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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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)
initiated by the Company other than for Cause or 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” within the meaning of Section 409A of the Code and the
regulations 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 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)                                  Section 409A of the
Code.  Notwithstanding any provision
to the contrary in the Agreement, if the Employee is deemed by the Company at
the time of 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) deferral
period, all payments deferred pursuant to this Section shall be paid in a
lump sum to the Employee (or the Employee’s estate or beneficiaries), and any
remaining payments due under the Agreement shall be paid as otherwise provided
herein.  To the extent that any
reimbursements payable pursuant to 


 


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


 


(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 


 


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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 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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Gregory E. Lichtwardt

  	
   

  	
  /s/ Kathryn A. Tunstall

  
	
   

  	
   

  	
   

  	
   

  
	
  Title: 

  	
  Executive VP, Treasurer
  and CFO

  	
   

  	
   

  



 


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