Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING
AGREEMENT (the “ Agreement ”) is made and
entered into this 10th day of October, 2007, between Depomed, Inc.,
a California corporation (the “ Company ”), and
John F. Hamilton (“ CONSULTANT ”).
THE PARTIES AGREE
AS FOLLOWS:
1.
Consultancy . CONSULTANT shall serve as a consultant
to the Company for a period commencing on October 18, 2007.
The period during which CONSULTANT shall serve as a consultant to
the Company pursuant to this Agreement shall constitute the “
Consulting Period ”.
2.
Duties; Expenses . CONSULTANT shall serve as a
consultant to the Company in the activities of the Company set
forth in Schedule A , or as otherwise requested by the chief
executive officer of the Company. In the performance of such
duties, CONSULTANT shall consult with the Company up to the number
of hours per month set forth on Schedule A , which
consulting will take place at such places and at such times as the
Company and CONSULTANT mutually agree. The Company will
reimburse CONSULTANT for all reasonable, ordinary and necessary
travel and other expenses incurred by CONSULTANT in conjunction
with his services performed at the request of the Company under
this Agreement. CONSULTANT will provide commercially
customary support documentation to the Company for all such
expenses.
3.
Compensation; Change in Control .
3.1.
Compensation . The Company agrees to pay CONSULTANT,
and CONSULTANT agrees to accept for CONSULTANT’s services
under this Agreement, consulting fees (the “ Consulting
Fees ”) as set forth in Schedule A .
3.2.
In the event that an Acceleration Event (as defined below) occurs
during the Consulting Period, CONSULTANT or his estate (as
applicable) shall receive, on the date (in the event of a Change in
Control described below), or promptly following the date, that the
Acceleration Event occurs and in lieu of any further monthly
payments set forth in Schedule A , a lump sum payment equal
to the remainder of (x) $308,000, minus (y) the sum of all monthly
consulting fee payments received under this Agreement by CONSULTANT
prior to the date of the Acceleration Event (if such remainder is a
positive number). For purposes of this Agreement, an
Acceleration Event is any of the following: (a)
CONSULTANT’s death; (b) CONSULTANT’s permanent
disability (as determined in good faith by the Company, taking into
account any evidence of such permanent disability provided by or on
behalf of CONSULTANT); or (c) the occurrence of an event of “
Change in Control ”, as so determined by the
Company’s Board of Directors pursuant to Section 10.4 of
the Company’s 2004 Equity Incentive Plan.
4.
Other Employment .
4.1.
Other Affiliation . CONSULTANT represents that he is
not now and will not at any time during the term of this Agreement
be a party to any agreement that would prevent
him
from entering into this Agreement, and that CONSULTANT is not a
party to any agreement with third parties which may restrict his
consulting activities on behalf of the Company or obligate
CONSULTANT to assign inventions.
4.2.
Conflict of Interest . CONSULTANT warrants that he is
not obligated under any other consulting, employment, or other
agreement which would affect the Company’s rights or
CONSULTANT’s duties under this Agreement.
5.
Confidentiality .
5.1.
Protection of Information and Scientific Publications
. CONSULTANT shall hold all the Company Confidential
Information (as defined below) in confidence and shall not disclose
Confidential Information to any unauthorized person. Except
as required in his duties for the Company, CONSULTANT will never
directly or indirectly use, disseminate, disclose, lecture upon, or
publish articles concerning, Confidential Information or remove
Confidential Information from the Company’s premises.
5.2.
Records . CONSULTANT agrees to keep separate and
segregated from other work all documents, records, notebooks and
correspondence which directly relate to his work under this
Agreement.
5.3.
Company Property . All notes, memoranda, reports,
drawings, manuals, materials, files, samples, products, data, and
any papers or records of every kind which are or shall come into
CONSULTANT’s possession at any time during the Consulting
Period related to the business of the Company shall be the sole and
exclusive property of the Company, whether or not such items are
Confidential Information. This property shall be surrendered
to the Company upon termination of the Consulting Period or upon
request of the Company at any time either during or after the
termination of the Consulting Period, and no copies, notes, or
excerpts thereof shall be retained.
5.4.
Information of Others . CONSULTANT will safeguard and
keep confidential the proprietary information of customers,
vendors, consultants, and other parties with which the Company does
business to the same extent as if it were Company Confidential
Information. CONSULTANT will not, during his consulting with
the Company or otherwise, use or disclose to the Company any
confidential, trade secret, or other proprietary information or
material of any previous employer or other person, and will not
bring onto the Company’s premises any unpublished document or
any other property belonging to any former employer without the
written consent of that former employer.
6.
Inventions .
6.1.
Company Property . All Inventions (as defined below)
made, conceived, or completed by CONSULTANT, individually or in
conjunction with others, resulting from work or consulting services
performed by CONSULTANT on behalf of the Company or from access to
the Company Confidential Information or property, whether or not
patentable, copyrightable, or qualified for mask work protection,
shall be the sole and exclusive property of the Company and
2
to
the extent permitted by law shall be “works made for
hire.R
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