Exhibit 10.3


 


CONCEPTUS,
INC.


 


SETTLEMENT
AND MUTUAL RELEASE AGREEMENT


 


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


 


RECITALS


 


WHEREAS, the
Company and Dr. Comité entered into
a Master Consulting Agreement, dated September 10, 1997, as amended
through the date hereof (the “Consulting Agreement”);


 


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


 


WHEREAS, Dr. Comité has made various assertions and allegations
relating to the Company’s performance under the Consulting Agreement, including
without limitation that the Company did not provide proper written notice to Dr. Comité of the Company’s intention to terminate the
Consulting Agreement as of the Termination Date within the proper time period
specified in the Consulting Agreement; and


 


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


 


AGREEMENT


 


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


 


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


 


2.             Releases and Terminations.


 


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


 


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


 


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


 


(b)           The
Parties expressly waive the provisions of Section 1542 of the California
Civil Code which provides as follows:


 


“A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which, if
known by him, must have materially affected his settlement with the debtor.”


 


(c)           Each Party
hereby represents and warrants to and agrees with the other Party that such Party
is the sole and lawful owner of all right, title, and interest in and to every Claim
and every matter that such Party purports to release, and that such Party has
not heretofore assigned or transferred, or purported or attempted to assign or
transfer to any person, or entity, any Claims or other matters herein released.


 


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


 


(ii)           The
Company shall indemnify, defend and hold harmless each of the Comité Parties from and against, and reimburse each
of the Comité Parties for any and all
future Claims against such Comité Parties
arising out of or relating to such assignment or transfer by the Company of any
Claims or other matters released herein.


 


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


 


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(f)            The
Company and Dr. Comité agree that
the Consulting Agreement has been terminated effective as of the Termination
Date and, notwithstanding anything in the Consulting Agreement to the contrary
regarding the survivability of certain terms after the termination of the
Consulting Agreement, the Parties have no further rights or obligations under
the Consulting Agreement whatsoever.


 


3.             Miscellaneous.


 


(a)           Each
Party hereto agrees that the terms of this Agreement are confidential and shall
not be disclosed by any Party without the prior written permission of the other
Parties; provided, however, that a Party may disclose term(s) of
this Agreement to such Party’s financial or legal advisors or if such
disclosure is required by court order by such Party’s normal and customary
regulatory reporting requirements, or by other compulsory provision of law.


 


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


 


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


 


(d)           This
Agreement is deemed to have been entered into in the State of California,
United States of America, and it shall be governed by the laws of the State of California
without reference to or application of conflict of law rules. In any legal
action relating to or arising out of this Agreement, each party agrees (i) to
the exercise of jurisdiction over it by an appropriate Superior Court of the
State of California located in the county of San Mateo or a United States
District Court for the Northern District California and (ii) that if such
party brings an action it shall be instituted in one of the courts specified in
clause (i) above. The prevailing party in any legal action brought by one
Party against another and arising out of this Agreement shall be entitled, in
addition to any other rights and remedies that such prevailing party may have,
to reimbursement for expenses incurred by such prevailing party, including
without limitation, court costs and reasonable attorneys’ fees. Notwithstanding
the foregoing, each Party shall pay its own expenses incurred in connection
with this matter to date including the expenses of negotiation of this
Agreement.


 


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


 


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(f)            Each
Party represents, warrants and acknowledges and that it has been fully advised
with respect to its rights and obligations under this Agreement and understands
those rights and obligations. Each Party also represents, warrants and
acknowledges that prior to the execution of this Agreement, it has had an
adequate opportunity to make whatever investigation or inquiries were deemed necessary
or desirable with respect to the subject matter of this Agreement.


 


(g)           Each
Party represents and warrants that it has the full right, power and authority
to enter into and execute this Agreement, and that this Agreement has been read
by it and understood by it.


 


(h)           The
provisions of this Agreement are severable. If any provision is held to be
invalid or unenforceable, it shall not affect the validity or enforceability of
any other provision.


 


(i)            This
Agreement may be executed in telecopied counterparts, and each counterpart will
be considered an original.


 


(Signature
Pages Follow)


 


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IN WITNESS
WHEREOF, the Parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first set forth above.


 


 


	
   

  	
  CONCEPTUS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark M Siezkarek

  	
   

  
	
   

  	
   

  	
  Name: MARK M SIEZKAREK

  
	
   

  	
   

  	
  Title: PRESIDENT &
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DR. COMITÉ

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Florence Comité

  	
   

  
	
   

  	
  Florence Comité

  
					



 


SIGNATURE
PAGE TO SETTLEMENT AND MUTUAL RELEASE AGREEMENT


 


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