EXHIBIT 10.22
CONCEPTUS, INC.
LOAN AGREEMENT
--------------
This Loan Agreement is made as of April 24, 1997 by and between
Conceptus, Inc., a Delaware corporation (the "COMPANY"), and Xxxxx Xxxxxx
("BORROWER").
RECITALS
--------
Borrower has borrowed from the Company, and the Company has lent to
Borrower, an aggregate of $100,000 (the "BORROWED AMOUNT") pursuant to an
unsecured promissory note in the form attached hereto as EXHIBIT A (the
"NOTE") on the terms and conditions contained herein and in the Note.
AGREEMENT
---------
In consideration of the foregoing, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree
as follows:
1. LOANING OF BORROWED AMOUNT. Borrower acknowledges that he received
a wire transfer from the Company in the amount of the Borrowed Amount (the
"LOAN") on April 24, 1997. Borrower agrees that the Company issued such wire
transfer subject to the terms and conditions contained in this Agreement.
2. PROMISSORY NOTE. In consideration of the Company's delivery of the
Borrowed Amount, Borrower will execute the Note in the principal amount of
such Borrowed Amount and bearing interest at a rate of 9.5% per annum,
compounded annually from April 24, 1997, the date upon which Borrower
received the Borrowed Amount.
3. USE OF PROCEEDS. Borrower represents and warrants that the
proceeds of the Loan were applied solely to the purchase of Borrower's
residence at 00 Xxxxxxx Xxxxx, Xxxx Xxxx Xxx, XX 00000.
4. REPAYMENT OF LOAN.
(a) Upon March 26 of 1998, 1999, 2000 and 2001, the first four
anniversaries of Borrower's employment with the Company, Borrower shall be
deemed by the Company to have repaid an amount equal to the sum of (i) 25% of
the Borrowed Amount and (ii) the accrued interest thereon.
(b) Upon termination of Borrower's employment with the Company
with or without Cause (as defined in Paragraph 4(c)), any amount of the Loan,
including accrued interest, not deemed repaid pursuant to Paragraph 4(a)
shall be repaid immediately by Borrower; provided, however, if Borrower's
employment with the Company is Involuntarily Terminated (as
defined in Paragraph 4(c)) other than for Cause in connection with a Change
of Control (as defined in Paragraph 4(c)), then any amount of the Loan,
including accrued interest, not deemed repaid pursuant to Paragraph 4(a)
shall be deemed repaid by Borrower in full as of the date of such termination.
(c) The following terms used in Paragraph 4(b) above shall have
the following meanings:
(i) CHANGE OF CONTROL. "Change of Control" shall mean the
occurrence of any of the following events:
(1) OWNERSHIP. 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 such
act), directly or indirectly, of securities of the Company representing 20%
or more of the total voting power represented by the Company's then
outstanding voting securities WITHOUT the approval of the Board of Directors
of the Company; or
(2) MERGER/SALE OF ASSETS. 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 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.
(3) CHANGE IN BOARD COMPOSITION. 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 May 13, 1997 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 the 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).
(ii) CAUSE. "Cause" shall mean (i) gross negligence or
willful misconduct in the performance of Borrower'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) repeated unexplained or unjustified absence from the
Company; (iii) a material and willful violation of any federal or state law;
(iv) 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.
(iii) INVOLUNTARILY TERMINATED. "Involuntarily Terminated"
shall include any termination by the Company other than for Cause and
Borrower's voluntary termination, upon 30 days prior written notice to the
Company, following (i) any reduction of Borrower's base compensation (other
than in connection with a general decrease in base salaries for most
similarly situated employees of the successor corporation); or (ii)
Borrower's refusal to relocate to a location more than 50 miles from the
Company's current location.
5. DEFAULT. Borrower shall be deemed to be in default of the Note and
of this Agreement in the event payment of principal or interest on the Note
shall be delinquent for a period of 10 days or more.
6. REMEDIES IN THE EVENT OF DEFAULT. In the case of an event of
default, as set forth above, the Company shall have the right to accelerate
payment of the Note upon notice to Borrower, and shall thereafter be entitled
to pursue any or all of its remedies under applicable law, including, without
limitation, offsetting from Borrower's salary, bonuses, vacation pay or other
amounts due to Borrower from the Company, any amount due and payable by
Borrower under the Note.
7. NO EMPLOYMENT RIGHTS. Nothing in this Agreement or the Note is
intended or shall be construed to confer upon Borrower any right to
employment or continued employment with the Company, or shall alter in any
way the nature of Borrower's employment with the Company.
8. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations,
or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
(b) GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State
of California, without giving effect to principles of conflicts of law.
(c) NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by a nationally-recognized delivery service (such as
Federal Express or UPS) or confirmed facsimile, or 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 or facsimile number as set forth below, or as subsequently
modified by written notice.
(d) 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.
(e) ADVICE OF LEGAL COUNSEL. Each party acknowledges and
represents that, in executing this Agreement, it has had the opportunity to
seek advice as to its legal rights from legal counsel and that the person
signing on its behalf 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 thereof.
[Signature Page Follows]
The parties hereto have executed this Loan Agreement as of the day and
year first above written.
BORROWER
/s/ Xxxxx Xxxxxx
------------------------------------
XXXXX XXXXXX
Address: 00 Xxxxxxx Xxxxx
Xxxx Xxxx Xxx, XX 00000
CONCEPTUS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Title: President and Chief Executive
Officer
