Exhibit 10.1
CONVERTIBLE NOTE REPURCHASE AGREEMENT
THIS CONVERTIBLE NOTE REPURCHASE AGREEMENT (the "Agreement"), dated as of
June 24, 2005, is made and entered into by and between Elan Pharma International
Limited, a private limited company organized under the laws of Ireland (the
"Seller"), and Depomed, Inc., a California corporation (the "Purchaser").
WHEREAS, the Seller is the owner of that certain Depomed, Inc. Convertible
Promissory Note in aggregate principal amount of $8,010,000.00 issued by
Purchaser to Elan International Services, Inc., an affiliate of Seller, on
January 21, 2000 (the "Convertible Note"), a true and complete copy of which is
attached hereto as Exhibit A.
WHEREAS, the Seller desires to sell to the Purchaser and the Purchaser desires
to repurchase from the Seller the Convertible Note.
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, the Purchaser and the Seller agree as follows:
1.
DEFINITIONS.
AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE THE
MEANINGS SET FORTH BELOW:
"Convertible Note" has the meaning set forth in the recitals hereto.
"Purchase Price" means $9,100,000.00.
2.
PURCHASE AND SALE OF THE CONVERTIBLE NOTE; CLOSING.
THE PURCHASER AND THE
SELLER AGREE AS FOLLOWS:
(A)
REPURCHASE AND SALE OF THE CONVERTIBLE NOTE.
ON THE BASIS OF
THE REPRESENTATIONS AND WARRANTIES, AND SUBJECT TO THE TERMS AND CONDITIONS, SET
FORTH HEREIN, (I) THE SELLER AGREES TO SELL TO THE PURCHASER THE CONVERTIBLE
NOTE, AND (II) THE PURCHASER AGREES TO REPURCHASE FROM THE SELLER THE
CONVERTIBLE NOTE.
(B)
CLOSING.
THE CLOSING (THE "CLOSING") OF THE PURCHASE AND SALE
OF THE CONVERTIBLE NOTE SHALL TAKE PLACE AT 2:00 P.M. ON MONDAY, JUNE 27, 2005
(THE "CLOSING DATE") AT THE OFFICES OF HELLER EHRMAN LLP, TIMES SQUARE TOWER, 7
TIMES SQUARE, NEW YORK, NY, OR AT SUCH OTHER TIME AND PLACE AS THE PARTIES
HERETO SHALL MUTUALLY AGREE.
AT THE CLOSING, (I) THE SELLER SHALL DELIVER TO
THE PURCHASER THE ORIGINALLY EXECUTED CONVERTIBLE NOTE AND SUCH OTHER
APPROPRIATE INSTRUMENTS OF TRANSFER AND ASSIGNMENT, AS THE PURCHASER SHALL
REASONABLY REQUEST PRIOR TO THE CLOSING DATE, IN ORDER TO VEST IN THE PURCHASER,
AS OF THE CLOSING DATE, ALL OF THE SELLER'S RIGHT, TITLE AND INTEREST IN, TO AND
UNDER THE CONVERTIBLE NOTE, AND (II) THE PURCHASER SHALL DELIVER OR CAUSE TO BE
DELIVERED TO THE SELLER BY WIRE TRANSFER TO A BANK ACCOUNT DESIGNATED BY THE
SELLER, THE PURCHASE PRICE IN IMMEDIATELY AVAILABLE FUNDS.
(C)
CONVERSION PRICE; PRINCIPAL AND ACCRUED INTEREST.
THE
PURCHASER AND THE SELLER ACKNOWLEDGE AND AGREE THAT (I), AS OF JUNE 22, 2005,
THE CONVERSION PRICE APPLICABLE
TO THE CONVERTIBLE NOTE IS $7.30 AND (II), AS OF MARCH 31, 2005, THE AGGREGATE
AMOUNT OF PRINCIPAL AND INTEREST ACCRUED THEREON UNDER THE CONVERTIBLE NOTE WAS
$10,504,635.01.
3.
CONDITIONS TO THE PURCHASER'S OBLIGATION.
THE OBLIGATION OF THE PURCHASER
TO PURCHASE AND PAY FOR THE CONVERTIBLE NOTE IS SUBJECT TO THE SATISFACTION (OR
WAIVER BY PURCHASER) OF THE FOLLOWING CONDITION AS OF THE CLOSING DATE:
(A)
THE REPRESENTATIONS