Exhibit 10.2


 


Execution Copy


 


 


DEPOMED DEVELOPMENT, LTD.


 


 


EXCLUSIVE LICENSE AGREEMENT


 

















 


TABLE OF
CONTENTS


 


	
  1.

  	
  Definitions.

  
	
   

  	
   

  
	
  2.

  	
  Grant of Rights.

  
	
   

  	
   

  
	
  3.

  	
  Royalties and Payment
  Terms.

  
	
   

  	
   

  
	
  4.

  	
  Reports and Records.

  
	
   

  	
   

  
	
  5.

  	
  Patent Prosecution.

  
	
   

  	
   

  
	
  6.

  	
  Infringement.

  
	
   

  	
   

  
	
  7.

  	
  Indemnification.

  
	
   

  	
   

  
	
  8.

  	
  No Representations
  or Warranties.

  
	
   

  	
   

  
	
  9.

  	
  General Compliance with
  Laws.

  
	
   

  	
   

  
	
  10.

  	
  Termination.

  
	
   

  	
   

  
	
  11.

  	
  Miscellaneous.

  



 

















 


EXCLUSIVE LICENSE AGREEMENT


 


 


This
Exclusive License Agreement (this “Agreement”) is entered into as of
September 18, 2003 (the “Effective Date”), by and between DepoMed
Development, Ltd., an exempted company incorporated under the laws of Bermuda
and having its registered office at Clarendon House, 2 Church St., Hamilton,
Bermuda (“DDL”), and DepoMed,
Inc., a corporation duly incorporated and validly existing under the
laws of California and having its principal place of business at 1360 O’Brien
Drive, Menlo Park California 94025, United States of America (“DepoMed”).


 


R E C I T A L S


 


WHEREAS,
DepoMed has licensed to DDL certain intellectual property pursuant to the
DepoMed License Agreement (as defined below) and is entitled thereunder to
royalties to be negotiated in the event that any product utilizing such
intellectual property is commercialized by DDL or its sublicensees;


 


WHEREAS,
DDL has conducted research and development related to the Licensed Product (as
defined below);


 


WHEREAS,
DepoMed desires to obtain a license to the DDL Intellectual Property (as
defined below) upon the terms and subject to the conditions hereinafter set
forth.


 


NOW,
THEREFORE, DDL and DepoMed hereby agree as follows:


 


1.                                       Definitions.


 


1.1                                 “Affiliate”
shall mean any legal entity (such as a corporation, partnership, or limited
liability company) that is controlled by DepoMed.  For the purposes of this definition, the term “control” means (i)
beneficial ownership of at least fifty percent (50%) of the voting securities
of a corporation or other business organization with voting securities or (ii)
a fifty percent (50%) or greater interest in the net assets or profits of a
partnership or other business organization without voting securities.


 


1.2                                 “Compound”
shall mean the chemical compound known as gabapentin.


 


1.3                                 “DDL
Intellectual Property” shall mean any invention or discovery or any
Intellectual Property or copyrighted materials owned by, licensed to or
arising, developed or conceived and reduced to practice by DDL, or by an
individual or individuals with one or more other contractors or employees of
DDL relating directly or indirectly to the Licensed Product, the Fed Mode
Product or the Compound, including without limitation all rights granted to DDL
with respect to the Fed Mode Product pursuant to the DepoMed License Agreement.


 


1.4                                 “DepoMed
License Agreement” shall mean that certain License Agreement, dated as of
January 21, 2000, by and among DepoMed, DDL and Elan Corporation, plc.


 

















 


1.5                                 “Development
Costs” shall mean the costs
incurred by DepoMed in connection with the research and development (including
without limitation patent prosecution expenses) of the Licensed Product or the
Fed Mode Product, which costs will be determined in accordance with Schedule 1.5
hereto.


 


1.6                                 “Fed Mode Field” shall mean any device,
process, substance, system or method of manufacture of such system, in which
such device, process, substances or system is retained in the stomach by
retarding the rate of gastric emptying into the gastro intestinal tract by the
induction of a fed mode.


 


1.7                                 “Fed Mode Product”
shall mean oral formulation(s) delivered by a device, process or system in the
Fed Mode Field, where the Compound is the active ingredient.


 


1.8                                 “Intellectual
Property” shall mean intellectual property and shall include, but not be
limited to inventions and discoveries (whether patentable or not) patents,
petty patents and applications thereof, registered designs and applications
thereof design rights, registered and unregistered trade marks, service marks
and copyrights, specifications, trade secrets and confidential information,
drawings, plans, copyright material including computer software, databases,
technical know-how and other information.


 


1.9                                 “Licensed
Product” shall mean any product or part thereof that absent the license
granted hereunder, would infringe one or more claims of the Patent Rights.


 


1.10                           “Net
Sales” shall mean the gross amount received by DepoMed and its Affiliates
and Sublicensees for the Licensed Product or, if the Fed Mode Product is not a
Licensed Product, the Fed Mode Product, less:


 


(a)                                  customary
trade, quantity, or cash discounts to the extent actually allowed and taken;


 


(b)                                 amounts
repaid or credited by reason of rejection or return;


 


(c)                                  to
the extent separately stated on purchase orders, invoices, or other documents
of sale, any taxes or other governmental charges levied on the production, sale,
transportation, delivery, or use of a Licensed Product or Fed Mode Product
which is paid by or on behalf of DepoMed; and


 


(d)                                 outbound
transportation costs prepaid or allowed and costs of insurance in transit.


 


No
deductions shall be made for commissions paid to individuals whether they be
with independent sales agencies or regularly employed by DepoMed and on its
payroll, or for cost of collections.


 


1.11                           “Patent
Rights” shall mean:


 


2

















 


(a)                                  all
United States and international patents arising from the DDL Intellectual
Property in accordance with Section 5 hereof, which patents shall be set
forth on Appendix A attached hereto at the time any such patent issues;


 


(b)                                 the
United States and international patent applications and/or provisional
applications arising from the DDL Intellectual Property in accordance with
Section 5 hereof, which applications shall be set forth on Appendix A
attached hereto at the time any such application is filed, and the resulting
patents;


 


(c)                                  any
patent applications resulting from the provisional applications set forth from
time to time on Appendix A, and any divisionals, continuations,
continuation-in-part applications, and continued prosecution applications (and
their relevant international equivalents) of the patent applications set forth
from time to time on Appendix A and of such patent applications that
result from the provisional applications set forth from time to time on Appendix
A, to the extent the claims are directed to subject matter specifically
described in the patent applications set forth from time to time on Appendix
A, and the resulting patents; and


 


(d)                                 any
patents resulting from reissues, reexaminations, or extensions (and their
relevant international equivalents) of the patents described in (a), (b), and
(c) above.


 


1.12                           “Reporting
Period” shall begin on the first day of each calendar quarter and end on
the last day of such calendar quarter.


 


1.13                           “Sublicensee”
shall mean any non-Affiliate sublicensee of the rights granted to DepoMed under
Section 2.1.


 


1.14                           “Term”
shall mean the term of this Agreement, which shall commence on the Effective
Date and shall remain in effect until the later of (i) the expiration or
abandonment of all issued patents and filed patent applications within the
Patent Rights and (ii) ten years after the first commercial sale of the Fed
Mode Product, in either case unless earlier terminated in accordance with the
provisions of this Agreement.


 


1.15                           “Territory”
shall mean worldwide.


 


2.                                       Grant of Rights.


 


2.1                                 License
Grants.  Subject to the terms of
this Agreement, DDL hereby grants to DepoMed for the Term an exclusive,
transferable, irrevocable, perpetual license in the Territory, with a right to
sublicense, to the DDL Intellectual Property to make, have made, use, sell,
lease and import Licensed Product in the Field in the Territory.


 


2.2                                 Sublicenses.  DepoMed shall have the right to grant
sublicenses of its rights under Section 2.1.  DepoMed shall promptly furnish DDL with a fully signed photocopy
of any sublicense agreement.  Upon
termination of this Agreement for any reason, any Sublicensee not then in
default shall be entitled to maintain its rights under its Sublicense by
agreeing in writing


 


3

















 


to perform its obligations under the Sublicense for the direct benefit
of DDL and to make all payments for which it is responsible directly to DDL.


 


2.3                                 Waiver
Under DepoMed License Agreement. 
DepoMed and DDL acknowledge and confirm that the provisions of
Section 4.1 of the DepoMed License Agreement are hereby waived with
respect to the Licensed Product and the Fed Mode Product.


 


3.                                       Royalties
and Payment Terms.


 


3.1                                 Royalties
for Grant of Rights.


 


(a)                                  Royalties
for Licensed Product.  DepoMed shall
pay to DDL a running royalty of six percent of Net Sales by DepoMed and its
Affiliates and Sublicensees.  Running
royalties shall be payable for each Reporting Period and shall be due to DDL
within sixty (60) days of the end of each Reporting Period.


 


(b)                                 Royalties
for Fed Mode Product.  In the event
that the Fed Mode Product is not a Licensed Product, DepoMed shall pay to DDL a
running royalty of three percent of Net Sales by DepoMed and its Affiliates and
Sublicensees.  Running royalties shall
be payable for each Reporting Period and shall be due to DDL within sixty (60)
days of the end of each Reporting Period. 
DepoMed’s obligation to pay royalties under this Section 3.1(b)
shall terminate upon any termination of the DepoMed License Agreement.


 


(c)                                  Other
Receipts.  DepoMed shall pay to DDL
fifty percent of any other receipt by it from the sale or assignment of
DepoMed’s rights in and to the Licensed Product that do not constitute Net
Sales, and, provided that the Fed Mode Product is not a Licensed Product,
twenty-five percent of any other receipt by it from the sale or assignment of
DepoMed’s rights in and to the Fed Mode Product that do not constitute Net
Sales; provided, further that any amounts received by DepoMed for research and
development services or as capital investment for equity or loan funds or upon
the sale, transfer or disposition of all or substantially all of DepoMed’s
assets, will give not give rise to any payment under this Section 3.1(c).


 


(d)                                 No
Multiple Royalties.  If the
manufacture, use, lease, or sale of Licensed Product is covered by more than
one of the Patent Rights, multiple royalties shall not be due.  The royalties payable under Sections 3.1(a)
and 3.1(b) shall in no event be cumulative.


 


(e)                                  Waiver
by DepoMed of its Royalty Rights. 
DepoMed hereby waives any rights that it may have to receive royalties
from DDL with respect to any Licensed Product or Fed Mode Product under
Section 5.1 of the DepoMed License Agreement.


 


(f)                                    Offset.  DepoMed may offset Development costs in
accordance with Section 6.4.


 


3.2                                 Payments.


 


(a)                                  Method
of Payment.  All payments under this
Agreement should be made payable to “DepoMed Development, Ltd.” and sent to the
address identified in Section 11.1.


 


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Each payment should reference this Agreement and identify the
obligation under this Agreement that the payment satisfies.


 


(b)                                 Payments
in U.S. Dollars.  All payments due
under this Agreement shall be drawn on a United States bank and shall be
payable in United States dollars. 
Conversion of foreign currency to U.S. dollars shall be made at the
conversion rate existing in the United States (as reported in the Wall
Street Journal) on the last working day of the calendar quarter of the
applicable Reporting Period; provided, however, that any currency amounts
received by DepoMed that are converted to U.S. dollars at the time of their
receipt by DepoMed shall be made at the conversion rate existing in the United
States (as reported on the Wall Street Journal) on the date of such
conversion.


 


(c)                                  Late
Payments.  Any payments by DepoMed
that are not paid on or before fifteen days after the date such payments are
due under this Agreement shall bear interest, to the extent permitted by law,
at the Prime Rate of interest as reported in the Wall Street Journal on
the date payment is due.


 


4.                                       Reports and Records.


 


4.1                                 Frequency
of Reports.


 


(a)                                  Upon
First Commercial Sale of a Product. 
DepoMed shall report to DDL the date of first commercial sale of a
Licensed Product or a Fed Mode Product, within sixty days of occurrence in each
country.


 


(b)                                 After
First Commercial Sale.  After the
first commercial sale of a Licensed Product or, if applicable, a Fed Mode
Product, DepoMed shall deliver reports to DDL within sixty days of the end of
each Reporting Period, containing information concerning the immediately
preceding Reporting Period, as further described in Section 4.2.


 


4.2                                 Content
of Reports and Payments.  Each
report delivered by DepoMed to DDL shall contain at least the following
information for the immediately preceding Reporting Period:


 


(a)                                  the
number of Licensed Products or Fed Mode Products, sold, leased or distributed
by DepoMed, its Affiliates and Sublicensees to independent third parties in
each country, and, if applicable, the number of Licensed Products or Fed Mode
Products used by DepoMed, its Affiliates and Sublicensees in the provision of
services in each country;


 


(b)                                 the
gross price charged by DepoMed, its Affiliates and Sublicensees for each
Licensed Product or Fed Mode Product and, if applicable, the gross price
charged for each Licensed Product or Fed Mode Product used to provide services
in each country;


 


(c)                                  calculation
of Net Sales for the applicable Reporting Period in each country, including a
listing of applicable deductions; and


 


5

















 


(d)                                 total
royalty payable on Net Sales in U.S. dollars, together with the exchange rates
used for conversion.


 


If no
amounts are due to DDL for any Reporting Period, the report shall so state.


 


4.3                                 Records.  DepoMed shall maintain, and shall cause its
Affiliates and Sublicensees to maintain, complete and accurate records relating
to the rights and obligations under this Agreement and any amounts payable to
DDL in relation to this Agreement, which records shall contain sufficient
information to permit DDL to confirm the accuracy of any reports delivered to
DDL and compliance in other respects with this Agreement.  The relevant party shall retain such records
for at least five years following the end of the calendar year to which they
pertain, during which time DDL, or DDL’s appointed agents, shall have the
right, at DDL’s expense, to inspect such records during normal business hours
to verify any reports and payments made or compliance in other respects under
this Agreement.  In the event that any
audit performed under this Section reveals an underpayment in excess of
five percent, DepoMed shall bear the full cost of such audit and shall remit
any amounts due to DDL within thirty days of receiving notice thereof from DDL.


 


5.                                       Patent Prosecution.


 


DDL
agrees that, for any DDL Intellectual Property, DepoMed shall, in its sole
discretion, make the determination as to whether or not an Application (as
hereinafter defined) shall be made.  DDL
further agrees that, for any DDL Intellectual Property, DepoMed or DepoMed’s
agents shall be the parties responsible for drafting and prosecuting any and
all patent applications, divisions, continuations, continuations-in-part,
re-examinations or corrections or reissues or other applications or filings in
connection with any DDL Intellectual Property(the “Applications”).  DepoMed agrees to keep DDL fully
informed.  DepoMed agrees that it shall
(i) file any Application in the name of DDL, (ii) not file any Application
without first notifying DDL, and  (iii)
DepoMed shall bear all costs incurred in connection with such preparation,
filing, prosecution and maintenance of any Application, as may be applicable.  For the filing of any Application arising under
this Agreement, DDL, and any agent of DDL, shall execute and deliver any and
all documents or instruments necessary to file such Application and shall fully
cooperate with DepoMed in the prosecution of the Application.


 


6.                                       Infringement.


 


6.1                                 Notification
of Infringement.  Each party agrees
to provide written notice to the other party promptly after becoming aware of
any infringement of the Patent Rights.


 


6.2                                 Right
to Prosecute Infringements and Violations.


 


(a)                                  DepoMed
Right to Prosecute.  So long as DepoMed
remains the exclusive licensee of the DDL Intellectual Property in the
Territory, DepoMed, to the extent permitted by law, shall have the right, under
its own control and at its own expense, to prosecute any third party
infringement of the Patent Rights in the Territory, subject to
Sections 6.4 and 6.5.  If required
by law, DDL shall permit any action under this Section to be brought in
its name,


 


6

















 


including being joined as a party-plaintiff, provided that DepoMed
shall hold DDL harmless from, and indemnify DDL against, any costs, expenses,
or liability that DDL incurs in connection with such action.


 


(b)                                 DDL
Right to Prosecute.  In the event
that DepoMed is unsuccessful in persuading the alleged infringer to desist or
fails to have initiated an infringement action within one hundred eighty days
after DepoMed first becomes aware of the basis for such action, DDL shall have
the right, at its sole discretion, to prosecute such infringement under its sole
control and at its sole expense.


 


6.3                                 Third
Party Actions.  In the event that a
declaratory judgment or other action is brought against DDL or DepoMed by a
third party alleging invalidity, unenforceability, or non-infringement of the
Patent Rights, DepoMed, at its option, shall have the right within twenty days
after commencement of such action to take over the sole defense of the action
at its own expense.  If DepoMed does not
exercise this right, DDL may take over the sole defense of the action at DDL’s sole
expense, subject to Sections 6.4 and 6.5.


 


6.4                                 Offsets.  DepoMed may offset:  (i) all Development Costs; and (ii) a total
of fifty percent of any expenses incurred under Sections 6.2 and 6.3 against
any payments due to DDL under Article 3, provided that in no event shall
such payments under Article 3, when aggregated with any other offsets and
credits allowed under this Agreement, result in payments otherwise due to DDL
to be reduced by more than fifty percent in any Reporting Period.  Any offset thus limited shall be available
to DepoMed as a continuing offset, subject to the fifty percent limitation, in
the earliest subsequent Reporting Period.


 


6.5                                 Recovery.  Any recovery obtained in an action brought
by DepoMed or DDL under Sections 6.2 or 6.3 shall be distributed as
follows: (i) each party shall be reimbursed for any expenses incurred in the
action (including the amount of any royalty or other payments withheld from DDL
as described in Section 6.4), (ii) as to ordinary damages, DepoMed shall receive
an amount equal to its lost profits or a reasonable royalty on the infringing
sales, or whichever measure of damages the court shall have applied, and
DepoMed shall pay to DDL based upon such amount a reasonable approximation of
the royalties and other amounts that DepoMed would have paid to DDL if DepoMed
had sold the infringing products rather than the infringer, and (iii) as to
special or punitive damages, the parties shall share equally in any award.


 


6.6                                 Cooperation.  Each party agrees to cooperate in any action
under this Article which is controlled by the other party, provided that
the controlling party reimburses the cooperating party promptly for any costs
and expenses incurred by the cooperating party in connection with providing
such assistance.


 


6.7                                 Right
to Sublicense.  So long as DepoMed
remains the exclusive licensee of the Patent Rights in the Territory, DepoMed
shall have the sole right to sublicense any alleged infringer in the Territory
for future use of the Patent Rights in accordance with the terms and conditions
of this Agreement relating to sublicenses.


 


7

















 


6.8                                 Withholding
Taxes.  To the extent that payments
under Article 3 are subject to withholding taxes, DepoMed shall withhold
such amounts paid from amounts remitted to DDL and shall provide to DDL proof
of such payment.


 


7.                                       Indemnification.


 


7.1                                 Indemnification.


 


(a)                                  Indemnity.  DepoMed shall indemnify, defend, and hold
harmless DDL and its successors and assigns (the “Indemnitees”), against
any liability, damage, loss, or expense (including reasonable attorneys fees
and expenses) incurred by or imposed upon any of the Indemnitees in connection
with any claims, suits, actions, demands or judgments arising out of any theory
of liability (including without limitation actions in the form of tort,
warranty, or strict liability and regardless of whether such action has any
factual basis) concerning any Licensed Product or Fed Mode Product.


 


(b)                                 Procedures.  The Indemnitees agree to provide DepoMed
with prompt written notice of any claim, suit, action, demand, or judgment for
which indemnification is sought under this Agreement.  DepoMed agrees, at its own expense, to provide attorneys
reasonably acceptable to DDL to defend against any such claim.  The Indemnitees shall cooperate fully with
DepoMed in such defense and will permit DepoMed to conduct and control such
defense and the disposition of such claim, suit, or action (including all
decisions relative to litigation, appeal, and settlement); provided, however,
that any Indemnitee shall have the right to retain its own counsel, at its
expense.  DepoMed agrees to keep DDL
informed of the progress in the defense and disposition of such claim and to
consult with DDL with regard to any proposed settlement.


 


8.                                       No
Representations or Warranties.


 


EXCEPT
AS MAY OTHERWISE BE EXPRESSLY SET FORTH IN THIS AGREEMENT, DDL MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE DDL INTELLECTUAL
PROPERTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, VALIDITY OF
PATENT RIGHTS, CLAIMS, WHETHER ISSUED OR PENDING, AND THE ABSENCE OF LATENT OR
OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE. 
Specifically, and not to limit the foregoing, DDL makes no warranty or
representation (i) regarding the validity or scope of the Patent Rights,
and (ii) that the exploitation of the DDL Intellectual Property or any
Licensed Product or Fed Mode Product will not infringe any patents or other
intellectual property rights of a third party.


 


IN NO
EVENT SHALL DDL, ITS DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES BE LIABLE
FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGES
OR INJURY TO PROPERTY AND LOST PROFITS, REGARDLESS OF WHETHER DDL SHALL BE
ADVISED, SHALL HAVE


 


8

















 


OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE
FOREGOING.


 


9.                                       General
Compliance with Laws.


 


DepoMed
shall use reasonable commercial efforts to comply with all commercially
material local, state, federal, and international laws and regulations relating
to the development, manufacture, use, and sale of the Licensed Product and the
Fed Mode Product.


 


10.                                 Termination.


 


10.1                           Voluntary
Termination by DepoMed.  DepoMed
shall have the right to terminate this Agreement, for any reason, (i) upon at
least three months prior written notice to DDL, such notice to state the date
at least three months in the future upon which termination is to be effective,
and (ii) upon payment of all amounts due to DDL through such termination
effective date.


 


10.2                           Termination
for Default.


 


(a)                                  Nonpayment.  In the event DepoMed fails to pay any
amounts due and payable to DDL hereunder and not in dispute, and fails to make
such payments within sixty days after receiving written notice of such failure,
DDL may terminate this Agreement immediately upon written notice to DepoMed.


 


(b)                                 Material
Breach.  In the event DepoMed
commits a material breach of its obligations under this Agreement and fails to
cure that breach within sixty days after receiving written notice thereof, DDL
may terminate this Agreement immediately upon written notice to DepoMed.


 


10.3                           Effect
of Termination.


 


(a)                                  Survival.  The following provisions shall survive the
expiration or termination of this Agreement: 
Articles 1, 7, and 11, and Section 4.2 (obligation to provide final
report and payment).


 


(b)                                 Inventory.  Upon the early termination of this
Agreement, DepoMed and its Affiliates and Sublicensees may complete and sell
any work-in-progress and inventory of Licensed Product and Fed Mode Product
that exist as of the effective date of termination, provided that
(i) DepoMed pays DDL the applicable running royalty or other amounts due
on such sales of Licensed Product or Fed Mode Product in accordance with the
terms and conditions of this Agreement, and (ii) DepoMed and its
Affiliates and Sublicensees shall complete and sell all work-in-progress and
inventory of Licensed Products and Fed Mode Products within six (6) months
after the effective date of termination.


 


9

















 


(c)                                  Pre-termination
Obligations.  In no event shall
termination of this Agreement release DepoMed, Affiliates, or Sublicensees from
the obligation to pay any amounts that became due on or before the effective
date of termination.


 


11.                                 Miscellaneous.


 


11.1                           Notice.  Any notice required or permitted under this
Agreement shall be in writing and shall be deemed given as of the date it is
(a) delivered by hand, (a) delivered by courier, or (b) received
by Registered or Certified Mail, postage prepaid, return receipt requested
addressed to the party to receive such notice at the address set forth below,
or such other address as is subsequently specified in writing:


 


	
  If to DepoMed, at

  	
   

  	
  If to DDL, at

  
	
   

  	
   

  	
   

  
	
  1360 O’Brien Drive

  Menlo Park, California 94025

  Phone:  (650) 462-5900
Fax: 
  (650) 462-9991
Attention:  Chief Executive Officer

  	
   

  	
  Clarendon House

  2 Church Street

  Hamilton, Bermuda

  Phone:  (441) 292-9169

  Fax:  (441) 292-2224

  Attention:  Secretary

  
	
  With
  a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
  With a copy to:

  
	
  Heller
  Ehrman White & McAuliffe LLP

  	
   

  	
   

  
	
  275
  Middlefield Road

  Menlo Park, CA  94025
Phone:  (650) 324-7000
Fax: 
  (650) 324-0638
Attention:  Julian Stern

  	
   

  	
  DepoMed, Inc.

  1360 O’Brien Drive

  Menlo Park, California 94025

  Phone:  (650) 462-5900
Fax: 
  (650) 462-9991
Attention:  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  And
  a further copy to:  

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Heller
  Ehrman White & McAuliffe LLP

  275 Middlefield Road
Menlo Park, CA  94025
Phone:  (650) 324-7000  
Fax: 
  (650) 324-0638
Attention:  Julian Stern

  



 


11.2                           Governing
Law.  This Agreement shall be
governed by the laws of the State of California, without reference to
principles of conflicts of laws.


 


11.3                           Amendment
and Waiver.  This Agreement may only
be amended by the mutual written consent of DepoMed and DDL.  No waiver of any term, provision or
condition of this


 


10

















 


Agreement whether by conduct or otherwise in any one or more instances
shall be deemed to be or construed as a further or continuing waiver of any
such term, provision or condition, or of any other term, provision, or
condition of this Agreement.


 


11.4                           Severability.  In the event that any provision of this
Agreement shall be held invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect any other provision of this
Agreement.


 


11.5                           Assignment;
Binding Effect.


 


(a)                                  Neither
party to this Agreement may assign, cede, or transfer any of its rights or
obligations under this Agreement without the written consent of the other
party, which consent may not be unreasonably withheld or unduly delayed;
provided, however, without such consent DepoMed may assign this Agreement and
the rights and obligations under it, in whole or in part, in connection with
the transfer, sale or license of its assets, interests or business relating,
directly or indirectly, its rights and obligations hereunder or its merger or
consolidation with another organization. 
In addition, DepoMed may assign this Agreement in whole or in part to
any corporate affiliate without consent of DDL.


 


(b)                                 This
Agreement shall inure to the benefit of and be binding upon each party
signatory to the Agreement, its successors and permitted assignees.  No assignment shall relieve either party of
the performance of any accrued obligation that such party may then have under
this Agreement.


 


11.6                           Headings.  All headings are for convenience only and
shall not affect the meaning of any provision of this Agreement.


 


11.7                           Entire
Agreement.  This Agreement
represents the entire understanding of the parties with respect to the subject
matter of this Agreement.


 


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intentionally left blank]


 


11

















 


IN WITNESS WHEREOF,
the parties have caused this Agreement to be executed by the respective duly
authorized officers as of the date first written above.


 


	
  FOR DEPOMED:

  	
   

  	
  FOR DDL:

  
	
   

  	
   

  	
   

  
	
  DepoMed, Inc.

  	
   

  	
  DepoMed
  Development, Ltd.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John F. Hamilton

  	
   

  	
  By:

  	
  /s/ Allison L. Smith

  
	
  Name:

  	
  John F. Hamilton

  	
   

  	
  Name:

  	
  Allison L. Smith

  
	
  Title:

  	
  Vice President and CFO

  	
   

  	
  Title:

  	
  Director

  



 


12

















 


Appendix
A to Exclusive License Agreement



PATENT RIGHTS



(as of September 18, 2003)


 


I.                                         Patents


 


[None]


 


II.                                     Patent
Applications


 


	
  Jurisdiction

  	
   

  	
  Application

  Number

  	
   

  	
  Title

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US

  	
   

  	
  60/335,248

  	
   

  	
  Methods of Treatment Using a Gastric Retained
  Gabapentin Dosage

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US

  	
   

  	
  10/280,309

  	
   

  	
  Methods of Treatment Using a Gastric Retained
  Gabapentin Dosage

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TW*

  	
   

  	
  60/335,248

  	
   

  	
  Methods of Treatment Using a Gastric Retained
  Gabapentin Dosage

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WO**

  	
   

  	
  PCT/IB02/05440

  	
   

  	
  Methods of Treatment Using a Gastric Retained
  Gabapentin Dosage

  



 












*    TW =
Taiwan


**  WO =
World (PCT)