Exhibit 10.2
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 January 1, 2009, 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)
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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 13d-3 under
said Act), directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the
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