AGREEMENT IN ANY JURISDICTION SHALL NOT AFFECT THE VALIDITY OR
ENFORCEABILITY OF THE REMAINDER OF THIS AGREEMENT IN THAT JURISDICTION OR THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, INCLUDING THAT PROVISION, IN ANY
OTHER JURISDICTION.
9.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS
AGREEMENT.
10.
HEADINGS; EXECUTION IN COUNTERPARTS.
THE HEADINGS AND CAPTIONS CONTAINED
HEREIN ARE FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONTROL OR AFFECT THE
MEANING OR CONSTRUCTION OF ANY PROVISION HEREOF.
THIS AGREEMENT MAY BE EXECUTED
IN COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL AND WHICH
TOGETHER SHALL CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
11.
NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS RELATING TO THIS AGREEMENT
SHALL BE DATED AND IN WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY GIVEN WHEN
DELIVERED, IF DELIVERED PERSONALLY OR SENT BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, POSTAGE PREPAID, AND WHEN RECEIVED IF DELIVERED
OTHERWISE, TO THE PARTY TO WHOM IT IS DIRECTED;
(A)
IF TO THE SELLER, TO THE SELLER AT THE FOLLOWING ADDRESS:
Elan Pharma International Limited
WIL House
Shannon Business Park
Shannon
County Clare
Ireland
Attn.: Director
Fax: +353-1-709-4082
3
If to the Purchaser, to the Purchaser at the following address:
Depomed, Inc.
1360 O'Brien Drive
Menlo Park, CA
94025-1436
Attn:
President
Fax:
650-462-9991
With a copy to:
Heller Ehrman LLP
275 Middlefield Road
Menlo Park, CA 94025
Attn: Matthew Gosling
Fax: 650-324-0628
12.
INTEGRATION.
THE PARTIES AGREE THAT THIS AGREEMENT CONTAINS THE ENTIRE
UNDERSTANDING BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF.
13.
THIRD PARTY BENEFICIARIES.
NOTHING EXPRESSED OR IMPLIED IN THIS AGREEMENT
IS INTENDED OR SHALL BE CONSTRUED TO CONFER UPON OR GIVE TO ANY THIRD PARTY ANY
RIGHTS OR REMEDIES AGAINST ANY PARTY HERETO.
14.
FURTHER ASSURANCES.
EACH OF THE PARTIES HERETO COVENANTS AND AGREES UPON
THE REQUEST OF THE OTHER, TO DO, EXECUTE, ACKNOWLEDGE AND DELIVER OR CAUSE TO BE
DONE, EXECUTED, ACKNOWLEDGED AND DELIVERED ALL SUCH FURTHER ACTS, DEEDS,
DOCUMENTS, ASSIGNMENTS, TRANSFERS, CONVEYANCES, POWERS OF ATTORNEY AND
ASSURANCES AS MAY BE REASONABLY NECESSARY OR DESIRABLE TO GIVE FULL EFFECT TO
THIS AGREEMENT.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Purchaser and the Seller have executed this Agreement as
of the date first above written.
ELAN PHARMA INTERNATIONAL LIMITED
By:
/s/ Paul V. Breen
Name:
Paul V. Breen
Title:
Director
DEPOMED, INC.
By:
/s/ John F. Hamilton
Name:
John F. Hamilton
Title:
VP and CFO
5
Exhibit A
Convertible Note
THIS CONVERTIBLE PROMISSORY NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT UNDER ANY CIRCUMSTANCES BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER