Exhibit 10.8


 


CHANGE OF CONTROL AGREEMENT


 


This Change of Control Agreement (the “Agreement”) is made and entered
into effective as of April 27, 2004, by and between Gregory Lichtwardt
(the “Employee”) and Conceptus, Inc., a Delaware corporation (the “Company”).


 


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.                                       STOCK
OPTIONS.


 


(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 granted for the Company’s securities
(collectively the “Options”) and each share of restricted stock of the Company
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 Options shall be exercisable to the extent so vested in
accordance with the provisions of the Company’s stock option agreement and
stock option plan pursuant to which such Options 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 Option and share of restricted Company Stock 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 Option and restricted shares that have not otherwise vested as of such
date.  The Option and restricted shares
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 option or
restricted stock agreement pursuant to which each such Option or restricted
stock 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 time within two (2) years after a Change of Control, then the
Employee shall be entitled to receive severance benefits as follows:


 


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(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, 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 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; (ii) 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); (iii) 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; (iv) full and immediate vesting of each unvested Option and share of
restricted Company stock held by the Employee on the date of termination so
that each such option shall be exercisable in full and each share of restricted
stock shall be fully vested on the termination date in accordance with the
provisions of the option and/or restricted stock agreement, as applicable, and
plan pursuant to which such stock awards were granted; and (v) outplacement
services with a total value not to exceed $15,000.  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.


 


(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.  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 


 


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or as
otherwise determined by the Board of Directors of the Company.  Notwithstanding anything contained in this
Agreement to the contrary, if the Employee’s employment is terminated prior to
a Change of Control (other than a termination for Cause) and it is determined
that such termination (i) was 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 (a “Third Party”) or (ii) otherwise occurred
in connection with, or in anticipation of, a Hostile Takeover or Change of
Control which actually occurs, then, for all purposes of this Agreement, the
date of a Hostile Takeover or Change of Control with respect to the Employee
shall mean the date immediately prior to the date of such termination of the
Employee’s employment, and the Employee shall be entitled to payments and
benefits commencing as of such date.


 


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
(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 April 27, 2004 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 


 


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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)                                  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).


 


(d)                                 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 Internal Revenue Code of 1986, as
amended (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 stock options and restricted stock; reduction of employee
benefits.  In the event that acceleration
of vesting of stock compensation is to be reduced, such acceleration of vesting
shall be cancelled in the reverse order of the date of grant of the Employee’s
stock options and restricted stock (i.e., earliest 


 


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granted stock
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.


 


(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 


 


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


 


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(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 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 


 


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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.


 


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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:

  	
  Mark M. Sieczkarek

  	
   

  	
  By:

  	
  /s/ Gregory
  Lichtwardt

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  CEO/President

  	
   

  	
   

  
							



 


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