Exhibit 10.1
CONCEPTUS, INC.
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
On August 11, 2004, Mark M.
Sieczarek (“Executive”) and Conceptus, Inc., a
Delaware corporation (the “Company”) entered into an
Employment Agreement (the “Prior Agreement”). The
Company and Executive wish to amend and restate the Prior Agreement
in its entirety, effective as of this 24 th day of Dec, 2008, pursuant to the terms
and conditions set forth in this Amended and Restated Employment
Agreement (the “Agreement”). Certain capitalized
terms used in this Agreement are defined in Section 7
below.
RECITALS
WHEREAS, the Board of Directors of the Company believes
that it is in the best interests of the Company and its
stockholders to provide Executive with an incentive to continue his
employment with the Company and to motivate Executive to maximize
the value of the Company in the event of a Change of Control for
the benefit of its stockholders; and
WHEREAS, the Company and Executive intend that the Prior
Agreement be superseded in all respects by this
Agreement.
AGREEMENT
NOW, THEREFORE,
in consideration of the mutual
promises and agreements contained herein, the parties hereby agree
as follows:
1.
Term of
Agreement . The
original effective date of the Prior Agreement was August 11,
2004 and the Prior Agreement had an initial term of three
(3) years (such period, including any extensions pursuant to
this Section 1, the “ Term ”).
Executive’s employment term was automatically renewed for
one-year periods as of August 11, 2007 and August 11,
2008, and this Agreement shall continue to be automatically
renewable for one-year periods on each August 11 thereafter,
unless otherwise terminated pursuant to Section 5. This
Agreement may be terminated by either party, with or without cause,
at the end of the then-current Term with six (6) months’
advance written notice to the other party.
2.
Duties
.
(a)
Position
. Executive shall be employed as President and
Chief Executive Officer of the Company. In such capacity he
shall have overall responsibility for the management of the Company
and report to and be subject to the direction and control of the
Company’s Board of Directors. So long as Executive
remains the Chief Executive Officer of the Company, and subject to
the fiduciary duties of the Board of Directors as directors of the
Company, Executive will be nominated to, and if elected by the
stockholders of the Company, be a member of, the Company’s
Board of Directors.
(b)
Obligations to the
Company . Executive agrees to the best of his ability and
experience that he will at all times loyally and conscientiously
perform all of the duties and obligations required of and from
Executive pursuant to the express and implicit terms hereof, and to
the reasonable satisfaction of the Company. During the term
of Executive’s employment relationship with the Company,
Executive further agrees that he will devote all of his business
time and attention to the business of the Company, Executive will
not render commercial or professional services of any nature to any
person or organization, whether or not for compensation, without
the prior written consent of the Company’s Board of
Directors, and Executive will not directly or indirectly engage or
participate in any business that is competitive in any manner with
the business of the Company. Nothing in this Agreement will
prevent Executive from accepting speaking or presentation
engagements in exchange for honoraria or from serving on boards of
charitable organizations, or from owning no more than 1% of the
outstanding equity securities of a corporation whose stock is
listed on a national stock exchange. Executive will comply
with and be bound by the Company’s operating policies,
procedures and practices from time to time in effect during the
term of Executive’s employment.
3.
At-Will
Employment .
The Company and Executive acknowledge that Executive’s
employment is and shall continue to be at-will, as defined under
applicable law, and that Executive’s employment with the
Company may be terminated by either party at any time for any or no
reason. If Executive’s employment terminates for any
reason, Executive shall not be entitled to any payments, benefits,
damages, award or compensation other than as provided in this
Agreement. The rights and duties created by this
Section 3 may not be modified in any way except by a written
agreement executed by the Board of Directors of the Company and
Executive.
4.
Compensation
. For the duties and services
to be performed by Executive hereunder, the Company shall pay
Executive, and Executive agrees to accept, the salary, stock
options, bonuses and other benefits described below in this
Section 4.
(a)
Salary
. Executive shall receive an
annual salary of $408,000 (the “ Base Salary
”). Executive’s Base Salary will be payable
biweekly pursuant to the Company’s normal payroll
practices. The Base Salary shall be reviewed annually by the
Company’s Board of Directors or its Compensation Committee,
and adjusted as necessary following such review, and any increase
will be effective as of the date determined appropriate by the
Board of Directors or its Compensation Committee and will
thereafter be deemed a part of Base Salary for purposes of Sections
6(a) and 6(b) of this Agreement.
(b)
Bonuses
.
(i)
Annual “Target”
Bonus . In
addition to the Base Salary, for each fiscal year ending during the
Term, Executive shall have the opportunity to earn an annual
performance bonus (the “ Annual Target Bonus ”)
in an amount up to 100% of Executive’s Base Salary, 75% of
which will be cash and 25% of which will be an equity component,
which may include stock options and restricted stock.
The exact amount and composition of the Annual Bonus will be
determined by the Board of Directors or its Compensation Committee
in consultation with Executive, based upon mutually agreed
performance objectives, both personal and corporate.
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(ii)
Additional Annual Incentive
Bonus . In
addition to the Annual Bonus, Executive will be eligible for an
additional incentive bonus of up to an additional 50% of
Executive’s Base Salary in the event of Company performance a
certain amount above such performance objectives, which will be
determined by the Board of Directors or its Compensation Committee
in consultation with the Executive, based upon mutually agreed
performance objectives and may be cash, stock options or restricted
stock, or some combination.
(c)
Option Acceleration Upon a
Change of Control . Subject to any additional acceleration
of exercisability described in Section 6(a) below, upon a
Change of Control (as defined in Section 7 below), the vesting
and exercisability of each stock option, stock appreciation right,
restricted stock award, restricted stock unit award or other
equity-based award with respect to the Company’s securities
held by Executive (collectively the “ Equity Awards
”) shall be automatically accelerated as to 100% of the
then-unvested shares subject thereto at the time of the Change of
Control. The exercisability of each Equity Award which is a
stock option or stock appreciation right shall be extended to a
total of twelve (12) months from the date of such Change of Control
(but in no event later than the date on which the right to exercise
the Equity Award would have expired had Executive continued to be
employed by the Company for the full term of such Equity
Award). The foregoing provision is hereby deemed to be a part
of each such Equity Award and to supersede any contrary provision
in any agreement relating thereto.
(d)
Additional
Benefits . Executive
shall be eligible to participate in the Company’s employee
benefit plans of general application, including without limitation,
those plans covering medical, disability and life insurance in
accordance with the rules established for individual
participation in any such plan and under applicable law.
Executive shall be eligible for vacation and sick leave in
accordance with the policies in effect during the Term of this
Agreement and will receive such other benefits as the Company
generally provides to its other employees of comparable position
and experience. In addition, the Company shall provide
Executive, at the Company’s expense, with an annual physical
examination, with Executive’s agreement that the doctor
performing such examination shall provide a copy of the examination
report to the Compensation Committee of the Board of
Directors.
(e)
Reimbursement of
Expenses . Executive shall be authorized to incur on
behalf and for the benefit of, and shall be reimbursed by, the
Company for reasonable expenses, provided that such expenses are
substantiated in accordance with Company policies.
5.
Termination of
Agreement . This
Agreement may be terminated during its Term upon the occurrence of
any of the following events:
(i)
The Company’s termination of
Executive for Cause (as defined in Section 7 below) (“
Termination for Cause ”);
(ii)
The Company’s termination of
Executive without Cause (as defined in Section 7 below), which
determination may be made by the Company at any time at the
Company’s sole discretion, for any or no reason (“
Termination Without Cause ”);
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(iii)
The effective date of a written
notice sent to the Company from Executive stating that Executive is
electing to terminate his employment with the Company (“
Voluntary Termination ”); or
(iv)
Executive’s death or
Disability (as defined in Section 7 below).
6.
Severance
Benefits . Executive shall be entitled to receive severance
benefits upon termination of employment only as set forth in this
Section 6:
(a)
Termination Following a Change
of Control .
(i)
Involuntary
Termination .
If Executive’s employment with the Company is terminated at
any time within twenty-four (24) months after a Change of Control
as a result of an Involuntary Termination, then Executive shall be
entitled to receive the following severance and other
benefits:
(A)
Severance Pay
. During the Continuation
Period, Executive shall be entitled to receive as severance an
amount equal to the sum of (i) Executive’s Current
Compensation that would otherwise have been payable during the
Continuation Period if Executive’s service had not been
terminated, plus (ii) an amount equal to fifty percent (50%)
of Executive’s Base Salary for the fiscal year in which the
termination occurs multiplied by three. Such severance
payments will be made periodically in the same amounts and at the
same intervals as the Base Salary were paid immediately prior to
termination of employment . In addition, during the
Continuation Period, the Company shall continue to make available
to Executive and Executive’s spouse and dependents any group
health plans, life insurance plans and other benefit plans and
programs of the Company on the date of such termination of
employment, to the extent permitted by law and subject to the terms
and conditions of the relevant plan or program. For purposes of
this Section 6(a)(i)(A), benefits will not include future
participation in any discretionary bonus or equity incentive pool,
other than amounts as contemplated in this subsection A.
(B)
Medical
Benefits .
Executive may elect coverage for, and the Company shall reimburse
Executive for, the amount of his premium payments, for group health
coverage, if any, elected by the Executive pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“ COBRA ”); provided , however ,
that (1) such reimbursement shall not exceed $650.00 per
month, and (2) Executive shall be solely responsible for all
matters relating to his continuation of coverage pursuant to COBRA,
including (without limitation) his election of such coverage and
his timely payment of premiums; provided , further ,
that (3) upon the earlier to occur of (x) the time that
Executive no longer constitutes a Qualified Beneficiary (as such
term is defined in Section 4980(B)(g)(1) of the Code) and
(y) the date thirty-six (36) months following
Executive’s termination, the Company’s obligations to
reimburse Executive under this subsection (B) shall cease;
provided , further , that if the Company’s
obligations under this subsection (B) cease pursuant to clause
(3)(x), the Company shall make a lump sum payment to Executive, on
the date eighteen (18) months following Executive’s
termination, equal to the product of the last monthly reimbursement
paid to Executive pursuant to this subsection (B) multiplied
by eighteen (18).
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(C)
Outplacement
Services .
Executive shall be entitled to outplacement services at the
Company’s expense, the actual cost of which is not to exceed
$15,000, provided that such outplacement benefits shall end not
later than the last day of the second calendar year that begins
after the date of Executive’s termination of employment.
Such services shall be provided by a firm selected by
Executive from a list compiled by the Company.
(ii)
Voluntary Termination;
Termination For Cause . If Executive’s employment with the
Company is terminated at any time within twenty-four (24) months
after a Change of Control as a result of a Voluntary Termination or
Termination for Cause, then Executive shall not be entitled to
receive payment of any severance benefits. Executive will
receive payment(s) for all salary and unpaid vacation accrued
as of the date of Executive’s termination of employment and
Executive’s benefits will be continued under the
Company’s then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of
termination and in accordance with applicable law.
(b)
Termination Apart from a
Change of Control .
(i)
Involuntary
Termination . If
Executive’s employment with the Company terminates at any
time prior to the occurrence of a Change of Control or after the
24-month period following the effective date of a Change of Control
as a result of an Involuntary Termination, Executive will be
entitled to receive the following severance and other
benefits:
(A)
Severance Pay
. The Company shall pay to
Executive in an amount equal to (i) Executive’s Current
Compensation (on a monthly basis) multiplied by eighteen (18), plus
(ii) an amount equal to the cash portion of Executive’s
Annual Target Bonus for the fiscal year in which the termination
occurs (with it deemed that all performance goals have been met at
100% of budget or Plan) multiplied by one hundred fifty percent
(150%). Such severance payment shall be paid in one lump sum thirty
(30) days following the date of Executive’s Involuntary
Termination. In addition, for a period of eighteen (18) months
following Executive’s termination pursuant to this
Section 6(b)(i)(A), the Company shall continue to make
available to Executive and Executive’s spouse and dependents
any group health plans, life insurance plans and other benefit
plans and programs of the Company on the date of such termination
of employment, to the extent permitted by law and subject to the
terms and conditions of the relevant plan or program. For purposes
of this Section 6(b)(i)(A), benefits will not include future
participation in any discretionary bonus or equity
incent
