Exhibit
10.1


 


November 9, 2007


 


Ms.
Lisa Pohmajevich


[Address]


Re:                             Letter Agreement and Release
of Claims


Dear Lisa:


In your recent discussions with Conceptus,
Inc. (“the Company”), you and the Company have reached agreement on the terms
of your departure from the Company.  This
Letter Agreement and Release of Claims (“Letter Agreement”) memorializes the
terms which have been agreed upon.


1.              Resignation
From The Company.  Your
employment with the Company will terminate effective November 9, 2007 (the
“Separation Date”).  Company records will
reflect that your departure is a voluntary resignation.


2.              Consulting
Arrangement.  During the six-month
period following the Separation Date, you agree to serve as a consultant to the
Company (“Consulting Period”).  In your
capacity as consultant to the Company, you understand and agree that you will
be treated, for all purposes, as an independent contractor, and not a Company
employee.  A description of the terms of
this consulting arrangement is set forth on Attachment 1 to this Letter
Agreement.


3.              Severance Pay
Following Consultancy.  Beginning
on May 10, 2008 (following the conclusion of the Consulting Period), you
will begin receiving severance payments from the Company for a period of six months,
ending on November 10, 2008 (the “Severance Period”).  Each such semi-monthly payment will be in
the amount of $9,008.6533 (gross), will reflect customary and necessary
employee withholdings and deductions, and will be deposited in your account in
accordance with the Company’s customary payroll cycle.


4.              Expense
Reimbursements.  As set
forth in Attachment 1, you will be entitled to reimbursement for all
expenses reasonably incurred in your capacity as consultant, consistent with
the Company’s normal expense reimbursement policy.


5.              Reimbursement
For Health Coverage. The Company will reimburse you for the payments
required to continue your medical, dental and vision insurance coverage,
pursuant to the terms of COBRA, for the earlier of (a) the 12-month
period comprised of the Consulting Period and Severance Period, or
(b) such time as you obtain comparable health coverage from another
company or source.  You agree to notify
the Company promptly in the event you receive such insurance coverage through
another company or source, at which point the COBRA reimbursement described in
this paragraph will cease.


 

















6.              Stock Options.  You were granted
options and awards to purchase shares of Company stock under various Conceptus
Stock Option Plans (the “Options”).  The number of your vested options as
of the Separation Date, and the purchase price of such options, is set forth on
the Personal Options Status Chart attached hereto as Attachment 2.  The
options that would have vested during the 12 month of your Consulting Period
and Severance Period will be immediately accelerated as of the Separation Date.
You will have 90 days from the Separation Date in which to exercise all
options and awards you are vested in, including those that have been
accelerated.


7.              Bonus.  You will receive 100% of your 2007 target
bonus, but only in the event that bonuses are paid to other executives of the
Company, payable to you at the same time bonuses are paid to other Company
executive. To the extent that you become entitled to a bonus pursuant to the
preceding sentence, in all events such bonus will be paid to you in calendar
year 2008.


8.              Outplacement
Services.  The Company
agrees to provide, at no cost to you, outplacement assistance in an amount not
to exceed $15,000.


9.              Letter of
Recommendation.  The Company
agrees to provide a letter of recommendation in mutually agreed-upon language.


10.       Cell Phone.  The Company agrees to let you to retain your
Company-provided cell phone number.


11.       No Other
Payment Obligations.  You agree
that apart from the payments and other consideration described in
paragraphs 2-11 above, the Company has paid all salary, wages, bonuses,
commissions, expense reimbursements, vacation pay, paid time off, stock or
stock option entitlement, and any and all cash compensation, as well as any and
all other employee benefits, to which you are entitled.  You further acknowledge that the payments and
other consideration described in paragraphs 2-11 above constitute good and
sufficient consideration to which you would not otherwise entitled.


12.       No Admission Of
Liability.  The Company
enters into this Letter Agreement in order to resolve any and all issues,
potential disagreements or disputes that may exist with regard to your
employment with the Company, the termination thereof, or any other matter or
event occurring up to the date of this Letter Agreement.  This Letter Agreement, however, should in no
way be construed as an admission of liability or wrongdoing by the Company, or
any of the Releasees (as defined in paragraph 13 below), or that you have
any legal rights whatsoever against the Company, or the Releasees, except as
specifically provided herein.  The
Company and Releasees specifically disclaim any liability to or wrongful acts
against you.


13.       Release of
Claims.  You agree, on behalf of your
spouse, heirs and assigns, to irrevocably and unconditionally release, acquit
and forever discharge the Company, any parent, subsidiary or affiliated
entities, and all current and former Company employees, officers, directors,
investors, shareholders, agents, representatives and


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                        attorneys, and
all persons acting by, through, under or in concert with any of them
(collectively “Releasees”), from any and all claims, liabilities, demands,
causes of action, costs, expenses, attorneys’ fees, damages, indemnities, and
obligations of every kind and nature in law, equity or otherwise, known or
unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or
in any way relating to your employment with the Company, the termination
thereof, or any matter or event occurring up to the date of this Letter
Agreement.


Without limiting the
generality of the foregoing, you specifically release the Company and Releasees
from any and all claims and disputes arising out of any California, municipal
or federal statute, ordinance or regulation, order or common law, including
without limitation:  claims for wrongful
termination in violation of public policy; claims under the Employee Retirement
Income Security Act of 1974, as amended; claims for violation of the California
Labor Code or the federal Fair Labor Standards Act, including, without
limitation, wage and hour claims, claims for overtime pay and claims for back
pay and penalties; claims for discrimination, retaliation or harassment under
Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of
1991, the Age Discrimination in Employment Act, and the California Fair
Employment and Housing Act; claims under the Older Workers’ Benefit Protection
Act, the state and federal Workers’ Adjustment and Retraining Notification Act;
claims under the Family Medical Leave Act and California Family Rights Act; and
any and all other claims whatsoever based on contract, quasi-contract, implied
contract or tort, including without limitation, defamation, libel, slander,
invasion of privacy, interference with business opportunity or with contract,
or infliction of emotional distress; claims for breach of the implied covenant
of good faith and fair dealing, conspiracy, negligence or negligent
misrepresentation; or any claim for bonus or severance pay.  This Letter Agreement extends to any current
Company officer, director, executive, employee, consultant, shareholder,
investor, agent and attorney, whether or not acting in his or her
administrative, individual or any other capacity; however, this Letter
Agreement does not extend to claims which cannot, as a matter of law, be
waived.


14.       No Other Claims Or Lawsuits.  You represent that, as of the date of this Letter
Agreement, you have not filed any complaint, charge, claim or lawsuit against
the Company or any of the Releasees, and you further agree that you will not
file any complaint, charge, claim or lawsuit against any of the Releasees at
any time hereafter for any act or event occurring prior to the date of this Letter
Agreement.


15.       Return Of Company Property
And Protection Of Conceptus Trade Secrets And Proprietary Information.  You hereby affirm that you have returned to
the Company, and have not made or kept copies of any and all Company-owned or
Company-issued property, including all documents, data, information, files,
reports, emails, spreadsheets, projections, studies, business plans, or any
other materials, whether in paper, electronic or other form, belonging to or
issued by the Company, or which were received or used by you during your employment
with the Company.  You further expressly
agree that you will continue to comply with the terms of the Conceptus, Inc. Proprietary Information and Inventions
Agreement entered into


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                        between you and the Company that you signed on February 8, 2002 (a copy
of which is attached hereto as Attachment 3), which terms survive the
termination of your employment as well as the expiration of the Consulting
Period.  You agree specifically that
during the Consulting and Severance Period, you will not engage in any
activities on behalf of any other company, person or entity which is
competitive with the Company’s hysteroscopic sterilization business, and that
if you violate this promise, the Company will consider you to be in breach of
your consultancy and will promptly cease any further payments to you during the
Consulting Period.


16.       Reference
Inquiries.  The Company agrees that if it receives a
reference inquiry from a prospective employer or any other third party, the
Company will follow its customary practice of providing only dates of
employment and last position held.


17.       Confidentiality.  You agree that you will keep the terms of
this Letter Agreement completely confidential; provided, however, that you may
disclose the terms of this Letter Agreement to your spouse, legal or tax
advisors, or if required to do so by law. 
This confidentiality provision is an essential and material term of this
Letter Agreement but for which the release would not have entered into.


18.       Nondisparagement.  You agree that you will refrain from making
any derogatory, disparaging, and/or detrimental statements, either orally or in
writing, to any person or third party about the Company or any of the
Releasees, including statements about the Company’s products, business,
services or current or former employees, directors or investors.  You also agree that you will not act in any
manner which might interfere with the business or disparage the reputation of
the Company or any of the Releasees.  The
Company, for its part, agrees that it will refrain from making any derogatory,
disparaging and/or detrimental statements, either orally or in writing, to any
other person or third party about you.


19.       Waiver Of All Claims.  You hereby expressly waive any and all rights
under Section 1542 of the California Civil Code, which reads as follows:


 


A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS/HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM/HER MUST HAVE MATERIALLY AFFECTED HIS/HER SETTLEMENT WITH THE
DEBTOR.


You
acknowledge that the Company has separately bargained for the foregoing waiver
of unknown claims, that you have had an opportunity to review this provision
with your attorney, and that you acknowledge that this is a material term of
this Letter Agreement.


20.       No Transfer.  You represents that you have not assigned or
transferred any claim, or portion thereof, which you have or claim to have,
against the Company or the Releasees. 
You further agree to indemnify, defend and hold the Company and the
Releasees harmless from and against any and all claims based on or arising out
of any


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                        such assignment
or transfer or purported assignment or transfer of any such claim or any
portion thereof or interest therein.


21.       Binding Effect.  You acknowledge that this Letter Agreement
embodies the terms of a settlement arrived at through negotiations between the
parties.  The parties have had an
opportunity to review this Letter Agreement with and involve their respective
counsel of record.  Therefore, the
language of all parts of this Letter Agreement shall in all cases be construed
as a whole, according to its fair meaning, and not strictly for or against
either of the parties.


22.       No Prior Agreements or
Understandings.  You
understand that there are no prior agreements or understandings, whether
written or verbal, regarding the matters which have been resolved in this Letter
Agreement.


23.       Binding On Parties and
Representatives.  This Letter
Agreement shall be binding upon you, and upon your spouse, heirs,
administrators and assigns, and shall inure to the benefit of the Company and
to the Releasees, and each of them, and to their respective administrators,
representatives, executors, successors and assigns.


24.       Governing Law and Attorneys’
Fees.  This Letter Agreement is made
and entered into in the State of California, and shall in all respects be
interpreted, enforced and governed under the laws of the State of
California.  In the event that there is
any legal proceeding involving the interpretation or enforcement of this Letter
Agreement, the prevailing party shall be entitled to recover its or his
reasonable attorneys’ fees and costs incurred in bringing or defending against
such legal proceedings.


25.       Entire Agreement.  This Letter Agreement sets forth the entire
agreement between the parties hereto and fully supersedes any and all prior
agreements or understandings between the parties hereto pertaining to the
subject matter hereof.


26.       Amendments.  This Letter Agreement can be amended,
modified or terminated only by a writing executed by both you and an authorized
representative of the Company.


27.       Voluntary Execution.  This Letter Agreement is executed voluntarily
by you without duress or influence on the part of the other party or any third
person.


28.       Attorneys’ Fees and Costs.  You understand that you are responsible for
bearing you own costs and attorneys’ fees incurred in connection with the
preparation and negotiation of this Letter Agreement.


29.       Invalid Provisions.  If any provision of this Letter Agreement is deemed
to be invalid or unenforceable, all of the other provisions shall remain valid
and enforceable notwithstanding.


30.       Facsimile.  The parties agree that this Letter Agreement
may be executed using facsimile signatures and that such signatures shall be
deemed to be as valid as original signatures.


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31.       No Reliance On Company
Representations.  You
represent and acknowledge that in executing this Letter Agreement, you have not
relied on any representation or statement not set forth herein made by any of
the Releasees or by any of the Releasees’ agents, representatives or attorneys
with regard to the subject matter, basis or effect of this Letter Agreement or
otherwise.


32.       Rescission And
Revocation.  You understand
that you have reviewed this Letter Agreement with your attorney, and that you
have a period of twenty-one (21) days within which to consider this Letter
Agreement before signing it (although you are not required to wait the full
twenty-one (21) days before signing).  In
addition, you understand that you have the right to revoke this Letter
Agreement within seven (7) days of its execution, and that this Letter
Agreement is not effective or enforceable until that revocation period has
expired.  You understand that if you elect
to rescind this Letter Agreement, you must send written notification to Dorothy
Garofalo, Director of Human Resources, Conceptus, Inc., 331 E. Evelyn. Mountain
View, California  94041.


By dating and signing this Letter
Agreement below, you and the Company acknowledge acceptance of and agreement to
all of the terms mentioned above.  If you
have any further questions, please feel free to give me a call.  We wish you well in your future endeavors.


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  /s/
  Mark Sieczkarek

  
	
   

  	
  Mark
  Sieczkarek

  
	
   

  	
  President
  and CEO

  
	
   

  	
   

  
	
  I
  UNDERSTAND AND AGREE TO THE TERMS OUTLINED ABOVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:
  November 9, 2007

  	
  /s/
  Lisa Pohmajevich

  
	
   

  	
  Lisa
  Pohmajevich

  



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ATTACHMENT 1


TERMS OF CONSULTING AGREEMENT


 


1.                                      Services and
payment.  You agree to perform Marketing
Consulting Services for the Company during the Consulting Period. In
consideration of these services you will 
receive payments from the Company for a period of six months, beginning
on November 10, 2007 .  Each such semi-monthly
payment will be in the amount of $9,008.6533 and will be deposited in your
account.


2.                                      Time Commitment.  You are expected to make yourself available
to perform the Consulting Services for up to 20 hours per month.


3.                                      Term.  The Consulting Services will last for 6
months, from November 10, 2007 through May 10, 2008, unless the Consulting
Agreement is terminated as set forth in paragraph 10 below.


4.                                      Consultant
Status.  You understand that you are
not an employee of the Company, and therefore you are not entitled to receive
any Company-provided employee benefits, except as otherwise expressly set forth
in the Letter Agreement and Release of Claims.


5.                                      Primary Company
Contact.  Your primary contact with the Company
regarding the provision of the Consulting Services will be Dorothy Garofalo in
Human Resources.


6.                                      Autonomy and
Professionalism.  You agree
that you have the qualifications and the ability to perform the Consulting
Services in a professional manner, without the control or supervision of the
Company.  You will determine the method,
details and means of performing the Consulting Services, how much time may be
required, and where the Consulting Services should be performed.  You will be responsible for providing your
own insurance, as may be required by law.


7.                                      Expense
Reimbursement.  You will be
reimbursed by the Company for all expenses reasonably incurred in association
with the performance of the Consulting Services hereunder, according to the
Company’s standard practices.


8.                                      Consultant’s
Work For Others.  You may
represent and perform services for, or be employed by such additional persons
or companies as you see fit, so long as such other work does not compete in any
way with the business of the Company.  If
at any time during the Consulting Period you engage in activities which in any
way compete with the business of the Company, the Company will immediately
cease making any further consulting payments to you.


9.                                      Taxation.  Taxes will be your sole responsibility.  The Company will issue to you an IRS Form 1099
related to the Consulting Services, and because you are not an employee, the


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                                                Company will
not make any deductions from the amounts payable to you for taxes, including
state or federal withholdings.


10.                               Termination.  The Company shall have the right to terminate
this Consulting Agreement at any time during the Consulting Period; provided,
however, that if the Company elects to do so, it agrees to continue to pay you
the agreed-upon monthly amount until the end of the Consulting Period, just as
if you had continued to perform the Consulting Services through that date.


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