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 24th 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the Prior Agreement be superseded in all respects by this Agreement.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 incentive
pool, other than continuation of 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 Executive pursuant to 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
eighteen (18) months following Executive’s termination, the Company’s
obligations 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 termination
pursuant to this Section 6(b)(i)(A), Executive shall be entitled to
outplacement services at the Company’s expense, the actual cost of which is not
to exceed $15,000.  Such services shall be provided by
a firm selected by Executive from a list compiled by the Company.


 


(D)                               Equity Award Acceleration. 
The vesting and exercisability of each Equity Award shall be
automatically accelerated as to the amount of the unvested shares subject
thereto at the time of the Involuntary Termination which would have vested had
the Executive remained employed by the Company for eighteen (18) months
following the date of such Involuntary Termination. The foregoing provision is
hereby deemed to be a part of each agreement evidencing an Equity Award and to
supersede 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 time
prior to a Change of Control or after the 24-month period following the
effective 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) will
apply) or a Termination for Cause, then Executive shall not be entitled to
receive payment of any severance or other benefits described in this Section 6.  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.


 


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


 


(a)                                  “Cause” shall mean:


 


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


 


(ii)                                  Executive’s repeated unexplained or
unjustified absence from the Company,


 


(iii)                               Executive’s material and willful
violation of any federal or state law,


 


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


 


(v)                                 conviction of a felony or a crime
involving moral turpitude causing material harm to the standing and reputation
of the Company, in each case as determined in good faith by the Board of
Directors of the Company.


 


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


 


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


 


(ii)                                  a merger or consolidation of the Company
whether or not approved by the Board of Directors of the Company, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
of the Company’s assets; or


 


(iii)                               a change in the composition of the Board
of Directors of the Company, as a result of which fewer than a majority of the
directors are Incumbent Directors.  “Incumbent
Directors” shall mean directors who either (A) are directors of the
Company as of the date of Executive’s hire or (B) are elected, or
nominated for election, to the Board of Directors of the Company with the
affirmative votes of at least a majority of those Incumbent Directors at the
time of such election or nomination (but shall not include an individual whose
election or nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to the Company).


 


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


 


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


 


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


 


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


 


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Executive’s
employment.  In the event that Executive
resumes the performance of substantially all of his duties hereunder before the
termination of his employment become effective, the notice of intent to
terminate shall automatically be deemed to have been revoked.


 


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


 


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


 


(ii)                            Executive’s voluntary termination, upon
thirty (30) days’ prior written notice to the Company, following (A) any
reduction of Executive’s Base Salary (other than in connection with similar
decreases of other similarly situated employees of the Company); (B) any
material diminution in Executive’s title, perquisite, benefits or terms and
conditions of employment; provided  however, that if following a Change of
Control, the Company becomes a division of or, a business unit of another
corporation or other business entity and the Executive remains the Chief
Executive Officer of the division or business unit comprised of the Company,
such a change of the Executive’s title or terms and conditions of employment
which would reflect these circumstances shall not be deemed to be a material
diminution which would give rise, in and of itself, to Executive’s Involuntary
Termination; or (C) Executive’s refusal to relocate to a location more
than fifty (50) miles from the Company’s current location.


 


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


 


8.                                       Golden Parachute Excise
Tax.  Notwithstanding anything contained in this
Agreement to the contrary, in the event that the benefits provided for in this
Agreement to Executive together with all other payments and the value of any
benefit received or to be received by Executive:


 


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


 


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


 


(i)                                     in full, or


 


(ii)                                  as to such lesser amount which would
result in no portion of such benefits being subject to excise tax under Section 4999
of the Code, whichever of the foregoing amounts, taking into account the
applicable 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 greatest
amount of benefits under this Agreement, notwithstanding that all or some
portion of such benefits may be subject to the excise tax imposed under Section 4999
of the Code.  Unless the Company and
Executive otherwise agree in writing, any determination required under this Section 8
shall be made in writing by the Company’s independent public accountants
serving immediately before the Hostile Takeover or Change of Control (the “Accountants”),
whose 


 


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determination shall be conclusive and binding upon
Executive 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 concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code.  The Company shall cause the Accountants to
provide detailed supporting calculations of its determinations to Executive and
the Company.  Executive and the Company
shall furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination under this
Section.  The Company shall bear all
costs the Accountants may reasonably incur in connection with any calculations
contemplated by this Section 8.


 


9.                                       Section 409A.


 


(a)                                  Notwithstanding any provision to the
contrary in the Agreement, if Executive is deemed by the Company at the time of
his Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of
the Code, to the extent delayed commencement of any portion of the termination
benefits to which Executive is entitled under this Agreement is required in
order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of
the Code, such portion of Executive’s termination benefits shall not be
provided to Executive prior to the earlier of (i) the expiration of the
six-month period measured from the date of the Executive’s Separation from
Service with the Company or (ii) the date of Executive’s death.  Upon the first business day following the
expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral
period, all payments deferred pursuant to this Section shall be paid in a
lump sum to Executive (or Executive’s estate or beneficiaries), and any
remaining payments due under the Agreement shall be paid as otherwise provided
herein.


 


(b)                                 For purposes of Section 409A of the
Code (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 this
Agreement (the “Installment Payments”) shall be treated as a right to
receive a series of separate payments and, accordingly, each Installment
Payment shall at all times be considered a separate and distinct payment.


 


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


 


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


 


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the provisions of the Confidentiality Agreement shall survive any
termination of this Agreement or of Executive’s employment relationship with
the Company.


 


11.                                 Noncompetition Covenant. 
Executive
hereby agrees that he shall not, during the Term of this Agreement and the
Continuation Period, if applicable, without the prior written consent of the
Company’s Board of Directors, carry on any business or activity (whether
directly or indirectly, as a partner, shareholder, principal, agent, director,
affiliate, employee or consultant) which is competitive with the business conducted
by the Company (as conducted now or during the Term of this Agreement), nor
engage in any other activities that conflict with Executive’s obligations to
the Company.


 


12.                                 Nonsolicitation Covenant. 
Executive hereby agrees that he shall not, during the Term of this
Agreement 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 the
Company’s Board of Directors:


 


(a)                                  Solicit Business.  Solicit or
influence or attempt to influence any client, customer or other person either
directly or indirectly, to direct his or its purchase of the Company’s products
and/or services to any person, firm, corporation, institution or other entity
in competition with the business of the Company; and


 


(b)                                 Solicit Personnel.  Solicit or
influence or attempt to influence any person employed by the Company to
terminate or otherwise cease his employment with the Company or become an
employee of any competitor of the Company.


 


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


 


14.                                 Successors. 
Any successor to the Company (whether direct or indirect and whether by
purchase, lease, merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company’s business and/or assets shall assume the
obligations under this Agreement and agree expressly to perform the obligations
under this Agreement in the same manner and to the same extent as the Company
would be required to perform such obligations in the absence of a
succession.  For all purposes under this
Agreement, the term “Company” shall include any successor to the Company’s
business and assets that executes and delivers the assumption agreement
described in this Section 14 or which becomes bound by the terms of this
Agreement by operation of law.  The terms
of this Agreement and all of Executive’s rights hereunder shall inure to the
benefit of, and be enforceable by, Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.


 


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


 


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16.                                 Miscellaneous Provisions.


 


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


 


(b)                                 Amendments and Waivers. 
Any term of this Agreement may be amended or waived only with the
written consent of the parties.  No
waiver by either party of any breach of, or of compliance with, any condition
or provision of this Agreement by the other party shall be considered a waiver
of any other condition or provision or of the same condition or provision at
another time.


 


(c)                                  Sole Agreement. 
This Agreement, including any Exhibits hereto, constitutes the sole
agreement of the parties and supersedes all oral negotiations and prior
writings with respect to the subject matter hereof, including the Prior
Agreement.


 


(d)                                 Notices. Any notice required or permitted by
this Agreement shall be in writing and shall be deemed sufficient upon receipt,
when delivered personally, by facsimile or by a nationally recognized delivery
service (such as Federal Express or UPS), or forty-eight (48) hours after being
deposited in the U.S. mail as certified or registered mail with postage
prepaid, if such notice is addressed to the party to be notified at such party’s
address as set forth below or as subsequently modified by written notice.  Any termination by the Company for Cause or
by Executive as a result of an Involuntary Termination shall be communication
by a notice of termination to the other party hereto given in accordance with
this Section.  Such notice shall indicate
the specific termination provision in this Agreement relied upon, shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination under the provision so indicated, and shall specify the
termination date (which shall be not more than 15 days after the giving of such
notice).  The failure by Executive to
include in the notice any fact or circumstance which contributes to a showing
of Involuntary Termination shall not waive any right of Executive hereunder or
preclude Executive from asserting such fact or circumstance in enforcing his
rights hereunder.


 


(e)                                  Choice of Law. 
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California, without
giving effect to the principles of conflict of laws.  Executive hereby consents to the personal
jurisdiction of the state and federal courts located in California for any
action or proceeding arising from or relating to this Agreement or relating to
any arbitration in which the parties are participants.


 


(f)                                    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 (i) such provision shall be excluded from this Agreement, (ii) the
balance of the Agreement shall be interpreted as if such provision were so
excluded and (iii) the balance of the Agreement shall be enforceable in
accordance with its terms.


 


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


 


(h)                                 Arbitration.    Any  dispute
or claim arising out of or in connection with this Agreement shall be finally
settled by binding arbitration in San Jose, California in accordance with the rules of
the American Arbitration Association by one arbitrator  appointed
in accordance with said rules.  The
arbitrator shall apply California law, without reference to rules of
conflicts of law or rules of statutory arbitration, to the resolution of
any dispute.  Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof.  Notwithstanding the foregoing, the
parties may apply to any court of competent jurisdiction for preliminary or
interim equitable relief, or to compel arbitration in accordance with this
paragraph, without breach of this arbitration provision.  This Section 16(h) shall not apply
to the Confidentiality Agreement.


 


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


 


(j)                                     Employment Taxes. 
All payments made pursuant to this Agreement will be subject to
withholding 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 another
affiliate of the Company or to the Company; provided, however,
that no assignment shall be made if the net worth of the assignee is less than
the 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 that
actually employs Executive.


 


(l)                                     ADVICE OF COUNSEL.  EXECUTIVE
ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, HE HAS HAD THE OPPORTUNITY TO
SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL
OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. 
THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE
DRAFTING OR PREPARATION HEREOF.


 


[Signature
Page Follows]


 


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The parties have executed this Agreement the date
first 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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