**Exhibit10.33**

**CERTAINCONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH THE SYMBOL“[***]”.  A COMPLETE VERSION OF THISEXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIALTREATMENT UNDER RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934.**

**MOVAPharmaceutical Corporation**

**and**

**Depomed,Inc.**

**COMMERCIALMANUFACTURING**

**AGREEMENT**

THISAGREEMENT is executed as of this 19th day of December, 2006 and effective as of June1, 2006 (the “**Effective Date**”), byand between **MOVA Pharmaceutical Corporation**(“**MOVA**”), a corporation organizedunder the laws of the Commonwealth of Puerto Rico, having its principal placeof business at  Villa Blanca IndustrialPark, State Road No. 1, Km. 34.5,Caguas, Puerto Rico, and **Depomed, Inc.** (“**DEPOMED**”), a corporation organized under the laws of the Stateof California, having its principal place of business at 1360 O’Brien Drive,Menlo Park, California  94025.  MOVA and DEPOMED each shall sometimes bereferred to herein sometimes as a “Party” and collectively as the “Parties.”

**WITNESSETH:**

WHEREAS,MOVA is in the business of providing contract manufacturing services to thepharmaceutical industry and desires to provide such services to DEPOMED;

WHEREAS,DEPOMED desires to engage MOVA to provide certain of such services; and

WHEREAS,MOVA and DEPOMED have agreed upon a contract pursuant to which MOVA wouldprovide manufacturing and packaging services for the Product (as hereinafterdefined) for DEPOMED pursuant to the terms and conditions set forth below.

NOW, THEREFORE, inconsideration of the foregoing premises, which are hereby incorporated as asubstantive part of this Agreement, and in consideration of the performance ofthe mutual covenants and promises herein contained, MOVA and DEPOMED intendingto be legally bound, agree as follows:

**ARTICLE 1 – DEFINITIONS**

The followingterms not defined elsewhere in this Agreement have the following respectivemeanings:

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“**Act**” means the *Federal Food, Drug, and Cosmetic Act*,together with any regulation promulgated thereunder, including withoutlimitation cGMPs, in each case as amended from time to time.

“**Active Pharmaceutical Ingredient**” or “**API**” shall mean the substance havingthe name of Metformin Hydrochloride.

“**Affiliate**” shall mean, with respect toeither Party, all corporations or other business entities that, directly orindirectly, are controlled by, control or are under the common control withthat Party. For this purpose, the meaning of the word “control” shall meanhaving the ability substantially to direct the affairs or management of anentity, including, but not be limited to, ownership of more than fifty percent(50%) of the voting shares or interest of such corporation or other businessentity.

“**Annual Volume**” means that volume ofProduct to be manufactured in any year of this Agreement.

“**API CreditValue**” means the value to be attributed to the API forcertain purposes of this Agreement as set forth on Schedule E.

“**Applicable Law**”****means all Laws to the extentapplicable to the subject matter of, or the performance by the Parties of theirrespective obligations under, this Agreement, including, but not limited to,(i) with respect to MOVA, the Act and any other Laws of all jurisdictions wherethe Products are manufactured, and (ii) with respect to DEPOMED, the Laws ofall jurisdictions where the Products are manufactured, distributed andmarketed.

“**Authority**” means any governmental orregulatory authority, department, body or agency or any court, tribunal,bureau, commission or other similar body, whether federal, state, provincial,county or municipal, including, but not limited to, the FDA.

“**Batch Records**” shall mean the executedmanufacturing instructions, the executed packaging order, the analyticaltesting results and any other manufacturing related document, such as deviationor investigation reports.

“**Certificate of Analysis**” shall meandocumented test results in written form executed by an authorized responsibleperson that demonstrate compliance to the Specifications.

“**cGMPs**” shall mean the then current andapplicable good manufacturing practice regulations established in 21 C.F.R.Parts 210 and 211, as amended and in effect from time to time and otherapplicable FDA policies, as applicable and in effect from time to time duringthe term of this Agreement.

“**FDA**” shall mean the United States Foodand Drug Administration.

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“**Intellectual Property**” includes,without limitation, rights in patents, patent applications, formulae, trade-marks,trade-mark applications, trade-names, Inventions, copyright and industrialdesigns.

“**Latent Defect**” shall mean a defect inthe Product or the API that results in the Product not conforming to theSpecifications and that was not discoverable with commercially reasonableinspection.

“**Laws**” means all laws, statutes,ordinances, regulations, rules, by-laws, judgments, decrees or orders of anyAuthority, including, but not limited to, the Act and cGMPs.

“**Materials**” shall mean all materialsnecessary for the manufacture and packaging of the Product, including but notlimited to labels, excipients, packaging components and raw materials,excluding the Active Pharmaceutical Ingredient.

“**MOVA Facilities**” shall mean the MOVAmanufacturing facilities located in Caguas, Puerto Rico.

“**NDA or ANDA**” shall mean the New DrugApplication(s) or Abbreviated New Drug Application, as the case may be, for theProduct submitted to the FDA by DEPOMED, including any amendments andsupplements thereto.

“**Product**” shall mean those finishedpharmaceutical products that contain solely Active Pharmaceutical Ingredient asits active ingredient.

“**Quality Agreement**” shall mean thequality agreement attached hereto as Schedule C.

“**Specifications**” shall mean the file forthe Product, which is provided by DEPOMED to MOVA in accordance with theprocedures in Schedule A hereto which contains documents related to suchProduct, including but not limited to, the bulk drug specifications, theformulations, processing specifications, packaging specifications, packagingbills of material (BOMs), storage requirements, all environmental health andsafety information related to the Product, including material safety datasheets and finished product specifications that are set forth in Schedule Ahereto for Product manufacturing, packaging and testing, and any revisionsthereto. Specifications shall also include any specifications added to thisAgreement by mutual written agreement of the Parties during the term of thisAgreement.

“**USA**” shall mean the United States ofAmerica.

“**Year**” means a calendar year.

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**ARTICLE 2 – COMMERCIAL MANUFACTURINGSERVICES**

**2.1          Commercial Manufacturing**.Based upon the successfully completed technology transfer of the Product inaccordance with the provisions stated in the Proposal No.DPM-FCG1-1201-0206-R1, during the term of and subject to the terms andconditions of this Agreement, DEPOMED hereby grants MOVA the exclusive right tomanufacture and package DEPOMED’s requirements for [*  *  *]of the Product, and MOVA hereby agrees to timely manufacture and package suchrequirements of Product for DEPOMED.  Atsuch time as DEPOMED first seeks manufacturing services of a nature similar tothose provided by MOVA under this Agreement to meet the need for Product supplyin a country or geographical region, as the case may be, where Product has notpreviously been sold, DEPOMED shall offer to MOVA the opportunity to discussits capabilities relating to such supply outside [*  *  *]and to make a proposal to DEPOMED in such regard.

**2.2          Forecasts.**Manufacturing, packaging and delivery of Product to DEPOMED shall be conductedby MOVA in accordance with the following forecasting procedure. On or beforethe first day of each quarter during the term of this Agreement, DEPOMED agreesto provide MOVA with a written forecast of the required quantities for eachstrength and unit size of the Product, that DEPOMED expects to purchase duringeach of the next twelve (12) months commencing October 1, 2006 (“**Forecast**”). DEPOMED shall advise MOVA ofany significant changes in its estimated forecast of Products. Except asotherwise explicitly described herein, the quarterly Forecast shall benon-binding.  Notwithstanding theforegoing to the contrary, the initial Forecast shall be submitted to MOVA onor before June 15, 2006, and shall incorporate Product manufacture or to bemanufactured by MOVA under purchase orders submitted by DEPOMED to MOVA priorto or pending at the Effective Date.

**2.3          Purchase Orders.**During the term of this Agreement, not less than ninety (90) calendar daysprior to each requested delivery date, DEPOMED will provide MOVA with firmpurchase orders setting forth the quantities of Product ordered for each month(“**Purchase Order**”). The quantitiesindicated in the Purchase Order will be for not less than [*  *  *]and not more than [*  *  *] of the total number of units of Productforecasted for such month, as provided to MOVA in the last quarterly Forecastprior to the placement of the Purchase Order. Within ten (10) calendar daysfrom receipt of each Purchase Order, MOVA shall issue an order confirmation forsuch Purchase Order and shall notify DEPOMED of MOVA’s requirements for API tomanufacture and package the quantities covered by the Purchase Order and thecorresponding needs for each month of that quarter. **  **No Purchase Order,confirmation, shipping document or other document between the Parties shallsupplement or alter the terms set forth in this Agreement without the expresswritten consent of the Parties.

**2.4          Supply of Materials for CommercialManufacturing**. MOVA shall purchase all Materials, exceptthe Active Pharmaceutical Ingredient, required for the manufacture of

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Product fromDEPOMED’s approved vendors, or vendors mutually agreed to in writing by theParties. MOVA shall not change any vendors of packaging components or excipientmaterials without previous notification to and written approval from DEPOMED.MOVA shall be responsible for sampling, inspecting, testing and releasing allexcipient materials, packaging materials and labels for Product.

**2.5          Supply of Active PharmaceuticalIngredient.** Atleast forty-five (45) days prior to the start of each month,****DEPOMED shall furnish to MOVA at MOVA’splant in Caguas, Puerto Rico, the Active Pharmaceutical Ingredient [* * *], insuch quantities as are necessary to enable MOVA to manufacture and package therequired quantities of Product in accordance with the Specifications inSchedule A hereto. All shipments of Active Pharmaceutical Ingredient shall beaccompanied by a certificate of analysis from the Active PharmaceuticalIngredient manufacturer confirming the identity, purity and compliance with theActive Pharmaceutical Ingredient Specifications covering such ActivePharmaceutical Ingredient. MOVA shall verify the quantity of each ActivePharmaceutical Ingredient lot, and will release the supplied material based ontests of conformance detailed in the Specifications for Active PharmaceuticalIngredient approved by DEPOMED.** **The failure of DEPOMED to supplyAPI or any other item hereunder shall not give rise to a right to terminatethis Agreement or to any cause of action by MOVA, but shall stand as sufficientjustification for MOVA of its inability to deliver Product, without any furtherconsequences to MOVA, to the extent it is a direct result of such failure tosupply API by DEPOMED.

**2.6**  **Reliance by MOVA**

**2.6.1**       DEPOMEDacknowledges that MOVA will rely on the Forecast and the Purchase Orderssubmitted pursuant to Sections 2.2 and 2.3 in ordering the Materials requiredto meet such Purchase Orders.  Inaddition, DEPOMED understands that to ensure an orderly supply of suchMaterials it may be desirable for MOVA to purchase such Materials in sufficientvolumes to meet the production requirements for Products during the ensuing six(6) months of DEPOMED’s Forecast or to meet the production requirements of anylonger period agreed to by MOVA and DEPOMED. Accordingly, DEPOMED authorizes MOVA to purchase Materials in order tosatisfy the requirements for Products for the immediately following six monthscontemplated in the most recent Forecast provided by DEPOMED and agrees thatMOVA may make such other purchases of Materials to meet the Productrequirements during such longer periods as may be agreed to in writing fromtime to time by DEPOMED at the request of MOVA or DEPOMED.  If Materials ordered by MOVA pursuant to thePurchase Orders or this Section 2.6 are not included in finished Productsmanufactured for DEPOMED within six months after the forecasted month inrespect of which such purchases have been made (or such longer period as theparties may agree), or if such Materials have expired or become obsolete duringsuch period (subject to MOVA using the First -In /First -Out method ofaccounting for such Materials), then MOVA shall promptly notify DEPOMED, andDEPOMED shall pay MOVA its actual costs therefor (including all costs incurredby

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MOVA in connectionwith the purchase and handling of such Materials and MOVA shall ship suchMaterials to DEPOMED at DEPOMED’s request); provided, however, that (i) DEPOMEDshall have the option but not the obligation to take title to and possession ofall or any portion of such Materials by written notice to MOVA, in which caseMOVA shall cooperate with DEPOMED in the surrender, delivery and transfer ofsuch Materials as promptly as is commercially reasonable, with any shipping andrelated expenses to be borne by DEPOMED, or (ii) in the event such Materialsare incorporated into Products subsequently purchased by DEPOMED or into thirdparty products manufactured by MOVA and subsequently purchased by a thirdparty, DEPOMED will receive credit for any costs of such Materials previouslypaid to MOVA by DEPOMED. MOVA shall promptly notify DEPOMED of the identity ofany Materials which have been purchased pursuant to this Section 2.6.1 and havenot been used or since expired or become obsolete and the associated cost to beincurred.

**2.6.2**       MOVAshall provide DEPOMED, upon execution of this Agreement and thereafter on anannual basis, with a listing of all Materials which are unique to the Product,which MOVA anticipates purchasing pursuant to the terms of this Agreement (inaccordance with the Forecasts and Purchase Orders as per Section 2.2 and 2.3above, as set forth in Schedule H (the “**ExclusiveComponent Purchasing Summary**”). The Exclusive Components PurchasingSummary shall indicate which Materials have a limited shelf-life and which aresubject to minimum order quantities as specified by the supplier.  If such exclusive Materials, purchased inaccordance with this Section 2, have not been used within six months after theforecasted month in respect of which such purchases have been made (or suchlonger period as the parties may agree), or if such Materials have expired orbecome obsolete during such period, Depomed agrees that it shall reimburse MOVAfor the actual costs of such Materials, then MOVA shall promptly notifyDEPOMED, and DEPOMED shall pay MOVA its actual costs therefor (including allcosts incurred by MOVA in connection with the purchase and handling of suchMaterials and MOVA shall ship such Materials to DEPOMED at DEPOMED’s request);provided, however, that (i) DEPOMED shall have the option but not theobligation to take title to and possession of all or any portion of suchMaterials by written notice to MOVA, in which case MOVA shall cooperate withDEPOMED in the surrender, delivery and transfer of such Materials as promptlyas is commercially reasonable, with any shipping and related expenses to beborne by DEPOMED, or (ii) in the event such Materials are incorporated intoProducts subsequently purchased by DEPOMED, DEPOMED will receive credit for anycosts of such Materials previously paid to MOVA by DEPOMED.

**2.6.3      **Reimbursementby DEPOMED under this Section 2.6 shall be due, where applicable, within thirty(30) days of the annual reconciliation and calculation of such costs.  MOVA agrees that it shall provide pricinginformation sufficient to show the costs of such Materials, where reimbursementis requested by MOVA, at the request of DEPOMED.

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**ARTICLE 3 – DELIVERY AND TITLE**

**3.1          Shipment.**

**3.1.1**       MOVAshall deliver the Product, F.C.A., MOVA Facilities (Incoterms 2000)****and ship it at [* * *], in accordance withDEPOMED’s written routing orders to DEPOMED’s designated distribution centersor warehouses. The Product shall be shipped by MOVA under conditions consistentwith Product labeling, the Specifications and the type of transport to beestablished by DEPOMED. For each lot of Product shipped to DEPOMED by MOVA aCertificate of Analysis will be provided by MOVA. In addition, MOVA shallinclude a packing slip with each order shipped, copy of which will be providedto DEPOMED upon shipment of the Product to the designated distribution centersor warehouses. DEPOMED shall be responsible for all cost associated with thedelivery of the Product.

**3.1.2      **MOVAshall provide DEPOMED prompt written notice if MOVA becomes aware of anycircumstance that may render it unable to timely supply Product to DEPOMED. Inthe event there is a delay in the delivery of Product, the responsible Partythat has caused such delay shall be responsible for the cost of the premiumtime and shipping via an expedited routing.

**3.2          Title.** Titleand risk of loss to all API, all work in process to manufacture the Product,and all Product in the possession of, or under control or responsibility of,MOVA shall, at all times, remain in DEPOMED; provided, however, that, subjectto the provisions of Section 7.6, MOVA shall assume liability for any loss ordamage relating to the foregoing due to MOVA’s negligence or willfulmisconduct.

**ARTICLE4 – QUALITY**

**4.1          Quality Control.**MOVA shall ensure that all Product supplied to DEPOMED complies with theSpecifications and has been manufactured in accordance with cGMPs.  In addition, without limiting the foregoing,MOVA and DEPOMED shall comply with their respective obligations under theQuality Agreement.

**4.2          Stability Testing.**MOVA shall conduct stability testing services on the Product in accordance withthe protocols established in the Specifications and for the fees specified inSchedule D.

**4.3**          **TestReports and Certificates of Analysis.** Prior to delivery toDEPOMED or its designee, of each lot of Products supplied pursuant to thisAgreement, MOVA shall test the Product in accordance with the Specifications.Each test report shall set forth the items tested, the Specifications, and thetest results in a Certificate of Analysis for each batch or lot of Productdelivered. MOVA shall send such Certificate of Analysis to DEPOMED at the timeof the shipment of the Products to which it relates. With every

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shipment MOVAshall certify that each batch or lot has been manufactured and packaged inaccordance with cGMPs and with the Specifications.

**4.4          Modifications.**DEPOMEDwill inform MOVA in writing of any modifications required to the Specificationsin accordance with the procedure set forth in Schedule A. Any change in themanufacturing process by MOVA (such as changes in Specifications, raw materialtesting, quality controls, equipment, facilities, manufacture and/or packaging)shall be subject to DEPOMED ́s prior written approval.

**4.5          Deviations**.  MOVA will diligently track all deviationsassociated with the Product.  MOVA shallbe responsible for investigating, resolving, and documenting deviations fromBatch Records and Specifications and reporting on such matters to DEPOMEDpromptly and regularly.  MOVA will notifyDEPOMED of any Significant Deviations (as defined herein) within twenty-four(24) hours of occurrence according to written standard operating proceduresapproved in writing by DEPOMED.  MOVAshall ensure that appropriate investigations are conducted.  MOVA shall provide quality assurance approvalfor all investigations and corrective and preventive action plans, all of whichshall be shared in advance with DEPOMED and shall be subject to the reasonableapproval of DEPOMED.  For purposes ofthis Agreement a “**Significant Deviation**”shall mean any deviation: (i) resulting in an immediate or probablewide-ranging impact on GMP products, processes or systems in any facility whereactivities are conducted pursuant to this Agreement, (ii) which could result insignificant Product safety or efficacy risks (e.g., sterility failure or dataintegrity issues), (iii) which would require notification to a regulatoryauthority, or (iv) which would otherwise be considered by reasonable qualityassurance professionals to be significant.

**4.6          Rejection.**

**4.6.1** DEPOMED shall have thirty (30)calendar days following the date on which DEPOMED actually receives a shipmentof Product from MOVA to reject the same, because all or part of the shipmentfails to conform to cGMPs or the Specifications. For purposes of thisAgreement, no claims due to Latent Defects shall be made after six (6) monthsafter the expiration date of the Product. DEPOMED shall notify MOVA withinthirty (30) calendar days following discovery of any Latent Defect notdiscoverable upon reasonable physical inspection. MOVA shall not be heldresponsible for reasons related to the carrier; provided MOVA has packed andshipped in accordance with applicable Specifications and followed DEPOMED’sother shipping instructions. A shipment of Product shall not be deemed receiveduntil actual receipt by DEPOMED, or third parties designated by DEPOMED in thePurchase Order, of both the Product with the appropriate shipping documents,and copies of the complete certificates of analysis relating thereto including,but not limited to, certification of manufacture in compliance with cGMPs andincluding any deviation report.

**4.6.2** DEPOMED or its designee shall giveMOVA written notice (“**Deficiency Notice**”)of all claims for Products that fail to conform with the Specifications, cGMP’sor any Applicable Law. Should DEPOMED or its designee fail to provide MOVA with

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the DeficiencyNotice within the applicable thirty (30) days period, then the delivery shallbe deemed to have been accepted, provided however that the foregoing limitationshall not apply to Latent Defect claims. Any rejection shall be made effective by DEPOMED or its designee givingnotice to MOVA specifying the manner in which all or part of such shipment failedto meet the aforementioned requirements.

**4.6.3** Upon rejection of a shipment or lotof PRODUCT, DEPOMED or its designee may require at its option, rework inaccordance with procedures spelled out in the applicable NDA, destruction orreplacement of the shipment. Cost associated with such rework, destruction orreplacement of shipment shall be borne by the Party responsible.  MOVA shall be so responsible for only thosefailures due to its negligence or willful misconduct, whether such failure isdiscovered before or after shipping.  Forclarification purposes and by means of example, MOVA’s failure to follow theprotocols agreed to by the Parties, MOVA’s standard operating procedures,written instructions from DEPOMED not contrary to law, or cGMP regulationsshall be deemed to constitute negligence on the part of MOVA.

**4.6.4** If MOVA and DEPOMED fail to agree onthe cause for such Product failure, the dispute may be referred to a Laboratoryor an independent expert of recognized repute, as the case may be, pursuant toSection 4.7 herein, and the finding of such Laboratory or expert shall bedeterminative as to the cause for such failure. When there has been no definitive determination of the cause forfailure, whether following reasonable investigations by MOVA and DEPOMED orreferral of a dispute to the Laboratory or expert, each of MOVA and DEPOMEDshall bear their respective costs of such failure.  DEPOMED shall not be entitled to payment fromMOVA for lost raw materials and MOVA shall not be entitled to payment forservices in manufacturing such failed Product.

**4.6.5** If DEPOMED, due to the negligence orwillful misconduct of MOVA, rejects a shipment before the date on which paymenttherefor is due pursuant to Sections 5.1 and 5.2 hereof, DEPOMED may withholdpayment for that shipment or the rejected portion thereof. In the event thatDEPOMED, due to the negligence or willful misconduct of MOVA, rejects ashipment or portion thereof within such thirty (30) calendar day period butafter payment therefor has been made, DEPOMED shall be entitled to recoup thepayment amount by, at DEPOMED’s election, MOVA issuing a prompt refund orDEPOMED offsetting such amount against the payment of future invoices forshipments of Product that may become due hereunder. Payments for all shipmentsor portions thereof that DEPOMED rejects but, did not have the right to reject,shall be paid to MOVA within fifteen (15) calendar days following the date onwhich such determination is made and DEPOMED shall bear the responsibility forany costs incurred by MOVA as a consequence of such rejection, including thedestruction of the rejected lots.

**4.6.6** Notwithstanding the foregoing, MOVAshall not destroy any rejected lots as to which there exists a dispute untilsuch dispute has been resolved.  DEPOMED’sexclusive remedies under this Agreement for the delivery of Product notconforming to the Specifications, delivered without the required documentation,or not manufactured in

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accordance withcGMPs shall be as set forth in this Article 4, Section 8.1, Section 10.3, andSection 10.7.

**4.7          Disputes.**Notwithstandinganything in this Agreement to the contrary, if MOVA disputes DEPOMED’s right toreject all or part of any shipment of the Product pursuant to the provisions ofSection 4.5 hereof, and such dispute is not resolved by mutual agreement of theParties within sixty (60) calendar days, such dispute if related to ananalytical result shall be resolved by the determination of a laboratoryapproved by both MOVA and DEPOMED that is compliant with FDA guidelines andregulations or if relating to another item of compliance with theSpecifications, an independent expert of recognized repute within the UnitedStates pharmaceutical industry, as applicable, mutually agreed upon by theParties (the “**Laboratory**”), theappointment of which shall not be unreasonably withheld or delayed by eitherParty. The determination of the Laboratory shall be final and binding upon theParties. The fees and expenses of the Laboratory making the determination aswell as all costs relating to the supply of defective Product shall be paid bythe Party against whom the determination is made.

**4.8**          **DefectiveActive Pharmaceutical Ingredient**.****In the event that the Laboratory or MOVA determines that thefailure of Product to meet Specifications is due to a defect in API that couldnot have been reasonably discovered using the testing methods set forth in theSpecifications, and contemplated by, this Agreement, MOVA shall be entitled tothe Production Fees (as defined in Section 5.1) for (i) such finished Product,and (ii) the costs of the testing methods employed by MOVA to determine thedefect in the API.

**4.9          Access to MOVA Facilities byDEPOMED Representatives.** Upon reasonable advance notice,MOVA shall permit DEPOMED representatives to enter MOVA’s plant during regularbusiness hours for the purpose of making quality control inspections of thefacilities used in the manufacture of Product for DEPOMED, during the period ofsuch use. Any DEPOMED representatives shall be advised of the confidentialityobligations of Article 6 and shall follow such security and facility accessprocedures as are reasonably designated by MOVA. MOVA may require that at alltimes the DEPOMED representative be accompanied by a MOVA representative and thatthe DEPOMED representative not enter areas of the facility used in productionof the Product at times other than when the production is occurring to assureprotection of MOVA or third party confidential information.

**4.10****                        ActivePharmaceutical Ingredient Yield Calculation.**

(a)           **Reporting**.  MOVA shall provide DEPOMED with a monthlyinventory report, within four (4) business days after the end of each month, ofthe API held by MOVA in accordance with the inventory report form annexedhereto as Schedule F, which shall contain the following information for suchmonth:

“**Quantity Received**”****shall mean the total quantity of API thatcomplies with the applicable Specifications for the API when received at theMOVA Facility.

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“**Quantity Dispensed**”****shall mean the total quantity of APIdispensed at the MOVA Facility during the applicable period.  The Quantity Dispensed is calculated byadding the Quantity Received to the existing inventory of API that complied withthe Specifications for API upon receipt by MOVA and is held at the beginning ofthe applicable period, less the inventory of API that is held at the end ofsuch period.  The Quantity Dispensedshall only include API received and dispensed in connection with commercial manufacturingof Products and, for certainty, shall not include any (i) API that must beretained by MOVA as samples pursuant to this Agreement, the Quality Agreementor applicable regulatory requirements, (ii) API contained in Product that mustbe retained as samples pursuant to this Agreement, the Quality Agreement orapplicable regulatory requirements, (iii) API used in connection with testingby or on behalf of MOVA or DEPOMED in the performance of this Agreement or theQuality Agreement (if applicable) and (iv) API dispensed in connection withtechnical transfer activities or development activities during the applicableperiod, including, without limitation, any regulatory, stability, validation ortest batches manufactured during the applicable period and required in theperformance of this Agreement, the Quality Agreement or pursuant to ApplicableLaw.

“**Quantity Converted**”****shall mean the total amount of APIcontained in the Products produced with the Quantity Dispensed and delivered toDEPOMED and not rejected, recalled or returned in accordance with Section 4.6or Article 8 as a result of a failure by MOVA to provide manufacturing servicesin accordance with this Agreement, the Quality Agreement, the Specifications,and Applicable Law.

Within 60 days after the end of each Year, MOVAshall prepare an annual reconciliation of API in accordance with thereconciliation report form annexed hereto as Schedule G including thecalculation of the “**Actual Annual Yield**”or “**AAY**” for the Product at theMOVA Facility during the Year. AAY is the percentage of the Quantity Dispensedthat was converted to Products delivered and is calculated as follows:

| Quantity Converted during  the Year |   | x      |   | 100    | %      |
|-------------------------------------|--------|--------|--------|--------|--------|
| Quantity Dispensed during the Year  |   |   |   |   |   |

 

The Parties agree that the target yield inrespect of such Product at the MOVA Facility (the “**Target Yield**”) is equal to [*  *  * ].  MOVA shall maintain Actual Annual Yieldlevels for each Product equal to or above the applicable Target Yield.

(b)           **ShortfallCalculation**.  If theActual Annual Yield falls below the respective Target Yield in a Year, then theshortfall for such Year (the “**Shortfall**”)shall be determined based on the following calculation:

[(TargetYield – AAY] * API Credit Value * Quantity Dispensed

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The Shortfall shall be disclosed by MOVA on thereconciliation report prepared in the form annexed hereto as Schedule G.

(c)           **Credit**.   If there is a Shortfall for a Product in aYear, then MOVA shall credit DEPOMED’s account for the amount of any suchShortfall not later than 60 days after the end of each Year.  Each credit under this Section 4.10 shall besummarized on the reconciliation report prepared in the form annexed hereto asSchedule G and shall be made in accordance with Section 5.2.  Upon expiration or termination of thisAgreement any remaining credit amount owing under this Section 4.10 shall bereimbursed to DEPOMED by payment thereof to DEPOMED.

(d)           **MaximumCredit**.  Notwithstandingthe following provisions of this Section 4.10, MOVA’s liability for APIcalculated in accordance with this Section 4.10 for any Product in a Year shallnot exceed, in the aggregate, the Maximum Credit Value set forth in Schedule Ehereto.

**ARTICLE5 – PRODUCTION FEES AND PAYMENT**

**5.1          Production Fees.**DEPOMED shall pay MOVA for manufacturing finished Product in accordance withthe fees set forth in Schedule B hereto (“**ProductionFee(s)**”). [*  *  *].

**5.2          Invoices.**

**5.2.1      **MOVAshall invoice DEPOMED for the Production Fees on or after MOVA ships thesubject Product and sends the manufacturing and testing records and deviationreport, if any, for each lot of Product to DEPOMED. All invoices shall be dueand payable within thirty (30) calendar days after the receipt of the invoice.If DEPOMED disagrees for any reason with the amount of any invoice submitted byMOVA, DEPOMED shall notify MOVA of such disagreement within thirty (30) calendardays after receipt of such invoice, and the Parties shall promptly attempt toresolve the difference. Any portion of the invoiced amount that is not indispute shall be paid within thirty (30) calendar days after the original dateof receipt of the invoice.

**5.2.2** In the event that any Productmanufactured in accordance with DEPOMED ́s orders cannot be recommended fordisposition by MOVA for a period of thirty (30) calendar days followingcompletion of manufacturing and such delay arises from cause(s) which have beenestablished to be other than the negligent or willful misconduct of MOVA orMOVA’s failure to fully comply with the manufacturing protocols and GMPs, MOVAmay upon the expiration of such thirty (30) day period invoice DEPOMED for theapplicable  Production Fees and suchinvoice shall be due according to Section 5.2 hereof.

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**5.3**          **Adjustmentsfor changes in the U.S. Producer Price Index**. The ProductionFees shall be adjusted [*  *  *]. In addition, the Production Fee shall beadjusted [*  *  *].

**5.4          Adjustments for Cost of Materials.** At any time during aYear when MOVA determines that its actual cost of Materials used in themanufacture of Product has increased or decreased in excess of [*  *  *]of the per unit prices set forth on Schedule B (or otherwise established) foreither or both bulk and bottled Product, the price per unit of Product soaffected shall be adjusted to give effect to the actual increase in cost orsavings in the cost of Materials in excess of [*  *  *].  MOVA shall make such calculation on a per lotbasis, but shall convert such calculation into the units expressed on ScheduleB for proper comparison.  Such newlycalculated prices shall take effect with the first lot of Material soaffected.  Any such adjusted price shallremain in effect until next adjusted.  Noadjustment shall be made in any Year when increases or decreases in the actualcost of Materials do not exceed [* *  *], as described above.  In support of any adjustment to the prices ofProduct to DEPOMED made pursuant to this Section 5.3, MOVA shall disclose inwriting to DEPOMED the costs of Materials before and after such adjustment.  MOVA shall keep complete and accurate recordsof such costs and shall allow DEPOMED or its representatives to audit suchrecords.** **MOVA shall use its best efforts to keep the cost of Materialsat current or lower levels while utilizing only those vendors approved byDEPOMED.  Any adjustment pursuant to thisSection 5.4 shall be taken into consideration when calculating any price adjustment pursuant to Section 5.3 so as notto cause a multiple increase.

**5.5****         AdjustmentsDue to Technical Changes**.  In the event that there are changes in laws or regulations, cGMPs, theSpecifications  or the Quality Agreementin a manner that increases or decreases, in the aggregate, the manufacturingcost on a per lot basis by more than [* *  *] of the per unit price toDEPOMED, the entire corresponding change on a per unit price to DEPOMED shallbe made to the Production Fees set forth in Schedule B, any other relevantdocument and the related schedules shall be revised.  Any changes subject to this Section 5.5 shallbe implemented after a technical review and prior approval by the Parties.

**5.6          Multi-CountryManufacturing Services**. If and when DEPOMED decides tohave MOVA provide manufacturing services with respect to the Product forcountries outside the USA, then MOVA shall prepare a quotation forconsideration by DEPOMED for the additional costs, if any, and the change overthe Production Fees for the Product destined for each new country. The agreednew Product requirements and related costs and changes over the Production Feesshall be set out in an amendment to this Agreement.  If MOVA comes to manufacture Product forcountries outside the USA, by undertaking such activity it hereby representsand warrants that all such Product shall be manufactured, stored, handled, andshipped in compliance with all Applicable Law where such Product is destined.

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**5.7          VolumeReduction**.  If atany time during the term of this Agreement the annual volume order by DEPOMEDfalls below five (5) million tablets, then MOVA shall be entitled to request anadjustment to the Production Fees with respect to the Product to reflect theincreased costs that MOVA will incur as a result of the reduced volumes.  To the extent that the Production Fee hasbeen previously adjusted pursuant to this Section 5.7 to reflect reducedvolumes, the adjustment provided for shall operate based on the fees attributedto such Product at the time the last of such adjustments were made, includingany other applicable price adjustments in accordance with this Article 5.

**ARTICLE6 – CONFIDENTIAL INFORMATION**

**6.1          Confidentiality.**Any information or data (including but not limited to technical information,experience, or data) regarding either Party’s formulations, plans, programs,plants, process, technical materials, products, production requirements,standard specifications, costs, equipment, operations, procedures, instructionsor customers (all of which is herein referred to as “**Confidential Information**”) is the sole property of eachrespective Party. Each Party shall treat the other Party’s ConfidentialInformation in the same protective manner that it treats its own ConfidentialInformation. Except as provided herein, the Parties shall not during the termof this Agreement and for a period of five (5) years from the date oftermination of expiration of this Agreement, use, or disclose to others, orpermit their employees or agents to use or disclose to others ConfidentialInformation which has heretofore come or hereafter may come within theknowledge of, or which has been or may hereafter be acquired or developed bythe respective Party, its employees or agents, in the performance of anyservices hereunder.  For the avoidance ofdoubt, manufacturing processes, analytical methods used in the manufacture ofProduct and test results shall be the Confidential Information of DEPOMED.  This paragraph shall not prevent either Partyfrom using or disclosing to others information:

(a)           that is known to the receiving Partyat the time it is disclosed by or obtained from the disclosing Party, whichknowledge can be established by competent evidence; or

(b)           that is in the public domain at thetime of disclosure, or through no fault of the receiving Party becomesavailable to the public;

(c)           that lawfully becomes available to thereceiving Party from a source other than the disclosing Party;

(d)           that a Party can prove by writtenrecords dated prior to the date of disclosures hereunder that such informationwas independently developed by persons not engaged in activities hereunder andwithout regard to any information conveyed hereunder or arising in connectionherewith; or

(e)           is required by law or court order ora judicial or administrative agency of competent jurisdiction to be disclosed,after maximum practicable notice by the receiving

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Party to thedisclosing Party, provided that in each case the receiving Party shall use itsbest efforts to limit such disclosure and maintain the confidentiality of suchConfidential Information to the extent possible; or

(f)            that is needed to be disclosed forthe sole purpose of carrying out the responsibilities and obligations of thisAgreement.

**6.2          Obligations Upon Termination.**Upon termination of this Agreement, if requested, the receiving Party shalldeliver to the disclosing Party all notes, drawings, blueprints, manuals,letters, notebooks, reports and other materials of or pertaining to theConfidential Information, including all copies thereof, and all otherConfidential Information that is in the possession of or under the control ofthe receiving Party, except for one copy which shall be maintained in the filesof counsel for the sole purpose of assuring compliance with the continuingconfidentiality obligations under this Agreement.

**6.3          Access Restriction.**The Parties shall restrict access to Confidential Information to as few aspracticable of their employees and agents, and in all cases shall restrict suchknowledge to only those employees and agents who are directly connected withthe performance of the services hereunder.

**6.4          Equitable and other InjunctiveRelief. **TheParties acknowledge and agree that disclosure, distribution, use or any otherhandling of the Confidential Information contrary to the terms of thisAgreement will cause irreparable harm to the Party owning such ConfidentialInformation for which damages at law will not provide an adequate remedy.  The Parties agree that the provisions of thisArticle 6 may be specifically enforced in addition to any and all otherremedies available at law or in equity.

**ARTICLE7 – INDEMNIFICATION**

**7.1          Indemnification by DEPOMED.**DEPOMEDshall indemnify, defend and hold MOVA, its Affiliates and their respectivedirectors, officers, employees and agents harmless from and against all claims,causes of action, suits, costs and expenses (including reasonable attorney’sfees), losses or liabilities of any kind asserted by third persons (except tothe extent due to a negligent or willful act or omission of an indemnifiedparty) that arise out of or are attributable to:

(i)any material breach of this Agreement by DEPOMED; or

(ii)any negligence or willful misconduct on the part of DEPOMED, its employees,agents or representatives; or

(iii)any violation by DEPOMED of any Intellectual Property rights, including but notlimited to, patent rights or any property rights of any third party related tothe Product, except where such violation is attributable to MOVA.

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**7.2          Indemnification by MOVA.**MOVAshall indemnify, defend and hold DEPOMED, its Affiliates and their respectivedirectors, officers, employees and agents harmless from and against all claims,causes of action, suits, costs and expenses (including reasonable attorney’sfees), losses or liabilities of any kind asserted by third persons (except tothe extent due to a negligent or willful act or omission of an indemnifiedparty) that arise out of or are attributable to:

(i)any material breach of this Agreement by MOVA; or

(ii)any negligence or willful misconduct on the part of MOVA, its employees, agentsor representatives; or

(iii)any violation by MOVA of any Intellectual Property rights, including but notlimited to, patent rights or any property rights of any third party related tothe Product, except where such violation is attributable to DEPOMED.

**7.3**         **Consequential Damages**. Under nocircumstances whatsoever shall either Party be liable to the other in contract,tort, negligence, breach of statutory duty or otherwise for (i) any (direct orindirect) loss of profits, of production, of anticipated savings, of businessor goodwill or (ii) any other liability, damage, costs or expense of any kindincurred by the other Party of an indirect or consequential nature, regardlessof any notice of the possibility of such damages.  The foregoing shall not be construed to limitpayment of any amount due pursuant to either Section 7.1 or Section 7.2.

**7.4          Indemnification Procedures**.Each Party shall notify the other promptly of any threatened or pending claimor proceeding covered by any of the above Sections in this Article 7 and shallinclude sufficient information to enable the other Party to assess the facts.Each Party shall cooperate fully with the other Party in the defense of allsuch claims. No settlement or compromise shall be binding on a Party heretowithout its prior written consent, whereas such consent shall not beunreasonably withheld or delayed.  Theindemnitee, its Affiliates and their respective directors, officers, employeesand agents shall cooperate fully with the indemnitor and its legalrepresentatives in the investigation and defense of any claim, lawsuit or otheraction covered by this indemnification, all at the reasonable expense of theindemnitor.  The indemnitee shall havethe right, but not the obligation, to be represented by counsel of its ownselection and expense.

**7.5          Insurance.**During the term of this Agreement, each Party shall maintain adequate productliability insurance. During the term of this Agreement, MOVA and DEPOMED shalleach maintain comprehensive general liability insurance, including productliability. At the time of first commercial sale of Product manufacturedpursuant to this Agreement, the insurance afforded by the Parties shall beprimary insurance with minimum limits of [* *  *] per occurrence

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and an annual aggregateamount of****[* *  *]. Such insurance shall not becancelled or modified without providing the other Party at least thirty (30)calendar days prior written notice. If requested each Party will provide theother with a certificate of insurance evidencing the above and showing the nameof the issuing company, the policy number, the effective date, the expirationdate and the limits of liability.   If aParty is unable to maintain the insurance policies required under thisAgreement through no fault on the part of such Party, then such Party shallforthwith notify the other Party in writing and the Parties shall in good faithnegotiate appropriate amendments to the insurance provision of this Agreementin order to provide adequate assurances.

**7.6****                ****Limitation of Liability****.**

**7.6.1**       API.  Except as expressly set forth in Section 4.10hereof (including with respect to API lost or damaged due to MOVA’s negligenceor willful misconduct under no circumstances shall MOVA be responsible for anyloss or damage to the API)MOVA’s maximum liability for loss or damage to APIshall not exceed the Maximum Credit Value in any Year.  The parties agree that MOVA’s maximumliability for API under this Section 7.6.1 shall be in addition to anyliability of MOVA for other matters pursuant to Section 7.6.3.

**7.6.2      **ProductClaims.   Unless MOVA has failed toprovide the manufacturing services hereunder in accordance with theSpecifications, cGMPs, Applicable Law or Section 14.1 of this Agreement,  MOVA shall not be liable nor have anyresponsibility for any deficiencies in, or other liabilities associated with,any Product manufactured by it, including, without limitation, the costs andexpenses of any Recall (collectively, “**ProductClaims**”). For greater certainty, MOVA shall have no obligation forany Product Claims to the extent such Product Claim (i) is caused bydeficiencies with respect to the setting of the Specifications, the inherentsafety, efficacy or marketability of the Products or any distribution thereof,(ii) results from a defect in Materials that is not reasonably discoverable byMOVA using the test methods set forth in the Specifications, (iii) results froma defect in the API or Materials supplied by DEPOMED that is not reasonablydiscoverable by MOVA using the test methods set forth in the Specifications,(iv) is caused by actions of third parties occurring after such Product isshipped by  MOVA pursuant to Section 3.1;(v) is due to packaging or labeling defects or omissions for which MOVA has noresponsibility, or (vi) is due to any other breach by DEPOMED of itsobligations under this Agreement.  Forgreater certainty, if failure by MOVA to provide the manufacturing serviceshereunder in accordance with the Specifications, cGMPs, Applicable Law orSection 14.1 of this Agreement which gives rise to a Product Claim, then MOVA’sobligations under this Section 7.6.2 shall not be subject to the maximumliability limitation set forth in Section 7.6.3.

**7.6.3**       MaximumLiability. Except as set forth in Sections 7.6.1, 7.6.2, and excluding MOVA’sliability for replacement Product under Article 4, MOVA’s maximum liabilityunder this Agreement for any reason whatsoever, shall not exceed in a

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Year, in theaggregate the greater of $500,000 or 35 % of the purchase price for Productarising from Purchase Orders submitted in such Year up to a cap of $2,500,000in any Year.

**ARTICLE8 – RECALLS**

**8.1          Recalls.**Inthe event (i) any Authority issues a request, directive or order that theProduct be recalled, or (ii) a court of competent jurisdiction orders such arecall, or (iii) DEPOMED reasonably determines that the Product should berecalled, the Parties shall take all appropriate corrective actions.

**8.1.1**       Inthe event that such Recall results from the manufacture, packaging, storage,testing and handling of the Product by MOVA and such recall or event is due toMOVA’s failure to provide the manufacturing services hereunder in accordancewith the Specifications, and Applicable Law, as determined by the Laboratory,MOVA shall be responsible for the documented out-of-pocket expenses of suchRecall or return and shall use its commercially reasonable efforts to replacethe recalled or returned Products with new Products contingent upon the receiptfrom Depomed of all API required for the manufacture of such replacementProduct.  For greater certainty, MOVA’sresponsibility for any loss of API in connection with the recalled Productshall be subject to the limitation set forth in Section 7.6.1.  In the event that MOVA is unable to replacethe recalled or returned Products, then DEPOMED may request MOVA to reimburseDEPOMED for the Production Fees paid to MOVA with respect to the recalled Products. In all other circumstances, Recalls, returns or other corrective actionsshall be made at DEPOMED’s cost and expense. For the purposes of thisAgreement, the expenses of Recall shall include, without limitation, theexpenses of notification and destruction or return of the recalled Product, andDEPOMED’s costs for the Product recalled. Marketing and advertising expensesassociated with the goodwill of the Product subject to the recall shall not beincluded as an expense of recall and shall, in all instances, be borne byDEPOMED. The remedies set forth above shall constitute the sole remedy of eachParty under this Section 8.1.

**8.1.2** MOVA shall have no obligationpursuant to Section 8.1 above to the extent such claim (i) is caused bydeficiencies with respect to the setting of the Specifications, the inherentsafety, efficacy or marketability of the Products or any distribution thereof,(ii) results from a defect in Materials that is not reasonably discoverable byMOVA using the test methods set forth in the Specifications, (iii) results froma defect in the API or Materials supplied by DEPOMED that is not reasonablydiscoverable by MOVA using the test methods set forth in the Specifications,(iv) is caused by actions of third parties occurring after such Product isshipped by  MOVA pursuant to Section 3.1;(v) is due to packaging or labeling defects or omissions for which MOVA has noresponsibility, or (vi) is due to any other breach by DEPOMED of itsobligations under this Agreement.

**8.2          Recall Coordination.**Allcoordination of any recall or field correction activities involving Productshall be handled by DEPOMED, but MOVA shall reasonably cooperate with DEPOMEDin accomplishing any of the foregoing actions.

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**8.3          Recall Records.** Each of the Parties shall maintain completeand accurate recall records of all the Product sold by it for such periods asmay be required by Applicable Law, but in no event less than three (3) yearsafter the date of the recall. Each party shall promptly notify the other by telephone(to be confirmed in writing) of any information which might affect themarketability, safety or effectiveness of the Products and/or which mightresult in the Recall or seizure of the Products.  Upon receiving any such notice or upon anysuch discovery, each party shall cease and desist from further shipments ofsuch Products in its possession or control until a decision has been madewhether a Recall or some other corrective action is necessary.  The decision to initiate a Recall or to takesome other corrective action, if any, shall be made and implemented byDEPOMED.  “**Recall**” shall mean any action (i) by the Client to recovertitle to or possession of quantities of the Products sold or shipped to thirdparties (including, without limitation, the voluntary withdrawal of Productsfrom the market); or (ii) by any regulatory authorities to detain or destroyany of the Products.  Recall shall alsoinclude any action by either party to refrain from selling or shippingquantities of the Products to third parties which would have been subject to aRecall if sold or shipped.

**8.4          Disputes.**Anydisputes, as between MOVA and DEPOMED, with regards to the quality of theProduct shall be handled according to the provisions stated in Section 4.7 ofthis Agreement.

**ARTICLE9 – RECORDS AND AUDITS**

**9.1          Records and Retained Samples.**During the term hereof, MOVA shall (i) prepare and maintain Batch Records and(ii) retain samples, properly stored, from each lot or batch of Productssupplied by MOVA hereunder, sufficient to perform each quality control testspecified in the Specifications at least twice. DEPOMED agrees to provide forsuch purpose all the information, processes, analytical methods, testingprocedures, and any other information reasonably requested by MOVA and in thepossession of DEPOMED necessary for manufacturing the Product in accordancewith cGMPs. MOVA agrees to provide DEPOMED upon release and delivery of theProduct, copies of the analytical testing data such as Certificate of Analysis.MOVA agrees to provide DEPOMED copies of its executed Batch Records and relateddocuments. Such records shall be available for audit by DEPOMED, and itsdesignates, as well as FDA and foreign regulatory agencies, upon request. MOVAshall store the manufacture and analysis documentation for each batch ofPRODUCT for the shelf life period of the respective batch and for two (2) yearsthereafter.

**9.2          Quarterly Review**.Each party shall forthwith upon execution of this Agreement appoint one of itsemployees to be a relationship manager responsible for liaison between theparties.  The relationship managers shallmeet not less than quarterly, whether in person, by means of video conference,telephone or such other agreed upon means of communication, to review thecurrent status of the business relationship and manage any issues that havearisen.

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**ARTICLE10 – TERM AND TERMINATION**

**10.1        Term.** Subjectto the termination provisions of Section 10.3, the initial term of thisAgreement shall commence on the Effective Date and shall end on the fifth (5th) anniversary from regulatoryapproval of the first dosage form of the Product at MOVA’s Facilities, the (“**Initial Term**”). Thereafter, this Agreementshall be automatically renewed for an additional term of two (2) years unlessone Party gives notice to terminate twelve (12) months prior to the expirationof the Initial Term or any extension thereof.

**10.2        Termination due to Market Conditions;Early Termination by Depomed.**

(a)           At any time****after a period of two (2) years from the Effective Date,DEPOMED shall be entitled to terminate this Agreement, upon one hundred andeighty (180) days written notice to MOVA, if due to market conditions, theProduct becomes commercially unfeasible and DEPOMED discontinues selling theProduct. If DEPOMED subsequently elects to resume commercializing the Product,this Agreement shall once again take effect between the Parties, and theParties shall meet in good faith to determine the procedure to follow in orderfor DEPOMED to resume the purchase of Product from MOVA and MOVA resume thesupply of Product to DEPOMED.

**10.3        Termination.**This Agreement may be terminated under the conditions stated herein:

(a)           by either Party by giving the otherParty written notice thereof if the other Party fails to remedy and make goodany breach in the performance of any condition or obligation under thisAgreement after ninety (90) calendar days of the date of a written notice ofbreach is sent to the breaching Party thereof, or if such breach cannot bereasonably remedied within such ninety (90) calendar day period; the Party indefault diligently commences and continues to remedy such breach; or

(b)           by DEPOMED by giving MOVA writtennotice of a breach of the Quality Agreement if MOVA fails to remedy and makegood any breach in the performance of any condition or obligation under theQuality Agreement after ninety (90) calendar days of the date of a writtennotice of breach is sent to the breaching Party thereof, or if such breachcannot be reasonably remedied within such ninety (90) calendar day period;

(c)           by either Party if the other Party isdeclared insolvent or bankrupt by a court of competent jurisdiction, or avoluntary petition of bankruptcy is filed in any court of competentjurisdiction by the other Party, or the other Party makes or executes anyassignment for the benefit of creditors.

(d)           by DEPOMED, immediately, by givingMOVA written notice of such termination as a result of any debarment, whetheractual or threatened, or any conviction which could result in debarment,whether it does so in fact or not; provided that if such circumstance relatesto an individual, MOVA may avoid such termination by the

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immediate removalof such person from all tasks performed pursuant to this Agreement andreplacement of such person by another qualified person.

**10.4        Effect of Termination.**Upontermination of this Agreement for any reason MOVA shall furnish to DEPOMED acomplete inventory of all stock on hand of work-in-progress for the manufactureof the Product and finished Product. Unless otherwise agreed to between theParties, all stock on hand as of the effective date of termination of thisAgreement shall be dealt with promptly as follows:

(a)           Product manufactured and packagedpursuant to Purchase Orders from DEPOMED shall be delivered by MOVA to DEPOMED,whereupon DEPOMED shall pay MOVA therefor in accordance with the terms hereof;

(b)           Work-in-progress commenced by MOVAagainst Purchase Orders from DEPOMED shall be completed by MOVA and deliveredto DEPOMED, whereupon DEPOMED shall pay MOVA therefor in accordance with theterms hereof; and (c)               Materialsnot necessary to complete 10.3(b) above but having been ordered or purchased byMOVA in accordance with DEPOMED ́S then current twelve (12) months rollingforecast shall be disposed of by MOVA or returned to DEPOMED at DEPOMED’soption and expense. If MOVA terminates this Agreement under Section 10.3(a)herein, DEPOMED shall reimburse MOVA for MOVA’s actual cost of such rawmaterials purchased by MOVA in order to fulfill DEPOMED ́s then current twelve(12) months rolling forecast. Additionally, DEPOMED shall reimburse MOVA forany fees charged to MOVA for the termination of such supply contracts for rawmaterials which MOVA can only use for the manufacture of Products. In all otherevents of termination and without prejudice to the above mentioned, the Partyhaving given reason to the termination shall bear the costs of disposal of rawmaterials and Active Pharmaceutical Ingredient. Any credit balance owed to DEPOMED after application to amounts due toMOVA shall be promptly paid to DEPOMED.

**10.5        No Discharge of Obligations.**Termination of this Agreement for any reason shall not discharge either Party’sliability for obligations incurred hereunder and amounts unpaid at the time ofsuch termination.

**10.6        Tooling.** Uponany termination, MOVA shall after consultation with and upon request by DEPOMEDdeliver to DEPOMED or a third party designated by DEPOMED all tooling andequipment purchased and for which DEPOMED has remitted payment to MOVA, withdelivery costs to be borne by DEPOMED.

**10.7**        **Conversionto Non-Exclusive Rights**. In the event that MOVA fails to deliverat least [*  *  *] of the Product volume per order for [*  *  *]consecutive months or [*  *  *] of the sum of the Product ordered duringsuch [*  *  *] consecutive months (provided, thatMOVA shall not be deemed to have failed to deliver any Product during acalendar

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month, if deliveryof such Product occurs within five business days of the confirmed deliverydate), for reasons other than those related to: (i) DEPOMED, including, failureto diligently place the corresponding purchase orders; (ii) DEPOMED’s failureto provide the Specifications or supplying Active Pharmaceutical Ingredient; or(ii) due to a Force Majeure Event (which shall be governed by Article 17); theexclusive manufacturing right granted to MOVA in Section 2.1 of this Agreementshall immediately, and with notice to MOVA, become non-exclusive entitlingDEPOMED to place orders for the greater of (a) [*  *  *],or (b) the quantity of Product not delivered by MOVA, provided however, thatthe requirements for Product will be adjusted to at least [*  *  *]of its total requirements for Product at the later of (x) thirty (30) daysafter MOVA has demonstrated to DEPOMED’s reasonable satisfaction that it iscapable of meeting such requirements and (y) subject to fulfillment by DEPOMEDof any reasonable Product volume purchase requirement in any secondary suppliercontract into which DEPOMED has entered.   If DEPOMED exercises its right to use an alternative supplier hereunder,MOVA shall cooperate in good faith with DEPOMED’s reasonable requests relatingto the provision of the Specifications, SOPs, analytical tests, procedures andall other applicable documents to the alternative supplier(s) designated byDEPOMED, which shall be entitled to use the same for DEPOMED.  The foregoing conversion shall not apply inthe event that the reason for the delay or shortfall was due to a failure ofsupply of API by, or other fault of, DEPOMED. Promptly following execution anddelivery of this Agreement, MOVA shall propose a disaster recovery planaddressing catastrophic loss of its ability to perform hereunder, with suchplan to focus on minimizing interruption of supply to DEPOMED.  Such plan shall be subject to the reasonableagreement of the Parties.

**10.8        Second Source. **DEPOMED shall be entitledto qualify a second source for Product manufacture and related activitiesprovided, however, that upon such qualification DEPOMED shall not purchase morethan an amount estimated in good faith to be [* *  *] of its annual requirementsof Product from such source during the term of this Agreement. The partiesagree that DEPOMED will consider in good faith any proposal from Patheon Inc.or any of its Affiliates to become DEPOMED’s second source supplier.  The implementation of this Section 10.8 shallnot limit DEPOMED’s rights under Section 10.7. DEPOMED’s rights pursuant to Sections 10.7 and 10.8 shall be cumulativeand not in substitution for each other. The manufacturing party used pursuant to Section 10.7 may be the secondsource qualified by DEPOMED pursuant to this Section 10.8, a differentmanufacturer, or DEPOMED itself.  MOVAshall provide reasonable assistance to DEPOMED in qualifying a second sourcepursuant to this Section 10.8.

**ARTICLE11 – REGULATORY MATTERS**

**11.1        Regulatory Filings.**DEPOMED shall be responsible for preparing and submitting all documentsnecessary for maintaining the NDA including without limitation adverse drugreaction reports and annual reports. MOVA shall use best efforts to assistDEPOMED in complying with any arising requirements of the FDA and any

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other regulatoryauthorities. MOVA agrees to comply with all reasonable commitments made in theNDA and any supplement thereto regarding MOVA’s manufacturing responsibilitiesas directed herein, provided that MOVA is notified of such responsibilities andgiven an opportunity to review such commitments with sufficient time prior totheir being included in the submitted document by DEPOMED and provided they arenot inconsistent with the then applicable Specifications. Any incremental costsas a result of the above are subject to the price adjustments as provided inSection 5.3 herein.

**11.2        Compliance.**DEPOMED shall be responsible for compliance of the Specifications (includingbut not limited to the text and accuracy of any labeling required by DEPOMED)with FDA standards. MOVA shall be responsible for compliance of themanufacturing, processing, packaging procedures and testing procedures with FDAstandards, including those pertaining to cGMPs. Each Party will providereasonable assistance to the other, at no charge, if necessary to respond toFDA audits, inspections, inquiries or requests concerning the Product. DEPOMEDemployees present at the facility shall at all times adhere to safetyregulations, cGMPs and work schedule generally applicable to MOVA’s ownemployees, provided that such DEPOMED employees are notified of the same.

**11.3        Adverse Events Reporting and ProductInformation Requests.**

(a)           Adverse Reaction Reporting. Duringthe term of this Agreement, MOVA shall immediately but in any case withintwenty-four (24) hours notify DEPOMED, by facsimile or telephone, of anyadverse drug experience involving the Product that a responsible employee ofMOVA becomes aware of.

(b)           Product Information Requests.Information concerning any complaints, inquiries and/or drug informationrequests from consumers, physicians, or other third parties regarding theProduct shall be forwarded to DEPOMED within twenty-four (24) hours of MOVA’sreceipt of the information and/or inquiry. DEPOMED shall respond to suchcomplaints and inquiries, if necessary, in accordance with its usual andcustomary procedures. DEPOMED shall supply MOVA, for MOVA’s informationpurposes only, with copies of its standard response information for the Productas well as any updates thereto.

(c)           Governmental Reports. DEPOMED shallbe responsible for filing with the FDA any required adverse reaction reportsthat it receives directly from third parties and any adverse reaction reportsthat it receives through MOVA.

**11.4        Cooperation.**TheParties expect that any information concerning the Product required by the FDAwill be submitted by DEPOMED. If MOVA is required to submit to the FDA anyinformation concerning the Product as part of a FDA inspection or audit inconnection with the manufacture of the Product, DEPOMED will provide to MOVAsuch documentation, data and other information as MOVA may require forsubmission to the FDA. DEPOMED shall also provide, if required by the FDA,information concerning its

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quality controlprocedures and marketing of the Product and any other information reasonablyrequested by FDA. DEPOMED shall provide its reasonable cooperation andconsultation to MOVA in addressing any issue raised by FDA concerningmanufacture of the Product.

**11.5        Compliance Audits.**MOVAshall permit representatives of DEPOMED to conduct audits to confirm MOVA’scompliance with cGMPs and Specifications upon reasonable advance notice andsubject to the provisions of Article 6. MOVA shall notify DEPOMED withintwenty-four (24) hours after it receives notice of an FDA audit or inspectioninvolving the Product, any component thereof, or any portion of MOVA’s facilityused or likely to be used in connection with the activities of MOVA to beconducted under this Agreement, and shall allow DEPOMED to be present and toparticipate in any such inspection.  Ineach such case, whether or not DEPOMED attended such audit or inspection provideto DEPOMED copies of any resulting document of action (FDA Form 483 inspectionobservation report, regulatory letters, etc.) resulting from these audits,which pertains to the Product, any component thereof, or any portion of MOVA’sfacility used or likely to be used in connection with the activities of MOVA tobe conducted under this Agreement, within two (2) calendar days after receipt.Should either MOVA or DEPOMED receive any such document of action, it shall sonotify the other within two (2) business days after receipt and shall provideto the other an opportunity to the extent feasible under the circumstances, toprovide input to any response to any such document of action.

**ARTICLE12 – INTELLECTUAL PROPERTY**

**12.1        Trademarks and Labeling.**MOVAshall affix labeling to the Product as specified in the Specifications. Thatlabeling shall bear one or more trademarks to be designated by DEPOMED. Nothingcontained herein shall give MOVA any right to use any DEPOMED trademark excepton Product for DEPOMED, and MOVA shall not obtain any right, title or interestin any DEPOMED trademark by virtue of this Agreement or its performance ofservices hereunder.

**12.2        Inventions.**

(a)           For the term of this Agreement,DEPOMED hereby grants MOVA a non-exclusive, paid-up, royalty-free,non-transferable license to DEPOMED’s Intellectual Property which MOVA must usein order to perform the manufacturing services under this Agreement.

(b)           All Intellectual Property generatedor derived by MOVA in the course of performing the manufacturing services, tothe extent it is specific to or is based or relies upon the development,manufacture, use and sale of the Product, shall be the exclusive property ofDEPOMED.

(c)            All Intellectual Property generated or derived by MOVA in the course ofperforming the manufacturing services which is not specific to, or based or reliant upon,

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theProduct and which has application to manufacturing processes or formulationdevelopment of drug products or drug delivery systems generally shall be theexclusive property of MOVA (the “**Broader IntellectualProperty Rights**”).  MOVAhereby grants DEPOMED, a non-exclusive, paid-up, royalty-free, transferablelicense of MOVA’s Broader Intellectual Property Rights which DEPOMED may usefor the manufacture of the Product.

(d)           Each Party shall be solelyresponsible for the costs of filing, prosecution and maintenance of patents andpatent applications owned by it.

(e)           Each Party shall give the other Partywritten notice, as promptly as practicable, of all Inventions which canreasonably be deemed to constitute improvements or other modifications of theProducts or processes or technology owned or otherwise controlled by such Partyand a subject matter of this Agreement.

(f)            All rights and licenses grantedunder or pursuant to this Agreement by either Party are, and shall otherwise bedeemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code oranalogous provisions of Applicable Law outside the United States, licenses ofright to “intellectual property” as defined under Section 101 of the U.S.Bankruptcy Code or analogous provisions of Applicable Law outside the UnitedStates (hereinafter “**IP**”).  The Parties agree that each of them , aslicensee of such rights under this Agreement, shall retain and may fullyexercise all of its rights and elections under the U.S. Bankruptcy Code or anyother provisions of Applicable Law outside the United States that providesimilar protection for IP.  The Partiesfurther agree that, in the event of the commencement of a bankruptcy proceedingby or against MOVA under the U.S. Bankruptcy Code or analogous provisions ofApplicable Law outside the United States, DEPOMED shall be entitled to acomplete duplicate of (or complete access to, as appropriate) any such IP andall embodiments of such IP, which, if not already in DEPOMED’s possession,shall be promptly delivered to it upon DEPOMED’s written request therefor.

**12.3        Intellectual Property**.  Subject to Section 12.2, all DEPOMED’sIntellectual Property shall be owned by DEPOMED and all MOVA IntellectualProperty shall be owned by MOVA.  NeitherParty has, nor shall it acquire, any interest in any of the other Party’sIntellectual Property unless otherwise expressly agreed to in writing.  Neither Party shall use any IntellectualProperty of the other Party, except as specifically authorized by the otherParty or as required for the performance of its obligations under thisAgreement.

**ARTICLE13 – RELATIONSHIP OF PARTIES**

**13.1        Independent Contractors.**It is not the intent of the Parties hereto to form any partnership or jointventure. Each Party shall, in relation to its obligations hereunder, act as anindependent contractor, and nothing in this Agreement shall be construed togive such Party the power or authority to act for, bind or commit the otherParty in any way whatsoever.

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**13.2        Public Statements.**MOVAand DEPOMED each agree not to disclose the terms of this Agreement in anypublic statements, whether oral or written, including but not limited toshareholder reports, communications with stock market analysts, statements toother customers or prospective customers, press releases or othercommunications with the media, or prospectuses, without the other Party’s priorwritten consent, which shall not be unreasonably withheld or delayed, or asrequired by Applicable Law. If possible, each Party shall give the other atleast five (5) calendar days advance written notice of a disclosure required byApplicable Law and will cooperate with the other Party to minimize the scopeand content of such disclosure.

**ARTICLE14 – WARRANTIES**

**14.1        MOVA’s Warranty.**MOVAhereby represents and warrants as follows:

(a)           The Product shall conform with theSpecifications as set out in Schedule A at the time of delivery to a commoncarrier pursuant to Section 3.1.

(b)           MOVA shall comply in all materialrespects with Applicable Law.  Forpurposes of this Section 15.1(b), and without limiting the foregoing sentence,any failure to comply with any Applicable Law that exposes DEPOMED to anysanction or liability, or prevents DEPOMED from using the Product as intended,shall be deemed to be a material noncompliance.

(c)           MOVA shall maintain all requiredgovernmental permits, licenses, orders, applications and approvals regardingthe manufacturing of the Product, and MOVA shall manufacture Product in accordancewith all such permits, licenses, orders, applications and approvals. Anyexpenses incurred to obtain special permits for Product that MOVA would nothave to acquire absent this Agreement will be reimbursed by DEPOMED.

(d)           Product shall, at the time it isshipped to DEPOMED (i) not be adulterated or misbranded within the meaning ofthe Act, or within the meaning of any applicable State or municipal laws in theU.S.A. and (ii) not be articles that may not, under the Act or any otherApplicable Law, be introduced into interstate commerce.

(e)MOVA has full authority to enter into this Agreement, that it has no reason tobelieve that its performance under this Agreement will infringe any third partyrights and that nothing contained in any other agreement prohibits or restrictsMOVA from entering into any part of this Agreement.

(f)            MOVA represents as of the date ofthis Agreement and continuously during the term of this Agreement that it andits employees, affiliates, and agents have never been (i) debarred or (ii)convicted of a crime for which a person can be debarred, under Section 335(a)or 335(b) of the Federal Food, Drug, and Cosmetic Act (“**Section 335(a) or (b)**”).  MOVA represents that it has never been and,to the best of its knowledge after due inquiry, none of its employees,Affiliates, or agents has ever been (i) threatened to be debarred or (ii)indicted for a crime or otherwise engaged in conduct for

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which a person canbe debarred, under Section 335(a) or (b). MOVA agrees that it will promptly notify DEPOMED in the event of anysuch debarment, conviction, threat, or indictment.

**14.2        DEPOMED’s Warranty.**DEPOMEDhereby represents and warrants as follows:

(a)           The Active Pharmaceutical Ingredientshall, to the best of DEPOMED’s knowledge, at the time it is shipped to MOVA,(i) not be adulterated or misbranded within the meaning of the Act or withinthe meaning of any other Applicable Law in which the definitions ofadulteration and misbranding are substantially the same as those contained in theAct; (ii) not be articles that may not, under the Act or any other ApplicableLaw, statute or regulation, be introduced into interstate commerce, (iii)comply with its specifications as provided by DEPOMED and (iv) to the best ofDEPOMED’s knowledge, the use of the Active Pharmaceutical Ingredient for themanufacture of the Product does not infringe third party intellectualproperty  rights.

(b)           As of the time that any Productproduced hereunder is sold, DEPOMED will own all rights to the Product trademarksand the Product labeling will meet regulatory requirements.

(c)           The manufacture, marketing and saleof the Product by or on behalf of DEPOMED or its customers shall not, to thebest of DEPOMED’s knowledge, infringe any patent, trademark, trade secret orother proprietary right of any third person.

(d)           the Specifications for the Productare its or its Affiliate’s property, or it or its Affiliates have the right touse the same, or such Specifications are in the public domain, and that DEPOMEDmay lawfully disclose the Specifications to MOVA ;

(e)           the Specifications for the Productare consistent with the NDA for the Product;

(f)            the Product is the subject of an NDAapproved by the U.S.A. Food and Drug Administration;

(g)           Specifications for the Product conformto all applicable cGMPs and Applicable Law;

(h)           the Products, if labeled andmanufactured in accordance with the Specifications and in compliance withApplicable Law, including, without limitation cGMPs, (i) may be lawfully soldand distributed in every jurisdiction in which DEPOMED markets such Products,(ii) will be fit for the purpose intended, and (iii) will be safe for humanconsumption;

(i)DEPOMED has full authority to enter into this Agreement and that nothingcontained in any other agreement prohibits or restricts DEPOMED from enteringinto any part of this Agreement.

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(k)           All material safety data sheets andother raw material, Active Pharmaceutical Ingredient or any data supplied byDEPOMED to MOVA are accurate to the best of DEPOMED’s knowledge. The Partiesunderstand that MOVA will not do analysis to verify the accuracy of suchDEPOMED supplied data.

**14.3        No Implied Warranties.**EXCEPTAS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, MOVA AND DEPOMED MAKE NOREPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS ORIMPLIED, INCLUDING, IN THE CASE OF MOVA, ANY EXPRESS OR IMPLIED WARRANTIES OFMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

**ARTICLE15 – ASSIGNMENT**

Exceptas set forth in this Article, this Agreement, and all rights and obligationshereunder, are personal to MOVA and shall not be assigned in whole or in partby MOVA to any other person or company without the prior written consent ofDEPOMED, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, MOVA shall beentitled to assign this Agreement to an Affiliate whose performance isguaranteed by MOVA or to a party which is the successor to, or the assignee of,all or substantially all of MOVA’s pharmaceutical business; provided, however,that any such successor or assignee has agreed in writing to assume all of MOVA’sobligations under this Agreement. DEPOMED may, without the consent of MOVA, assign this Agreementprovided, however, that DEPOMED shall give prior written notice of any assignmentto MOVA. Any assignee of DEPOMED to which it has sold or licensed rights tomanufacture, market or sell the Product in the Territory, which has assumed allof DEPOMED’s obligations hereunder  mustbe qualified and shall have (i) a financial condition at the time of assignmentat least comparable to that of DEPOMED as of the Effective Date, and (ii) hasneither been debarred by the FDA nor is otherwise subject to an order of theFDA or a court of competent jurisdiction which would prevent it from performingthe obligations of DEPOMED hereunder.  Inthe event of any assignment pursuant to the provisions of this Article, theassigning Party shall have no further obligations hereunder except:  (i) to the extent the same has accrued priorto such assignment or (ii) pursuant to the guarantee obligation set forthabove.  The terms and conditions of thisAgreement shall be binding upon, and shall inure to the benefit of, the Partieshereto and their respective successors and permitted assigns.

**ARTICLE16 – GOVERNING LAW AND DISPUTE RESOLUTION**

Anycontroversy, claim or dispute arising out of or relating to this Agreement orthe breach thereof shall be settled, if possible, through good faithnegotiation between the Parties. Such good faith negotiations shall commencepromptly upon a Party’s receipt of notice of any claim or dispute from theother Party and continue for a period of sixty (60) calendar days.

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Ifsuch efforts are not successful, such controversy, claim or dispute relatingto, arising out of, or in any way connected with this Agreement or any term orcondition hereof, or the performance by either Party of its obligationshereunder, whether before or after termination of this Agreement, except asotherwise expressly provided in this Agreement, shall be finally resolved bybinding arbitration. Whenever a Party shall decide to institute arbitrationproceedings, it shall give written notice to that effect to the other Party.This Agreement shall be governed by and construed in accordance with the lawsof the Commonwealth of Puerto Rico without reference to any rules of conflictsof law or renvoi. Disputes shall be resolved through arbitration before three(3) arbitrators. Such arbitration shall take place in the vicinity of thenon-triggering Party, and shall proceed in accordance with the CommercialArbitration Rules of the American Arbitration Association (“**AAA**”). Within seven (7) calendar  days of either Party making a demand forarbitration (or longer if the Parties so agree), DEPOMED and MOVA shall each selectone (1) arbitrator. A third arbitrator shall be selected by the arbitratorsselected by the Parties within thirty (30) calendar days of the demand forarbitration. In the event that either Party shall fail to appoint itsarbitrator, or the two arbitrators selected by the Parties fail to appoint thethird arbitrator, in either case within the prescribed time period, then eitherParty may apply to the AAA for the appointment of such arbitrator. Thedetermination of a majority of the panel of arbitrators shall be the decisionof the arbitrators and shall be binding regardless of whether one of theParties fails or refuses to participate in the arbitration; said determinationshall be enforceable by any court of competent jurisdiction. Each Party shall payfor the arbitrator it selects with the cost of the third arbitrator being splitequally between the Parties. All other costs shall also be split equallybetween the Parties. Either Party may enter any arbitration award in any courthaving jurisdiction or may make application to any such court for a judicialacceptance of the award and order of enforcement, as the case may be. TheParties’ agreement to submit to arbitration referred to herein shall in no wayprevent either Party from exercising its right to terminate this Agreementconsistent with the terms herein.

**ARTICLE17 – FORCE MAJEURE**

NeitherParty shall be liable to the other for default or delay in the performance ofits obligations under this Agreement, if such default or delay shall be causeddirectly or indirectly by accident, fire, flood, riot, war, weather, act ofGod, embargo, strike, failure or delay of usual sources of supply of materials,or delay of carriers or governmental orders or regulations, or complete orpartial shutdown of plant by any of the foregoing causes or other causes beyondits reasonable control, provided the same are not due to the negligence orwillful misconduct of such Party and provided further that any such default,delay or failure shall be remedied by such Party as soon as possible after theremoval of the cause of such default, failure or delay. Obligations to payamounts due under this Agreement shall not be subject to the forestatedexcuses.  If due to force majeure MOVA isunable to supply DEPOMED with the Product for a period exceeding one hundredand twenty (120) days then DEPOMED shall have the right to terminate thisAgreement without further cost and with immediate effect and upon writtennotice to MOVA.  At the end of the firstsixty (60) days during the persistence of the force majeure event MOVA shallreasonably determine whether it will be able to resume supplying Product at theend

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of such onehundred and twenty (120) days period and notify DEPOMED in writing of suchassessment.  If MOVA has concluded thatit will be unable to resume supplying Product at the end of such period,DEPOMED shall have the right to terminate this Agreement upon thirty (30) dayswritten notice to MOVA without further cost. MOVA will provide reasonable assistance during the technology transferfor the Product upon termination due to force majeure.

**ARTICLE18 – NOTICES**

Unlessotherwise provided herein, any notice required or permitted to be givenhereunder or any proposal for any modification of this Agreement (hereinaftercollectively referred to as the “**Correspondence**”)shall be faxed, mailed by overnight mail, mailed by certified mail, postageprepaid, or delivered by hand to the Party or the individual to whom suchCorrespondence is required or permitted to be given hereunder. If mailed, anysuch Correspondence shall be deemed to have been given five (5) business daysfrom the date mailed, as evidenced by the postmark at the point of mailing. Ifdelivered by hand or fax, any such Correspondence shall be deemed to have beengiven when received by the Party to whom such Correspondence is given, asevidenced by written and dated receipt of the receiving Party.

AllCorrespondence to MOVA shall be addressed as follows:
|                 |   | MOVA Pharmaceutical Corporation                 |
|-----------------|--------|-------------------------------------------------|
|            |   | P.O. Box 8639                                   |
|            |   | Caguas, Puerto Rico 00726                       |
|            |   | Attention: President                            |
|            |   | Facsimile: (787) 258-1794                       |
|            |   |                                            |
| with a copy to: |   | Patheon, Inc.                                   |
|            |   | 7070 Mississauga Road, Suite 350                |
|            |   | Mississauga ON      L5N 7J8 |
|            |   | Attention:    General Counsel         |
|            |   | Facsimile: (905) 812-6613                       |

 

AllCorrespondence to DEPOMED shall be addressed as follows:
|        |   | Depomed, Inc.                         |
|--------|--------|---------------------------------------|
|   |   | 1360 O’Brien Drive               |
|   |   | Menlo Park, California  94025    |
|   |   | Attention: Vice President, Operations |
|   |   | Facsimile: (650) 462-9993             |

 
| with a copy to: |   | Heller Ehrman LLP                          |
|-----------------|--------|--------------------------------------------|
|            |   | 4350 La JollaVillage Drive, 7th Floor      |
|            |   | San Diego, California  92122          |
|            |   | Attention:   Richard A. Kaufman, Esq. |

 

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|  |   | Facsimile:   (858) 450-8499 |
|--|--------|----------------------------------|

 

EitherParty may change the address to which any correspondence to it is to beaddressed by notification to the other Party as provided herein.

**ARTICLE19 – CAPTIONS**

Thecaptions in this Agreement are solely for convenience of reference and shallnot be used for purposes of interpreting or construing the provisions hereof.

**ARTICLE20 – SEVERABILITY**

Shouldany part or provision of this Agreement be held unenforceable or in conflictwith Applicable Law, the invalid or unenforceable part or provision shall bereplaced with a provision that accomplishes, to the extent possible, theoriginal business purpose of such part or provision in a valid and enforceablemanner, and the remainder of this Agreement shall remain binding upon theParties hereto.

**ARTICLE21 – WAIVER**

Nofailure on the part of either Party hereto to exercise, and no delay inexercising, any right, privilege or power hereunder shall operate as a waiveror relinquishment of the provision giving rise thereto; nor shall any single orpartial exercise by either Party hereto of any right, privilege or powerhereunder preclude any other further exercise thereof, or the exercise of anyother right, privilege or power.

**ARTICLE22 – SURVIVAL**

Theprovisions of Articles 1, 6 through 9, Sections 10.4, 10.5, 10.6, 10.7, 11.4,11.5, Articles 12 through 13, 17 through 22 and 23 shall survive thetermination or expiration of this Agreement.

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**ARTICLE23 – ENTIRE AGREEMENT**

ThisAgreement, together with the Schedules hereto constitute the complete andexclusive Agreement between the Parties hereto with reference to the subjectmatter hereof, and no statement or agreements, oral or written, made prior toor at the signing hereof shall vary or modify the written terms hereof, andneither Party shall claim any modification or rescission from any provisionhereof unless such modification or rescission is in writing, signed by theother Party.

INWITNESS WHEREOF, the Parties have caused this Agreement to be executed by theirrespective duly authorized representatives as of the day and year first abovewritten.
| MOVA Pharmaceutical  Corporation | DEPOMED, Inc.        |
|----------------------------------|----------------------|
|                             |                 |
| By:_                             | /s/ Michael  Harding |   | By: |  /s/ John N. Shell |
| Name: Michael  Harding           | Name: John N. Shell  |
| Title: COO                       | Title: VP Operations |
| Date: June 13,  2006             | Date: June 19, 2006  |
|                                  |                      |  |  |  |

 

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**ScheduleA**

**Specifications**

Prior to thecommencement of the commercial manufacturing of the Product under thisAgreement DEPOMED shall provide MOVA with copies of such portion of theSpecifications as are contained in the NDA for the Product. If the Specificationsprovided are subsequently amended, the DEPOMED shall provide MOVA with suchrevised Specifications. Upon acceptance of the revised Specifications MOVAshall provide DEPOMED with a signed and dated receipt evidencing suchacceptance of the revised Specifications.

**ScheduleB**

**CommercialProduction Fees**

**1.****                                      Perunit prices**

A.  The prices of Product are as follows:

[*  *  *]

[*  *  *]

[*  *  *]

[*  *  *]

[*  *  *]

[*  *  *]

**2.****                                      PriceAdjustments**

[*  *  *]

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* * * Portions of thispage have been omitted pursuant to a request for Confidential Treatment andfiled separately with the Commission.

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**ScheduleC**

**QualityAgreement**

**TO BEATTACHED AS SOON AS PRACTICABLE**

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**ScheduleD**

**StabilityTesting Fees**

**1.  Stability Annual Fee**

The Stability Annual Feewill be [*  *  *].

**2.****                                      PriceAdjustments**

[*  *  *]

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* * * Portions of thispage have been omitted pursuant to a request for Confidential Treatment andfiled separately with the Commission.

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**ScheduleE**

**API CREDIT  VALUEand MAXIMUM CREDIT VALUE**

The API Credit Value and MaximumCredit Value shall be as follows:
| [* * *] | [* * *] | [* * *] | [* * *] |
|---------|---------|---------|---------|
| [* * *] | [* * *] | [* * *] | [* * *] |

 

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* * * Portions of thispage have been omitted pursuant to a request for Confidential Treatment andfiled separately with the Commission.

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**ScheduleF**

**MONTHLYACTIVE MATERIALS INVENTORY REPORT**

TO:                                                                            DEPOMEDINC.

FROM:                                                         MOVA PHARMACEUTICAL CORPORATION

RE:                                                                            API monthly inventory report pursuant toSection 4.10 of the Commercial Manufacturing Agreement dated (the “Agreement”)
| Reporting month:                        |   |   |   |
|-----------------------------------------|--------|--------|--------|
|                                    |   |   |   |
| API on hand                             |   |   |   |
| at beginning of month:                  |   | kg     | (A)    |
|                                    |   |   |   |
| API on hand                             |   |   |   |
| at end of month:                        |   | kg     | (B)    |
|                                    |   |   |   |
| Quantity Received during month:         |   | kg     | (C)    |
|                                    |   |   |   |
| Quantity Dispensed (1) during month:    |   | kg     |   |
| (A + C – B)                        |   |   |   |
|                                    |   |   |   |
| Quantity Converted during month:        |   | kg     |   |
| (total API in Products produced         |   |   |   |
| and not rejected, recalled or returned) |   |   |   |

 

Capitalizedterms used in this report have the meanings given to such terms in theAgreement.
| MOVA Pharmaceutical  Corporation | DATE:  |   |   |
|----------------------------------|--------|--------|--------|
|                             |   |
| Per:                             |   |   |   |
| Name:                            |   |
| Title:                           |   |
|                                  |        |        |        |  |  |

 

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(1)Excludes any (i) API that must be retained by MOVA as samples, (ii) APIcontained in Product that must be retained as samples, (iii) API used inconnection with testing (if applicable) and (iv) API received or consumed inconnection with technical transfer activities or development activities,including, without limitation, any regulatory, stability, validation or testbatches manufactured during the month

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**SCHEDULEG**

**REPORTOF ANNUAL ACTIVE MATERIALS INVENTORY RECONCILIATION AND CALCULATION OF ACTUALANNUAL YIELD**

TO:                                                                            DEPOMED INC.

FROM:                                                       MOVA Pharmaceutical Corporation

RE:                                                                            API annual inventory reconciliation reportand calculation of Actual Annual Yield pursuant to Section 4.10 of theCommercial Supply Agreement dated • (the “Agreement”)
| Reporting Year ending:                  |   |   |   |   |
|-----------------------------------------|--------|--------|--------|--------|
|                                    |   |   |   |   |
| API on hand                             |   |   |   |   |
| at beginning of Year:                   |   |   | kg     | (A)    |
|                                    |   |   |   |   |
| API on hand                             |   |   |   |   |
| at end of Year:                         |   |   | kg     | (B)    |
|                                    |   |   |   |   |
| Quantity Received during Year:          |   |   | kg     | (C)    |
|                                    |   |   |   |   |
| Quantity Dispensed (2) during Year:     |   |   | kg     | (D)    |
| (A + C - B)                             |   |   |   |   |
|                                    |   |   |   |   |
| Quantity Converted during Year:         |   |   | kg     | (E)    |
| (total API in Products produced         |   |   |   |   |
| and not rejected, recalled or returned) |   |   |   |   |
|                                    |   |   |   |   |
| API Credit Value:                       | $      |   |   | / kg   | (F) |
|                                    |   |   |   |   |
| Target Yield:                           |   |   | %      | (G)    |
|                                    |   |   |   |   |
| Actual Annual Yield:                    |   |   | %      | (H)    |
| ((E ∕D) * 100)                    |   |   |   |   |
|                                         |        |        |        |        |  |

** **

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(2) Excludes any (i) APIthat must be retained by MOVA as samples, (ii) API contained in Product thatmust be retained as samples, (iii) API used in connection with testing (ifapplicable) and (iv) API received or consumed in connection with technicaltransfer activities or development activities, including, without limitation,any regulatory, stability, validation or test batches manufactured during theYear.

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**SCHEDULEH**

**EXCLUSIVECOMPONENT PURCHASING SUMMARY**

[*  *  *]

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* * * Portions of thispage have been omitted pursuant to a request for Confidential Treatment andfiled separately with the Commission.

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