Exhibit 10.1
AMENDED AND RESTATED CHANGE OF
CONTROL AGREEMENT
This Amended and
Restated Change of Control Agreement (the “Agreement”)
is made and entered into effective as of December 14, 2007, by
and between Kathryn A. Tunstall (the “Employee”) and
Conceptus, Inc., a Delaware corporation (the
“Company”).
R E C I T A L
S
A.
The Company and Employee entered into that certain Change of
Control Agreement effective as of May 13, 1997 (the
“Original Agreement”) and now wish to amend and restate
the Original Agreement.
B.
It is expected that another company or other entity may from time
to time consider
the possibility of acquiring the Company or that a change of
control may otherwise occur, with or without the approval of the
Company’s Board of Directors (the
“Board”). The Board recognizes that such consideration can be
a distraction to the Employee, the Chairman of the Board of the
Company, and can cause the Employee to consider alternative
opportunities. The Board has determined that it is in the best
interests of the Company and its stockholders to assure that the Company
will have the continued dedication and objectivity of the Employee, notwithstanding
the possibility, threat or occurrence of a Change of Control (as
defined below) of the Company.
C.
The Board believes that it is in the
best interests of the Company and its stockholders to provide the
Employee with an incentive to continue his or her employment
with the Company.
D.
The Board believes that it is imperative to provide the Employee
with certain benefits upon a Change of Control and, under certain
circumstances, upon termination of the Employee’s employment
in connection with a Change of Control, which benefits are intended
to provide the Employee with financial security and provide
sufficient income and encouragement to the Employee to remain with
the Company notwithstanding the possibility of a Change of
Control.
E.
To accomplish the foregoing objectives, the Board of Directors has
directed the Company, upon execution of this Agreement by the
Employee, to agree to the terms provided in this
Agreement.
F.
Certain capitalized terms used in the Agreement are defined in
Section 4 below.
In consideration
of the mutual covenants contained in this Agreement, and in
consideration of the continuing employment of Employee by the
Company, the parties agree as follows:
1.
At-Will Employment . The Company and the Employee
acknowledge that
the Employee ’ s employment is and shall continue to be
at-will, as defined under applicable law. If the Employee ’ s employment terminates for any
reason,
including
(without limitation) any termination prior to a Change
of Control, the Employee shall not be entitled to any payments or benefits, other
than as provided by this Agreement, or as may otherwise
be available in accordance
with the terms of the Company ’ s then existing employee plans and
written policies in effect
at the time of termination. The terms of this Agreement shall
terminate upon the earlier
of (i) the date on which Employee ceases to be employed as the
Chairman of the Board of the Company, other than as a result of an
involuntary termination by the Company without Cause (ii) the date that
all obligations of the parties hereunder have been
satisfied, or
(iii) two (2) years after a Change of Control. 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.
2.
Stock Options and other Equity Awards . Subject to
Sections 5 and 6 below, in the event of a Change of Control and
regardless of whether Employee’s employment with the Company
is terminated in connection with the Change of Control, each stock
option or other equity award granted for the Company’s
securities held by the Employee shall become fully vested and
immediately exercisable and any contractual restrictions on
transfer will thereupon lapse on the effective date of the
transaction and shall be exercisable to the extent so vested in
accordance with the provisions of the Stock Option Agreement or
other agreement and Stock Option Plan or other equity plan pursuant
to which such stock option or other equity award was
granted.
3.
Change of Control .
(a)
Termination Following A Change of Control . Subject to
Section 5 and 6 below, if the Employee’s employment with
the Company is terminated at any time within two (2) years
after a Change of Control, then the Employee shall be entitled to
receive severance benefits as follows:
(i)
Voluntary Resignation . If the Employee voluntarily
resigns from the Company (other than as an Involuntary Termination
(as defined below) or if the Company terminates the
Employee’s employment for Cause (as defined below)), then the
Employee shall not be entitled to receive severance payments.
Subject to Section 3(b), the Employee’s benefits will be
terminated under the terms of the Company’s then existing
benefit plans and policies in accordance with such plans and
policies in effect on the date of termination or as otherwise
determined by the Board of Directors of the Company.
(ii)
Involuntary Termination . If the Employee’s
employment is terminated as a result of an Involuntary Termination
other than for Cause, the Employee shall be entitled to receive the
following benefits: (i) severance payments during the
period from the date of the Employee’s termination until the
date 18 months after the effective date of the termination (the
“Severance Period”) equal to the salary which the
Employee was receiving at the time of such termination, which
payments shall be paid in substantially equal bi-weekly
installments during the Severance Period; (ii)
2
continuation of
all health and life insurance benefits through the end of the
Severance Period substantially identical to those to which the
Employee was entitled immediately prior to the termination, or to
those being offered to officers of the Company, or a successor
corporation, if the Company’s benefit programs are changed
during the Severance Period (and the Employee shall be eligible to
invoke her rights under Section 3(b) thereafter); and
(iii) reimbursement for additional health care premiums during
or after the Severance Period and not already covered by clause
(ii) with a total value not to exceed $15,000. For
purposes of Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”) (including, without limitation,
for purposes of Treasury Regulation
Section 1.409A-2(b)(2)(iii)), the Employee’s right to
receive the installment payments above shall be treated as a right
to receive a series of separate payments and, accordingly, each
installment payment shall at all times be considered a separate and
distinct payment.
(iii)
Involuntary Termination for Cause . If the
Employee’s employment is terminated for Cause, then the
Employee shall not be entitled to receive severance payments.
The Employee’s benefits will be terminated under the
Company’s then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of
termination.
(b)
Termination Apart from A Change of Control; Health Care
Coverage . In the event the Employee’s employment
terminates for any reason, either prior to the occurrence of a
Change of Control or after the two year period following the
effective date of a Change of Control, then the Employee shall not
be entitled to receive any severance payments under this
Agreement. The Employee’s benefits will be terminated
under the terms of the Company’s then existing benefit plans
and policies in accordance with such plans and policies in effect
on the date of termination or as otherwise determined by the Board
of Directors of the Company. Notwithstanding the foregoing
but not in diminution of any other provision of this Agreement, if
the Employee’s employment with the Company terminates at
anytime due to Employee’s retirement or for any other reason,
then at the Employee’s request, the Company shall use its
best efforts to make health care benefits coverage available to the
Employee, and if the Employee elects such coverage, the Employee
shall pay the incremental out-of-pocket costs incurred by the
Company in connection with obtaining such coverage for the
Employee.
4.
Definition of Terms . The following terms referred to
in this Agreement shall have the following meanings:
(a)
Change of Control . “Change of Control”
shall mean the occurrence of any of the following
events:
(i)
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&n
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