SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE dated as of July 6, 2005, between Impax
Laboratories, Inc., a Delaware corporation (hereinafter called the "COMPANY"),
having its principal office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and HSBC Bank USA, National Association, a national banking association,
as trustee (hereinafter called the "TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized and issued its 3.5%
Convertible Senior Subordinated Debentures Due 2012 (hereinafter called the
"DEBENTURES"), in the aggregate principal amount of $75,000,000 and, to provide
the terms and conditions upon which the Debentures were authenticated, issued
and delivered, the Company duly authorized and entered into an Indenture dated
as of June 27, 2005, between the Company and the Trustee (the "INDENTURE"); all
capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Indenture; and
WHEREAS, the Average Closing Price has been calculated, the Make-Whole
Premium Table has been finalized, and each has been agreed upon by the Company
and the Holders of the Debentures and, in accordance with and pursuant to
Section 12.01(h) of the Indenture, the Company desires to enter into this
Supplemental Indenture for the purpose of making provision for the Initial
Supplemental Indenture Matters; and
WHEREAS, all acts and things necessary to make this Supplemental
Indenture, when executed by the Company and the Trustee, as in the Indenture
provided, the valid, binding and legal obligations of the Company, and to
constitute this Supplemental Indenture a valid agreement according to its terms,
have been done and performed, and the execution of this Supplemental Indenture
has in all respects been duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That in order to make provision for the Initial Supplemental Indenture
Matters, and in consideration of the premises set forth herein, the Company
covenants and agrees with the Trustee for the equal and proportionate benefit of
the respective Holders from time to time of the Debentures, as follows:
Section 1.01. Average Closing Price. Pursuant to clause (x) of Section
5.01(c) of the Indenture, the Average Closing Price is calculated to be $15.919.
Section 1.02. Make - Whole Premium. Pursuant to clause (y) of Section
5.01(c) of the Indenture, Exhibit B to the Indenture is hereby replaced by
Exhibit B to this Supplemental Indenture, which constitutes the Make-Whole
Premium Table under the Indenture.
Section 1.03. Effect of Supplemental Indenture. Except as set forth
herein, the Indenture shall remain in full force and effect, and remains the
valid, binding, and legal obligation of the Company and the Trustee, as modified
hereby.
Section 1.04. Governing Law. This Supplemental Indenture shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of laws principles thereof.
Section 1.05. Execution In Counterparts. This Supplemental Indenture
may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same
instrument.
Section 1.06. The Trustee. The recitals contained herein shall be taken
as the statements of the Company and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Supplemental Indenture, or as to the calculations of the
Average Closing Price and the figures set forth in the Make-Whole Premium Table.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed.
IMPAX LABORATORIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT B
MAKE-WHOLE PREMIUM TABLE
Stock Price
Effective ------------------------------------------------------------------------------------------------------------------------
Date $15.92 $17.00 $18.00 $19.00 $20.00 $22.50 $25.00 $27.50 $30.00 $35.00 $40.00 $45.00 $50.00 $55.00 $60.00 $65.00
--------- ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------
7/1/2005 14.50 12.67 11.29 10.14 9.17 7.34 6.08 5.16 4.46 3.46 2.78 2.28 1.89 1.58 1.33 1.12
7/1/2006 14.50 12.38 10.89 9.67 8.65 6.79 5.54 4.66 4.01 3.10 2.49 2.05 1.70 1.43 1.20 1.02
7/1/2007 14.50 12.11 10.47 9.14 8.06 6.14 4.92 4.09 3.50 2.69 2.17 1.78 1.49 1.25 1.06 0.90
7/1/2008 14.50 11.70 9.84 8.39 7.24 5.31 4.16 3.42 2.90 2.22 1.79 1.48 1.24 1.05 0.89 0.76
7/1/2009 14.50 10.50 8.36 7.11 6.11 4.36 3.31 2.65 2.21 1.68 1.35 1.12 0.94 0.80 0.68 0.59
7/1/2010 14.50 9.48 7.68 6.25 5.13 3.28 2.28 1.72 1.40 1.05 0.85 0.71 0.60 0.51 0.44 0.38
7/1/2011 14.50 9.28 7.00 5.23 3.87 1.84 0.97 0.62 0.47 0.36 0.30 0.25 0.21 0.18 0.16 0.14
7/1/2012 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00