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 “Prior
Agreement”), and the Company and the Employee wish to amend and restate the
Prior Agreement in its entirety, effective as of this 9th day of September,
2008 (the “Effective Date”), pursuant to the terms and conditions set forth in
this Amended and Restated Change of Control Agreement (the “Agreement”).


 


RECITALS
 


A.                                   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, an executive officer or director-level
employee of the Company, and can cause the Employee to consider alternative
employment 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.


 


B.                                     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.


 


C.                                     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.


 


D.                                    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.


 


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


 


AGREEMENT


 


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 required under applicable law or 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 earliest of (i) the date
on which Employee ceases to be employed as an executive officer or
director-level employee of the Company; (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.                                       EQUITY AWARDS.


 


(a)                                  HOSTILE TAKEOVER.  Subject to Sections 5 and 6 below, in the
event of a Hostile Takeover and regardless of whether the Employee’s employment
with the Company is terminated in connection with the Hostile Takeover, each
stock option, stock appreciation right, restricted stock award, restricted
stock unit award or other equity-based award with respect to the Company’s
securities (collectively the “Equity Awards”) held by the Employee shall become
fully vested and/or immediately exercisable, as applicable, immediately prior
to the consummation of the transaction and with respect to the Equity Awards
which are in the form of stock options or stock appreciation rights, shall be
exercisable to the extent so vested in accordance with the provisions of the
agreement and plan pursuant to which such Equity Awards were granted.


 


(b)                                 CHANGE OF CONTROL.  Subject to Sections 5 and 6 below, in the
event of a Change of Control and regardless of whether the Employee’s
employment with the Company is terminated in connection with the Change of
Control, each Equity Award held by the Employee shall become vested and/or
immediately exercisable immediately prior to the consummation of the
transaction as to one hundred percent (100%) of the shares subject to such
Equity Award that have not otherwise vested as of such date.  The shares subject to each Equity Award that
remain unvested as of the effective date of the transaction shall thereafter
vest at the same rate (that is, the same number of shares shall vest during
each vesting period) that was in effect prior to the Change of Control, and
shall accordingly vest over a period that is one-half of the total vesting
period that would otherwise be then remaining under the terms of the agreement
pursuant to which each such Equity Award was granted, subject to any
acceleration based on the subsequent attainment of performance targets.


 


3.                                       CHANGE OF CONTROL.


 


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


 


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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 under
this Agreement.  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
or as otherwise determined by the Board of Directors of the Company.


 


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


 


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


 


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


 


(C)                                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;


 


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


 


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(E)                                 outplacement services with a total value
not to exceed $15,000, provided that such outplacement benefits shall end not
later than the last day of the second calendar year that begins after the date
of the Employee’s Separation from Service.


 


(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 under this Agreement.  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.


 


(i)                                     In the event the Employee’s employment
terminates for any reason, either prior to the occurrence of a Change of
Control (other than an Anticipatory Termination) 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.


 


(ii)                                  Notwithstanding anything contained in
this Agreement to the contrary, if the Employee’s employment is terminated as a
result of an Anticipatory Termination, then (A) the Employee shall be
entitled to the severance payments and benefits described in Section 3(a)(ii) and
the Severance Period shall commence on the date of the Hostile Takeover or
Change of Control, (B) for purposes of determining the amount of the
severance benefits described in Sections 3(a)(ii)(A) and (B), the payments
shall be based on the salary which the Employee was receiving immediately prior
to the date of his or her termination of employment, and (C) in no event
shall this Section 3(b)(ii) create an extension of the exercise
period of an Equity Award which is a stock option or stock appreciation right
beyond the earlier of the latest date upon which the Equity Award could have
expired by its original terms under any circumstances or the tenth (10th) anniversary of the original date of grant of the
Equity Award.


 


(c)                                  CODE SECTION 409A.  Notwithstanding any provision to the contrary
in the Agreement, if the Employee is deemed by the Company at the time of his
or 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 3(c) 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.  For purposes of Section 409A
of the Code (including, without limitation, for purposes of Treasury Regulation
Section 1.409A-2(b)(2)(iii)), the Employee’s right to receive 


 


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the installment payments
payable pursuant to this Agreement (the “Installment Payments”) 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.


 


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


 


(a)                                  ANTICIPATORY TERMINATION.  “Anticipatory Termination” shall mean a
termination of the Employee’s employment prior to a Change of Control (other
than a termination for Cause) which is determined to (i) be at the request
of a third party who has indicated an intention or taken steps reasonably
calculated to effect a Hostile Takeover or Change of Control and who
subsequently effectuates a Hostile Takeover or Change of Control  or (ii) have otherwise occurred in connection
with, or in anticipation of, a Hostile Takeover or Change of Control which
actually occurs, and in either (i) or (ii), such Hostile Takeover or
Change of Control constitutes a change in the ownership or effective control of
the Company or a change in the ownership of a substantial portion of the assets
of the Company, as described in Treasury Regulation Section 1.409A-3(i)(5).


 


(b)                                 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 (the “Act”) in one or more related transactions is or becomes the “Beneficial
Owner” (as defined in Rule 13d-3 under the Act), directly or indirectly,
of securities of the Company representing fifty percent (50%) or more of the
total voting power represented by the Company’s outstanding voting securities
without regard to whether the Board has approved such acquisition(s).


 


(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 the Effective Date 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).


 


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(c)                                  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.


 


(d)                                 HOSTILE TAKEOVER.  “Hostile Takeover”  shall mean any transaction (or one or more
related transactions) pursuant to which any “Person” (as such term is used in
Sections 13(d) and 14(d) of the Act) is or becomes the “Beneficial
Owner” (as defined in Rule 13d-3 under the Act), directly or indirectly,
of securities of the Company representing fifty percent (50%) or more of the
total voting power represented by the Company’s outstanding voting securities
without regard to whether the Board has approved such acquisition(s).


 


(e)                                  INVOLUNTARY TERMINATION.  “Involuntary Termination” means any
termination by the Company other than for Cause and the Employee’s voluntary
termination, upon 30 days prior written notice to the Company, following (i) any
reduction of the Employee’s base compensation, bonus opportunity or benefits
(other than equity or equity related benefits or reductions made in connection
with a general decrease in base salaries, bonus opportunities or benefits, as
applicable for most similarly situated executives of the successor
corporation); (ii) the Employee’s refusal to relocate to a location more
than 50 miles from the Company’s current location; (iii) any action by the
Company that results in a diminution in the Employee’s authority, duties and
responsibilities; (iv) a material breach by the Company of any of its
obligations hereunder and (v) any failure by a successor to assume and
perform the Company’s obligations hereunder.


 


5.                                       LIMITATION ON
PAYMENTS.  To the extent that any of the
payments or benefits provided for in this Agreement or otherwise to the
Employee (collectively the “Payments”) 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 “Excise Tax”), then such Payment shall be equal to the Reduced
Amount.  The “Reduced Amount” shall be
either (x) the largest portion of the Payments that would result in no
portion of the Payments being subject to the Excise Tax or (y) the largest
portion, up to and including the total, of the Payments, whichever amount,
after taking into account all applicable federal, state and local employment
taxes, income taxes, and the Excise Tax (all computed at the highest applicable
marginal rate), results in the Employee’s receipt, on an after-tax basis, of
the greater amount of the Payments notwithstanding that all or some portion of
the 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 shall
occur in the following order unless the Employee elects in writing a different
order (provided, however, that such election shall be subject to Company approval if
made on or after the effective date of the event that triggers the Payment):
reduction of cash payments; cancellation of accelerated vesting of Equity
Awards; reduction of employee benefits. 
In the event that acceleration of 


 


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vesting of Equity Awards is
to be reduced, such acceleration of vesting shall be cancelled in the reverse
order of the date of grant of the Employee’s Equity Awards (i.e., earliest
granted Equity Awards cancelled last) unless the Employee elects in writing a
different order for cancellation.


 


The accounting firm engaged by the Company for
general audit purposes as of the day prior to the effective date of the Hostile
Takeover or Change of Control shall perform the foregoing calculations.  If the accounting firm so engaged by the
Company is serving as accountant or auditor for the individual, entity or group
effecting the Hostile Takeover or Change of Control, the Company shall appoint
a nationally recognized accounting firm to make the determinations required
hereunder.  The Company shall bear all
expenses with respect to the determinations by such accounting firm required to
be made hereunder.


 


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


 


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)                                  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.


 


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(b)                                 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.


 


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


 


(d)                                 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.


 


(e)                                  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.


 


(f)                                    ARBITRATION.


 


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


 


(ii)                                  Regardless of whether the Federal
Arbitration Act would apply by operation of law, Employee and Company agree
that the right and duty to resolve any controversy or dispute by arbitration
shall be governed exclusively by the Federal Arbitration Act, as amended, and
arbitration shall take place according to the applicable rules of the
American Arbitration Association (“AAA”) in effect as of the date the demand
for arbitration is filed.  If for any
reason the Federal Arbitration Act is found not to apply or govern, this
agreement to arbitrate shall be governed by applicable state law.


 


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


 


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


 


(iv)                              The arbitration shall be held at the
office of AAA nearest the Company facility to which Employee was assigned prior
to the dispute; provided, however, if such office is outside the state in which
Employee resides, Employee may cause the arbitration to be held within Employee’s
state 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 unique
to arbitration, nor exceed the amount such person would have had to pay in
court costs had the matter been pursued in court.  The Company shall be responsible for all other
cost payable to AAA in connection with the arbitration, including the cost and
fees of the arbitrator.  The arbitrator
shall make such orders with respect to attorneys’ fees and other costs and
expenses related to the arbitration as provided by applicable law.


 


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


 


(vii)                           The arbitrator shall have no authority to
amend or modify the terms and conditions of this Agreement, it being expressly
understood and agreed that the arbitrator shall have all such powers as a court
would have, sitting without a jury, to determine the validity and
enforceability 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 of
competent jurisdiction provisional non-monetary remedies including, but not
limited to, temporary restraining orders or preliminary injunctions before,
during or after arbitration to the extent such remedies are not available
through arbitration or cannot be obtained in a timely fashion through
arbitration.  The Company and the Employee
need not await the outcome of the arbitration before seeking provisional
remedies.  Seeking any such remedies
shall not be deemed to be a waiver of such person’s right to compel
arbitration.


 


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


 


(h)                                 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 (h) shall
be void.


 


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


 


(j)                                     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 


 


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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.


 


(k)                                  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.


 


[Signature page follows]


 


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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.

  	
   

  	
  EMPLOYEE

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Gregory Lichtwardt

  	
   

  	
  By:

  	
  /s/ Ulric E. Cote

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Executive Vice
  President

  	
   

  	
   

  	
  Sept 12, 2008

  



 


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