Exhibit 10.1


CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED
AND REPLACED WITH "***".   A
COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY
OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING
CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE EXCHANGE ACT OF 1934.


AMENDMENT NO. 1 TO

EXCLUSIVE LICENSE AND MARKETING AGREEMENT


This Amendment No. 1 (the “Amendment”)
to Exclusive License and Marketing Agreement is made as of July 24, 2006 by and
between Depomed, Inc., a California corporation (“Depomed”), and Esprit
Pharma, Inc., a Delaware corporation (“Esprit”).


BACKGROUND


A.            Depomed and Esprit are parties to
that certain Exclusive License and Marketing Agreement is made as of July 21,
2005 (the “Agreement”). 
Capitalized terms used here without definition have the meanings given
to them in the Agreement.


B.            Depomed and Esprit desire to amend
the Agreement as set forth herein.


Accordingly,
the parties agree as follows:


1.               Amendments.


1.1           Section 2.3(b). 
Section 2.3(b) is hereby amended and restated to read in its entirety as
follows:


(b)           Notwithstanding the foregoing provisions of Section
2.3(a), Depomed will be entitled to the minimum royalty payments set forth on Exhibit
B (each, a “Minimum Annual Royalty Amount”) for each calendar year
of the term of this Agreement beginning on or after January 1, 2006; provided, however
royalties paid by Esprit for Net Sales recorded in the fourth Fiscal Quarter of
2005 shall be credited against any Minimum Royalty Amount payable in respect of
Net Sales recorded in 2006; provided, however, that (i) “Depomed Net Sales”, as
defined in that certain Co-Promotion Agreement, dated as of July 24, 2006,
between Depomed and Esprit (the “Co-Promotion Agreement”), shall be excluded
from Net Sales for purposes of determining the Minimum Annual Royalty Amount,
and (ii) any Minimum Annual Royalty Amount payable pursuant to this Section
2.3(b) shall be pro-rated for any portion of any calendar year of the term of
this Agreement during which Depomed fails to meet its supply obligations to
Esprit pursuant to the Supply Agreement. 
The Parties acknowledge that the credit against any Minimum Royalty
Amount Payable in respect of the Net Sales recorded in 2006 is being made due
to the Parties’ understanding that Net Sales recorded in 2005 were primarily
related to the initial stocking of the Licensed Product in the Territory in
connection with the commercial launch of the Product.


1.2           Article 3.  Article 3 of the Agreement is amended and restated
in its entirety to read as follows (it being understood that Esprit has made
the license fee payments set forth in Sections 3(a) and 3(b) below):









 



 


“3.           License
Fees.


Esprit shall make the following license fee
payments to Depomed:


(a)                                  Five Million Dollars ($5,000,000) on the
Effective Date;


(b)                                 Twenty-Five Million Dollars ($25,000,000) on
or before the fifteenth day after the Effective Date;


(c)                                  Ten Million Dollars ($10,000,000) on or
before December 15, 2006; and


(d)                                 Ten Million Dollars ($10,000,000) on the
second anniversary of the Effective Date.”


1.3           Sections 5.5, 5.6, 5.7 and 5.8.  The following Sections 5.5, 5.6, 5.7 and 5.8 are
hereby added to the Agreement:


“5.5         Details.  Notwithstanding the foregoing provisions of
Section 5.4, during the period beginning on August 1, 2006 and ending on
December 31, 2006, Esprit shall conduct detail calls with respect to the Licensed
Product ***.


5.6           Joint Marketing Team.  A
Joint Marketing Team (“JMT”) shall be established by the Parties and
shall be comprised of four (4) members. 
The Parties have identified their respective initial appointments to the
JMT.  A Party may change any of its
representatives at any time if a new person (with appropriate expertise to
replace the outgoing member) is appointed to any of the foregoing positions by
giving written notice to the other Party. 
The total number of JMT members may be changed by unanimous vote of the
JMT from time to time as appropriate; provided, that the JMT shall in
all cases be comprised of an equal number of members from each of Esprit and
Depomed.  One representative of Depomed
and one representative of Esprit shall serve as co-chairs of the JMT (the “Co-Chairs”).  The members appointed to the JMT by each
Party shall be vested with appropriate decision-making authority and
power by such Party.


5.7           JMT
Responsibilities.  The JMT shall review and discuss all
Promotional and marketing activities related to the Licensed Product,
including, at a minimum, Esprit’s commercialization plans and strategies
related to the Licensed Product, which shall include, among other matters, the
following:


(a)                                  actual (during the six-month period prior to
each JMT meeting) and anticipated (during the six-month period following each
JMT meeting) number of Calls (by position) of Esprit’s sales force;


(b)                                 Esprit’s list of physicians who receive Calls
(with ME number);



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(c)                                  Licensed Product positioning, strategy and
tactics with supporting advertising and promotional activity to be undertaken;


(d)                                 any training and/or sampling programs to be
conducted;


(e)                                  medical education programs to be conducted;


(f)                                    planned public relations activities;


(g)                                 Licensed Product sampling plans and
strategies;


(h)                                 pricing and contracting strategies to the
extent permitted by law;


(i)                                     sales, marketing and educational materials;


(j)                                     managed health care strategies and tactics;


(k)                                  advertising placement and market responses;


(l)                                     sales incentive compensation for Esprit’s
sales force;


(m)                               customer targets;


(n)                                 post-marketing clinical studies; and


(o)                                 budgeting for costs and expenses associated
with Licensed Product commercialization.


5.8           Meetings of the JMT. 
Meetings of the JMT may be called by either Co-Chair from time to time
on at least five (5) business days’ notice; provided, however,
that meetings of the JMT shall be held on at least a monthly basis, on the
first business day of each month through 2006 and then quarterly thereafter,
unless the Parties otherwise agree in writing. 
If possible, the meetings shall be held in person or where appropriate,
by video or telephone conference.  Unless
otherwise agreed, the location of any in-person meetings of the JMT shall
alternate between the principal corporate offices of the Parties.  The Parties shall determine the form of the
meeting.  Either Party may invite up to
five (5) additional participants to any meeting of the JMT.  Each Party shall bear its own travel and
related costs incurred in connection with participation in the JMT and the JMT.”



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1.4           Section 9.10. 
The following Section 9.10 is hereby added to the Agreement:


“9.10       Clinical Studies. 
Notwithstanding any provision of this Agreement to the contrary, Depomed
shall be entitled to conduct clinical studies or trials utilizing the Licensed
Product (“Clinical Studies”) at its sole expense (a) for the purpose of
supporting Regulatory Approval of one or more additional indications for the
Licensed Product, or (b) that otherwise could enhance or support the Marketing
of the Licensed Product.  The JMT shall
review and approve the design of, and any protocol related to and the
dissemination of, any Clinical Study conducted by or on behalf of Depomed.  Esprit hereby grants a non-exclusive license
under the Patent Rights solely for the purpose of conducting, or having
conducted, Clinical Studies.  All
Regulatory Data generated in any such Clinical Study conducted by or on behalf
of Depomed shall be owned by Depomed. However Depomed shall allow Esprit, at no
additional cost, to utilize such data in connection with its promotional
activities. Depomed shall be permitted to publish the results of any such
Clinical Study conducted by or on behalf of Depomed, after affording Esprit at
least twenty (20) days to review and comment on any such publication, and
considering in good faith any comments provided by Esprit.  If requested by Depomed, Esprit shall
cooperate with Depomed in facilitating any necessary filings or approvals with
the FDA.”


1.5           Section 20.2. 
Section 20.2 is hereby amended and restated to read in its entirety as
follows:


“20.2  Entire Agreement.  This Agreement, the Supply Agreement and the
Co-Promotion Agreement represent the entire agreement between the Parties
concerning the subject matter herein (except as specifically noted herein) and
supersedes all prior or contemporaneous oral or written agreements of the
Parties; except that information disclosed pursuant to the confidentiality
agreement between the Parties dated June 22, 2005 shall continue to be subject
to the terms of that agreement until the effective date of this Agreement, from
which date it will be treated as Proprietary Information pursuant to Article 8
of this Agreement.  This agreement may be
modified, amended or changed only by a written instrument signed and delivered
by the Parties, with clear intent to modify, amend or change the provisions
hereof.”


2.               Miscellaneous.


2.1           Full Force and
Effect.  Except as expressly amended
hereby, the Agreement will continue in full force and effect in accordance with
the provisions thereof on the date hereof.


2.2           No Waiver.  Depomed’s agreement to enter into this
Amendment does not constitute a waiver by Depomed of any default or breach or
succession of defaults or breaches by Esprit under the License Agreement, and
shall not deprive Depomed of any right under the License Agreement or
controlling law in respect of any breach or default thereof by Esprit.



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2.3           Counterparts.  This Amendment may be signed in one or more
counterparts, all of which will be considered one and the same instrument.


2.4           Consent to Grant of Security Interest.  Depomed does hereby consent to the granting
of a security interest in this Amendment in favor of any Fortress Credit Corp.
pursuant to that certain Loan Agreement, dated as of March 9, 2006, among
Esprit, Fortress Credit Corp. and the lenders identified therein.   Depomed agrees to execute such other
documentation may be reasonably requested by Fortress Credit Corp. to evidence
such consent.



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IN WITNESS WHEREOF, Depomed
and Esprit have caused this Amendment to be duly executed as of the day and
year first above written.


	
  DEPOMED, INC.:

  	
  ESPRIT PHARMA, INC.:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Carl A.
  Pelzel

  	
   

  	
  By: 

  	
  /s/ Steven M. Bosacki

  
	
   

  	
   

  
	
  Name: Carl A.
  Pelzel

  	
  Name: Steven M. Bosacki

  
	
  Title: Executive
  Vice President & COO

  	
  Title: VP, General Counsel & Assistant Secretary

  
					



 



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