Re: Letter Agreement And Release Of Claims
Exhibit 10.2
July 17, 2012
Xxx Xxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Re: Letter Agreement And Release Of Claims
Dear Xx. Xxxx:
This Letter Agreement and Release of Claims (“Agreement”) summarizes the understanding and agreement we have reached concerning your separation and transition from your employment at Conceptus, Inc. (“the Company”). Specifically, we have agreed as follows:
1. Departure from the Company. Your employment with the Company terminated as of July 2, 2012 (“The Separation Date”). You agree you have received your final paycheck, reflecting all earned wages, including accrued but unpaid PTO, less customary employee withholdings.
2. Separation Payment. Assuming you sign and do not revoke this Agreement, which includes a full release of claims, and assuming you otherwise comply with all terms of this Agreement, including but not limited to, the non-solicitation provisions set forth in paragraph 7 of this Agreement, as well as the consulting as described below, the Company agrees to provide you:
| x. | Xxxxxxxxx payment in the gross amount of $319,000, paid to you in twelve monthly installments of $26,583.33 each, less customary withholdings. The first such monthly installment payment will be paid eight days after your execution of this Agreement, or on July 31, 2012, whichever is later, and the twelfth and final installment will be paid before July 31, 2013; and |
| b. | A bonus payment of up to fifty percent (50%) of your 2012 target bonus, contingent upon the Company hitting funding thresholds for both revenue and aEBITDA. Sixty percent (60%) of this potential bonus will be driven by Company sales achievement and forty percent (40%) will be driven by company aEBITDA, with terms and pro rata funding thresholds as described in Section V of the 2012 Management Incentive Plan. As such, in the event the minimum threshold of 95% is met for both revenue and aEBITDA, the bonus payout will be $47,910. In the event both revenue and aEBITDA meet 98 % of the targets identified in Section V, the bonus payout will be $76,656. In the event both revenue and aEBITDA meet or surpass 100% of the targets identified in Section V, the bonus payout will be $95,820. No overachievement bonus is available, and personal MBOs will not be part of the calculation for this bonus payout. In the event the minimum funding thresholds are met such that a bonus is triggered under this section, the payment will be made when the Company’s 2012 annual bonuses are paid, but no later than March 15, 2013. In the event of a Change in Control resulting in acceleration of the date in which other Conceptus executives receive their respective 2012 target bonuses, your bonus payment, if any, will likewise be subject to such acceleration. |
| c. | Reimbursement for up to $5,000 for outplacement services provided by a third party outplacement consulting company to the extent such services are obtained within twelve months from the date of this letter. The Company will provide such reimbursement within ten business days upon receipt of proof of payment for such services. |
You agree to make yourself available in the next sixty (60) days for up to ten (10) hours per week of general consultation to the Chief Executive Officer and the Commercial organization. Such consultation would not change the status of your employment with the Company, nor will it cause any unvested equity at the date of your termination to become vested. You acknowledge that all consideration for any such consultation is set forth exclusively in this paragraph and you are not entitled to any additional compensation. The Company shall reimburse you for any ordinary and reasonable expenses incurred by you as a result of such consultation. Such consultation will not require travel, entertaining or equipment purchases.
3. Company Benefits. Assuming you sign and do not revoke this Agreement, which includes a full release of claims, and assuming you otherwise comply with the terms of this Agreement, the Company agrees to maintain your current your medical, dental and vision benefits through July 31, 2012, and will reimburse your medical, dental and vision insurance COBRA coverage from August 1, 2012 through June 30, 2013. Beginning July 1, 2013, you may continue receiving such benefits pursuant to the terms of COBRA, should you so elect, but at your own expense.
4. Stock. Details on amounts of vested shares and shares exercisable underlying your equity awards as of the Separation Date are set forth on the Personnel Option Status chart attached hereto as Exhibit 1. You will have until December 31, 2012 to exercise all options and stock appreciation rights that have vested as of July 2, 2012. Your unvested stock options, restricted stock units and stock appreciation rights terminated on July 2, 2012. All stock grants and stock purchases through the Company ESPP can be accessed through your online eTrade account.
5. Unemployment Benefits. The Company will not take any steps to contest any claim for unemployment insurance benefits should you elect to pursue such benefits.
6. Return of Company Property and Payment of American Express Card. You agree that on or before the Separation Date, you will return to the Company all Company documents (and all copies thereof) which you used or had access to during your employment with the Company, including, but not limited to, Company files, notes, drawings, records, business plans and forecasts, financial information, specifications, and computer-recorded information. In addition, this confirms that, subject to the specific exceptions set forth herein, you will have returned to the Company all tangible property or equipment, including such things as company car, gas card, credit cards, entry cards, identification badges, and any other items that are the property of the Company. The parties hereto agree that you will retain the laptop computer, iPad and mobile telephone that are currently in your possession, and that you are free to maintain your mobile telephone number. You understand and acknowledge that the American Express Card issued to you has been canceled and that you are responsible for payment of the outstanding balance of $3,147. You agree to provide proof of payment of that balance prior to receipt of the first installment payment under this Agreement.
7. Continuing Obligations Regarding Company Proprietary Information. You understand and agree that despite your departure from the Company effective on the Separation Date, certain obligations set forth in the Conceptus Proprietary Information and Inventions Agreement that you signed on April 15, 2004 (a copy of which is attached hereto as Exhibit 2) are continuing and survive the termination of your employment with the Company. Included among such obligations is your agreement to protect and preserve, and not use or disclose to any third parties, trade secrets or other sensitive, proprietary information of the Company. Also included among such obligations is your agreement to refrain from encouraging or soliciting any employee or consultant of the Company to leave the Company for any reason. You understand that this non-solicitation provision remains in effect during your employment and for the year following your employment, that is, from July 2, 2012 through July 2, 2013.
8. No Legal Actions. You agree that you have not filed, nor will you file in the future, any claim, charge or lawsuit against any of the Releasees, as defined in paragraph 9 below, relating to your employment with the Company, the termination thereof, or any other matter or event occurring up to the date this Agreement is signed by you. Similarly, the Company agrees that it has not filed, nor will file in the future, any claim, charge or lawsuit against you relating to your employment with the Company, the termination thereof or any other matter or event occurring up to the date this Agreement is signed by you.
9. Release of Claims. In exchange for the special accommodations and considerations set forth in this Release, including, but not limited to, the severance payment and benefits continuation described in paragraphs 2, 3 and 4 above, to which you would not otherwise be entitled – you agree, on behalf of your spouse, heirs and assigns, to release the Company, and all of the Company’s current and former officers, directors, shareholders, employees, investors, affiliates, agents, attorneys and representatives (“Releasees”), from any and all claims, demands, actions or liabilities, including claims for wrongful termination, breach of contract, violation of state and/or federal discrimination statutes, including the Age Discrimination in Employment Act, the Americans With Disabilities Act, the Workers’ Adjustment and Retraining Notification Act, Title VII of the Civil Rights Act of 1964, as amended, the Older Workers’ Benefit Protection Act, the Family Medical Leave Act, as well as any analogous or similar state statutes, and any other claims whatsoever based on contract, implied contract, tort, or under any other federal, state or local statute, regulation or ordinance, which might exist with respect to your employment with the Company, the termination thereof, or any other matter or event occurring up to the date of this Release. This release extends to any and all claims for alleged unpaid wages, benefits, salary, vacation pay, sick pay, paid time-off, bonuses, commissions or compensation of any kind. This release also extends to any and all claims for attorneys’ fees, interest, costs, and/or penalties of any kind. What this means is that you agree and acknowledge that you have not filed a claim, action or lawsuit against any of the Releasees, nor will you file a claim, action or lawsuit against any of the Releasees at any time in the future, which relates in any way to your employment with the Company, the termination thereof, or any other matter or event occurring up to the date this Agreement is signed by you; provided, however, that this release does not extend to claims which cannot be waived or released as a matter of law.
Similarly, the Company agrees to release you from any and all claims, demands, actions or liabilities which might exist with respect to the employment relationship between you and the Company, the termination of your employment or any other matter or event occurring up to the date this Agreement is signed by you. This means that the Company will not bring any action against you which relates to any employment-related matters or events occurring up to the date this Agreement is signed by you.
10. Waiver Of Section 1542. The parties to this Agreement understand that as part of the consideration for the promises described in this Agreement, each party waives the provisions of 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
It is understood that all rights and benefits afforded by Section 1542 are specifically waived.
11. Confidentiality. Subject to any disclosure requirements under federal law, the provisions of this Agreement will be held in strictest confidence by you and the Company and will not be publicized or disclosed in any manner whatsoever; provided, however, that: (a) you may disclose this Agreement to your immediate family; (b) the parties may disclose this Agreement in confidence to their respective attorneys, accountants, auditors, tax preparers, and financial advisors; (c) the Company may disclose this Agreement as necessary to fulfill standard or legally required corporate reporting or disclosure requirements; and (d) the parties may disclose this Agreement insofar as such disclosure may be necessary to enforce its terms or as otherwise required by law. In particular, and without limitation, you agree not to disclose the terms of this Agreement to any current or former Company employee.
12. Non-disparagement. You agree that you will refrain from making any derogatory, disparaging and/or detrimental statements, either orally or in writing, to any other person or third party about the Company or any of the Releases, including statements about the Company’s products, business, services or current or former directors, officers or employees. Similarly, the Company agrees that its named vice-presidents and executive officers 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.
13. Employment References. In the event the Company receives reference inquiries from prospective employers, the Company agrees to follow its customary procedure by confirming only dates of employment and last position held.
14. Miscellaneous.
a. Entire Agreement. This Agreement, including Exhibits 1 and 2, which are hereby incorporated by reference herein, constitutes the complete, final and exclusive embodiment of the entire agreement between you and the Company with regard to the subject matter described herein. This Agreement is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties or representations. Any changes or modifications must be made in writing and signed by both you and an authorized representative of the Company.
b. Binding Effect. This Agreement shall be binding upon you, your spouse, heirs, administrators, successors and assigns, and shall inure to the benefit of the Company, and its successors and assigns.
c. No Admission Of Liability. The Company enters into this Agreement for the sole purpose of avoiding any potential disputes or misunderstandings. This Agreement shall in no way be construed as an admission by the Company, or any of the Releasees, of any wrongful conduct, or that you have any rights against the Company or the Releasees.
d. Construction and Invalidity. In the event that any provision of this Agreement is determined to be legally invalid or unenforceable by any court of competent jurisdiction, the affected provision shall be stricken from the Agreement, and the remaining terms of the Agreement and its enforceability shall remain unaffected.
e. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
f. Release Voluntary. You acknowledge that you understand the words, terms and effects of this Agreement and that you have entered into this Agreement voluntarily.
15. Rescission and Revocation. You understand that you have been advised to review this Agreement with an attorney of your choosing, and that you have a period of twenty-one (21) days within which to consider this 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 Agreement within seven (7) days of its execution, and that this Agreement is not effective or enforceable until that revocation period has expired. You understand that if you elect to rescind this Agreement, you must send written notification to me at Conceptus, Inc., 000 X. Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000.
16. This offer will expire if not executed within the 21-day period referenced above in paragraph 15.
Ric, if this Agreement is acceptable to you, please sign below and return the original to me.
We wish you good luck in your future endeavors.
| Sincerely, |
| /s/ Xxxx Xxxxx |
| Xxxx Xxxxx Executive Vice President, Human Resources |
Exhibit 1 – Personnel Option Status Chart
Exhibit 2 – Conceptus Proprietary Information and Inventions Agreement
I AGREE TO THE TERMS SET FORTH ABOVE:
| /s/ Xxx Xxxx |
Date: | July 17, 2012 | ||||
| Xxx Xxxx |
