UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 6, 2017

Impax Laboratories, Inc.
(Exact name of registrant as specified in its charter)

 
					
Delaware	 	001-34263	 	65-0403311	
(State of
Incorporation)	 	(Commission File Number)	 	(IRS Employer
Identification No.)	
		
30831 Huntwood Avenue, Hayward, CA	 	94544	
(Address of principal executive offices)	 	(Zip Code)	
Registrant’s telephone number, including area code: (510) 240-6000
Not Applicable
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
 
☒	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230-425)	
 
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))	
 
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company  ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 
 
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Item 1.01	Entry into a Material Definitive Agreement.	
On November 6, 2017, Impax Laboratories, Inc. (the “ Company ”) entered into a supplemental indenture (the “ First Supplemental Indenture ”) to the indenture (the “ Indenture ”), dated as of June 30, 2015, by and between the Company and Wilmington Trust, National Association, a national banking association, as Trustee, under which the Company previously issued its 2.00% Convertible Senior Notes due 2022 (the “ Notes ”). The First Supplemental Indenture was entered into to effectuate certain amendments to the Indenture in connection with the consummation of the Company’s consent solicitation, as further described under Item 7.01 of this Current Report on Form 8-K. The First Supplemental Indenture (a) amends a covenant in the Indenture relating to the Company’s corporate existence, (b) allows the Company to satisfy its reporting requirements by providing reports of any parent entity, (c) adds a provision to the Indenture requiring the Company to make and consummate a tender offer for any outstanding notes under the Indenture, and (d) expressly authorizes the Company to consummate the transactions contemplated by the Business Combination Agreement, dated as of October 17, 2017 (the “ Business Combination Agreement ”), by and among the Company, Atlas Holdings, Inc., K2 Merger Sub Corporation and Amneal Pharmaceuticals LLC ((a) through (d), the “ Proposed Amendments ”).
The foregoing summary is qualified in its entirety by the full text of the First Supplemental Indenture, attached hereto as Exhibit 4.1 and incorporated herein by reference.
 
Item 7.01	Regulation FD Disclosure.	
On November 6, 2017, the Company announced the results of a consent solicitation for holders of the Notes to amend the Indenture to effectuate the Proposed Amendments. The Company initiated the consent solicitation pursuant to the requirements of the Business Combination Agreement. The Company received the requisite number of consents to amend the Indenture and entered into the First Supplemental Indenture. A copy of the press release is attached as Exhibit 99.1 and incorporated herein by reference.
The information in this Item 7.01, including Exhibit 99.1, is being furnished and shall not be deemed “filed” for purposes of the Securities Exchange Act of 1934, as amended.
 
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Item 9.01	Financial Statements and Exhibits.	
(d) Exhibits

Exhibit No.	  	Description	
		
4.1	  	Supplemental Indenture, dated November 6, 2017, by and between Impax Laboratories, Inc. and Wilmington Trust, National Association.	
		
99.1	  	Press release, dated November 6, 2017, issued by Impax Laboratories, Inc.	
 
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EXHIBIT INDEX

Exhibit No.	  	Description	
		
4.1	  	Supplemental Indenture, dated November 6, 2017, by and between Impax Laboratories, Inc. and Wilmington Trust, National Association.	
		
99.1	  	Press release, dated November 6, 2017, issued by Impax Laboratories, Inc.	
 
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

IMPAX LABORATORIES, INC.	
		
By	 	/s/ Bryan M. Reasons	
Name:	 	Bryan M. Reasons	
Title:	 	Senior VP, Finance and Chief Financial Officer	
Date: November 6, 2017
 
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Exhibit 4.1
EXECUTION VERSION
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE , dated as of November 6, 2017 (this “ First Supplemental Indenture ”), to the Indenture dated as of June 30, 2015 (the “ Indenture ”) between Impax Laboratories, Inc. (the “ Company ”), a Delaware corporation, and Wilmington Trust, National Association, a national banking association, as Trustee (the “ Trustee ”). Each term used herein which is defined in the Indenture has the meaning assigned to such term in the Indenture unless otherwise specifically defined herein, in which case the definition set forth herein shall govern.
WITNESSETH
WHEREAS , the Company has heretofore executed and delivered the Indenture to provide for the issuance by the Company of a series of securities known as its 2.00% Convertible Senior Notes due 2022 (the “ Notes ”);
WHEREAS, Section 10.02 of the Indenture provides, inter alia , that under certain circumstances, the Company and the Trustee may amend the Indenture with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (the “ Requisite Consents ”);
WHEREAS, the Company has distributed a Consent Solicitation Statement, dated as of October 30, 2017 (the “ Statement ”), to the Holders in connection with the solicitation of such Holders’ consent to certain proposed amendments to the Indenture;
WHEREAS , pursuant to the Statement, the Requisite Consents have been received, and evidence of such consents has been provided by the Company to the Trustee, and all other conditions precedent, if any, provided for in the Indenture relating to the execution of this First Supplemental Indenture have been complied with as of the date hereof;
NOW, THEREFORE , for and in consideration of the premises contained herein and intending to be legally bound, each party agrees for the benefit of each other party and for the equal and ratable benefit of the Holders, as follows:
ARTICLE I
AMENDMENTS
Section 1.1 Section 4.05 of the Indenture is hereby amended by inserting the underlined language and removing the struck-through language below:
Section 4.05. Existence . Subject to Article 11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence as an entity; provided that this Section  4.05 shall not prohibit the Company from consummating the Transactions (as defined in that certain Business Combination Agreement dated as of October  17, 2017 among the Company, Atlas Holdings, Inc., K2 Merger Sub Corporation and Amneal Pharmaceuticals LLC ( as amended pursuant to the terms thereof from time to time, the “ Business Combination Agreement ”)), including by conversion to a limited liability company or other organizational form.
Section 1.2 Section 4.06(a) of the Indenture is hereby amended by inserting the underlined language below:
Section 4.06. Rule 144A Information Requirement and Annual Reports . (a) At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and, upon written request, any Holder, beneficial owner or prospective purchaser of such Notes or any shares of Common Stock issuable upon conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A; provided that following the consummation of the Transactions, the Company will be deemed to have satisfied the reporting requirements referred to above if any parent entity of the Company (including Amneal Pharmaceuticals, Inc.) has delivered such information with respect to the parent entity in lieu of the Company.
 
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EXECUTION VERSION
 
Section 1.3 The following provision shall be inserted as Section 4.10 of the Indenture:
Section 4.10. Special Offer to Repurchase Notes . (a) The Company shall, not more than 10 Business Days following the date of the consummation of the Transactions, commence an offer (a “ Special Tender Offer ”) to Holders to repurchase for cash all of the outstanding Notes, or any portion thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “ Special Tender Date ”) specified by the Company at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Special Tender Date (the “ Special Tender Price ”), unless the Special Tender Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay on the Special Tender Date the full amount of accrued and unpaid interest to, but excluding, the Interest Payment Date to which the Record Date pertains, to Holders of record as of such Regular Record Date, and the Special Tender Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Section 4.10.
(b) In connection with any Special Tender Offer, the Company will, if required, (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act; (ii) file a Schedule TO or any other required schedule under the Exchange Act; and (iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, in each case, so as to permit the rights and obligations under this Section 4.10 to be exercised in the time and in the manner specified in this Section 4.10.
Section 1.4 The following provision shall be inserted as Section 4.11 of the Indenture:
Section 4.11. Transactions Permitted . Notwithstanding any other provision of this Indenture, the Transactions and the consummation thereof are, for the avoidance of doubt, permitted under and not prohibited by this Indenture and shall, provided that the Company complies with Section 4.10, be deemed not to result in any default or Event of Default under this Indenture.
Section 1.5 The Indenture and each Global Note, with effect on and from the date hereof, shall be deemed supplemented, modified and amended in such manner as necessary to make the terms of such Global Note consistent with the terms of the Indenture, as amended by this First Supplemental Indenture, and giving effect to the amendments set forth in Sections 1.1, 1.2, 1.3 and 1.4 hereof.
ARTICLE II
MISCELLANEOUS
Section 2.1 Conflict with Indenture .
To the extent not expressly amended or modified by this First Supplemental Indenture, the Indenture shall remain in full force and effect. If any provision of this First Supplemental Indenture is inconsistent with any provision of the Indenture, the provision of this First Supplemental Indenture shall control.
Section 2.2 Effectiveness .
The provisions of this First Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto. Notwithstanding the foregoing sentence, the provisions of this First Supplemental Indenture shall become operative only upon the payment of the Consent Payment (as defined in the Statement), with the result that the amendments to the Indenture effected by this First Supplemental Indenture shall be deemed to be revoked retroactively to the date hereof if the payment of the Consent Payment shall not occur.
 
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EXECUTION VERSION
 
Section 2.3     Governing Law .
THIS FIRST SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS FIRST SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 2.4     Successors .
All agreements of the Company and the Trustee in the Indenture and as amended by this First Supplemental Indenture shall bind their respective successors.
Section 2.5     Counterparts .
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 2.6     The Trustee.
The Trustee shall not be responsible in any manner for or in respect of the validity or sufficiency of this First Supplemental Indenture or the due execution thereof by the Company. The recitals of fact contained herein shall be taken as the statements solely of the Company, and the trustee assumes no responsibility for the correctness thereof.
 
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EXECUTION VERSION
 
IN WITNESS WHEREOF , the parties to this First Supplemental Indenture have caused it to be duly executed as of the day and year first written.

IMPAX LABORATORIES, INC.	
		
By:	 	/s/ Bryan M. Reasons	
Name:	 	Bryan M. Reasons	
Title:	 	SVP and Chief Financial Officer	
	
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee	
		
By:	 	/s/ W. Thomas Morris	
Name:	 	W. Thomas Morris	
Title:	 	Vice President	
 
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Exhibit 99.1

Impax Announces Successful Completion of Consent Solicitation with Respect to
its 2.00% Convertible Senior Notes due 2022
HAYWARD, Calif., November  6, 2017 – Impax Laboratories, Inc. (NASDAQ: IPXL), a specialty pharmaceutical company (“Impax” or the “Company”), announced today that it has received the consents necessary to amend and insert certain provisions (such amendments and insertions collectively referred to herein as the “Proposed Amendments”) in the indenture dated as of June 30, 2015 (the “Indenture”) between the Company and Wilmington Trust, National Association, as trustee (the “Trustee”), governing its 2.00% Convertible Senior Notes due 2022 (the “Notes”).
In connection with its proposed combination with Amneal Pharmaceuticals LLC (“Amneal”) pursuant to the transactions (the “Transactions”) described in the Business Combination Agreement (the “Business Combination Agreement”) among the Company, Atlas Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Holdco”), K2 Merger Sub Corporation, a Delaware corporation and a wholly-owned subsidiary of Holdco, and Amneal, the Company launched a consent solicitation with respect to the Notes (the “Consent Solicitation”) on October 30, 2017, seeking consents from holders of the Notes to the Proposed Amendments. The Proposed Amendments (a) amend a covenant in the Indenture relating to the Company’s corporate existence to permit the conversion of the Company into a limited liability company or other organizational form, (b) amend the Indenture to permit the Company to satisfy its reporting requirements to holders of the Notes by providing reports of any parent entity, (c) add a provision to the Indenture requiring the Company to make and consummate a tender offer for the Notes at par plus accrued interest after, and subject to the occurrence of, the Closing (as defined in the Business Combination Agreement), and (d) add a provision to the Indenture to expressly permit the consummation of the Transactions.
Pursuant to Section 6.19 of the Business Combination Agreement, Impax was required to use its reasonable best efforts to commence the Consent Solicitation upon the request of Amneal. Impax commenced the Consent Solicitation upon the request of Amneal.
The Company received the consents of holders of 98.6% of the aggregate principal amount of the Notes on or prior to 5:00 p.m., New York City time, on November 6, 2017 (such time and date, the “Expiration Date”). As a result, the Company and the Trustee entered into the First Supplemental Indenture, dated as of November 6, 2017, which gave effect to the Proposed Amendments (the “Supplemental Indenture”). The Proposed Amendments will become operative upon payment of the Consent Payment described in the following paragraph. If the Consent Payment is not paid pursuant to the Consent Solicitation, the Proposed Amendments will be deemed to be revoked retroactively to the date of the Supplemental Indenture.
The Company will make or cause to be made to consenting holders of Notes an aggregate cash payment equal to $3,750,000, representing the aggregate consent payment (the “Consent Payment”). The Consent Payment for the Consent Solicitation is an amount, per $1,000 principal amount of Notes for which a holder has validly delivered (on or prior to the Expiration Date) and not validly revoked its consent, equal to the product of $6.25 multiplied by a fraction, the numerator of which is the aggregate
 
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principal amount of Notes outstanding at the Expiration Date and the denominator of which is the aggregate principal amount of Notes for which holders have validly delivered and not validly revoked consents. The Consent Payment will be approximately $6.34 per $1,000 principal amount based on the amount of Notes in respect of which consents were validly delivered and not validly revoked in the Consent Solicitation. The Consent Payment is expected to be paid no later than the third business day after the Closing (as defined in the Business Combination Agreement). Holders who deliver their consents after the Expiration Date will not receive the Consent Payment.
*        *        *
Global Bondholder Services Corporation acted as the Information and Tabulation Agent for the Consent Solicitation. Questions or requests for assistance related to the Consent Solicitation may be directed to Global Bondholder Services Corporation at +1 (866) 794-2200 (toll free) or (212) 430-3774 (collect). The Company retained RBC Capital Markets, LLC as solicitation agent with respect to the Consent Solicitation. Questions concerning the terms of the Consent Solicitation should be directed to RBC Capital Markets, LLC at +1 (877) 381-2099 (toll free) or +1 (212) 618-7843 (collect).
This press release is for informational purposes only. This press release does not constitute a solicitation of consents in relation to any Notes in any jurisdiction in which, or to or from any person to or from whom, it is unlawful to make such solicitation under applicable federal securities or blue sky laws. This press release does not constitute an offer to sell or the solicitation of an offer to buy any of the securities described or otherwise referred to in this press release.
About Impax
Impax is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. Impax has two reportable segments, referred to as “Impax Generics” and “Impax Specialty Pharma.” The Impax Generics division focuses on a broad range of therapeutic areas, including products having technically challenging drug-delivery mechanisms or unique product formulations. In addition to developing solid oral dosage products, the Impax Generics division’s portfolio includes alternative dosage form products, primarily through alliance and collaboration agreements with third parties. Impax’s Impax Specialty Pharma division is focused on the development and promotion, through its specialty sales force, of proprietary branded pharmaceutical products for the treatment of central nervous system disorders and other select specialty segments.
Certain statements contained in this press release are forward-looking statements. Forward-looking statements are subject to uncertainties that could cause actual future events and results to differ materially from those expressed in the forward-looking statements. These forward-looking statements are based on estimates, projections, beliefs and assumptions that the Company believes are reasonable but are not guarantees of future events and results. Actual future events and results of the Company may differ materially from those expressed in these forward-looking statements as a result of a number of factors, including those described in filings by the Company with the Securities and Exchange Commission, which can be found at www.sec.gov .
Investor Contact:
Mark Donohue
Investor Relations and Corporate Communications
(215) 558-4526
www.impaxlabs.com
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