**Exhibit 10.2**

 

**AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT**

 

This Amended and Restated Change of ControlAgreement (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 intothat 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 orother entity may from time to timeconsiderthe possibility of acquiring the Company or that a change of control mayotherwiseoccur, with or without the approval ofthe Company’s Board of Directors (the “Board”).  TheBoardrecognizes that such consideration can be a distraction to the Employee, theChairman of the Board of the Company, and can cause the Employee to consideralternative opportunities.  The Board has determined that it is in the best interestsof the Company anditsstockholders to assure that the Company will have the continued dedication andobjectivity of the Employee, notwithstanding thepossibility, threat or occurrence of a Change of Control (as defined below) ofthe Company.

 

C.                                     The Board believes that it is in the best interests ofthe Company and its stockholders to provide the Employee with an incentive tocontinue his or her employment with the Company.

 

D.                                    The Board believes that it is imperativeto provide the Employee with certain benefits upon a Change of Control and,under certain circumstances, upon termination of the Employee’s employment inconnection with a Change of Control, which benefits are intended to provide theEmployee with financial security and provide sufficient income andencouragement to the Employee to remain with the Company notwithstanding thepossibility of a Change of Control.

 

E.                                      To accomplish the foregoing objectives,the Board of Directors has directed the Company, upon execution of thisAgreement by the Employee, to agree to the terms provided in this Agreement.

 

F.                                      Certain capitalized terms used in theAgreement are defined in Section 4 below.

 

In consideration of the mutual covenants containedin this Agreement, and in consideration of the continuing employment ofEmployee by the Company, the parties agree as follows:

 

1.                                       At-Will Employment. The Company and theEmployee acknowledgethat theEmployee’s employment isand shall continue to be at-will, as defined underapplicable law. If theEmployee’s employmentterminates for any reason, 

 

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including (withoutlimitation) any termination prior to a Changeof Control, the Employee shall not be entitledto any payments or benefits, other than asprovided by this Agreement, or as may otherwisebe available in accordance with the terms ofthe Company’s then existingemployee plans andwrittenpolicies in effect at the time of termination.  The terms ofthis Agreement shallterminate uponthe earlier of (i) the date on which Employee ceases to be employed as theChairman of the Board of the Company, other than as a result of an involuntarytermination by theCompany withoutCause (ii) the date that all obligations of the parties hereunder havebeensatisfied, or (iii) two(2) years after a Change of Control. A termination of the terms of thisAgreement pursuant to thepreceding sentence shall be effective for all purposes, except thatsuch termination shall notaffect the payment or provision of compensation or benefits onaccount of a termination ofemployment occurring prior to the termination of the terms of thisAgreement.

 

2.                                       Stock Options and other Equity Awards. Subject to Sections 5 and 6 below, in the event of a Change of Controland regardless of whether Employee’s employment with the Company is terminatedin connection with the Change of Control, each stock option or other equityaward granted for the Company’s securities held by the Employee shall becomefully vested and immediately exercisable and any contractual restrictions ontransfer will thereupon lapse on the effective date of the transaction andshall be exercisable to the extent so vested in accordance with the provisionsof the Stock Option Agreement or other agreement and Stock Option Plan or otherequity plan pursuant to which such stock option or other equity award wasgranted.

 

3.                                       Change of Control.

 

(a)                                  TerminationFollowing A Change of Control.  Subject to Section 5 and 6 below, if theEmployee’s employment with the Company is terminated at any time within two (2) yearsafter a Change of Control, then the Employee shall be entitled to receiveseverance benefits as follows:

 

(i)                                     Voluntary Resignation. If the Employee voluntarily resigns from the Company (other than as anInvoluntary Termination (as defined below) or if the Company terminates theEmployee’s employment for Cause (as defined below)), then the Employee shallnot be entitled to receive severance payments. Subject to Section 3(b), the Employee’s benefits will be terminatedunder the terms of the Company’s then existing benefit plans and policies inaccordance with such plans and policies in effect on the date of termination oras 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 InvoluntaryTermination other than for Cause, the Employee shall be entitled to receive thefollowing benefits:  (i) severancepayments during the period from the date of the Employee’s termination untilthe date 18 months after the effective date of the termination (the “SeverancePeriod”) equal to the salary which the Employee was receiving at the time ofsuch termination, which payments shall be paid in substantially equal bi-weeklyinstallments during the Severance Period; (ii) 

 

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continuation of all health and life insurance benefitsthrough the end of the Severance Period substantially identical to those towhich the Employee was entitled immediately prior to the termination, or tothose being offered to officers of the Company, or a successor corporation, ifthe Company’s benefit programs are changed during the Severance Period (and theEmployee shall be eligible to invoke her rights under Section 3(b) thereafter);and (iii) reimbursement for additional health care premiums during orafter the Severance Period and not already covered by clause (ii) with atotal value not to exceed $15,000.  Forpurposes of Section 409A of the Internal Revenue Code of 1986, as amended(the “Code”) (including, without limitation, for purposes of TreasuryRegulation Section 1.409A-2(b)(2)(iii)), the Employee’s right to receivethe installment payments above shall be treated as a right to receive a seriesof separate payments and, accordingly, each installment payment shall at alltimes be considered a separate and distinct payment.

 

(iii)                               Involuntary Termination for Cause. If the Employee’s employment is terminated for Cause, then the Employeeshall not be entitled to receive severance payments.  The Employee’s benefits will be terminatedunder the Company’s then existing benefit plans and policies in accordance withsuch plans and policies in effect on the date of termination.

 

(b)                                 TerminationApart from A Change of Control; Health Care Coverage.  In the event the Employee’s employmentterminates for any reason, either prior to the occurrence of a Change ofControl or after the two year period following the effective date of a Changeof Control, then the Employee shall not be entitled to receive any severancepayments under this Agreement.  TheEmployee’s benefits will be terminated under the terms of the Company’s thenexisting benefit plans and policies in accordance with such plans and policiesin effect on the date of termination or as otherwise determined by the Board ofDirectors of the Company. Notwithstanding the foregoing but not in diminution of any otherprovision of this Agreement, if the Employee’s employment with the Companyterminates at anytime due to Employee’s retirement or for any other reason, thenat the Employee’s request, the Company shall use its best efforts to makehealth care benefits coverage available to the Employee, and if the Employeeelects such coverage, the Employee shall pay the incremental out-of-pocketcosts incurred by the Company in connection with obtaining such coverage forthe Employee.

 

4.                                       Definition of Terms. The following terms referred to in this Agreement shall have thefollowing meanings:

 

(a)                                  Change ofControl.  “Change of Control” shall meanthe 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 SecuritiesExchange Act of 1934, as amended) is or becomes the “Beneficial Owner” (asdefined in Rule 13d-3 under said Act), directly or indirectly, ofsecurities of the Company representing twenty percent (20%) or more of the 

 

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total voting power represented by the Company’s thenoutstanding voting securities without theapproval of the Board of Directors of the Company; or

 

(ii)                                  Merger/Sale of Assets. A merger or consolidation of the Company whether or not approved by theBoard of Directors of the Company, other than a merger or consolidation whichwould result in the voting securities of the Company outstanding immediatelyprior thereto continuing to represent (either by remaining outstanding or bybeing converted into voting securities of the surviving entity) at least fiftypercent (50%) of the total voting power represented by the voting securities ofthe Company or such surviving entity outstanding immediately after such mergeror consolidation, or the stockholders of the Company approve a plan of completeliquidation of the Company or an agreement for the sale or disposition by theCompany of all or substantially all of the Company’s assets.

 

(iii)                               Change in Board Composition. A change in the composition of the Board of Directors of the Company, asa result of which fewer than a majority of the directors are IncumbentDirectors. “Incumbent Directors” shall mean directors who either (A) aredirectors of the Company as of May 13, 1997 or (B) are elected, ornominated for election, to the Board of Directors of the Company with theaffirmative votes of at least a majority of the Incumbent Directors at the timeof such election or nomination (but shall not include an individual whoseelection or nomination is in connection with an actual or threatened proxycontest relating to the election of directors to the Company).

 

(b)                                 Cause.  “Cause” shall mean (i) gross negligenceor willful misconduct in the performance of the Employee’s duties to theCompany where such gross negligence or willful misconduct has resulted or islikely to result in substantial and material damage to the Company or itssubsidiaries, (ii) repeated unexplained or unjustified absence from theCompany, (iii) a material and willful violation of any federal or statelaw; (iv) commission of any act of fraud with respect to the Company; or (v) convictionof a felony or a crime involving moral turpitude causing material harm to thestanding and reputation of the Company, in each case as determined in goodfaith by the Board of Directors of the Company.

 

(c)                                  InvoluntaryTermination.  “InvoluntaryTermination” means the Employee’s Separation from Service (as defined below)initiated by the Company other than for Cause or the Employee’s Separation fromService with the Company by reason of resignation, upon 30 days prior writtennotice to the Company, following (i) any material reduction of the Employee’sbase compensation (other than in connection with a general decrease in basesalaries for most similarly situated employees of the successor corporation);or (ii) a material change in the geographic location at which the Employeeperforms services for the Company.  The Employee’s Separation from Service byreason of resignation from employment with the Company shall be an “InvoluntaryTermination” only if the Employee provides notice to the Company of thecondition giving rise to her Involuntary Termination within 90 days after theinitial existence of such condition.

 

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(d)                                 “Separationfrom Service” with respect to the Employee means the Employee’s “separationfrom service” within the meaning of Section 409A of the Code and theregulations promulgated thereunder, including Treasury Regulation Section 1.409A-1(h).

 

5.                                       Limitation on Payments. To the extent that any of the payments or benefits provided for in thisAgreement to the Employee constitute “parachute payments” within the meaning ofSection 280G of the Code and, but for this Section 5, would besubject to the excise tax imposed by Section 4999 of the Code, the Companyshall reduce the aggregate amount of such payments and benefits such that thepresent value thereof (as determined under the Code and the applicableregulations) is equal to 2.99 times the Employee’s “base amount” as defined in Section 280G(b)(3) ofthe Code.

 

6.                                       Successors.  Any successorto the Company (whether direct or indirect and whether by purchase, lease,merger, consolidation, liquidation or otherwise) to all or substantially all ofthe Company’s business and/or assets shall assume the obligations under thisAgreement and agree expressly to perform the obligations under this Agreementin the same manner and to the same extent as the Company would be required toperform such obligations in the absence of a succession.  The terms of this Agreement and all of theEmployee’s rights hereunder shall inure to the benefit of, and be enforceableby, the Employee’s personal or legal representatives, executors,administrators, successors, heirs, distributees, devisees and legatees.

 

7.                                       Notice.  Notices andall other communications contemplated by this Agreement shall be in writing andshall be deemed to have been duly given when personally delivered or whenmailed by U.S. registered or certified mail, return receipt requested andpostage prepaid.  Mailed notices to theEmployee shall be addressed to the Employee at the home address which theEmployee most recently communicated to the Company in writing.  In the case of the Company, mailed noticesshall be addressed to its corporate headquarters, and all notices shall bedirected to the attention of its Secretary.

 

8.                                       Miscellaneous Provisions.

 

### (a)                                  Section 409A of theCode.  Notwithstanding any provisionto the contrary in the Agreement, if the Employee is deemed by the Company atthe time of her Separation from Service to be a “specified employee” forpurposes of Section 409A(a)(2)(B)(i) of the Code, to the extentdelayed commencement of any portion of the termination benefits to which theEmployee is entitled under this Agreement is required in order to avoid aprohibited distribution under Section 409A(a)(2)(B)(i) of the Code,such portion of the Employee’s termination benefits shall not be provided tothe Employee prior to the earlier of (i) the expiration of the six-monthperiod measured from the date of the Employee’s Separation from Service withthe Company or (ii) the date of the Employee’s death.  Upon the first business day following theexpiration of the applicable Code Section 409A(a)(2)(B)(i) deferralperiod, all payments deferred pursuant to this Section shall be paid in alump sum to the Employee (or the Employee’s estate or beneficiaries), and anyremaining payments due under the Agreement shall be paid as otherwise providedherein.  To the extent that anyreimbursements payable pursuant to 

 

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### this Agreement are deemed deferred compensation subject to theprovisions of Section 409A of the Code, any such reimbursements shall be paid to the Employee no later than December 31of the year following the year in which the cost was incurred, the amount ofexpenses reimbursed in one year shall not affect the amount eligible forreimbursement in any subsequent year, and the Employee’s right to reimbursementunder this Agreement will not be subject to liquidation or exchange for anotherbenefit.

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### (b)                                 No Duty to Mitigate.  The Employee shall not be required tomitigate the amount of any payment contemplated by this Agreement (whether byseeking new employment or in any other manner), nor, except as otherwiseprovided in this Agreement, shall any such payment be reduced by any earningsthat the Employee may receive from any other source.

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(e)                                  Waiver.  No provision of this Agreement shall bemodified, waived or discharged unless the modification, waiver or discharge isagreed to in writing and signed by the Employee and by an authorized officer ofthe Company (other than the Employee). No waiver by either party of any breachof, or of compliance with, any condition or provision of this Agreement by theother party shall be considered a waiver of any other condition or provision orof the same condition or provision at another time.

 

(f)                                    Whole Agreement.  No agreements, representations orunderstandings (whether oral or written and whether express or implied) whichare not expressly set forth in this Agreement have been made or entered into byeither party with respect to the subject matter hereof.  This Agreement supersedes any agreement ofthe same title and concerning similar subject matter dated prior to the date ofthis Agreement, including the Original Agreement, and by execution of thisAgreement both parties agree that any such predecessor agreement shall bedeemed null and void.

 

(g)                                 Choice of Law.  The validity, interpretation, constructionand performance of this Agreement shall be governed by the laws of the State ofCalifornia without reference to conflict of laws provisions.

 

(h)                                 Severability.  If any term or provision of this Agreement orthe application thereof to any circumstance shall, in any jurisdiction and toany extent, be invalid or unenforceable, such term or provision shall beineffective as to such jurisdiction to the extent of such invalidity orunenforceability without invalidating or rendering unenforceable the remainingterms and provisions of this Agreement or the application of such terms andprovisions to circumstances other than those as to which it is held invalid orunenforceable, and a suitable and equitable term or provision shall besubstituted therefor to carry out, insofar as may be valid and enforceable, theintent and purpose of the invalid or unenforceable term or provision.

 

(i)                                     Arbitration.  Any dispute, claim or controversy based on,arising out of or relating to the Employee’s employment or this Agreementshall, at the option of either party hereto, be settled by final and bindingarbitration in San Clara County, California, before a single neutral arbitratorin accordance with the National Rules for the Resolution of EmploymentDisputes (the “Rules**”**) of the American 

 

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Arbitration Association, andjudgment on the award rendered by the arbitrator may be entered in any courthaving jurisdiction.  Arbitration may becompelled pursuant to the California Arbitration Act (Code of Civil Procedure§§ 1280 et seq.).  If the partiesare unable to agree upon an arbitrator, one shall be appointed by the AAA inaccordance with its Rules.  Each partyshall pay the fees of its own attorneys, the expenses of its witnesses and allother expenses connected with presenting its case; however, the Employee and the Company agree that, to the extentpermitted by law, the arbitrator may, in his discretion, award reasonableattorneys’ fees to the prevailing party. Other costs of the arbitration, including the cost of any record ortranscripts of the arbitration, AAA’s administrative fees, the fee of thearbitrator, and all other fees and costs, shall be borne by the Company.  If either of the parties hereto elect tosubmit a dispute, claim or controversy to arbitration in accordance with this Section 8(i),this Section 8(i) is intended to be the exclusive method forresolving any and all claims by the parties against each other for payment ofdamages under this Agreement or relating to the Employee’s employment; provided, however, that neither thisAgreement nor the submission to arbitration shall limit the parties’ right toseek provisional relief, including, without limitation, injunctive relief, inany court of competent jurisdiction pursuant to California Code of CivilProcedure § 1281.8 or any similar statute of an applicable jurisdiction.  Seeking any such relief shall not be deemedto be a waiver of such party’s right to compel arbitration. Pursuant toCalifornia Civil Code Section 1717, each party warrants that it wasrepresented by counsel in the negotiation and execution of this Agreement,including the attorneys’ fees provision herein

 

(j)                                     Legal Fees andExpenses.  The partiesshall each bear their own expenses, legal fees and other fees incurred inconnection with this Agreement.

 

(k)                                  No Assignmentof Benefits.  The rightsof any person to payments or benefits under this Agreement shall not be madesubject to option or assignment, either by voluntary or involuntary assignmentor by operation of law, including (without limitation) bankruptcy, garnishment,attachment or other creditor’s process, and any action in violation of thissubsection (i) shall be void.

 

(l)                                     EmploymentTaxes.  All payments made pursuant tothis Agreement will be subject to withholding of applicable income andemployment taxes.

 

(m)                               Assignment byCompany.  The Company may assign itsrights under this Agreement to an affiliate, and an affiliate may assign itsrights under this Agreement to another affiliate of the Company or to theCompany; provided, however, that no assignment shall be made if the net worth ofthe assignee is less than the net worth of the Company at the time ofassignment. In the case of any such assignment, the term “Company” when used ina section of this Agreement shall mean the corporation that actually employsthe Employee.

 

(n)                                 Counterparts.  This Agreement may be executed incounterparts, each of which shall be deemed an original, but all of whichtogether will constitute one and the same instrument.

 

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IN WITNESS WHEREOF, each of the parties hasexecuted this Agreement, in the case of the Company by its duly authorizedofficer, as of the day and year first above written.

 
| CONCEPTUS, INC. |                             | KATHRYN A. TUNSTALL |
|-----------------|----------------------------------|---------------------|
|            |                             |                |
|            |                             |                |
| By:             | /s/ Gregory E. Lichtwardt        |                | /s/ Kathryn A. Tunstall |
|            |                             |                |   |
| Title:          | Executive VP, Treasurer  and CFO |                |   |

 

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