REDEMPTION AGREEMENT
Exhibit 10.74
THIS REDEMPTION AGREEMENT (“Agreement”) is made and entered into this 19th day of
February, 2008, by and between QUESTCOR PHARMACEUTICALS, INC., a California corporation
(“Company”) and SHIRE PHARMACEUTICALS, INC., a Delaware corporation
(“Shareholder”).
RECITALS
A. Shareholder holds of record 2,155,715 shares of the Series A Preferred Stock, no par value,
of the Company (the “Shares”), by way of corporate merger with Xxxxxxx Pharmaceuticals
Corporation, previous holder of the Shares.
B. The Company desires to repurchase the Shares from Shareholder and Shareholder desires to
sell the Shares to the Company, for an aggregate repurchase consideration equal to U.S. $10,347,432
(the “Repurchase Price”) representing a per share price of U.S. $4.80, 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
1. Repurchase. Shareholder agrees to and does hereby sell, transfer and convey to the
Company the Shares, free and clear of all liens, claims and encumbrances, and the Company agrees to
and does hereby purchase the Shares. In consideration of the sale and transfer of the Shares, and
the waiver and termination of all rights, interests and obligations relating to or arising from
Shareholder’s ownership of the Shares, including any rights, interests and obligations under the
Company’s Articles of Incorporation, and any and all other agreements providing shareholder or
investor rights to which Shareholder is or may be deemed to be a party, and in full payment
therefor, the Company shall pay to Shareholder the Repurchase Price, all on the terms set forth in
this Agreement.
2. Deliveries. Concurrently with the purchase and sale contemplated by Section 1,
Shareholder shall deliver a duly executed stock power in the form of Exhibit A attached
hereto transferring the Shares to the Company, together with stock certificate A-2 representing the
Shares registered in the name of Shareholder for cancellation and return to the Company’s stock
record book. Against delivery by Shareholder of the executed stock power and the stock certificate
representing the Shares, the Company shall pay the Repurchase Price to Shareholder by wire transfer
in immediately available funds. Shareholder has provided the correct wire transfer instructions to
effect the wire transfer to the Company.
3. Representations, Warranties and Covenants of 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 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 Shares free and clear of all liens,
charges, claims, encumbrances, security interests, equities, restrictions on transfer or other
defects in title of any kind or description and, upon delivery of the Shares and receipt of the
Repurchase Price therefor, Shareholder will convey to the Company valid and marketable title to the
Shares, free and clear of all liens, charges, claims, encumbrances, security interests, equities,
restrictions on transfer or other defects in title or description.
(c) Investment Representations.
(i) Shareholder is a company in the pharmaceutical industry. Due to Shareholder’s
pharmaceutical experience, including its experience in maintaining and divesting equity positions
in other pharmaceutical companies, Shareholder possesses the expertise to be able to fend for
itself in the transaction contemplated by this Agreement, and is capable of evaluating and bearing
the risks and merits of selling the Shares for the Repurchase Price and pursuant to the terms of
this Agreement.
(ii) 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.
(iii) Shareholder believes that it has received all such information as it considers necessary
for evaluating the risks and merits of selling the Shares for the Repurchase Price and pursuant to
the terms of this Agreement and for verifying the accuracy of any information furnished to it or to
which it had access.
(iv) Neither the Company, nor any affiliate of the Company, has made any representations or
warranty, express or implied, regarding any aspect of the transaction except as set forth herein
this Agreement, and Shareholder is not relying on any such representation or warranty not contained
in this Agreement.
(v) Shareholder acknowledges that this Agreement is being entered into during a regularly
scheduled trading black-out under the Company’s Xxxxxxx Xxxxxxx Compliance Program and that the
Company may possess or have access to material non-public information which has not been
communicated to Shareholder.
(d) Acceptance of Risk. Shareholder is entering into this Agreement freely and
understands and expressly accepts and assumes the economic and market risk associated with selling
the Shares for the Repurchase Price and agrees that this Agreement shall be in all respects
effective and not subject to termination or rescission under any circumstances.
(e) Tax Consequences. 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
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this Agreement, and Shareholder acknowledges and agrees that it shall bear the full tax
consequences, if any, of selling the Shares for the Repurchase Price and pursuant to the terms of
this Agreement in all circumstances.
(f) US Person. Shareholder is a “United States person” within the meaning of Section
7701(a)(30) of the Internal Revenue Code of 1986 as amended.
(g) Indemnification Covenant. Shareholder is aware that the Company is relying upon
the truth of the foregoing representations in this Section 3 in connection with the transaction.
Shareholder shall indemnify, protect, defend and hold free and harmless the Company from and
against all losses resulting from the defense, settlement or compromise of a claim or demand or
assessment incurred by the Company as a result of any breach by Shareholder of any of its
representations, warranties or covenants contained in this Agreement.
4. Company Representations. 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.
5. Mutual Release.
(a) Except for the duties, obligations and representations set forth in this Agreement, the
parties hereto hereby release, discharge and acquit each other, as well as, to the extent
applicable, their respective officers, directors, shareholders, partners, employees, agents,
successors and assigns, and any parent, subsidiary or affiliated entity, past, present, or future,
from any and all claims, demands, costs, contracts, liabilities, objections, actions and causes of
action of every nature, whether in law or in equity, known or unknown, suspected or unsuspected,
which the parties ever had or now have or may claim to have against each other of any type, nature
or description prior to the execution and delivery hereof with respect to or arising from the
purchase or ownership of the Shares by Shareholder. In addition, Shareholder waives any and all
claims it may have or may hereafter acquire against the Company, relating to any failure to
disclose non-public information in connection with the transaction.
(b) Waiver of §1542 – Each of the parties acknowledges that each is aware that they may
hereafter discover facts different from or in addition to what such party knows or believes to be
true with respect to the matters released in this Agreement. Each of the parties agrees and
acknowledges that the releases granted herein are general releases as to all matters released in
this Agreement. Each of the parties acknowledges that such party has been informed of Section 1542
of the Civil Code of the State of California, and does hereby expressly waive and relinquish all
rights and benefits which such Party has or may have under that Section, which reads as follows:
“A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at the
time of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor..”
6. 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
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subject matter hereof. 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. This Agreement shall not be
amended except in a writing signed by the parties hereto.
(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. Notwithstanding the foregoing, each party agrees that in the event that a party hereto
(the “Involved Party”) becomes involved in any legal action with a third party, and either:
(i) the other party hereto (the “Non-involved Party”) is a necessary party to the
resolution of such legal action, or (ii) the particular legal action gives rise to legal claims
between the parties hereto arising out of or relating to this Agreement, then the Non-involved
Party will submit to the personal jurisdiction of the court in which such action is maintained, and
action to resolve such legal claims between the parties may be brought or maintained in the same
court in which the legal action involving the third party is maintained.
(g) Severability. In the event that any of the provisions of this Agreement shall be
held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining
portions of this Agreement shall remain in full force and effect.
(h) 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 party in any such action or actions shall recover
such party’s reasonable costs and expenses incurred in connection therewith, including reasonably
attorneys’ fees.
(i) Specific Performance. Shareholder acknowledges that money damages would not be a
sufficient remedy for any breach of this Agreement and that irreparable harm would result if this
Agreement were not specifically enforced. Therefore, the rights of the Company and the obligations
of Shareholder under this Agreement shall be enforceable by a decree of specific performance issued
by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and
granted in connection therewith. The Company’s right to specific performance shall be in addition
to all other legal or equitable remedies available to the Company.
(j) Headings. The headings of the Sections and subsections contained in this
Agreement are for reference purposes only, and shall not affect the meaning or interpretation of
this Agreement.
(k) Counterparts. This Agreement may be executed in two or more counterparts, which
shall together constitute one and the same agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.
| “COMPANY” | “SHAREHOLDER” | |||||||
| QUESTCOR PHARMACEUTICALS, INC.
a California corporation |
SHIRE PHARMACEUTICALS, INC.
a Delaware corporation |
|||||||
| /s/ Xxxxxx X. Xxxxxx | /s/ Xxxxx Xxxxxxxxx | |||||||
Xxxxxx X. Xxxxxx
|
BY: | Xxxxx Xxxxxxxxx | ||||||
Senior Vice President, Finance
|
ITS: | Secretary | ||||||
and Chief Financial Officer |
||||||||
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EXHIBIT A
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto QUESTCOR
PHARMACEUTICALS, INC., a California corporation (the “Company”), 2,155,715 shares of the
Series A Preferred Stock, no par value, of the Company, standing in the undersigned’s name on the
books of the Company, represented by Certificate No. A-2 herewith, and does hereby irrevocably
constitute and appoint Xxxxxx X. Xxxxxx, as attorney-in-fact, to transfer said stock on the books
of the Company with full power of substitution in the premises.
| Dated: 19 February, 2008 | /s/ Xxxxx Xxxxxxxxx | |||||||
| SHIRE PHARMACEUTICALS, INC. | ||||||||
| BY: | Xxxxx Xxxxxxxxx | |||||||
| ITS: | Secretary | |||||||
