Exhibit 10.11
CYNOSURE, INC.
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[______], 2005
El.En. S.p.A.
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▇▇▇▇▇▇▇ - ▇▇▇▇▇
Re: Reimbursement Agreement
Ladies and Gentlemen:
Reference is made to that certain Underwriting Agreement (the "Underwriting
Agreement"), dated the date hereof, among Cynosure, Inc., a Delaware corporation
(the "Company"), El.En. S.p.A., an Italian corporation ("El.En."), and each of
Citigroup Global Markets Inc., UBS Securities LLC, ▇▇▇▇▇▇▇▇▇ & Company, Inc. and
▇▇▇▇▇▇▇ & Company, LLC as representatives of a group of Underwriters named
therein (the "Underwriters"), relating to an underwritten public offering of
Class A Common Stock, $0.001 par value per share, of the Company. Capitalized
terms used but not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Underwriting Agreement.
This letter serves to confirm the agreement between the Company and El.En.
that:
(a) in the event that either the Company or El.En. receives notice pursuant
to Section 8(c) of the Underwriting Agreement of a claim for indemnification,
such party will promptly notify the other party of such claim;
(b) in all actions for which indemnification is sought pursuant to Section
8(a) of the Underwriting Agreement, the Company shall be entitled to exercise
all rights as the "indemnifying party" under and pursuant to Section 8(d) of the
Underwriting Agreement with respect thereto, including, without limitation,
assuming the defense of any such action, provided, however, that if El.En.
reasonably believes in good faith that the Company's assumption of the defense
of any such action would materially compromise its rights, remedies or defenses,
El. En. shall be entitled to retain its own counsel to participate in (but not
control) such defense, and the Company shall bear all reasonable fees and costs
incurred by El. En. in connection with such separate representation and shall
promptly reimburse El. En. for such fees and costs from time to time upon
presentation of El. En.'s written demand and, provided further, that El.En. will
not, without the prior written consent of the Company, which consent shall not
be unreasonably withheld, settle or compromise or consent to the entry of
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution is sought under
the Underwriting Agreement; and
(c) subject to El.En.'s compliance with paragraphs (a) and (b) above, in
the event and to the extent (i) El.En. or any of its officers, directors,
employees or agents (each an "El.En. Indemnified Party") is required to make any
indemnity payments to the Underwriters pursuant to
El.En. S.p.A.
[______], 2005
Page 2 of 3
Section 8 of the Underwriting Agreement, and (ii) such indemnity payments relate
to matters as to which El.En., at the date hereof, had no knowledge after
reasonable inquiry, the Company will promptly reimburse such El.En. Indemnified
Party for such indemnity payments actually paid to the Underwriters. For
purposes hereof, "knowledge" shall mean the conscious awareness of any director
or officer of El.En., and "reasonable inquiry" shall mean inquiry by executives
of El. En. of the Company's Chief Executive Officer, Chief Financial Officer,
Executive Vice President, Sales and Chief Operating Officer as to the
truthfulness of any statement of a material fact contained in the Registration
Statement or in any amendment thereof, or in any Preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or as to the
inclusion of all material facts required to be stated therein or necessary to
make the statements therein not misleading.
The Company and El.En. agree, understand and acknowledge that this letter
agreement is solely between the Company and El.En. and does not affect the
respective or collective obligations of the Company and El.En. to the
Underwriters pursuant to the Underwriting Agreement or limit the rights of the
Underwriters thereunder. Any failure by either party hereto at any time or from
time to time to enforce and require the strict keeping and performance of any of
the terms and conditions of this letter agreement shall not constitute a waiver
of any such terms and conditions at any future time and shall not permit such
party from insisting on the strict keeping and performance of such terms and
conditions at any later time.
This letter agreement will be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed within the State of New York. Any controversy or claim arising out of
or relating to this Agreement, or the breach, interpretation or enforcement
thereof, shall be settled by binding arbitration administered by the
International Center for Dispute Resolution ("ICDR") under its International
Arbitration Rules (the "Rules") and the Expedited Procedures. The case shall be
submitted to three (3) arbitrators selected in accordance with the Rules. The
place of the arbitration shall be New York, New York. The language of the
arbitration shall be English. Interim or provisional relief, including but not
limited to preliminary injunctions and attachments, may be granted in aid of
arbitration by any court having jurisdiction thereof. The parties waive any
right to review of the merits of the arbitrators' award.
This letter agreement (i) may be signed in one or more counterparts, each
of which shall constitute an original and all of which together shall constitute
one and the same agreement and (ii) may be executed by facsimile signatures.
Very truly yours,
CYNOSURE, INC.
By:
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Name:
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Title:
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El.En. S.p.A.
[______], 2005
Page 3 of 3
Accepted and agreed:
EL.EN. S.P.A.
By:
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Name:
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Title:
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