Exhibit 10.1


 


SHARE PURCHASE AGREEMENT


 


Between


 


Mr. Yves
Guillemain d’Echon


Mr. Jean-Christophe
Bodin


Mrs. Catherine
Guillemain d’Echon


Mr. Florent
Guillemain d’Echon


Mr. Alban
Guillemain d’Echon


Mr. Tristan
Guillemain d’Echon


Mr. Jean
Guillemain d’Echon


Mrs. Katia
Bodin


Miss.
Fabienne Gairin


Miss.
Isabelle Viroulet


Miss. Aurélie
Blanchard


Mr. Didier
Pinget


Mr. Eric
Tourraud


Mr. Philippe
Maréchal


 


(The Sellers)


 


and


 


Conceptus
Inc. 


 


(The Buyer)


 


January 7,
2008


 

















 


TABLE OF
CONTENTS


 


	
  1.

  	
  DEFINITIONS

  	
  4

  
	
   

  	
   

  	
   

  
	
  2.

  	
  SALE AND PURCHASE OF THE SHARES

  	
  7

  
	
   

  	
   

  	
   

  
	
  3.

  	
  PURCHASE PRICE AND PAYMENT OF THE PURCHASE PRICE

  	
  7

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CONDITIONS PRECEDENT

  	
  11

  
	
   

  	
   

  	
   

  
	
  5.

  	
  REPRESENTATIONS AND WARRANTIES OF THE MANAGERS

  	
  11

  
	
   

  	
   

  	
   

  
	
  6.

  	
  INDEMNIFICATION

  	
  13

  
	
   

  	
   

  	
   

  
	
  7.

  	
  POST TRANSFER OF THE SHARES - COVENANTS OF THE PARTIES

  	
  15

  
	
   

  	
   

  	
   

  
	
  8.

  	
  NOTICES

  	
  16

  
	
   

  	
   

  	
   

  
	
  9.

  	
  MISCELLANEOUS

  	
  17

  



 

















 


SHARE PURCHASE AGREEMENT


 


This share purchase agreement is entered into
on January 7, 2008,


 


BETWEEN:


 


1.                                           Conceptus
Inc. a company organized under the laws of the State of Delaware, the
registered office of which is at 331 E.
Evelyn Ave. Mountain View, CA 94041, United States of America, represented by Mr. Gregory
E. Lichtwardt in his capacity of Executive Vice President, Chief Financial Officer and Treasurer, duly authorized
for the purpose hereof,


 


(hereinafter
referred to as the “Buyer” or the “Beneficiary”),


 


On the one hand,


 


AND:


 


	
  2.

  	
   

  	
  Mr. Yves Guillemain
  d’Echon,  born on July 30,
  1956, at Nevers, France, French citizen, living at 3, rue Jacques Lemercier 78000 Versailles,
  married under the communauté réduite aux
  acquêts regime,

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Mr. Jean-Christophe Bodin,  born on February 25, 1957,
  at Neuilly sur Seine, French citizen, living at 3, rue Charles Gounod 94440 Santeny,
  married under the séparation des biens regime,

  
	
   

  	
   

  	
   

  
	
   

  	
  (the parties 2 and 3 acting jointly and
  severally and are hereinafter referred to as the “Managers”),

  
	
   

  	
   

  
	
  4.

  	
   

  	
  Mrs. Catherine Guillemain d’Echon,  née
  Johanet,  born on June 22,
  1958, at Donzy, French citizen,
  living at 3, rue Jacques Lemercier 78000 Versailles, married under the communauté réduite aux acquêts regime,

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Mr.
  Florent Guillemain d’Echon,  born on February 28, 1982, at Ouliins, France, French citizen, living at
  12, rue Armangaud 92210 Saint Cloud, single,

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Mr.
  Alban Guillemain d’Echon,  born on August 5, 1983, at Lyon, France, French citizen, living at 3, rue
  Jacques Lemercier 78000 Versailles, single,

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Mr.
  Tristan Guillemain d’Echon,  born on August 15, 1985, at Cosnes-Cours sur Loire, France, French citizen, living at 3, rue
  Jacques Lemercier 78000 Versailles, single,

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Mr.
  Jean Guillemain d’Echon,  born on September 10, 1979, at Clermont Ferrand, France, French citizen, living at Le Canada 565 chemin
  du petit Poujeau 33290 Le Pian Medoc, single,

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Mrs.
  Katia Bodin,  née Agostini, born on August 30, 1966,
  at Metz, France, French citizen, living at
  3, rue Charles Gounod 94440 Santeny, married under the séparation des biens regime,

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Mrs.
  Fabienne Gairin,  born on September 20, 1957, at Lorient,
  France, French citizen, living at Le Clos
  de la Chaine 9 rue Charles d’Orléans 78370 Plaisir, married under the séparation de biens regime,

  



 


2

















 


	
  11.

  	
   

  	
  Miss. Isabelle Viroulet, born
  on July 7, 1973, at Saint Ouen, France, French citizen, living at 191
  rue de Lourmel 75015 Paris, single,

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Miss. Aurélie Blanchard, born
  on July 4, 1982, at Agen, France, French citizen, living at 60 rue
  Albert Sarraut 78000 Versailles, single,

  
	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Mr. Didier Pinget, born
  on November 28, 1961, at Sainte Foy les Lyon, French citizen, living at 9 Boulevard des Brotteaux 69006 Lyon,
  married under the séparation des biens regime,

  
	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Mr. Eric
  Tourraud, born
  on June 5, 1954, at Paris, France, French citizen, living at 12 rue des Troubadours
  66350 Toulouges, pacsé under the separation
  des biens regime,

  
	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Mr. Philippe
  Maréchal, born on April 23, 1962, at Juvisy, French
  citizen, living at 12, avenue de Verdun 78170 La Celle Saint Cloud, married
  under the séparation des biens regime,

  



 


(the parties 2
to 15 are acting jointly and severally and are hereinafter referred to as the “Sellers” or the “Grantors”),


 


The Buyer/Beneficiary and the
Sellers/Grantors are hereinafter referred to individually as a “Party” and collectively as
the “Parties”.


 


RECITALS:


 


	
  (A)

  	
   

  	
  The Buyer, a NASDAQ-listed
  Delaware company, owns the intellectual property rights related to
  a pregnancy control device called ESSURE (“Essure”).

  
	
   

  	
   

  	
   

  
	
  (B)

  	
   

  	
  Conceptus SAS is a société par actions simplifiée organized
  under the laws of France, the registered
  office of which is at 7/9 rue du Maréchal Foch, registered with the
  Commercial and Companies Register under the number 440 204 964 R.C.S.
  Versailles (the “Company”).

  
	
   

  	
   

  	
   

  
	
  (C)

  	
   

  	
  The Company is engaged in. the business of
  the distribution of Essure products.

  
	
   

  	
   

  	
   

  
	
  (D)

  	
   

  	
  The Company has a share capital of €50,616 divided into 66,600
  identical shares with a nominal value of
  €0.76 each (the “Shares”),  apportioned
  as set forth, in Schedule 1 hereto.

  
	
   

  	
   

  	
   

  
	
  (E)

  	
   

  	
  The Parties have entered into a Share
  Purchase and Call Option Agreement dated January 17, 2004, as amended by
  three amendments respectively dated February 27, 2007 (the “First Amendment”)  and
  October 31, 2007 (the “Second
  Amendment”,  and together with the First
  Amendment the “Amendments”),  pursuant
  to which the Sellers acquired on January 17, 2004 100% of the
  shares capital and voting rights of the Company from the Buyer. The Share Purchase and Call Option Agreement dated
  January 17, 2004, as amended by the Amendments, is herein
  referred to as the “2004 Agreement”.

  
	
   

  	
   

  	
   

  
	
  (F)

  	
   

  	
  The 2004 Agreement granted the
  Buyer an option to purchase the issued and outstanding shares of
  the Company during specified periods for the purchase price specified in the
  2004 Agreement (the “Call Option”).

  
	
   

  	
   

  	
   

  
	
  (G)

  	
   

  	
  The Buyer has exercised the
  Call Option and wishes to acquire all the outstanding Shares on January 7, 2008. For such purposes, the
  Buyer and the Sellers have entered into this share and

  



 


3

















 


purchase agreement (this “Agreement”) defining the terms and conditions under which the Shares are sold by the Sellers to the Buyer. This
Agreement replaces the 2004 Agreement.


 


NOW, THEREFORE,  the
Parties agree as follows:


 


1.                               DEFINITIONS


 


For the purpose
of this Agreement:


 


	
  2004
  Agreement

  	
   

  	
  shall have the meaning set forth in paragraph
  E of the recitals of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Accounting Principles

  	
   

  	
  shall mean the accounting principles applied by the Company in accordance with French GAAP.

  
	
   

  	
   

  	
   

  
	
  Agreement

  	
   

  	
  shall mean this share purchase agreement including its recitals and the Schedules.

  
	
   

  	
   

  	
   

  
	
  2007
  Financial Statements

  	
   

  	
  shall have the meaning set forth in
  Article 5.5.

  
	
   

  	
   

  	
   

  
	
  Beneficiary

  	
   

  	
  shall have the meaning set forth at the
  beginning of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Business
  Day

  	
   

  	
  shall mean any day other than Saturday,
  Sunday, a legal holiday or a day on which banking institutions in Paris,
  France are closed.

  
	
   

  	
   

  	
   

  
	
  Buyer

  	
   

  	
  shall have the meaning set forth at the
  beginning of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Call
  Option

  	
   

  	
  shall have the meaning set forth in
  paragraph F of the recitals of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Change
  in Control

  	
   

  	
  means a transaction pursuant to which an entity becomes the beneficial owner of securities of the
  Beneficiary representing 50.1% or more of the total voting power
  represented by the Beneficiary’s then outstanding voting securities.

  
	
   

  	
   

  	
   

  
	
  Claim

  	
   

  	
  shall have the meaning set forth in
  Article 6.3.

  
	
   

  	
   

  	
   

  
	
  Claim
  Notice

  	
   

  	
  shall have the meaning set forth in
  Article 6.3.

  
	
   

  	
   

  	
   

  
	
  Clawback Amount

  	
   

  	
  shall have the meaning set forth in
  Article 3.1.2.

  
	
   

  	
   

  	
   

  
	
  Closing
  Accounts

  	
   

  	
  shall have the meaning set forth in
  Article 3.1.4.

  
	
   

  	
   

  	
   

  
	
  Closing
  Date

  	
   

  	
  shall have the meaning set forth in
  Article 3.2.

  
	
   

  	
   

  	
   

  
	
  Company

  	
   

  	
  shall have the meaning set forth in
  paragraph B of the recitals of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Disclosure Schedule

  	
   

  	
  shall mean the disclosure schedule attached
  as Annexe 4.

  
	
   

  	
   

  	
   

  
	
  Distribution
  Agreement

  	
   

  	
  means the Distribution Agreement which was attached as Schedule 4.1
  to the 2004 Agreement, as amended by the Distribution

  



 


4

















 


	
   

  	
   

  	
  Agreement Amendment, and as further amended from time to time after
  the date hereof.

  
	
   

  	
   

  	
   

  
	
  Earn-Out

  	
   

  	
  shall have the meaning set
  forth in Article 3.1.5.

  
	
   

  	
   

  	
   

  
	
  Escrow Agent

  	
   

  	
  shall mean Banque Nuger, a société anonyme organized under the laws of France, the registered office of which
  is at 7 Place Michel de I’Hospital,
  63000 Clermont Ferrand, registered with the Commercial and Companies
  Register under the number 855 201 463 R.C.S. Clermont Ferrand

  
	
   

  	
   

  	
   

  
	
  Escrow Agreement

  	
   

  	
  shall have the meaning set
  forth in Article 6.7.

  
	
   

  	
   

  	
   

  
	
  Escrow Funds

  	
   

  	
  shall have the meaning set
  forth in Article 6.7.

  
	
   

  	
   

  	
   

  
	
  Escrow Period

  	
   

  	
  shall have the meaning set
  forth in Article 6.7.

  
	
   

  	
   

  	
   

  
	
  Essure

  	
   

  	
  shall have the meaning set
  forth in paragraph A of the recitals of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Estimated Purchase Price

  	
   

  	
  shall have the meaning set forth in Article 3.1.3.

  
	
   

  	
   

  	
   

  
	
  Fiscal Year

  	
   

  	
  shall mean the fiscal year of the Company
  commencing on January 1 and ending on December 31 of
  each year.

  
	
   

  	
   

  	
   

  
	
  Governmental
  Authority

  	
   

  	
  shall mean the United States, the European Union and any of its member states or any political subdivision
  thereof, any other nation, state, province, municipality or other
  jurisdiction of any nature, any entity or body exercising executive,
  legislative, judicial, regulatory, taxing
  or administrative functions of or pertaining to government and any governmental or judicial tribunal of
  competent jurisdiction.

  
	
   

  	
   

  	
   

  
	
  Grantors

  	
   

  	
  shall mean the individuals listed at the
  beginning of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Indemnified
  Parties

  	
   

  	
  shall have the meaning set
  forth in Article 6.1.

  
	
   

  	
   

  	
   

  
	
  Law

  	
   

  	
  shall mean any law, statute, rule,
  regulation, ordinance, directive, order or decree of any Governmental
  Authority.

  
	
   

  	
   

  	
   

  
	
  Lien

  	
   

  	
  shall mean any security interest, mortgage, lien, pledge, charge, or
  other form of security interest, encumbrance, “servitude” or restriction on use, voting or transfer or,
  generally, any third party right, that has
  the purpose or the effect of restricting the ownership of any asset or
  security.

  
	
   

  	
   

  	
   

  
	
  Loss

  	
   

  	
  shall have the meaning set forth in Article 6.1.

  
	
   

  	
   

  	
   

  
	
  Managers

  	
   

  	
  shall have the meaning set forth at the
  beginning of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Material Adversely Affects

  	
   

  	
  when used with respect to any event,
  circumstance, condition, fact, effect, or other matter, shall mean that such event, circumstance,
  condition, fact, effect, or other matter, has or is reasonably likely to have
  a material adverse effect on the business, assets, condition

  



 


5

















 


	
   

  	
   

  	
  (financial or otherwise), prospects, results or operations of the
  Company.

  
	
   

  	
   

  	
   

  
	
  Notice

  	
   

  	
  shall have the meaning set forth in
  Article 8.

  
	
   

  	
   

  	
   

  
	
  Notice of
  Non-Acceptance

  	
   

  	
  shall have the meaning set forth in
  Article 3.1.4.

  
	
   

  	
   

  	
   

  
	
  Ordinary Course of
  Business

  	
   

  	
  shall mean the ordinary course of business consistent with past
  custom and practice (including with respect to quantity and frequency).

  
	
   

  	
   

  	
   

  
	
  Parties

  	
   

  	
  shall have the meaning set forth at the
  beginning of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Person

  	
   

  	
  shall mean any individual or any
  corporation, association, partnership, joint venture, limited liability,
  joint stock or other company, business
  trust, trust, organization, business or government or any governmental agency
  or political subdivision thereof.

  
	
   

  	
   

  	
   

  
	
  Purchase Price

  	
   

  	
  shall have the meaning set forth in
  Article 3.

  
	
   

  	
   

  	
   

  
	
  Sales Revenue for
  Conceptus Products

  	
   

  	
  shall mean the revenue resulting from the
  sales of Conceptus Inc. products.

  
	
   

  	
   

  	
   

  
	
  Schedule(s)

  	
   

  	
  shall mean the schedule(s) attached
  hereto.

  
	
   

  	
   

  	
   

  
	
  Sellers

  	
   

  	
  shall have the meaning set forth at the
  beginning of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Shares

  	
   

  	
  shall have the meaning set
  forth in paragraph D of the recitals of this Agreement.

  
	
   

  	
   

  	
   

  
	
  Subsidiary 

  	
   

  	
  shall mean in relation to any specified
  Person any company or other entity in which such Person owns
  directly or indirectly more than fifty
  percent (50%) of the capital stock or voting rights.

  
	
   

  	
   

  	
   

  
	
  Tax or Taxes

  	
   

  	
  shall mean all direct or indirect taxes,
  charges, imposts, fees, duties, levies or other assessments or governmental charges of any kind, and any charge in the nature of taxation, whether
  payable directly or by withholding (wherever imposed), including,
  without limitation, all net income, gross income, gross receipts, sales, use,
  ad valorem, transfer, franchise, profits, withholding,
  payroll, employment, social security
  (including any health, unemployment, housing, family allowances, pension or retirement contributions
  or similar payroll-related
  charges, taxes or assessments), excise, severance, property, local (including
  taxe professionnelle)  or
  other taxes, duties, fees, assessments or charges of any kind
  whatsoever, including any interest thereon, and penalties, fines or
  additional amounts in relation, or attributable, thereto, and any payment
  made in or in relation thereto, imposed by
  any Governmental Authority.

  
	
   

  	
   

  	
   

  
	
  Tax Return

  	
   

  	
  shall mean any return, report, information
  return, statement, declaration or other
  document (including any related or supporting information) filed or required to be filed with any Governmental Authority
  in connection with any determination, assessment or

  



 


6

















 


	
   

  	
   

  	
  collection of any Tax or other administration
  of any Laws, regulations or administrative requirements.

  
	
   

  	
   

  	
   

  
	
  Territory

  	
   

  	
  shall have the meaning set
  forth in the Distribution Agreement.

  
	
   

  	
   

  	
   

  
	
  Transfer of the Shares

  	
   

  	
  shall have the meaning set
  forth in Article 2(a).

  
	
   

  	
   

  	
   

  
	
  Unitary Reimbursement Rate

  	
   

  	
  shall have the meaning set
  forth in Article 3.1.2

  
	
   

  	
   

  	
   

  
	
  VAT

  	
   

  	
  shall have the meaning set
  forth in Article 3.1.2.

  



 


2.                                      SALE
AND PURCHASE OF THE SHARES


 


(a)                            According to the terms and subject to the conditions of this Agreement,
the Buyer shall purchase from each of the Sellers, and each of the
Sellers shall sell to the Buyer, in the proportions set forth in Annexe 1, on the
Closing Date, all of his/her Shares, free and clear of any Liens, for the Purchase
Price specified in Article 3 (the “Transfer
of the Shares”).


 


(b)                            As of the Closing Date, the Buyer shall have the full ownership of the
Shares together with all the rights attached thereto, including the
right to all dividends declared and paid on and after the Closing Date, with
respect to the Shares.


 


(c)                             The Buyer shall not be obligated to complete the purchase of any of the
Shares unless the transfer of all of the Shares is completed
simultaneously.


 


3.                                 PURCHASE PRICE AND PAYMENT OF THE PURCHASE PRICE


 


3.1                           PURCHASE
PRICE


 


3.1.1                Amount of the Purchase Price


 


(a)        The sale of the Shares shall be made at
a price (the “Purchase Price”)  equal
to:


 


(i)        1.46
times the Company’s Sales Revenue for Conceptus Products for the Fiscal Year 2007 (“2007 Sales Revenues”),


 


(ii)       plus,
the Earn-Out, which shall be calculated as set forth in Article 3.1.5
below and,


 


(iii)      less, if and to the extent applicable, the
Clawback Amount, as defined in Article 3.1.2 below.


 


3.1.2                Clawback


 


(a)                             The
Purchase Price was calculated on the assumption that the amount to be
reimbursed by the French social security for each pregnancy control device
called Essure (the “Unitary Reimbursement
Rate”)  is €700, value added tax (“VAT”) included (i.e., $663.51 VAT not included). If at any
time before the earlier of (i) January 7, 2009 or (ii) the
publication of the notice mentioned in
paragraph (c) below, the Unitary Reimbursement Rate becomes lower than €628 VAT excluded (i.e., €662.54 VAT included),
then the Purchase Price shall be reduced by an amount calculated as
follows (the “Clawback Amount”):


 


7

















 


(i)           in the event the
Unitary Reimbursement Rate would be equal or above €628 VAT excluded (i.e., €662.54 VAT included), then the
Clawback Amount shall be nil;


 


(ii)          in
the event the Unitary Reimbursement Rate would be equal to or above €620 VAT excluded (i.e., €654.10 VAT included) and lower
than €628 VAT excluded (i.e., €662.54 VAT included), then the Clawback
Amount shall be equal to nine hundred thousand euros (€900,000);


 


(iii)        in
the event the Unitary Reimbursement Rate would be equal or above €610 VAT excluded (i.e., €643.55 VAT included) and lower
than €620 VAT excluded (i.e., €654.10 VAT included), then the Clawback Amount
shall be equal to one million one hundred thousand euros (€1,100,000);


 


(iv)        in
the event the Unitary Reimbursement Rate would be equal or above €600 VAT
excluded (i.e., €633 VAT included) and lower than €610 VAT excluded (i.e.,
€643.55 VAT included), then the Clawback
Amount shall be equal to one million three hundred thousand euros
(€1,300,000);


 


(v)         in
the event the Unitary Reimbursement Rate would be lower than €600 VAT excluded (i.e., €633 VAT included), then the Clawback
Amount shall be equal to one million five hundred thousand euros
(€1,500,000).


 


(b)                            The Clawback shall become due and payable by the Sellers to the Buyer
upon the occurrence of any of the events mentioned in paragraph (i) to
(v) above.


 


(c)                             The provision of this Article 3.1.2
shall terminate upon the publication in the French Official Journal (Journal
Officiel de la République Francaise)
of a notice (Avis)  confirming
that the Unitary Reimbursement Rate is
equal to or higher than €628 VAT excluded (i.e., €662.54 VAT included).


 


3.1.3     Closing Payment


 


(a)                             For the purposes of determining the payment to be
made to the Sellers at the Closing Date, the Parties have agreed to calculate an estimated Purchase Price (the “Estimated Purchase Price”),  using
an estimate of the 2007 Company’s Sales Revenues for Conceptus Products that
has been prepared in good faith by the Sellers (the “Estimated 2007 Sales Revenues”):


 


(i)                                based on the information provided by the Sellers
about the Company’ Sales Revenues for Conceptus Products during fiscal
year 2007, the Parties agree that the Estimated 2007 Sales Revenues, shall be €
10,379,476 VAT not included.


 


(ii)                             the estimated amount of the Estimated Purchase
Price shall therefore be equal to €15,154,034.96.


 


(b)                             On the Closing Date, the Buyer shall instruct its bank to wire the
Estimated Purchase Price for an amount equal to €15,154,034.96, to the
Escrow Account. Subject to receipt on the Escrow Account of the Estimated Purchase Price, this payment shall fully
release the Buyer with respect to the
payment of the Estimated Purchase Price to the Sellers and shall have no
further liability to the Sellers with respect to the allocation of the
Estimated Purchase Price among the Sellers.


 


(c)                              On the Closing Date, the Parties shall instruct the
Escrow Agent to pay an amount equal to €13,487,091.11 to the Sellers on
the accounts which shall be notified by the Sellers’ and Managers’ Agent to the
Escrow Agent on the Closing Date, in the proportions set forth in Annexe 1.


 


8

















 


3.1.4                Purchase Price Adjustment and Post Closing
Payment


 


(a)                            Within twenty (20) Business Days after the Closing
Date, the Managers shall draw up the balance sheet and profit and loss
accounts for fiscal year 2007 (together with the notes attached thereto) of the Company as of December 31, 2007 (the “Closing Accounts”),  which shall be
audited by PriceWaterHouseCoopers Audit, acting as statutory auditors of
the Company. The Managers shall provide a draft of the Closing Accounts to the
Buyer together with the proposed amount of the
final Purchase Price, of the Earn-Out (as calculated in conformity with Article 3.1.5)
and the general report of the statutory auditors of the Company.


 


The Buyer shall notify to the Sellers’ and
Managers’ Agent within thirty (30) days of receipt of the draft Closing
Accounts (together with the general report of the statutory auditors of the Company) whether or not it agrees on the draft
Closing Accounts prepared by the Sellers and on the calculation of the Purchase
Price made by the Sellers. If the Buyer notifies the Sellers’ and Managers’
Agent its disagreement on the draft Closing Accounts and/or on the calculation
of the Purchase Price and/or the calculation of the Earn-Out (the “Notice of
Non-Acceptance”), then the
Purchase Price shall be calculated by the Expert as set out in Annexe 3.


 


(b)                            Upon final determination of the Purchase Price,
either by the Parties, or by the Expert, then:


 


(i)                               if
the Purchase Price exceeds the Estimated Purchase Price, then the Buyer shall
pay (aa) to the Sellers an additional amount equal to 89% of such difference
and (bb) to the Escrow Agent 11% of such difference; or


 


(ii)                             if
the Purchase Price is less than the Estimated Purchase Price, then the Sellers
shall pay to the Buyer an amount equal to such difference, it being specified
that 11% of the Purchase Price Adjustment
shall be first paid out of the Escrow Account, and for the remaining amount (if
any) by the Sellers’ Agent on behalf of the Sellers.


 


(c)                             The adjustment defined in paragraph
(b) (the “Purchase Price Adjustment”)  above
shall be paid as follows:


 


(i)                                if
to the Sellers, to such bank account(s) as shall have been notified by the
Sellers’ Agent to the Buyer no later than
three (3) Business Days in advance, it being specified that in paying the corresponding amount(s) pursuant
to the instructions given by the Sellers’ and Managers’ Agent, the Buyer shall have satisfied its obligations
relating to the payment of the Purchase Price Adjustment and shall have
no further liability to the Sellers in that respect.


 


(ii)                              if
to the Buyer, to such bank account(s) as shall have been notified by the
Buyer to the Sellers’ Agent no later than three (3) Business Days in
advance.


 


The allocation among the
Sellers of the Purchase Price Adjustment shall be made in accordance with the
allocation of the Estimated Purchase Price set out in Article 3.1.3(c).


 


(d)                            For the avoidance of doubt, for the purposes of
calculating the Purchase Price, the Parties agree that in order to
determine the amount of the Sales Revenue for Conceptus Products and/or the Sales
Revenue for Non-Conceptus Products, only the products sold under normal terms
and conditions in accordance with market or
past practices will be taken into account.


 


3.1.5                Earn-Out


 


(a)                            As an
additional consideration for the Shares, the Buyer agrees to pay the Sellers,
subject to the terms and conditions of this Article 3.1.5,
an amount (the “Earn Out”) which shall be equal to:


 


9

















 


(i)                                the
profits made by the Company during the period beginning on January 1, 2007
and ending on December 31, 2007, which profits shall be calculated in
conformity with article L. 232-12 of the
French Commercial Code, taking into account, in the Ordinary Course of
Business, (i) allowances for the necessary depreciation and provisions (constitution des amortissements et provisions)  and
(ii) amounts to be allocated to the statutory reserves (réserves légales)  or to any other reserve set forth
by the by-laws of the Company (réserves statutaires), provided
however that the existing retained profits (report à nouveau bénéficiaire) or loss
carry-forward (pertes antérieures) shall not be taken into account for the
purposes of calculating the Earn Out.


 


(it)                            less
any dividends distributed by the Company after January 1, 2007, other than
the distribution approved by the general
meeting of the shareholders of the Company held on April 12, 2007 for an amount of € 1,068,264
and pertaining to the profits for fiscal year 2006.


 


(b)                            For the avoidance of doubt,
the Earn Out will not include any profits made before January 1, 2007 and in the interim period between December 31,
2007 and the Closing Date.


 


(c)                             The Earn Out shall be calculated using the Closing Accounts, as finally
determined pursuant to Article 3.1.4.


 


(d)                            Within ten (10) days after final determination of the Closing
Accounts and final calculation of the Earn
Out, either by mutual consent of the Buyer and the Sellers or by the Expert, as
set forth in Article 3.1.4, the Earn Out will be paid to the
Sellers by check or bank transfer. The Earn Out shall be paid to the Sellers prorata the number of Shares sold by each
of them.


 


3.2      TRANSFER – OWNERSHIP


 


(a)                            On January 7, 2008 (the “Closing
Date”),  all of the actions required for
Closing, including the actions listed below shall be carried out by the
relevant Parties.


 


(b)                            The Sellers shall deliver, or ensure delivery of,
to the Buyer:


 


(i)           share transfer forms (ordres
de mouvement)  in
favor of the Buyer with respect to each Seller
of the number of Shares set forth in the front of the name such Seller in Annexe 1,  duly
executed by each Seller;


 


(ii)          evidence
that the transfer of all Shares in favor of the Buyer has been recorded on the
Closing Date in the share transfer books (registre des mouvements de litres)  and in the shareholders’ individual accounts (comptes d’actionnaires)  of the Company;


 


(iii)         tax
transfer forms (formulaires cerfa n°2759 DGI)  with respect to the transfer by
each Seller of its Allocable Portion of the
Acquired Securities, duly executed by each Seller;


 


(iv)        up-to-date
originals of the share transfer books (registre des mouvements de litres)  and the shareholders’ individual accounts (comptes d’actionnaires), together with the minute books
for the shareholders’ meetings (registre des procés-verbaux des assemblées générales).


 


(c)                             The Buyer shall deliver, or ensure delivery of,
to the Sellers:


 


10

















 


(i)                                copies
of the irrevocable bank transfers for amounts equal to the 100% of the
Estimated Purchase Price, to the Escrow Agent (on the escrow account of the
Sellers Parties, n°13489 02852 207638 713 00 at Banque Nuger).


 


(d)                            The Parties shall execute:


 


(i)                                the
Escrow Agreement with the Escrow Agent, which shall contain a joint request for
payment instructing the Escrow Agent to
release 89% of the Estimated Purchase Price in the proportions set fort in Annexe 1, upon receipt by the Escrow Agent of the Estimated Purchase
Price.


 


(e)                             The Parties expressly agree that the Buyer shall
have the use and ownership of the Shares as from the Closing Date and that the Shares shall be transferred with the
right to the dividend attached.


 


4.                                  CONDITIONS
PRECEDENT


 


The Managers hereby represent
and warrants that the conditions precedent set forth in the First Amendment
(as listed in Annexe 2) are satisfied.


 


5.                                    REPRESENTATIONS
AND WARRANTIES OF THE MANAGERS


 


The Managers
represent and warrant to the Buyer that the statements contained in this Article 5
together with the Disclosure
Schedule as are correct and complete as of the Closing Date.


 


5.1                          DUE
DILIGENCE


 


All the information, agreements
and any document whatsoever relating to the Company and its business, including all incurred and potential
liabilities whatsoever, have been disclosed to the Buyer in the Due
Diligence and are true, complete and accurate.


 


5.2                          INCORPORATION
AND EXISTENCE


 


The Company is
duly organized and validly existing.


 


5.3                          SHAREHOLDING


 


The Company does
not have any Subsidiary.


 


The Company holds no direct or
indirect shareholding in any company existing in law or in fact whatsoever, or
in any legal or other entity, nor does the Company serve as a director in law
or in fact in any companies or entities whatsoever. The Company
has no outstanding or potential liability with respect to any of its former
shareholding.


 


5.4                          CAPITALIZATION


 


The Sellers validly own all the Shares which
represent all of the issued and outstanding share capital of the Company. The Shares are free from and clear of any Lien.
There are no options, promises, subscription vouchers or other
agreements or undertakings according to which any of the Companies is obliged
or may be obliged to create any securities, shares, rights or other
transferable securities.


 


11

















 


Upon consummation of the
transactions contemplated by this Agreement and execution, delivery by the Sellers to the Buyer of share transfer
forms (ordres de mouvement)  in
respect of the Shares in the name of the Buyer and update of the share
transfer register (registre des mouvements de litres)  of the Company, the Buyer shall
have a good title to the Shares and the direct and exclusive control of all
dividends and voting rights of the Shares.


 


5.5                          ACCOUNTING
AND FINANCIAL DOCUMENTS


 


The Managers have provided, on the Closing
Date, the Buyer with copies of the Company’s financial
statements for fiscal year ended on December 31, 2007 (balance sheet, profit
and loss statement and notes on the accounts) (the “2007
Financial Statements”).


 


The 2007 Financial Statements (i) present
fairly the financial position of the Company and the results of operations of
the Companies as of the respective dates thereof and for the periods covered thereby; and (ii) were prepared in
accordance with the Accounting Principles, applied on a consistent basis
throughout the periods covered thereby.


 


5.6                          CONTRACTS


 


All agreements entered into by the Company
are listed in the Disclosure Schedule. All such agreements have been entered
into in the ordinary course of business.


 


The Transfer of the Shares shall not affect
the rights and obligations of the Company vis-à-vis third parties and none of
the agreements entered into by the Company shall be terminated or cause any indemnification, payment, penalty to be
due as a result of the Transfer of the Shares except as disclosed in the
Disclosure Schedule but except, for avoidance of doubt, the sub-distributor
agreements which are required to not be solely and only affected by a Change of
Control of the Company.


 


5.7                          LITIGATION


 


There are no administrative,
judicial or arbitration proceedings (including inquiries, claims, complaints,
assessments or inspection proceedings of any nature whatsoever) existing,
pending or, to the best knowledge of the Managers, threatened by, against or
between the Company and any other Person,
whether the Company is a plaintiff or a defendant, for itself or on behalf of a
Person for which it may be liable or a guarantor.


 


5.8                          ABSENCE
OF CERTAIN CHANGES AND EVENTS


 


Since the last day of the
period covered by the 2007 Financial Statements and up to the Closing Date
the Company has been operated in the ordinary course of business consistent
with past practice.


 


5.9                          COMPLETENESS
OF REPRESENTATIONS AND WARRANTIES


 


The Sellers have not omitted to disclose to
the Buyer any facts whatsoever that would be necessary
in order for the Buyer not to be misled by the information contained herewith
including the Disclosure Schedule or to purchase them for a
substantially lower price. The Sellers have made
all reasonable efforts to obtain from the Company the information of which they
represent themselves as being aware of in the representations made
herein, including the Disclosure Schedule.


 


12

















 


Each of the warranties and representations
herein contained is without prejudice to any other warranty, representation or undertaking and no clause contained
herewith shall restrict or govern the extent or application of any
clause.


 


There is no fact
that Materially Adversely Affects the business, property, condition, results of
operations or business prospects of the Company that has not been
notified to the Buyer prior to the Closing Date.


 


The representations made herewith, the
warranties granted, and the undertakings agreed to are valid, and shall remain valid, whatever the legal form the Company may
acquire including the Disclosure Schedule.


 


6.                                   INDEMNIFICATION


 


6.1                          INDEMNIFICATION


 


Except as otherwise provided in this Article 6,
from and after the Transfer of the Shares, the Sellers hereby agree to
indemnify, defend and hold harmless the Buyer or, at the Buyer’s sole option, the Company (collectively, the “Indemnified Parties”)  against
and in respect of 100% of any reduction or shortfall in assets, or any increase
or surplus in liabilities whatsoever, and of any prejudice, damage, loss,
shortfall in earnings or costs that are suffered directly or indirectly by the Buyer
or the Company (including penalties and legal costs), at the Closing Date or
may exist in the future and were not
expressly disclosed in this Agreement or the Disclosure Schedule or the Due Diligence Disclosure (“Loss” or “Losses”)  resulting from or
incident to:


 


(i)          any breach or inaccuracy
of any representation or warranty made by the Managers or the Sellers in or pursuant to this Agreement or in
any certificate or other document delivered in connection herewith and any misrepresentation made by the Sellers in
connection with this Agreement or the transactions contemplated hereby;


 


(ii)          anything the Sellers
were aware of or should under normal business conditions have been aware of
that was not disclosed in the Due Diligence Disclosure;


 


(iii)     any events or circumstances having their origin
prior to the Transfer of the Shares;


 


(iv)        any Taxes reassessment
incurred by the Company based on any facts or events having arisen on or prior to the Transfer of the Shares,
regardless of  whether such facts or
events were disclosed on the Disclosure Schedule, but excluding any such
reassessment resulting from the adjustment of the purchase price for Conceptus
Products specified in the Distribution Agreement Amendment.


 


6.2                          LIMITATIONS
AND EXCLUSIONS


 


(a)                            The Indemnified Parties
shall not assert any claim for indemnification against the Sellers under this Article 6 until such time that the
aggregate of all indemnifiable claims that the Indemnified Parties may have against the Sellers under Article 6
shall exceed €100,000 (one hundred thousand euros), it being specified that in the event this
threshold is exceeded, the payment of the indemnity shall become due from the first euro. The amount of any
claim for indemnification against the Sellers under this Article 8
will not exceed the Purchase Price paid.


 


(b)                            The Sellers indemnification obligations under the terms of Article 6
hereof shall be subject to the following conditions:


 


13

















 


(i)                               no
indemnification other than that due with respect to interest or penalties for
late payment shall be due by the Sellers
with respect to any Tax reassessments leading only to a transfer of income or
expenses from one fiscal year to another, and that do not give rise to
any additional Tax burden for the Company in comparison to that which they
would bear in the absence of such
reassessment as a result of, notably, (i) any variation in the applicable
Tax rate, (ii) any increase in Tax liability, resulting interest charges
or penalties for late payment, or (iii), any reassessments of Tax liability
concerning the opening balance sheet of the
first reassessable fiscal year (bilan d’ouverture du premier exercise non prescrit)  pursuant to the principle that the
opening balance sheet cannot be changed (intangibiliie du bilan d’ouverture):


 


(ii)                            notwithstanding
the fact that a Loss may result from a breach or inaccuracy of more than one of the representations or warranties of this
Agreement, the Sellers liability may only be sought once in respect of
any given event or damage.


 


6.3                           CLAIMS


 


(a)          All claims
sent by an Indemnified Party to the Sellers (“Claim”)
shall be the subject of a written notification setting forth the
reasons why the Sellers’ obligation to indemnify is being called into effect, and the amount of the Loss, if it can be
determined (“Claim Notice”). Any
such Claim Notice shall be sent to the Sellers not later than sixty (60) days
after the Indemnified Party has become aware of the claimed breach allegedly
giving rise to indemnification hereunder.


 


(b)          In the absence of objection by the Sellers to
the Indemnified Party within thirty (30) days of receipt by it of a Claim Notice, the Sellers shall immediately pay to
the Buyer an amount equal to the indemnifiable Losses set forth therein.


 


6.4         RELEASE


 


(a)         The Sellers may not be released from its
obligation to indemnify by invoking any lack of awareness of the facts in question, or any knowledge that the Buyer has
or may have of the facts giving rise to the implementation of the
obligation to indemnify (e.g., as a result of any investigations made by the
Buyer).


 


(b)         Approval by the shareholders’ meeting of the
Companies’ accounts for the current fiscal year or any subsequent fiscal year
shall not constitute, where applicable, a waver by any of the Indemnified Parties of any right to
indemnification pursuant to Article 6.


 


6.5         PAYMENTS


 


Upon the final determination of the liability
under this Article 6 either by mutual agreement or upon a final court
judgement or arbitration award (“jugement definitif), the Sellers shall pay to the Indemnified Party within ten (10) days
after such determination, the amount of the claim for indemnification
made hereunder.


 


6.6         SURVIVAL
OF REPRESENTATIONS, WARRANTIES AND INDEMNITY’


 


(a)          All representations and
warranties of the Sellers shall survive and continue in full force and effect until the second anniversary of the Transfer of
the Shares except for social and tax matters, for which the representations and
warranties of the Sellers and the Sellers shall survive and continue in
full force and effect until one month after the expiration of the applicable
statutes of limitations.


 


14

















 


(b)                             The
termination of any such representation and warranty, however, shall not affect
any claim for any breach of any representation or warranty if written notice
thereof is given to the breaching Party
within the period of time referred to in 6.3 before such termination date
mentioned above.


 


6.7                           ESCROW
AGREEMENT


 


Promptly after
the Closing Date, the Buyer shall deposit 11% of the Purchase Price (in lieu of
payment of such amount to the Sellers) with an escrow agent located (unless the
Buyer agrees otherwise) in the United States (provided that the
agent is an office of a French bank located in the United States) selected by the Buyer and reasonably acceptable to
the Managers (the “Escrow Agent”), such deposit, together with any
interest that may be earned thereon, shall constitute the escrow funds (the “Escrow Funds”). The
Escrow Funds shall be held by the Escrow Agent and be available until
the first anniversary of the Closing Date (the “Escrow Period”) (i) to
compensate the Indemnified Parties for indemnifiable Losses arising from Claims
submitted by the Buyer pursuant to this Article 6
or to guarantee the payment of the Purchase Price Adjustment and of the
Clawback.


 


For such
purposes, the Buyer and the Sellers have entered into, as of the date hereof,
an escrow agreement with the Escrow Agent (the “Escrow Agreement”).


 


For clarity, the procedures specified in this
Section 6.7 and the amount of the Escrow Funds do not constitute the Buyer’s exclusive remedy with respect to Claims or
other liabilities arising from or related to this Agreement, and,
subject to the limitations set forth in Section 6.2, the Buyer may seek
all other remedies available at law or equity with respect to Claims or such
other liabilities.


 


7.                                  POST TRANSFER OF THE
SHARES - COVENANTS OF THE PARTIES


 


7.1                          TRANSITION


 


The Parties agree that, following the
Transfer of the Shares, they shall jointly inform the customers with respect to
the transfer of control of the Company. The Parties shall mutually agree on the
format, content, place and date of such notices.


 


The Sellers shall not take any action that is
designed or intended to have the effect of discouraging
any lessor, licensor, customer, supplier, or other business associate of the
Company from maintaining the same business relationships with the
Company after the Transfer of the Shares as it maintained with the Company
prior to the Transfer of the Shares. The Sellers will refer to the Buyer all customer inquiries received by the Sellers from
and after the Transfer of the Shares relating to the business of the
Company.


 


7.2                          NON-COMPETITION
UNDERTAKING / NON SOLICITATION OF EMPLOYEES


 


(a)                            For
three (3) years following the Transfer of the Shares, the Managers
undertake and shall cause their respective, representatives and employees to
undertake, (whether on their own account or for the account of any other
Person), among other things, not to:


 


(i)                                   compete,
directly or indirectly, either as principal, officer, director, agent,
consultant, contractor, joint-venturer,
employee, investor or anything else with the Company;


 


15

















 


(ii)          contact,
solicit or endeavor to solicit, approach or do business with, directly or
indirectly, any Person who or which is at the date of the Transfer of the
Shares and who or which shall have been at any time during the preceding year a
client or customer of or in the habit of
dealing or doing business with the Company, for selling or proposing products
or services already proposed by the Company.


 


(b)                            For
three (3) years following the date of the Transfer of the Shares, the
Managers undertake and shall cause their
respective, representatives and employees to undertake, (whether on their own account or for the account of any other Person),
not to contact, solicit or endeavor to entice away from the Company or hire any person who was
employed by it on the date of the Transfer of the Shares or at any time within
a period of one year prior to that date, without the Buyer’s consent.


 


7.3                           SELLERS’ AND MANAGERS’ AGENT


 


For the purposes of this Agreement, the
Sellers and the Managers hereby appoint Yves Guillemain
d’Echon as their representative (the “Sellers’
and Managers’ Agent”), who,
in their name and on their behalf,
shall make all notices and communications, receive ail notices or make all declarations and make all payments which are
to be made pursuant to this Agreement or as a consequence thereof or arising
there from, to, or on behalf of, the Sellers and/or the Managers. In view of the mutual interest it represents for the
Parties, such power of attorney is irrevocable. Any notification to the Sellers’ and Managers’ Agent
shall thus be deemed to have been made to each of the Sellers and
Managers.


 


Should Yves Guillemain d’Echon,
hereby appointed, be unable to perform his duties to act as the Sellers’ and Managers’ Agent, for any reason
whatsoever, the Sellers’ and Managers’ Agent will be appointed among the
Sellers by the President of the Commercial Court of Paris ruling in summary form (“en
référé”), such
ruling not being challengeable in appeal.


 


7.4                           CONFIDENTIALITY


 


(a)                            The Sellers covenant and agree that they shall not disclose to any
Person, orally or in writing, formally or informally, any information
concerning the businesses and affairs of the Company that is not already
generally available to the public.


 


(b)                            The restrictions imposed by this Article 7.4(a) shall apply as
from the Transfer of the Shares Date and until its third anniversary,


 


8.                                 NOTICES


 


(a)                            Any notice, request, demand or other communication given with reference
to this Agreement (a “Notice”) shall be delivered in English and (i) by
hand (with written confirmation of receipt) to the persons listed
hereinafter or (ii) by certified or registered mail, postage prepaid, acknowledgement of receipt requested or (iii) by
overnight delivery service or (iii) by facsimile transmission with
confirmation of receipt simultaneously addressed by certified mail.


 


(b)                            A Notice shall be deemed to
have been received (i) if delivered by hand, on the day of such delivery
or (ii) if delivered by certified or registered mail or overnight delivery
service, on the day of such delivery or,
should the addressee refuse the delivery or be absent on that date, on the day
of first presentation of the Notice or (iii) if
delivered by fax, on the day on which such fax was sent, provided that a copy
is also sent by registered or certified mail sent no later than the first
Business Day following the day the facsimile was sent.


 


16

















 


8.2                               NOTICES
SHALL BE SENT TO THE FOLLOWING ADDRESSES:


 


(a)                                 If to the Buyer, to:


 


Mr. Gregory
E. Lichtwardt


Conceptus Inc.


331 E. Evelyn
Ave..Mountain View


CA, 94041,
United States of America


Phone:
650-962-4039


Fax: +1 650 691-4724


 


with a copy to:


 


Mr. Mark
Siezckarek


Conceptus Inc.


331 E. Evelyn
Ave., Mountain View


CA, 94041,
United States of America


650-962-4051


 


Fax: +1 650 691-4737


 


(a)    
If to the Sellers, to:


 


Mr. Yves
Guillemain d’Echon


3, rue Jacques
Lemercier


78000 Versailles


 


Fax: +33 (0)1 30 21 19 25


 


(b)     If to the Managers, to:


 


Mr. Yves
Guillemain d’Echon


3, rue Jacques
Lemercier


78000 Versailles


 


Fax: +33 (0)1 30 21 19 25


 


or to such other addresses as a Party may
notify to the other Party in accordance with this Article 8, it being specified that any notification of a change of
address shall become effective ten (10) days after notification of
such change to the other Party.


 


9.                                 MISCELLANEOUS


 


9.1                          TAXES


 


The transfer Taxes resulting from the
transfer of the Shares to the Buyer shall be borne by the Buyer. The Sellers
and the Buyer shall take all necessary steps to fulfill any and all formalities
relating thereto.


 


17

















 


9.2                          OTHER
COSTS AND EXPENSES


 


Each Party shall bear its own costs and
expenses, including fees of legal and other counsels, incurred in connection with the preparation, execution and implementation
of this Agreement and the transactions contemplated hereby.


 


9.3                          CALCULATION
OF THE PERIODS OF TIME


 


For the calculation of a period
of time, such period shall start the next following day after the day on which
the event triggering such period of time has occurred. The expiry date shall be
included in the period of time. If the expiry date is not a Business Day, the
expiry date shall be postponed until the next Business Day.


 


9.4                          AMENDMENT


 


No terms of this Agreement may be altered,
modified, amended, supplemented or terminated except by an instrument in
writing duly signed by the Parties.


 


9.5                          ASSIGNMENT


 


None of the
Parties may assign the benefit of any provision of this Agreement without the
prior written consent of the
other Party, to any Person, including to any subsequent purchaser of all or parts
of the Shares or Shares or to a company that shall merge with the Party or to
which the Party shall contribute all or substantially all of its assets or its
business.


 


9.6                          SEVERABILITY


 


If any provision herein, or the
application thereof to any circumstance of this Agreement, is held to be
unenforceable, invalid or illegal by any court, arbitration tribunal,
government agency or regulatory
body of competent jurisdiction, (i) such provision shall be deemed deleted
from this Agreement or not
applicable to such circumstance, as the case may be, and the enforceability, validity and legality of the other provisions of
this Agreement shall not be affected or impaired thereby and (ii) the
Parties shall negotiate in good faith to agree on replacement terms that shall be enforceable, valid, legal, and consistent with
the initial intent of the Parties.


 


9.7                          SINGLE
AGREEMENT


 


This Agreement (including the Schedules and
the Disclosure Schedule) supersedes all prior agreements,
negotiations, drafts and understandings among the Parties hereto, including the
2004 Agreement.


 


9.8                          GOVERNING
LAW - DISPUTES


 


This Agreement
shall be exclusively governed by and construed in accordance with French law.


 


All disputes arising out of or in connection
with this Agreement (including without limitation with respect to its
signature, validity, performance, interpretation, termination and post-termination obligations hereof) shall be submitted
to the exclusive jurisdiction of the Commercial Court of Paris.


 


18

















 


Made on the January 7, 2008 in fifteen (15) original copies.


 


 


	
  /s/ Gregory E. Lichtwardt

  	
   

  	
   

  	
   

  
	
  CONCEPTUS INC.

  	
   

  	
   

  	
   

  
	
  Gregory E. Lichtwardt

  	
   

  	
   

  	
   

  
	
  Executive Vice President, Chief Financial

  	
   

  	
   

  	
   

  
	
  Officer and Treasurer

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Yves GUILLEMAIN D’ECHON

  	
   

  	
  /s/ Jean-Christophe BODIN

  	
   

  
	
  Mr. Yves GUILLEMAIN D’ECHON

  	
   

  	
  Mr. Jean-Christophe BODIN

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Catherine GUILLEMAIN D’ECHON

  	
   

  	
  /s/ Yves GUILLEMAIN D’ECHON 

  	
   

  
	
  Mrs Catherine GUILLEMAIN D’ECHON

  	
   

  	
  Mr. Florent GUILLEMAIN D’ECHON

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Alban GUILLEMAIN D’ECHON 

  	
   

  	
  /s/ Yves
  GUILLEMAIN D’ECHON 

  	
   

  
	
  Mr. Alban GUILLEMAIN D’ECHON

  	
   

  	
  Mr. Tristan GUILLEMAIN D’ECHON

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Jean GUILLEMAIN D’ECHON 

  	
   

  	
  /s/ Katia BODIN

  	
   

  
	
  Mr. Jean GUILLEMAIN D’ECHON

  	
   

  	
  Mrs. Katia BODIN

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Fabienne GAIRIN

  	
   

  	
  /s/ Isabelle VIROULET

  	
   

  
	
  Miss. Fabienne GAIRIN

  	
   

  	
  Miss Isabelle VIROULET

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Aurélie BLANCHARD

  	
   

  	
  /s/ Didier PINGET

  	
   

  
	
  Miss Aurélie BLANCHARD

  	
   

  	
  Mr. Didier PINGET

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/  Eric TOURRAUD

  	
   

  	
  /s/ Philippe
  MARECHAL

  	
   

  
	
  Mr. Eric TOURRAUD

  	
   

  	
  Mr. Philippe MARECHAL

  	
   

  



 


19
















 


ANNEXE 1


 


List of shareholders of the Company


 


	
   

  	
   

  	
  Number

  of Shares

  	
   

  	
  Number

  of voting

  rights

  	
   

  	
  Estimated

  Purchase Price

  	
   

  	
  Amount to be

  released by the

  Escrow Agent upon

  receipt of the

  Estimated Purchase

  Price

  	
   

  	
  Amount to be kept

  under escrow by the

  Escrow Agent under

  the Escrow

  Agreement

  	
   

  
	
  Mr. Yves Guillemain d’Echon

  	
   

  	
  38,794

  	
   

  	
  38,794

  	
   

  	
  €

  	
  8,827,111,60

  	
   

  	
  €

  	
  7,856,129,32

  	
   

  	
  €

  	
  970,982,28

  	
   

  
	
  Mr. Jean-Christophe Bodin

  	
   

  	
  8,647

  	
   

  	
  8,647

  	
   

  	
  €

  	
  1,967,521,63

  	
   

  	
  €

  	
  1,751,094.25

  	
   

  	
  €

  	
  216,427,38

  	
   

  
	
  Mrs. Catherine Guillemain d’Echon

  	
   

  	
  1,081

  	
   

  	
  1,081

  	
   

  	
  €

  	
  245,968,65

  	
   

  	
  €

  	
  218,912,10

  	
   

  	
  €

  	
  27,056,55

  	
   

  
	
  Mr. Florent Guillemain d’Echon

  	
   

  	
  1,081

  	
   

  	
  1,081

  	
   

  	
  €

  	
  2,459,686,56

  	
   

  	
  €

  	
  218,912,10

  	
   

  	
  €

  	
  27,056,55

  	
   

  
	
  Mr. Alban Guillemain d’Echon

  	
   

  	
  1,081

  	
   

  	
  1,081

  	
   

  	
  €

  	
  245,968,65

  	
   

  	
  €

  	
  218,912,10

  	
   

  	
  €

  	
  27,056,55

  	
   

  
	
  Mr. Tristan Guillemain d’Echon

  	
   

  	
  1,081

  	
   

  	
  1,081

  	
   

  	
  €

  	
  245,968,65

  	
   

  	
  €

  	
  218,912,10

  	
   

  	
  €

  	
  27,056,55

  	
   

  
	
  Mr. Jean Guillemam d’Echon

  	
   

  	
  1,581

  	
   

  	
  1,581

  	
   

  	
  €

  	
  359,737,68

  	
   

  	
  €

  	
  320,166,54

  	
   

  	
  €

  	
  39,571,14

  	
   

  
	
  Mrs. Katia Bodin

  	
   

  	
  4,864

  	
   

  	
  4,864

  	
   

  	
  €

  	
  1,106,745,14

  	
   

  	
  €

  	
  985,003,18

  	
   

  	
  €

  	
  121,741,96

  	
   

  
	
  Miss. FabienneGairin

  	
   

  	
  2,378

  	
   

  	
  2,378

  	
   

  	
  €

  	
  541,085,51

  	
   

  	
  €

  	
  481,566,10

  	
   

  	
  €

  	
  59,519,41

  	
   

  
	
  Miss. Isabelle Viroulet

  	
   

  	
  1,621

  	
   

  	
  1,621

  	
   

  	
  €

  	
  368,839,20

  	
   

  	
  €

  	
  328,266,89

  	
   

  	
  €

  	
  40,572,31

  	
   

  
	
  Miss. Aurelie Blanchard

  	
   

  	
  108

  	
   

  	
  108

  	
   

  	
  €

  	
  24,574,11

  	
   

  	
  €

  	
  21,870,96

  	
   

  	
  €

  	
  2,703,15

  	
   

  
	
  Mr. Didier Pinget

  	
   

  	
  1,081

  	
   

  	
  1,081

  	
   

  	
  €

  	
  245,968,65

  	
   

  	
  €

  	
  218,912,10

  	
   

  	
  €

  	
  27,056,55

  	
   

  
	
  Mr. Eric Tourraud

  	
   

  	
  2,121

  	
   

  	
  2,121

  	
   

  	
  €

  	
  482,608,23

  	
   

  	
  €

  	
  429,521,32

  	
   

  	
  €

  	
  53,086,91

  	
   

  
	
  Mr. Philippe Marechai

  	
   

  	
  1,081

  	
   

  	
  1,081

  	
   

  	
  €

  	
  245,968,65

  	
   

  	
  €

  	
  218,912,10

  	
   

  	
  €

  	
  27,056,55

  	
   

  
	
  Total

  	
   

  	
  66,600

  	
   

  	
  66,600

  	
   

  	
  €

  	
  15,154,034,96

  	
   

  	
  €

  	
  13,487,091,12

  	
   

  	
  €

  	
  1,666,943,84

  	
   

  



 


20

















 


ANNEXE 2


 


Conditions precedent


 


The Sellers confirm the satisfaction of all of the following conditions
precedent at all times between the date of October 31, 2007 and the
Closing Date:


 


	
  2.

  	
   

  	
  there is no event, circumstance, condition, fact, effect, or other
  matter (including any matters listed on the Disclosure Schedule) that would,
  alone or in combination with other matters, cause any of the representations
  and warranties set forth in Article 5 of the Agreement to be inaccurate
  or untrue;

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  neither the Sellers nor the Company is in
  breach of the Agreement or the Distribution Agreement;

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  the aggregate of (i) the Company’s liabilities and (ii) the
  profits made by the Company during the period beginning on January 1, 2007 and
  ending on the Transfer of the Shares Date, as determined in accordance with the Accounting Principles,
  (said aggregate amount being referred to as the “Company’s Adjusted Liabilities”) do not
  exceed the Company’s assets as determined in accordance with the Accounting
  Principles, and the Company’s Adjusted Liabilities would not exceed the
  Company’s assets as determined in accordance with the Accounting Principles
  immediately after the Transfer of the Shares Date;

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  the Company has
  purchased from the Buyer (i) at least 17,500 units of Conceptus Products
  (meaning Essure kits containing two products) in calendar year 2007;

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  the reimbursement rate for the Essure procedure éstablished by the
  French government is, together with the applicable value-added tax, equal to or
  greater than €628.90;

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  no event, circumstance, condition, fact, effect, or other matter
  exists that, alone or in combination with other matters,
  Materially Adversely Affects the Company or that has or is reasonably likely
  to have a material adverse effect on the business, assets, condition
  (financial or otherwise), prospects, results or operations of the Buyer;

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  the distribution agreements provided by the Company to the Buyer as
  of the Amendment Effective Date (“Distributor
  Agreements”) are: (i) complete and accurate copies of all of
  the Company’s agreements pursuant to which Conceptus Products are sold or
  distributed on behalf of the Company as of February 27, 2007; and
  (ii) in effect as of the Closing Date with prices for Conceptus Products
  and minimum purchase requirements equal to or greater than those contained in
  the Distributor Agreements as of February 27, 2007;

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  except as approved by the Buyer in writing: (i) all
  distribution, reseller or similar agreements with respect to the sale or distribution of
  Conceptus Products entered into after February 27, 2007 (A) contain terms substantially similar to the
  Company’s form of distributor agreement provided by the Company to the Buyer prior to February 27,
  2007, (B) do not have terms that extend beyond 2014, (C) specify that the price paid by the
  distributor for Conceptus Products is equal to or greater than €350, and (C) have minimum annual purchase
  requirements consistent with the minimum purchase requirements in
  other Company distributor agreements entered into in the Ordinary Course of
  Business; and (ii) all sales of Conceptus Products by Company pursuant
  to the Distributor Agreements, the
  agreements described in clause (i) above, or otherwise have been in the
  Ordinary Course of Business;

  



 


21

















 


	
  10.

  	
   

  	
  the Company has been and is in compliance with all Laws;

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  since February 27, 2007, there has been no change in Law that
  Materially Adversely Affects the distribution or sale of Conceptus Products in
  any country in the Territory, inctuding the provision of Conceptus Products
  to the Company by the Buyer;

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  the Company has not granted or agreed to grant: (i) any
  compensation or other benefit that would become due at any time as a result
  of the Transfer of the Shares; or (ii) since February 27, 2007, increases in compensation payable to
  Company employees that would cause the aggregate compensation of Company employees to increase by more than 10% on an
  annual basis from the aggregate compensation amount of €792,311 measured from
  the time of February 27, 2007;

  
	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Mr. Yves
  Guillemain d’Echon and Mr. Jean-Christophe Bodin are the Managers and
  are actively involved in the operation of the Company.

  



 


22

















 


ANNEXE 3


 


Expertise procedure


 


	
  1.

  	
   

  	
  Should the
  Buyer disagree with the draft Closing Accounts prepared by the Managers, then
  the Buyer and the Sellers shall discuss
  in good faith the objections of the Buyer on those items of the draft Closing Accounts and/or the calculation of
  the Purchase Price and/or Earn Out on which they disagree (the “Disputed Items”) and shall use their reasonable endeavors to reach an agreement
  on such Disputed items, within ten (10) days of the Notice of
  Non-Acceptance (or any other date as the Buyer and the Sellers may agree in
  writing).

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  If the Sellers and the Buyer do not reach an agreement on the draft
  Closing Accounts and/or the calculation of the Purchase Price and/or Earn
  Out within the period referred to in paragraph 1 above, then the Disputed Items (and only those) shall be referred, on
  the application of either the Buyer
  or the Sellers, for determination to an expert chosen by the Buyer and the
  Sellers (said expert or any successor thereof, the “Expert”). Failing
  an agreement among the Buyer and the Sellers on such designation
  within twenty (20) days of the Notice of Non Acceptance, any of them may request the President of the Commercial Court of
  Paris ruling under summary proceedings (statuant
  en
  référé) to appoint an
  independent firm of internationally recognized chartered accountants, each of
  the Buyer and the Sellers having the opportunity to be heard. If the initial
  Expert (or any of its successor(s) appointed in accordance with the
  procedure set out hereafter) refuses, or is unable to carry out its mission hereunder then its
  successor shall be appointed as set forth in this paragraph 2.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Following
  appointment of the Expert, the Buyer and the Sellers shall each promptly (and
  in any event within such time frame as
  reasonably enables the Expert to make its decision in accordance with the
  period set forth in paragraph 5 below prepare and deliver to the Expert a
  written statement on the Disputed
  Items (together with the relevant documents including the draft Closing
  Accounts, and/or the calculation
  of the Purchase Price and/or Earn Out). The Buyer and the Sellers agree to promptly
  provide each other and where applicable, the Expert, with all information in
  their respective possession or control
  relating to the operations of the Company, including access at all reasonable times to all employées, books,
  records and files, and other relevant information and all co-operation
  and assistance, as may be reasonably required to enable the production of and
  the review of the draft Closing Accounts.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  The mission of the Expert shall be limited to the review and
  resolution of the Disputed Items based solely upon the elements
  presented by the Parties and not by independent review. The Expert shall act
  as pursuant to the provisions of article 1592 of the French Civil Code and
  its decision shall be final and binding on the Parties (absent any gross
  mistake) and shall not be subject to any recourse before a court or
  arbitration tribunal except as necessary to enforce such decision.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  The Expert shall make its decision after due hearings of the Buyer
  and the Sellers. The Expert shall be requested to give its decision within thirty
  (30) days of acceptance by the Expert of its appointment hereunder.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  The decision of the Expert shall be founded and the Expert shall
  provide the Buyer and the Sellers with a final version of the draft Closing
  Accounts, together with a calculation of the amount of the Earn Out or the Purchase Price, and
  shall specify in reasonable details what adjustments, if any, have been made to the draft Closing Accounts and
  the calculation of the Earn Out or Purchase Price in respect of the
  Disputed Items.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  The fees and expenses of the Expert shall be borne equally between
  the Buyer, on the one hand, and the Sellers, on the other hand.

  



 


23