STOCK PURCHASE AGREEMENT
Exhibit 23
THIS STOCK PURCHASE AGREEMENT (“Agreement”) is made
and entered into this 13th day of August, 2008, by and between QUESTCOR
PHARMACEUTICALS, INC., a California corporation (the “Company”) and
CHAUMIERE CONSULTADORIA & SERVICOS SDC UNIPESSOAL L.D.A., a corporation
organized under the laws of Portugal (“Shareholder”).
RECITALS
A. Shareholder
holds of record Seven Million, One Hundred and Eight Thousand, Eight Hundred and
Eighty Nine (7,108,889) shares of the Common Stock, no par value, of the
Company.
B. The
Company desires to repurchase Two Million and Two Hundred Thousand (2,200,000)
of the shares from Shareholder (the “Repurchased Shares”)
and Shareholder desires to sell the Repurchased Shares to the Company, for an
aggregate repurchase consideration equal to Ten Million Eight Hundred Ninety
Thousand U.S. Dollars ($10,890,000) (the “Repurchase Price”)
representing a per share price of Four U.S. Dollars and Ninety-Five Cents
($4.95), all on the terms set forth in this Agreement (the “Repurchase”).
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
AGREEMENT
1. Repurchase. Shareholder
agrees to and does hereby sell, transfer and convey to the Company the
Repurchased Shares, free and clear of all liens, claims and encumbrances, and
the Company agrees to and does hereby purchase the Repurchased
Shares. In consideration of the sale and transfer of the Repurchased
Shares, the Company shall pay to Shareholder the Repurchase Price, all on the
terms set forth in this Agreement. As a result of the Repurchase, in
accordance with the Company’s Articles of Incorporation and the California
General Corporation Law, the Repurchased Shares shall return to the status of
authorized by unissued shares of the Company.
2. Deliveries. The
Company shall pay to Shareholder the Repurchase Price by wire transfer in
immediately available funds. Promptly following the date of this
Agreement, Shareholder shall deliver to the Company duly executed stock powers
in the form of Exhibit A attached hereto transferring the Repurchased Shares to
the Company and stock certificates including the Repurchased Shares registered
in the name of such Shareholder for cancellation and return to the Company’s
stock record book. Upon receipt of the stock certificates and duly
executed stock powers, the Company shall direct its transfer agent to issue a
new stock certificate representing any remaining shares included in the stock
certificates delivered by Shareholder to the Company. Shareholder has
provided the correct wire transfer instructions to effect the wire transfer to
the Company.
3. Representations, Warranties
and Covenants of the Shareholder. Shareholder hereby
represents, warrants and covenants to the Company as follows:
(a) Legal
Power. Shareholder has the requisite legal power and authority
to enter into this Agreement, to deliver the Repurchased Shares and to carry out
and perform its obligations under the terms of this Agreement, without obtaining
the approval or consent of any other party or authority.
(b) Title to
Shares. Shareholder owns the Repurchased Shares free and clear
of all liens, charges, claims, encumbrances, security interests, equities,
restrictions on transfer (other than restrictions under applicable securities
laws) or other defects in title of any kind or description and, upon delivery of
the Repurchased Shares and receipt of the Repurchase Price therefor, Shareholder
will convey to the Company valid and marketable title to the Repurchased Shares,
free and clear of all liens, charges, claims, encumbrances, security interests,
equities, restrictions on transfer (other than restrictions under applicable
securities laws) or other defects in title or description.
(c) Investment
Representations. Due to Shareholder’s pharmaceutical industry
experience, Shareholder possesses the expertise to be able to fend for itself in
the transaction contemplated by this Agreement. Shareholder has had,
during the course of this transaction and prior hereto, the opportunity to ask
questions of, and receive answers from, the Company and its management
concerning the Company, its operations and prospects, and the terms and
conditions of this Agreement. Shareholder is entering into this
Agreement freely and understands and expressly accepts and assumes the economic
and market risk associated with the transactions contemplated by this Agreement
and agrees that this Agreement shall be in all respects effective and not
subject to termination or rescission under any circumstances.
(d) Tax
Matters. Shareholder acknowledges that the Company is making
no representation or warranty as to the tax consequences for Shareholder in
selling the Shares for the Repurchase Price pursuant to this
Agreement. Shareholder further acknowledges that it has had an
opportunity to seek independent counsel and advisors with respect to tax and
other matters relating to this Agreement, and Shareholder acknowledges and
agrees that it shall bear its own tax consequences, if any, of Shareholder’s
selling the Repurchased Shares for the Repurchase Price pursuant to the terms of
this Agreement. The Company acknowledges and agrees that it shall
bear its own tax consequences, if any, of the Company’s purchasing the
Repurchased Shares for the Repurchase Price pursuant to the terms of this
Agreement. Following execution of this Agreement, Shareholder will
promptly deliver to the Company a properly executed IRS Form W-8.
4. Company
Representations. The Company represents and warrants to
Shareholder that:
(a) Legal
Power. This Agreement has been duly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms and no consent,
approval or authorization of, exemption by, or filing with, any governmental or
regulatory authority is required in connection with the execution, delivery and
performance by the Company of this Agreement, other than the filing of a Form
8-K with the Securities and Exchange Commission.
(b) Accounting
Treatment. The Company will account for the Repurchase in its
financial statements as a reduction of the line item “common stock” on its
balance sheet and the Repurchase has no impact on the Company’s income statement
or its accumulated deficit.
5. Miscellaneous.
(a) Entire
Agreement. This Agreement represents and contains the full,
final and complete agreement and understanding between the parties hereto
relating to or connected with the subject matter hereof. This
Agreement shall not be amended except in a writing signed by the parties
hereto. Notwithstanding the foregoing, each party agrees that, at any
time and from time to time after the date hereof, it will take any and all
actions and execute and deliver to any other party such further instruments or
documents as may reasonably be required to give effect to the intentions of the
parties as contemplated under this Agreement.
(b) Governing Law and
Venue. This Agreement was entered into in the State of
California, and its validity, construction, interpretation and legal effect
shall be governed by the laws and judicial decisions of the State of California
applicable to contracts entered into and performed entirely within the State of
California and by applicable federal law, and the choice-of-law provisions of
California law shall not be applied to substitute the law of any other State or
nation. The parties expressly agree that any action arising out of or
relating to this Agreement shall be filed and maintained only in the courts of
the State of California for the County of Alameda, or the United States District
Court for the Northern District of California. The parties hereby
consent and submit to the personal jurisdiction of such courts for the purposes
of litigating any such action, and that each such court is a proper venue for
litigating any such action.
(c) Attorneys’
Fees. In the event that either party to this Agreement shall
commence any action to interpret or enforce this Agreement or any action to
enforce or appeal any decision or judgment rendered in connection therewith, the
prevailing party in any such action or actions shall recover such party’s
reasonable costs and expenses incurred in connection therewith, including
reasonably attorneys’ fees.
(d) Counterparts. This
Agreement may be executed in two or more counterparts, which shall together
constitute one and the same agreement.
[Signature
page follows]
IN WITNESS WHEREOF, the undersigned
have executed this Agreement as of the date first written above.
“COMPANY”
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QUESTCOR
PHARMACEUTICALS, INC.
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a
California corporation
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/s/ Xxx
Xxxxxx
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Xxx
Xxxxxx
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President
and Chief Executive Officer
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CHAUMIERE
CONSULTADORIA & SERVICOS
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SDC
UNIPESSOAL L.D.A.
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/s/ Xxxxxxx
Xxxxxx xx Xxxxxx Xxxxx
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By: Xxxxxxx
Xxxxxx xx Xxxxxx Xxxxx
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Title: Director
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