Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into this 10th
day of October, 2007, between Depomed, Inc., a California corporation (the
"Company"), and John F. Hamilton ("CONSULTANT").
THE PARTIES AGREE AS FOLLOWS:
1.
CONSULTANCY.
CONSULTANT SHALL SERVE AS
A CONSULTANT TO THE COMPANY FOR A PERIOD COMMENCING ON OCTOBER 18, 2007.
THE
PERIOD DURING WHICH CONSULTANT SHALL SERVE AS A CONSULTANT TO THE COMPANY
PURSUANT TO THIS AGREEMENT SHALL CONSTITUTE THE "CONSULTING PERIOD".
2.
DUTIES; EXPENSES.
CONSULTANT SHALL
SERVE AS A CONSULTANT TO THE COMPANY IN THE ACTIVITIES OF THE COMPANY SET FORTH
IN SCHEDULE A, OR AS OTHERWISE REQUESTED BY THE CHIEF EXECUTIVE OFFICER OF THE
COMPANY.
IN THE PERFORMANCE OF SUCH DUTIES, CONSULTANT SHALL CONSULT WITH THE
COMPANY UP TO THE NUMBER OF HOURS PER MONTH SET FORTH ON SCHEDULE A, WHICH
CONSULTING WILL TAKE PLACE AT SUCH PLACES AND AT SUCH TIMES AS THE COMPANY AND
CONSULTANT MUTUALLY AGREE.
THE COMPANY WILL REIMBURSE CONSULTANT FOR ALL
REASONABLE, ORDINARY AND NECESSARY TRAVEL AND OTHER EXPENSES INCURRED BY
CONSULTANT IN CONJUNCTION WITH HIS SERVICES PERFORMED AT THE REQUEST OF THE
COMPANY UNDER THIS AGREEMENT.
CONSULTANT WILL PROVIDE COMMERCIALLY CUSTOMARY
SUPPORT DOCUMENTATION TO THE COMPANY FOR ALL SUCH EXPENSES.
3.
COMPENSATION; CHANGE IN CONTROL.
3.1.
COMPENSATION.
THE COMPANY AGREES TO PAY
CONSULTANT, AND CONSULTANT AGREES TO ACCEPT FOR CONSULTANT'S SERVICES UNDER THIS
AGREEMENT, CONSULTING FEES (THE "CONSULTING FEES") AS SET FORTH IN SCHEDULE A.
3.2.
IN THE EVENT THAT AN ACCELERATION EVENT (AS
DEFINED BELOW) OCCURS DURING THE CONSULTING PERIOD, CONSULTANT OR HIS ESTATE (AS
APPLICABLE) SHALL RECEIVE, ON THE DATE (IN THE EVENT OF A CHANGE IN CONTROL
DESCRIBED BELOW), OR PROMPTLY FOLLOWING THE DATE, THAT THE ACCELERATION EVENT
OCCURS AND IN LIEU OF ANY FURTHER MONTHLY PAYMENTS SET FORTH IN SCHEDULE A, A
LUMP SUM PAYMENT EQUAL TO THE REMAINDER OF (X) $308,000, MINUS (Y) THE SUM OF
ALL MONTHLY CONSULTING FEE PAYMENTS RECEIVED UNDER THIS AGREEMENT BY CONSULTANT
PRIOR TO THE DATE OF THE ACCELERATION EVENT (IF SUCH REMAINDER IS A POSITIVE
NUMBER).
FOR PURPOSES OF THIS AGREEMENT, AN ACCELERATION EVENT IS ANY OF THE
FOLLOWING:
(A) CONSULTANT'S DEATH; (B) CONSULTANT'S PERMANENT DISABILITY (AS
DETERMINED IN GOOD FAITH BY THE COMPANY, TAKING INTO ACCOUNT ANY EVIDENCE OF
SUCH PERMANENT DISABILITY PROVIDED BY OR ON BEHALF OF CONSULTANT); OR (C) THE
OCCURRENCE OF AN EVENT OF "CHANGE IN CONTROL", AS SO DETERMINED BY THE COMPANY'S
BOARD OF DIRECTORS PURSUANT TO SECTION 10.4 OF THE COMPANY'S 2004 EQUITY
INCENTIVE PLAN.
4.
OTHER EMPLOYMENT.
4.1.
OTHER AFFILIATION.
CONSULTANT REPRESENTS THAT
HE IS NOT NOW AND WILL NOT AT ANY TIME DURING THE TERM OF THIS AGREEMENT BE A
PARTY TO ANY AGREEMENT THAT WOULD PREVENT
HIM FROM ENTERING INTO THIS AGREEMENT, AND THAT CONSULTANT IS NOT A PARTY TO ANY
AGREEMENT WITH THIRD PARTIES WHICH MAY RESTRICT HIS CONSULTING ACTIVITIES ON
BEHALF OF THE COMPANY OR OBLIGATE CONSULTANT TO ASSIGN INVENTIONS.
4.2.
CONFLICT OF INTEREST.
CONSULTANT WARRANTS
THAT HE IS NOT OBLIGATED UNDER