Exhibit 10.3
AMENDED AND
RESTATED
CHANGE OF CONTROL
AGREEMENT
On April 30, 2008, Ulric E.
Cote (the “Employee”) and Conceptus, Inc., a
Delaware corporation (the “Company”) entered into a
Change of Control Agreement (the “Prior Agreement”),
and the Company and the Employee wish to amend and restate the
Prior Agreement in its entirety, effective as of this 9th day of
September, 2008 (the “Effective Date”), pursuant to the
terms and conditions set forth in this Amended and Restated Change
of Control Agreement (the “Agreement”).
RECITALS
A.
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, an
executive officer or director-level employee of the Company, and
can cause the Employee to consider alternative employment
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.
B.
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.
C.
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.
D.
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.
E.
Certain capitalized terms used in
the Agreement are defined in Section 4 below.
AGREEMENT
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 required under applicable
law or 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 earliest of (i) the date on which Employee ceases to
be employed as an executive officer or director-level employee of
the Company; (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.
EQUITY AWARDS.
(a)
HOSTILE TAKEOVER. Subject to
Sections 5 and 6 below, in the event of a Hostile Takeover and
regardless of whether the Employee’s employment with the
Company is terminated in connection with the Hostile Takeover, each
stock option, stock appreciation right, restricted stock award,
restricted stock unit award or other equity-based award with
respect to the Company’s securities (collectively the
“Equity Awards”) held by the Employee shall become
fully vested and/or immediately exercisable, as applicable,
immediately prior to the consummation of the transaction and with
respect to the Equity Awards which are in the form of stock options
or stock appreciation rights, shall be exercisable to the extent so
vested in accordance with the provisions of the agreement and plan
pursuant to which such Equity Awards were granted.
(b)
CHANGE OF CONTROL. Subject to
Sections 5 and 6 below, in the event of a Change of Control and
regardless of whether the Employee’s employment with the
Company is terminated in connection with the Change of Control,
each Equity Award held by the Employee shall become vested and/or
immediately exercisable immediately prior to the consummation of
the transaction as to one hundred percent (100%) of the shares
subject to such Equity Award that have not otherwise vested as of
such date. The shares subject to each Equity Award that
remain unvested as of the effective date of the transaction shall
thereafter vest at the same rate (that is, the same number of
shares shall vest during each vesting period) that was in effect
prior to the Change of Control, and shall accordingly vest over a
period that is one-half of the total vesting period that would
otherwise be then remaining under the terms of the agreement
pursuant to which each such Equity Award was granted, subject to
any acceleration based on the subsequent attainment of performance
targets.
3.
CHANGE OF CONTROL.
(a)
TERMINATION FOLLOWING A CHANGE OF
CONTROL. Subject to Sections 5 and 6 below, if the
Employee’s employment with the Company is terminated at
any
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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 under this Agreement. 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 or as otherwise
determined by the Board of Directors of the Company.
(ii)
INVOLUNTARY TERMINATION. If
the Employee’s employment terminates as a result of an
Involuntary Termination other than for Cause and the termination
constitutes a separation from service within the meaning of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”) and the regulations promulgated
thereunder, including Treasury Regulation
Section 1.409A-1(h) (a “Separation from
Service”), the Employee shall be entitled to receive the
following benefits:
(A)
severance payments during the period
from the date of the Employee’s Separation from Service until
the date 18 months after the effective date of the termination (the
“Severance Period”) equal to the salary which the
Employee was receiving immediately prior to the Change of Control,
which payments shall be paid during the Severance Period in
accordance with the Company’s standard payroll
practices;
(B)
monthly severance payments during
the Severance Period equal to 1/12th of the Employee’s
“target bonus” (as defined below) for the fiscal year
in which the termination occurs (or the most recent fiscal year for
which a cash target bonus was determined if a cash target bonus has
not yet been determined for the fiscal year in which the
termination occurs). For purposes of this Agreement, the term
“target bonus” shall mean a cash bonus equal to the
Employee’s base salary in effect immediately prior to the
Change of Control multiplied by that percentage of such base salary
that is prescribed by the Company under its Officer Incentive Plan
as the percentage of such base salary payable to the Employee as a
cash bonus if the Company pays bonuses at one-hundred percent
(100%) of its operating plan;
(C)
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;
(D)
full and immediate vesting of each
Equity Award held by the Employee on the date of termination so
that each such Equity Award which is a stock option or a stock
appreciation right shall be exercisable in full and all shares
subject to other Equity Awards shall be fully vested on the
termination date in accordance with the provisions of the agreement
and plan pursuant to which such Equity Awards were granted;
and
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(E)
outplacement services with a total
value not to exceed $15,000, provided that such outplacement
benefits shall end not later than the last day of the second
calendar year that begins after the date of the Employee’s
Separation from Service.
(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 under this Agreement. 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.
(i)
In the event the Employee’s
employment terminates for any reason, either prior to the
occurrence of a Change of Control (other than an Anticipatory
Termination) 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.
(ii)
Notwithstanding anything contained
in this Agreement to the contrary, if the Employee’s
employment is terminated as a result of an Anticipatory
Termination, then (A) the Employee shall be entitled to the
severance payments and benefits described in
Section 3(a)(ii) and the Severance Period shall commence
on the date of the Hostile Takeover or Change of Control,
(B) for purposes of determining the amount of the severance
benefits described in Sections 3(a)(ii)(A) and (B), the
payments shall be based on the salary which the Employee was
receiving immediately prior to the date of his or her termination
of employment, and (C) in no event shall this
Section 3(b)(ii) create an extension of the exercise
period of an Equity Award which is a stock option or stock
appreciation right beyond the earlier of the latest date upon which
the Equity Award could have expired by its original terms under any
circumstances or the tenth (10 th )
anniversary of the original date of grant of the Equity
Award.
(c)
CODE SECTION 409A.
Notwithstanding any provision to the contrary in the Agreement, if
the Employee is deemed by the Company at the time of his or her
Separation from Service to be a “specified employee”
for purposes of Section 409A(a)(2)(B)(i) of the Code, to
the extent delayed commencement of any portion of the termination
benefits to which the Employee is entitled under this Agreement is
required in order to avoid a prohibited distribution under
Section 409A(a)(2)(B)(i) of the Code, such portion of the
Employee’s termination benefits shall not be provided to the
Employee prior to the earlier of (i) the expiration of the
six-month period measured from the date of the Employee’s
Separation from Service with the Company or (ii) the date of
the Employee’s death. Upon the first business day
following the expiration of the applicable Code
Section 409A(a)(2)(B)(i
