Exhibit 10.1


CONCEPTUS,
INC.


SPENCER
ROECK STOCK APPRECIATION RIGHT AGREEMENT


                This SPENCER ROECK STOCK APPRECIATION RIGHT AGREEMENT
(the “Agreement”) is entered into effective as of October 10, 2007 (the “Effective
Date”) between Conceptus, Inc. (the “Company”) and Spencer Roeck
(the “Participant”).


                This stock appreciation right (“SAR”) has been
granted without stockholder approval as a stand-alone inducement grant pursuant
to NASDAQ Marketplace Rule 4350(i)(1)(A)(iv). Certain capitalized terms used
herein shall have the meanings given such terms in paragraph 18 of this
Agreement.


                1.             Grant.  In consideration of the Participant’s
agreement to commence and remain in the employ of the Company or its
Subsidiaries and for other good and valuable consideration, effective as of the
Effective Date, the Company irrevocably grants to the Participant a stock
appreciation right (a “SAR”) for 100,000 shares of common stock (the “Common
Stock”), par value $0.003 per share (the “Shares”), at an exercise
price of $19.99 per share (the “Exercise 
Price per Share”).


 


                2.             Company’s Obligation to Pay.
 Each SAR has a value equal to the
difference between the Fair Market Value of a Share and the Exercise Price per
Share on the date the SAR is exercised. Unless and until the SAR will have
vested in the manner set forth in paragraph 3, the Participant will have no
right to payment of the SAR. Prior to actual payment of any vested SAR, such
SAR will represent an unsecured obligation of the Company, payable (if at all)
only from the general assets of the Company.


 


                3.             Vesting Schedule.  Subject to paragraph 4, the SAR awarded by
this Agreement will vest in the Participant with respect to one-eighth (1/8th)
of the Shares on the six-month anniversary of September 19, 2007 (the “Vesting
Commencement Date”), with the remainder of the Shares subject thereto
vesting in equal monthly installments over the following forty-two (42) months,
such that the SAR shall be fully vested on the four-year anniversary of the
Vesting Commencement Date, in any event, subject to Participant continuing to
be a Service Provider through each such vesting date.


 


                4.             Exercise
and Term.


                                (a)           The SAR may be exercised by the
Participant (or in the event of the Participant’s death by the Participant’s
estate) during its term only to the extent vested. Any portion of the SAR in
which the Participant is vested shall be exercisable until the earliest of the
following (the “Expiration Date”):


                                                (i) Twelve (12)
months following the date the Participant ceases to be a Service Provider by
reason of death or as a result of total and permanent disability as defined in
Section 22(e)(3) of the Code;


 

















 


                                                (ii) Ninety (90) days
following the date the Participant ceases to be a Service Provider for any
reason other than death or as a result of total and permanent disability as
defined in Section 22(e)(3) of the Code; or


 


                                                (iii)
the tenth anniversary of the Effective Date.


 


                                (b)           Any
exercisable portion of the SAR may be exercised in whole or in part at any time
prior to the time when the SAR becomes unexercisable under paragraph 4(a).


 


                                (c)           Any
vested SAR or portion of a SAR not exercised prior to its Expiration Date will
be forfeited and will terminate.


 


                                (d)           A
vested SAR or portion of a SAR may be exercised by completing a Stock
Appreciation Right Exercise Notice in the form attached hereto as Exhibit A
and returning it to the Company at 331 East Evelyn Avenue, Mountain View,
California 94041, Attn: Chief Financial Officer, or at such other address as
the Company may hereafter designate in writing, prior to its Expiration Date.
The SAR may not be exercised more than once with respect to any Share related
thereto.


 


                5.             Payment.


 


                                (a)           The Company shall settle the exercise
of all or any portion of the SAR in whole Shares within ten (10) days following
such exercise.


 


                                (b)           No Shares shall be issued pursuant to
Section 5(a) until Participant has paid any and all federal, state and local
withholding taxes with respect to such exercise; provided, however,
that to the extent determined appropriate by the Company, any federal, state
and local withholding taxes with respect to such exercise will be paid by
reducing the number of Shares actually paid to the Participant by that number
of Shares having a Fair Market Value equal to the statutory minimum amount
required to be so withheld.


 


                6.             Rights as Stockholder.  Neither the Participant nor any person
claiming under or through the Participant will have any of the rights or
privileges of a stockholder of the Company in respect of any Shares deliverable
upon exercise of the SAR unless and until certificates representing such Shares
will have been issued, recorded on the records of the Company or its transfer
agents or registrars, and delivered to the Participant.


 


                7.             Address for Notices.  Any notice to be given to the Company under
the terms of this Agreement will be addressed to the Company at 331 East Evelyn
Avenue, Mountain View, California 94041, Attn: Chief Financial Officer, or at
such other address as the Company may hereafter designate in writing. Any
notices provided for in this Agreement shall be given in writing and shall be
deemed effectively given upon receipt or, in the case of notices delivered by
the Company to the Participant, five (5) days after deposit in the United States
mail, postage prepaid, addressed to the Participant at the address specified on
the first page of this Agreement or at such other address as the Participant
may hereafter designate by written notice to the Company.


 


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                8.             Grant is Not Transferable.  Except to the limited extent provided in
paragraph 4, this grant and the rights and privileges conferred hereby,
including without limitation the Shares issuable upon exercise of the SAR, will
not be transferred, assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise) and will not be subject to sale under execution,
attachment or similar process until, with respect to whole Shares issuable
following the exercise of the SAR, such Shares are issued pursuant to paragraph
5 above. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of this grant, or any right or privilege conferred hereby, or upon any
attempted sale under any execution, attachment or similar process, this grant
and the rights and privileges conferred hereby immediately will become null and
void.


 


                9.             Binding Agreement.  Subject to the limitation on the
transferability of this grant contained herein, this Agreement will be binding
upon and inure to the benefit of the heirs, legatees, legal representatives,
successors and assigns of the parties hereto.


 


                10.           No Effect on Employment or Service.
 This Agreement is not an employment or
service contract, and nothing herein shall be deemed to create in any way
whatsoever any obligation on the Participant’s part to continue in the employ
or service of the Company, or of the Company to continue the Participant’s
employment or service with the Company. Nothing in this Agreement shall affect
in any manner whatsoever the right or power of the Company to terminate the
Participant’s employment or service relationship, for any reason whatsoever,
with or without good cause.


 


                11.           Committee Authority.  The Company’s Board of Directors, the
Compensation Committee of the Company’s Board of Directors or such other
committee of the Board of Directors as shall be duly authorized (collectively,
the “Administrator”) will have the power to interpret this Agreement and to
adopt such rules for the administration, interpretation and application of the
provisions of this Agreement as are consistent therewith and to interpret or
revoke any such rules (including, but not limited to, the determination of
whether or not the SAR or any portion thereof has vested). All actions taken
and all interpretations and determinations made by the Administrator in good
faith will be final and binding upon Participant, the Company and all other
interested persons. No member of the Administrator will be personally liable
for any action, determination or interpretation made in good faith with respect
to this Agreement.


 


                12.           Additional Conditions to Issuance
of Stock.  If at any time the Company
will determine, in its discretion, that the listing, registration or
qualification of the Shares upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory
authority is necessary or desirable as a condition to the issuance of Shares to
the Participant (or Participant’s estate), such issuance will not occur unless
and until such listing, registration, qualification, consent or approval will
have been effected or obtained free of any conditions not acceptable to the
Company. The Company will make all reasonable efforts to meet the requirements
of any such state or federal law or securities exchange and to obtain any such
consent or approval of any such governmental authority. As a condition to the
exercise of this Stock Appreciation Right, the Company may require the person
exercising this Stock Appreciation Right to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment
and without any present intention to sell or


 


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distribute such Shares if, in the opinion of counsel for the Company,
such a representation is required by any of the aforementioned relevant
provisions of law.


 


                13.           Captions.  Captions provided herein are for convenience
only and are not to serve as a basis for interpretation or construction of this
Agreement.


 


                14.           Agreement Severable.  In the event that any provision in this
Agreement will be held invalid or unenforceable, such provision will be
severable from, and such invalidity or unenforceability will not be construed
to have any effect on, the remaining provisions of this Agreement.


 


                15.           Material Inducement.  The Participant agrees that the Participant
has not been previously employed in any capacity by the Company or a
Subsidiary, or if previously employed, has had a bona-fide period of
non-employment, and that the grant of this SAR is an inducement material to the
Participant’s agreement to enter into employment with the Company or
Subsidiary.


 


                16.           Adjustments
upon Changes in Capitalization, Merger or Asset Sale.


                                (a)           In
the event that the Company determines that other than an Equity Restructuring
any dividend or other distribution (whether in the form of cash, Common Stock,
other securities, or other property), reclassification, reorganization, merger,
consolidation, spin off, combination, repurchase, liquidation, dissolution, or
sale, transfer, exchange or other disposition of all or substantially all of
the assets of the Company, or exchange of Common Stock or other securities of
the Company, issuance of warrants or other rights to purchase Common Stock or
other securities of the Company, or other similar corporate transaction or
event, in the Company’s sole discretion, affects the Common Stock such that an
adjustment is determined by the Company to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended by the
Company to be made available under this Agreement or with respect to the SAR,
then the Company shall, in such manner as it may deem equitable, adjust the
number and kind of shares of Common Stock (or other securities or property)
subject to this Agreement.


 


                                (b)           In
the event of any transaction or event described in paragraph 16(a), the
Company, in its sole discretion, and on such terms and conditions as it deems
appropriate, either by the terms of the Agreement or by action taken prior to
the occurrence of such transaction or event and either automatically or upon
the Participant’s request, is hereby authorized to take any one or more of the
following actions whenever the Company determines that such action is
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended by the Company to be made available under this
Agreement or to facilitate such transaction or event:


 


                                                (i)            To provide for either the purchase
of the SAR for an amount of cash equal to the amount that could have been
obtained upon the exercise of the SAR or realization of the Participant’s
rights had the SAR been currently exercisable or payable or fully vested or the
replacement of the SAR with other rights or property selected by the Company in
its sole discretion;


 


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                                                (ii)           To provide that the SAR shall be
exercisable as to all shares covered thereby, notwithstanding anything to the
contrary in this Agreement;


 


                                                (iii)          To provide that the SAR be assumed by
the successor or survivor corporation, or a parent or subsidiary thereof, or
shall be substituted for by similar options, rights or awards covering the
stock of the successor or survivor corporation, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kind of shares and
prices;


 


                                                (iv)          To make adjustments in the number and
type of shares of Common Stock (or other securities or property) subject to
outstanding SAR, and/or in the terms and conditions of (including the grant or
exercise price), and the criteria included in, outstanding SAR; or


 


                                                (v)           To provide that immediately upon the
consummation of such event, the SAR shall not be exercisable and shall
terminate; provided, that for a specified period of time prior to such event,
the SAR shall be exercisable as to all Shares covered thereby, and the
restrictions imposed under this Agreement upon some or all Shares may be terminated,
notwithstanding anything to the contrary in this Agreement.


 


                                (c)           In
connection with the occurrence of any Equity Restructuring, and notwithstanding
anything to the contrary in paragraphs 16(a) and 16(b), the number and type of
securities subject to the outstanding SAR and the exercise price or grant price
thereof, if applicable, will be proportionately adjusted. The adjustments
provided under this paragraph 16(c) shall be nondiscretionary and shall be
final and binding on the affected the Participant and the Company.


 


                                (d)           If
the Company undergoes an Acquisition, then any surviving corporation or entity
or acquiring corporation or entity, or affiliate of such corporation or entity,
may assume the SAR or may substitute similar stock awards (including an award
to acquire the same consideration paid to the stockholders in the transaction
described in this paragraph 16(d)) for those outstanding under this Agreement.
In the event any surviving corporation or entity or acquiring corporation or
entity in an Acquisition, or affiliate of such corporation or entity, does not
assume the SAR or does not substitute similar stock awards for the SAR, then if
the Participant’s status as a Service Provider has not terminated prior to such
event, the vesting of the SAR (and the time during which the SAR may be
exercised) shall be accelerated and made fully exercisable and all restrictions
thereon shall lapse at least ten (10) days prior to the closing of the
Acquisition (and the SAR terminated if not exercised prior to the closing of
such Acquisition).


 


                                (f)            The
existence of this Agreement shall not affect or restrict in any way the right
or power of the Company or the stockholders of the Company to make or authorize
any adjustment, recapitalization, reorganization or other change in the Company’s
capital structure or its business, any merger or consolidation of the Company,
any issue of stock or of options, warrants or rights to purchase stock or of
bonds, debentures, preferred or prior preference stocks whose rights are superior
to or affect the Common Stock or the rights thereof or which are convertible
into or exchangeable for Common Stock, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise.


 


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                17.           Amendment.  The provisions of this Agreement may be
amended or waived only by written agreement between the Company and the
Participant, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement will affect the validity, binding effect or
enforceability of this Agreement. Notwithstanding the foregoing, the Company
may amend, terminate or revoke this Agreement in any respect to the extent
determined necessary or desirable by the Company in its discretion to comply
with the requirements of Section 409A of the Code and the Department of
Treasury regulations and other guidance promulgated thereunder. Participant
expressly understands and agrees that no additional consent of Participant
shall be required in connection with such amendment, termination or revocation.


 


                18.           Successors and Assigns.  Subject to the provisions of paragraph 16
above, the Company may assign any of its rights under this Agreement to single
or multiple assignees, and the Stock Appreciation Right shall inure to the
benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer herein set forth, this Agreement shall be binding upon
Participant and Participant’s heirs, executors, administrators, successors and
assigns.


 


                19.           Certain Definitions.  As used herein, the following definitions
shall apply:


 


                                (a)           “Acquisition”
means (i) any consolidation or merger of the Company with or into any other
corporation or other entity or person in which the stockholders of the Company
prior to such consolidation or merger own less than fifty percent (50%) of the
Company’s voting power immediately after such consolidation or merger, or (ii)
a sale of all or substantially all of the assets of the Company.


 


                                (b)           “Board” means the Board of
Directors of the Company.


 


                                (c)           “Code”
means the Internal Revenue Code of 1986, as amended, or any successor statute
or statutes thereto. Reference to any particular Code section shall include any
successor section.


 


                                (d)           “Consultant”
means any consultant or adviser if: (i) the consultant or adviser renders bona
fide services to the Company or any Parent or Subsidiary of the Company; (ii)
the services rendered by the consultant or adviser are not in connection with
the offer or sale of securities in a capital-raising transaction and do not
directly or indirectly promote or maintain a market for the Company’s
securities; and (iii) the consultant or adviser is a natural person who has
contracted directly with the Company or any Parent or Subsidiary of the Company
to render such services.


 


                                (e)           “Director” means a member of
the Board.


 


                                (f)            “Employee”
means any person, including an officer or Director, who is an employee (as
defined in accordance with Section 3401(c) of the Code) of the Company or any
Parent or Subsidiary of the Company. A Service Provider shall not cease to be
an Employee in the case of (i) any leave of absence approved by the Company or
(ii) transfers between locations of the Company or between the Company, its
Parent, any Subsidiary, or any successor. Neither service as a Director nor
payment of a director’s


 


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                fee by the Company
shall be sufficient, by itself, to constitute “employment” by the Company.


 


                                (g)           “Equity
Restructuring” shall mean a non-reciprocal transaction between the Company
and its stockholders, such as a stock dividend, stock split, spin-off, rights offering
or recapitalization through a large, nonrecurring cash dividend, that affects
shares of Common Stock (or other securities of the Company) or the share price
of Common Stock (or of other securities) and causes a change in the per share
value of the Common Stock underlying the SAR.


 


                                (h)           “Fair
Market Value” means, as of any date, the value of a share of Common Stock
determined as follows:


 


                                                (i)            If the Common Stock is listed on any
established stock exchange or national market system, including, without
limitation, the Nasdaq Global Select Market, the Nasdaq Global Market or the
Nasdaq Capital Market, its Fair Market Value shall be the closing sales price
for a share of such stock (or the closing bid, if no sales were reported) as
quoted on such exchange or system on the day of determination (or the most
recent day on which sales were reported if none were reported on such date), as
reported in The Wall Street Journal or such other source as the Company deems
reliable;


 


                                                (ii)           If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high bid and low asked prices for a share of the
Common Stock on the day of determination (or the most recent day on which bid
and asked prices were reported if none were reported on such date); or


 


                                                (iii)          In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Company.


 


                                (i)            “Parent” means any corporation, whether now or
hereafter existing (other than the Company), in an unbroken chain of
corporations ending with the Company if each of the corporations other than the
last corporation in the unbroken chain owns stock possessing more than fifty
percent of the total combined voting power of all classes of stock in one of
the other corporations in such chain.


 


                                (j)            “Service Provider” means an Employee, Director or
Consultant.


 


                                (k)           “Subsidiary” means any corporation, whether now or
hereafter existing (other than the Company), in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain owns stock possessing more than
fifty percent of the total combined voting power of all classes of stock in one
of the other corporations in such chain.


 


(Signature Page Follows)


 


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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.


 


 


	
  CONCEPTUS, INC.

  	
  PARTICIPANT

  
	
   

  	
   

  
	
  /s/ Gregory E. Lichtwardt

  	
   

  	
  /s/ Spencer Roeck

  	
   

  
	
  By: Gregory E. Lichtwardt

  	
  By: Spencer Roeck

  
	
  Its: Executive Vice President, Treasurer and

  	
   

  
	
  Chief Financial Officer

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [Address]

  
				



 


 


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