exv10w73






Exhibit 10.73



*** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS
REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.



SETTLEMENT AGREEMENT 




     This Settlement Agreement (the “Agreement”) is made and entered into as of January 21, 2011
(the “Settlement Date”), by and between Impax Laboratories, Inc., a Delaware corporation, (“Impax”)
and Medicis Pharmaceutical Corp., a Delaware corporation (“Medicis”). Impax and Medicis are each
referred to as a “Party” and collectively referred to as the “Parties.”



RECITALS



     WHEREAS, Impax has asserted various claims and causes of action against Medicis in an action
captioned Impax Laboratories, Inc. v. Medicis Pharmaceutical Corp., Case No. cv 2010-022735
(the “Litigation”), which is pending in the Superior Court of Maricopa County, Arizona (the
“Court”);



     WHEREAS, Medicis has asserted various counterclaims and causes of action against Impax in the
Litigation;



     WHEREAS, Medicis and Impax both deny any wrongdoing or liability;



     WHEREAS, to avoid the expense of further litigation, and without any admission of wrongdoing
or liability, the Parties desire to settle the Litigation on the terms set forth herein.



     NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and promises set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:


1. Dismissal Order. *** the Parties shall file a notice of settlement with the Court. ***
the Parties shall file with the Court a Stipulation and Order, in the form attached as Exhibit A,
dismissing the Litigation with prejudice, with each side to bear its own costs and attorneys’ fees.



2. ***



3. ***



4. No Liability. ***



5. Amendments.




     5.1 That certain Joint Development Agreement entered into between the Parties and dated
November 26, 2008 (as amended, the “JDA”) is hereby amended by replacing the first sentence of
Section 6.3 of the JDA with the following sentence:




     “Subject to the terms and conditions of this Agreement, within sixty (60) days
following the end of each calendar quarter, Impax shall pay to Medicis ***



 









 





     5.2 The Joint Development Agreement is hereby further amended by replacing the first sentence
of Section 6.4 of the JDA with the following sentence:




     “Subject to the terms and conditions of this Agreement, Medicis shall pay to Impax ***



     5.3 The Joint Development Agreement is hereby further amended by replacing the first sentence
of Section 6.5 of the JDA with the following sentence:




     “Subject to the terms and conditions of this Agreement, Medicis shall pay to
Impax ***


6. Confidentiality. The Parties agree that, except as otherwise may be required by
applicable laws, regulations, rules or orders, no information concerning this Agreement shall be
made public by either Party without the prior written consent of the other.



7. No Prior Transfer. The Parties hereby mutually represent and warrant that there has
been no assignment, sale or other transfer or disposition of any interest in any of the Claims.



8. Due Authorization. The Parties represent and warrant that the individuals signing this
Agreement on their behalf are duly authorized and fully competent to do so.



9. Assignment, Predecessors, Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the Parties and their respective successors and assigns.



10. Construction. The Parties hereby mutually acknowledge and represent that they have
been fully advised by their respective legal counsel of their rights and responsibilities under
this Agreement, that they have read, know and understand completely the contents of this Agreement,
and that they have voluntarily executed the same. The Parties further mutually acknowledge that
they have had input into the drafting of this Agreement and that, accordingly, in any construction
to be made of the Agreement, it shall not be construed for or against any party, but rather shall
be given a fair and reasonable interpretation, based on the plain language of the Agreement and the
expressed intent of the Parties.



11. Entire Agreement. The Parties acknowledge that this Agreement sets forth the entire
agreement and understanding of the Parties and supersedes all prior written or oral agreements or
understandings with respect to the subject matter hereof. No modification of any of the terms of
this Agreement, or any amendments thereto, shall be deemed to be valid unless in writing and signed
by an authorized agent or representative of both parties hereto. No course of dealing or usage of
trade shall be used to modify the terms and conditions herein. This Agreement shall be binding on
each of Impax and Medicis and their respective permitted successors and assigns.
Except as expressly set forth herein, the License Agreement and JDA shall remain in full force and
effect in accordance with their respective terms.



12. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. The Parties agree that telecopied or PDF copies of signatures will be sufficient, with
original signature pages to be supplied and exchanged at a later date.




 









 







13. Governing Law. In any action brought regarding the validity, construction and
enforcement of this Agreement, it shall be governed in all respects by the laws of the State of
Arizona, without regard to the principles of conflicts of laws. The federal and state courts in
the State of Arizona shall have jurisdiction over the parties hereto in all matters arising
hereunder and the parties hereto agree that the venue with respect to such matters will be a state
or federal court in the State of Arizona.



14. Waiver of Claims and Defenses. The Parties agree that this Agreement shall not be
subject to any claim of duress, mistake of law or mistake of fact, and that it expresses the full
and complete settlement of the Parties.







 









 







IN WITNESS WHEREOF, the Parties have fully executed and delivered this Settlement Agreement as of
the day and year first written above.




	 	 	 	 	 
	 	

IMPAX LABORATORIES, INC.

 	 
	 	By:  	/s/ Larry Hsu
 	 
	 	 	Name:  	Larry Hsu                                         	 
	 	 	Title:  	President & CEO 	 



	 	 	 	 	 
	 	

MEDICIS PHARMACEUTICAL CORP.

 	 
	 	By:  	/s/ Richard D. Peterson
 	 
	 	 	Name:  	Richard D. Peterson                                       	 
	 	 	Title:  	EVP, CFO & Treasurer 	 
	 




 











 





Exhibit A




Patricia Lee Refo (#017032)

Kelly Kszywienski (#025578)

Snell & Wilmer LLP

400 E. Van Buren

Phoenix, AZ 85004-2202

Telephone: (602) 382-6290

Facsimile: (602) 382-6070

prefo@swlaw.com

kkszywienski@swlaw.com




Of Counsel:




Andrew M. Berdon (NY Bar No. 2214138)

Quinn Emmanuel Urquhart & Sullivan, LLP

51 Madison Avenue, 22nd Floor

New York, New York 10010

Telephone: (212) 849-7000

Email: andrew.berdon@quinnemanuel.com




Thomas C. Frongillo (Mass. Bar No. 180690)

Weil, Gotshal & Manges LLP

100 Federal Street, Floor 34

Boston, MA 02110

Telephone: (617) 772-8335

Email: thomas.frongillo@weil.com




Danielle Rosenthal

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

Telephone: (212) 310-8000

Facsimile: (212) 310-8007

Email: danielle.rosenthal@weil.com




Attorneys for Defendant Medicis Pharmaceutical Corp.




IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA




	 	 	 

	Impax Laboratories, Inc.,

	 	No. CV 2010-022735
	 
	 	 
	Plaintiff,

	 	STIPULATION FOR DISMISSAL

WITH PREJUDICE
	          v.
	 	 
	 
	Medicis Pharmaceutical Corp.,

	 	(Assigned to the Honorable John A.
Buttrick)
	 
	 	 
	Defendant.
	 	 






 









 






     Plaintiff Impax Laboratories, Inc. and Defendant Medicis Pharmaceutical Corp., by and through
counsel undersigned, stipulate and agree that this matter shall be dismissed with prejudice, each
party to bear its own costs and attorneys’ fees.



     DATED this ___ day of January 2011.



	 	 	 	 	 	 	 	 	 

	SNELL & WILMER L.L.P.	 	 	 	MARISCAL, WEEKS, MCINTYRE &

FRIEDLANDER, P.A.
	By

	 	/s/ Patricia Lee Refo
 

	 	 	 	 	 	 
	 

	 	Patricia Lee Refo
	 	 	 	By
	 	/s/ David G. Bray (with permission)
	 

	 	 	 	 	 	 	 	 
	 

	 	Kelly A. Kszywienski
	 	 	 	 	 	Timothy J. Thomason
	 

	 	One Arizona Center
	 	 	 	 	 	David G. Bray
	 

	 	400 E. Van Buren
	 	 	 	 	 	2901 North Central Avenue, Suite 200
	 

	 	Phoenix, AZ 85004-2202
	 	 	 	 	 	Phoenix, Arizona 85012-2705
	 

	 	Attorneys for Defendant	 	 	 	 	 	Attorney for Plaintiff






MAILED this ____ day of January 2011 to:




Thomas J. Thomason

David G. Bray

Mariscal, Weeks, McIntyre & Friedlander PA

2901 N. Central #200

Phoenix, Arizona 85012




Susan L. Harriman

Steven P. Ragland

Michael E. Gadeberg

Keker & Van Nest LLP

710 Sansome Street

San Francisco, CA 94111-1704




Attorneys for Plaintiff Impax Laboratories, Inc.




 









 





Patricia Lee Refo (#017032)

Kelly Kszywienski (#025578)

Snell & Wilmer LLP

400 E. Van Buren

Phoenix, AZ 85004-2202

Telephone: (602) 382-6290

Facsimile: (602) 382-6070

prefo@swlaw.com

kkszywienski@swlaw.com




Of Counsel:




Andrew M. Berdon (NY Bar No. 2214138)

Quinn Emmanuel Urquhart & Sullivan, LLP

51 Madison Avenue, 22nd Floor

New York, New York 10010

Telephone: (212) 849-7000

Email: andrew.berdon@quinnemanuel.com




Thomas C. Frongillo (Mass. Bar No. 180690)

Weil, Gotshal & Manges LLP

100 Federal Street, Floor 34

Boston, MA 02110

Telephone: (617) 772-8335

Email: thomas.frongillo@weil.com




Danielle Rosenthal

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

Telephone: (212) 310-8000

Facsimile: (212) 310-8007

Email: danielle.rosenthal@weil.com




Attorneys for Defendant Medicis Pharmaceutical Corp.




IN THE SUPERIOR COURT OF THE STATE OF ARIZONA




IN AND FOR THE COUNTY OF MARICOPA



	 	 	 

	Impax Laboratories, Inc., a Delaware
corporation,

	 	No. CV 2010-022735
	 
	 	 
	Plaintiff,

	 	ORDER FOR DISMISSAL WITH

PREJUDICE
	v.
	 	 
	 
	 	 
	 

	 	(Assigned to the Honorable John A. Buttrick)






 









 






	 	 	 

	Medicis Pharmaceutical Corp., a Delaware
corporation,

	 	 
	 
	 	 
	Defendant.
	 	 






     Pursuant to the parties’ Stipulation for Dismissal With Prejudice, and good cause appearing,



     IT IS HEREBY ORDERED that this action is dismissed in its entirety with prejudice, each party
to bear its own costs and attorneys’ fees.



     DATED this ____ day of January, 2011.



	 	 	 	 	 
	 	 	 
	 	  	


 	 
	 	 	The Honorable John A. Buttrick 	 
	 	 	Judge of the Maricopa County Superior Court