**Exhibit 10.1**

 

**AMENDMENT TO AMENDED**

**AND RESTATED PROMOTION AGREEMENT**

 

ThisAmendment to Amended and Restated Promotion Agreement (this “Amendment”) ismade as of February 16, 2009.

 

**BY ANDBETWEEN:**

 

**Depomed, Inc.**, a Californiacorporation having its principal place of business at 1360 O’Brien Drive, MenloPark, CA 94025 (hereafter “Depomed”),

 

**AND:**

 

**WatsonPharma, Inc.**, a Delaware corporation having its principal placeof business at 360 Mount Kemble Avenue, Morristown, NJ 07960 (hereafter “Watson”).

 

**WITNESSETH:**

 

**WHEREAS**, Watson and Depomed(hereafter “the Parties”) entered into an Amended and Restated PromotionAgreement on September 18, 2007 (the “Agreement”), whereby Depomed engagedWatson to promote and market Proquin® XR (“Product”)in the U.S. and its territories (“Territory”);

 

**WHEREAS**, the Partiesnow wish to further amend the Agreement pursuant to the conditions set forth herein.

 

**NOWTHEREFORE**, it is mutually agreed as follows:

 

**1.             Section 4.1 ProductPromotion.**  Subsections (h) through(j) shall be replaced in their entirety with the following newsubsections:

 

“(h)         During the Agreement Quarter beginningon January 1, 2009, Watson shall perform a minimum of 10,000 P2 Detailsand 6,000 sample calls to Professionals on the Watson Physician List withinboth the Urology Field and Ob/GYN Field, which are current prescribers of theProduct.”

 

“(i)          During each of the Agreement Quartersbeginning on April 1, 2009 and ending December 31, 2009, Watson shallperform a minimum of 6,000 sample calls to Professionals on the WatsonPhysician List.”

 

“(j)          [Intentionally omitted]”

 

**2.             Section 6.1 Obligations ofDepomed**.  This Section shallbe replaced in its entirety with the following:

 

“6.1         [Intentionally Omitted]”

 

**3.             Section 6.3 VolumeForecasts.**  This Section shallbe replaced in its entirety with the following:

 

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“6.3         **Volume Forecasts. **From and after February 1, 2009,neither Party shall have any obligations under this Agreement in respect of theVolume Forecast.”

 

**4.             Section 6.5 Samples.  **The following subsectionshall be inserted as subsection (d):

 

“(d)         The Parties hereby agree that Watsonshall not pay for any further Samples after it receives its final order of approximately93,000 Samples, which is expected to be delivered to Watson in February 2009. Unless otherwise instructed by Depomed,Watson shall endeavor to allocate its supply of Samples among the 10,000 P2Details and 24,000 sample calls to be delivered pursuant to Section 4.1(h) and4.1(i).  Once Watson has exhausted itsinventory of Samples, Depomed shall bear all expenses related to providingfurther Samples to Watson for distribution by Watson’s Sales Representativesthroughout the remainder of the Initial Term. Watson will retain responsibilityand sole expense for distributing such Samples to its Sales Representatives, aswell as, securing the return, disposal and reconciliation from any discontinuedSales Representatives throughout the remainder of the Initial Term.  At Depomed’s request, any Samples remaining atthe end of the Initial Term will either be returned to Depomed or disposed of byWatson at Watson’s sole cost and expense; provided, however, that (i) anySamples not paid for by Watson as contemplated by this Section or (ii) anySamples paid for by Watson and in its possession as of an Early Terminationnotice by Depomed pursuant to Section 8.2, shall be returned to Depomed ordisposed of by Watson at Depomed’s sole cost and expense.”

 

**5.             Section 7.1 Promotion Fees**.  The first sentence shall be replaced in itsentirety with the following sentence:

 

“(a) Inconsideration for Watson’s performance of its obligations under this Agreement,for each Agreement Quarter beginning with the Agreement Quarter ending on December 31,2007, through the Agreement Quarter ending December 31, 2008, Depomedshall pay promotion fees (the “promotion Fees”) in an amount equal to 65% ofthe Field Gross Margin for such Agreement Quarter.  For any period beginning on or after January 1,2009, Depomed shall have no obligation to (i) pay promotion fees to Watsonpursuant to Section 7.1(a), (ii) provide Watson with the reportdescribed in Section 7.1(b), or (iii) maintain or make availablerecords pursuant to Section 7.2.”

 

**6.             Section 8.1 Term.**  This Section shall be restated andreplaced in its entirety with the following:

 

“Section 8.1           **Term.** Theterm of this Agreement shall commence on the Initial Effective Date and shallcontinue, unless terminated sooner in accordance with this Article VIII,until December 31, 2009 (the “**Initial Term**”).”

 

**7.             Section 8.2****Early Termination. **This Section shall be restated andreplaced in its entirety with the following:

 

“Section 8.2           **Early Termination. **Depomed may terminate this Agreement upon10 days’ written notice to Watson.”

 

**8.             Section 8.7 (d) Effectof Termination.  **To the end ofthis Section, insert the following:

 

“Inaddition, upon the expiration or termination of this Agreement, Depomed shallcease all use of any Watson Trademarks listed in Schedule 1.92 in theTerritory.”

 

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**9.             Section 8.7 Effect ofTermination. **To the end ofthis Section, insert the following new sections:

 

“(e)         Upon the expiration or termination ofthis Agreement, each party agrees not to engage in any form of conduct, or makeany statements or representations related to this Agreement or the relationshipbetween the Parties that disparage or otherwise harm the other party’sreputation, good will or commercial interest.”

 

“(f)          Upon the expiration or termination ofthis Agreement, Watson shall provide Depomed with the Watson Physician List,which Watson Physician List may be used solely for the purpose of promoting theProduct.”

 

“(g)         During the Initial Term, if requestedby Depomed, Watson shall make available to Depomed for consultation (in anaggregate amount not to exceed more than 15 hours per month) representatives ofWatson responsible for the Promotion of the Product for the purpose ofresponding to inquiries and requests for information related to Watson’sPromotion of the Product under this Agreement, in order to facilitate theorderly transition of Promotion of the Product to Depomed or a Third Party.”

 

Exceptas specifically amended by this Amendment, all terms and conditions of theAgreement remain in full force and effect, and this Amendment shall deemed tobe part a part of the Agreement.

 

ThisAmendment may be further amended or modified, or any provision hereof waiver,only by a written instrument executed by the Parties hereto.

 

ThisSecond Amendment may be executed in counterparts and delivered by facsimile.

 

INWITNESS WHEROF, the Parties hereto have caused this Amendment to duly executed bytheir respective officers.

 
| Depomed, Inc.        | Watson  Pharma, Inc |                       |
|---------------------------|---------------------|----------------------------|
|                      |                |                       |
| By:                       | /s/  Carl A. Pelzel |                       | By: | /s/  Edward F. Heimers, Jr. |
| Name:                     | Carl  A. Pelzel     | Name:                      | Edward  F. Heimers, Jr. |
| Title:  President and CEO | Title:              | President,  Brand Division |
|                      |                |                       |
| Date:  2/18/2009          | Date:  2/18/2009    |
|                           |                     |                            |  |  |  |  |  |

 

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