"HEREOF," "HEREIN," "HEREBY," AND DERIVATIVE OR SIMILAR WORDS REFER TO THIS
ENTIRE AGREEMENT; (IV) THE TERMS "ARTICLE," "SECTION," "EXHIBIT," "SCHEDULE," OR
"CLAUSE" REFER TO THE SPECIFIED ARTICLE, SECTION, EXHIBIT, SCHEDULE, OR CLAUSE
OF THIS AGREEMENT; (V) "OR" IS DISJUNCTIVE BUT NOT NECESSARILY EXCLUSIVE; AND
(VI) THE TERM "INCLUDING" OR "INCLUDES" MEANS "INCLUDING WITHOUT LIMITATION" OR
"INCLUDES WITHOUT LIMITATION."
WHENEVER THIS AGREEMENT REFERS TO A NUMBER OF
DAYS, SUCH NUMBER SHALL REFER TO CALENDAR DAYS UNLESS BUSINESS DAYS ARE
SPECIFIED.
SECTION 15.11
GOVERNING LAW. THIS AGREEMENT WILL BE
CONSTRUED UNDER AND IN ACCORDANCE WITH, AND GOVERNED IN ALL RESPECTS BY, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW
PRINCIPLES.
SECTION 15.12
EQUITABLE RELIEF. EACH PARTY ACKNOWLEDGES
THAT A BREACH BY IT OF THE PROVISIONS OF THIS AGREEMENT MAY NOT REASONABLY OR
ADEQUATELY BE COMPENSATED IN DAMAGES IN AN ACTION AT LAW AND THAT SUCH A BREACH
MAY CAUSE THE OTHER PARTY IRREPARABLE INJURY AND DAMAGE. BY REASON THEREOF, EACH
PARTY AGREES THAT THE OTHER PARTY IS ENTITLED TO SEEK, IN ADDITION TO ANY OTHER
REMEDIES IT MAY HAVE UNDER THIS AGREEMENT OR OTHERWISE, PRELIMINARY AND
PERMANENT INJUNCTIVE AND OTHER EQUITABLE RELIEF TO PREVENT OR CURTAIL ANY BREACH
OF THIS AGREEMENT BY THE OTHER PARTY; PROVIDED, HOWEVER, THAT NO SPECIFICATION
IN THIS AGREEMENT OF A SPECIFIC LEGAL OR EQUITABLE REMEDY WILL BE CONSTRUED AS A
WAIVER OR PROHIBITION AGAINST THE PURSUING OF OTHER LEGAL OR EQUITABLE REMEDIES
IN THE EVENT OF SUCH A BREACH. EACH PARTY AGREES THAT THE EXISTENCE OF ANY
CLAIM, DEMAND, OR CAUSE OF ACTION OF IT AGAINST THE OTHER PARTY, WHETHER
PREDICATED UPON THIS AGREEMENT, OR OTHERWISE, WILL NOT CONSTITUTE A DEFENSE TO
THE ENFORCEMENT BY THE OTHER PARTY, OR ITS SUCCESSORS OR ASSIGNS, OF THE
COVENANTS CONTAINED IN THIS AGREEMENT.
SECTION 15.13
RELATIONSHIP BETWEEN PARTIES. THE PARTIES
HERETO ARE ACTING AND PERFORMING AS INDEPENDENT CONTRACTORS, AND NOTHING IN THIS
AGREEMENT CREATES THE RELATIONSHIP OF PARTNERSHIP, JOINT VENTURE, SALES AGENCY,
OR PRINCIPAL AND AGENT. NEITHER PARTY IS THE AGENT OF THE
11
OTHER, AND NEITHER PARTY MAY HOLD ITSELF OUT AS SUCH TO ANY OTHER PARTY. ALL
FINANCIAL OBLIGATIONS ASSOCIATED WITH EACH PARTY'S BUSINESS WILL BE THE SOLE
RESPONSIBILITY OF SUCH PARTY.
[Signature page follows]
12
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in
duplicate on the day and year first above written.
DEPOMED, INC.
By:
/s/ Carl A. Pelzel
Name:
Carl A. Pelzel
Title:
President and Chief Executive Officer
WATSON PHARMA, INC.
By:
/s/ Edward F. Heimers, Jr.
Name:
Edward F. Heimers, Jr.
Title:
President, Brand Division
Confidential Information, indicated by [***], has been omitted from this filing
and filed separately with the Securities Exchange Commission
Schedule 1.14
Product COGS as of the Initial Effective Date
Estimated Range for
2007
2007 Estimation
Low
High
Low
High
WAC per Tablet
$
[***
]
$
[***
]
Gross to Net Discounts & Allowances
[***
]
[***
]
$
[***
]
$
[***
]
(low