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Exhibit 10.21
CONSULTING AGREEMENT, GENERAL RELEASE AND WAIVER OF CLAIMS
MICRUS ADVISES YOU TO CONSULT WITH AN ATTORNEY BEFORE
YOU SIGN THIS AGREEMENT AS IT CONTAINS A RELEASE AND WAIVER
OF ALL KNOWN AND UNKNOWN CLAIMS
I, Herbert
H. Mertens, for and in consideration of the benefits described
below, which benefits I agree I would not
otherwise be entitled to receive,
understand and agree to the terms of this
Consulting Agreement, General Release
and Waiver of Claims (the "Agreement")
between me and Micrus Corporation
("Micrus" or the "Company"), as set forth
herein:
1. TERMINATION OF EMPLOYMENT. I understand
that my last day of work with Micrus
is November 9, 2004, and
that after this date, I have no further duties to
perform for or authority to
act on Micrus's behalf except as described in
this Agreement. This date
shall be considered as my termination date (the
"Termination Date") for all
purposes referenced in this Agreement, including
the date my employment with
Micrus is terminated. Accordingly, I understand
that as of my Termination
Date, I will no longer be eligible to participate
in Micrus's incentive plan
programs, bonus programs, option plans, retirement
or 401(k) plans and I can no
longer accrue vacation or PTO benefits.
2. CONSIDERATION: In consideration for the promises
I have made herein, Micrus
agrees as follows:
(a) CONSULTING ARRANGEMENT.
Micrus agrees to retain me as a consultant for a
period of four (4) months
following the effective date of this agreement as
set forth in Section 20
below (the "Consulting Period"). This period may be
extended by a written
agreement signed by the Chairman of the Board of Micrus
and me. During the
Consulting Period, I agree to make myself available to
Micrus management to
transfer my former duties and responsibilities,
including, but not limited
to, assisting with vendor and customer relations
issues, and other matters as
reasonably requested by Micrus management.
During the Consulting
Period, I shall be paid on a monthly basis at my final
salary rate, less applicable
taxes and withholdings. The Consulting Period
and the payments to be made
hereunder will not begin until after this
Agreement becomes
enforceable and effective. Although I am free to search for
alternate employment during
the Consulting Period, I agree that I will not
consult for any other
employer, entity, or individual during the Consulting
Period, and agree that I
will devote my time during the Consulting Period
exclusively to Micrus;
(b) COBRA REIMBURSEMENT
PAYMENTS. As further consideration for the promises I
have made in this Agreement,
Micrus agrees to reimburse me for the cost of my
COBRA payments up to a
maximum of nine hundred dollars per month ($900). I
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understand that these
payments (the "COBRA Payments") are intended to
reimburse me for the monthly
cost under COBRA of continuing my medical and
dental coverage at my final
employee benefit level. Micrus agrees to pay the
COBRA Payments throughout
the Consulting Period. In the event I have not
obtained alternate
employment following the conclusion of the Consulting
Period, Micrus agrees to
continue the COBRA Payments for a period of another
two (2) months, but under no
circumstances, for longer than a total of six
(6) months. However, Micrus
will have no obligation to reimburse me or to
continue the COBRA payments
if I do not elect COBRA benefits or become
eligible for benefits under
another benefit plan. I understand that if I
become eligible for benefits
under another plan before the six-month period
expires, I am required to
notify Micrus within five (5) business days. At the
conclusion of the six-month
period, provided I have not become eligible for
benefits under another
benefit plan, I understand that Micrus's obligation to
pay for my COBRA benefits
will expire, and that if I wish to continue COBRA
coverage, it will be my
responsibility to pay for such coverage. I understand
that Micrus has or will send
information to me about my COBRA rights under
separate cover and that
nothing in this paragraph, or in this Agreement,
obligates Micrus to enroll
me in COBRA or to otherwise take steps to ensure
that I receive COBRA
benefits as it is my responsibility to take all steps
necessary to enroll in
COBRA.
(c) VESTING OF STOCK
OPTIONS. In further consideration of the promises I have
made in this Agreement,
Micrus also agrees to permit me to continue to vest
all stock options granted to
me during the Consulting Period. According to
Company records and the
stock option grants provided to me, as of November 9,
2004, I have the option to
purchase 156,083 shares of Micrus common stock in
which I have vested under
the terms of Micrus's Stock Option Plan. I
understand that I will have
until three months after the date that I no
longer provide services to
the Company to exercise these options.
(d) CONSIDERATION CONTINGENT
ON EXECUTION. I understand and agree that the
consideration described in
subparagraphs (a) through (c) above is contingent
upon my execution of this
Agreement. If I fail to return this Agreement
within the time period
provided or I revoke it within the period specified
below, I will no longer be
eligible for the consideration described in
subparagraphs (a) through
(c).
3. PAYMENT OF ATTORNEYS' FEES: In the event
I am required to retain counsel in
connection with the
Department of Justice's ("DOJ") ongoing investigation of
the Company and its
practices, Micrus agrees to indemnify me for all costs
and attorneys' fees
reasonably incurred in connection with this matter as
required under Company's
Indemnification Agreement.
4. RELEASE OF CLAIMS: In exchange for the
promises contained in this Agreement
and to the fullest extent
permitted by law, I hereby waive, release and fully
discharge, and
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agree not to pursue, any and
all claims, claims for relief and/or causes of
action I have or may have as
of the date I sign this Agreement against
Micrus, and/or any of its or
their current or former, affiliates,
subsidiaries, predecessors
or successors, and/or any of the current or
former, officers, directors,
shareholders, employees, attorneys, employee
benefit plans, agents or
representatives, successors or assigns of the
foregoing entities
("Released Parties"), arising out of and/or in any way
connected with my employment
relationship, and/or the termination of that
employment relationship,
and/or with respect to any other claim, matter, or
event arising prior to the
time I execute this Agreement. I recognize and
agree that such released
claims, claims for relief, and/or causes of action
include, but are not limited
to, claims for age discrimination under the
federal Age Discrimination
in Employment Act, as well as claims under Title
VII of the Civil Rights Act
of 1964, the Employee Retirement Income Security
Act of 1974, the Racketeer
Influenced and Corrupt Organizations Act, the
Worker's Adjustment and
Retraining Act, the Americans With Disabilities Act,
the Rehabilitation Act of 1973,
the federal Family and Medical Leave Act, the
Fair Labor Standards Act,
the federal Equal Pay Act, the California Fair
Employment and Housing Act,
the California Labor Code, the California
Business and Professions
Code, the California Family Rights Act, and all
other laws, whether foreign,
federal, state or local of any jurisdiction. I
understand that
