Exhibit 10.2


 


DEPOMED, INC.


 


MANAGEMENT CONTINUITY AGREEMENT


 


This Management Continuity Agreement (the “Agreement”)
is dated as of [month]  [date],
[year], by and between [name] (“Employee”) and Depomed, Inc., a
California corporation (the “Company”). 
This Agreement is intended to provide Employee with certain benefits
described herein upon the occurrence of specific events.


 


RECITALS


 


A.            It is expected that another company
may from time to time consider the possibility of acquiring the Company or that
a change in control may otherwise occur, with or without the approval of the
Company’s Board of Directors. The Board of Directors recognizes that such
consideration can be a distraction to Employee and can cause Employee to
consider alternative employment opportunities. 
The Board of Directors has determined that it is in the best interests
of the Company and its shareholders to assure that the Company will have the
continued dedication and objectivity of the Employee, notwithstanding the
possibility, threat or occurrence of a Change in Control (as defined below) of
the Company.


 


B.            The
Company’s Board of Directors believes it is in the best interests of the
Company and its shareholders to retain Employee and provide incentives to
Employee to continue in the service of the Company.


 


C.            The Board of Directors further
believes that it is imperative to provide Employee with certain benefits upon
certain termination of Employee’s employment in connection with a Change in
Control, which benefits are intended to provide Employee with financial
security and provide sufficient income and encouragement to Employee to remain
with the Company, notwithstanding the possibility of a Change in Control.


 


D.            To accomplish the foregoing
objectives, the Board of Directors has directed the Company, upon execution of
this Agreement by Employee, to agree to the terms provided in this Agreement.


 


Now therefore, in consideration of the mutual
promises, covenants and agreements contained herein, and in consideration of
the continuing employment of Employee by the Company, the parties hereto agree
as follows:


 


1.             At-Will Employment.  The Company and Employee acknowledge that
Employee’s employment is and shall continue to be at-will, as defined under
applicable law, and that Employee’s employment with the Company may be
terminated by either party at any time for any or no reason.  If Employee’s employment terminates for any
reason, Employee shall not be entitled to any payments, benefits, damages,
award or compensation other than as provided in 


 

















 


this Agreement or otherwise
agreed to by the Company.  The terms of
this Agreement shall terminate upon the earliest of: (i) the date on which
Employee ceases to be employed as an corporate officer of the Company, other
than as a result of an Involuntary Termination, (ii) the date that all
obligations of the parties hereunder have been satisfied (iii) one (1) year
after a Change in Control or (iv) May 15, 2010 (or, if later in the
case of subclause (iv), the later to occur of (x) the termination of any
Pending Change in Control (as defined below) (the date determined pursuant to
this clause (iv) being the “End Date”) and (y) one year after
the completion of any Pending Change in Control).  A termination of the terms of this Agreement
pursuant to the preceding sentence shall be effective for all purposes, except
that such termination shall not affect the payment or provision of compensation
or benefits on account of a termination of employment occurring prior to the
termination of the terms of this Agreement. 
The rights and duties created by this Section 1 are contingent upon
the Employee’s release of claims against the Company (at the time of
termination in a form reasonably satisfactory to the Company) and may not be
modified in any way except by a written agreement executed by an officer of the
Company upon direction from the Board of Directors.


 


2.             Benefits  Upon a Change in Control; Termination of Employment.


 


(a)           Treatment
of Stock Options Upon a Change in Control.  In the event that Employee suffers an
Involuntary Termination in connection with or within twelve (12) months
following the effective date of a Change in Control, 100% of Employee’s unvested
Company option shares shall become immediately vested on such termination
date.  Each such option shall be
exercisable in accordance with the provisions of the option agreement and plan
pursuant to which such option was granted.


 


(b)           Severance.  In the event that Employee suffers an
Involuntary Termination at any time in connection with or within twelve (12)
months following the effective date of a Change in Control, Employee will be
entitled to receive severance benefits as follows:  (A) severance payments during the period
from the date of Employee’s termination until the date [insert “24 months” if the Employee is the Chief
Executive Officer] [insert “18 months” if the Employee is the Chief Operating
Officer] [insert “12 months” if the Employee is not the Chief Executive Officer
or Chief Operating Officer] months after the effective date of the
termination (the “Severance Period”) equal to the base salary which
Employee was receiving immediately prior to the Change in Control, which
payments shall be paid during the Severance Period in accordance with the
Company’s standard payroll practices, (B) a lump sum payment as soon as
practicable after the date of termination of employment [insert “equal to two times” if the Employee is the
Chief Executive Officer] [insert “equal to one and one-half times” if the
Employee is the Chief Operating Officer] [insert “equal to” if the Employee is
not the Chief Executive Officer or Chief Operating Officer] Employee’s
average annual bonus paid for the Company’s fiscal years (up to three)
immediately preceding the Company’s fiscal year in which the termination occurs
and (C) continuation of payment by the Company of its portion of the
health insurance benefits provided to Employee immediately prior to the Change
in Control pursuant to the terms of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”) or other applicable law
through the earlier of the end of the Severance Period or the date upon which
Employee is no longer eligible for such COBRA or other benefits under
applicable law.  In addition, Employee
will receive payment(s) for all salary, bonuses and unpaid vacation
accrued as of the date of Employee’s termination of employment.


 


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(c)           Termination
for Cause.  If Employee’s
employment is terminated for Cause at any time, then Employee shall not be
entitled to receive payment of any severance benefits or option
acceleration.  Employee will receive
payment(s) for all salary, bonuses and unpaid vacation accrued as of the
date of Employee’s termination of employment.


 


(d)           Voluntary
Resignation.  If Employee
voluntarily resigns from the Company under circumstances which do not
constitute an Involuntary Termination, then Employee shall not be entitled to
receive payment of any severance benefits or option acceleration.  Employee will receive payment(s) for all
salary, bonuses and unpaid vacation accrued as of the date of Employee’s
termination of employment.


 


3.             Definition of Terms.  The following terms referred to in this
Agreement shall have the following meanings:


 


(a)           Change
in Control; Pending Change in Control.  “Change in Control”
shall mean any event so determined by the Board of Directors pursuant to Section 10.4
of the Company’s 2004 Equity Incentive Plan. 
“Pending Change in Control” shall mean any Change in Control with
respect to which the Company enters into a definitive agreement prior to the
End Date which has not been completed or terminated as of the End Date.  Pending Change in Control shall include any Change
in Control with respect to which the Company enters into a binding agreement
within thirty days after the termination of any other Pending Change in
Control.


 


(b)           Cause.  “Cause” shall mean (i) gross
negligence or willful misconduct in the performance of Employee’s duties to the
Company where such gross negligence or willful misconduct has resulted or is
likely to result in substantial and material damage to the Company or its
subsidiaries (ii) repeated unexplained or unjustified absence from the
Company, (iii) a material and willful violation of any federal or state
law; (iv) commission of any act of fraud with respect to the Company or (v) conviction
of a felony or a crime involving moral turpitude causing material harm to the
standing and reputation of the Company, in each case as determined in good
faith by the Board of Directors.


 


(c)           Involuntary
Termination.  “Involuntary
Termination” shall include any termination by the Company other than for
Cause and Employee’s voluntary termination within sixty (60) days following the
occurrence of any of the following events without Employee’s written consent: (i) a
material reduction or change in job duties, responsibilities and requirements
inconsistent with Employee’s position with the Company and Employee’s prior
duties, responsibilities and requirements or a change in Employee’s reporting
relationship; (ii) a material reduction of Employee’s base compensation
(other than in connection with a general decrease in base salaries for most
officers of the successor corporation); or (iii) Employee’s refusal to
relocate to a facility or location more than thirty (30) miles from the Company’s
current location, provided that Employee will not resign due to such change,
reduction or relocation without first providing the Company with written notice
of the event or events constituting the grounds for his voluntary resignation
within thirty (30) days of the initial existence of such grounds and a
reasonable cure period of not less than thirty (30) days following the date of
such notice.


 


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4.             Limitation and Conditions on Payments.


 


In the event that the severance and other benefits provided for in this
Agreement to the Employee (i) constitute “parachute payments” within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the “Code”) and (ii) but for this Section, would be subject to the
excise tax imposed by Section 4999 of the Code, then the Employee’s
severance benefits under Sections 2(a) and 2(b) shall be payable
either:


 


(a)           in full, or


 


(b)           as to such lesser amount which would
result in no portion of such severance benefits being subject to excise tax
under Section 4999 of the Code, whichever of the foregoing amounts, taking
into account the applicable federal, state and local income taxes and the
excise tax imposed by Section 4999, results in the receipt by the Employee
on an after-tax basis, of the greatest amount of severance benefits under Section 2(a) and
2(b), notwithstanding that all or some portion of such severance benefits may
be taxable under Section 4999 of the Code. 
Unless the Company and the Employee otherwise agree in writing, any
determination required under this Section 4 shall be made in writing by
independent public accountants selected by the Company (the “Accountants”),
whose determination shall be conclusive and binding upon the Employee and the
Company for all purposes.  For purposes
of making the calculations required by this Section 4, the Accountants may
make reasonable assumptions and approximations concerning applicable taxes and
may rely on reasonable, good faith interpretations concerning the application
of Section 280G and 4999 of the Code. 
The Company and the Employee shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this Section. 
The Company shall bear all costs the Accountants may reasonably incur in
connection with any calculations contemplated by this Section 4.


 


5.             Section 409A.  Notwithstanding any provision of this Agreement to the contrary,
if, at the time of Employee’s termination of employment with the Company,
Employee is a “specified employee” (as defined in Section 409A of the
Code) and the deferral of the commencement of any severance payments or
benefits otherwise payable pursuant to this Agreement as a result of such
termination of employment is necessary in order to prevent any accelerated income
recognition or additional tax under Section 409A of the Code, then the
Company will not commence any payment of any such severance payments or
benefits otherwise required hereunder (but without any reduction in such
payments or benefits ultimately paid or provided to Employee) that (a) will
not and may not under any circumstances, regardless of when such termination
occurs, be paid in full by March 15 of the year following Employee’s
termination of employment, and (b) are in excess of the lesser of (i) two
(2) times Employee’s then annual compensation or (ii) two (2) times
the limit on compensation then set forth in Section 401(a)(17) of the Code
and will not be paid by the end of the second calendar year following the year
in which the termination occurs, until the first payroll date that occurs
after the date that is six (6) months following Employee’s “separation of
service” with the Company (as defined under Code Section 409A).  If any payments are delayed due to such
requirements, such amounts will be paid in a lump sum to Employee on the
earliest of (x) the Employee’s death following the date of Employee’s
termination of employment with the Company or (y) the first payroll date
that occurs after the date that is six (6) months following Employee’s “separation
of 


 


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service” with the Company.  For these purposes, each severance payment or
benefit is designated as a separate payment or benefit and will not
collectively be treated as a single payment or benefit.  This paragraph is intended to comply with the
requirements of Section 409A of the Code so that none of the severance
payments and benefits to be provided hereunder will be subject to the
additional tax imposed under Section 409A of the Code and any ambiguities
herein will be interpreted to so comply. 
Employee and the Company agree to work together in good faith to
consider amendments to this Agreement and to take such reasonable actions which
are necessary, appropriate or desirable to avoid imposition of any additional
tax or income recognition prior to actual payment to Employee under Section 409A
of the Code.  Notwithstanding anything to
the contrary contained herein, to the extent that any amendment to this
Agreement with respect to the payment of any severance payments or benefits
would constitute under Code Section 409A a delay in a payment or a change
in the form of payment, then such amendment must be done in a manner that
complies with Code Section 409A(a)(4)(C).


 


6.             Conflicts. 
Employee represents that Employee’s performance of all the terms of
this Agreement will not breach any other agreement to which Employee is a
party.  Employee has not, and will not
during the term of this Agreement, enter into any oral or written agreement in
conflict with any of the provisions of this Agreement.  Employee further represents that Employee is
entering into or has entered into an employment relationship with the Company
of Employee’s own free will and that Employee has not been solicited as an
employee in any way by the Company.


 


7.             Successors.  Any successor to the Company (whether direct
or indirect and whether by purchase, lease, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company’s business and/or
assets shall assume the obligations under this Agreement and agree expressly to
perform the obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of a succession.  The terms of
this Agreement and all of Employee’s rights hereunder and thereunder shall
inure to the benefit of, and be enforceable by, Employee’s personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.


 


8.             Notice.  Notices and
all other communications contemplated by this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or when
mailed by U.S. registered or certified mail, return receipt requested and
postage prepaid.  Mailed notices to
Employee shall be addressed to Employee at the home address which Employee most
recently communicated to the Company in writing.  In the case of the Company, mailed notices
shall be addressed to its corporate headquarters, and all notices shall be
directed to the attention of its Secretary.


 


9.             Miscellaneous
Provisions.


 


(a)           No Duty to Mitigate.  Employee shall not be required to mitigate
the amount of any payment contemplated by this Agreement (whether by seeking
new employment or in any other manner), nor shall any such payment be reduced
by any earnings that Employee may receive from any other source.


 


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(b)           Waiver.  No provision of this Agreement shall be
modified, waived or discharged unless the modification, waiver or discharge is
agreed to in writing and signed by Employee and by an authorized officer of the
Company (other than Employee).   No
waiver by either party of any breach of, or of compliance with, any condition
or provision of this Agreement by the other party shall be considered a waiver
of any other condition or provision or of the same condition or provision at
another time.


 


(c)           Whole
Agreement.  No agreements,
representations or understandings (whether oral or written and whether express
or implied) which are not expressly set forth in this Agreement have been made
or entered into by either party with respect to the subject matter hereof.  This Agreement supersedes any agreement of
the same title and concerning similar subject matter dated prior to the date
hereof, and by execution of this Agreement both parties agree that any such
predecessor agreement shall be deemed null and void.


 


(d)           Choice
of Law.  The validity,
interpretation, construction and performance of this Agreement shall be
governed by the laws of the State of California without reference to conflict
of laws provisions.


 


(e)           Severability.  If any term or provision of this Agreement or
the application thereof to any circumstance shall, in any jurisdiction and to
any extent, be invalid or unenforceable, such term or provision shall be
ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
terms and provisions of this Agreement or the application of such terms and
provisions to circumstances other than those as to which it is held invalid or
unenforceable, and a suitable and equitable term or provision shall be
substituted therefor to carry out, insofar as may be valid and enforceable, the
intent and purpose of the invalid or unenforceable term or provision.


 


(f)            Arbitration.  Any dispute or controversy arising under or
in connection with this Agreement may be settled at the option of either party
by binding arbitration in the County of Santa Clara, California, in accordance
with the rules of the American Arbitration Association then in
effect.  Judgment may be entered on the
arbitrator’s  award in any court having
jurisdiction.  Punitive damages shall not
be awarded.


 


(g)           Legal
Fees and Expenses.  The
parties shall each bear their own expenses, legal fees and other fees incurred
in connection with this Agreement.


 


(h)           No
Assignment of Benefits. 
The rights of any person to payments or benefits under this Agreement
shall not be made subject to option or assignment, either by voluntary or
involuntary assignment or by operation of law, including (without limitation)
bankruptcy, garnishment, attachment or other creditor’s process, and any action
in violation of this Section 8(h) shall be void.


 


(i)            Employment
Taxes.  All payments made
pursuant to this Agreement will be subject to withholding of applicable income
and employment taxes.


 


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(j)            Assignment
by Company.  The Company
may assign its rights under this Agreement to an affiliate, and an affiliate
may assign its rights under this Agreement to another affiliate of the Company
or to the Company.   In the case of any
such assignment, the term “Company” when used in a section of this Agreement
shall mean the corporation that actually employs the Employee.


 


(k)           Counterparts.  This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.


 


[SIGNATURE PAGE FOLLOWS]


 


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The parties
have executed this Agreement on the date first written above.


 


	
   

  	
  DEPOMED, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
  [                                   ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
				



 


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