Exhibit 10.2
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.
AMENDED AND RESTATED PROMOTION AGREEMENT
This AMENDED AND RESTATED PROMOTION AGREEMENT (this "Agreement") is made as of
September 21, 2007 (the "Effective Date"), by and between Depomed, Inc., a
California corporation ("Depomed"), and Watson Pharma, Inc., a Delaware
corporation ("Watson"). Each of Depomed and Watson is referred to herein
individually as a "Party" and collectively as the "Parties".
WHEREAS, Depomed and Watson are parties to that certain Promotion Agreement,
dated as of July 18, 2007 related to the Product (the "Original Agreement");
WHEREAS, Depomed and Watson desire to amend and restate the Original Agreement
as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
herein contained, the Parties hereto intending to be legally bound hereby agree
as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
SECTION 1.1
"2007 PLAN" HAS THE MEANING SET FORTH IN SECTION 4.5.
SECTION 1.2
"ACT" MEANS THE UNITED STATES FEDERAL FOOD, DRUG AND
COSMETIC ACT, 21 U.S.C. 301, ET. SEQ., AS IT MAY BE AMENDED FROM TIME TO TIME,
AND THE REGULATIONS PROMULGATED THEREUNDER, INCLUDING THE GENERIC DRUG ACT.
SECTION 1.3
"ADVERSE DRUG EXPERIENCE" MEANS ANY "ADVERSE DRUG
EXPERIENCE" AS DEFINED OR CONTEMPLATED BY 21 C.F.R. 314.80 OR 312.32, ASSOCIATED
WITH THE PRODUCT.
SECTION 1.4
"ADVERSE DRUG EXPERIENCE REPORT" MEANS ANY ORAL, WRITTEN
OR ELECTRONIC REPORT OF ANY ADVERSE DRUG EXPERIENCE TRANSMITTED TO ANY PERSON.
SECTION 1.5
"AFFILIATE" MEANS, WITH RESPECT TO ANY PERSON, ANY OTHER
PERSON THAT DIRECTLY OR INDIRECTLY CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON
CONTROL WITH, SUCH FIRST PERSON. FOR THE PURPOSES OF THIS DEFINITION, "CONTROL"
(INCLUDING, WITH CORRELATIVE MEANINGS, THE TERMS "CONTROLLING," "CONTROLLED BY"
AND "UNDER COMMON CONTROL WITH"), AS APPLIED TO ANY PERSON, MEANS THE
POSSESSION, DIRECTLY OR INDIRECTLY, OF THE POWER TO DIRECT OR CAUSE THE
DIRECTION OF THE MANAGEMENT AND POLICIES OF THAT PERSON, WHETHER THROUGH THE
OWNERSHIP OF VOTING SECURITIES, BY CONTRACT OR OTHERWISE. NOTWITHSTANDING THE
FOREGOING, FOR PURPOSES OF THIS AGREEMENT, A WHOLESALER AFFILIATE SHALL NOT
CONSTITUTE AN AFFILIATE OF WATSON.
SECTION 1.6
"AGREEMENT" HAS THE MEANING SET FORTH IN THE PREAMBLE TO
THIS AGREEMENT
SECTION 1.7
"AGREEMENT MONTH" MEANS EACH CALENDAR MONTH DURING THE
TERM (INCLUDING ANY PARTIAL CALENDAR MONTH IN THE CASE OF THE FIRST AND LAST
CALENDAR MONTHS OF THE TERM).
SECTION 1.8
"AGREEMENT QUARTER" MEANS THE INITIAL AGREEMENT QUARTER,
EACH SUCCESSIVE PERIOD OF THREE MONTHS DURING THE TERM AFTER THE INITIAL
AGREEMENT QUARTER AND THE FINAL AGREEMENT QUARTER.
SECTION 1.9
"ALERT REPORT" IS THE REPORT PER FDA 21 CFR 314.80
REPORTING REQUIREMENTS FOR POSTMARKETING 15-DAY "ALERT" REPORTS; THESE ARE
ADVERSE DRUG EXPERIENCE REPORTS THAT ARE BOTH SERIOUS AND UNEXPECTED, AND MUST
BE REPORTED IN WRITING