Exhibit 10.1


 


SECOND AMENDMENT TO SHARE PURCHASE AND CALL
OPTION


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 Purchasers and Grantors)


 


 


and


 


 


Conceptus Inc.


 


(The Seller and Beneficiary)


 


 


October 31st, 2007


 

















 


SECOND AMENDMENT TO SHARE PURCHASE AND CALL
OPTION AGREEMENT


 


This second amendment (“Second
Amendment”) to the Share Purchase and
Call Option Agreement dated January 17, 2004 (as amended on February 27, 2007) is
entered into on October 31, 2007,


 


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 Street, Mountain View,
California, United States of America, represented by Mark Siezckarek in his
capacity of President and Chief Executive Officer, duly authorized for the
purpose hereof,


 


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


 


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 are acting jointly and severally and 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 Lyon, France, French
citizen, living at 3, rue Jacques Lemercier 78000 Versailles, 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, 1981, at Clermont Ferrand,
France, French citizen, living at 36 avenue de Villeneuve l’Etang, Maison
Principal-rez de jardin 78000 Versailles, 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.                                        Miss.
Fabienne Gairin, born on September 20, 1957, at Lorient, France, French
citizen, living atLe clos de la chaine, 9, rue Charjes d’Orléans 78570 Plaisir,
divorced,


 


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11.                                        Miss.
Isabelle Viroulet, born on July 7, 1973, at Saint Ouen, France, French citizen,
living at 3, Cité de l’Alma, 75007 Paris, single,


 


12.                                        Miss.
Aurélie Blanchard, born on July 4, 1982, at Agen, France, French citizen,
living at7, rue Auguste Renoir, 78390 Bois d’Arcy, single,


 


13.                                        Mr.
Didier Pinget, born on November 28, 1961, at Sainte Foy le 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
at12, rue des Troubadours, 66350 Toulouges, divorced,


 


15.                                           Mr.
Philippe Maréchal, born on April 24, 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 4
to 15 are acting jointly and severally and are hereinafter referred to as the “Managers Partners”),


 


The Managers and Managers Partners acting
jointly and severally and are hereinafter referred to collectively as the “Purchasers” or the “Grantors,” and


 


16.                                        Conceptus
SAS, a company organized under the laws of France, the registered office of
which is at 7/9 rue du Maréchal Foch, registered at the Versailles register
under the number 440 204 964, represented by Mr. Yves Guillemain d’Echon in his
capacity of Président, duly
authorized.


 


(hereinafter referred to as the “Company”),


 


The Seller/Beneficiary, the
Purchasers/Grantors, and the Company are hereinafter referred to individually
as a “Party” and collectively as
the “Parties.”


 


RECITALS:


 


(A)                                        The
Parties have entered into a Share Purchase and Call Option Agreement dated
January 17, 2004, as amended by an amendment dated February 27, 2007 (the “First Amendment”), pursuant to which the Purchasers acquired
100% of the shares in the Company from the Beneficiary and the Beneficiary sold
such shares to the Purchasers. The Share Purchase and Call Option Agreement
dated January 17, 2004, as amended by the First Amendment, is herein referred
to as the “Agreement”.


 


(B)                                        The
Agreement grants the Beneficiary an option to purchase the issued and
outstanding shares of the Company during specified periods for the purchase
price specified in the Agreement.


 


(C)                                        The
Parties desire to amend the Agreement in order to allow the Beneficiary to
exercise before January 1, 2008, the option to purchase the issued and
outstanding shares in the Company.


 


2

















 


NOW, THEREFORE, the
Parties agree as follows:


 


1.                                      MODIFICATIONS TO THE AGREEMENT


 


(a)                                  In
order to allow the Beneficiary to exercise the Call Option in accordance with
the Agreement prior to January 1, 2008, the second sentence of Section 2 of the
First Amendment is hereby deleted in its entirety.


 


(b)                                 The
Second Amendment shall be deemed to constitute a Notice of Interest as defined
in Section 7.1.1 of the Agreement, sent during Option Period 1.


 


(c)                                  The
Due Diligence Period shall begin as of the date hereof and shall have a
duration which shall not exceed ninety (90) days. In the first sentence of
Section 7.1.2 of the Agreement, the terms “thirty (30)” are hereby deleted and
replaced with the terms “ninety (90) (unless earlier terminated by the
Beneficiary)”.


 


(d)                                 From
the date a Confirmation of the Call Option is sent and until the Transfer of
the Option Shares Date, the Grantors shall: (i) cause the Company to operate
and carry on its activities in the ordinary course of business consistent with
past practice, in accordance with Section 7.5.8 of the Agreement, (ii) promptly
provide to the Beneficiary and its advisers with all information relating to
the operations of the Company, including access at all reasonable times to all
employees, books, records and files, and other relevant information and all
co-operation and assistance, as may be reasonably required by the Beneficiary,
and, (iii) without limiting the foregoing, undertake and cause the Company, not
to take or commit to take any action set forth in Schedule A .


 


(e)                                  The
Parties shall use their best efforts to cause the Transfer of the Option Shares
Date to take place on January 2, 2008. In the first sentence of Section 7.3 of
the Agreement, the terms “15 days” are hereby deleted and replaced with the
terms “three (3) Business Days”.


 


(f)                                    The
Option Purchase Price shall be 1.46 times the Company’s Sales Revenue for
Conceptus Products for the Fiscal Year 2007. In the chart entitled “On Option
Period 1” of Section 7.2.1 of the Agreement, the figures “1.62” and “2006” are
hereby deleted and respectively replaced with the figures “1.46.” and “2007”.


 


(g)                                 The
Second Amendment shall be effective upon the date hereof, whereupon the
Agreement shall be, and hereby is, amended as set forth herein.


 


(h)                                 The
provisions of the Agreement that are not modified by the Second Amendment
remain unchanged.


 


(i)                                     The
Second Amendment shall be exclusively governed and construed in accordance with
French law. All disputes arising out of or in connection with the Second
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


 


[The next page is the signature page.]


 


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Made on October 31st, 2007 in sixteen
(16) identical copies.


 


	
  /s/ Yves Guillemain D’Echon

  	
   

  	
  /s/ Mark Siezckarek

  
	
  Mr. Yves GUILLEMAIN D’ECHON 

  	
   

  	
  CONCEPTUS Inc.

  
	
   

  	
   

  	
  By: Mr. Mark SIEZCKAREK

  
	
  Pursuant to Article 1415 of the French
  Civil Code, the undersigned Mrs Catherine Guillemain d’Echo hereby expressly
  accepts all the undertakings made by Mr. Yves Guillemain d’Echon pursuant to
  this Agreement.

  	
   

  	
  Title: President and Chief Executive
  Officer

  
	
   

  	
   

  	
   

  
	
  /s/ Yves Guillemain D’Echon

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Mrs Catherine GUILLEMAIN D’ECHON

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Yves Guillemain D’Echon

  	
   

  	
  /s/ Yves Guillemain D’Echon

  
	
  Mr. Jean-Christophe BODIN

  	
   

  	
  CONCEPTUS SAS

  
	
   

  	
   

  	
  By: Mr. Yves GUILLEMAIN D’ECHON

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
  /s/ Yves Guillemain D’Echon

  	
   

  	
  /s/ Yves Guillemain D’Echon

  
	
  Mrs Catherine GUILLEMAIN D’ECHON

  	
   

  	
  Mr. Florent GUILLEMAIN D’ECHON

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Yves Guillemain D’Echon

  	
   

  	
  /s/ Yves Guillemain D’Echon

  
	
  Mr. Alban GUILLEMAIN D’ECHON

  	
   

  	
  Mr. Tristan GUILLEMAIN D’ECHON

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Yves Guillemain D’Echon

  	
   

  	
  /s/ Yves Guillemain D’Echon

  
	
  Mr. Jean GUILLEMAIN D’ECHON

  	
   

  	
  Mrs. Katia
  BODIN

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Yves Guillemain D’Echon

  	
   

  	
  /s/ Yves Guillemain D’Echon

  
	
  Miss.
  Fabienne GAIRIN

  	
   

  	
  Miss
  Isabelle VIROULET

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Yves Guillemain D’Echon

  	
   

  	
  /s/ Yves Guillemain D’Echon

  
	
  Miss Aurélie
  Blanchard

  	
   

  	
  Mr. Didier
  PINGET

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Yves Guillemain D’Echon

  	
   

  	
  /s/ Yves Guillemain D’Echon

  
	
  Mr. Eric
  TOURRAUD

  	
   

  	
  Mr. Philippe
  MARECHAL

  



 


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Schedule A


List of
prohibited actions


 


(i)            Decrease or redemption
of the share capital of the Company or issuance of any securities by the
Company;


 


(ii)           modification of the
by-laws of the Company;


 


(iii)          declaration or payment
of any dividend or interim dividend or any other payments to its shareholders,
other than as permitted under the Agreement;


 


(iv)          winding-up, merger,
split-up, contribution or sale of all or part of the business of the Company as
a whole or of any of its divisions (branche d’activité);


 


(v)           transfer, contribution,
disposal or acquisition of any material assets ;


 


(vi)          conclusion of any loan
(including to employee, corporate officers or shareholders), credit or monetary
facility ;


 


(vii)         conclusion of any new
material agreement (including any distribution agreement or any agreement with
the existing shareholders), or substantial modification or termination of any existing
material agreements (including any distribution agreement or any agreement with
the existing shareholders);


 


(viii)        launch of any new
activities or new products;


 


(ix)           any operations
substantially modifying the composition, or the rights it has, over any of its
assets, such as any transfers, assignments, pledges, leases, granting of
licenses or other rights to a Third Party;


 


(x)            dismissal or hiring of
any employee or corporate officer (mandataire social)
or modification, other than in the ordinary course of business, of their
remuneration or benefits;


 


(xi)           entering into any
written binding commitment to do any of the above.


 


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