exv4w6





EXHIBIT 4.6


PROMISSORY NOTE




					
	 	 	 	 	 
	$11,000,000.00
	 	Minneapolis, Minnesota
	 	June 7, 2006






     For Value Received and in installments as hereinafter set forth, Impax Laboratories, Inc. a
Delaware corporation headquartered in Hayward, California (“Maker”), promises to pay to the order
of Solvay Pharmaceuticals, Inc., a Georgia corporation headquartered in Marietta, Georgia
(“Payee”), at 901 Sawyer Road, Marietta, GA 30062, in lawful money of the United States of America,
the principal amount of ELEVEN MILLION AND NO/100 DOLLARS ($11,000,000.00), together with interest
from June 7, 2006 until maturity on the balance of the principal sum hereof from time to time owing
and unpaid, at a rate of six percent (6%) per annum. All past-due principal and accrued interest
on this Note shall bear interest from the maturity thereof until paid at the rate of twelve per
cent (12%) per annum.



     The principal of, and accrued interest on, this Note shall be due and payable in twenty-four
(24) installments as follows: The first installment in the amount of Nine Hundred Twenty-five
Thousand Two Hundred Seventy-four and 71/100 Dollars ($925,274.71) shall be due and payable on or
before March 31, 2007; and the remaining twenty-three (23) installments shall each be in the amount
of Five Hundred Forty-nine Thousand One Hundred Sixty-five and 12/100 Dollars ($549,165.12), with
the first of said twenty-three remaining installments being due and payable on or before June 30,
2007, and with a like such installment being due and payable on or before the last day of each
September, December, March and June thereafter until December 31, 2012, upon which date all unpaid
principal and accrued interest shall be finally due and payable if not sooner paid.



     Maker shall have the right to prepay all or any portion of this Note at any time without
premium or penalty.



     All amounts paid on this Note shall be applied as received by the Payee first to the payment
of accrued interest, if any, and the balance remaining, if any, to the reduction of principal;
provided that no prepayment sum shall operate to postpone or delay the date on which the next
installment is due and payable hereon.



     This Note shall become immediately due and payable upon the occurrence of any event described
in clause (iii), and at the option of the Payee or other holder hereof if any of the following
other conditions exist or events occur:



     (i) a default in the payment of any installment hereon when due and the Maker’s failure to
fully cure said default within ten (10) days following the giving of a written notice by the Payee
or other holder hereof that said default has occurred;



     (ii) a Change of Control;



     (iii) filing of a voluntary or involuntary bankruptcy or insolvency proceeding by or against
Maker, which, in the case of an involuntary proceeding, is not dismissed within ninety (90) days
after filing;



 









 





     (iv) the working capital of Maker, determined according to U.S. Generally Accepted Accounting
Principles consistently applied (which Maker agrees to calculate on or before the 5th
business day of each calendar month as of the last day of the immediately preceding calendar
month), falls below 150% of the remaining note balance as of the last day of the calendar month
with respect to which working capital is being determined. Maker will notify Payee or other holder
hereof of the occurrence of this event within five (5) business days of the relevant monthly
calculation.



     For purposes of this Note, Change of Control means (i) a sale of all or substantially all of
the assets of Maker; (ii) a sale other than to an Affiliate of more than a majority of the issued
and outstanding voting stock of Maker; (iii) the merger, consolidation or other reorganization of
Maker in which the stockholders of Maker immediately prior to such transaction own less than a
majority of the issued and outstanding voting stock or other voting equity interests immediately
after such transaction or (iv) the dissolution of Maker. An “Affiliate” shall mean any other
person or entity directly or indirectly controlling or controlled by or under direct or common
control with Maker. For purposes of this distinction, “control” means the power to direct the
management and policies of Maker, directly or indirectly whether through the ownership of voting
stock or otherwise.



     For the purposes of this Note, “insolvent” means that the fair value of Maker’s then-current
assets is lower than the total amount of Maker’s then-current liabilities, including, without
limitation, contingent liabilities that are probable and estimable, and/or that Maker has incurred
debts or liabilities beyond Maker’s ability to pay such debts and liabilities in the ordinary
course of business as they mature, taking into account the possibility of refinancing such
obligations and selling assets.



     If this Note is collected by suit, through the Bankruptcy Court, or any judicial proceeding,
or if a default occurs in the payment or performance of any obligation of the Maker under this Note
or any other agreement by the Maker, and this Note is placed in the hands of an attorney for
collection, then the Maker further agrees to pay the reasonable attorney’s fees, court costs, and
other reasonable costs incurred by Payee incident to the foregoing, such payments to be in addition
to all other amounts owing hereunder.



     The Maker expressly waives (except to the limited extent otherwise provided in this Note)
demand, presentment for payment, notice of nonpayment, protest, notice of protest, notices of
acceleration and of intent to accelerate, and all other notice. Maker further waives filing of
suit and diligence in collecting this Note, and agrees to any substitution, exchange or release of
any party primarily or secondarily liable hereon and further agrees that it will not be necessary
for the Payee or other any holder hereof, in order to enforce payment of this Note by it, to first
institute suit or exhaust its remedies against Maker or any other person liable herefor, and
consents to any one or more extensions or postponements of time of payment of this Note and to any
other indulgences with respect hereto, without notice thereof or consent.



     Any notices or other communications required or permitted hereunder shall be in writing and
delivered at the addresses designated below, or to such other addresses as may subsequently be
designated in writing by the parties:



 









 




For Payee:




Attn: General Counsel

Solvay Pharmaceuticals, Inc.

901 Sawyer Road

Marietta, GA 30062




For Maker:




Impax Laboratories, Inc.

30831 Huntwood Avenue

Hayward, CA 94010

Attn: President




With a copy to:




Impax Laboratories, Inc.

121 New Britain Rd.

Chalfont, PA 18914

Attn: Chief Executive Officer




     This Note is governed by and construed in accordance with the substantive laws of Minnesota,
without regard to its conflict of laws rules. In addition, the Maker and the Payee, solely for the
purpose of any dispute relating to this Note, hereby submit to the personal jurisdiction and venue
of the United States District Court for the District of Minnesota.



     THIS NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
ORAL AGREEMENTS BETWEEN THE PARTIES.



	 	 	 	 	 	 	 
	 	 	IMPAX LABORATORIES, INC.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Larry Hsu	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Larry Hsu
	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:
	 	President	 	 
	 

	 	 	 	 	 	 




The Payee’s signature below is attached solely for the purposes of the penultimate paragraph above
regarding the agreement to personal jurisdiction and venue, and the final paragraph indicating that
this Note represents the final agreement of the parties thereto.




	 	 	 	 	 	 	 
	 	 	SOLVAY PHARMACEUTICALS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Peter G. Edwards
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Peter G. Edwards	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:
	 	SVP and General Counsel