Exhibit 10.11
EXECUTIVE AGREEMENT
This Executive Agreement (this "Agreement") is made and entered into
effective as of November 25, 2002, by and between Xxxxx Xxxxxx ("Employee") and
Conceptus, Inc., a Delaware corporation (the "Company").
RECITALS
A. Employee has been the President and Chief Executive Officer of the
Company since January 2000.
B. The Company intends to hire a new Chief Executiver Officer and wishes
to retain the continued services of Employee in a new capacity.
C. The Company believes that it is in the best interests of the Company
and its shareholders to provide Employee with certain incentives to continue his
employment with the Company, and to provide him with a severance package
commensurate with his contributions to the Company.
A G R E E M E N T
In consideration of the mutual covenants contained in this Agreement, the
parties agree as follows:
1. At-Will Employment. The Company and Employee acknowledge that
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If Employee's employment terminates for any reason, the Employee
shall not be entitled to any payments or benefits, other than as provided by
this Agreement or if applicable, that certain Change of Control Agreement dated
as of January 3, 2000 between the Company and Employee (the "Change of Control
Agreement"), as may otherwise be available in accordance with the terms of the
Company's established employee plans and written policies at the time of
termination or as may be determined by the Board of Directors in its sole and
absolute discretion.
2. Continuing CEO; Chief Technology Officer.
(a) Employee shall continue as CEO until the earlier of February
1, 2003 or such time as a new CEO shall commence employment with the Company.
Immediately thereafter, Employee shall become the Company's Chief Technology
Officer ("CTO") with responsibility for the Company's business development,
technology surveillance, research & development, clinical affairs and medical
affairs functions, reporting to the Company's CEO. As the continuing CEO, and
then as the CTO, Employee's annual base salary shall continue to be $240,000. As
the Company's continuing CEO, Employee's target bonus shall be 40% of his base
salary and upon Employee's assumption of the CTO function, his target bonus
shall be 30% of his base salary, in each case as shall be determined based upon
Company and Employee performance and in accordance with the Company's bonus
policies and practices. As an incentive to Employee to assume the CTO function,
12,500 of the shares subject to that certain option granted to Employee on or
about March 21,
2001 shall vest immediately upon Employee's assumption of the CTO function, with
the remaining shares subject to said option vesting in accordance with their
original terms such that the entire option will vest by December 31, 2003
assuming continued employment.
(b) At such time as Employee is no longer the Company's President
and CEO, he shall resign from the Company's Board of Directors.
3. Severance Benefits. Employee shall be entitled to receive
severance benefits upon termination of employment only as set forth in this
Section 3, subject to the other terms of this Agreement, including without
limitation Section 5 and 10(c):
(a) Voluntary Termination; Termination for Cause. If Employee's
employment terminates by Voluntary Termination (as defined below) or is
terminated by the Company for Cause (as defined below), then Employee shall not
be entitled to receive any option acceleration benefits or payment of any
severance benefits. Employee will receive payment(s) for all salary and unpaid
vacation accrued as of the date of Employee's termination of employment and
Employee'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) Involuntary Termination. If Employee's employment is
terminated as a result of an Involuntary Termination prior to the one-year
anniversary of his commencement as the CTO, in addition to receiving all salary
and unpaid vacation accrued as of the date of Employee's termination of
employment, Employee will be entitled to receive the following benefits:
(i) Employee's regular monthly base salary for 12 months
(the "Severance Period")(i.e., an aggregate of $240,000)
paid ratably over the Severance Period according to the
Company's standard payroll schedule;
(ii) a 30% target bonus paid at such time as the Company
distributes annual bonuses to employees;
(iii) health insurance benefits with the same coverage
provided to Employee prior to the termination (e.g. medical,
dental, optical, mental health) and in all other respects
significantly comparable to those in place immediately prior
to the termination will be provided by the Company over the
Severance Period pursuant to the coverage continuation
provisions of the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA"). Employee shall be responsible for the
timely and effective election of his COBRA continuation
benefits, and the Company shall pay the cost of that
continued coverage for 12 months;
(iv) effective immediately upon termination, Employee shall
be deemed to have provided services to the Company for
2
an additional 18 months for purposes of determining vesting
with respect to all option grants to the Employee then
outstanding;
(v) Employee shall have a period of 180 days from and after
his termination date to exercise his outstanding stock
options; and
(vi) outplacement services up to a maximum value of $15,000.
(c) Special Provision for certain Change of Control Events. If
Employee's employment is terminated as a result of an Involuntary Termination
prior to the one-year anniversary of his commencement as the CTO and there is a
Change of Control (as defined in the Change of Control Agreement) within the
180-day period from and after the termination date, then the Severance Period
referenced in Section 3(b)(i) and 3(b)(iii) above shall be 18 months.
(d) Voluntary Termination during first three months as CTMO. If
Employee's employment with the Company is terminated as a result of a Voluntary
Termination during the first three months that he serves as CTO, in addition to
receiving all salary and unpaid vacation accrued as of the date of Employee's
termination of employment, Employee will be entitled to receive the benefits set
forth in Section 3(b) above; provided, however that (1) the bonus referenced in
Section 3(b)(ii) above shall be 40% rather than 30% and (2) Section 3(b)(v)
regarding an extended exercise period shall not apply. For purposes of clarity,
the parties agree that Section 3(c) above shall not apply to such a Voluntary
Termination. As a condition of receiving the benefits under this Section 3(d),
Employee shall not have spent any time during his tenure as CTO actively
searching for alternative employment.
4. 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 the Employee'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.
(b) "Involuntary Termination" shall mean (i) any termination by
the Company (other than for Cause) or (ii) the Employee's voluntary termination,
upon 30 days prior written notice to the Company, following (A) a diminution in
the Employee's duties or reporting responsibilities as CTO (and excluding the
changes relating to the
3
Employee's transition from CEO to CTO), (B) any reduction in the Employee's base
salary unless in connection with similar decreases of other similarly situated
employees of the Company; (C) any material diminution in Employee's title (other
than the change from CEO to CTO), perquisites, benefits or terms and conditions
of employment; or (D) Employee's refusal to relocate to a location more than 50
miles from the Company's current location.
(c) "Voluntary Termination" shall mean any voluntary resignation
from the Company (other than any that qualifies as an Involuntary Termination).
5. Limitation on Payments.
(a) In the event that the severance and other benefits provided
for in this Agreement to the Employee constitute "parachute payments" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code") and, but for this Section 5, would be subject to the excise tax imposed
by Section 4999 of the Code, the Company shall reduce the aggregate amount of
such payments and benefits such that the present value thereof (as determined
under the Code and the applicable regulations) is equal to 2.99 times the
Employee's "base amount" as defined in Section 280G(b)(3) of the Code.
(b) The payment of severance and other benefits provided for in
this Agreement shall be subject to all applicable income and employment tax
rules and regulations.
(c) The payment of severance and other benefits provided for in
this Agreement shall be subject to the contemporaneous execution by Employee of
a release of the Company and its officers, directors and stockholders
substantially similar to the release set forth in Section 6 hereof and the
expiration of the revocation period referenced therein.
(d) If the Company changes or modifies any provisions of Section
5(a) or any term of similar import in the employment agreements or Change of
Control agreements for any other employees of the Company while Employee is
eligible for the severance benefits described in this Agreement or in the Change
of Control Agreement, the Company shall, if the Employee so chooses, make
similar changes or modifications in the terms of Section 5(a) hereof and the
Employee's Change of Control Agreement.
6. Release.
(a) General Release. Employee, on behalf of himself and his
successors, hereby releases and forever discharges the Company, its successors
and their associates, owners, stockholders, assigns, employees, agents,
directors, officers, partners and representatives and all persons acting by,
through, under, or in concert with them, or any of them, (collectively the
"Releasees") of and from any and all manner of action or actions, cause or
causes of action, in law or in equity, suits, debts, liens, contracts,
agreements, promises, liabilities, claims, demands, damages, losses, costs or
expenses, of any nature whatsoever, known or unknown, fixed or contingent (each
referred to as a "Claim" and, collectively, the "Claims"), which he now has or
may hereafter have against the Releasees by reason of any and all acts,
omissions, events or facts occurring or existing prior to the date hereof,
except as may be expressly provided herein. The Claims released hereunder
include,
4
without limitation, any alleged breach of any employment agreement; any alleged
breach of any covenant of good faith and fair dealing, express or implied; any
alleged torts or other alleged legal restrictions relating to the Employee's
employment and the termination thereof; and any alleged violation of any
federal, state or local statute or ordinance including, without limitation,
Title VII of the Civil Rights Act of 1964, as amended, the Federal Age
Discrimination in Employment Act, the Americans With Disabilities Act, and the
California Fair Employment and Housing Act.
(b) Release of Unknown Claims. EMPLOYEE ACKNOWLEDGES THAT HE IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
EMPLOYEE BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS HE
MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW
PRINCIPLES OF SIMILAR EFFECT.
(c) Release of Age Discrimination Claims. Employee agrees and
expressly acknowledges that this Section 6 includes a waiver and release of all
claims that Employee has or may have under the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. ss. 621, et seq. ("ADEA"). The following
terms and conditions apply to and are part of the waiver and release of the ADEA
claims under this Agreement:
(1) That this Section 6 is written in a manner calculated to
be understood by Employee.
(2) The waiver and release of claims under the ADEA
contained in this Section 6 do not cover rights or claims that
may arise after the date set forth in the preamble above.
(3) This Agreement provides for consideration in addition to
anything of value to which Employee is already entitled.
(4) Employee is advised to consult an attorney before
signing this Agreement.
(5) Employee is granted 45 days after Employee is presented
with this Agreement to decide whether or not to sign this
Agreement. If Employee executes this Agreement prior to the
expiration of such period, Employee does so voluntarily and
after having had the opportunity to consult with an attorney.
(6) Employee will have the right to revoke this Agreement
under the ADEA within 7 days of the date set forth in the
preamble above. If Employee elects to revoke this Agreement,
he shall deliver within the time period
5
prescribed above to the Company a writing stating that he is
revoking this Agreement. If Employee elects to revoke this
Agreement as described in the foregoing sentence, this
Agreement shall be null and void in its entirety.
(d) Litigation Matters. Employee agrees not to aid in, assist in,
or encourage the pursuit of, litigation against the Company by any other person
or entity, unless compelled to do so by legal process. Should the Company
request Employee to assist it or testify in any litigations, hearings, or
proceedings, it will reimburse Employee for his time and expenses incurred in
doing subject to the provisions of the Company's indemnification agreement with
Employee.
7. 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. The terms of this Agreement and all of the Employee's rights
hereunder shall inure to the benefit of, and be enforceable by, the Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
8. Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. Mailed notices to the Employee shall be
addressed to the Employee at the home address which the Employee most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters.
9. Term. The terms of this Agreement shall terminate upon the
earliest of (i) the 12-month anniversary of Employee's assumption of the CTMO
function, (ii) the date on which Employee ceases to be employed by the Company,
other than as a result of an Involuntary Termination by the Company, or (iii)
the date that all obligations of the parties hereunder have been satisfied. A
termination of the terms of this Agreement pursuant to the preceding sentence
shall be effective for all purposes, except that such termination shall not
affect the payment or provision of compensation or benefits on account of a
termination of employment occurring prior to the termination of the terms of
this Agreement.
10. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Employee 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 shall any such payment be
reduced by any earnings that the Employee may receive from any other source.
(b) Waiver. No provision of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Employee and by an authorized officer of the
Company (other than the Employee). No waiver by either party of any breach of,
or of compliance with, any condition
6
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) Whole Agreement; Conflict with Change of Control Agreement.
No agreements, representations or understandings (whether oral or written and
whether express or implied) which are not expressly set forth or referenced in
this Agreement have been made or entered into by either party with respect to
the subject matter hereof. This Agreement (together with the Change of Control
Agreement) supersedes any agreement of the same title or concerning similar
subject matter dated prior to the date of this Agreement, and by execution of
this Agreement both parties agree that any such predecessor agreement shall be
deemed null and void. Employee is eligible to receive benefits either under this
Agreement or the Change of Control Agreement; in the event both agreements
provide for benefits in a particular instance, the provisions of the Change of
Control Agreement shall apply and this Agreement shall immediately terminate and
be of no further force or effect.
(d) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California without reference to conflict of laws provisions.
(e) Severability. If any term or provision of this Agreement or
the application thereof to any circumstance shall, in any jurisdiction and to
any extent, be invalid or unenforceable, such term or provision shall be
ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
terms and provisions of this Agreement or the application of such terms and
provisions to circumstances other than those as to which it is held invalid or
unenforceable, and a suitable and equitable term or provision shall be
substituted therefor to carry out, insofar as may be valid and enforceable, the
intent and purpose of the invalid or unenforceable term or provision.
(f) Arbitration. Any dispute or controversy arising under or in
connection with this Agreement may be settled at the option of either party by
binding arbitration in San Francisco, California, in accordance with the rules
of the American Arbitration Association then in effect. Judgment may be entered
on the arbitrator's award in any court having jurisdiction. Punitive damages
shall not be awarded.
(g) Legal Fees and Expenses. The parties shall each bear their
own expenses, legal fees and other fees incurred in connection with this
Agreement, provided that the Company shall reimburse Employee for his reasonable
legal fees and expenses up to a maximum of $5,000.
(h) 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 (h) shall be
void.
7
(i) 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.
(j) Advice of Counsel. Employee represents and warrants that he
has read this Agreement, that he has had adequate time to consider it, that he
had been advised by the Company to consult with an attorney and has been given
an opportunity to consult with an attorney prior to executing this Agreement,
that he understands the meaning and application of this Agreement and that he
has signed this Agreement knowingly, voluntarily and of his own free will with
the intent of being bound by it.
8
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized representative, as of the day and
year first above written.
CONCEPTUS, INC. EMPLOYEE
By: /s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxx
------------------------------- -----------------------------------
Xxxxx Xxxxxx
Title: Chairman of the Board of Directors Date: November 25, 2002
------------------------------------ ------------------
Date: November 25,2002
-----------------
Signature Page to Executive Agreement
