IRREVOCABLE WAIVER AND
TERMINATION AGREEMENT
THIS
IRREVOCABLE WAIVER AND TERMINATION AGREEMENT (this
“Termination Agreement”) is executed and delivered on
October 14, 2008 by and between Endocare, Inc., a Delaware
corporation (“Endocare”), and Paul W. Mikus, an
individual resident of the State of California
(“Mikus”) (together, the
“Parties”).
WHEREAS,
Mikus was previously an employee and executive officer of Endocare;
and
WHEREAS,
Mikus’s employment with Endocare was terminated in 2003 and
Mikus ceased to serve as an executive officer of Endocare in 2003;
and
WHEREAS,
in connection with the termination of Mikus’s employment with
Endocare, Mikus and Endocare executed and delivered a Separation
Agreement, dated July 31, 2003 (the “Separation
Agreement”), and a Consulting Agreement, dated July 31,
2003 (the “Consulting Agreement”); and
WHEREAS,
during Mikus’s employment with Endocare, Mikus and Endocare
executed and delivered an Indemnification Agreement, dated
October 30, 2001 (the “Indemnification
Agreement”); and
WHEREAS,
Mikus 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 Mikus’s behalf in connection
with the Criminal Case and the Civil Case; and
WHEREAS ,
on October 6, 2008, Mikus entered a guilty plea in the
Criminal Case, pursuant to which he will be required to pay
restitution to Endocare; and
WHEREAS,
in connection with the termination of his employment, Endocare paid
to Mikus a severance amount (the “Severance Amount”)
pursuant to Section 1 of the Separation Agreement and a
consulting fee (the “Consulting Fee”) pursuant to
Section 2 of the Consulting Agreement; and
WHEREAS,
Section 1 of the Separation Agreement provides that Mikus
shall be liable to repay to Endocare the Severance Amount and
Section 2(a) of the Consulting Agreement provides that Mikus shall
be liable to repay to Endocare the Consulting Fee, in each case
upon either: (a) the conviction of Mikus in a court of law, or
entering a plea of guilty or no contest to, any crime directly
relating to Mikus’s activities on behalf of Endocare during
his employment with Endocare; or (b) successful prosecution of
an
-1-
enforcement
action by the Securities and Exchange Commission against Mikus
directly relating to Mikus’s activities as an employee and
executive officer of Endocare; and
WHEREAS,
Section 11 of the Indemnification Agreement provides that
Mikus shall reimburse Endocare for all Expenses advanced by
Endocare in certain circumstances; and
WHEREAS,
Endocare is willing to irrevocably waive its repayment and
reimbursement rights under the Separation Agreement, Consulting
Agreement and the Indemnification Agreement if Mikus 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 July 31,
2008;
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Endocare and Mikus
hereby agree as follows:
1.
Termination of Endocare Severance Recapture Rights .
Effective July 31, 2008, the third sentence of Section 1
of the Separation Agreement and the second sentence of Section 2(a)
of the Consulting Agreement are hereby terminated in their entirety
and rendered of no further force or effect whatsoever. Effective
July 31, 2008, Endocare hereby irrevocably waives any right to
receive repayment of the Severance Amount and the Consulting
Fee.
2.
Termination of Indemnification Agreement . Effective
July 31, 2008, the Indemnification Agreement is hereby
terminated and rendered of no further forc
|
