Exhibit
10.12


 




Amendment, dated as of September 30, 2002 (the “Amendment”),
by and among DepoMed, Inc., a California corporation (the “Company”), Elan
International Services, Ltd., a Bermuda exempted limited liability company (“EIS”),
Elan Pharma International Limited, an Irish private limited liability company
(“EPIL”),
and Elan Corporation, plc, an Irish public limited company (“Elan”).





 


RECITALS:


Whereas, the
Company, EIS, EPIL and Elan entered into a Funding Agreement, dated January 21,
2000 (the “Funding Agreement”),
which set forth the terms and conditions of each of the parties subsequent
funding obligations to Depomed Development Ltd., a Bermuda exempted limited
liability company (“Newco”);


 


                WHEREAS, EIS agreed to lend the Company up to
U.S.$8,010,000 in order for the Company to meet its subsequent funding
obligations to Newco pursuant to the terms of a Convertible Promissory Note,
dated January 21, 2000, for up to U.S.$8,010,000 in the principal amount
outstanding (the “Note”);


                WHEREAS, EIS and EPIL entered into and Assignment
and Assumption (the “Assignment”), as of January 1, 2001, in
which EIS assigned its rights to the Funding Agreement and the Note to EPIL and
EPIL assumed the liabilities of EIS with respect to the Funding Agreement and
the Note;


                WHEREAS, pursuant to Section 3.10 of the Funding
Agreement, the Funding Agreement may be amended upon the written consent of the
parties to the Funding Agreement; and


                WHEREAS, pursuant to Section 9(d) of
the Note, the Note may be amended upon the written consent of the parties to
the Note.


                NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants contained herein, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:


 


                                1.             Amendment to the Funding
Agreement.  The parties agree that
Section 1.1 of the Funding Agreement shall be deleted in its entirety and
replaced with the following:


 


“1.1.        It is estimated that
Newco will require an additional U.S.$9,741,753
to commence development of the Products based upon the DMI
Intellectual Property, the Elan Intellectual Property and/or the Newco
Technology (the “Subsequent Funding”). On and after the Closing Date and
until September 30, 2002, EIS and DMI may provide to Newco, by way of
contributed surplus or loan, as may be agreed to by EIS and DMI,


 


 


 

















 


                                                up to an aggregate maximum amount of
U.S.$9,741,753, such funding to be provided by EIS and DMI
to Newco on a pro rata basis based on their respective equity interests, on a
fully-diluted basis.”


 


                2.             Amendment to the Note.  (a) 
The parties agree that Section 2(a) of the Note shall be deleted in its
entirety and replaced with the following:


 


                “(a) From and
after the date hereof and until September 30, 2002, disbursements shall be made
by EIS to the Company hereunder in minimum increments of U.S.$250,000 (except
in the event that an amount less than U.S.$250,000 shall be remaining and
available for funding hereunder, in which case such lesser amount may be funded
hereunder); provided,
that the Company shall have, prior to each such disbursement, delivered a
written request therefor to the Holder in the form attached hereto as Exhibit
A (the “Disbursement Notice”), together with an Officer’s
Certificate confirming that as of such date no Event of Default exists
hereunder; the Holder shall, subject to the terms and conditions hereof, fund
the applicable amount within 10 business days of the receipt of the
Disbursement Notice, subject to the receipt by the Holder of any required
approvals under the Mergers and Takeovers (Control) Acts 1978-1996; provided,
further, that the Company shall
be entitled to receive up to one disbursement per each 90-day period from and
after the date hereof; provided, further, that disbursements shall be made by
EIS to the Company after September 30, 2002 for activities completed by Newco
prior to September 30, 2002 in respect of which a Disbursement Notice is
delivered by the Company to EIS on or before November 30, 2002 or, if later, 5
business days after Newco provides the Company with such information, including
information regarding Newco expenses incurred by Elan, as is reasonably
necessary for the Company to prepare a Disbursement Notice for Newco activities
completed on or before September 30, 2002. Notwithstanding any other provision
herein disbursements made in respect of expenses for 2002 shall not exceed
$2,430,977.26.  A “business day” is any
day that commercial banks are open for the transaction of business in the City
of New York and in the City of San Francisco.”


 


(b)           The parties agree that Section 6 of the Note shall be
deleted in its entirety and replaced with the following:


 


                “The Company shall use the
proceeds of this Note solely for developmental funding of Newco; provided,
that the Board of Directors of Newco shall have determined that such
developmental funding is necessary (which approval shall in all events include
the consent of at least one director designated by the Company and at least one
director designated by EIS); provided, further, that the Company shall not
use the proceeds of this Note as reimbursement for any developmental funding
independently contributed to Newco by the Company.  Accordingly, total disbursements hereunder shall not in any event
exceed the amount of Development Funding funded by the Company to Newco
pursuant to the Funding Agreement.”


 


 


 

















 


 


                3.             Except as set forth above, the
provisions of the Funding Agreement and the Note shall remain in full force and
effect as originally stated therein. Such amended provisions shall take effect
as if originally a part of the agreement to which they apply.


 


                IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
as of the date first above written.


 


	
   

  	
  DEPOMED, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  JOHN F. HAMILTON

  	
   

  
	
   

  	
   

  	
  Name:  John F. Hamilton

  	
   

  	
   

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ELAN
  INTERNATIONAL SERVICES, LTD.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  DEBRA MOORE BURYJ

  	
   

  
	
   

  	
   

  	
  Name: Debra
  Moore Buryj

  	
   

  	
   

  
	
   

  	
   

  	
  Title: Vice
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ELAN
  PHARMA INTERNATIONAL LIMITED

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  SEAMUS MULLIGAN

  	
   

  
	
   

  	
   

  	
  Name: Seamus Mulligan

  	
   

  	
   

  
	
   

  	
   

  	
  Title:
  _____________________

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ELAN
  CORPORATION, PLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  SEAMUS MULLIGAN

  	
   

  
	
   

  	
   

  	
  Name: Seamus Mulligan

  	
   

  	
   

  
	
   

  	
   

  	
  Title: Executive Vice
  President