exhibit_101.htm


    Exhibit
10.1

     

    December
12, 2008

     

    John
Kilcoyne

     

    Re:           OFFER
LETTER

     

    Dear
John:

     

    You and
Micrus Endovascular Corporation, a Delaware corporation (the “Company”), signed an
offer letter, dated November 15, 2004 (the "Offer
Letter").  This letter agreement amends the Offer Letter in
order for the cash severance payments under the Offer Letter to be exempt from
or comply with Section 409A of the Internal Revenue Code of 1986, as amended
(the "Code").  Except
as otherwise amended in this letter agreement, the Offer Letter remains in full
force and effect.

     

    Specifically,
this letter agreement deletes the last sentence of the second full paragraph of
the Offer Letter, which provides as follows:  "If you are terminated
without cause you will receive salary continuation for a period of six
months."  (the "Deleted
Language").

     

    The
Deleted Language is replaced in its entirety by the following language:

     

    "If you
experience an involuntary separation, as defined in Treasury Regulation
1.409A-1(h) (“Separation”), by the
Company for a reason that is other than for Cause (as defined below), death or
Permanent Disability (as defined below), and you satisfy the following
conditions, you will receive certain cash severance, as described
below.  To receive the cash severance, you must  execute
(and do not revoke) a full and complete general release of all claims in a form
provided by the Company without alteration, resign from the board of directors
of the Company or any of its subsidiaries, to the extent applicable, and return
all Company property (collectively, the "Conditions"), in each
case within thirty (30) days after the Separation (the "Deadline").

     

    Provided
that you've satisfied the Conditions within the Deadline, the Company will pay
you your then current base salary for a period of six (6) months (subject to
applicable withholding) according to the Company's standard payroll schedule,
commencing on the Company's first regular payroll date following the last day of
the Deadline.  For purposes of Code Section 409A, each salary
continuation payment under this paragraph is hereby designated as a separate
payment.  Notwithstanding anything stated herein to the contrary, each
of the salary continuation payments provided in connection with your Separation
under this paragraph is intended to be exempt from Code Section 409A pursuant to
Treasury Regulation Section 1.409A-1(b)(9)(iii) and to the extent it is exempt
pursuant to such section, it will in any event be paid no later than the last
day of your second taxable year following the taxable year in which your
Separation has occurred; provided that, to the extent that any of such salary
continuation payments and any other payments paid to you in connection with your
Separation does not qualify to be exempt from Code Section 409A pursuant to
Treasury Regulation Section 1.409A-1(b)(9)(iii) or otherwise exceeds the limit
set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii)(A) or any similar
limit promulgated by the Treasury or the IRS, the portion of the salary
continuation payments that does not qualify or otherwise exceeds such limit, as
determined by the Company in its sole discretion, will be paid by no later than
the fifteenth (15th) day of the third (3rd) month following the end of your
first tax year in which your Separation occurs, or, if later, the fifteenth
(15th) day of the third (3rd) month following the end of the Company's first tax
year in which your Separation occurs, as provided in Treasury Regulation Section
1.409A-1(b)(4).

     

    Notwithstanding
the above, if any of the salary continuation payments described in the previous
paragraph does not qualify for any reason to be exempt from Code Section 409A
pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii) or Treasury
Regulation Section 1.409A-1(b)(4) and you are deemed by the Company at the time
of your Separation to be a “specified employee,” as defined in Code Section
409A, each such salary continuation payment will not be made or commence until
the date which is the first day of the seventh month after your Separation and
the installments that otherwise would have been paid during the first six months
after your Separation will be paid in a lump sum on the first day of the seventh
month after your Separation. Such deferral will only be effected to the extent
required to avoid adverse tax treatment to you, including (without limitation)
the additional twenty percent (20%) federal tax for which you would otherwise be
liable under Section 409A(a)(1)(B) of the Code in the absence of such
deferral.

     

    For all
purposes under this letter agreement, "Cause" means (i) your
gross negligence or willful failure to substantially perform your duties and
responsibilities to the Company or deliberate violation of a Company policy;
(ii) your commission of any act of fraud, embezzlement, dishonesty or any other
willful misconduct that has caused or is reasonably expected to result in
material injury to the Company; (iii) unauthorized use or disclosure of any
proprietary information or trade secrets of the Company or any other party to
whom you owe an obligation of nondisclosure as a result of your relationship
with the Company; or (iv) your willful breach of any of your obligations under
any written agreement or covenant with the Company.  The determination
as to whether you are being terminated for Cause will be made in good faith by
the Company and will be final and binding on you.

     

    For all
purposes under this letter agreement, “Permanent Disability”
means your inability to perform the essential functions of your position with or
without reasonable accommodation for a period of 120 consecutive days because of
your physical or mental impairment."

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    This
amendment to the Offer Letter may be executed in two or more counterparts, each
of which will be deemed an original, but all of which together will constitute
one and the same instrument. To indicate your acceptance of this amendment to
the Offer Letter, please sign and date this letter in the space provided below
and return it to me.

     

    

      
        	 
      	 
      	 
      	
                Very
      truly yours

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                MICRUS
      ENDOVASCULAR

              
	 
      	 
      	 
      	
                CORPORATION

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                By:

              	
                /s/
      Robert A. Stern

              
	 
      	 
      	
                Name:

              	
                Robert
      A. Stern

              
	 
      	 
      	
                Title:

              	
                COO

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
                ACCEPTED
      AND AGREED:

              	 
      	 
      	 
      
	
                JOHN
      KILCOYNE

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
                /s/
      John R. Kilcoyne

              	 
      	 
      	 
      
	
                (Signature)

              	 
      	 
      	 
      
	
                12/15/2008

              	 
      	 
      	 
      
	
                Date