Exhibit 10.8


 


AMENDMENT NO. 1 TO


COMMON STOCK PURCHASE AGREEMENT


 


This
AMENDMENT NO. 1 (the “First  Amendment”) to that certain Common Stock
Purchase Agreement,  dated December 11,
2006 (the “Agreement”),
by and between Depomed, Inc., a 
Delaware corporation (the “Company”), and Azimuth Opportunity Ltd., an
international business company incorporated under the laws of the British
Virgin Islands (the “Investor”),
is entered into as of August 8, 2008 (the “First
Amendment Date”). Capitalized terms
not otherwise defined herein shall have the meaning set forth in the Agreement.


 


RECITALS


 


WHEREAS, Section 7.1 of the Agreement provides in part
that, unless earlier terminated, the Agreement shall terminate automatically on
the earliest of (i) the first day of the month next following the 24-month
anniversary of the Effective Date (the “Investment Period”), (ii) the
date that the aggregate dollar amount of Shares registered under the
Registration Statement have been issued and sold and (iii) the date the
Investor shall have purchased the Total Commitment of shares of Common Stock
(subject in all cases to the Trading Market Limit);


 


WHEREAS, the Agreement remains in full force and effect;


 


WHEREAS, Section 9.3 of the Agreement provides that
the Agreement may be amended by a written instrument signed by the Company and
the Investor; and


 


WHEREAS, the Company and the Investor now desire to amend
the Agreement as set forth herein.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the
Agreement and this First Amendment, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:


 


1.             Amendment of Section 7.1.  Effective as of the First Amendment Date, Section 7.1
of the Agreement shall be amended to replace the first sentence thereof with
the following:


 


     “Unless earlier terminated as provided
hereunder, this Agreement shall terminate automatically on the earliest of (i) the
first day of the month next following the 48-month anniversary of the Effective
Date (the “Investment Period”), (ii) the date that the aggregate
dollar amount of Shares registered under the Registration Statement have been
issued and sold and (iii) the date the Investor shall have purchased the
Total Commitment of shares of Common Stock (subject in all cases to the Trading
Market Limit).”


 


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2.             Continuing Effect of Agreement.  Except as expressly set forth in this First Amendment,
all other provisions of the Agreement remain in full force and effect.


 


3.             Governing
Law.  This First Amendment shall be governed by and
construed in accordance with the internal procedure and substantive laws of the
State of New York, without giving effect to the choice of law provisions of
such state.


 


4.             Counterparts. 
This First Amendment may be executed in counterparts, all of which taken
together shall constitute one and the same original and binding instrument and
shall become effective when all counterparts have been signed by each party and
delivered to the other parties hereto, it being understood that all parties
hereto need not sign the same counterpart.


 


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IN WITNESS WHEREOF, the parties hereto have
caused this AMENDMENT NO. 1 TO THE AGREEMENT
to be executed and delivered as of the First Amendment Date.


 


	
   

  	
  Company:
  DEPOMED, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Matthew M. Gosling

  
	
   

  	
   

  	
  Name:
  Matthew M. Gosling

  
	
   

  	
   

  	
  Title:
  Vice President and General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Investor:
  AZIMUTH OPPORTUNITY LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dierdre M. McCoy

  
	
   

  	
   

  	
  Name:
  Dierdre M. McCoy

  
	
   

  	
   

  	
  Title:
  Corporate Secretary

  



 


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