STOCK PURCHASE AGREEMENT
Exhibit
22
THIS
STOCK PURCHASE AGREEMENT (“Agreement”) is made
and entered into this 3rd day of September, 2008, by and between QUESTCOR
PHARMACEUTICALS, INC., a California corporation (the “Company”) and
INVERLOCHY CONSULTADORIA & SERVICOS L.D.A., a corporation organized under
the laws of Portugal (“Shareholder”).
RECITALS
A. Shareholder
holds of record Four Million Seven Hundred and One Thousand and Four Hundred and
Forty-Five (4,701,445) shares of the Common Stock, no par value, of the
Company.
B. The
Company desires to repurchase One Million and Eight Hundred Thousand (1,800,000)
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 Nine Million and One Hundred-Eight
Thousand U.S. Dollars ($9,108,000) (the “Repurchase Price”)
representing a per share price of Five U.S. Dollars and Six Cents ($5.06), all
on the terms set forth in this Agreement.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
AGREEMENT
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.
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 the 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.
1. 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 therefore, 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.
2. Company
Representations.
(a) Legal
Power. Company
represents and warrants to Shareholder that 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.
3. 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.
IN WITNESS WHEREOF, the undersigned have
executed this Agreement as of the date first written above.
“COMPANY”
QUESTCOR PHARMACEUTICALS,
INC.
a California
corporation
/s/ Xxx
Xxxxxx
Xxx Xxxxxx
President and Chief Executive
Officer
INVERLOCHY CONSULTADORIA & SERVICOS
L.D.A.
/s/ Xxxxxxx
Xxxxxx xx Xxxxxx Xxxxx
By: Xxxxxxx Xxxxx xx Xxxxxx
Xxxxx
Its: Director