Exhibit 10.22
SETTLEMENT AGREEMENT
dated as of March 2, 2005
by and between
MICRUS S.A., En Xxxxxxx 00, XX-0000 Xxxxxxxx-xxxx-Xxxxxxx, and
MICRUS CORPORATION , 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
(hereinafter, collectively, MICRUS)
and
XXXXXX X. XXXXXXX, Xxxxxxxx 0, XX-0000 Xxxxxx
(hereinafter MM)
THIS SETTLEMENT AGREEMENT (AGREEMENT) is made as of March 2, 2005 by and between
Micrus S.A. and Micrus Corporation (collectively MICRUS) and Xxxxxx Xxxxxxx
(MM).
WHEREAS
A. MM, on the one hand, and Micrus S.A. and/or Micrus Corp., on the other
hand, have entered into a Employment Contract dated August 20, 2001 (the
EMPLOYMENT CONTRACT), an Indemnification Agreement dated August 2, 2004
(the INDEMNIFICATION AGREEMENT and collectively with the Employment
Contract, the EMPLOYMENT-RELATED AGREEMENTS), a Micrus Proprietary
Information Agreement dated July 30, 2001 (the PROPRIETARY INFORMATION
AGREEMENT), and Stock Option Agreements dated August 6, 2001, April 22,
2002, June 24, 2003 and June 24, 2004 (collectively, the STOCK OPTION
AGREEMENTS), which arise from and/or govern MM's role as an employee,
officer or director of Micrus S.A. and/or Micrus Corp.
B. Micrus has reported to and is cooperating with the U.S. Department of
Justice and may file reports to and cooperate with other authorities
(collectively the "Governmental Authorities"), including without limitation
the Swiss Federal Attorney General and other Swiss authorities, in
connection with Doctor Payments. The term DOCTOR PAYMENTS shall include,
for the purpose of this Agreement and its Annexes, any acts, omissions and
other facts or circumstances that are in any way connected to or in any way
caused by payments or other benefits granted, promised, offered, incited,
caused, made or carried out by, on behalf of, for the benefit of, or
through Micrus or its employees or officers to doctors or other people at
hospitals, universities or other institutions, whether private or public,
and irrespective of the country they are located in. Micrus acknowledges
that MM is not privy to any details of the ongoing discussions with the
U.S. Department of Justice regarding Doctor Payments.
C. On November 9, 2004, Micrus provided notice to MM of the termination of his
Employment Contract for cause and released MM from his obligation to work
with immediate effect, but ordered MM to remain available as needed until
the termination of the three months notice period.
D. On November 9, 2004 and November 14, 2004, respectively, pursuant to
Micrus' request, MM resigned with immediate effect from the board of
directors of Micrus Corporation and Micrus S.A, respectively.
E. MM acknowledges that he was an employee of Micrus S.A., and an officer and
director of Micrus S.A. and Micrus Corp and that the terms and conditions
of his roles for Micrus are set forth in the EMPLOYMENT-RELATED AGREEMENTS.
F. The parties are in dispute as regards the justification of the termination
and the claims the parties have or may have against each other in
connection with their past and ongoing relationship and the termination
thereof.
G. The parties wish to settle by mutual consent and without any admission of
liability, all such claims including, but not limited to those arising out
of MM's role as employee or officer or director of Micrus S.A. and/or
Micrus Corp. and the obligations of each party under the EMPLOYMENT-RELATED
AGREEMENTS, subject to the terms and conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. TERMINATION. The parties agree, that the Employment Contract shall be
terminated and was terminated effective as of February 28, 2005, and that
all rights, obligations and duties of each party under the Employment
Contract have been extinguished, except as set forth hereinafter. However,
the Indemnification Agreement, the Stock Option Agreements, the Proprietary
Information Agreement and the present Agreement (including the Annexes to
this Agreement) are not terminated and shall continue to govern the rights
and obligations of the parties as set forth herein and in the Annexes to
this Agreement. Concurrently with the execution of this Agreement, Micrus
shall pay MM, an amount equal to 2,568.65 CHF which represents the total
amount due to MM for salary and other employment related claims (including
but not limited to remaining expense reimbursement, vacation entitlements,
or other wages, including any claim for extra wages due to overtime) by
February 28, 2005, the end of his notice period under his Employment
Contract and the date of termination of his employment.
Any possibly remaining vacation entitlements as well as any claim for
salary, expense reimbursement, bonuses, or other wages, including any claim
for extra wages due to overtime shall be fully discharged by the payment
pursuant to Article 1 and the Compensation pursuant to Article 2 of this
Agreement.
MM understands and agrees that notwithstanding the termination of his
employment, he is still bound by the terms of the Micrus Proprietary
Information Agreement and agrees to comply with his obligations thereunder
to protect Micrus' confidential and/or proprietary information.
2. COMPENSATION. In consideration of MM executing and performing this
Agreement and in full discharge of any rights, privileges or entitlements
of MM against Micrus, whether actual or potential, whether present or
future, whether arising by operation of law, or by agreement of the
parties, including rights and entitlements arising out of the now
extinguished Employment Contract, Micrus will pay and/or provide MM with a
gross payment of USD 100,000.00 (the COMPENSATION). The Compensation shall
become due in equal installments of USD 20'000 over a period of five
quarters and subject to MM being in full compliance with this Agreement.
The payment of the first installment of the Compensation shall be made in
accordance with the payment instructions provided by MM on or before April
30, 2005 against the delivery of a waiver and release in the form attached
hereto as Annex 1 executed not earlier than a month plus one day after the
termination of the Employment Contract. Provided such waiver and release
has been provided, payment of subsequent installments shall be made by July
31, 2005, October 31, 2005, January 31, 2006 and April 30, 2006.
It is agreed and understood that the payment of the Compensation does not
constitute an admission of liability by Micrus. Should MM not be in
compliance with this Agreement, Micrus is entitled to immediately reclaim
any amounts paid and benefits granted and refuse further payments or grants
still due and owing.
3. STOCK OPTIONS. In further consideration of MM executing and performing this
Agreement, Micrus also agrees to provide MM with enhanced opportunities to
exercise the stock option rights he has been granted by Micrus. In order to
effect the changes set forth in this Article 3, concurrently with the
execution of this Agreement MM and Micrus Corporation shall enter into the
Amendment to Stock Option Agreements attached hereto as Annex 2. For the
avoidance of doubt, it is understood among the parties that Micrus is in no
way whatsoever responsible for any taxation issues (if any) resulting from
the Stock Option Agreements or amendments thereto.
4. DOCTOR PAYMENTS. Micrus has reported to and is currently cooperating with
the US Department of Justice and may in the future cooperate with other
Governmental Authorities in connection with Doctor Payments.
It is understood that each party will bear its own costs in connection with
any investigation or proceeding initiated and/or undertaken by a
governmental agency or any other lawsuit or legal action in any way
connected with Doctor Payments, including the costs of its legal
representation, payments of damages, fines, penalties or amounts to be paid
in settlements.
MM, in exchange for the promises contained in this Agreement, hereby also
waives any and all rights and claims which he might have, or which might
arise, under the Indemnification Agreement or otherwise which are in any
way connected to Doctor Payments or investigations, proceedings, lawsuits
or legal action in any way connected to Doctor Payments, including without
limitation any claims for indemnification for, or compensation of, costs of
legal representations, other expenses, damages of whatever kind, fines,
penalties and amounts paid in settlements.
5. MUTUAL RELEASE OF CLAIMS. In exchange for the promises contained in this
Agreement and to the fullest extent permitted by law, each party hereby
waives, releases and fully discharges, and agrees not to pursue, any and
all claims, claims for relief and/or causes of action it has or may have as
of the date of execution of this Agreement against the other party, and/or
any of its 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 (the
RELEASED Parties), arising out of and/or in any way connected with MM's
employment relationship, and/or the termination of that employment
relationship, and/or MM's relationship as an officer and director of Micrus
Corp. and Micrus SA, and/or with respect to any other claim, matter, or
event arising prior to the time this Agreement has been executed by the
parties. Each party recognizes and agrees that such released claims, claims
for relief, and/or causes of action include, but are not limited to, claims
under U.S. and Swiss law, including, but not limited to the Swiss Code of
Obligations, and the laws of all other jurisdictions and any rights,
privileges or entitlements of the parties arising out of the now
extinguished Employment Contract, MM's service as an officer and director
of Micrus Corp. and Micrus SA, or by operation of law, including without
limitation certain claims for indemnification, as described in this
Agreement.
6. MUTUAL WAIVER OF KNOWN AND UNKNOWN CLAIMS. As further consideration for the
promises contained in this Agreement, each party agrees that its release
and waiver of all claims against the other party includes not only
known or suspected claims but also all unknown, unsuspected and
unanticipated injuries, damages, events, matters, or claims which may have
arisen prior to the execution of this Agreement.
7. VOTING OF COMMON STOCK. In exchange for the promises contained in this
Agreement, MM agrees to vote and act with respect to any shares of Common
Stock he may hold upon exercise of any options to purchase Common Stock of
Micrus Corporation as set forth in the Voting Agreement attached hereto as
Annex 3.
8. BINDING ON SUCCESSORS AND HEIRS. MM agrees that he has executed this
Agreement on his own behalf and on behalf of his heirs, administrators,
representatives, attorneys, executors, successors, and assigns (the
EMPLOYEE'S SUCCESSORS) he now has or will have in the future and that his
agreement to waive and release all known and unknown claims against Micrus
binds him and Employee's Successors.
Micrus agrees that it has executed this Agreement on behalf of Micrus SA
and Micrus Corporation and on behalf of their successors, and assigns (the
MICRUS' SUCCESSORS) and that its agreement to waive and release all known
and unknown claims against MM binds Micrus and the Micrus' Successors.
9. CONFIDENTIALITY OF AGREEMENT TERMS. MM agrees that the terms and conditions
of this Agreement and any and all actions by Micrus in accordance
therewith, are strictly confidential and, with the exception of his
counsel, tax advisor, immediate family, or as required by applicable law,
the Swiss Federal Attorney General, other Swiss authorities or the U.S.
Department of Justice, have not been and shall not be disclosed, discussed,
or revealed to any other persons, entities, or organizations, whether
within or outside Micrus, without prior written approval of Micrus. MM
agrees to take all reasonable steps necessary to ensure that
confidentiality is maintained by any of the individuals or entities
referenced above to whom disclosure is authorized.
For the avoidance of doubt, Micrus is not bound by an obligation of
confidentiality.
10. ENTIRE AGREEMENT. This Agreement, including Annexes 1,2, and 3, represent
the full and complete agreement between MM and Micrus regarding its subject
matter, including the terms and conditions of any payments to
MM, or his termination, and supersedes all prior or contemporaneous oral or
written agreements or understandings between the parties concerning those
subjects, except as explicitly provided for otherwise in this Agreement or
any of the Annexes 1,2, and 3. This Agreement and the Annexes 1, 2 and 3
cannot be changed except in a writing signed both by MM and Micrus.
11. GOVERNING LAW, JURISDICTION. The parties agree that the laws of
Switzerland, without regard to and excluding its choice of law provisions,
shall govern the validity and interpretation of this Agreement and Annex 1
to this Agreements. The parties agree that the Annexes 2, and 3 to this
Agreement and the Proprietary Information Agreement, Stock Option
Agreements and Indemnification Agreement shall be governed by the laws
indicated in such agreements.
The place of jurisdiction for all disputes arising out of or in connection
with this Agreement or Annex 1 to Agreement shall be exclusively
Montagny-pres-Yverdon, Switzerland. Notwithstanding the preceding sentence,
the place of jurisdiction for all disputes arising out of or in connection
with any of the matters referenced in the Proprietary Information
Agreement, Stock Option Agreements and Indemnification Agreement shall be
exclusively the jurisdictions indicated in such agreements.
12. CLAIMS BY MICRUS. Notwithstanding Article 5 of this Agreement, Micrus
Corporation and Micrus S.A. may independently or collectively pursue the
enforcement of this Agreement (including the Annexes to this Agreement),
the Indemnification Agreement, the Proprietary Information Agreement, the
Stock Option Agreements or any other claims resulting out of or in
connection with this Agreement (including the Annexes to this Agreement),
the Stock Option Agreements, the Indemnification Agreement or the
Proprietary Information Agreement and their validity.
13. VOLUNTARY RELEASE OF CLAIMS. By signing this Agreement, MM confirms that he
has been given the opportunity to discuss it with the attorney of his
choice. He also acknowledges that he has read and fully understand the
terms, nature, and effect of this Agreement and its release of claims and
that he has executed it voluntarily, free of any duress or coercion, and in
so doing, he has not relied on any promise, representation, or inducement
other than those contained in this Agreement.
ACKNOWLEDGED AND AGREED:
XXXXXX X. XXXXXXX
Signature /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Place, Date March 2, 2005
MICRUS, S.A.
By /s/ Beat X. Xxxx
----------------------------------------
Its Director
-------------------------
Place, Date March 2, 2005
----------------------
MICRUS CORPORATION
By /s/ Xxxxxxx Xxxxxx
----------------------------------------
Its Chairman of the Board of Directors
----------------------------------
Place, Date March 2, 2005
----------------------
ANNEX 1 TO THE SETTLEMENT AGREEMENT BETWEEN XXXXXX X. XXXXXXX AND HIS
EMPLOYER, MICRUS, S.A. AND MICRUS CORPORATION (COLLECTIVELY, "MICRUS").
1. RELEASE OF CLAIMS. Xxxxxx X. Xxxxxxx hereby waives, releases and fully
discharges, and agrees not to pursue, any and all claims, claims for relief
and/or causes of action he has or may have as of the date he signs this Waiver
and Release 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
his employment relationship, and/or the termination of that employment
relationship, and/or his relationship as an officer and director of Micrus Corp.
and Micrus SA, and/or with respect to any other claim, matter, or event arising
prior to the time he executes this Waiver and Release. Xxxxxx X. Xxxxxxx
recognizes and agrees that such released claims, claims for relief, and/or
causes of action include, but are not limited to, claims under U.S. and Swiss
law, including, but not limited to the Swiss Code of Obligations, and the laws
of all other jurisdictions and any rights, privileges or entitlements of the
parties arising out of the now extinguished EMPLOYMENT CONTRACT (as defined in
the Settlement Agreement), his service as an officer and director of Micrus
Corp. and Micrus SA, or by operation of law, including without limitation the
claims for indemnification as described in the Settlement Agreement.
2. WAIVER OF KNOWN AND UNKNOWN CLAIMS. Xxxxxx X. Xxxxxxx agrees that his release
and waiver of all claims against Micrus includes not only known or suspected
claims but also all unknown, unsuspected and unanticipated injuries, damages,
events, matters, or claims which may have arisen prior to his execution of this
Waiver and Release.
3. NO OTHER CLAIMS. Xxxxxx X. Xxxxxxx agrees and represents that he has not
filed or otherwise pursued any charges, complaints or claims of any nature
against Micrus or any Released Party with any government agency or court with
respect to any matter connected with his employment relationship, and/or the
termination of that employment relationship and, to the extent permitted by law,
he agrees not do so in the future.
Place, Date: [NOT TO BE EXECUTED EARLIER THAN ONE MONTH PLUS ONE
DAY AFTER THE TERMINATION OF THE EMPLOYMENT]_______________
______________________
Xxxxxx X. Xxxxxxx
ANNEX 2
MICRUS CORPORATION
AMENDMENT TO STOCK OPTION AGREEMENTS
This Amendment to Stock Option Agreements (the "Amendment") is made as of
March 2, 2005 between Xxxxxx Xxxxxxx (the "Optionee") and Micrus Corporation,
a Delaware corporation (the "Company"), and amends (i) the Notice of Stock
Option Grant and Stock Option Agreement under the Company's 1998 Stock Plan
between the parties dated as of August 6, 2001 with respect to 700,000 shares of
Common Stock of the Company, (ii) the Notice of Stock Option Grant and Stock
Option Agreement under the Company's 1998 Stock Plan between the parties dated
as of April 22, 2002 with respect to 75,000 shares of Common Stock of the
Company, (iii) the Notice of Stock Option Grant and Stock Option Agreement under
the Company's 1998 Stock Plan between the parties dated as of June 24, 2003 with
respect to 147,250 shares of Common Stock of the Company, and (iv) the Notice of
Stock Option Grant and Stock Option Agreement under the Company's 1998 Stock
Plan between the parties dated as of June 24, 2004 with respect to 30,000 shares
of Common Stock of the Company (each an "Option" and collectively the
"Options").
RECITALS
The Company and Optionee are parties to a Settlement Agreement dated as of
March ___, 2005 (the "Settlement Agreement"). Pursuant to the Settlement
Agreement, the Company has agreed to extend the time period for Optionee to
exercise options to purchase Common Stock of the Company held by Optionee.
AGREEMENT
The parties hereby agree to amend each of the Options as follows.
1. The Options are hereby amended to provide that
(a) the section entitled "Vesting Schedule" in the Notice of Stock
Option Grant of each of the Options shall be amended to read as
follows:
"Notwithstanding anything to the contrary set forth in the Option
Agreement, it is understood and agreed that the vesting of Shares
shall continue until February 28, 2005 and thereafter stop for all
purposes".
(b) the first sentence of the section entitled "Termination Period" in
the Notice of Stock Option Grant of each of the Options shall be
amended to read as follows:
"This Option shall be exercisable until August 31, 2005."
2. Except as amended as set forth herein, each of the
Options shall remain in full force and effect.
3. This Amendment may be signed in one or more counterparts, each of which
shall be deemed an original and all of which, taken together, shall be deemed
one and the same document.
4. This Amendment shall be governed by the laws of the State of California
as such laws apply to contracts entered into and wholly to be performed therein
by residents of such state. Each of the parties hereto irrevocably consents to
the exclusive jurisdiction and venue of any federal or state court within the
Northern District of California in connection with any matter based upon or
arising out of this Amendment or the matters contemplated herein (whether based
on breach of contract, tort, breach of duty or any other theory), agrees that
process may be served upon it in any manner authorized by the laws of the State
of California for such persons and waives and covenants not to assert or plead
any objection that they might otherwise have to jurisdiction, venue and such
process. Each party agrees not to commence any legal proceedings based upon or
arising out of this Agreement (whether based on breach of contract, tort, breach
of duty or any other theory) except in such courts.
The parties have executed this Amendment as of the date first set forth
above.
MICRUS CORPORATION. OPTIONEE
By:/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxxx
-------------------------- ---------------------------
Xxxxxx Xxxxxxx
Title: Chairman of the Boards
of Directors
-2-
ANNEX 3
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made as of March 2, 2005, by
and among Micrus Corporation, a Delaware corporation (the "Company") and Xxxxxx
Xxxxxxx ("MM").
RECITALS
The Company and MM are parties to a Settlement Agreement dated as of March
___, 2005 (the "Settlement Agreement"). Pursuant to the Settlement Agreement,
the Company has agreed to make certain cash payments to MM, extend the time
period for MM to exercise options to purchase Common Stock of the Company held
by MM, and entered into a mutual release of claims and as partial consideration
for such actions MM has agreed to enter into this Agreement.
AGREEMENT
The parties agree as follows:
1. If, at any time after the date of this Agreement, the Company's Board
of Directors and holders of a majority of the then outstanding shares of
Preferred Stock of the Company (the "Proposing Holders") approve any matter, to
include, without limitation, any equity grant, financing, merger, sale of assets
or other item or transaction of any sort, (a "Matter"), then MM shall (i)
execute consents and appear in person or by proxy at each annual or special
meeting of stockholders for the purpose of obtaining a quorum and shall vote all
of the shares of the Company's capital stock owned by MM or with respect to
which MM exercises voting or dispositive authority, either in person or by
proxy, at such annual or special meeting in favor of the Matter and otherwise in
a manner so as to be consistent and not conflict with, and to implement, the
terms of this Section 1 (ii) waive any dissenters' rights, appraisal rights or
similar rights in connection with such Matter; and (iii) if such Matter is a
sale of the capital stock of the Company, MM will agree to sell all shares of
the Company's capital stock held by MM or with respect to which MM exercises
dispositive authority on the terms and conditions contemplated by the Matter. MM
will take all reasonably necessary and desirable actions approved by the
Proposing Holders in connection with the consummation of such Matter, including
executing such consents, agreements and instruments and taking such other
actions as may be necessary to effect the consummation of such Matter.
2. In the event that MM shall fail to consent or vote the shares he is
entitled to vote in the manner set forth above, MM shall be deemed immediately
upon the existence of such breach to have granted the Proposing Holders a proxy
to its shares to ensure that such shares will be voted as set forth above. MM
acknowledges that each proxy granted hereby, including any successive proxy if
need be, is given to secure the performance of a duty, is coupled with an
interest, and shall be irrevocable until the duty is performed.
3. MM will not grant any proxy or enter into or agree to be bound by any
voting trust with respect to the shares held by MM or with respect to which MM
has voting or
dispositive authority nor shall MM enter into any stockholder agreements or
arrangements of any kind with any person with respect to their shares
inconsistent with the provisions of this Agreement. MM will not act, for any
reason, as a member of a group or in concert with any other persons in
connection with the acquisition, disposition or voting of shares of the
Company's capital stock in any manner which is inconsistent with the provisions
of this Agreement.
4. The Company confirms that the restrictions contained in this Agreement
are similar to restrictions on voting of Common Stock the Company has agreed to
with Xx. Xxxxxxx Xxxxxxx. The Company also confirms that the shares of Common
Stock to be acquired by MM in the future upon exercise of any options to
purchase shares of Common Stock of the Company held by him shall be subject to
the same rights, preferences, privileges and restrictions as other shares of
Common Stock of the Company held by stockholders of the Company, but not such
rights, preferences and privileges attributable to shares of Common Stock by
virtue of such shares being issuable upon conversion of shares of Preferred
Stock.
5. This Agreement shall terminate upon the consummation of a firm
commitment underwritten public offering by the Company of shares of its Common
Stock pursuant to a registration statement on Form S-1 under the Securities Act
of 1933, as amended pursuant to which all outstanding shares of Preferred Stock
of the Company are converted into Common Stock. Notwithstanding the foregoing,
any lock-up or market standoff provisions set forth in any agreements
representing shares of capital stock of the Company or rights to purchase
capital stock of the Company held by Xx. Xxxxxxx shall continue for the period
set forth in such agreements.
6. MISCELLANEOUS.
6.1 ENTIRE AGREEMENT. This Agreement, constitutes and contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof, and any and all other written or oral agreements,
prior negotiations, correspondence, understandings, duties or obligations
between the parties relating to the subject matter hereof are hereby expressly
canceled and superseded by this Agreement.
6.2 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties and to any successors in interest of the
shares of capital stock held by MM. MM agrees not to transfer any shares of
capital stock of the Company unless and until the person to whom such security
is to be transferred shall have executed a written agreement, substantially in
the form of this Agreement, pursuant to which such person becomes a party to
this Agreement and agrees to be bound by all the provisions hereof. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
6.3 AMENDMENTS AND WAIVERS. Any term hereof may be amended or waived
only with the written consent of the Company and MM. Any amendment or waiver
effected in
-2-
accordance with this Section 6.3 shall be binding upon the Company, MM, and each
of their respective successors and assigns.
6.4 NOTICES. Unless otherwise provided herein, any notice required
or permitted under this Agreement shall be given in writing and shall be deemed
effectively given (a) upon personal delivery to the party to be notified, (b)
one (1) business day after delivery by confirmed facsimile transmission, (c) one
(1) business day after the business day of deposit with a nationally recognized
overnight courier service for next day delivery, freight prepaid, or (d) three
(3) business days after deposit with the United States Post Office for delivery
by registered or certified mail, postage prepaid. Any such notice shall be
addressed to the party to be notified at the address indicated for such party
indicated on the signature pages, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
6.5 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
6.6 GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the corporate laws of the State of Delaware and, as
to matters other than corporate law, the laws of the State of California as such
laws apply to contracts entered into and wholly to be performed therein by
residents of such state. Each of the parties hereto irrevocably consents to the
exclusive jurisdiction and venue of any federal or state court within the
Northern District of California in connection with any matter based upon or
arising out of this Agreement or the matters contemplated herein (whether based
on breach of contract, tort, breach of duty or any other theory), agrees that
process may be served upon it in any manner authorized by the laws of the State
of California for such persons and waives and covenants not to assert or plead
any objection that they might otherwise have to jurisdiction, venue and such
process. Each party agrees not to commence any legal proceedings based upon or
arising out of this Agreement or the matters contemplated herein (whether based
on breach of contract, tort, breach of duty or any other theory) except in such
courts.
6.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
6.8 COSTS AND ATTORNEYS' FEES. In the event that any action, suit or
other proceeding is instituted based upon or arising out of this Agreement or
the matters contemplated herein or any other matter relating to the equity
interests of MM in the Company (whether based on breach of contract, tort,
breach of duty or any other theory), the prevailing party shall recover all of
such party's costs (including, but not limited to expert witness costs) and
reasonable attorneys' fees incurred in each such action, suit or other
proceeding, including any and all appeals or petitions therefrom.
[Signature Page Follows]
-3-
The parties hereto have executed this Voting Agreement as of the date first
written above.
COMPANY:
MICRUS CORPORATION
By:/s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
Chairman of the
Board of Directors
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax number: (000) 000-0000
/s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx
Address: Xxxxxxxx 0
XX-0000 Xxxxxx,
Xxxxxxxxxxx
Fax Number: xx00 00 000 00 00
-1-
