FORUM.
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE
SERVED ON ANY PARTY ANYWHERE IN THE WORLD, WHETHER WITHIN OR WITHOUT THE
JURISDICTION OF ANY SUCH COURT.
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, EACH PARTY HERETO AGREES THAT SERVICE OF PROCESS ON SUCH PARTY AS
PROVIDED IN SECTION 10 SHALL BE DEEMED EFFECTIVE SERVICE OF PROCESS ON SUCH
PARTY.
11.10
WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.11
SPECIFIC PERFORMANCE.
THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY
FAILURE OF ANY PARTY TO PERFORM ITS AGREEMENTS AND OBLIGATIONS HEREUNDER OR
CONTEMPLATED HEREBY WILL CAUSE IRREPARABLE INJURY TO THE OTHER PARTIES, FOR
WHICH DAMAGES, EVEN IF AVAILABLE, WILL NOT PROVIDE AN ADEQUATE REMEDY.
ACCORDINGLY, EACH PARTY HEREBY CONSENTS TO THE ISSUANCE OF INJUNCTIVE RELIEF BY
ANY COURT OF COMPETENT JURISDICTION TO COMPEL PERFORMANCE OF SUCH PARTY'S
OBLIGATIONS AND TO THE GRANTING BY ANY COURT OF THE REMEDY OF SPECIFIC
PERFORMANCE OF ITS OBLIGATIONS HEREUNDER.
11.12
PUBLIC DISCLOSURE.
PRIOR TO MAKING ANY PUBLIC DISCLOSURE WITH
RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, THE COMPANY
SHALL PROVIDE THE PURCHASERS WITH REASONABLE OPPORTUNITY TO COMMENT ON SUCH
DISCLOSURES AND EACH PURCHASER AGREES THAT IT WILL PROVIDE ITS COMMENTS ON SUCH
DISCLOSURE IN AN EXPEDITIOUS MANNER; PROVIDED, HOWEVER, THAT NOTHING CONTAINED
HEREIN SHALL RESTRICT THE ABILITY OF THE COMPANY TO COMPLY WITH DISCLOSURE
REQUIRED PURSUANT TO SECURITIES REGULATIONS OR OTHER LAWS (INCLUDING, WITHOUT
LIMITATION, ANY OBLIGATION TO DISCLOSE THE TAX TREATMENT OR TAX STRUCTURE OF THE
TRANSACTIONS CONTEMPLATED HEREBY).
11.13
JOINT DRAFTING; EXCULPATION AMONG PURCHASERS.
THE PARTIES HAVE
PARTICIPATED JOINTLY IN THE NEGOTIATION AND DRAFTING OF THIS AGREEMENT.
IN THE
EVENT AN AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION ARISES, THIS
AGREEMENT SHALL BE CONSTRUED AS IF DRAFTED JOINTLY BY THE PARTIES AND NO
PRESUMPTION OR BURDEN OF PROOF SHALL ARISE FAVORING OR DISFAVORING ANY PARTY BY
VIRTUE OF THE AUTHORSHIP OF ANY PROVISIONS OF THIS AGREEMENT.
EACH PURCHASER
ACKNOWLEDGES THAT
34
IT IS NOT RELYING UPON ANY PERSON, FIRM OR CORPORATION, OTHER THAN THE COMPANY
AND ITS COUNSEL IN MAKING ITS INVESTMENT OR DECISION TO INVEST IN THE COMPANY.
[signature page follows]
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first above
written.
DEPOMED, INC.
By:
/s/ John W. Fara
Name:
John W. Fara
Title:
President and Chief Executive Officer
[Signature Page to DepoMed Securities Purchase Agreement]
MDS LIFE SCIENCES TECHNOLOGY FUND
II NC LIMITED PARTNERSHIP, by its
General Partner, MDS LSTF II (NCGP) INC.
(LSTIINC)
By:
/s/ Gregory Gubitz
Name:
Title:
By:
/s/ Graysanne Bedell
Name:
Title:
MDS LIFE SCIENCES TECHNOLOGY FUND
II QUEBEC LIMITED PARTNERSHIP, by its
General Partner, MDS LSTF II (QGP) INC.
(LSTIIQ)
By:
/s/ Gregory Gubitz
Name:
Title:
By:
/s/ Graysanne Bedell