EX-10.3






Exhibit 10.3




Execution Copy




AMENDED AND RESTATED




SUBORDINATED PROMISSORY NOTE



THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND
TO THE EXTENT SET FORTH IN THAT CERTAIN AMENDED AND RESTATED SUBORDINATION AGREEMENT (AS AMENDED,
RESTATED, MODIFIED OR REPLACED FROM TIME TO TIME, THE “SUBORDINATION AGREEMENT”) DATED AS
OF AUGUST 17, 2009, AMONG THE JOHN N. KAPOOR TRUST DATED SEPTEMBER 20, 1989, AKORN, INC.
(“AKORN”), AKORN (NEW JERSEY), INC. (“AKORN NEW JERSEY” AND TOGETHER WITH AKORN,
THE “COMPANIES”, AND EACH A “COMPANY”), AND EJ FUNDS, LP (“AGENT”), TO THE
INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE COMPANIES PURSUANT TO THAT CERTAIN CREDIT AGREEMENT
DATED AS OF JANUARY 9, 2009 AMONG THE COMPANIES, GENERAL ELECTRIC CAPITAL CORPORATION, AS A LENDER
AND AS AGENT FOR THE LENDERS (“GE CAPITAL”) AND THE LENDERS FROM TIME TO TIME PARTY
THERETO, AS SUCH CREDIT AGREEMENT HAS BEEN (I) ASSIGNED BY GE CAPITAL AND THE OTHER LENDERS A PARTY
THERETO TO EJ FUNDS LP, AS AGENT AND LENDER PURSUANT TO AN ASSIGNMENT AGREEMENT DATED AS OF MARCH
31, 2009, (II) AMENDED PURSUANT TO A MODIFICATION WARRANT AND INVESTOR RIGHTS AGREEMENT DATED AS OF
THE APRIL 13, 2009 AMONG THE COMPANIES AND EJ FUNDS LP, AS AGENT AND LENDER, AS FURTHER AMENDED AND
RESTATED BY THE (III) AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF AUGUST [•], 2009 AMONG THE
COMPANIES AND EJ FUNDS LP, AS AGENT AND LENDER, AND (IV) HEREAFTER MAY BE AMENDED, RESTATED,
SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME AND TO INDEBTEDNESS REFINANCING THE
INDEBTEDNESS UNDER THAT AGREEMENT AS CONTEMPLATED BY THE SUBORDINATION AGREEMENT; AND EACH HOLDER
OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF
THE SUBORDINATION AGREEMENT.



THIS SUBORDINATED PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE
OFFERED, SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS, OR AN EXEMPTION FROM REGISTRATION
THEREUNDER.




			
	 	 	 
	US $5,853,266.68 (includes all accrued interest through the date hereof)
August 17, 2009






     FOR VALUE RECEIVED, AKORN, INC., a Louisiana corporation (“Akorn”) and AKORN (NEW JERSEY),
INC., an Illinois corporation (“Akorn New Jersey”) and collectively with Akorn, the “Makers” and
each a “Maker”), hereby promise jointly and severally to pay to the order of THE JOHN N. KAPOOR
TRUST DATED SEPTEMBER 20, 1989, or its permitted successors or assigns (“Payee”), the aggregate
principal sum equal to $5,853,266.68 (equal to the sum of (i) the stated principal amount
outstanding of the Prior Note (as defined below) of Five Million Dollars ($5,000,000), (ii)
$804,892.58 of outstanding accrued but unpaid interest under the Prior Note as of its stated date
of maturity and (iii) $48,374.10 of additional outstanding accrued but unpaid interest arising from
and after the stated date of maturity of the Prior Note through and including the date hereof), on
the terms and conditions set forth below, and to pay to Payee interest on the unpaid principal
balance hereof at the rate and on the terms and conditions set forth herein.



     1. Payment of Principal. The principal amount of this Subordinated Promissory Note
(the “Note”), together with all unpaid interest accrued hereon, shall be due and payable on the
five year anniversary of the date hereof (the “Maturity Date”).



     2. Payment of Interest. The unpaid principal balance due hereunder shall bear
interest at a fixed annual rate (based on a 360-day year) of fifteen percent (15%) (the “Interest
Rate”) and such interest shall accrue monthly in arrears (each, whether at the Interest Rate or
Default Interest Rate (as defined below), an “Interest



 









 




Payment”) on the first day of each month (each, an “Interest Payment Date”) commencing on
September 1, 2009; provided that upon the occurrence of a Default, the outstanding principal
balance hereunder shall accrue at a fixed annual rate (based on a 360-day year) of twenty percent
(20%) (the “Default Interest Rate”). All accrued interest (including any interest at the Default
Interest Rate) shall be paid in kind, and the amount thereof shall be added to the outstanding
principal balance of this Note on such Interest Payment Date and, thereafter, for all purposes
under this Note, references to the “principal amount” of this Note shall include the amount of any
Interest Payment that has been added to the outstanding principal balance of this Note.




     3. Subordination. Pursuant to the terms of the Subordination Agreement, this Note and
the indebtedness evidenced hereby shall at all times be and remain subordinated to any indebtedness
owed to such senior lenders (any such indebtedness being collectively referred to herein as the
“Senior Indebtedness”).



     4. Prepayment. Makers may, at their option at any time and from time to time
hereafter, to the extent not prohibited by the Subordination Agreement, prepay, in whole but not in
part, this Note by making payment to Payee of an amount equal to one hundred ten percent (110%) of
the total amount of all outstanding obligations under this Note (including, without limitation, all
principal and accrued but unpaid interest thereon to the date of prepayment).



     5. Defaults. Makers shall be deemed in default hereunder upon the occurrence of any
of the following (a “Default”):



     (a) The failure of Makers to make the payment due hereunder on the Maturity Date;



     (b) Either Maker becomes insolvent or generally fails to pay, or admits in writing its
inability or refusal to pay, debts as they become due; or either Maker applies for, consents to, or
acquiesces in the appointment of a trustee, receiver or other custodian for such Maker or any
property thereof, or makes a general assignment for the benefit of creditors; or, in the absence of
such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for
either Maker or for a substantial part of the property of either Maker and is not discharged within
60 days; or any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation proceeding, is commenced in respect
of either Maker, and if such case or proceeding is not commenced by such Maker, it is consented to
or acquiesced in by such Maker, or remains for 60 days undismissed; or either Maker takes any
action to authorize, or in furtherance of, any of the foregoing; or



     (c) An “Event of Default” under and as defined in the senior credit agreement of Makers has
occurred and is continuing and the lenders of any Senior Indebtedness thereunder have accelerated
the maturity of such Senior Indebtedness.



     6. Consequence of Default. Upon the occurrence of a Default, the entire then unpaid
principal balance hereof and all interest then accrued and unpaid thereon and all other sums
payable hereunder shall, at the option of Payee, become immediately due and payable.
Notwithstanding the foregoing, if there shall occur a Default under Section 5(a) or
(b) above, the entire then unpaid principal balance hereof and all interest then accrued
and unpaid thereon and all other sums payable hereunder, shall become immediately due and payable
without any action on the part of Payee.



     7. Miscellaneous.



     (a) Principal and interest due hereunder shall be payable in lawful money of the United States
of America. All payments shall be applied first to accrued and unpaid interest and thereafter to
principal.



     (b) If any payment due on this Note shall become due on a day that is not a Business Day, such
payment shall be made on the next succeeding Business Day. “Business Day” means any day on which
banks are generally open for commercial banking business in Chicago, Illinois



     (c) No delay or omission on the part of Payee in the exercise of any right or remedy hereunder
shall operate as a waiver thereof.



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     (d) If a Default shall occur under this Note, Makers shall pay on demand, subject to the terms
of the Subordination Agreement, all reasonable costs and expenses of collection of Payee, including
reasonable attorneys’ fees.



     (e) No amendment, modification, termination or waiver of any provision of this Note shall be
effective unless the same shall be in writing and signed by Makers and Payee.



     (f) All notices hereunder shall be in writing (including facsimile transmission) and shall be
sent to the applicable party at its address shown below or at such other address as such party may,
by written notice received by the other parties, have designated as its address for such purpose.
Notices sent by facsimile transmission shall be deemed to have been given when sent; notices sent
by mail shall be deemed to have been given three Business Days after the date when sent by
registered or certified mail, postage prepaid; and notices sent by hand delivery or overnight
courier service shall be deemed to have been given when received.


Notices shall be addressed as follows:



If to Payee:



The John N. Kapoor Trust

c/o Dr. John N. Kapoor

225 E. Deerpath Road

Suite 250

Lake Forest, Illinois 60045

Telecopy: (847) 295-8680



With a copy to:



McDermott Will & Emery LLP

227 West Monroe Street

Chicago, Illinois 60606

Attention: Thomas Murphy

Telecopy: (312) 984-7700



If to a Maker:



1925 Field Court, Suite 300

Lake Forest, Illinois 60045

Attention: Chief Financial Officer

Telecopy: (847) 353-4936



With a copy to:



Bryan Cave LLP

161 North Clark Street, Suite 4300

Chicago, Illinois 60601

Attention: Donald E. Figliulo

Telecopy: (312) 698-7425




     (g) This Note may not be assigned (by operation of law or otherwise) by any Maker without the
prior written consent of the Payee.



     (h) Makers shall be entitled to deduct and withhold from the amounts payable pursuant to this
Note such amounts as it is required to deduct and withhold with respect to the making of such
payment under any tax law. To the extent that amounts are so withheld or paid over to or deposited
with the relevant taxing authority by Makers, such amounts shall be treated for all purposes of
this Note as having been paid to Payee in respect of which such deduction and withholding was made
by Maker.



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     (i) If interest payable under this Note is in excess of the maximum permitted by law, the
interest chargeable hereunder shall be reduced to the maximum amount permitted by law and any
excess over the maximum amount permitted by law shall be credited to the principal balance of this
Note and applied to the same and not to the payment of interest.



     (j) This Note is to be governed by, and construed and enforced in accordance with, the laws of
the State of Illinois, without regard to conflict of laws principles that would require the
application of the laws of any other jurisdiction.



     (k) This Note amends, restates, renews and replaces a Subordinated Promissory Note dated June
28, 2008 in the principal amount of $5,000,000.00 (the “Prior Note”). The stated principal amount
of this note, which is the sum of (i) the stated principal amount of the Prior Note, (ii)
$804,892.58 of outstanding accrued but unpaid interest under the Prior Note as of its stated date
of maturity and (iii) $48,374.10 of additional outstanding accrued but unpaid interest arising from
and after the stated date of maturity of the Prior Note through and including the date hereof,
shall be deemed as principal amounts hereunder, and all guarantees, security interests and
collateral given to support and/or secure such Prior Note shall continue in full force and effect
from and after the date hereof and guaranty and secure all obligations under this Note. Nothing in
this Note shall be construed to constitute a novation of the obligations of any Maker arising under
the Prior Note, or to release, satisfy, discharge or otherwise affect or impair in any manner
whatsoever (a) the validity or enforceability of the obligations under the Prior Note or (b) the
charges, liens, pledges, security interests, assignments and conveyances effected by the Guaranty
and Security Agreement dated as of May 27, 2009 among the Makers, Payee and each other party
thereto entered into in connection with the Prior Note (the “Subordinated Security
Agreement”) and any other agreement securing the obligations arising under the Prior Note, or
the priority thereof. Each Maker hereby (x) restates, ratifies and reaffirms, subject to the
modifications provided for in this Note, each and every term, covenant and condition set forth in
the Prior Note and the Subordinated Security Agreement effective as of the date hereof, (y)
acknowledges receipt of a copy of this Note, (z) consents to this Note and agrees to be bound
hereby and (w) agrees that its guaranty of all obligations owed by the Makers, as set forth in the
Guaranty and Security Agreement to which it is a party, will continue in full force and effect
without diminution or impairment notwithstanding the execution and delivery of this Note.



[signature page follows]




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IN WITNESS WHEREOF, this Note has been executed as of the date first written above.




	 	 	 	 	 
	 	AKORN, INC.


 	 
	 	By:  	 	 
	 	 	Title: 	 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	AKORN (NEW JERSEY), INC.


 	 
	 	By:  	 	 
	 	 	Title: 	 	 
	 




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