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 Global
Pharmaceutical Corporation), a Delaware corporation (the "Company"), (ii)
Charles Hsiao, Larry Hsu and Barry R. Edwards, (iii) Fleming US Discovery Fund
III, L.P. and Fleming US Discovery Offshore Fund III, L.P. and (iv) China
Development Industrial Bank, Inc., 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.
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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. (Intentionally Omitted).
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]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
IMPAX LABORATORIES, INC.
By: /s/ Barry R. Edwards
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Name: Barry R. Edwards
Title: Co-Chief Executive Officer
FLEMING US DISCOVERY FUND III, L.P.
By: FLEMING US DISCOVERY PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC,
its general partner
By: /s/ Robert L. Burr
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Robert L. Burr, member
FLEMING US DISCOVERY OFFSHORE FUND III, L.P.
By: FLEMING US DISCOVERY PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC,
its general partner
By: /s/ Robert L. Burr
----------------------------------------
Robert L. Burr, member
[Signature Page to Amendment No. 1 to Stockholders' Agreement]
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CHINA DEVELOPMENT INDUSTRIAL BANK, INC.
By: /s/ Brian C. Keng
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Name: Brian C. Keng
Title: Senior Vice President
PRESIDENT (BVI) INTERNATIONAL INVESTMENT
HOLDINGS LTD.
By: /s/ Chang Sheng Lin
----------------------------------------
Name: Chang Sheng Lin
Title: President
CHEMICAL COMPANY OF MALAYSIA BERHAD
By: /s/ Oh Kim Sun
----------------------------------------
Name: Oh Kim Sun
Title: Director
EUROC II VENTURE CAPITAL CORP.
By: /s/ Kao Yu Jen
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Name: Kao Yu Jen
Title: Chairman
EUROC III VENTURE CAPITAL CORP.
By: Kao Yu Jen
----------------------------------------
Name: Kao Yu Jen
Title: Chairman
MULTIVENTURE TECHNOLOGIES, INC.
By: /s/ James Mah
----------------------------------------
Name: James Mah
Title: President
[Signature Page to Amendment No. 1 to Stockholders' Agreement]
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TAI-I ELECTRIC WIRE & CABLE CO., LTD.
By: /s/ Tsu Jui Chun
----------------------------------------
Name: Tsu Jui Chun
Title:
/s/ Charles Hsiao
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Charles Hsiao
/s/ Larry Hsu
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Larry Hsu
/s/ Barry R. Edwards
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Barry R. Edwards
[Signature Page to Amendment No. 1 to Stockholders' Agreement]
