Exhibit 10.11
CYNOSURE, INC.
0 XXXXXXXX XXXX
XXXXXXXX, XXXXXXXXXXXXX 00000
[______], 2005
BRCT, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
El.En. S.p.A.
Xxx Xxxxxxxxxx, 00
00000 Xxxxxxxxx
Xxxxxxx - Xxxxx
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"), BRCT, Inc., a Connecticut corporation
("BRCT"), El.En. S.p.A., an Italian corporation ("El.En."), and each of
Citigroup Global Markets Inc., UBS Securities LLC, Xxxxxxxxx & Company, Inc. and
Xxxxxxx & 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, BRCT and
El.En. that:
(a) in the event that any of the Company, BRCT or El.En. receives
notice pursuant to Section 8(c) of the Underwriting Agreement of a claim for
indemnification, such party will promptly notify each other party hereto 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
BRCT and El.En. reasonably believe in good faith that the Company's assumption
of the defense of any such action would materially compromise their rights,
remedies or defenses, BRCT and El.En. shall be entitled to retain their own
counsel to participate in (but not control) such defense, and the Company shall
bear all reasonable fees and costs incurred by BRCT and El.En. in connection
with such separate representation and shall promptly reimburse BRCT and El.En.
for such fees and costs from time to time upon presentation of BRCT's and
El.En.'s written demand and, provided further, that (i) that in no event shall
the Company be required to pay the expenses of more than one law firm as counsel
for BRCT and El.En. and (ii) neither BRCT nor El.En. will, without the prior
written consent of the Company, which consent
BRCT, Inc.
El.En. S.p.A.
[______], 2005
Page 2 of 4
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 the compliance of each of BRCT and El.En. with
paragraphs (a) and (b) above, in the event and to the extent (i) BRCT or El.En.
or any of their respective officers, directors, employees or agents (each an
"El.En. Group Indemnified Party") is required to make any indemnity payments to
the Underwriters pursuant to Section 8 of the Underwriting Agreement, and (ii)
such indemnity payments relate to matters as to which BRCT or El.En., at the
date hereof, had no knowledge after reasonable inquiry, the Company will
promptly reimburse such El.En. Group 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 BRCT or El.En.,
as the case may be, and "reasonable inquiry" shall mean inquiry by executives of
BRCT and 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, BRCT and El.En. agree, understand and acknowledge that this
letter agreement is solely among the Company, BRCT and El.En. and does not
affect the respective or collective obligations of the Company, BRCT and El.En.
to the Underwriters pursuant to the Underwriting Agreement or limit the rights
of the Underwriters thereunder. Any failure by any 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.
BRCT, Inc.
El.En. S.p.A.
[______], 2005
Page 3 of 4
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:
-------------------------------
Name:
Title:
BRCT, Inc.
El.En. S.p.A.
[______], 2005
Page 4 of 4
Accepted and agreed:
BRCT, INC.
By:
-------------------------------
Name:
Title:
EL.EN. S.P.A.
By:
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Name:
Title:
