SHALL BE BINDING UPON THE
COMPANY AND ITS SUCCESSORS AND ASSIGNS, AND SHALL INURE TO THE BENEFIT OF
INDEMNITEE AND INDEMNITEE'S SPOUSE, ESTATE, HEIRS, EXECUTORS, ADMINISTRATORS,
PERSONAL OR LEGAL REPRESENTATIVES AND ASSIGNS.
THE COMPANY SHALL REQUIRE ANY
SUCCESSOR CORPORATION (WHETHER BY MERGER, CONSOLIDATION, OR OTHERWISE) BY
WRITTEN AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO INDEMNITEE, EXPRESSLY TO
ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME
EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IF NO SUCH SUCCESSION HAD
TAKEN PLACE.
15.
AMENDMENT AND WAIVER.
THIS AGREEMENT MAY NOT BE AMENDED EXCEPT BY
A WRITING EXECUTED BY BOTH THE COMPANY AND INDEMNITEE.
NO WAIVER OF ANY
PROVISION OF THIS AGREEMENT SHALL BE EFFECTIVE UNLESS IN WRITING AND SIGNED BY
THE PARTY TO BE CHARGED THEREWITH.
A WAIVER OF, OR A FAILURE TO INSIST ON,
COMPLETE COMPLIANCE WITH ANY PROVISION OF THIS AGREEMENT SHALL NOT BE CONSTRUED
AS A WAIVER OF A SUBSEQUENT OR DIFFERENT NON-COMPLIANCE, BREACH OR DEFAULT OF
THAT OR ANY OTHER PROVISION OF THIS AGREEMENT.
16.
ACKNOWLEDGMENT.
THE COMPANY EXPRESSLY ACKNOWLEDGES THAT IT HAS
ENTERED INTO THIS AGREEMENT AND ASSUMED THE OBLIGATIONS IMPOSED ON THE COMPANY
UNDER THIS AGREEMENT IN
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order to induce Indemnitee to serve or to continue to serve as a director or
officer and acknowledges that Indemnitee is relying on this Agreement in serving
or continuing to serve in such capacity.
The Company further agrees to
stipulate in any court proceeding that the Company is bound by all of the
provisions of this Agreement.
17.
PERIOD OF LIMITATIONS.
NO LEGAL ACTION SHALL BE BROUGHT AND NO
CAUSE OF ACTION SHALL BE ASSERTED BY OR IN THE RIGHT OF THE COMPANY AGAINST
INDEMNITEE, ESTATE, HEIRS, EXECUTORS, ADMINISTRATORS OR PERSONAL OR LEGAL
REPRESENTATIVES AFTER THE EXPIRATION OF TWO YEARS FROM THE DATE OF ACCRUAL OF
SUCH CAUSE OF ACTION, AND ANY CLAIM OR CAUSE OF ACTION OF THE COMPANY SHALL BE
EXTINGUISHED AND DEEMED RELEASED UNLESS ASSERTED BY THE TIMELY FILING OF A LEGAL
ACTION WITHIN SUCH TWO-YEAR PERIOD; PROVIDED, HOWEVER, THAT IF ANY SHORTER
PERIOD OF LIMITATIONS IS OTHERWISE APPLICABLE TO ANY SUCH CAUSE OF ACTION, SUCH
SHORTER PERIOD SHALL GOVERN.
18.
DURATION OF AGREEMENT.
THIS AGREEMENT SHALL CONTINUE IN EFFECT
FOR SO LONG AS INDEMNITEE IS SUBJECT TO ANY POSSIBLE PROCEEDING, REGARDLESS OF
WHETHER INDEMNITEE CONTINUES TO SERVE AS A DIRECTOR OR OFFICER.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth in its first paragraph.
DEPOMED, INC.
By:
Name:
Title:
Indemnitee
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