**Exhibit 10.3**

 

**AMENDED AND RESTATED**

**CHANGE OF CONTROL AGREEMENT**

 

On April 30, 2008,Ulric E. Cote (the “Employee”) and Conceptus, Inc., a Delaware corporation(the “Company”) entered into a Change of Control Agreement (the “PriorAgreement”), and the Company and the Employee wish to amend and restate thePrior Agreement in its entirety, effective as of this 9th day of September,2008 (the “Effective Date”), pursuant to the terms and conditions set forth inthis Amended and Restated Change of Control Agreement (the “Agreement”).

 

**RECITALS**

 

A.                                   It is expected that another company orother entity may from time to time consider the possibility of acquiring theCompany or that a change of control may otherwise occur, with or without theapproval of the Company’s Board of Directors (the “Board”).  The Board recognizes that such considerationcan be a distraction to the Employee, an executive officer or director-levelemployee of the Company, and can cause the Employee to consider alternativeemployment opportunities.  The Board hasdetermined that it is in the best interests of the Company and its stockholdersto assure that the Company will have the continued dedication and objectivityof the Employee, notwithstanding the possibility, threat or occurrence of aChange of Control (as defined below) of the Company.

 

B.                                     The Board believes that it is in the bestinterests of the Company and its stockholders to provide the Employee with anincentive to continue his or her employment with the Company.

 

C.                                     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.

 

D.                                    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.

 

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

 

**AGREEMENT**

 

In consideration of themutual covenants contained in this Agreement, and in consideration of thecontinuing employment of Employee by the Company, the parties agree as follows:

 

----

 

1.                                       AT-WILL EMPLOYMENT.  The Company and the Employee acknowledge thatthe Employee’s employment is and shall continue to be at-will, as defined underapplicable law.  If the Employee’semployment terminates for any reason, including (without limitation) anytermination prior to a Change of Control, the Employee shall not be entitled toany payments or benefits, other than as required under applicable law or asprovided by this Agreement, or as may otherwise be available in accordance withthe terms of the Company’s then existing employee plans and written policies ineffect at the time of termination.  Theterms of this Agreement shall terminate upon the earliest of (i) the dateon which Employee ceases to be employed as an executive officer ordirector-level employee of the Company; (ii) the date that all obligationsof the parties hereunder have been satisfied, or (iii) two (2) yearsafter a Change of Control.  A terminationof the terms of this Agreement pursuant to the preceding sentence shall beeffective for all purposes, except that such termination shall not affect thepayment or provision of compensation or benefits on account of a termination ofemployment occurring prior to the termination of the terms of this Agreement.

 

2.                                       EQUITY AWARDS.

 

(a)                                  HOSTILE TAKEOVER.  Subject to Sections 5 and 6 below, in theevent of a Hostile Takeover and regardless of whether the Employee’s employmentwith the Company is terminated in connection with the Hostile Takeover, eachstock option, stock appreciation right, restricted stock award, restrictedstock unit award or other equity-based award with respect to the Company’ssecurities (collectively the “Equity Awards”) held by the Employee shall becomefully vested and/or immediately exercisable, as applicable, immediately priorto the consummation of the transaction and with respect to the Equity Awardswhich are in the form of stock options or stock appreciation rights, shall beexercisable to the extent so vested in accordance with the provisions of theagreement and plan pursuant to which such Equity Awards were granted.

 

(b)                                 CHANGE OF CONTROL.  Subject to Sections 5 and 6 below, in theevent of a Change of Control and regardless of whether the Employee’semployment with the Company is terminated in connection with the Change ofControl, each Equity Award held by the Employee shall become vested and/orimmediately exercisable immediately prior to the consummation of thetransaction as to one hundred percent (100%) of the shares subject to suchEquity Award that have not otherwise vested as of such date.  The shares subject to each Equity Award thatremain unvested as of the effective date of the transaction shall thereaftervest at the same rate (that is, the same number of shares shall vest duringeach vesting period) that was in effect prior to the Change of Control, andshall accordingly vest over a period that is one-half of the total vestingperiod that would otherwise be then remaining under the terms of the agreementpursuant to which each such Equity Award was granted, subject to anyacceleration based on the subsequent attainment of performance targets.

 

3.                                       CHANGE OF CONTROL.

 

(a)                                  TERMINATION FOLLOWING A CHANGE OFCONTROL.  Subject to Sections 5 and 6below, if the Employee’s employment with the Company is terminated at any 

 

2

----

 

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 theCompany (other than as an Involuntary Termination (as defined below) or if theCompany terminates the Employee’s employment for Cause (as defined below)),then the Employee shall not be entitled to receive severance payments underthis Agreement.  The Employee’s benefitswill be terminated under the Company’s then existing benefit plans and policiesin accordance with such plans and policies in effect on the date of terminationor as otherwise determined by the Board of Directors of the Company.

 

(ii)                                  INVOLUNTARY TERMINATION.  If the Employee’s employment terminates as aresult of an Involuntary Termination other than for Cause and the terminationconstitutes a separation from service within the meaning of Section 409Aof the Internal Revenue Code of 1986, as amended (the “Code”) and theregulations promulgated thereunder, including Treasury Regulation Section 1.409A-1(h) (a“Separation from Service”), the Employee shall be entitled to receive thefollowing benefits:

 

(A)                              severance payments during the period fromthe date of the Employee’s Separation from Service until the date 18 monthsafter the effective date of the termination (the “Severance Period”) equal tothe salary which the Employee was receiving immediately prior to the Change ofControl, which payments shall be paid during the Severance Period in accordancewith the Company’s standard payroll practices;

 

(B)                                monthly severance payments during theSeverance Period equal to 1/12th of the Employee’s “target bonus” (as definedbelow) for the fiscal year in which the termination occurs (or the most recentfiscal year for which a cash target bonus was determined if a cash target bonushas not yet been determined for the fiscal year in which the terminationoccurs).  For purposes of this Agreement,the term “target bonus” shall mean a cash bonus equal to the Employee’s basesalary in effect immediately prior to the Change of Control multiplied by thatpercentage of such base salary that is prescribed by the Company under itsOfficer Incentive Plan as the percentage of such base salary payable to theEmployee as a cash bonus if the Company pays bonuses at one-hundred percent(100%) of its operating plan;

 

(C)                                continuation of all health and lifeinsurance benefits through the end of the Severance Period substantiallyidentical to those to which the Employee was entitled immediately prior to thetermination, or to those being offered to officers of the Company, or asuccessor corporation, if the Company’s benefit programs are changed during theSeverance Period;

 

(D)                               full and immediate vesting of each EquityAward held by the Employee on the date of termination so that each such EquityAward which is a stock option or a stock appreciation right shall beexercisable in full and all shares subject to other Equity Awards shall befully vested on the termination date in accordance with the provisions of theagreement and plan pursuant to which such Equity Awards were granted; and

 

3

----

 

(E)                                 outplacement services with a total valuenot to exceed $15,000, provided that such outplacement benefits shall end notlater than the last day of the second calendar year that begins after the dateof the Employee’s Separation from Service.

 

(iii)                               INVOLUNTARY TERMINATION FOR CAUSE.  If the Employee’s employment is terminatedfor Cause, then the Employee shall not be entitled to receive severancepayments under this Agreement.  TheEmployee’s benefits will be terminated under the Company’s then existingbenefit plans and policies in accordance with such plans and policies in effecton the date of termination.

 

(b)                                 TERMINATION APART FROM A CHANGE OFCONTROL.

 

(i)                                     In the event the Employee’s employmentterminates for any reason, either prior to the occurrence of a Change ofControl (other than an Anticipatory Termination) or after the two year periodfollowing the effective date of a Change of Control, then the Employee shallnot be entitled to receive any severance payments under this Agreement.  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)                                  Notwithstanding anything contained inthis Agreement to the contrary, if the Employee’s employment is terminated as aresult of an Anticipatory Termination, then (A) the Employee shall beentitled to the severance payments and benefits described in Section 3(a)(ii) andthe Severance Period shall commence on the date of the Hostile Takeover orChange of Control, (B) for purposes of determining the amount of theseverance benefits described in Sections 3(a)(ii)(A) and (B), the paymentsshall be based on the salary which the Employee was receiving immediately priorto the date of his or her termination of employment, and (C) in no eventshall this Section 3(b)(ii) create an extension of the exerciseperiod of an Equity Award which is a stock option or stock appreciation rightbeyond the earlier of the latest date upon which the Equity Award could haveexpired by its original terms under any circumstances or the tenth (10th) anniversary of the original date of grant of theEquity Award.

 

(c)                                  CODE SECTION 409A.  Notwithstanding any provision to the contraryin the Agreement, if the Employee is deemed by the Company at the time of hisor her Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) ofthe Code, to the extent delayed commencement of any portion of the terminationbenefits to which the Employee is entitled under this Agreement is required inorder to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) ofthe Code, such portion of the Employee’s termination benefits shall not beprovided to the Employee prior to the earlier of (i) the expiration of thesix-month period measured from the date of the Employee’s Separation fromService with the 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 3(c) shall bepaid 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 otherwiseprovided herein.  For purposes of Section 409Aof the Code (including, without limitation, for purposes of Treasury RegulationSection 1.409A-2(b)(2)(iii)), the Employee’s right to receive 

 

4

----

 

the installment paymentspayable pursuant to this Agreement (the “Installment Payments”) shall betreated as a right to receive a series of separate payments and, accordingly,each Installment Payment shall at all times be considered a separate anddistinct payment.

 

4.                                       DEFINITION OF TERMS.  The following terms referred to in this Agreementshall have the following meanings:

 

(a)                                  ANTICIPATORY TERMINATION.  “Anticipatory Termination” shall mean atermination of the Employee’s employment prior to a Change of Control (otherthan a termination for Cause) which is determined to (i) be at the requestof a third party who has indicated an intention or taken steps reasonablycalculated to effect a Hostile Takeover or Change of Control and whosubsequently effectuates a Hostile Takeover or Change of Control  or (ii) have otherwise occurred in connectionwith, or in anticipation of, a Hostile Takeover or Change of Control whichactually occurs, and in either (i) or (ii), such Hostile Takeover orChange of Control constitutes a change in the ownership or effective control ofthe Company or a change in the ownership of a substantial portion of the assetsof the Company, as described in Treasury Regulation Section 1.409A-3(i)(5).

 

(b)                                 CHANGE OF CONTROL.  “Change of Control” shall mean the occurrenceof any of the following events:

 

(i)                                     OWNERSHIP.  Any “Person” (as such term is used inSections 13(d) and 14(d) of the Securities Exchange Act of 1934, asamended (the “Act”) in one or more related transactions is or becomes the “BeneficialOwner” (as defined in Rule 13d-3 under the Act), directly or indirectly,of securities of the Company representing fifty percent (50%) or more of thetotal voting power represented by the Company’s outstanding voting securitieswithout regard to whether the Board has approved such acquisition(s).

 

(ii)                                  MERGER/SALE OF ASSETS.  A merger or consolidation of the Companywhether or not approved by the Board of Directors of the Company, other than amerger or consolidation which would result in the voting securities of theCompany outstanding immediately prior thereto continuing to represent (eitherby remaining outstanding or by being converted into voting securities of thesurviving entity) at least fifty percent (50%) of the total voting powerrepresented by the voting securities of the Company or such surviving entityoutstanding immediately after such merger or consolidation, or the stockholdersof the Company approve a plan of complete liquidation of the Company or anagreement for the sale or disposition by the Company of all or substantiallyall of the Company’s assets.

 

(iii)                               CHANGE IN BOARD COMPOSITION.  A change in the composition of the Board ofDirectors of the Company, as a result of which fewer than a majority of thedirectors are Incumbent Directors.  “IncumbentDirectors” shall mean directors who either (A) are directors of theCompany as of the Effective Date or (B) are elected, or nominated forelection, to the Board of Directors of the Company with the affirmative votesof at least a majority of the Incumbent Directors at the time of such electionor nomination (but shall not include an individual whose election or nominationis in connection with an actual or threatened proxy contest relating to theelection of directors to the Company).

 

5

----

 

(c)                                  CAUSE. “Cause” shall mean (i) gross negligence or willful misconduct inthe performance of the Employee’s duties to the Company where such grossnegligence or willful misconduct has resulted or is likely to result insubstantial and material damage to the Company or its subsidiaries, (ii) repeatedunexplained or unjustified absence from the Company, (iii) a material andwillful violation of any federal or state law; (iv) commission of any actof fraud with respect to the Company; or (v) conviction of a felony or acrime involving moral turpitude causing material harm to the standing andreputation of the Company, in each case as determined in good faith by theBoard of Directors of the Company.

 

(d)                                 HOSTILE TAKEOVER.  “Hostile Takeover”  shall mean any transaction (or one or morerelated transactions) pursuant to which any “Person” (as such term is used inSections 13(d) and 14(d) of the Act) is or becomes the “BeneficialOwner” (as defined in Rule 13d-3 under the Act), directly or indirectly,of securities of the Company representing fifty percent (50%) or more of thetotal voting power represented by the Company’s outstanding voting securitieswithout regard to whether the Board has approved such acquisition(s).

 

(e)                                  INVOLUNTARY TERMINATION.  “Involuntary Termination” means anytermination by the Company other than for Cause and the Employee’s voluntarytermination, upon 30 days prior written notice to the Company, following (i) anyreduction of the Employee’s base compensation, bonus opportunity or benefits(other than equity or equity related benefits or reductions made in connectionwith a general decrease in base salaries, bonus opportunities or benefits, asapplicable for most similarly situated executives of the successorcorporation); (ii) the Employee’s refusal to relocate to a location morethan 50 miles from the Company’s current location; (iii) any action by theCompany that results in a diminution in the Employee’s authority, duties andresponsibilities; (iv) a material breach by the Company of any of itsobligations hereunder and (v) any failure by a successor to assume andperform the Company’s obligations hereunder.

 

5.                                       LIMITATION ONPAYMENTS.  To the extent that any of thepayments or benefits provided for in this Agreement or otherwise to theEmployee (collectively the “Payments”) constitute “parachute payments” withinthe 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 “Excise Tax”), then such Payment shall be equal to the ReducedAmount.  The “Reduced Amount” shall beeither (x) the largest portion of the Payments that would result in noportion of the Payments being subject to the Excise Tax or (y) the largestportion, up to and including the total, of the Payments, whichever amount,after taking into account all applicable federal, state and local employmenttaxes, income taxes, and the Excise Tax (all computed at the highest applicablemarginal rate), results in the Employee’s receipt, on an after-tax basis, ofthe greater amount of the Payments notwithstanding that all or some portion ofthe Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments”is necessary so that the Payment equals the Reduced Amount, reduction shalloccur in the following order unless the Employee elects in writing a differentorder (provided, however*,* that such election shall be subject to Company approval ifmade on or after the effective date of the event that triggers the Payment):reduction of cash payments; cancellation of accelerated vesting of EquityAwards; reduction of employee benefits. In the event that acceleration of 

 

6

----

 

vesting of Equity Awards isto be reduced, such acceleration of vesting shall be cancelled in the reverseorder of the date of grant of the Employee’s Equity Awards (i.e., earliestgranted Equity Awards cancelled last) unless the Employee elects in writing adifferent order for cancellation.

 

The accounting firm engaged by the Company forgeneral audit purposes as of the day prior to the effective date of the HostileTakeover or Change of Control shall perform the foregoing calculations.  If the accounting firm so engaged by theCompany is serving as accountant or auditor for the individual, entity or groupeffecting the Hostile Takeover or Change of Control, the Company shall appointa nationally recognized accounting firm to make the determinations requiredhereunder.  The Company shall bear allexpenses with respect to the determinations by such accounting firm required tobe made hereunder.

 

The accounting firmengaged to make the determinations hereunder shall provide its calculations,together with detailed supporting documentation, to the Employee and the Companywithin fifteen (15) calendar days after the date on which the Employee’s rightto a Payment is triggered (if requested at that time by the Employee or theCompany) or such other time as requested by the Employee or the Company.  If the accounting firm determines that noExcise Tax is payable with respect to the Payments, either before or after theapplication of the Reduced Amount, it shall furnish the Employee and theCompany with an opinion reasonably acceptable to the Employee that no ExciseTax will be imposed with respect to such Payment.  Any good faith determinations of theaccounting firm made hereunder shall be final, binding and conclusive upon theEmployee and the Company.

 

6.                                       SUCCESSORS.  Any successor to the Company (whether director indirect and whether by purchase, lease, merger, consolidation, liquidationor otherwise) to all or substantially all of the Company’s business and/orassets shall assume the obligations under this Agreement and agree expressly toperform the obligations under this Agreement in the same manner and to the sameextent as the Company would be required to perform such obligations in theabsence of a succession.  The terms ofthis Agreement and all of the Employee’s rights hereunder shall inure to thebenefit of, and be enforceable by, the Employee’s personal or legalrepresentatives, executors, administrators, successors, heirs, distributees,devisees and legatees.

 

7.                                       NOTICE. Notices and all other communications contemplated by this Agreementshall be in writing and shall be deemed to have been duly given when personallydelivered or when mailed by U.S. registered or certified mail, return receiptrequested and postage prepaid.  Mailednotices to the Employee shall be addressed to the Employee at the home addresswhich the Employee 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)                                  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 otherwise providedin this Agreement, shall any such payment be reduced by any earnings that theEmployee may receive from any other source.

 

7

----

 

(b)                                 WAIVER. No provision of this Agreement shall be modified, waived or dischargedunless the modification, waiver or discharge is agreed to in writing and signedby the Employee and by an authorized officer of the Company (other than theEmployee).  No waiver by either party ofany breach of, or of compliance with, any condition or provision of thisAgreement by the other party shall be considered a waiver of any othercondition or provision or of the same condition or provision at another time.

 

(c)                                  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 or concerning similar subject matter dated prior to the date ofthis Agreement, including, without limitation, the Prior Agreement, and byexecution of this Agreement both parties agree that any such predecessoragreement shall be deemed null and void.

 

(d)                                 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.

 

(e)                                  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.

 

(f)                                    ARBITRATION.

 

(i)                                     Except as provided below, any controversyor dispute which establishes a legal or equitable cause of action (“Claim”)between the Employee and the Company arising out of, or relating to Employee’semployment and/or this Agreement shall be submitted to final and bindingarbitration as the sole and exclusive remedy for such controversy ordispute.   It is the parties’ intent thatissues of arbitrability of any dispute shall be decided by the Arbitrator.

 

(ii)                                  Regardless of whether the FederalArbitration Act would apply by operation of law, Employee and Company agreethat the right and duty to resolve any controversy or dispute by arbitrationshall be governed exclusively by the Federal Arbitration Act, as amended, andarbitration shall take place according to the applicable rules of theAmerican Arbitration Association (“AAA”) in effect as of the date the demandfor arbitration is filed.  If for anyreason the Federal Arbitration Act is found not to apply or govern, thisagreement to arbitrate shall be governed by applicable state law.

 

(iii)                               The arbitration shall take place beforeone arbitrator.  Such arbitrator shall beprovided through the AAA by mutual agreement of the parties to the arbitration;provided that, absent such agreement, the arbitrator shall be selected inaccordance with the rules of AAA 

 

8

----

 

then in effect. In either event, such arbitrator may not have any preexisting, direct orindirect relationship with any party to the arbitration.

 

(iv)                              The arbitration shall be held at theoffice of AAA nearest the Company facility to which Employee was assigned priorto the dispute; provided, however, if such office is outside the state in whichEmployee resides, Employee may cause the arbitration to be held within Employee’sstate of residence at a place mutually convenient to the parties thereto and arbitrator.

 

(v)                                 The costs of arbitration  to be paid shall not include any costs uniqueto arbitration, nor exceed the amount such person would have had to pay incourt costs had the matter been pursued in court.  The Company shall be responsible for all othercost payable to AAA in connection with the arbitration, including the cost andfees of the arbitrator.  The arbitratorshall make such orders with respect to attorneys’ fees and other costs andexpenses related to the arbitration as provided by applicable law.

 

(vi)                              The award or decision of the arbitratorshall be rendered in writing; shall be final and binding on the parties; andmay be enforced by judgment or order of a court of competent jurisdiction.

 

(vii)                           The arbitrator shall have no authority toamend or modify the terms and conditions of this Agreement, it being expresslyunderstood and agreed that the arbitrator shall have all such powers as a courtwould have, sitting without a jury, to determine the validity andenforceability of any of the provisions hereof.

 

(viii)                        Notwithstanding this Section (f),the Company and the Employee shall have the right to seek from a court ofcompetent jurisdiction provisional non-monetary remedies including, but notlimited to, temporary restraining orders or preliminary injunctions before,during or after arbitration to the extent such remedies are not availablethrough arbitration or cannot be obtained in a timely fashion througharbitration.  The Company and the Employeeneed not await the outcome of the arbitration before seeking provisionalremedies.  Seeking any such remediesshall not be deemed to be a waiver of such person’s right to compelarbitration.

 

(g)                                 LEGAL FEES AND EXPENSES.  The parties shall each bear their ownexpenses, legal fees and other fees incurred in connection with this Agreement.

 

(h)                                 NO ASSIGNMENT OF BENEFITS.  The rights of any person to payments orbenefits under this Agreement shall not be made subject to option orassignment, either by voluntary or involuntary assignment or by operation oflaw, including (without limitation) bankruptcy, garnishment, attachment orother creditor’s process, and any action in violation of this subsection (h) shallbe void.

 

(i)                                     EMPLOYMENT TAXES.  All payments made pursuant to this Agreementwill be subject to withholding of applicable income and employment taxes.

 

(j)                                     ASSIGNMENT BY COMPANY.  The Company may assign its rights under thisAgreement to an affiliate, and an affiliate may assign its rights under thisAgreement to another 

 

9

----

 

affiliate of the Companyor to the Company; provided, however, that no assignment shall be made if thenet worth of the assignee is less than the net worth of the Company at the timeof assignment.  In the case of any such assignment,the term “Company” when used in a section of this Agreement shall mean thecorporation that actually employs the Employee.

 

(k)                                  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.

 

[Signature page follows]

 

10

----

 

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

 

 
| CONCEPTUS, INC. |                      | EMPLOYEE |
|-----------------|---------------------------|----------|
|            |                      |     |
| By:             | /s/ Gregory Lichtwardt    |     | By: | /s/ Ulric E. Cote |
|            |                      |     |
| Title:          | Executive Vice  President |     |   | Sept 12, 2008 |

 

11

----