**Exhibit 10.3**

 

**CONCEPTUS,INC.**

 

**SETTLEMENTAND MUTUAL RELEASE AGREEMENT**

 

This Settlementand Mutual Release Agreement (the “Agreement”) is made and entered intoas of 7-27, 2005 by and among Conceptus, Inc., a Delaware corporation (the“Company”) and Dr. Florence Comité,an individual (“Dr. Comité”).The Company and Dr. Comité aresometimes referred to herein each as a “Party” and collectively as the “Parties.”Except as expressly set forth herein, there are no third party beneficiaries tothis Agreement.

 

**RECITALS**

 

WHEREAS, theCompany and Dr. Comité entered intoa Master Consulting Agreement, dated September 10, 1997, as amendedthrough the date hereof (the “Consulting Agreement”);

 

WHEREAS, theCompany has previously notified Dr. Comitéthat it was terminating the Consulting Agreement effective as of December 31,2003 (the “Termination Date”);

 

WHEREAS, Dr. Comité has made various assertions and allegationsrelating to the Company’s performance under the Consulting Agreement, includingwithout limitation that the Company did not provide proper written notice to Dr. Comité of the Company’s intention to terminate theConsulting Agreement as of the Termination Date within the proper time periodspecified in the Consulting Agreement; and

 

WHEREAS, theParties wish to resolve all the issues and claims raised by Dr. Comité or the Company, and all those that could havebeen raised by Dr. Comité or theCompany arising out of or relating to the Consulting Agreement.

 

**AGREEMENT**

 

NOW, THEREFORE,for good and valuable consideration, the adequacy of which is herebyacknowledged, and in consideration of the mutual covenants and payment setforth herein, the parties hereto agree as follows:

 

**1.****             Payments.**Within seven (7) daysafter the execution of this Agreement by Dr. Comité, the Company shall pay to Dr. Comité the sum of $22,500.00.

 

**2.****             Releases and Terminations.**

 

(a)           (i)            Dr. Comité, on behalf of herself, and all of hersuccessors, heirs, assigns, benefit plans, plan trustees and planadministrators, past and present, and their attorneys, and all persons actingby, through, under or in concert with them or any of them and affiliated and/orassociated companies, corporations, partnerships and organizations and all oftheir present and former employees, officers, directors, shareholders,partners, owners, agents, attorneys, assigns, representatives, contractors,contract employees, and each of them (the “Comité Parties”), do hereby finally, fully, and forever release anddischarge the Company and its subsidiaries, affiliates, predecessors,successors, agents, representatives, officers, directors, employees,shareholders, insurers, heirs, assigns, benefit plans, plan trustees and plan

 

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administrators, past and present, and their attorneys, and all personsacting by, through, under or in concert with them or any of them (the “CompanyParties”) from any and all causes of action, claims, suits, debts, liens,contracts, liabilities, agreements, costs, or demands for expenses or losses ofany type, known or unknown (“Claims”), arising out of or relating to theConsulting Agreement, including without limitation any and all Claims made orraised or which could have been asserted by the Comité Parties.

 

(ii)           TheCompany, on behalf of itself and each of the Company Parties, does herebyfinally, fully, and forever release and discharge the Comité Parties from any and all Claims arising outof or relating to the Consulting Agreement, including without limitation anyand all Claims made or raised or which could have been asserted by the CompanyParties.

 

(b)           TheParties expressly waive the provisions of Section 1542 of the CaliforniaCivil Code which provides as follows:

 

**“Ageneral release does not extend to claims which the creditor does not know orsuspect to exist in his favor at the time of executing the release, which, ifknown by him, must have materially affected his settlement with the debtor.”**

 

(c)           Each Partyhereby represents and warrants to and agrees with the other Party that such Partyis the sole and lawful owner of all right, title, and interest in and to every Claimand every matter that such Party purports to release, and that such Party hasnot heretofore assigned or transferred, or purported or attempted to assign ortransfer to any person, or entity, any Claims or other matters herein released.

 

(d)           (i)            Dr. Comité shall indemnify, defend and hold harmlesseach of the Company Parties from and against, and reimburse each of the CompanyParties for any and all future Claims against such Company Parties arising outof or relating to such assignment or transfer by Dr. Comité of any Claims or other matters releasedherein.

 

(ii)           TheCompany shall indemnify, defend and hold harmless each of the Comité Parties from and against, and reimburse eachof the Comité Parties for any and allfuture Claims against such Comité Partiesarising out of or relating to such assignment or transfer by the Company of anyClaims or other matters released herein.

 

(e)           Except asotherwise provided herein, each Party represents, warrants and agrees that suchParty shall not bring, commence, institute, maintain or prosecute or allow any person,entity or organization to bring, commence, institute, maintain or prosecute inher or its name, any action at law or in equity, or any legal proceedingwhatsoever, in any jurisdiction, based in whole or in part, or arising out ofor relating to the Consulting Agreement, including without limitation any andall Claims made or raised or that could have been asserted by any Comité Party or any Company Party. Notwithstanding Section 3(d) below,this Agreement may be pled as a full and complete defense to, and may be usedas a basis for injunctive relief against, any action, suit or other proceedingwhich may be instituted, prosecuted or attempted in breach of this Agreement.

 

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(f)            TheCompany and Dr. Comité agree thatthe Consulting Agreement has been terminated effective as of the TerminationDate and, notwithstanding anything in the Consulting Agreement to the contraryregarding the survivability of certain terms after the termination of theConsulting Agreement, the Parties have no further rights or obligations underthe Consulting Agreement whatsoever.

 

**3.****             Miscellaneous.**

 

(a)           EachParty hereto agrees that the terms of this Agreement are confidential and shallnot be disclosed by any Party without the prior written permission of the otherParties; provided, however, that a Party may disclose term(s) ofthis Agreement to such Party’s financial or legal advisors or if suchdisclosure is required by court order by such Party’s normal and customaryregulatory reporting requirements, or by other compulsory provision of law.

 

(b)           ThisAgreement is made solely for the purpose of purchasing peace, and eliminatingpossible involvement in litigation arising from the Consulting Agreement. This Agreementshall in no way operate or be construed as an explicit or implicit admission ofliability or responsibility by any Party.

 

(c)           ThisAgreement is considered by the Parties to be fully integrated. Each Partyrepresents, warrants and acknowledges that the consideration recited herein isthe sole and only consideration for it, that they have voluntarily entered intothis Agreement, and that no representations, promises or inducements have beenmade other than that which appear in this Agreement. No supplement,modification or amendment of this Agreement shall be binding unless executed inwriting by all Parties. No waiver of any of the provisions, whether or not similar,shall constitute a continuing waiver. No waiver shall be binding unlessexecuted in writing by the waiving Party.

 

(d)           ThisAgreement is deemed to have been entered into in the State of California,United States of America, and it shall be governed by the laws of the State of Californiawithout reference to or application of conflict of law rules. In any legalaction relating to or arising out of this Agreement, each party agrees (i) tothe exercise of jurisdiction over it by an appropriate Superior Court of theState of California located in the county of San Mateo or a United StatesDistrict Court for the Northern District California and (ii) that if suchparty brings an action it shall be instituted in one of the courts specified inclause (i) above. The prevailing party in any legal action brought by oneParty against another and arising out of this Agreement shall be entitled, inaddition to any other rights and remedies that such prevailing party may have,to reimbursement for expenses incurred by such prevailing party, includingwithout limitation, court costs and reasonable attorneys’ fees. Notwithstandingthe foregoing, each Party shall pay its own expenses incurred in connectionwith this matter to date including the expenses of negotiation of thisAgreement.

 

(e)           ThisAgreement is the result of negotiations between the Parties and has beenreviewed by each Party and its legal counsel; accordingly, this Agreement shallbe deemed to be the product of the Parties hereto, and no ambiguity shall beconstrued in favor of or against any Party.

 

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(f)            EachParty represents, warrants and acknowledges and that it has been fully advisedwith respect to its rights and obligations under this Agreement and understandsthose rights and obligations. Each Party also represents, warrants andacknowledges that prior to the execution of this Agreement, it has had anadequate opportunity to make whatever investigation or inquiries were deemed necessaryor desirable with respect to the subject matter of this Agreement.

 

(g)           EachParty represents and warrants that it has the full right, power and authorityto enter into and execute this Agreement, and that this Agreement has been readby it and understood by it.

 

(h)           Theprovisions of this Agreement are severable. If any provision is held to beinvalid or unenforceable, it shall not affect the validity or enforceability ofany other provision.

 

(i)            ThisAgreement may be executed in telecopied counterparts, and each counterpart willbe considered an original.

 

*(SignaturePages Follow)*

 

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IN WITNESSWHEREOF, the Parties have caused this Agreement to be executed by their dulyauthorized representatives as of the date first set forth above.

 

 
|   | **CONCEPTUS, INC.**      |
|--------|--------------------------|
|   |                     |
|   | By:                      | /s/ Mark M Siezkarek |   |
|   |                     | Name: MARK M SIEZKAREK |
|   |                     | Title: PRESIDENT &  CEO |
|   |                     |
|   |                     |
|   | **DR. COMITÉ**      |
|   |                     |
|   |                     |
|   | /s/ Florence Comité |   |
|   | Florence Comité     |
|        |                          |  |  |  |

 

**SIGNATUREPAGE TO SETTLEMENT AND MUTUAL RELEASE AGREEMENT**

 

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