Exhibit 10.1
DEPOMED, INC.
SECURITIES PURCHASE AGREEMENT
April 21, 2003
DEPOMED, INC.
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("Agreement") is made as of April 21, 2003
(the "Effective Date"), by and among DepoMed, Inc., a California corporation
(the "Company"), and each of those persons and entities, severally and not
jointly, listed as a Purchaser on the Schedule of Purchasers attached as
Exhibit A hereto (the "Schedule of Purchasers").
Such persons and entities are
hereinafter collectively referred to herein as "Purchasers" and each
individually as a "Purchaser."
AGREEMENT
In consideration of the mutual covenants contained in this Agreement, and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and each Purchaser (severally and not jointly) hereby
agree as follows:
SECTION 1.
AUTHORIZATION OF SALE OF THE SECURITIES.
On the terms and subject to the conditions of this Agreement, the Company has,
or before the Closing (as defined below) will have, authorized the sale and
issuance of up to $20,000,000 aggregate purchase price of shares of its Common
Stock, no par value per share (the "Common Stock"), at a purchase price per
share equal to $2.16, and warrants (including any Additional Warrants which may
be issuable after the Closing pursuant to Section 8.1(f) hereof, the "Warrants")
to purchase Common Stock in the form attached hereto as Exhibit B with an
initial exercise price equal to $2.16 per share.
The shares of Common Stock and
the Warrants collectively are referred to as the "Securities".
SECTION 2.
AGREEMENT TO SELL AND PURCHASE THE SECURITIES.
2.1
SALE OF SECURITIES.
AT THE CLOSING (AS DEFINED IN SECTION 3), THE
COMPANY WILL SELL TO EACH PURCHASER, AND EACH PURCHASER WILL SEVERALLY, AND NOT
JOINTLY, PURCHASE FROM THE COMPANY, THE NUMBER OF SHARES OF COMMON STOCK AND
WARRANTS, FOR THE AGGREGATE PURCHASE PRICE, SET FORTH OPPOSITE SUCH PURCHASER'S
NAME ON THE SCHEDULE OF PURCHASERS ATTACHED AS EXHIBIT A HERETO.
2.2
SEPARATE AGREEMENT.
EACH PURCHASER SHALL SEVERALLY, AND NOT
JOINTLY, BE LIABLE FOR ONLY THE PURCHASE PRICE OF THE SECURITIES BEING PURCHASED
BY SUCH PURCHASER HEREUNDER AS SET FORTH ON EXHIBIT A ATTACHED HERETO.
THE
COMPANY'S AGREEMENT WITH EACH OF THE PURCHASERS IS A SEPARATE AGREEMENT, AND THE
SALE OF THE SECURITIES TO EACH OF THE INDIVIDUAL PURCHASERS IS A SEPARATE SALE.
EXCEPT AS SET FORTH IN SECTION 7.5, THE PURCHASE OBLIGATIONS OF EACH RESPECTIVE
PURCHASER HEREUNDER ARE INDEPENDENT AND ARE NOT CONDITIONED ON THE PURCHASE OF
ANY SECURITIES BY ANY OR ALL OF THE OTHER PURCHASERS.
ALL OBLIGATIONS,
AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF THE RESPECTIVE PURCHASERS
HEREUNDER ARE SEVERAL, AND NOT JOINT, IN NATURE.
SECTION 3.
CLOSING AND DELIVERY.
3.1
CLOSING.
THE CLOSING OF THE PURCHASE AND SALE OF THE SECURITIES
PURSUANT TO THIS AGREEMENT (THE "CLOSING") SHALL BE HELD ON APRIL 21, 2003, AT
THE OFFICES OF HELLER EHRMAN WHITE & MCAULIFFE, 275 MIDDLEFIELD ROAD, MENLO
PARK, CALIFORNIA 94025, OR ON SUCH OTHER DATE AND AT SUCH OTHER PLACE AS MAY BE
AGREED BY THE COMPANY AND THE