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) 


 


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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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total voting power represented by the Company’s then
outstanding voting securities without the
approval 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 the Board of Directors of the Company,
other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least fifty percent (50%) of the total
voting power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
the stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company 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, as a result of which
fewer than a majority of the directors are Incumbent Directors. “Incumbent Directors”
shall mean directors who either (A) are directors of the Company as of May 13,
1997 or (B) are elected, or nominated for election, to the Board of
Directors of the Company with the affirmative votes of at least a majority of
the Incumbent Directors at the time of such election or nomination (but shall
not include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors to the
Company).


 


(b)           Cause.  “Cause” shall mean (i) gross negligence
or willful misconduct in the performance of the Employee’s duties to the
Company where such gross negligence or willful misconduct has resulted or is
likely to result in substantial and material damage to the Company or its
subsidiaries, (ii) repeated unexplained or unjustified absence from the
Company, (iii) a material and willful violation of any federal or state
law; (iv) commission of any act of fraud with respect to the Company; or (v) conviction
of a felony or a crime involving moral turpitude causing material harm to the
standing and reputation of the Company, in each case as determined in good
faith by the Board of Directors of the Company.


 


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


 


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(d)           “Separation from Service” with
respect to the Employee means the Employee’s “separation from service” as  defined in the Treasure Regulation Section 1.409A-1(h).


 


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


 


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


 


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


 


8.             Miscellaneous
Provisions.


 


(a)           Notwithstanding
anything to the contrary in this Agreement, if at the time of the Employee’s
termination of employment with the Company, the Employee is a “specified
employee” as defined in Code Section 409A, as determined by the Company in
accordance with Section 409A of the Code, and the deferral of the
commencement of any payments or benefits otherwise payable hereunder as a
result of such termination of employment is necessary in order to prevent any
accelerated or additional tax under Section 409A of the Code, then the
Company will defer the commencement of the payment of any such payments or
benefits hereunder (without any reduction in the payments or benefits
ultimately paid or provided to Employee) until the date that is at least six (6) months
following the Employee’s termination of employment with the Company (or the
earliest date permitted under Section 409A of the Code), whereupon the
Company will pay the Employee a lump-sum amount equal to the cumulative amounts
that would have otherwise been previously paid to the Employee under this
Agreement during the period in which such payments or 


 


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benefits were deferred. 
Thereafter, payments will resume in accordance with this Agreement.


 


(b)           No
Duty to Mitigate.  The Employee shall
not be required to mitigate the amount of any payment contemplated by this
Agreement (whether by seeking new employment or in any other manner), nor,
except as otherwise provided in this Agreement, shall any such payment be
reduced by any earnings that the Employee may receive from any other source.


 


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


 


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


 


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


 


(h)           Severability.  If any term or provision of this Agreement or
the application thereof to any circumstance shall, in any jurisdiction and to
any extent, be invalid or unenforceable, such term or provision shall be
ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
terms and provisions of this Agreement or the application of such terms and
provisions to circumstances other than those as to which it is held invalid or
unenforceable, and a suitable and equitable term or provision shall be
substituted therefor to carry out, insofar as may be valid and enforceable, the
intent 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 Agreement
shall, at the option of either party hereto, be settled by final and binding
arbitration in San Clara County, California, before a single neutral arbitrator
in accordance with the National Rules for the Resolution of Employment
Disputes (the “Rules”) of the American Arbitration
Association, and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction. 
Arbitration may be compelled pursuant to the California Arbitration Act
(Code of Civil Procedure §§ 1280 et seq.).  If the parties are unable to agree upon an
arbitrator, one shall be appointed by the AAA in accordance with 


 


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its Rules.  Each party shall pay the fees of its own
attorneys, the expenses of its witnesses and all other expenses connected with
presenting its case; however,
the Employee and the Company agree that, to the extent permitted by law, the
arbitrator may, in his discretion, award reasonable attorneys’ fees to the
prevailing party.  Other costs of the
arbitration, including the cost of any record or transcripts of the
arbitration, AAA’s administrative fees, the fee of the arbitrator, and all
other fees and costs, shall be borne by the Company.  If either of the parties hereto elect to
submit 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 for
resolving any and all claims by the parties against each other for payment of
damages under this Agreement or relating to the Employee’s employment; provided, however, that neither this
Agreement nor the submission to arbitration shall limit the parties’ right to
seek provisional relief, including, without limitation, injunctive relief, in
any court of competent jurisdiction pursuant to California Code of Civil
Procedure § 1281.8 or any similar statute of an applicable jurisdiction.  Seeking any such relief shall not be deemed
to be a waiver of such party’s right to compel arbitration. Pursuant to
California Civil Code Section 1717, each party warrants that it was
represented by counsel in the negotiation and execution of this Agreement,
including the attorneys’ fees provision herein


 


(j)            Legal Fees and Expenses.  The parties shall each bear their own
expenses, legal fees and other fees incurred in connection with this Agreement.


 


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


 


(l)            Employment Taxes.  All payments made pursuant to this Agreement
will be subject to withholding of applicable income and employment taxes.


 


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


 


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


 


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


 


	
  CONCEPTUS, INC.

  	
  KATHRYN A. TUNSTALL

  
	
   

  	
   

  
	
  /s/ Mark Sieczkarek

  	
  /s/ Kathryn A. Tunstall

  
	
   

  	
   

  
	
  By:

  	
  Mark Sieczkarek

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  President and Chief
  Executive Officer

  	
   

  
				



 


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