CFO and VP Business Development Employment Agreement - Louis Ploth, JR.

Exhibit 10.1 AMENDED AND RESTATED EMPLOYMENT AGREEMENT This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the " Agreement" ) is made and entered into this 23rd day of December, 2005 (the " Effective Date" ) by and between ZONAGEN, INC., a Delaware corporation (the " Company" ), and LOUIS PLOTH, JR. (the " Employee" ). WITNESSETH WHEREAS, Employee is currently employed by the Company as its Vice President, Business Development and Chief Financial Officer pursuant to the terms of that certain Employment Agreement dated as of October 16, 1993, as amended by the First Amendment to Employment Agreement dated January 31, 2001, and as further amended by the Second Amendment to Employment Agreement dated October 29, 2002 (as amended, the " Prior Employment Agreement" ); and WHEREAS, the Company and Employee desire to amend and restate the Prior Employment Agreement in its entirety and accept the terms and conditions of this Agreement in lieu of the terms and conditions under the Prior Employment Agreement; NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Amendment and Restatement of Prior Employment Agreement . The Prior Employment Agreement is hereby amended in its entirety and restated herein. Such amendment and restatement is effective upon the execution of this Agreement by the Company and Employee. Upon such execution, all terms, conditions and rights granted in the Prior Employment Agreement are hereby waived, released and superseded in their entirety and shall have no further force or effect. 2. Employment . (a) The Company hereby employs the Employee and the Employee hereby accepts employment as the Vice President, Business Development and Chief Financial Officer of the Company, subject to the direction of the Board of Directors and the Company' s officers designated by the Board of Directors, and shall perform and discharge well and faithfully the duties and responsibilities that are assigned to him by the Board of Directors. The Employee agrees to devote such of his time, attention and energy to the business of the Company, and any of its subsidiaries or affiliates, as may be required to perform the duties and responsibilities assigned to him by the Board of Directors to the best of his ability and with requisite diligence. If the Employee is appointed a director or elected to another executive officer position of the Company or any subsidiary thereof during the term of this Agreement, the Employee will serve in such capacity without further compensation.


(b) The Employee agrees to comply in all material respects, at all times during the Term (as defined in Section 3 hereof), with all applicable policies, rules and regulations of the Company. 3. Term . Subject to the terms hereof, this Agreement shall commence on the Effective Date hereof and shall terminate on the first anniversary of the Effective Date (the " Initial Term" ); provided , that this Agreement will automatically renew for successive one-year periods after the Initial Term (each an " Additional Term" ) unless terminated in accordance with Section 7. The Initial Term together with any Additional Term shall be referred to herein as the " Term ." 4. Compensation . For all services rendered under this Agreement, the Company agrees to pay to Employee during the Initial Term a base monthly salary of $16,625.00, payable in equal semi-monthly installments or on any other periodic basis consistent with the Company' s payroll procedures, subject only to such payroll and withholding deductions as are required by applicable federal and state laws. The base monthly salary for such Additional Term shall be reviewed approximately sixty days prior to the end of the then-current period; provided, however , that there is no assurance that the base monthly salary will be increased or remain the same for any subsequent Additional Term, such decision to be within the discretion of the Board of Directors. In addition, Employee shall be eligible to receive a bonus in addition to his base salary, in an amount and on such terms as the Board of Directors shall determine. 5. Fringe Benefits; Expenses . (a) So long as the Employee is employed by the Company, the Employee shall participate in all employee benefit plans sponsored by the Company for its executive employees, including, but not limited to, vacation policy, health insurance, dental insurance and pension or profit-sharing plans; provided , however , that the nature, amount and limitations of such plans shall be determined from time to time by the Board of Directors of the Company. (b) The Company agrees to reimburse the Employee for all reasonable out-of-pocket expenses incurred by him in the performance of his duties, subject to the submission of appropriate documentation in accordance with the Company' s expense reimbursement policy as in existence from time to time. 6. Confidential Information and Non-Competition . The Employee has executed and agrees to comply with the Proprietary Information and Inventions and Non-Competition Agreement, a copy of which is attached as Exhibit A hereto and incorporated herein by reference. 7. Termination . (a) At any time during the Term, the Company may, at its sole discretion, discharge the Employee, with or without " Cause" . Such termination shall be effective on delivery of written notice to the Employee of the Company' s election to terminate this Agreement under this Section 7. For purposes of this Agreement, the following events shall constitute " Cause" : (i) the conviction of the Employee by a court

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of competent jurisdiction of a crime involving moral turpitude; (ii) the commission, or attempted commission, by the Employee of an act of fraud on the Company; (iii) the misappropriation, or attempted misappropriation, by the Employee of any funds or property of the Company; (iv) the continued and unreasonable failure by the Employee to perform in any material respect his obligations under the terms of this Agreement; (v) the knowing engagement by the Employee, without the written approval of the Board of Directors, in any direct, material conflict of interest with the Company without compliance with the Company' s conflict of interest policy; (vi) the knowing engagement by the Employee, without the written approval of the Board of Directors, in any activity which competes with the business of the Company or which would result in a material injury to the Company; or (vii) the knowing engagement by the Employee in any activity that would constitute a material violation of the provisions of the Company' s Insider Trading Policy or Business Ethics Policy, if any, then in effect.If the Company terminates the Employee' s employment under this Agreement for reasons other than Cause or if Employee terminates his employment for Good Reason (as defined below), then the Company shall, subject to the terms of this Section 7, pay to the Employee (or his estate or representative, as appropriate) an amount equal to twelve (12) months compensation at his then current salary, payable bi-monthly or in accordance with the Company' s payroll procedures, and shall continue to provide benefits in the kind and amounts provided up through the date of termination for the twelve (12) month period, including, without limitation, continuation of any Company-paid benefits as described in Section 5 of this Agreement for the Employee and his family. In the event that Employee has not obtained full-time employment with another company at the expiration of twelve (12) months following his termination of employment from the Company (except for Cause), Employee shall be entitled to continuation of benefits as provided herein under Company plans, at his own expense, until the earlier of the date he becomes a full ...