IRREVOCABLE WAIVER AND
TERMINATION AGREEMENT
THIS
IRREVOCABLE WAIVER AND TERMINATION AGREEMENT (this
“Termination Agreement”) is executed and delivered on
August 21, 2008 by and between Endocare, Inc., a Delaware
corporation (“Endocare”), and John V. Cracchiolo, an
individual resident of the State of Nevada
(“Cracchiolo”).
WHEREAS,
Cracchiolo was previously an employee and executive officer of
Endocare; and
WHEREAS,
Cracchiolo’s employment with Endocare was terminated in 2003
and Cracchiolo ceased to serve as an executive officer of Endocare
in 2003; and
WHEREAS,
during his employment with Endocare, Cracchiolo and Endocare
executed and delivered an Employment Agreement, dated March 3,
2003 (the “Employment Agreement”), which replaced a
prior employment agreement; and
WHEREAS,
during his employment with Endocare, Cracchiolo and Endocare
executed and delivered an Indemnification Agreement, dated
October 30, 2001 (the “Indemnification
Agreement”); and
WHEREAS,
Cracchiolo is currently a defendant in the criminal case captioned
United States of America v. Paul Mikus, et al. (Case
No. CR07-0060 JVS) (the “Criminal Case”) and in
the civil case captioned Securities and Exchange Commission v.
Paul W. Mikus and John V. Cracchiolo (Case No. SACV 06-734
JVS (MLGx)) (the “Civil Case”); and
WHEREAS,
pursuant to Section 11(a) of the Indemnification Agreement Endocare
has been advancing Expenses (as defined in the Indemnification
Agreement) on Cracchiolo’s behalf in connection with Criminal
Case and the Civil Case; and
WHEREAS,
in connection with the termination of his employment, Endocare paid
to Cracchiolo a severance and relocation allowance (collectively,
the “Severance Amount”) pursuant to Section 3(c)(i) of
the Employment Agreement; and
WHEREAS,
Section 3(c)(vii) of the Employment Agreement provides that
Cracchiolo shall be liable to repay to Endocare the Severance
Amount upon either: (a) the conviction of Cracchiolo in a
court of law, or entering a plea of guilty or no contest to, any
crime directly relating to Cracchiolo’s activities on behalf
of Endocare; or (b) successful prosecution of an enforcement
action by the Securities and Exchange Commission against Cracchiolo
relating to Cracchiolo’s activities on behalf of Endocare;
and
WHEREAS,
Section 11 of the Indemnification Agreement provides that
Cracchiolo shall reimburse Endocare for all Expenses advanced by
Endocare in certain circumstances; and
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WHEREAS,
Endocare is willing to irrevocably waive its repayment and
reimbursement rights under the Employment Agreement and the
Indemnification Agreement if Cracchiolo agrees to terminate the
Indemnification Agreement in its entirety and to irrevocably waive
and release any right to have Endocare pay any Expenses or other
amounts incurred on or after August 29, 2008;
NOW,
THEREFORE, for good and valuable con
