exv10w1







Exhibit 10.1




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



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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 force or effect
whatsoever. Effective July 31, 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 on or prior
to July 31, 2008.



     3. Waiver and Release of Any Advancement or Indemnification Rights. Except as set
forth in paragraph 4, below, effective July 31, 2008, Mikus 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 July 31, 2008 or make any payments to or for the
benefit of Mikus 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 Mikus is
not entitled to indemnification under California Labor Code Section 2802. Mikus 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 Mikus that may not be waiveable. In the event that
Mikus at any time seeks any such indemnification and is determined to be entitled to such
indemnification, then Mikus
agrees that Endocare shall be entitled to offset the Severance Amount and the Consulting Fee
against any such indemnification amounts, notwithstanding Section 1 above.



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     4. Limited Payment of Expenses Incurred between August 1, 2008 and September 30,
2008. Notwithstanding paragraph 3, above, Endocare agrees to pay Expenses incurred by Mikus
between August 1, 2008 and September 30, 2008 (the “Limited Payment Period”), to be paid
exclusively from the proceeds to Endocare of any restitution payment made by Mikus to Endocare (the
“Endocare Restitution Payment”) and up to a maximum of $510,000.



          a. If Mikus does not pay the Endocare Restitution Payment, Endocare shall not be responsible
to pay any Expenses incurred by Mikus during the Limited Payment Period and this paragraph 4 shall
be null and void.



          b. If the Endocare Restitution Payment is $510,000 or more, Endocare shall be responsible to
pay Expenses incurred by Mikus during the Limited Payment Period, up to the lesser of the Expenses
incurred during the Limited Payment Period or $510,000.



          c. Regardless of the amount of the Endocare Restitution Payment, Endocare shall have no
responsibility for any Expenses exceeding the lesser of $510,000 or the Endocare Restitution
Payment.



     5. Timing of Payment of Expenses. Within 7 days of its receipt of a fully executed
copy of this Termination Agreement, Endocare shall pay the following Expenses for costs, attorney’s
fees and expert fees invoiced for amounts incurred through July 31, 2008: (a) $141,503.85 due to
Bienert, Miller, Weitzel & Katzman for services rendered through July 31, 2008; (b) $121,106.00 due
to Hemming Morse, Inc. for services rendered through July 31, 2008; and (c) $1,839.91 for services
rendered by an undisclosed expert witness through July 31, 2008, to be paid in care of Bienert,
Miller, Weitzel & Katzman. Any Expenses owed by Endocare for the Limited Payment Period, pursuant
to paragraph 4 above, shall be paid within 10 days of Endocare’s receipt and deposit of the
Endocare Restitution Payment.



     6. Restitution, Disgorgement or Other Remedies Imposed Upon Mikus. Nothing in this
Termination Agreement shall affect in any way Mikus’s obligations under any judgment or settlement
in the Criminal Case or Civil Case, or the relief that may be 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 Mikus is or may
hereafter be a party. By way of example, should Mikus be ordered to pay restitution to Endocare in
the judgment concluding the Criminal Case, Mikus shall be obligated to comply with that judgment,
notwithstanding this Termination Agreement and even if he is ordered to pay more than $510,000 in
restitution.



     7. Miscellaneous. This Termination Agreement shall be governed by the laws of the
State of California, without regard to conflict of laws principles. This Termination 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 Termination Agreement (such as .pdf format) shall be
valid for all purposes.



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     8. Third-Party Beneficiary. The parties recognize and agree that this Agreement,
including paragraph 5 above, is made expressly for the benefit not only of the Parties but also of
the law firm of Bienert, Miller, Weitzel & Katzman, which shall have the right to pursue any and
all remedies available to it under California law in the event of any breach of this Agreement.



     9. Binding on Successors and Assigns. This Termination Agreement shall apply to
Endocare and Mikus, 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 Mikus hereby execute and deliver this Irrevocable Waiver and
Termination Agreement.




	 	 	 	 	 	 	 
	 	 	ENDOCARE, INC.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Clint B. Davis	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Clint B. Davis 

General Counsel	 	 
	 
	 	 	 	 	 	 
	 	 	PAUL W. MIKUS:
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Paul W. Mikus	 	 
	 	 	 	 	 
	 

	 	 	 	Paul W. Mikus	 	 






	 	 	 
	Approved as to form:
	 	 
	 
	 	 
	/s/ Thomas Bienert
 

Thomas Bienert

	 	 
	Bienert, Miller, Weitzel & Katzman
	 	 
	Attorneys for Paul W. Mikus
	 	 






[SIGNATURE PAGE TO IRREVOCABLE WAIVER

AND TERMINATION AGREEMENT]





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