AMENDMENT NO. 1 TO STOCKHOLDERS' AGREEMENT
AMENDMENT NO. 1 TO STOCKHOLDERS' AGREEMENT (this "Amendment"),
dated as of March 23, 2000, by and among (i) Impax Laboratories, Inc. (f/k/a
lobal Pharmaceutical Corporation), a Delaware corporation (the "Company"), (ii)
Xxxxxxx Xxxxx, Xxxxx Xxx and Xxxxx X. Xxxxxxx, (iii) Xxxxxxx US Discovery Fund
III, L.P. and Xxxxxxx US Discovery Offshore Fund III, L.P. and (iv) China
Development Industrial Bank, Inc., Uni-President Enterprises Corp. (f/k/a/
President (BVI) International Investment Holdings, Ltd.), Chemical Company
Malaysia (Berhad), Euroc II Venture Capital Corp., Euroc III Venture Capital
Corp., Multiventure Technologies, Inc. and Tai-I Electric Wire & Cable Co., Ltd.
WHEREAS, the Company and its stockholders are parties to that
certain Stockholders' Agreement, dated as of December 14, 1999 (as such
agreement may be amended, modified or supplemented, the "Stockholders'
Agreement"; capitalized terms used and not otherwise defined herein have the
respective meanings ascribed to them in the Stockholders' Agreement); and
WHEREAS, in connection with the issuance by the Company of
shares of Series 2 Convertible Preferred Stock, the parties hereto wish to amend
the Stockholders' Agreement pursuant to Section 9.3 of the Stockholders'
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Amendment.
a. Section 1.1(a) of the Stockholders' Agreement is hereby amended to
add the following defined terms:
"Investor" and "Investor Group" have the respective meanings
set forth in the preliminary paragraph of this Agreement, provided, that for the
purposes of Articles II and III hereof, "Investor" and "Investor Group" shall
include holders of Series 2 Preferred to the same extent and degree as holders
of Series 1 Preferred.
"Investor Shares" means, for the purposes of Article III
hereof, with respect to any Investor, all of the shares of Company Stock owned
by such Investor.
"Series 1 Preferred" has the meaning set forth in the recitals
hereto, provided, that for the purposes of Articles II and III hereof "Series 1
Preferred" (including any defined term used in such Articles incorporating the
term "Series 1 Preferred") shall include the Series 2 Preferred to the same
extent and degree as the Series 1 Preferred."
"Series 2 Preferred" means the shares of Series 2 Convertible
Preferred Stock of the Company issued pursuant to the Stock Purchase Agreements
dated as of March 23, 2000 between the Company and the purchasers named therein.
b. Section 1.1(a) of the Stockholders' Agreement is hereby amended by
adding the following proviso to the first sentence of the defined term "Shares":
provided, that for the purposes of Articles II and III hereof
"Shares" (including any defined term used in such Articles
incorporating the term "Shares") shall include the Series 2
Preferred to the same extent and degree as the Series 1
Preferred.
c. Section 4.1 of the Stockholders' Agreement is hereby amended by
deleting the words "up to $10 million" in the proviso to clause (a) of the third
sentence thereof and substituting therefor "up to $15 million".
d. Section 4.1 of the Stockholders' Agreement is hereby amended by
adding the words "except for the amendment to the Series 1 Certificate of
Designations appended as Exhibit A to Amendment No. 1 of this Agreement" at the
beginning of clause (c) thereof.
e. Section 4.2 of the Stockholders' Agreement is hereby amended by
deleting the words "in excess of $15 million" in clause (i) of the first
sentence thereof and substituting therefor "in excess of $20 million".
f. Section 4.7 of the Stockholders' Agreement is hereby amended by
deleting the word "and" prior to subsection (iii) of the proviso thereto,
replacing it with "," and adding the following words at the end of such
subsection "and (iv) the transactions expressly contemplated by the Stock
Purchase Agreements dated as of March 23, 2000 between the Company and the
purchasers named therein."
g. Section 5.8 of the Stockholders' Agreement is hereby amended by
deleting the first five words of the second sentence thereof and substituting
therefor "on or before June 30, 2000".
2. Effect on the Stockholders' Agreement. Except as expressly amended
hereby, the Stockholders' Agreement shall continue in full force and effect in
accordance with the provisions thereof. All references in the Stockholders'
Agreement to "the Agreement" or similar terms shall be deemed references to the
Stockholders' Agreement as amended hereby.
3. Further Assurances. Each party hereto agrees to execute and deliver
any and all such further instruments and documents as shall be necessary to
effect the purposes of this Amendment.
4. Governing Law. This Amendment shall be governed and construed in
accordance with the laws of the State of New York without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
IMPAX LABORATORIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Co-Chief Executive Officer
XXXXXXX US DISCOVERY FUND III, L.P.
By: XXXXXXX US DISCOVERY PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxx
----------------------------
Xxxxxx X. Xxxx, member
XXXXXXX US DISCOVERY OFFSHORE FUND III, L.P.
By: XXXXXXX US DISCOVERY PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx, member
[Signature Page to Amendment No. 1 to Stockholders' Agreement]
CHINA DEVELOPMENT INDUSTRIAL
BANK, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
PRESIDENT (BVI) INTERNATIONAL INVESTMENT
HOLDINGS LTD.
By: /s/ Xxxxx Xxxxx Xxx
----------------------------------
Name: Xxxxx Xxxxx Xxx
Title: President
CHEMICAL COMPANY MALAYSIA BERHAD
By: /s/ Oh Xxx Xxx
-------------------------------------
Name: Oh Xxx Xxx
Title: Director
EUROC II VENTURE CAPITAL CORP.
By: /s/ Xxx Xx Jen
-------------------------------------
Name: Xxx Xx Xxx
Title: Chairman
EUROC III VENTURE CAPITAL CORP.
By: /s/ Xxx Xx Jen
------------------------------------
Name: Xxx Xx Xxx
Title: Chairman
[Signature Page to Amendment No. 1 to Stockholders' Agreement]
MULTIVENTURE TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: President
TAI-I ELECTRIC WIRE & CABLE CO., LTD.
By: /s/ Xxx Xx Xxxx
------------------------------------
Name: Xxx Xx Xxxx
Title:
/s/ Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxx Xxx
---------------------------------------
Xxxxx Xxx
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
[Signature Page to Amendment No. 1 to Stockholders' Agreement]
