Exhibit (a)(32)
July 24, 1997
Xx. Xxxxxxx X. Xxxxx
College of Law
0000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Dear Xx. Xxxxx:
This letter will serve to confirm our agreement
regarding Circon Corporation ("Circon").
1. You will serve as a member of a slate of
directors ("Nominee") to be proposed by United States
Surgical Corporation ("USSC") for election to the Board
of Directors of Circon at Circon's 1997 Annual Meeting of
Shareholders, or other meeting of shareholders held in
lieu thereof.
2. As consideration for your agreeing to serve
as a Nominee, USSC is transferring to you, free and clear
of all liens and claims, shares of Circon common stock
(the "Stock") with a Market Value (defined below) of
$100,000. "Market Value" shall be determined by
calculating the average closing price of Circon common
stock over the 5 trading days ending on the date of this
letter agreement. Unlegended certificates representing
the Stock will be delivered to you promptly following
your execution and return of this letter. The Circon
Stock shall be unrestricted and freely tradeable.
3. XXXX also agrees to indemnify and hold you
harmless from and against any and all losses, claims,
damages, liabilities and expenses (collectively,
"Losses") relating to or arising out of or based upon
your being a Nominee or a "participant in a solicitation"
(as defined in the Rules and Regulations under the
Securities Exchange Act of 1934, as amended); provided
however, that USSC will not be responsible for
indemnifying you (i) for any Losses that are determined
by final judgment of a court of competent jurisdiction to
result from your bad faith or willful misconduct or which
results due to any inaccuracy in the information provided
by you to USSC, or (ii) for the payment in settlement of
any claim made without the written consent of the
undersigned (which consent shall not be unreasonably
withheld); provided that USSC shall have the right to
control the defense of any claim using counsel of its
choice and, provided further, that you shall have the
right to participate in the defense of any such claim
with counsel of your choice.
USSC agrees to advance on a current basis your
expenses (including counsel fees) to the fullest extent
permitted by Section 145(e) of the Delaware General
Corporation Law, as amended from time to time, upon
receipt from you of the statutory undertaking, which need
not be secured or guaranteed. The agreements contained
in this paragraph 3 shall terminate and have no effect
with respect to your acts or omissions occurring after
your election as a director of Xxxxxx, but will survive
with respect to claims, whenever asserted, based on
circumstances occurring before said election.
4. USSC will reimburse you promptly upon
request for all expenses incurred by you in connection
with this agreement, including travel expenses and
counsel fees (including fees in connection with advice,
negotiations, or enforcement with respect to the terms of
this agreement and any indemnification and directors'
liability insurance of Circon), but not including any
expenses (except as expressly provided in paragraph 3 and
this paragraph 4) incurred by you after your election as
a director of Circon.
5. If you are elected to the Circon board of
directors and you are not provided by Circon within 10
days with indemnification on substantially the same terms
as are reflected in the form of indemnification agreement
included as Exhibit 4 to Circon's Schedule 14-9 dated
August 14, 1996 (the "Indemnification Agreement"), USSC
will, at your request, enter into an agreement with you
in substantially the form of the Indemnification
Agreement contained substantially the terms contained in
the Indemnification Agreement.
In agreeing to indemnify you as described
above, USSC expressly acknowledges that, as a director of
Circon and as a nominee for election to the Circon Board
of Directors, you will exercise your independent judgment
and act in accordance with your fiduciary duties as a
director of Circon, and will not be required to reflect
the views of USSC. Following your election to the Circon
Board, you will have no obligation of any kind to USSC,
except in your capacity as a shareholder of Circon, and
only to the extent of duties owed to all Circon
shareholders, generally.
6. This agreement and the terms hereof are
subject, and shall be governed by and construed in
accordance with, the laws of the State of Delaware.
If you understand and agree to the terms of
this letter, please sign and return a copy of this letter
to me and complete the enclosed questionnaire and the
nominee consent.
Thank you for your assistance in this matter.
Very truly yours,
Xxxxxx X. Xxxxxx
Senior Vice President and
General Counsel
ACCEPTED:
----------------------
Xxxxxxx X. Xxxxx
Date:
-----------------
NOMINEE CONSENT
July 24, 1997
Circon Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Corporation Secretary
Gentlemen:
You are hereby notified that the undersigned
consents to (i) being named as a nominee in the notice
provided by United States Surgical Corporation to Circon
Corporation of its intention to nominate the undersigned
and certain other persons as directors of Circon
Corporation and to conduct certain other matters at the
Circon Corporation 1997 Annual Meeting of Shareholders or
other meeting of shareholders held in lieu thereof (the
"Annual Meeting"), (ii) being named as a nominee in a
proxy statement soliciting proxies for the undersigned's
election as a director of Circon Corporation at the
Annual Meeting, and (iii) serving as a director of Circon
Corporation if elected at the Annual Meeting.
Very truly yours,
---------------------------
Xxxxxxx X. Xxxxx
