exv10w1






Exhibit 10.1




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 consideration, the receipt and sufficiency of which are
hereby acknowledged, Endocare and Cracchiolo hereby agree as follows:



     1. Termination of Endocare Severance Recapture Rights. Effective August 29, 2008,
Section 3(c)(vii) of the Employment Agreement is hereby terminated in its entirety and rendered of
no further force or effect whatsoever. Effective August 29, 2008, Endocare hereby irrevocably
waives any right to receive repayment of the Severance Amount.



     2. Termination of Indemnification Agreement. Effective August 29, 2008, the
Indemnification Agreement is hereby terminated and rendered of no further force or effect
whatsoever. Effective August 29, 2008, neither party shall have any further rights or obligations
under the Indemnification Agreement whatsoever; provided, however, that Endocare
shall be required to advance any Expenses incurred under the Indemnification Agreement prior to
August 29, 2008.



     3. Waiver and Release of Any Advancement or Indemnification Rights. Effective August
29, 2008, Cracchiolo hereby irrevocably waives, releases, relinquishes and discharges any and all
claims or rights he may have to advancement, indemnification or other payment rights whatsoever
under Endocare’s current or former bylaws, its Certificate of Incorporation, any statute (including
but not limited to California Corporations Code Section 317 and Section 145 of the Delaware General
Corporation Law), any principle of law or otherwise. Endocare shall have no obligation whatsoever
to advance, reimburse or indemnify against any Expenses or other amounts incurred on or after
August 29, 2008 or make any payments to or for the benefit of Cracchiolo in connection with any
Proceeding (as defined in the Indemnification Agreement), including but not limited to the Criminal
Case and the Civil Case. Endocare asserts that Cracchiolo is not entitled to indemnification under
California Labor Code Section 2802. Cracchiolo hereby agrees not to seek any indemnification
whatsoever from Endocare under California Labor Code Section 2802 or any other provision of law
providing rights to Cracchiolo that may not be waiveable. In the event that Cracchiolo at any time
seeks any such indemnification and is determined to be entitled to such indemnification, then
Cracchiolo agrees that Endocare shall be entitled to offset the Severance Amount against any such
indemnification amounts, notwithstanding Section 1 above.



     4. Restitution, Disgorgement or Other Remedies Imposed Upon Cracchiolo. Nothing in
this Agreement shall affect in any way Cracchiolo’s obligations under any judgment or settlement in
the Criminal Case or Civil Case, or the relief that may be



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imposed or remedies that may be ordered as part of the judgment of the Criminal Case, a
settlement or judgment in the Civil Case or in any other legal proceeding brought by a party other
than Endocare and to which Cracchiolo is or may hereafter be a party. By way of example, should
Cracchiolo be ordered to pay restitution to Endocare in the judgment concluding the Criminal Case,
Cracchiolo shall be obligated to comply with that judgment, notwithstanding this Agreement.




     5. Miscellaneous. This Agreement shall be governed by the laws of the State of
California, without regard to conflict of laws principles. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and all of which taken together
shall be deemed to be one instrument. Any facsimile or electronic signature of this Agreement
(such as .pdf format) shall be valid for all purposes.



     6. Binding on Successors and Assigns. This Agreement shall apply to Endocare and
Cracchiolo, as well as their respective predecessors, successors, parents, subsidiaries,
affiliates, custodians, agents, assigns, representatives, heirs, estates, executors, trusts,
trustees, trust beneficiaries, administrators, spouses, marital communities, and immediate family
members.



Signature Page Follows




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     IN WITNESS WHEREOF, Endocare and Cracchiolo hereby execute and deliver this Irrevocable Waiver
and Termination Agreement.



	 	 	 	 	 
	 	ENDOCARE, INC.

 	 
	 	By:  	     /s/ Craig T. Davenport
 	 
	 	 	     Craig T. Davenport 	 
	 	 	     CEO, Chairman and President 	 
	 
	 	CRACCHIOLO:

 	 
	 	     /s/ John V. Cracchiolo
 	 
	 	     John V. Cracchiolo 	 
	 	 	 
	 



Approved as to form:




	 	 	 
	     /s/ John Potter
 

John Potter

	 	 
	Quinn Emanuel Urquhart Oliver & Hedges, LLP
	 	 
	Attorneys for John V. Cracchiolo
	 	 






[SIGNATURE PAGE TO IRREVOCABLE WAIVER

AND TERMINATION AGREEMENT]





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