or proceeding, had no reasonable cause to believe
Indemnitee’s conduct was unlawful.


 


(c)           Notwithstanding the foregoing
provisions of this Section 2, in the case of any threatened, pending or
completed action or suit by or in the right of the Company to procure a
judgment in its favor by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or while serving as a
director or officer of the Company, is or was serving or has agreed to serve at
the request of the Company as a director, officer, trustee, employee or agent
of or in any other capacity with another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, no indemnification
shall be made in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Company unless, and only to the
extent that, a court of competent jurisdiction shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.


 


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(d)           The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent shall not, of itself, 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, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that Indemnitee’s conduct was unlawful.


 


Section 3.               Successful
Defense; Partial Indemnification. To the extent that Indemnitee has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 2 hereof or in defense of any claim,
issue or matter therein, Indemnitee shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred in connection
therewith. For purposes of  this Agreement
and without limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an
adjudication that Indemnitee was liable to the Company, (iii) a plea of
guilty or nolo contendere by Indemnitee, (iv) an adjudication that
Indemnitee did not act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, or (v) with
respect to any criminal proceeding, an adjudication that Indemnitee had
reasonable cause to believe Indemnitee’s conduct was unlawful, Indemnitee
shall be considered for the purposes hereof to have been wholly successful with
respect thereto.


 


If Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company for
some or a portion of the expenses (including attorneys’ fees), judgments, fines
or amounts paid in settlement actually and reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection with any action, suit, proceeding or
investigation, or in defense of any claim, issue or matter therein, and any
appeal therefrom but not, however, for the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such expenses
(including attorneys’ fees), judgments, fines or amounts paid in settlement to
which Indemnitee is entitled.


 


Section 4.               Determination
That Indemnification Is Proper. Any indemnification hereunder shall (unless
otherwise ordered by a court) be made by the Company unless a determination is
made that indemnification of such person is not proper in the circumstances
because he or she has not met the applicable standard of conduct set forth in Section 2(b) hereof.  Any such determination shall be made by one
of the following methods, at the election of Indemnitee: (i) by a majority
vote of the directors who are not parties to the action, suit or proceeding in
question (“Disinterested Directors”), even if
less than a quorum, (ii) by a majority vote of a committee of
Disinterested Directors designated by majority vote of Disinterested Directors,
even if less than a quorum, (iii) by a majority vote of a quorum of the
outstanding shares of all classes entitled to vote on the matter, voting as a
single class, which quorum shall consist of shareholders who are not at that
time parties to the action, suit or proceeding in question, (iv) by
independent legal counsel mutually agreed upon by the Company and Indemnitee in
a written opinion addressed to the Board of Directors, a copy of which shall be
delivered to Indemnitee, or (v) by a court of competent jurisdiction.  Indemnitee shall cooperate with reasonable
requests of the persons making such standard of conduct determination,
including providing to such persons documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and 


 


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reasonably
necessary to such determination without incurring any unreimbursed cost in
connection therewith.  The Company shall
indemnify and hold harmless Indemnitee against and, if requested by Indemnitee,
shall reimburse Indemnitee for, or advance to Indemnitee, within five business
days of such request accompanied by supporting documentation for specific costs
and expenses to be reimbursed or advanced, any and all costs and expenses
(including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in
connection with making this standard of conduct determination.


 


Section 5.               Advance
Payment of Expenses; Notification and Defense of Claim.


 


(a)           Expenses (including attorneys’ fees)
incurred by Indemnitee in connection with a threatened or pending civil, criminal,
administrative or investigative action, suit or proceeding, or in connection
with an enforcement action pursuant to Section 6(b), shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
within five business days after receipt by the Company of (i) a statement
or statements from Indemnitee requesting such advance or advances from time to
time, and (ii) an undertaking by or on behalf of Indemnitee to repay such
amount or amounts, only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the Company as
authorized by this Agreement or otherwise. 
Such undertaking shall be accepted without reference to the financial
ability of Indemnitee to make such repayment. 
Advances shall be unsecured and interest-free.  Without limiting the generality or effect of
the foregoing, the Company shall indemnify and hold harmless Indemnitee against
and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to
Indemnitee, within five business days of such request accompanied by supporting
documentation for specific expenses to be reimbursed or advanced, any and all
expenses paid or incurred by Indemnitee or which Indemnitee determines in good
faith are reasonably likely to be paid or incurred by Indemnitee in connection
with any claim made, instituted or conducted by Indemnitee for (x) indemnification
or reimbursement or advance payment of expenses by the Company under any
provision of this Agreement or the Articles of Association, and (y) recovery
under any directors’ and officers’ liability insurance policies maintained by
the Company, regardless in each case of whether Indemnitee ultimately is
determined to be entitled to such indemnification, reimbursement, advance or
insurance recovery, as the case may be; provided, however, that Indemnitee
shall return, without interest, any such advance of expenses (or portion
thereof) which remains unspent at the final disposition of the claim to which
the advance related.


 


(b)           Promptly, and in any event within
twenty business days, after receipt by Indemnitee of notice of the commencement
of any action, suit or proceeding, Indemnitee shall, if a claim thereof is
to be made against the Company hereunder, notify the Company of the
commencement thereof.  The failure to
notify the Company promptly and in any event within twenty business days of the
commencement of the action, suit or proceeding, or Indemnitee’s request for
indemnification, will not relieve the Company from any liability that it may
have to Indemnitee hereunder, except to the extent the Company is prejudiced in
its defense of such action, suit or proceeding as a result of such failure.


 


(c)           In the event the Company shall be
obligated to pay the expenses of Indemnitee with respect to an action, suit or
proceeding, as provided in this Agreement, the Company, if appropriate, shall
be entitled to assume the defense of such action, suit or 


 


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proceeding, with counsel reasonably acceptable to
Indemnitee, upon the delivery to Indemnitee of written notice of its election
to do so within twenty business days after the Company’s receipt of the notice
of the commencement of an action, suit or proceeding provided by Indemnitee to
the Company pursuant to Section 5(b) above.  After delivery of such notice, approval of
such counsel by Indemnitee (which approval will not be unreasonably withheld)
and the retention of such counsel by the Company, the Company will not be
liable to Indemnitee under this Agreement for any fees of counsel subsequently
incurred by Indemnitee with respect to the same action, suit or proceeding,
provided that (1) Indemnitee shall have the right to employ Indemnitee’s
own counsel in such action, suit or proceeding at Indemnitee’s expense and (2) if
(i) the employment of counsel by Indemnitee has been previously authorized
in writing by the Company, (ii) counsel to the Company or Indemnitee shall
have reasonably concluded that there may be a conflict of interest or position,
or reasonably believes that a conflict is likely to arise, on any significant
issue between the Company and Indemnitee in the conduct of any such defense or (iii) the
Company shall not, in fact, have employed counsel to assume the defense of such
action, suit or proceeding (or fails to diligently conduct such defense), then
the fees and expenses of Indemnitee’s counsel shall be at the expense of the
Company.  The Company shall not be
entitled, without the consent of Indemnitee, to assume the defense of any claim
brought by or in the right of the Company or as to which counsel for the
Company or Indemnitee shall have reasonably made the conclusion or formed the
belief provided for in clause (ii) above. 
In the event the Company assumes the defense of an action, suit or
proceeding pursuant to this Section 5(c), the Company shall keep the
Indemnitee reasonably informed of such defense and shall, as promptly as
practical, respond to any reasonable requests for information made by
Indemnitee.


 


(d)           Notwithstanding any other provision
of this Agreement to the contrary, to the extent that Indemnitee is, by reason
of Indemnitee’s current, future or former corporate status with respect to the
Company or any corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which Indemnitee is or was serving or has agreed to or
may otherwise in the future serve at the request of the Company, a witness or
otherwise participates in any action, suit or proceeding at a time when Indemnitee
is not a party in the action, suit or proceeding, the Company shall indemnify
Indemnitee against all expenses (including attorneys’ fees) actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith.


 


Section 6.               Procedure
for Indemnification


 


(a)           To obtain indemnification, Indemnitee
shall promptly submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors in
writing that Indemnitee has requested indemnification.


 


(b)           The Company’s determination whether
to grant Indemnitee’s indemnification request shall be made promptly, and in
any event within 10 business days following receipt of a request for
indemnification pursuant to Section 6(a). The right to indemnification as
granted by Section 2 of this Agreement shall be enforceable by Indemnitee
in any court of competent jurisdiction if the Company denies such request, in
whole or in part, or 


 


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fails to respond within such 10-business day
period.  It shall only be a defense to
any such action (other than an action brought to enforce a claim for the
advance of costs, charges and expenses under Section 5 hereof where the
required undertaking, if any, has been received by the Company) that Indemnitee
has not met the standard of conduct set forth in Section 2 hereof, but the
burden of proving such defense by clear and convincing evidence shall be on the
Company. Neither the failure of the Company (including its Board of Directors
or one of its committees, its independent legal counsel, or its shareholders)
to have made a determination prior to the commencement of such action that
indemnification of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct set forth in Section 2 hereof,
nor the fact that there has been an actual determination by the Company
(including its Board of Directors or one of its committees, its independent
legal counsel, or its shareholders) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that Indemnitee has or has not met the applicable standard of conduct.  The Indemnitee’s expenses (including
attorneys’ fees) incurred in connection with successfully establishing
Indemnitee’s right to indemnification, in whole or in part, in any such
proceeding or otherwise shall also be indemnified by the Company.


 


(c)           The Indemnitee shall be presumed to
be entitled to indemnification under this Agreement upon submission of a
request for indemnification pursuant to this Section 6, and the Company
shall have the burden of proof in overcoming that presumption in reaching a
determination contrary to that presumption. 
Such presumption shall be used as a basis for a determination of
entitlement to indemnification unless the Company overcomes such presumption by
clear and convincing evidence.


 


Section 7.               Insurance
and Subrogation.


 


(a)           For the duration of Indemnitee’s
service as a director, officer, employee, or agent of the Company and for not
less than six years thereafter or, if later, for so long as Indemnitee is
subject to any possible action, suit or proceeding described in Section 2(a) above,
the Company shall provide directors’ and officers’ liability insurance coverage
for Indemnitee that is at least as favorable in scope and amount as that
provided as of such time for the Company’s directors and other executive
officers.  Upon request, the Company
shall provide Indemnitee or his counsel with a copy of all directors’ and
officers’ liability insurance applications, binders, policies, declarations,
endorsements and other related materials. 
In all policies of directors’ and officers’ liability insurance obtained
by the Company, Indemnitee shall 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 and officers most
favorably insured by such policy.


 


(b)           In the event of any payment by the Company
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee with respect to any
insurance policy, who shall execute all papers required and take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights in
accordance with the terms of such insurance policy. The Company shall pay or
reimburse all expenses actually and reasonably incurred by Indemnitee in
connection with such subrogation.


 


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(c)           The Company shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable hereunder
(including, but not limited to, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement) if and to the extent that Indemnitee
has otherwise actually received such payment under this Agreement or any
insurance policy, contract, agreement or otherwise.


 


Section 8.               Limitation
on Indemnification.  Notwithstanding
any other provision herein to the contrary, the Company shall not be obligated
pursuant to this Agreement:


 


(a)           Claims Initiated by Indemnitee.
To indemnify or advance expenses to Indemnitee with respect to an action, suit
or proceeding (or part thereof) initiated by Indemnitee unless such action,
suit or proceeding (or part thereof) was authorized or consented to by the
Board of Directors of the Company.


 


(b)           Action for Indemnification. To
indemnify Indemnitee for any expenses incurred by Indemnitee with respect to
any action, suit or proceeding instituted by Indemnitee to enforce or interpret
this Agreement, unless Indemnitee is successful in establishing Indemnitee’s
right to indemnification in such action, suit or proceeding, in whole or in
part, or unless and to the extent that the court in such action, suit or
proceeding shall determine that, despite Indemnitee’s failure to establish the
right to indemnification, Indemnitee is entitled to indemnity for such
expenses; provided, however, that nothing in this Section 8(b) is
intended to limit the Company’s obligation with respect to the advancement of
expenses to Indemnitee in connection with any such action, suit or proceeding
instituted by Indemnitee to enforce or interpret this Agreement, as provided in
Section 5 and Section 12 hereof.


 


Section 9.               Certain
Settlement Provisions.  The Company
shall have no obligation to indemnify Indemnitee under this Agreement for
amounts paid in settlement of any action, suit or proceeding without the
Company’s prior written consent, which shall not be unreasonably withheld.  The Company shall not settle any action, suit
or proceeding in any manner that would impose any fine or other obligation on
Indemnitee without Indemnitee’s prior written consent, which shall not be
unreasonably withheld.


 


Section 10.             Savings
Clause. If any provision or provisions of this Agreement shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee as to costs, charges and
expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Company, to the fullest extent permitted by any applicable portion
of this Agreement that shall not have been invalidated and to the fullest
extent permitted by applicable law.


 


Section 11.             Contribution.  In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for herein
is held by a court of competent jurisdiction to be unavailable to Indemnitee in
whole or in part, it is agreed that, in such event, the Company shall, to the
fullest extent permitted by law, contribute to the payment of Indemnitee’s
costs, charges and expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, in an amount that is
just and equitable in the circumstances, 


 


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taking
into account, among other things, contributions by other directors and officers
of the Company or others pursuant to indemnification agreements or otherwise;
provided, that, without limiting the generality of the foregoing, such
contribution shall not be required where such holding by the court is due to (i) the
failure of Indemnitee to meet the standard of conduct set forth in Section 2
hereof, or (ii) any limitation on indemnification set forth in Section 7(c),
8 or 9 hereof.


 


Section 12.             Reimbursement
of Legal Fees and Expenses.  It is
the intent of the Company that Indemnitee not be required to incur legal fees
and or other expenses associated with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement by litigation or otherwise
because the cost and expense thereof would substantially detract from the
benefits intended to be extended to Indemnitee hereunder.  Accordingly, without limiting the generality
or effect of any other provision hereof, if it should reasonably appear to
Indemnitee that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes
or threatens to take any action to declare this Agreement void or
unenforceable, or institutes any litigation or other action or proceeding
designed to improperly deny, or to improperly recover from, Indemnitee the
benefits provided or intended to be provided to Indemnitee hereunder, the
Company irrevocably authorizes the Indemnitee from time to time to retain
counsel of Indemnitee’s choice, at the expense of the Company, to advise and
represent Indemnitee in connection with any such interpretation, enforcement or
defense, including without limitation the initiation or defense of any
litigation or other legal action, whether by or against the Company or any
director, officer, employee, shareholder or other person affiliated with the
Company, in any jurisdiction.  Without
limiting the generality or effect of any other provision hereof or respect to
whether Indemnitee prevails, in whole or in part, in connection with any of the
foregoing, the Company will pay and be solely financially responsible for any
and all attorneys’ and related fees and expenses actually and reasonably
incurred by Indemnitee in connection with any of the foregoing.


 


Section 13.             Form and
Delivery of Communications.  Any notice,
request or other communication required or permitted to be given to the parties
under this Agreement shall be in writing and either delivered in person or sent
by telecopy, overnight mail or courier service, or certified or registered
mail, return receipt requested, postage prepaid, to the parties at the
following addresses (or at such other addresses for a party as shall be
specified by like notice):


 


If to the Company:


 


Fred. Roeskestraat 123


1076 EE
Amsterdam


The
Netherlands


Attn:
Corporate Secretary


Facsimile:
+31 (0)20 577 1188


 


If to Indemnitee, to the
address set forth below Indemnitee’s name on the signature page hereto or
to such other address provided in writing from time to time by Indemnitee.


 


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Section 14.             Scope.  The Company hereby agrees to indemnify
Indemnitee to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by statute.  In the event of any change after the date
hereof of any applicable law that expands further the indemnification permitted
to directors or officers, then the Company shall indemnify Indemnitee to the
fullest extent permitted by such law, as so amended.


 


Section 15.             Nonexclusivity.  The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of any other rights which Indemnitee may have under any provision of
law, the Articles of Association, in any court in which a proceeding is
brought, the vote of the Company’s shareholders or Disinterested Directors,
other agreements or otherwise, and Indemnitee’s rights hereunder shall continue
after Indemnitee has ceased acting as an agent of the Company and shall inure
to the benefit of the heirs, executors and administrators of Indemnitee.  However, no amendment or alteration of the
Articles of Association or any other agreement shall adversely affect the
rights provided to Indemnitee under this Agreement.


 


Section 16.             Enforcement.  The Company shall be precluded from asserting
in any judicial proceeding that the procedures and presumptions of this
Agreement are not valid, binding and enforceable. The Company agrees that its
execution of this Agreement shall constitute a stipulation by which it shall be
irrevocably bound in any court of competent jurisdiction in which a proceeding
by Indemnitee for enforcement of his rights hereunder shall have been
commenced, continued or appealed, that its obligations set forth in this
Agreement are unique and special, and that failure of the Company to comply
with the provisions of this Agreement will cause irreparable and irremediable
injury to Indemnitee, for which a remedy at law will be inadequate. As a
result, in addition to any other right or remedy Indemnitee may have at law or
in equity with respect to breach of this Agreement, Indemnitee shall be
entitled to injunctive or mandatory relief directing specific performance by
the Company of its obligations under this Agreement.


 


Section 17.             Interpretation
of Agreement.  It is understood that
the parties hereto intend this Agreement to be interpreted and enforced so as
to provide indemnification to Indemnitee to the fullest extent now or hereafter
permitted by law.


 


Section 18.             Entire
Agreement.  This Agreement and the
documents expressly referred to herein constitute the entire agreement between
the parties hereto with respect to the matters covered hereby, and any other
prior or contemporaneous oral or written understandings or agreements with
respect to the matters covered hereby are expressly superseded by this
Agreement.


 


Section 19.             Modification
and Waiver.  No supplement,
modification, waiver or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto.  No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.


 


Section 20.             Successor
and Assigns.  All of the terms and
provisions of this Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto 


 


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and
their respective successors, assigns, heirs, executors, administrators and
legal representatives. The Company shall require and cause any direct or
indirect successor (whether by purchase, merger, consolidation or otherwise to
all or substantially all of the business or assets of the Company), by written
agreement in form and substance reasonably satisfactory to Indemnitee,
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.


 


Section 21.             Service
of Process and Venue.  Each of the
parties hereto (i) consents to submit itself to the personal jurisdiction
of the Court of Chancery of the State of Delaware or any court of the United
States located in the State of Delaware in the event any dispute arises out of
this Agreement, (ii) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such
court, (iii) agrees that it will not bring any action relating to this
Agreement in any court other than the Court of Chancery of the State of
Delaware or if, under applicable law exclusive jurisdiction over such matter is
vested in the United States federal courts, any court of the United States
located in the State of Delaware and (iv) consents to service being made
through the notice procedures set forth in Section 13 hereof.  Each of the parties hereto hereby agrees that
service of any process, summons, notice or document by U.S. registered mail to
the respective addresses set forth in Section 13 hereof shall be effective
service of process for any suit or proceeding in connection with this
Agreement.


 


Section 22.             Supersedes
Prior Agreement.  This Agreement
supersedes any prior indemnification agreement between Indemnitee and the
Company or its predecessors.


 


Section 23.             Governing
Law.  This Agreement shall be
governed exclusively by and construed according to the law of the State of
Delaware (USA).  If a court of competent
jurisdiction shall make a final determination that the provisions of the law of
any other jurisdiction govern indemnification by the Company of its officers
and directors, then the indemnification provided under this Agreement shall in
all instances be enforceable to the fullest extent permitted under such law,
notwithstanding any provision of this Agreement to the contrary.


 


Section 24.             Employment
Rights. Nothing in this Agreement is intended to create in Indemnitee any
right to employment or continued employment.


 


Section 25.             Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed to be an original and all of which together shall be deemed to be one
and the same instrument, notwithstanding that both parties are not signatories
to the original or same counterpart.


 


Section 26.             Headings.
The section and subsection headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.


 


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IN WITNESS WHEREOF, this
Agreement has been duly executed and delivered to be effective as of the date
first above written.


 


	
   

  	
  TORNIER N.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Facsimile:

  



 


Indemnification
Agreement