**Exhibit10.1**

** **

**CONCEPTUS,INC.**

 

**AMENDEDAND RESTATED EMPLOYMENT AGREEMENT**

 

On August 11, 2004,Mark M. Sieczarek (“Executive”) and Conceptus, Inc., a Delawarecorporation (the “Company”) entered into an Employment Agreement (the “PriorAgreement”).  The Company and Executivewish to amend and restate the Prior Agreement in its entirety, effective as ofthis 24th day of Dec, 2008, pursuant to the terms andconditions set forth in this Amended and Restated Employment Agreement (the “Agreement”).  Certain capitalized terms used in thisAgreement are defined in Section 7 below.

 

**RECITALS**

 

**WHEREAS,**the Board of Directors of the Companybelieves that it is in the best interests of the Company and its stockholdersto provide Executive with an incentive to continue his employment with theCompany and to motivate Executive to maximize the value of the Company in theevent of a Change of Control for the benefit of its stockholders; and

 

**WHEREAS,** the Company and Executive intend thatthe Prior Agreement be superseded in all respects by this Agreement.

 

**AGREEMENT**

 

**NOW,THEREFORE,** inconsideration of the mutual promises and agreements contained herein, theparties 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 (suchperiod, including any extensions pursuant to this Section 1, the “Term”).  Executive’s employment term was automaticallyrenewed for one-year periods as of August 11, 2007 and August 11,2008, and this Agreement shall continue to be automatically renewable forone-year periods on each August 11 thereafter, unless otherwise terminatedpursuant to Section 5.  ThisAgreement may be terminated by either party, with or without cause, at the endof the then-current Term with six (6) months’ advance written notice tothe other party.

 

2.                                       **Duties**.

 

(a)                                  **Position****. **Executiveshall be employed as President and Chief Executive Officer of the Company.  In such capacity he shall have overall responsibilityfor the management of the Company and report to and be subject to the directionand control of the Company’s Board of Directors.  So long as Executive remains the ChiefExecutive Officer of the Company, and subject to the fiduciary duties of theBoard 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’sBoard of Directors.

 

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(b)                                 **Obligations to the Company****. **Executiveagrees to the best of his ability and experience that he will at all timesloyally and conscientiously perform all of the duties and obligations requiredof and from Executive pursuant to the express and implicit terms hereof, and tothe 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 andattention to the business of the Company, Executive will not render commercialor professional services of any nature to any person or organization, whetheror not for compensation, without the prior written consent of the Company’sBoard of Directors, and Executive will not directly or indirectly engage orparticipate in any business that is competitive in any manner with the businessof the Company.  Nothing in thisAgreement will prevent Executive from accepting speaking or presentationengagements in exchange for honoraria or from serving on boards of charitableorganizations, or from owning no more than 1% of the outstanding equitysecurities of a corporation whose stock is listed on a national stockexchange.  Executive will comply with andbe bound by the Company’s operating policies, procedures and practices fromtime 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 andshall continue to be at-will, as defined under applicable law, and thatExecutive’s employment with the Company may be terminated by either party atany time for any or no reason.  IfExecutive’s employment terminates for any reason, Executive shall not beentitled to any payments, benefits, damages, award or compensation other thanas provided in this Agreement.  Therights and duties created by this Section 3 may not be modified in any wayexcept by a written agreement executed by the Board of Directors of the Companyand Executive.

 

4.                                       **Compensation**. For the duties and services to be performed by Executive hereunder, theCompany shall pay Executive, and Executive agrees to accept, the salary, stockoptions, 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’sBase Salary will be payable biweekly pursuant to the Company’s normal payrollpractices.  The Base Salary shall bereviewed annually by the Company’s Board of Directors or its CompensationCommittee, and adjusted as necessary following such review, and any increasewill be effective as of the date determined appropriate by the Board ofDirectors or its Compensation Committee and will thereafter be deemed a part ofBase 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 theTerm, Executive shall have the opportunity to earn an annual performance bonus(the “Annual Target Bonus”) in an amount up to 100% of Executive’s BaseSalary, 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 compositionof the Annual Bonus will be determined by the Board of Directors or itsCompensation Committee in consultation with Executive, based upon mutuallyagreed performance objectives, both personal and corporate.

 

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(ii)                                  **Additional AnnualIncentive Bonus**.  In addition to the Annual Bonus, Executivewill 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 amountabove such performance objectives, which will be determined by the Board ofDirectors or its Compensation Committee in consultation with the Executive,based upon mutually agreed performance objectives and may be cash, stockoptions or restricted stock, or some combination.

 

(c)                                  **Option Acceleration Upon aChange of Control**.  Subject to any additionalacceleration of exercisability described in Section 6(a) below, upona Change of Control (as defined in Section 7 below), the vesting andexercisability of each stock option, stock appreciation right, restricted stockaward, restricted stock unit award or other equity-based award with respect tothe Company’s securities held by Executive (collectively the “Equity Awards”)shall be automatically accelerated as to 100% of the then-unvested sharessubject thereto at the time of the Change of Control.  The exercisability of each Equity Award whichis a stock option or stock appreciation right shall be extended to a total oftwelve (12) months from the date of such Change of Control (but in no eventlater than the date on which the right to exercise the Equity Award would haveexpired had Executive continued to be employed by the Company for the full termof such Equity Award).  The foregoingprovision is hereby deemed to be a part of each such Equity Award and tosupersede any contrary provision in any agreement relating thereto.

 

(d)                                 **Additional Benefits**. Executive shall be eligible toparticipate in the Company’s employee benefit plans of general application,including without limitation, those plans covering medical, disability and lifeinsurance in accordance with the rules established for individualparticipation in any such plan and under applicable law.  Executive shall be eligible for vacation andsick leave in accordance with the policies in effect during the Term of thisAgreement and will receive such other benefits as the Company generally providesto its other employees of comparable position and experience.  In addition, the Company shall provideExecutive, at the Company’s expense, with an annual physical examination, withExecutive’s agreement that the doctor performing such examination shall providea copy of the examination report to the Compensation Committee of the Board ofDirectors.

 

(e)                                  **Reimbursement of Expenses****.**  Executiveshall be authorized to incur on behalf and for the benefit of, and shall bereimbursed by, the Company for reasonable expenses, provided that such expensesare substantiated in accordance with Company policies.

 

5.                                       **Termination of Agreement**. This Agreement may be terminated duringits Term upon the occurrence of any of the following events:

 

(i)                                     The Company’s termination of Executivefor Cause (as defined in Section 7 below) (“Termination for Cause”);

 

(ii)                                  The Company’s termination of Executivewithout Cause (as defined in Section 7 below), which determination may bemade by the Company at any time at the Company’s sole discretion, for any or noreason (“Termination Without Cause”);

 

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(iii)                               The effective date of a written noticesent to the Company from Executive stating that Executive is electing toterminate his employment with the Company (“Voluntary Termination”); or

 

(iv)                              Executive’s death or Disability (asdefined in Section 7 below).

 

6.                                       **Severance Benefits****. **Executiveshall be entitled to receive severance benefits upon termination of employmentonly as set forth in this Section 6:

 

(a)                                  **Termination Following aChange of Control**.

 

(i)                                     **Involuntary Termination**. If Executive’s employment with the Company is terminated at any timewithin twenty-four (24) months after a Change of Control as a result of anInvoluntary Termination, then Executive shall be entitled to receive thefollowing severance and other benefits:

 

(A)                              **Severance Pay**. During the Continuation Period, Executive shall be entitled to receiveas severance an amount equal to the sum of (i) Executive’s CurrentCompensation that would otherwise have been payable during the ContinuationPeriod if Executive’s service had not been terminated, plus (ii) an amountequal to fifty percent (50%) of Executive’s Base Salary for the fiscal year inwhich the termination occurs multiplied by three.  Such severance payments will be madeperiodically in the same amounts and at the same intervals as the Base Salarywere paid immediately prior to termination of employment*.*In addition, during the Continuation Period, the Company shall continue to makeavailable to Executive and Executive’s spouse and dependents any group healthplans, life insurance plans and other benefit plans and programs of the Companyon the date of such termination of employment, to the extent permitted by lawand subject to the terms and conditions of the relevant plan or program. Forpurposes of this Section 6(a)(i)(A), benefits will not include futureparticipation in any discretionary bonus or equity incentive pool, other thanamounts as contemplated in this subsection A.

 

(B)                                **Medical Benefits**. Executive may elect coverage for, and the Company shall reimburseExecutive for, the amount of his premium payments, for group health coverage,if any, elected by the Executive pursuant to the Consolidated Omnibus BudgetReconciliation Act of 1985, as amended (“COBRA”); provided, however,that (1) such reimbursement shall not exceed $650.00 per month, and (2) Executiveshall be solely responsible for all matters relating to his continuation ofcoverage pursuant to COBRA, including (without limitation) his election of suchcoverage and his timely payment of premiums; provided, further,that (3) upon the earlier to occur of (x) the time that Executive nolonger constitutes a Qualified Beneficiary (as such term is defined in Section 4980(B)(g)(1) ofthe Code) and (y) the date thirty-six (36) months following Executive’stermination, the Company’s obligations to reimburse Executive under thissubsection (B) shall cease; provided, further, that if theCompany’s obligations under this subsection (B) cease pursuant to clause(3)(x), the Company shall make a lump sum payment to Executive, on the dateeighteen (18) months following Executive’s termination, equal to the product ofthe last monthly reimbursement paid to Executive pursuant to this subsection (B) multipliedby eighteen (18).

 

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(C)                                **Outplacement Services**. Executive shall be entitled to outplacement services at the Company’sexpense, the actual cost of which is not to exceed $15,000, provided that suchoutplacement benefits shall end not later than the last day of the secondcalendar year that begins after the date of Executive’s termination ofemployment. ** **Suchservices shall be provided by a firm selected by Executive from a list compiledby the Company.

 

(ii)                                  **Voluntary Termination;Termination For Cause**. If Executive’s employment with the Company is terminated at any timewithin twenty-four (24) months after a Change of Control as a result of aVoluntary Termination or Termination for Cause, then Executive shall not beentitled to receive payment of any severance benefits.  Executive will receive payment(s) forall salary and unpaid vacation accrued as of the date of Executive’stermination of employment and Executive’s benefits will be continued under theCompany’s then existing benefit plans and policies in accordance with suchplans and policies in effect on the date of termination and in accordance withapplicable law.

 

(b)                                 **Termination Apart from aChange of Control**.

 

(i)                                     **Involuntary Termination**. If Executive’s employment with theCompany terminates at any time prior to the occurrence of a Change of Controlor after the 24-month period following the effective date of a Change ofControl as a result of an Involuntary Termination, Executive will be entitledto receive the following severance and other benefits:

 

(A)                              **Severance Pay**. The Company shall pay to Executive in an amount equal to (i) Executive’sCurrent Compensation (on a monthly basis) multiplied by eighteen (18), plus (ii) anamount equal to the cash portion of Executive’s Annual Target Bonus for thefiscal year in which the termination occurs (with it deemed that allperformance goals have been met at 100% of budget or Plan) multiplied by onehundred fifty percent (150%). Such severance payment shall be paid in one lumpsum thirty (30) days following the date of Executive’s Involuntary Termination.In addition, for a period of eighteen (18) months following Executive’stermination pursuant to this Section 6(b)(i)(A), the Company shallcontinue to make available to Executive and Executive’s spouse and dependentsany group health plans, life insurance plans and other benefit plans andprograms of the Company on the date of such termination of employment, to theextent permitted by law and subject to the terms and conditions of the relevantplan or program. For purposes of this Section 6(b)(i)(A), benefits willnot include future participation in any discretionary bonus or equity incentivepool, other than continuation of amounts as contemplated in this subsection A.

 

(B)                                **Medical Benefits**. Executive may elect coverage for, andthe Company shall reimburse Executive for, the amount of his premium payments,for group health coverage, if any, elected by Executive pursuant to COBRA; provided,however, that (1) such reimbursement shall not exceed $650.00 permonth, and (2) Executive shall be solely responsible for all mattersrelating to his continuation of coverage pursuant to COBRA, including (withoutlimitation) his election of such coverage and his timely payment of premiums; provided,further, that (3) upon the earlier to occur of (x) the timethat Executive no longer constitutes a Qualified Beneficiary (as such term isdefined in Section 4980(B)(g)(1) of the Code) and (y) the dateeighteen (18) months following Executive’s termination, the Company’sobligations to reimburse Executive under this subsection (B) shall cease.

 

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(C)                                **Outplacement Services**. For a period of eighteen (18) months following Executive’s terminationpursuant to this Section 6(b)(i)(A), Executive shall be entitled tooutplacement services at the Company’s expense, the actual cost of which is notto exceed $15,000. ** **Such services shall be provided bya firm selected by Executive from a list compiled by the Company.

 

(D)                               **Equity Award Acceleration**. The vesting and exercisability of each Equity Award shall beautomatically accelerated as to the amount of the unvested shares subjectthereto at the time of the Involuntary Termination which would have vested hadthe Executive remained employed by the Company for eighteen (18) monthsfollowing the date of such Involuntary Termination. The foregoing provision ishereby deemed to be a part of each agreement evidencing an Equity Award and tosupersede any contrary provision in any agreement relating thereto.

 

(ii)                                  **Voluntary Termination;Termination for Cause**. If Executive’s employment with the Company is terminated at any timeprior to a Change of Control or after the 24-month period following theeffective date of a Change of Control as a result of a Voluntary Termination(other than an Involuntary Termination, in which case Section 6(b)(i) willapply) or a Termination for Cause, then Executive shall not be entitled toreceive payment of any severance or other benefits described in this Section 6.  Executive will receive payment(s) forall salary and unpaid vacation accrued as of the date of Executive’stermination of employment and Executive’s benefits will be continued under theCompany’s then existing benefit plans and policies in accordance with suchplans and policies in effect on the date of termination and in accordance withapplicable law.

 

7.**                                      ****Definition of****Terms**. The following terms referred to in this Agreement shall have thefollowing meanings:

 

(a)                                  “Cause” shall mean:

 

#### (i)                                     gross negligence or willful misconduct inthe performance of Executive’s duties to the Company where such grossnegligence or willful misconduct has resulted or is likely to result insubstantial and material damage to the Company or its subsidiaries,

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#### (ii)                                  Executive’s repeated unexplained orunjustified absence from the Company,

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#### (iii)                               Executive’s material and willfulviolation of any federal or state law,

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#### (iv)                              Executive’s commission of any act offraud with respect to the Company, or

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#### (v)                                 conviction of a felony or a crimeinvolving moral turpitude causing material harm to the standing and reputationof the Company, in each case as determined in good faith by the Board ofDirectors of the Company.

 

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(b)                                 “Change of Control” shall mean theoccurrence of any of the following events:

 

(i)                                     any “Person” (as such term is used inSections 13(d) and 14(d) of the Securities Exchange Act of 1934, asamended) is or becomes the “Beneficial Owner” (as defined in Rule 13d-3under said Act), directly or indirectly, of securities of the Companyrepresenting forty percent (40%) or more of the total voting power representedby the Company’s then outstanding voting securities; or

 

(ii)                                  a merger or consolidation of the Companywhether or not approved by the Board of Directors of the Company, other than amerger or consolidation which would result in the voting securities of theCompany outstanding immediately prior thereto continuing to represent (eitherby remaining outstanding or by being converted into voting securities of thesurviving entity) at least fifty percent (50%) of the total voting powerrepresented by the voting securities of the Company or such surviving entityoutstanding immediately after such merger or consolidation, or the stockholdersof the Company approve a plan of complete liquidation of the Company or anagreement for the sale or disposition by the Company of all or substantially allof the Company’s assets; or

 

(iii)                               a change in the composition of the Boardof Directors of the Company, as a result of which fewer than a majority of thedirectors are Incumbent Directors.  “IncumbentDirectors” shall mean directors who either (A) are directors of theCompany as of the date of Executive’s hire or (B) are elected, ornominated for election, to the Board of Directors of the Company with theaffirmative votes of at least a majority of those Incumbent Directors at thetime of such election or nomination (but shall not include an individual whoseelection or nomination is in connection with an actual or threatened proxycontest relating to the election of directors to the Company).

 

(c)                                  “Code” shall mean the InternalRevenue Code of 1986, as amended.

 

(d)                                 “Continuation Period” shall mean,in the event of an Involuntary Termination within twenty-four (24) months aftera Change of Control, the period of time commencing with termination ofExecutive’s employment in an Involuntary Termination during the Term of thisAgreement and ending with the expiration of thirty-six (36)****monthsfollowing the date of Executive’s termination.

 

(e)                                  “Current Compensation” shall meanan amount equal to Executive’s Base Salary for the fiscal year of Executive’stermination.

 

(f)                                    “Disability” shall mean thatExecutive has been unable to perform his duties under this Agreement as aresult of his incapacity due to physical or mental illness, and such inability,at least twenty-six (26) weeks after its commencement, is determined to betotal and permanent by a physician selected by the Company or its insurers andacceptable to Executive or Executive’s legal representative (such Agreement asto acceptability not to be unreasonably withheld).  Termination resulting from Disability mayonly be effected after at least thirty (30) days’ prior written notice by theCompany of its intention to terminate 

 

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Executive’semployment.  In the event that Executiveresumes the performance of substantially all of his duties hereunder before thetermination of his employment become effective, the notice of intent toterminate shall automatically be deemed to have been revoked.

 

(g)                                 “Involuntary Termination” shallmean either of the following which constitutes a Separation from Service:

 

(i)                               any termination by the Company (otherthan for Cause), or

 

(ii)                            Executive’s voluntary termination, uponthirty (30) days’ prior written notice to the Company, following (A) anyreduction of Executive’s Base Salary (other than in connection with similardecreases of other similarly situated employees of the Company); (B) anymaterial diminution in Executive’s title, perquisite, benefits or terms andconditions of employment; providedhowever, that if following a Change ofControl, the Company becomes a division of or, a business unit of anothercorporation or other business entity and the Executive remains the ChiefExecutive Officer of the division or business unit comprised of the Company,such a change of the Executive’s title or terms and conditions of employmentwhich would reflect these circumstances shall not be deemed to be a materialdiminution which would give rise, in and of itself, to Executive’s InvoluntaryTermination; or (C) Executive’s refusal to relocate to a location morethan fifty (50) miles from the Company’s current location.

 

(h)                                 “Separation from Service” shallmean a separation from service within the meaning of Section 409A of theCode and the regulations promulgated thereunder, including Treasury Regulation Section 1.409A-1(h).

 

8.                                       **Golden Parachute ExciseTax**.  Notwithstanding anything contained in thisAgreement to the contrary, in the event that the benefits provided for in thisAgreement to Executive together with all other payments and the value of anybenefit received or to be received by Executive:

 

(a)                                  constitute “parachute payments” withinthe meaning of Section 280G of the Code, and

 

(b)                                 but for this Section, would be subject tothe excise tax imposed by Section 4999 of the Code, then Executive’sbenefits pursuant to the terms of this Agreement shall be payable either:

 

(i)                                     in full, or

 

(ii)                                  as to such lesser amount which wouldresult in no portion of such benefits being subject to excise tax under Section 4999of the Code, whichever of the foregoing amounts, taking into account theapplicable federal, state and local income taxes and the excise tax imposed by Section 4999,results in the receipt by Executive on an after-tax basis, of the greatestamount of benefits under this Agreement, notwithstanding that all or someportion of such benefits may be subject to the excise tax imposed under Section 4999of the Code.  Unless the Company andExecutive otherwise agree in writing, any determination required under this Section 8shall be made in writing by the Company’s independent public accountantsserving immediately before the Hostile Takeover or Change of Control (the “Accountants”),whose 

 

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determination shall be conclusive and binding uponExecutive and the Company for all purposes. For purposes of making the calculations required by this Section 8,the Accountants may make reasonable assumptions and approximations concerningapplicable taxes and may rely on reasonable, good faith interpretationsconcerning the application of Sections 280G and 4999 of the Code.  The Company shall cause the Accountants toprovide detailed supporting calculations of its determinations to Executive andthe Company.  Executive and the Companyshall furnish to the Accountants such information and documents as theAccountants may reasonably request in order to make a determination under thisSection.  The Company shall bear allcosts the Accountants may reasonably incur in connection with any calculationscontemplated by this Section 8.

 

9.                                       **Section 409A**.

 

(a)                                  Notwithstanding any provision to thecontrary in the Agreement, if Executive is deemed by the Company at the time ofhis Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) ofthe Code, to the extent delayed commencement of any portion of the terminationbenefits to which Executive is entitled under this Agreement is required inorder to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) ofthe Code, such portion of Executive’s termination benefits shall not beprovided to Executive prior to the earlier of (i) the expiration of thesix-month period measured from the date of the Executive’s Separation fromService with the Company or (ii) the date of Executive’s death.  Upon the first business day following theexpiration of the applicable Code Section 409A(a)(2)(B)(i) deferralperiod, all payments deferred pursuant to this Section shall be paid in alump sum to Executive (or Executive’s estate or beneficiaries), and anyremaining payments due under the Agreement shall be paid as otherwise providedherein.

 

(b)                                 For purposes of Section 409A of theCode (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)),Executive’s right to receive the compensation payments payable pursuant to thisAgreement (the “Installment Payments”) shall be treated as a right toreceive a series of separate payments and, accordingly, each InstallmentPayment shall at all times be considered a separate and distinct payment.

 

(c)                                  To the extent that any reimbursementspayable pursuant to this Agreement are deemed deferred compensation subject tothe provisions of Section 409A of the Code,  (i) any such reimbursements shall bepaid to the Executive no later than December 31 of the year following theyear in which the cost was incurred, (ii) the amount of expensesreimbursed in one year shall not affect the amount eligible for reimbursementin any subsequent year, and (iii) Executive’s right to reimbursement underthis Agreement will not be subject to liquidation or exchange for anotherbenefit.

 

10.                                 **Confidentiality Agreement**. Executive has signed an Employment, Proprietary Information andInvention Assignment Agreement in the form attached as Exhibit A tothe Prior Agreement that covers protection of the Company’s proprietaryinformation and assignment of inventions (the “Confidentiality Agreement”).  Executive hereby represents and warrants tothe Company that he has complied with all obligations under the ConfidentialityAgreement and agrees to continue to abide by the terms of the ConfidentialityAgreement and further agrees that 

 

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the provisions of the Confidentiality Agreement shall survive anytermination of this Agreement or of Executive’s employment relationship withthe Company.

 

11.                                 **Noncompetition Covenant****. **Executivehereby agrees that he shall not, during the Term of this Agreement and theContinuation Period, if applicable, without the prior written consent of theCompany’s Board of Directors, carry on any business or activity (whetherdirectly or indirectly, as a partner, shareholder, principal, agent, director,affiliate, employee or consultant) which is competitive with the business conductedby the Company (as conducted now or during the Term of this Agreement), norengage in any other activities that conflict with Executive’s obligations tothe Company.

 

12.                                 **Nonsolicitation Covenant**. Executive hereby agrees that he shall not, during the Term of thisAgreement and for twelve (12) months after the end of the Continuation Period,if applicable, do any of the following without the prior written consent of theCompany’s Board of Directors:

 

(a)                                  **Solicit Business****.**  Solicit orinfluence or attempt to influence any client, customer or other person eitherdirectly or indirectly, to direct his or its purchase of the Company’s productsand/or services to any person, firm, corporation, institution or other entityin competition with the business of the Company; and

 

(b)                                 **Solicit Personnel****.**  Solicit orinfluence or attempt to influence any person employed by the Company toterminate or otherwise cease his employment with the Company or become anemployee of any competitor of the Company.

 

13.                                 **Conflicts****. **Executiverepresents that his performance of all the terms of this Agreement will notbreach any other agreement to which Executive is a party.  Executive has not, and will not during theTerm of this Agreement, enter into any oral or written agreement in conflictwith any of the provisions of this Agreement. Executive further represents that he is entering into or has enteredinto an employment relationship with the Company of his own free will.

 

14.                                 **Successors**. Any successor to the Company (whether direct or indirect and whether bypurchase, lease, merger, consolidation, liquidation or otherwise) to all orsubstantially all of the Company’s business and/or assets shall assume theobligations under this Agreement and agree expressly to perform the obligationsunder this Agreement in the same manner and to the same extent as the Companywould be required to perform such obligations in the absence of asuccession.  For all purposes under thisAgreement, the term “Company” shall include any successor to the Company’sbusiness and assets that executes and delivers the assumption agreementdescribed in this Section 14 or which becomes bound by the terms of thisAgreement by operation of law.  The termsof this Agreement and all of Executive’s rights hereunder shall inure to thebenefit of, and be enforceable by, Executive’s personal or legalrepresentatives, executors, administrators, successors, heirs, distributees,devisees and legatees.

 

# 15.                                 **Indemnification Agreement**. The Company and the Executive have entered into an IndemnificationAgreement substantially in the form attached as Exhibit B to thePrior Agreement.

 

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16.                                 **Miscellaneous Provisions**.

 

(a)                                  **No Duty to Mitigate**. Executive shall not be required to mitigate the amount of any paymentcontemplated by this Agreement (whether by seeking new employment or in anyother manner), nor, except as otherwise provided in this Agreement, shall anysuch payment be reduced by any earnings that Executive may receive from anyother source.

 

(b)                                 **Amendments and Waivers**. Any term of this Agreement may be amended or waived only with thewritten consent of the parties.  Nowaiver by either party of any breach of, or of compliance with, any conditionor provision of this Agreement by the other party shall be considered a waiverof any other condition or provision or of the same condition or provision atanother time.

 

(c)                                  **Sole Agreement**. This Agreement, including any Exhibits hereto, constitutes the soleagreement of the parties and supersedes all oral negotiations and priorwritings with respect to the subject matter hereof, including the PriorAgreement.

 

(d)                                 **Notices**. Any notice required or permitted bythis Agreement shall be in writing and shall be deemed sufficient upon receipt,when delivered personally, by facsimile or by a nationally recognized deliveryservice (such as Federal Express or UPS), or forty-eight (48) hours after beingdeposited in the U.S. mail as certified or registered mail with postageprepaid, if such notice is addressed to the party to be notified at such party’saddress as set forth below or as subsequently modified by written notice.  Any termination by the Company for Cause orby Executive as a result of an Involuntary Termination shall be communicationby a notice of termination to the other party hereto given in accordance withthis Section.  Such notice shall indicatethe specific termination provision in this Agreement relied upon, shall setforth in reasonable detail the facts and circumstances claimed to provide abasis for termination under the provision so indicated, and shall specify thetermination date (which shall be not more than 15 days after the giving of suchnotice).  The failure by Executive toinclude in the notice any fact or circumstance which contributes to a showingof Involuntary Termination shall not waive any right of Executive hereunder orpreclude Executive from asserting such fact or circumstance in enforcing hisrights hereunder.

 

(e)                                  **Choice of Law**. The validity, interpretation, construction and performance of thisAgreement shall be governed by the laws of the State of California, withoutgiving effect to the principles of conflict of laws.  Executive hereby consents to the personaljurisdiction of the state and federal courts located in California for anyaction or proceeding arising from or relating to this Agreement or relating toany arbitration in which the parties are participants.

 

(f)                                    **Severability**. If one or more provisions of this Agreement are held to be unenforceableunder applicable law, the parties agree to renegotiate such provision in goodfaith.  In the event that the partiescannot reach a mutually agreeable and enforceable replacement for suchprovision, then (i) such provision shall be excluded from this Agreement, (ii) thebalance of the Agreement shall be interpreted as if such provision were soexcluded and (iii) the balance of the Agreement shall be enforceable inaccordance with its terms.

 

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(g)                                 **Counterparts**. This Agreement may be executed in counterparts, each of which shall bedeemed an original, but all of which together will constitute one and the sameinstrument.

 

(h)                                 **Arbitration****.***** **** *Any****disputeor claim arising out of or in connection with this Agreement shall be finallysettled by binding arbitration in San Jose, California in accordance with the rules ofthe American Arbitration Association by one arbitrator****appointedin accordance with said rules.  Thearbitrator shall apply California law, without reference to rules ofconflicts of law or rules of statutory arbitration, to the resolution ofany dispute.  Judgment on the awardrendered by the arbitrator may be entered in any court having jurisdictionthereof.  Notwithstanding the foregoing, theparties may apply to any court of competent jurisdiction for preliminary orinterim equitable relief, or to compel arbitration in accordance with thisparagraph, without breach of this arbitration provision.  This Section 16(h) shall not applyto the Confidentiality Agreement.

 

(i)                                     **No Assignment of Benefits**. The rights of any person to payments or benefits under this Agreementshall not be made subject to option or assignment, either by voluntary orinvoluntary assignment or by operation of law, including (without limitation)bankruptcy, garnishment, attachment or other creditor’s process, and any actionin violation of this subsection (i) shall be void.

 

(j)                                     **Employment Taxes**. All payments made pursuant to this Agreement will be subject towithholding of applicable income and employment taxes.

 

(k)                                  **Assignment by Company**. The Company may assign its rights under this Agreement to an affiliate,and an affiliate may assign its rights under this Agreement to anotheraffiliate of the Company or to the Company; provided, however,that no assignment shall be made if the net worth of the assignee is less thanthe net worth of the Company at the time of assignment.  In the case of any such assignment, the term “Company”when used in a Section of this Agreement shall mean the corporation thatactually employs Executive.

 

(l)                                     **ADVICE OF COUNSEL****.**  EXECUTIVEACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, HE HAS HAD THE OPPORTUNITY TOSEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALLOF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THEDRAFTING OR PREPARATION HEREOF.

 

*[SignaturePage Follows]*

 

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The parties have executed this Agreement the datefirst written above.

 
|   | CONCEPTUS,  INC.    |
|--------|---------------------|
|   |                |
|   | By:                 | /s/  Gregory Lichtwardt |
|   |                |
|   | Title:              | Executive  Vice President |
|   |                |
|   | Address:            |   |
|   |                |   |
|   |                |
|   | MARK  M. SIECZKAREK |
|   |                |
|   |                |
|   | Signature:          | /s/  Mark M. Sieczkarek |
|   |                |   |
|   | Address:            |
|        |                     |  |  |

 

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