Exhibit 10.1


 


INDEMNITY AGREEMENT


 


This
Indemnity Agreement (“Agreement”) is made as of ____________ , 20[__] by
and between Conceptus, Inc., a Delaware corporation (the “Company”), and
__________  _______ (“Indemnitee”).


 


RECITALS


 


WHEREAS,
highly competent persons have become more reluctant to serve publicly-held
corporations as directors or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation;


 


WHEREAS,
the Board of Directors of the Company (the “Board”) has determined that,
in order to attract and retain qualified individuals, the Company will attempt
to maintain on an ongoing basis, at its sole expense, liability insurance to
protect persons serving the Company and its subsidiaries from certain
liabilities.  Although the furnishing of
such insurance has been a customary and widespread practice among U.S.-based
corporations and other business enterprises, the Company believes that, given
current market conditions and trends, such insurance may be available to it in
the future only at higher premiums and with more exclusions.  At the same time, directors, officers and
other persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time-consuming litigation relating to,
among other things, matters that traditionally would have been brought only
against the Company or business enterprise itself.  The Amended and Restated By-laws (the “By-laws”)
of the Company require indemnification of the officers and directors of the
Company.  Indemnitee may also be entitled
to indemnification pursuant to applicable provisions of the Delaware General
Corporation Law (the “DGCL”).  The
By-laws and the DGCL expressly provide that the indemnification provisions set
forth therein are not exclusive, and thereby contemplate that contracts may be
entered into between the Company and members of the board of directors,
officers and other persons with respect to indemnification;


 


WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons;


 


WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons that there
will be increased certainty of such protection in the future;


 


WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such
persons to the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that they will
not be so indemnified;


 


WHEREAS,
this Agreement is a supplement to and in furtherance of the By-laws of the
Company and any resolutions adopted pursuant thereto, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder;


 


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WHEREAS,
Indemnitee does not regard the protection available under the Company’s By-laws
and insurance as adequate in the present circumstances, and may not be willing
to serve as an officer or director without adequate protection, and the Company
desires Indemnitee to serve in such capacity. 
Indemnitee is willing to serve, continue to serve and to take on additional
service for or on behalf of the Company on the condition that he be so
indemnified.


 


NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:


 


1.                                  Services to the Company. 
Indemnitee will serve or continue to serve as an officer, director or
key employee of the Company for so long as Indemnitee is duly elected or
appointed or until Indemnitee tenders his resignation.


 


2.                                  Definitions.  As used in this Agreement:


 


(a)                             References to “agent” shall mean any
person who is or was a director, officer, or employee of the Company or a
subsidiary of the Company or other person authorized by the Company to act for
the Company, to include such person serving in such capacity as a director,
officer, employee, fiduciary or other official of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise at the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company.


 


(b)                            The terms “Beneficial Owner” and “Beneficial
Ownership” shall have the meanings set forth in Rule 13d-3 promulgated
under the Exchange Act (as defined below) as in effect on the date hereof.


 


(c)                             A “Change in Control” shall be deemed
to occur upon the earliest to occur after the date of this Agreement of any of
the following events:


 


(i)                                   Acquisition of Stock by Third Party. 
Any  Person (as defined below) is
or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing twenty percent (20%) or more of the combined voting power
of the Company’s then outstanding securities entitled to vote generally in the
election of directors, unless (1) the change in the relative Beneficial Ownership
of the Company’s securities by any Person results solely from a reduction in
the aggregate number of outstanding shares of securities entitled to vote
generally in the election of directors, or (2) such acquisition was approved in
advance by the Continuing Directors (as defined below) and such acquisition
would not constitute a Change in Control under part (iii) of this definition;


 


(ii)                                Change in Board of Directors. 
Individuals who, as of the date hereof, 
constitute the Board, and any new director whose election by the Board
or nomination for election by the Company’s stockholders was approved by a vote
of at least two-thirds of the directors then still in office who were directors
on the date hereof or whose election for nomination for election was previously
so approved (collectively, the “Continuing Directors”), cease for any
reason to constitute at least a majority of the members of the Board;


 


(iii)                             Corporate Transactions.  The
effective date of a reorganization, merger or consolidation of the Company (a “Business
Combination”), in each case, unless, 


 


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following such Business Combination:  (1) all or substantially all of the
individuals and entities who were the Beneficial Owners of securities entitled
to vote generally in the election of directors immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 51% of
the combined voting power of the then outstanding securities of the Company
entitled to vote generally in the election of directors resulting from such
Business Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one or more Subsidiaries) in
substantially the same proportions as their ownership, immediately prior to
such Business Combination, of the securities entitled to vote generally in the
election of directors; (2) no Person (excluding any corporation resulting from
such Business Combination) is the Beneficial Owner, directly or indirectly, of
twenty percent (20%) or more of the combined voting power of the then
outstanding securities entitled to vote generally in the election of directors
of such corporation except to the extent that such ownership existed prior to
the Business Combination; and (3) at least a majority of the Board of Directors
of the corporation resulting from such Business Combination were Continuing
Directors at the time of the execution of the initial agreement, or of the
action of the Board of Directors, providing for such Business Combination;


 


(iv)                            Liquidation.  The approval by the
stockholders of the Company of a complete liquidation of the Company or an
agreement or series of agreements for the sale or disposition by the Company of
all or substantially all of the Company’s assets, other than factoring the
Company’s current receivables or escrows due (or, if such approval is not
required, the decision by the Board to proceed with such a liquidation, sale,
or disposition in one transaction or a series of related transactions); or


 


(v)                               Other Events. 
There occurs any other event of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a
response to any similar item on any similar schedule or form) promulgated under
the Exchange Act (as defined below), whether or not the Company is then subject
to such reporting requirement.


 


(d)                            “Corporate Status” describes the
status of a person who is or was a director, officer, trustee, general partner,
managing member, fiduciary, employee or agent of the Company or of any other
Enterprise (as defined below) which such person is or was serving at the
request of the Company.


 


(e)                             “Delaware Court” shall mean the Court
of Chancery of the State of Delaware.


 


(f)                               “Disinterested Director” shall mean a
director of the Company who is not and was not a party to the Proceeding (as
defined below) in respect of which indemnification is sought by Indemnitee.


 


(g)                            “Enterprise” shall mean the Company
and any other corporation, constituent 
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger to which the Company (or any of its wholly owned
subsidiaries) is a party, limited liability company, partnership, joint
venture, trust, employee benefit plan or other enterprise of 


 


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which Indemnitee is or was
serving at the request of the Company as a director, officer, trustee, general
partner, managing member, fiduciary, employee or agent.


 


(h)                               “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.


 


(i)                                   “Expenses” shall include attorneys’
fees and costs, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding (as defined below).  Expenses also shall include Expenses incurred
in connection with any appeal resulting from any Proceeding (as defined below),
including without limitation the premium, security for, and other costs
relating to any cost bond, supersedeas bond, or other appeal bond or its
equivalent.  Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.


 


(j)                                   References to “fines” shall include
any excise tax assessed on Indemnitee with respect to any employee benefit
plan; references to “serving at the request of the Company” shall include any
service as a director, officer, employee, agent or fiduciary of the Company
which imposes duties on, or involves services by, such director, officer,
employee, agent or fiduciary with respect to an employee benefit plan, its
participants or beneficiaries; and if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan, Indemnitee shall be
deemed to have acted in a manner “not opposed to the best interests of the
Company” as referred to in this Agreement.


 


(k)                                “Independent Counsel” shall mean a law
firm or a member of a law firm that is experienced in matters of corporation
law and neither presently is, nor in the past five years has been, retained to
represent (i) the Company or Indemnitee in any matter material to either such
party (other than with respect to matters concerning the Indemnitee under this
Agreement, or of other indemnitees under similar indemnification agreements);
or (ii) any other party to the Proceeding (as defined below) giving rise to a
claim for indemnification hereunder. 
Notwithstanding the foregoing, the term “Independent Counsel” shall not
include any person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s rights under this
Agreement.


 


(l)                                   The term “Person” shall have the
meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act as in
effect on the date hereof; provided, however, that “Person” shall
exclude:  (i) the Company; (ii) any
Subsidiaries (as defined below) of the Company; (iii) any employment benefit
plan of the Company or of a Subsidiary (as defined below) of the Company or of
any corporation owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the
Company; and (iv) any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or of a Subsidiary (as defined below) of
the Company or of a corporation owned 


 


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directly or indirectly by
the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.


 


(m)                             A “Potential Change in Control” shall
be deemed to have occurred if (i) the Company enters into an agreement or
arrangement, the consummation of which would result in the occurrence of a
Change in Control; (ii) any Person or the Company publicly announces an
intention to take or consider taking actions which if consummated would
constitute a Change in Control; (iii) any Person who becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing 5% or
more of the combined voting power of the Company’s then outstanding securities
entitled to vote generally in the election of directors increases his
Beneficial Ownership of such securities by 5% or more over the percentage so
owned by such Person on the date hereof; or (iv) the Board adopts a resolution
to the effect that, for purposes of this Agreement, a Potential Change in
Control has occurred.


 


(n)                               The term “Proceeding” shall include
any threatened, pending or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened or completed proceeding, whether brought in the
right of the Company or otherwise and whether of a civil (including intentional
or unintentional tort claims), criminal, administrative or investigative
nature, in which Indemnitee was, is or will be involved as a party or otherwise
by reason of the fact that Indemnitee is or was a director or officer of the
Company, by reason of any action (or failure to act) taken by him or of any
action (or failure to act) on his part while acting as a director or officer of
the Company, or by reason of the fact that he is or was serving at the request
of the Company as a director, officer, trustee, general partner, managing
member, fiduciary, employee or agent of any other Enterprise, in each case
whether or not serving in such capacity at the time any liability or expense is
incurred for which indemnification, reimbursement, or advancement of expenses
can be provided under this Agreement.


 


(o)                               The term “Subsidiary,” with respect to
any Person, shall mean any corporation or other entity of which a majority of
the voting power of the voting equity securities or equity interest is owned,
directly or indirectly, by that Person.


 


3.                                  Indemnity in Third-Party Proceedings.  The
Company shall indemnify and hold harmless Indemnitee in accordance with the
provisions of this Section 3 if Indemnitee was, is, or is threatened to be
made, a party to or a participant (as a witness or otherwise) in any Proceeding,
other than a Proceeding by or in the right of the Company to procure a judgment
in its favor.  Pursuant to this Section 3,
Indemnitee shall be indemnified against all Expenses, judgments, liabilities,
fines, penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such Expenses, judgments, fines, penalties and amounts paid in settlement)
actually and reasonably incurred by Indemnitee or on his behalf in connection
with such Proceeding or any claim, issue or matter therein, if Indemnitee acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company and, in the case of a criminal Proceeding,
had no reasonable cause to believe that his conduct was unlawful.


 


4.                                  Indemnity in Proceedings by or in the Right
of the Company.  The Company shall indemnify and hold harmless
Indemnitee in accordance with the provisions of this Section 4 if 


 


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Indemnitee was, is, or is
threatened to be made, a party to or a participant (as a witness or otherwise)
in any Proceeding by or in the right of the Company to procure a judgment in
its favor.  Pursuant to this Section 4,
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if Indemnitee acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company.  No indemnification for
Expenses shall be made under this Section 4 in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a court to be
liable to the Company, unless and only to the extent that any court in which
the Proceeding was brought or the Delaware Court shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification.


 


5.                                  Indemnification for Expenses of a Party Who
is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement, to the extent that
Indemnitee is a party to (or a participant in) and is successful, on the merits
or otherwise, in any Proceeding or in defense of any claim, issue or matter
therein, in whole or in part, the Company shall indemnify and hold harmless
Indemnitee against all Expenses actually and reasonably incurred by him in connection
therewith.  If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such Proceeding,
the Company shall indemnify and hold harmless Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf in connection with
each successfully resolved claim, issue or matter.  If the Indemnitee is not wholly successful in
such Proceeding, the Company also shall indemnify and hold harmless Indemnitee
against all Expenses reasonably incurred in connection with a claim, issue or
matter related to any claim, issue, or matter on which the Indemnitee was
successful.  For purposes of this Section
and without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.


 


6.                                  Indemnification For Expenses of a Witness. 
Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of his Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, he shall be indemnified and held
harmless against all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith.


 


7.                                  Additional Indemnification.


 


(a)                                  Notwithstanding any limitation in Sections 3,
4, or 5, the Company shall indemnify and hold harmless Indemnitee if Indemnitee
is a party to or threatened to be made a party to any Proceeding (including a
Proceeding by or in the right of the Company to procure a judgment in its
favor) against all Expenses, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or payable
in connection with or in respect of such Expenses, judgments, fines, penalties
and amounts paid in settlement) actually and reasonably incurred by Indemnitee
in connection with the Proceeding.  No
indemnity shall be made under this Section 7(a) on account of Indemnitee’s
conduct which constitutes a breach of Indemnitee’s duty of loyalty to the
Company or its stockholders or is an 


 


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act or omission not in good faith or which involves
intentional misconduct or a knowing violation of the law.


 


(b)                               Notwithstanding any limitation in Sections 3,
4, 5 or 7(a), the Company shall indemnify and hold harmless Indemnitee if
Indemnitee is a party to or threatened to be made a party to any Proceeding
(including a Proceeding by or in the right of the Company to procure a judgment
in its favor) against all Expenses, judgments, fines, penalties and amounts
paid in settlement (including all interest, assessments and other charges paid
or payable in connection with or in respect of such Expenses, judgments, fines,
penalties and amounts paid in settlement) actually and reasonably incurred by
Indemnitee in connection with the Proceeding.


 


8.                                  Contribution in the Event of Joint Liability.


 


(a)                                To the fullest extent permissible under
applicable law, if the indemnification and hold harmless rights provided for in
this Agreement are unavailable to Indemnitee in whole or in part for any reason
whatsoever, the Company, in lieu of indemnifying and holding harmless
Indemnitee, shall pay, in the first instance, the entire amount incurred by
Indemnitee, whether for judgments, liabilities, fines, penalties, amounts paid
or to be paid in settlement and/or for Expenses, in connection with any
Proceeding without requiring Indemnitee to contribute to such payment, and the
Company hereby waives and relinquishes any right of contribution it may have at
any time against Indemnitee.


 


(b)                               The Company shall not enter into any
settlement of any Proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such Proceeding) unless such settlement provides for
a full and final release of all claims asserted against Indemnitee.


 


(c)                                The Company hereby agrees to fully indemnify
and hold harmless Indemnitee from any claims for contribution which may be
brought by officers, directors or employees of the Company other than
Indemnitee who may be jointly liable with Indemnitee.


 


9.                                  Exclusions.  Notwithstanding any provision
in this Agreement, the Company shall not be obligated under this Agreement to
make any indemnity in connection with any claim made against Indemnitee:


 


(a)                                for which payment has actually been received
by or on behalf of Indemnitee under any insurance policy or other indemnity
provision, except with respect to any excess beyond the amount actually
received under any insurance policy, contract, agreement, other indemnity
provision or otherwise;


 


(b)                               for an accounting of profits made from the
purchase and sale (or sale and purchase) by Indemnitee of securities of the
Company within the meaning of Section 16(b) of the Exchange Act or similar
provisions of state statutory law or common law; or


 


(c)                                  except as otherwise provided in Sections
14(e)-(f) hereof, prior to a Change in Control, in connection with any
Proceeding (or any part of any Proceeding) initiated by Indemnitee, including
any Proceeding (or any part of any Proceeding) initiated by Indemnitee against
the Company or its directors, officers, employees or other indemnitees, unless
(i) the 


 


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Board authorized the Proceeding (or any part of any
Proceeding) prior to its initiation; or (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in the
Company under applicable law.


 


10.                            Advances of Expenses; Defense of Claim.


 


(a)                                  Notwithstanding any provision of this
Agreement to the contrary, and to the fullest extent permitted by applicable
law, the Company shall advance the Expenses incurred by Indemnitee (or
reasonably expected by Indemnitee to be incurred by Indemnitee within three
months) in connection with any Proceeding within ten (10) days after the
receipt by the Company of a statement or statements requesting such advances
from time to time, whether prior to or after final disposition of any
Proceeding.  Advances shall be unsecured
and interest free.  Advances shall be
made without regard to Indemnitee’s ability to repay the Expenses and without
regard to Indemnitee’s ultimate entitlement to indemnification under the other
provisions of this Agreement.  Advances
shall include any and all reasonable Expenses incurred pursuing a Proceeding to
enforce this right of advancement, including Expenses incurred preparing and
forwarding statements to the Company to support the advances claimed.  The Indemnitee shall qualify for advances, to
the fullest extent permitted by applicable law, solely upon the execution and
delivery to the Company of an undertaking providing that the Indemnitee
undertakes to repay the advance to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified by the Company under the
provisions of this Agreement, the Bylaws of the Company, applicable law or
otherwise.  This Section 10(a) shall not
apply to any claim made by Indemnitee for which indemnity is excluded pursuant
to Section 9.


 


(b)                                 The Company will be entitled to participate
in the Proceeding at its own expense.


 


(c)                                  The Company shall not settle any action,
claim or Proceeding (in whole or in part) which would impose any Expense,
judgment, fine, penalty or limitation on the Indemnitee without the
Indemnitee’s prior written consent.


 


11.                            Procedure for Notification and Application
for Indemnification.


 


(a)                                  Indemnitee agrees to notify promptly the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder.  The failure of
Indemnitee to so notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this Agreement, or
otherwise.


 


(b)                                 Indemnitee may deliver to the Company a
written application to indemnify and hold harmless Indemnitee in accordance
with this Agreement.  Such application(s)
may be delivered from time to time and at such time(s) as Indemnitee deems
appropriate in his or her sole discretion. 
Following such a written application for indemnification by Indemnitee,
the Indemnitee’s entitlement to indemnification shall be determined according
to Section 12(a) of this Agreement.


 


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12.                            Procedure Upon Application for
Indemnification.


 


(a)                                  A determination, if required by applicable
law, with respect to Indemnitee’s entitlement to indemnification shall be made
in the specific case by one of the following methods, which shall be at the election
of Indemnitee:  (i) by a majority
vote of the Disinterested Directors, even though less than a quorum of the
Board; or (ii) by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to Indemnitee. 
The Company promptly will advise Indemnitee in writing with respect to
any determination that Indemnitee is or is not entitled to indemnification,
including a description of any reason or basis for which indemnification has
been denied.  If it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within ten (10) days after such determination.  Indemnitee shall reasonably cooperate with
the person, persons or entity making such determination with respect to
Indemnitee’s entitlement to indemnification, including providing to such
person, persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination.  Any costs or Expenses
(including attorneys’ fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall
be borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies and agrees
to hold Indemnitee harmless therefrom.


 


(b)                                 In the event the determination of entitlement
to indemnification is to be made by Independent Counsel pursuant to
Section 12(a) hereof, the Independent Counsel shall be selected as
provided in this Section 12(b).  The
Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall
request that such selection be made by the Board), and Indemnitee shall give
written notice to the Company advising it of the identity of the Independent
Counsel so selected and certifying that the Independent Counsel so selected
meets the requirements of “Independent Counsel” as defined in Section 2 of
this Agreement.  If the Independent
Counsel is selected by the Board, the Company shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel so selected
and certifying that the Independent Counsel so selected meets the requirements
of “Independent Counsel” as defined in Section 2 of this Agreement.  In either event, Indemnitee or the Company,
as the case may be, may, within ten (10) days after such written notice of
selection shall have been received, deliver to the Company or to Indemnitee, as
the case may be, a written objection to such selection; provided, however,
that such objection may be asserted only on the ground that the Independent
Counsel so selected does not meet the requirements of “Independent Counsel” as
defined in Section 2 of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion.  Absent a proper and timely objection, the
person so selected shall act as Independent Counsel.  If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court of competent
jurisdiction has determined that such objection is without merit.  If, within twenty (20) days after submission
by Indemnitee of a written request for indemnification pursuant to
Section 11(a) hereof, no Independent Counsel shall have been selected
and not objected to, either the Company or Indemnitee may petition the Delaware
Court for resolution of any objection which shall have been made by the Company
or Indemnitee to the other’s selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the Delaware Court,
and the person with respect to whom all objections are so resolved or the
person so appointed shall act as Independent Counsel under
Section 12(a) hereof.  Upon the
due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) 


 


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of this Agreement,
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).


 


(c)                                  The Company agrees to pay the reasonable fees
and expenses of Independent Counsel and to fully indemnify and hold harmless
such Independent Counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.


 


13.                            Presumptions and Effect of Certain
Proceedings.


 


(a)                                  In making a determination with respect to
entitlement to indemnification hereunder, the person, persons or entity making
such determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 11(b) of this Agreement, and the Company
shall have the burden of proof to overcome that presumption in connection with
the making by any person, persons or entity of any determination contrary to
that presumption.  Neither the failure of
the Company (including by its directors or Independent Counsel) to have made a
determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (including by its directors or Independent
Counsel) that Indemnitee has not met such applicable standard of conduct, shall
be a defense to the action or create a presumption that Indemnitee has not met
the applicable standard of conduct.


 


(b)                                 If the person, persons or entity empowered or
selected under Section 12 of this Agreement to determine whether Indemnitee
is entitled to indemnification shall not have made a determination within
thirty (30) days after receipt by the Company of the request therefor, the
requisite determination of entitlement to indemnification shall be deemed to
have been made and Indemnitee shall be entitled to such indemnification, absent
(i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification, or (ii) a
final judicial determination that any or all such indemnification is expressly
prohibited under applicable law; provided, however, that such
30-day period may be extended for a reasonable time, not to exceed an
additional fifteen (15) days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of documentation
and/or information relating thereto.


 


(c)                                  The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or conviction,
or upon a plea of nolo contendere or its equivalent, shall
not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.


 


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(d)                                 For purposes of any determination of good
faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s
action is based on the records or books of account of the Enterprise, including
financial statements, or on information supplied to Indemnitee by the officers
of the Enterprise in the course of their duties, or on the advice of legal
counsel for the Enterprise or on information or records given or reports made
to the Enterprise by an independent certified public accountant or by an
appraiser or other expert selected by the Enterprise.  The provisions of this Section 13(d) shall
not be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed or found to have met the applicable standard
of conduct set forth in this Agreement.


 


(e)                                  The knowledge and/or actions, or failure to
act, of any other director, officer, trustee, partner, managing member,
fiduciary, agent or employee of the Enterprise shall not be imputed to
Indemnitee for purposes of determining the right to indemnification under this
Agreement.


 


14.                            Remedies of Indemnitee.


 


(a)                                  In the event that (i) a determination is
made pursuant to Section 12 of this Agreement that Indemnitee is not
entitled to indemnification under this Agreement, (ii) advancement of
Expenses, to the fullest extent permitted by applicable law, is not timely made
pursuant to Section 10 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to
Section 12(a) of this Agreement within thirty (30) days after receipt
by the Company of the request for indemnification, (iv) payment of indemnification
is not made pursuant to Section 5, 6, 7 or the last sentence of
Section 12(a) of this Agreement within ten (10) days after
receipt by the Company of a written request therefor, (v) a contribution
payment is not made in a timely manner pursuant to Section 8 of this
Agreement, or (vi) payment of indemnification pursuant to Section 3
or 4 of this Agreement is not made within ten (10) days after a
determination has been made that Indemnitee is entitled to indemnification,
Indemnitee shall be entitled to an adjudication by the Delaware Court to such
indemnification, contribution or advancement of Expenses.  Alternatively, Indemnitee, at his option, may
seek an award in arbitration to be conducted by a single arbitrator pursuant to
the Commercial Arbitration Rules of the American Arbitration
Association.  Except as set forth herein,
the provisions of Delaware law (without regard to its conflict of laws rules)
shall apply to any such arbitration.  The
Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration.


 


(b)                                 In the event that a determination shall have
been made pursuant to Section 12(a) of this Agreement that Indemnitee
is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 14 shall be conducted in all respects
as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse
determination.  In any judicial
proceeding or arbitration commenced pursuant to this Section 14,
Indemnitee shall be presumed to be entitled to indemnification under this
Agreement and the Company shall have the burden of proving Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case may be, and
the Company may not refer to or introduce into evidence any determination
pursuant to Section 12(a) of this Agreement adverse to Indemnitee for
any purpose.  If Indemnitee commences a
judicial proceeding or arbitration pursuant to this Section 14, Indemnitee
shall not be required to reimburse the Company for any advances pursuant to
Section 10 until a final determination is made with 


 


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respect to Indemnitee’s entitlement to
indemnification (as to which all rights of appeal have been exhausted or
lapsed).


 


(c)                                  If a determination shall have been made
pursuant to Section 12(a) of this Agreement that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination
in any judicial proceeding or arbitration commenced pursuant to this
Section 14, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification;
or (ii) a prohibition of such indemnification under applicable law.


 


(d)                                 The Company shall be precluded from asserting
in any judicial proceeding or arbitration commenced pursuant to this
Section 14 that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this
Agreement.


 


(e)                                  The Company shall indemnify and hold harmless
Indemnitee to the fullest extent permitted by law against all Expenses and, if
requested by Indemnitee, shall (within ten (10) days after the Company’s
receipt of such written request) advance to Indemnitee, to the fullest extent
permitted by applicable law, such Expenses which are incurred by Indemnitee in
connection with any judicial proceeding or arbitration brought by Indemnitee
(i) to enforce his rights under, or to recover damages for breach of, this
Agreement or any other indemnification, advancement or contribution agreement or
provision of the Company’s Bylaws now or hereafter in effect; or (ii) for
recovery or advances under any insurance policy maintained by any person for
the benefit of Indemnitee, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advance, contribution or
insurance recovery, as the case may be.


 


(f)                                    Interest shall be paid by the Company to
Indemnitee at the legal rate under Delaware law for amounts which the Company
indemnifies or is obliged to indemnify for the period commencing with the date
on which Indemnitee requests indemnification, contribution,  reimbursement or advancement of any Expenses
and ending with the date on which such payment is made to Indemnitee by the Company.


 


15.                            Establishment
of Trust.  In the event of a
Potential Change in Control, the Company shall, upon written request by
Indemnitee, create a “Trust” for the benefit of Indemnitee and from time to
time upon written request of Indemnitee shall fund such Trust in an amount
sufficient to satisfy any and all Expenses reasonably anticipated at the time
of each such request to be incurred in connection with investigating, preparing
for, participating in or defending any Proceedings, and any and all judgments,
fines, penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such judgments, fines penalties and amounts paid in settlement) in
connection with any and all Proceedings from time to time actually paid or
claimed, reasonably anticipated or proposed to be paid.  The trustee of the Trust (the “Trustee”)
shall be a bank or trust company or other individual or entity chosen by the
Indemnitee and reasonably acceptable to the Company.  Nothing in this Section 15 shall relieve
the Company of any of its obligations under this Agreement.  The amount or amounts to be deposited in the
Trust pursuant to the foregoing funding obligation shall be determined by
mutual agreement of the Indemnitee and the Company or, if the Company and the
Indemnitee are unable to reach such an agreement, by 


 


12













 


Independent Counsel selected in accordance with
Section 12(b) of this Agreement. The terms of the Trust shall provide
that, except upon the consent of both the Indemnitee and the Company, upon a
Change in Control:  (a) the Trust
shall not be revoked, or the principal thereof invaded, without the written
consent of the Indemnitee; (b) the Trustee shall advance, to the fullest
extent permitted by applicable law, within two (2) business days of a
request by the Indemnitee and upon the execution and delivery to the Company of
an undertaking providing that the Indemnitee undertakes to repay the advance to
the extent that it is ultimately determined that Indemnitee is not entitled to
be indemnified by the Company, any and all Expenses to the Indemnitee;
(c) the Trust shall continue to be funded by the Company in accordance
with the funding obligations set forth above; (d) the Trustee shall
promptly pay to the Indemnitee all amounts for which the Indemnitee shall be
entitled to indemnification pursuant to this Agreement or otherwise; and
(e) all unexpended funds in such Trust shall revert to the Company upon
mutual agreement by the Indemnitee and the Company or, if the Indemnitee and
the Company are unable to reach such an agreement, by Independent Counsel
selected in accordance with Section 12(b) of this Agreement, that the
Indemnitee has been fully indemnified under the terms of this Agreement.  The Trust shall be governed by Delaware law
(without regard to its conflicts of laws rules) and the Trustee shall consent
to the exclusive jurisdiction of the Delaware Court in accordance with
Section 23 of this Agreement.


 


16.                            Security.  Notwithstanding anything
herein to the contrary, to the extent requested by the Indemnitee and approved
by the Board, the Company may at any time and from time to time provide
security to the Indemnitee for the Company’s obligations hereunder through an
irrevocable bank line of credit, funded trust or other collateral.  Any such security, once provided to the
Indemnitee, may not be revoked or released without the prior written consent of
the Indemnitee.


 


17.                            Non-Exclusivity; Survival of Rights;
Insurance; Subrogation.


 


(a)                                  The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Company’s Bylaws, any agreement, a vote of
stockholders or a resolution of directors, or otherwise.  No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Corporate Status prior to such amendment, alteration or
repeal.  To the extent that a change in
applicable law, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded currently
under the Company’s Bylaws or this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change.  No right or
remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.  The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or
remedy.


 


(b)                                 The DGCL and the Company’s Bylaws permit the
Company to purchase and maintain insurance or furnish similar protection or
make other arrangements including, but not limited to, providing a trust fund,
letter of credit, or surety bond (“Indemnification 


 


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Arrangements”) on behalf of Indemnitee against any
liability asserted against him or incurred by or on behalf of him or in such
capacity as a director, officer, employee or agent of the Company, or arising
out of his status as such, whether or not the Company would have the power to
indemnify him against such liability under the provisions of this Agreement or
under the DGCL, as it may then be in effect. 
The purchase, establishment, and maintenance of any such Indemnification
Arrangement shall not in any way limit or affect the rights and obligations of
the Company or of the Indemnitee under this Agreement except as expressly
provided herein, and the execution and delivery of this Agreement by the
Company and the Indemnitee shall not in any way limit or affect the rights and
obligations of the Company or the other party or parties thereto under any such
Indemnification Arrangement.


 


(c)                                  To the extent that the Company maintains an
insurance policy or policies providing liability insurance for directors,
officers, trustees, partners, managing members, fiduciaries, employees, or agents
of the Company or of any other Enterprise which such person serves at the
request of the Company, Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, trustee, partner, managing member,
fiduciary, employee or agent under such policy or policies.  If, at the time the Company receives notice
from any source of a Proceeding as to which Indemnitee is a party or a
participant (as a witness or otherwise), the Company has director and officer
liability insurance in effect, the Company shall give prompt notice of such
Proceeding to the insurers in accordance with the procedures set forth in the
respective policies.  The Company shall
thereafter take all necessary or desirable action to cause such insurers to
pay, on behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policies.


 


(d)                                 In the event of any payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee from any insurance policy purchased by
the Company, who shall execute all papers required and take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights. In no
event, however, shall the Company or any other person have any right of
recovery through subrogation or otherwise against Indemnitee or any insurance
policy purchased or maintained by Indemnitee.


 


(e)                                  The Company’s obligation to indemnify or
advance Expenses hereunder to Indemnitee who is or was serving at the request
of the Company as a director, officer, trustee, partner, managing member, fiduciary,
employee or agent of any other Enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses
from such Enterprise.


 


18.                            Duration of Agreement.  All
agreements and obligations of the Company contained herein shall continue
during the period Indemnitee serves as a director or officer of the Company or
as a director, officer, trustee, partner, managing member, fiduciary, employee
or agent of any other corporation, partnership, joint venture, trust, employee
benefit plan or other Enterprise which Indemnitee serves at the request of the
Company and shall continue thereafter so long as Indemnitee shall be subject to
any possible Proceeding (including any rights of appeal thereto and any
Proceeding commenced by Indemnitee pursuant to Section 14 of this
Agreement) by reason of his Corporate Status, whether or not he is acting in
any such capacity at 


 


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the time any liability or expense is incurred for which
indemnification can be provided under this Agreement.


 


19.                            Severability.  If
any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever:  (a) the validity, legality and enforceability
of the remaining provisions of this Agreement (including, without limitation,
each portion of any Section, paragraph or sentence of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that is not
itself invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby and shall remain enforceable to the fullest extent permitted
by law; (b) such provision or provisions shall be deemed reformed to the
extent necessary to conform to applicable law and to give the maximum effect to
the intent of the parties hereto; and (c) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion
of any Section, paragraph or sentence of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.


 


20.                            Enforcement and Binding Effect.


 


(a)                                  The Company expressly confirms and agrees
that it has entered into this Agreement and assumed the obligations imposed on
it hereby in order to induce Indemnitee to serve as a director, officer or key
employee of the Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director, officer or key employee of the
Company.


 


(b)                                 Without limiting any of the rights of
Indemnitee under the Bylaws of the Company as they may be amended from time to
time, this Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral, written and implied, between the parties
hereto with respect to the subject matter hereof.


 


(c)                                  The indemnification and advancement of
expenses provided by or granted pursuant to this Agreement shall be binding
upon and be enforceable by the parties hereto and their respective successors
and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or
assets of the Company), shall continue as to an Indemnitee who has ceased to be
a director, officer, employee or agent of the Company or of any other
Enterprise at the Company’s request, and shall inure to the benefit of
Indemnitee and his or her spouse, assigns, heirs, devisees, executors and
administrators and other legal representatives.


 


(d)                                 The Company shall require and cause any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all or a substantial part, of the business
and/or assets of the Company, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place.


 


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(e)                               The Company and Indemnitee agree herein that
a monetary remedy for breach of this Agreement, at some later date, may be
inadequate, impracticable and difficult of proof, and further agree that such
breach may cause Indemnitee irreparable harm. 
Accordingly, the parties hereto agree that Indemnitee may enforce this
Agreement by seeking injunctive relief and/or specific performance hereof,
without any necessity of showing actual damage or irreparable harm and that by
seeking injunctive relief and/or specific performance Indemnitee shall not be
precluded from seeking or obtaining any other relief to which he may be
entitled.  The Company and Indemnitee
further agree that Indemnitee shall be entitled to such specific performance
and injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions, without the necessity of posting bonds
or other undertaking in connection therewith. 
The Company acknowledges that in the absence of a waiver, a bond or
undertaking may be required of Indemnitee by the Court, and the Company hereby
waives any such requirement of such a bond or undertaking.


 


21.                            Modification and Waiver.  No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by the parties hereto. 
No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions of this Agreement nor shall
any waiver constitute a continuing waiver.


 


22.                            Notices. 
All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
(i) if delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third (3rd) business
day after the date on which it is so mailed:


 


(a)                               If to Indemnitee, at the address indicated on
the signature page of this Agreement, or such other address as Indemnitee
shall provide in writing to the Company.


 


(b)                              If to the Company, to:


 


Conceptus, Inc.


331
East Evelyn Avenue


Mountain
View, California 94041


 


or
to any other address as may have been furnished to Indemnitee in writing by the
Company.


 


23.                            Applicable Law and Consent to Jurisdiction.  This
Agreement and the legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to its conflict of laws rules. 
Except with respect to any arbitration commenced by Indemnitee pursuant
to Section 14(a) of this Agreement, the Company and Indemnitee hereby
irrevocably and unconditionally (a) agree that any action or proceeding
arising out of or in connection with this Agreement shall be brought only in
the Delaware Court and not in any other state or federal court in the United
States of America or any court in any other country; (b) consent to submit
to the exclusive jurisdiction of the Delaware Court for purposes of any action
or proceeding arising out of or in connection with this Agreement;
(c) appoint irrevocably, to the extent such party is not a resident of the
State of Delaware, RL&F Service Corp., One Rodney Square, 10th Floor, 10th
and King Streets, 


 


16













 


Wilmington, Delaware 19801 as its agent in the State
of Delaware as such party’s agent for acceptance of legal process in connection
with any such action or proceeding against such party with the same legal force
and validity as if served upon such party personally within the State of
Delaware; (d) waive any objection to the laying of venue of any such
action or proceeding in the Delaware Court; and (e) waive, and agree not
to plead or to make, any claim that any such action or proceeding brought in
the Delaware Court has been brought in an improper or inconvenient forum, or is
subject (in whole or in part) to a jury trial.


 


24.                            Identical Counterparts.  This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. 
Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.


 


25.                            Miscellaneous.  Use
of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate.  The headings
of the paragraphs of this Agreement are inserted for convenience only and shall
not be deemed to constitute part of this Agreement or to affect the construction
thereof.


 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the
day and year first above written.


 




	
  CONCEPTUS,
  INC.

  	
   

  	
   

  	
  INDEMNITEE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Name:
  

  
	
  Title:

  	
   

  	
  Address:

  
					






 


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