exv10w4



 







Exhibit 10.4









RESTRICTED STOCK AWARD AGREEMENT




     THIS RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”) is entered into as of                     , 200_
by and between                      (hereinafter referred to as “Purchaser”) and Questcor Pharmaceuticals,
Inc., a California corporation (hereinafter referred to as the “Company”), pursuant to the
Company’s 2006 Equity Incentive Award Plan (the “Plan”). Any capitalized term not defined herein
shall have the same meaning ascribed to it in the Plan.



R E C I T A L S:




     A. Purchaser is an employee or director of the Company, and in connection therewith has
rendered services for and on behalf of the Company or any Subsidiary.



     B. The Company desires to issue shares of the Company’s Common Stock to Purchaser for the
consideration set forth herein to provide an incentive for Purchaser to remain in the service of
the Company and to exert added effort towards its growth and success.



     NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, and for other
good and valuable consideration, the parties agree as follows:



          1. Issuance of Shares. The Company hereby offers to issue to Purchaser an aggregate
of                      (                    ) shares of Common Stock of the Company (the “Shares”) on the terms and
conditions herein set forth. Unless this offer is earlier revoked in writing by the Company,
Purchaser shall have ten (10) days from the date of the delivery of this Agreement to Purchaser to
accept the offer of the Company by executing and delivering to the Company two (2) copies of this
Agreement, without condition or reservation of any kind whatsoever, together with the consideration
to be delivered by Purchaser pursuant to Section 2 below, if applicable.




          2. Consideration. The purchase price for the Shares shall be                      ($                    ) per
share, or a total of                      ($                    ).




          3. Vesting of Shares. Subject to the limitations contained herein, the Shares shall
vest over a period of four years beginning                      ___, 20___under the following schedule: 1/4 of
the total number of Shares will vest on the first (1st ) anniversary of the date of this
Agreement. Thereafter, the remaining Shares will vest at the rate of 1/4th of the total Shares on
each subsequent anniversary of the date of this Agreement, such that all Shares shall be vested as
of the fourth (4th) anniversary of the date of this Agreement. Shares that are not
vested shall be referred to as “Unvested Shares.” Notwithstanding the foregoing, in the event of a
Change in Control of the Company, then the Shares shall become vested as provided in Section 12.2
of the Plan. No additional shares shall vest after the date of termination of Purchaser’s service
to the Company.




          4. Reconveyance Upon Termination of Service.




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               (a) Repurchase Right. The Company shall have the right (but not the obligation) to repurchase
all or any part of the Unvested Shares (the “Repurchase Right”) in the event that the Purchaser’s
service to the Company terminates for any reason. Upon exercise of the Repurchase Right, the
Purchaser shall be obligated to sell his or her Unvested Shares to the Company, as provided in this
Section 4. If the Purchase Price paid for the Shares is zero, then upon termination of service
Purchaser shall be obligated to transfer his or her Unvested Shares to the Company without
consideration.



               (b) Consideration for Repurchase Right. The repurchase price of the Unvested Shares (the
“Repurchase Price”) shall be equal to the Purchase Price, if any, of such Unvested Shares.



               (c) Procedure for Exercise of Reconveyance Option. For sixty (60) days after the Termination
Date or other event described in this Section 4, the Company may exercise the Repurchase Right by
giving Purchaser and/or any other person obligated to sell written notice of the number of Unvested
Shares which the Company desires to purchase. The Repurchase Price for the Unvested Shares shall
be payable, at the option of the Company, by check or by cancellation of all or a portion of any
outstanding indebtedness of Purchaser to the Company, or by any combination thereof.



               (d) Notification and Settlement. In the event that the Company has elected to exercise the
Repurchase Right as to part or all of the Unvested Shares within the period described above and the
Company has previously issued certificates to Purchaser for the Shares, Purchaser or such other
person shall deliver to the Company certificate(s) representing the Unvested Shares to be acquired
by the Company within thirty (30) days following the date of the notice from the Company. The
Company shall deliver to Purchaser against delivery of the Unvested Shares, checks of the Company
payable to Purchaser and/or any other person obligated to transfer the Unvested Shares in the
aggregate amount of the Repurchase Price, if any, to be paid as set forth in paragraph 4(b) above.



               (e) Deposit of Unvested Shares. Purchaser shall deposit with the Company certificates
representing the Unvested Shares, together with a duly executed stock assignment separate from
certificate in blank, which shall be held by the Secretary of the Company. Purchaser shall be
entitled to vote and to receive dividends and distributions on all such deposited Unvested Shares.



               (f) Assignment. The Company may assign its Repurchase Right under this Section 4 without the
consent of the Purchaser.



          5. Restrictions on Unvested Shares. Unvested Shares may not be sold, transferred,
pledged, or otherwise disposed of, except that such Unvested Shares may be transferred to a trust
established for the sole benefit of the Purchaser and/or his or her spouse, children or
grandchildren. Any Unvested Shares that are transferred as provided herein remain subject to the
terms and conditions of this Agreement.




          6. Adjustments Upon Changes in Capital Structure. In the event that the outstanding
Shares of Common Stock of the Company are hereafter increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the Company by reason of
a recapitalization, stock split, combination of shares, reclassification, stock




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dividend, or other change in the capital structure of the Company, then Purchaser shall be
entitled to new or additional or different shares of stock or securities, in order to preserve, as
nearly as practical, but not to increase, the benefits of Purchaser under this Agreement, in
accordance with the provisions of Section 12.1 of the Plan. Such new, additional or different
shares shall be deemed “Shares” for purposes of this Agreement and subject to all of the terms and
conditions hereof.




          7. Shares Free and Clear. All Shares purchased by the Company (or otherwise returned
to the Company) pursuant to this Agreement shall be delivered by Purchaser free and clear of all
claims, liens and encumbrances of every nature (except the provisions of this Agreement and any
conditions concerning the Shares relating to compliance with applicable federal or state securities
laws), and the purchaser thereof shall acquire full and complete title and right to all of such
Shares, free and clear of any claims, liens and encumbrances of every nature (again, except for the
provisions of this Agreement and such securities laws).




          8. Limitation of Company’s Liability for Nonissuance; Unpermitted Transfers.




               (a) The Company agrees to use its reasonable best efforts to obtain from any applicable
regulatory agency such authority or approval as may be required in order to issue and sell the
Shares to Purchaser pursuant to this Agreement. The inability of the Company to obtain, from any
such regulatory agency, authority or approval deemed by the Company’s counsel to be necessary for
the lawful issuance and sale of the Shares hereunder and under the Plan shall relieve the Company
of any liability in respect of the nonissuance or sale of such Shares as to which such requisite
authority or approval shall not have been obtained.



               (b) The Company shall not be required to: (i) transfer on its books any Shares of the Company
which shall have been sold or transferred in violation of any of the provisions set forth in this
Agreement, or (ii) treat as owner of such shares or to accord the right to vote as such owner or to
pay dividends to any transferee to whom such shares shall have been so transferred.



          9. Notices. All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have been duly given and
effective (i) when delivered by hand, (ii) when otherwise delivered against receipt therefor, or
(iii) three (3) business days after being mailed if sent by registered or certified mail, postage
prepaid, return receipt requested. Any notice shall be addressed to the parties as follows or at
such other address as a party may designate by notice given to the other party in the manner set
forth herein:



(a) if to the Company:



Questcor Pharmaceuticals, Inc.

3260 Whipple Road,

Union City, California, 94587,

Attention: Chief Financial Officer




                 (b) if to the Purchaser, at the address shown on the signature page of this Agreement or at
his most recent address as shown in the employment or stock records of the Company.



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          10. Binding Obligations. All covenants and agreements herein contained by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the parties hereto and
their permitted successors and assigns.




          11. Captions and Section Headings. Captions and section headings used herein are for
convenience only, and are not part of this Agreement and shall not be used in construing it.




          12. Amendment. This Agreement may not be amended, waived, discharged, or terminated
other than by written agreement of the parties.




          13. Entire Agreement. This Agreement and the Plan constitute the entire agreement
between the parties with respect to the subject matter hereof and supersede all prior or
contemporaneous written or oral agreements and understandings of the parties, either express or
implied.




          14. Assignment. Purchaser shall have no right, without the prior written consent of
the Company, to (i) sell, assign, mortgage, pledge or otherwise transfer any interest or right
created hereby, or (ii) delegate his or her duties or obligations under this Agreement. This
Agreement is made solely for the benefit of the parties hereto, and no other person, partnership,
association or corporation shall acquire or have any right under or by virtue of this Agreement.




          15. Severability. Should any provision or portion of this Agreement be held to be
unenforceable or invalid for any reason, the remaining provisions and portions of this Agreement
shall be unaffected by such holding.




          16. Counterparts. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one agreement and any party hereto may execute this Agreement
by signing any such counterpart. This Agreement shall be binding upon Purchaser and the Company at
such time as the Agreement, in counterpart or otherwise, is executed by Purchaser and the Company.




          17. Applicable Law. This Agreement shall be construed in accordance with the laws of
the State of California without reference to choice of law principles, as to all matters,
including, but not limited to, matters of validity, construction, effect or performance.




          18. No Agreement to Employ. Nothing in this Agreement shall affect any right with
respect to continuance of employment by the Company or any of its subsidiaries. The right of the
Company or any of its subsidiaries to terminate at will the Purchaser’s employment at any time
(whether by dismissal, discharge or otherwise), with or without cause, is specifically reserved,
subject to any other written employment agreement to which the Company and Purchaser may be a
party.




          19. “Market Stand-Off” Agreement. Purchaser agrees that, if requested by the Company
or the managing underwriter of any proposed public offering of the Company’s securities (including
any acquisition transaction where Company securities will be used as all or part of the purchase
price), Purchaser will not sell or otherwise transfer or dispose of any Shares held by Purchaser
without the prior written consent of the Company or such underwriter, as the case may be, during
such period of time, not to exceed 180 days following the effective date of the registration




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statement filed by the Company with respect to such offering, as the Company or the
underwriter may specify.




          20. Tax Elections. Purchaser understands that Purchaser (and not the Company) shall
be responsible for the Purchaser’s own tax liability that may arise as a result of the acquisition
of the Shares. Purchaser acknowledges that Purchaser has considered the advisability of all tax
elections in connection with the purchase of the Shares, including the making of an election under
Section 83(b) under the Internal Revenue Code of 1986, as amended (“Code”); Purchaser further
acknowledges that the Company has no responsibility for the making of such Section 83(b) election.
In the event Purchaser determines to make a Section 83(b) election, Purchaser agrees to timely
provide a copy of the election to the Company as required under the Code.




          21. Attorneys’ Fees. If any party shall bring an action in law or equity against
another to enforce or interpret any of the terms, covenants and provisions of this Agreement, the
prevailing party in such action shall be entitled to recover reasonable attorneys’ fees and costs.




[Signature Page Follows]




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	THE COMPANY:	 	PURCHASER:
	 
	 	 	 	 
	QUESTCOR PHARMACEUTICALS, INC.	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	Name:

	 	 	 	[Print Name]
	 

	 	 	 	 
	 
	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Address:
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 

	 	 	 	 






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CONSENT AND RATIFICATION OF SPOUSE




     The undersigned, the spouse of                                         , a party to the attached Restricted Stock
Award Agreement (the “Agreement”), dated as of                     , hereby consents to the execution of
said Agreement by such party; and ratifies, approves, confirms and adopts said Agreement, and
agrees to be bound by each and every term and condition thereof as if the undersigned had been a
signatory to said Agreement, with respect to the Shares (as defined in the Agreement) made the
subject of said Agreement in which the undersigned has an interest, including any community
property interest therein.



     I also acknowledge that I have been advised to obtain independent counsel to represent my
interests with respect to this Agreement but that I have declined to do so and I hereby expressly
waive my right to such independent counsel.



	 	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 
	 	 
	 

	 	 	 	(Signature)
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	(Print Name)







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