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As filed with the Securities and Exchange Commission on May 7, 2018
Registration No. 333-            

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

FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

AMNEAL PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)

 
					
Delaware	 	2834	 	32-0546926	
(State or other jurisdiction of
incorporation or organization)	 	(Primary Standard Industrial
Classification Code Number)	 	(I.R.S. Employer
Identification Number)	

 
					
Amneal Pharmaceuticals, Inc.
400 Crossing Boulevard, 3rd Floor
Bridgewater, New Jersey 08807
Telephone: (908) 409-6700
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)	 	Bryan M. Reasons
Amneal Pharmaceuticals, Inc.
400 Crossing Boulevard, 3rd Floor
Bridgewater, New Jersey 08807
(908) 409-6700
(Name, address, including zip code, and telephone number, including area code, of agent for service)	 	Copies to:
Charles Ruck, Esq.
R. Scott Shean, Esq.
Wesley C. Holmes, Esq.
Ryan K. deFord, Esq.
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022-4834
(212) 906-1200	

From time to time after the effective date of this Registration Statement.
(Approximate date of commencement of proposed sale to public)
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer  ☐	 	Accelerated filer  ☐	  	Non-accelerated filer  ☒
(Do not check if a
smaller reporting company)	 	Smaller reporting company  ☐
Emerging growth company  ☐	
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period forcomplying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

CALCULATION OF REGISTRATION FEE

 	
Class of securities
to be registered	 	Amount
to be
Registered(1)	 	Proposed
Maximum
Offering Price
per Share	 	Proposed
Maximum
Aggregate
Offering Price(2)	 	Amount of
Registration Fee(3)	
Class A common stock, par value $0.01 per share	 	224,996,163	 	N/A	 	$4,090,430,243.34	 	$509,258.57	

 
(1)	Represents the maximum number of shares of Class A common stock, par value $0.01 per share, of the registrant to be offered pursuant to this registration statement. This number is comprised of shares of Class A Stock (i) issued in the PIPE Investment (as defined herein), (ii) issuable upon the automatic conversion of an equivalent number of shares of Class B-1 common stock issued in the PIPE Investment and (iii) issuable upon the redemption of an equivalent number of outstanding Amneal Common Units pursuant to the LLC Agreement (each as defined herein).	
(2)	Pursuant to Rules 457(c) and 457(f)(1) promulgated under the Securities Act and solely for the purpose of calculating the registration fee, the proposed aggregate maximum offering price is $4,090,430,243.34. Such amount equals the product of (i) $18.18, the average of the high and low prices of Impax’s common stock (which is equivalent in value to the shares of Class A common stock of the registrant) as reported on NASDAQ on May 4, 2018, rounded to the nearest cent times (ii) the aggregate number of shares of Class A common stock of the registrant proposed to be registered hereunder.	
(3)	Calculated pursuant to Rule 457(o) based on an estimate of the proposed maximum aggregate offering price. Pursuant to Rule 457(p) under the Securities Act, a filing fee of $539,172.43 has previously been paid with respect to securities to be registered pursuant to a Registration Statement on Form S-1 (Registration No. 333-223501) initially filed with the SEC on March 8, 2018, as amended by Amendment No. 1 filed with the SEC on April 13, 2018, which was withdrawn prior to effectiveness. As a result, $509,258.57 of the $539,172.43 filing fee associated with such securities is being carried forward and is being offset against the $509,258.57 filing fee currently due in connection with this filing.	

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
 
SUBJECT TO COMPLETION. DATED MAY 7, 2018.
224,996,163 Shares

Amneal Pharmaceuticals, Inc.
Class A Common Stock

This prospectus relates to the offer and sale from time to time by the selling stockholders identified in this prospectus of up to an aggregate of 224,996,163 shares of Class A common stock, par value $0.01 per share, of Amneal Pharmaceuticals , Inc. Out of the 224,996,163 shares of Class A common stock that our selling stockholders may offer and sell, (i) 41,406,689 restricted shares of Class A common stock previously have been issued to certain of our stockholders, (ii) 12,328,767 shares of Class A common stock will result from the automatic conversion upon transfer of restricted shares of Class B-1 common stock that have previously been issued to certain of our stockholders and (iii) the remaining 171,260,707 shares of Class A common stock will be issued by us from time to time to Amneal Holdings, LLC, which is also a holder of outstanding Amneal Common Units (as defined herein), upon the redemptions by Amneal Holdings, LLC of an equivalent number of Amneal Common Units (and the surrender and cancellation of an equivalent number of shares of Class B common stock) held by Amneal Holdings, LLC. The availability of shares of Class A common stock described in clause (iii) above for offer and sale in this offering is subject to the redemption of Amneal Common Units pursuant to the LLC Agreement (each as defined herein).
The shares of Class A common stock registered hereby may be offered and sold by our selling stockholders through one or more underwriters, broker-dealers or agents. If the shares of Class A common stock are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of Class A common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. See “Plan of Distribution.”
We are not selling any shares of Class A common stock under this prospectus, and we will not receive any of the proceeds from the offer and sale of shares of our Class A common stock by the selling stockholders.
This prospectus describes the general manner in which shares of Class A common stock may be offered and sold by any selling stockholder. When the selling stockholders sell shares of Class A common stock under this prospectus, we may, if necessary and required by law, provide a prospectus supplement that will contain specific information about the terms of that offering. Any prospectus supplement may also add to, update, modify or replace information contained in this prospectus. We urge you to read carefully this prospectus, and any accompanying prospectus supplement before you make your investment decision.
Our Class A common stock is listed on the New York Stock Exchange (“ NYSE ”) under the symbol “AMRX.” We have three classes of common stock: Class A common stock, Class B common stock and Class B-1 common stock. The rights (including voting rights) of Class A common stock and Class B common stock are identical, except that Class B common stock has no economic rights and the rights of Class A common stock and Class B-1 common stock are identical, except that Class B-1 common stock has no voting rights (other than to elect the Class B-1 Director (as defined herein)). All of our Class B common stock is held by Amneal Holdings, LLC on a one-to-one basis with the number of Amneal Common Units it owns. See “Glossary” and “Prospectus Summary.”
See “ Risk Factors ” on page 11 to read about factors you should consider before investing in our Class A common stock.
Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.

Amneal Holdings, LLC
The date of this prospectus is                 , 2018.

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 TABLE OF CONTENTS
Prospectus

GLOSSARY	  	 	iii	 	
THE COMBINATION AND THE PIPE INVESTMENT	  	 	v	 	
MARKET AND INDUSTRY DATA	  	 	vii	 	
NON-GAAP FINANCIAL MEASURES	  	 	viii	 	
PROSPECTUS SUMMARY	  	 	1	 	
THE OFFERING	  	 	7	 	
SUMMARY HISTORICAL AND PRO FORMA CONSOLIDATED AND OTHER FINANCIAL DATA	  	 	9	 	
RISK FACTORS	  	 	11	 	
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS	  	 	48	 	
THE COMBINATION	  	 	49	 	
USE OF PROCEEDS	  	 	50	 	
PRICE RANGE OF CLASS A COMMON STOCK	  	 	51	 	
DIVIDEND POLICY	  	 	52	 	
SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION OF AMNEAL	  	 	53	 	
SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION OF IMPAX	  	 	54	 	
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS	  	 	55	 	
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS	  	 	59	 	
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF AMNEAL	  	 	73	 	
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF IMPAX	  	 	94	 	
BUSINESS	  	 	124	 	
MANAGEMENT	  	 	164	 	
EXECUTIVE COMPENSATION	  	 	171	 	
CERTAIN RELATED PARTIES AND RELATED PARTY TRANSACTIONS	  	 	204	 	
EXCHANGES OF AMNEAL COMMON UNITS FOR CLASS A COMMON STOCK	  	 	220	 	
PRINCIPAL AND SELLING STOCKHOLDERS	  	 	221	 	
DESCRIPTION OF CAPITAL STOCK	  	 	225	 	
SHARES ELIGIBLE FOR FUTURE SALE	  	 	232	 	
MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS OF CLASS A COMMON STOCK	  	 	235	 	
PLAN OF DISTRIBUTION	  	 	239	 	
LEGAL MATTERS	  	 	242	 	
EXPERTS	  	 	242	 	
WHERE YOU CAN FIND MORE INFORMATION	  	 	242	 	
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS	  	 	F-1	 	

You should rely only on the information contained in this prospectus, any prospectus supplement or in any free writing prospectus we may authorize to be delivered or made available to you. We have not and the selling stockholders have not authorized anyone to provide you with different information. The selling stockholders are offering to sell, and seeking offers to buy, shares of our Class A common stock only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of shares of our Class A common stock.
For investors outside the United States: We have not and the selling stockholders have not done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for
 
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that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of Class A common stock and the distribution of this prospectus outside the United States.
This prospectus is a part of a registration statement on Form S-1 that we filed with the Securities and Exchange Commission (the “ SEC ”) using a “shelf” registration or continuous offering process. Under this shelf process, the selling stockholders may from time to time sell the shares of Class A common stock covered by this prospectus. Additionally, under the shelf process, in certain circumstances, we may provide a prospectus supplement that will contain certain specific information about the terms of a particular offering by one or more of the selling stockholders. We may also provide a prospectus supplement to add information to, or update or change information contained in this prospectus. You should read this prospectus before deciding to invest in shares of our Class A common stock. You may obtain this information without charge by following the instructions under “Where You Can Find More Information” appearing elsewhere in this prospectus.
Until                , 2018, all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers’ obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
 
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 GLOSSARY
As used in this prospectus, unless the context otherwise requires:
 
 	•	 	“ Amneal ” refers to Amneal Pharmaceuticals LLC, a Delaware limited liability company.	
 
 	•	 	“ Amneal Board ” refers to Amneal’s board of managers.	
 
 	•	 	“ Amneal Common Units ” refers to the common units of Amneal.	
 
 	•	 	“ Amneal Holdings ” refers to Amneal Holdings, LLC, a Delaware limited liability company and the ultimate parent of Amneal.	
 
 	•	 	“ BCA ” refers to the Business Combination Agreement, dated as of October 17, 2017, among Impax, Amneal, Holdco and Merger Sub, as amended on November 21, 2017 and December 16, 2017.	
 
 	•	 	“ Closing ” refers to the closing of the Combination.	
 
 	•	 	“ Closing Date ” refers to May 4, 2018, the date on which the Closing occurred.	
 
 	•	 	“ Company ” refers to New Amneal, unless the context requires otherwise.	
 
 	•	 	“ Combination ” refers to the transactions contemplated by the BCA.	
 
 	•	 	“ dollars ” or “ $ ” refers to U.S. dollars.	
 
 	•	 	“ Existing Amneal Members ” refers to Amneal Pharmaceuticals Holding Company, LLC, AP Class D Member, LLC, AP Class E Member, LLC and AH PPU Management, LLC, each a Delaware limited liability company.	
 
 	•	 	“ GAAP ” refers to the generally accepted accounting principles in the United States.	
 
 	•	 	“ Holdco ” refers to Atlas Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of Impax, which was renamed Amneal Pharmaceuticals, Inc. upon the Closing.	
 
 	•	 	“ holder ” refers to each holder of New Amneal Shares.	
 
 	•	 	“ Impax ” refers to Impax Laboratories, Inc., a Delaware corporation.	
 
 	•	 	“ Impax Board ” refers to Impax’s board of directors.	
 
 	•	 	“ Impax Merger ” means the merger of Merger Sub with and into Impax, with Impax continuing as the surviving corporation, pursuant to the BCA.	
 
 	•	 	“ Impax Shares ” refers to outstanding shares of common stock of Impax, par value $0.01 each.	
 
 	•	 	“ Impax Stockholders ” refers to the holders of Impax Shares.	
 
 	•	 	“ Merger Sub ” refers to K2 Merger Sub Corporation, a Delaware limited liability company and a direct wholly owned subsidiary of Holdco and prior to the Closing an indirect wholly owned subsidiary of Impax.	
 
 	•	 	“ New Amneal ,” “ our ” “ we ” or “ us ” refers refers to Holdco after its re-registration as a public company and renaming as Amneal Pharmaceuticals, Inc. pursuant to the BCA upon the Closing.	
 
 	•	 	“ New Amneal Board ” refers to New Amneal’s board of directors.	
 
 	•	 	“ New Amneal Charter ” refers to the amended and restated certificate of incorporation of New Amneal.	
 
 	•	 	“ New Amneal Shares ” refers collectively to shares of Class A common stock, shares of Class B common stock and shares of Class B-1 common stock.	
 
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 	•	 	“ selling stockholders ” refers to the existing stockholders who may offer or sell shares of Class A common stock pursuant to this prospectus, as identified in “Selling Stockholders,” comprised of (i) the PIPE Investors (including certain of the PIPE Investors currently holding restricted shares of Class B-1 common stock will be automatically be converted into shares of Class A common stock upon the transfer thereof) and (ii) Amneal Holdings, which prior to the consummation of any offering or sale will exchange its Amneal Common Units for shares of Class A common stock as described in the “Prospectus Summary—Offering.”	
 
 	•	 	“ Stockholders Agreement ” refers to the Second Amended and Restated Stockholders Agreement, dated December 16, 2017, by and among Holdco and the Existing Amneal Members.	
 
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 THE COMBINATION AND THE PIPE INVESTMENT
On May 4, 2018, pursuant to the BCA, among other things: (i) the Impax Merger was effected; (ii) each Impax Share outstanding immediately prior to the Impax Merger Effective Time (other than than shares owned or held by Impax in treasury, by Amneal or by any of their respective subsidiaries (“ Cancelled Shares ”)), was converted into the right to receive one share of Class A common stock; (iii) Impax converted to a Delaware limited liability company named Impax Laboratories, LLC; (iv) Holdco contributed all of the equity interests of Impax to Amneal in exchange for certain equity interests of Amneal; (v) New Amneal issued shares of Class B common stock to the Existing Amneal Members, which subsequently assigned and transferred such shares to Amneal Holdings; and (vi) New Amneal became the managing member of Amneal.
Immediately following the Closing: (i) (A) Amneal Holdings held 100% of the Class B common stock, which represented approximately 75% of the voting power of the outstanding New Amneal Shares, and (B) Impax Stockholders immediately prior to the Closing held 100% of the Class A common stock, which represented approximately 25% of the voting power of the New Amneal Shares; (ii) (A) Amneal Holdings held approximately 75% of the Amneal Common Units and (B) Impax Stockholders indirectly, through their ownership in New Amneal, held approximately 25% of the Amneal Common Units; and (iii) the Amneal Common Units were exchangeable on a one-to-one basis for Class A common stock or Class B-1 common stock. The rights (including voting rights) of Class A common stock and Class B common stock are identical, except that Class B common stock has no economic rights and the rights of Class A common stock and Class B-1 common stock are identical, except that Class B-1 common stock has no voting rights (other than to elect the Class B-1 Director (as defined herein).
Following the Closing and the closing of the investment by certain institutional investors including TPG Improv Holdings, L.P. (“ TPG ”) and funds affiliated with Fidelity Management & Research Company (the “ PIPE Investment ”), Amneal Holdings held approximately 60% of the voting power of the outstanding New Amneal Shares, and the PIPE Investors held approximately 15% of the voting power of the outstanding New Amneal Shares.
In connection with the Combination and the PIPE Investment, Amneal Holdings, LLC entered into a definitive purchase agreement (the “ PIPE Purchase Agreement ”) with select institutional investors, including TPG and funds affiliated with Fidelity (the “ PIPE Investors ”). Pursuant to the PIPE Purchase Agreement, upon the Closing of the Combination, Amneal Holdings, LLC exercised its right to cause Amneal to redeem certain of the Amneal Common Units (the “ Redeemed Units ”) held by such members pursuant to the LLC Agreement. In connection with such redemption, Amneal Holdings, LLC received shares of Class A common stock or shares of Class B-1 common stock in exchange for such Redeemed Units, in each case pursuant to the LLC Agreement (such redemption and issuance of Class A common stock and Class B-1 common stock to Amneal Holdings, the “ Redemption ”). Following the Redemption, Amneal Holdings sold such shares of Class A common stock and Class B-1 common stock to the PIPE Investors at a per share purchase price of $18.25 for gross proceeds of approximately $855,000,000. Following the PIPE Investment, the PIPE Investors own collectively approximately 15% of the New Amneal Shares on a fully diluted and as converted basis, with TPG owning all outstanding shares of Class B-1 common stock.
In connection with the Combination and in furtherance of the PIPE Investment, TPG, Amneal Holdings and Holdco entered into a side letter (the “ PIPE Side Letter ”) providing for certain rights and obligations of each in connection with the PIPE Investment. Pursuant to the PIPE Side Letter, TPG has customary registration rights with respect to the New Amneal Shares owned by it. The PIPE Side Letter also provides TPG the right to designate a board observer with respect to the New Amneal Board, as well as the right, subject to certain ownership thresholds discussed herein, to designate a director for appointment to the New Amneal Board.
On May 4, 2018, Amneal Holdings caused Amneal to redeem (the “Closing Date Redemption”) (in accordance with the terms of the LLC Agreement) 6,886,140 of the Amneal Common Units i s sued to th e Existing Amneal Members (and subsequently assigned and transferred to Amneal Holdings) in connection with
 
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the Combination for a like number of shares of Class A common stock covered by this prospectus, and intends to distribute such shares to certain direct and indirect members of Amneal Holdings who were or are employees of Amneal and to whom were previously issued (prior to the Closing) profit participa tion units in Amneal .
After giving effect to the Combination, the PIPE investment and the Closing Date Redemption, as of May 4, 2018, the holders of our Class A (including Amneal Holdings, to the extent of the Class A shares received in the Closing Date Redemption) and Class B-1 common stock hold 100% of the economic interests in us and approximately 43% of the voting power in us, and Amneal Holdings, through its ownership of all of the outstanding Class B common stock, holds no economic interest in us and the remaining approximately 57% of the voting power in us. We are a holding company, and following the Combination and the PIPE Investment, our principal assets are the Amneal Common Units, representing an aggregate approximately 43% economic interest in Amneal. The remaining approximately 57% economic interest in Amneal is owned by Amneal Holdings through its ownership of Amneal Common Units. We are the sole managing member of Amneal and, although we have a minority economic interest in Amneal, we have the sole voting power in, and control the management of, Amneal. Accordingly, we expect to consolidate the financial results of Amneal and report a non-controlling interest in our consolidated financial statements.
 
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 MARKET AND INDUSTRY DATA
Unless otherwise indicated, information contained in this prospectus concerning our industry and the markets in which we operate is based on information from independent industry and research organizations, other third-party sources (including industry publications, surveys and forecasts, as well as market analyses and reports), and management estimates. Management estimates are derived from publicly available information released by independent industry analysts and third-party sources, as well as data from our internal research, and are based on assumptions made by us upon reviewing such data and our knowledge of such industry and markets which we believe to be reasonable. Although we believe the data from these third-party sources is reliable, we have not independently verified any third-party information. In addition, projections, assumptions and estimates of the future performance of the industry in which we operate and our future performance are necessarily subject to uncertainty and risk due to a variety of factors, including those described in “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.” These and other factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.
 
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NON-GAAP FINANCIAL MEASURES
EBITDA, or earnings before interest, taxes, depreciation and amortization, and adjusted EBITDA are used and provided by Amneal as non-GAAP financial measures. Adjusted EBITDA is intended to provide additional information on Amneal’s performance, operations and profitability. Adjustments to Amneal’s GAAP figures as well as adjusted EBITDA exclude interest expense, loss on extinguishment and modification of debt, income tax provision, depreciation and amortization, optimization expense, pro-forma royalty expense, loss on specified international entities, loss on sale of certain international businesses, acquisition and transaction related costs, foreign exchange gain, severance and non-controlling interest, legal contract settlement, member units purchase. Certain other special items or substantive events may also be included in the non-GAAP adjustments periodically when their magnitude is significant within the periods incurred. Amneal maintains an established non-GAAP cost policy that guides the determination of what costs will be excluded in non-GAAP measures. Amneal believes that these non-GAAP financial measures, when considered together with the GAAP figures, can enhance an overall understanding of Amneal’s financial and operating performance. The non-GAAP financial measures are included with the intent of providing investors with a more complete understanding of Amneal’s historical financial results and trends and to facilitate comparisons between periods and with respect to projected information. In addition, these non-GAAP financial measures are among the indicators Amneal’s management uses for planning and forecasting purposes and measuring Amneal’s performance. These non-GAAP financial measures should be considered in addition to, and not as a substitute for, or superior to, financial measures calculated in accordance with GAAP. The non-GAAP financial measures used by Amneal may be calculated differently from, and therefore may not be comparable to, non-GAAP financial measures used by other companies.
 
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 PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus and does not contain all of the information that you should consider in making your investment decision. Before investing in our common stock, you should carefully read this entire prospectus, including our financial statements and the related notes included elsewhere in this prospectus. You should also consider, among other things, the matters described under “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” in each case appearing elsewhere in this prospectus .
Business
We are a specialty pharmaceutical company specializing in developing, manufacturing, marketing and distributing high-value generic pharmaceutical products across a broad array of dosage forms and therapeutic areas, as well as the development, manufacture and sale of branded products. We were formed from the combination of Amneal and Impax pursuant to the Combination. Prior to the consummation of the Combination, Amneal and Impax operated separately as independent companies.
Amneal is a generic pharmaceutical company specializing in developing, manufacturing, marketing and distributing high-value generic pharmaceutical products across a broad array of dosage forms and therapeutic areas. Amneal currently markets over 125 product families in the United States and its marketed and pipeline generics portfolios cover an extensive range of dosage forms and delivery systems, including both immediate and extended release oral solids such as tablets, capsules and powders, liquids, sterile injectables, nasal sprays, inhalation and respiratory products, ophthalmics (which are sterile pharmaceutical preparations administered for ocular conditions), films, transdermal patches and topicals (which are creams or gels designed to administer pharmaceuticals locally through the skin). Amneal focuses on developing products with substantial barriers-to-entry as a result of complex drug formulations or manufacturing, legal and/or regulatory challenges. Focusing on these opportunities allows Amneal to offer first-to-file (“ FTF ”), first-to-market (“ FTM ”) and other “high-value” products, which Amneal defines as products with zero to three generic competitors at time of launch. These products generally have limited competition at launch, tend to be more profitable and often have longer life cycles than other generic pharmaceuticals. As of December 31, 2017, Amneal had 156 products approved but not yet launched or pending Food and Drug Administration (“ FDA ”) approval and another 123 products in various stages of clinical development. Over 58% of Amneal’s total generic pipeline consists of potential FTF, FTM and high-value products. Amneal has an integrated, team-based approach to product development that combines its formulation, regulatory, legal, manufacturing and commercial capabilities.
Amneal was founded in 2002 by Chintu and Chirag Patel and is a limited liability company organized under the laws of Delaware. Since Amneal’s founding, Amneal has invested heavily in R&D and infrastructure in order to fuel future growth. As a result of these investments, as well as a continued focus on quality and customer service, Amneal has developed what it believes to be one of the largest generic product pipelines in the United States, as well as comprehensive development and manufacturing expertise and capability across all major dosage forms. This allows Amneal a greater degree of profitability, control over quality and agility in the face of changing market dynamics. Amneal has also developed vertically integrated Active Pharmaceutical Ingredient (“ API ”) manufacturing capabilities, which it utilizes on a selective, product-by-product basis based on API scarcity or as alternate supply for strategically critical products. As of December 31, 2017, Amneal had launched 34 products in 2017, compared to 18 and 14 for the full years ended December 31, 2016 and 2015, respectively.
For the year ended December 31, 2017, Amneal had net revenue of $1,033.7 million, net income of $169.3 million and adjusted EBITDA of $336.1 million. Amneal’s investment in growth initiatives and ability to successfully launch new products has resulted in a compound annual revenue growth rate of 10%, and an adjusted EBITDA compound annual growth rate of 9% over the last three years. Net income had a compound

 
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annual decline of 2% over the last three years. Amneal plans to strengthen its competitive position as a leading generic pharmaceutical company by continuing to focus on developing and commercializing high-value products.
Impax is a specialty pharmaceutical company applying formulation and development expertise, as well as its drug delivery technology, to the development, manufacture and marketing of generic pharmaceutical products, in addition to the development, manufacture and marketing of branded products. Impax operates in two segments, referred to as “Impax Generics” and “Impax Specialty Pharma.” Impax Generics concentrates its efforts on generic products, which are the pharmaceutical and therapeutic equivalents of brand-name drug products and are usually marketed under their established nonproprietary drug names rather than by a brand name. Impax Specialty Pharma utilizes its specialty sales force to market proprietary branded pharmaceutical products for the treatment of central nervous system (“ CNS ”) disorders and other select specialty segments.
Recent Developments
The following table presents selected preliminary unaudited financial results as of, and for, the three months ended March 31, 2018 for Amneal, Impax and the combined Company (Amneal and Impax). Our consolidated financial statements as of, and for, the three months ended March 31, 2018, are not yet available. We have the preliminary results described below primarily because our financial closing procedures for the three months ended March 31, 2018, are not yet complete and, as a result, our final results upon completion of our closing procedures may vary from the preliminary results set forth below. These preliminary results should not be viewed as a substitute for interim financial statements prepared in accordance with U.S. GAAP. Our independent registered public accounting firm has not conducted a review of, and does not express an opinion or any other form of assurance with respect to, these preliminary results.
Amneal

 	  	Three months ended	 	
(In thousands)	  	March 31,
2018	 	  	March 31,
2017	 	
Statements of Income Data:	  				  				
Net revenue	  	$	275,189	 	  	$	225,681	 	
Total operating expenses	  	 	81,041	 	  	 	73,288	 	
Operating profit	  	 	63,554	 	  	 	42,728	 	
Net income attributable to Amneal Pharmaceuticals LLC and Subsidiaries	  	 	51,535	 	  	 	41,853	 	
Impax

 	  	Three months ended	 	
(In thousands)	  	March 31,
2018	 	  	March 31,
2017	 	
Statements of Operations Data:	  				  				
Total revenues, net	  	$	142,355	 	  	$	184,403	 	
Total operating expenses	  	 	155,156	 	  	 	76,695	 	
Loss from operations	  	 	(124,876	) 	  	 	(51,804	) 	
Net loss	  	 	(130,932	) 	  	 	(98,431	) 	

 
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Combined Company (Amneal and Impax)

 	  	Three months ended	 	
(In thousands)	  	March 31,
2018	 	  	March 31,
2017	 	
Statements of Operations Data:	  				  				
Net revenue	  	$	417,544	 	  	$	410,084	 	
Total operating expenses	  	 	236,197	 	  	 	149,983	 	
Operating loss	  	 	(61,322	) 	  	 	(9,076	) 	
Net loss	  	 	(79,397	) 	  	 	(56,578	) 	
Total combined Company net revenues in the first quarter 2018 were $417.5 million, an increase of 1.8%, compared to $410.1 million in the prior year period. The increase was driven by a 17.8% increase in Specialty Pharma revenues.
Generic division revenues, net, in the first quarter 2018 were $358.3 million, a slight decline compared to $359.8 million in the prior year period, due to revenue reductions from increased competition on budesonide, lidocaine, yuvafem-estradiol, mixed amphetamine salts and fenofibrate, partially offset by increased revenue from new product launches including oseltamivir, methylphenidate HCI ER and erythromycin. First quarter 2018 sales were negatively impacted by lower revenues of epinephrine auto-injector due to a recent supply shortage at the Company’s third-party manufacturer, and lower than expected sales of aspirin dipyridamole ER due to limited raw material availability.
Specialty Pharma division revenues, net, in the first quarter 2018 were $59.2 million, an increase of 17.8%, compared to $50.3 million in the prior year period, driven by higher revenue from Rytary®, Zomig® and the anthelmintic products franchise.
Gross margin in the first quarter 2018 was 41.9%, compared to 34.4% in the prior year period. The prior year gross margin was negatively impacted by an approximate $39 million intangible asset impairment charge, for which there were no comparable amounts in the current year. Adjusted gross margin was 48.0% for the first quarter 2018, a slight decrease compared to 50.3% for the first quarter 2017, partially due to the supply shortages on epinephrine auto-injector and aspirin dipyridamole ER, as well as product sales mix.
The unaudited combined company preliminary results presented above is for illustrative purposes only and is not intended to, and does not purport to, represent what Impax’s, Amneal’s or New Amneal’s actual results or financial condition would have been if the Combination, the related financing transactions and the PIPE Investment had occurred at the beginning of the applicable periods.
The information above is based on preliminary unaudited information for the three months ended March 31, 2018, is not a comprehensive statement of our financial results, and is subject to completion of our financial closing procedures. This information should be read in conjunction with our consolidated financial statements and the related notes and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for prior periods included elsewhere in this prospectus. Our actual results for the three months ended March 31, 2018 are not yet available, may differ materially from our preliminary results (including as a result of quarter-end closing and review procedures) and are not necessarily indicative of the results to be expected for the remainder of 2018 or any future period. Accordingly, you should not place undue reliance upon these preliminary results. There can be no assurance that these results will be realized, and the preliminary results are subject to risks and uncertainties, many of which are not within our control. Please see “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.” These preliminary results have been prepared by and are the responsibility of management. Our independent registered public accounting firm has not conducted a review of,

 
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and does not express an opinion or any other form of assurance with respect to, these preliminary results. These preliminary results should not be viewed as a substitute for interim financial statements prepared in accordance with U.S. GAAP.
Risks Associated With Our Business
The businesses of Amneal, Impax and New Amneal are subject to a number of risks of which you should be aware before making an investment decision. These risks are discussed more fully in the “Risk Factors” section of this prospectus immediately following this prospectus summary.
Corporate History and Information
We were incorporated in Delaware in 2017. Our principal executive offices are located at 30831 Huntwood Ave Hayward, CA 94544, and our telephone number is (510) 240-6000. Our website address is http://www.amneal.com. The information contained in, or that can be accessed through, our website is not part of this prospectus.
We anticipate filing various U.S. federal trademark registrations and applications, and we own unregistered trademarks and servicemarks, including our corporate logo. All other trademarks or trade names referred to in this prospectus are the property of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus may be referred to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent under applicable law, their rights thereto. This prospectus also includes other trademarks of other persons.

 
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Organizational Structure
The diagram below depicts our current organizational structure after giving effect to completion of the Combination, the PIPE Investment, and Closing Date Redemption (as defined herein), which occurred on May 4, 2018.

 
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The diagram below depicts our organizational structure after giving further effect to this offering.

 
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 THE OFFERING

Class A common stock outstanding immediately prior to the registration by us of Class A common stock for resale by the selling stockholders	  	116,405,410
shares	
Class B-1 common stock outstanding immediately prior to the registration by us of Class A common stock for resale by the selling stockholders	  	12,328,767 shares	
Class B common stock outstanding immediately prior to the registration by us of Class A common stock for resale by the selling stockholders	  	171,260,707
shares	
Class A common stock that may be sold by the selling stockholders to the public	  	Up to 224,996,163
shares (1)	
Class A common stock to be outstanding immediately after the sale of Class A common stock by the selling stockholders to the public	  	299,994,884 (2)	
Class B-1 common stock to be outstanding immediately after the sale of Class A common stock by the selling stockholders to the public	  	None (2)	
Class B common stock to be outstanding immediately after the sale of Class A common stock by the selling stockholders to the public	  	None (2)	
The number of shares of common stock to be outstanding after this offering is based on 116,405,410 shares of Class A common stock, 12,328,767 shares of Class B-1 common stock and 171,260,707 shares of Class B common stock (and an equivalent amount of Amneal Common Units), in each case, after giving effect to the Combination, the PIPE Investment and the Closing Date Redemption, outstanding as of May 4, 2018. It excludes the following:
 
 	•	 	23,000,000 shares of Class A common stock reserved for future issuance under the 2018 Plan.	

(1)	Out of the 224,996,163 shares of Class A common stock that our selling stockholders may offer and sell, (i) 41,406,689 restricted shares of Class A common stock previously have been issued to certain of our stockholders, (ii) 12,328,767 shares of Class A common stock will result from the automatic conversion upon transfer of restricted shares of Class B-1 common stock that have previously been issued to certain of our stockholders and (iii) the remaining 171,260,707 shares of Class A common stock will be issued by us from time to time to Amneal Holdings, which is also a holder of outstanding Amneal Common Units (as defined herein) upon the redemptions by Amneal Holdings of an equivalent number of Amneal Common Units (and the surrender and cancellation of an equivalent number of shares of Class B common stock) held by Amneal Holdings.	
  	Amneal Holdings, from time to time, may require Amneal to redeem or exchange all or a portion of their Amneal Common Units for newly-issued shares of Class A common stock on a one-for-one basis. New Amneal’s Board of Directors, which includes directors who hold Amneal Common Units or are affiliated with Amneal Holdings and may include such directors in the future, may, at its option, instead make a cash payment in accordance with the terms of the LLC Agreement. Shares of our Class B common stock will be cancelled on a one-for-one basis if we redeem or exchange Amneal Common Units of Amneal Holdings pursuant to the terms of the LLC Agreement. On May 4, 2018, Amneal Holdings caused Amneal to redeem (in accordance with the terms of the LLC Agreement) 6,886,140 of the Amneal Common Units issued to the Existing Amneal Members (and subsequently assigned and transferred to Amneal Holdings) in connection with the Combination for a like number of shares of Class A common stock covered by this prospectus, and intends to distribute such shares to certain direct and indirect members of Amneal Holdings who were or are employees of Amneal and to whom were previously issued (prior to the Closing) profit participation units in Amneal.	
  	In order for Amneal Holdings to offer or sell pursuant to this prospectus, we will implement the exchange procedures set forth in the LLC Agreement pursuant to which Amneal Holdings will exchange, on a one-for-one basis, its Amneal Common Units for newly-issued shares of Class A common stock that will be sold (and their shares of Class B common stock will be surrendered and cancelled on a one-for-one basis	

 
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 	upon such issuance). When Amneal Holdings exchanges Amneal Common Units for shares of Class A common stock, because New Amneal acquires additional Amneal Common Units, the number of Amneal Common Units owned by New Amneal will correspondingly increase. See “Certain Related Parties and Related Party Transactions—Agreements Entered into in Connection with the Combination—LLC Agreement.”	
(2)	The number of shares of Class A common stock to be outstanding after this offering assumes redemptions by Amneal Holdings of an amount of outstanding Amneal Common Units equivalent to the number of shares of Class A common stock (and the surrender and cancellation by Amneal Holdings of an equivalent number of shares of Class B common stock) sold by Amneal Holdings.	

 
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 SUMMARY HISTORICAL AND PRO FORMA CONSOLIDATED AND OTHER FINANCIAL DATA
You should read the following summary financial data together with the financial statements of Amneal and the related notes appearing at the end of this prospectus, the financial statements of Impax and the related notes appearing at the end of this prospectus, and the “Selected Financial Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” sections of this prospectus.
The selected historical consolidated financial data of Amneal for each of the years ended December 31, 2017, 2016, and 2015, and as of December 31, 2017 and 2016 have been derived from Amneal’s audited consolidated financial statements and related notes, which are included in the section entitled “ Index to Amneal Pharmaceuticals LLC and Subsidiaries Consolidated Financial Statements ” included in this prospectus. The selected historical consolidated financial data for the year ended December 31, 2014 and as of December 31, 2015 have been derived from Amneal’s audited consolidated financial statements, which have not been included in this prospectus. The selected historical consolidated financial data for the year ended December 31, 2013 and as of December 31, 2014 and 2013 have been derived from the audited consolidated financial statements and related notes of Amneal’s immediate parent, Amneal Pharmaceuticals Holding Company, LLC (“APHC”), as adjusted to exclude the immaterial activities of APHC. These financial statements have not been included in this prospectus. The information set forth below is only a summary and is not necessarily indicative of the results of future operations of Amneal or New Amneal, and you should read the following information together with Amneal’s audited consolidated financial statements, the related notes and the section entitled “ Management’s Discussion and Analysis of Financial Condition and Results of Operations of Amneal ” included in this prospectus.
The selected historical consolidated financial data of Impax for each of the years ended December 31, 2017, 2016, and 2015, and as of December 31, 2017 and 2016 have been derived from Impax’s audited consolidated financial statements and related notes, which are included in this prospectus. The selected historical consolidated financial data for the years ended December 31, 2014 and 2013 and as of December 31, 2015, 2014, and 2013 have been derived from Impax’s audited consolidated financial statements, which have not been included in this prospectus. The information set forth below is a summary and not necessarily indicative of future results and should be read together with the other information contained in this prospectus, including the section entitled “ Management’s Discussion and Analysis of Financial Condition and Results of Operations of Impax .”
The following Summary Unaudited Pro Forma Condensed Combined Statement of Operations Data of New Amneal for the year ended December 31, 2017, has been prepared to give effect to the Combination, the related financing and the PIPE Investment as if Closing had occurred on January 1, 2017. The following Summary Unaudited Pro Forma Condensed Combined Balance Sheet Data of New Amneal as of December 31, 2017, has been prepared to give effect to the Combination, the related financing and the PIPE Investment as if Closing had occurred on December 31, 2017.
The following Summary Unaudited Pro Forma Condensed Combined Statement of Operations Data is for illustrative and informational purposes only and is not necessarily indicative of the results that might have occurred had the Combination, the related financing and the PIPE Investment taken place on January 1, 2017 for statements of operations purposes and is not intended to be a projection of future results. Future results may vary significantly from the results reflected because of various factors, including those discussed in the section entitled “ Risk Factors ” beginning on page 9. The following Summary Unaudited Pro Forma Condensed Combined Financial Information should be read in conjunction with the section entitled “ Unaudited Pro Forma Condensed Combined Financial Statements ” and related notes.

 
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Amneal

 	  	Years Ended December 31,	 	
(In thousands)	  	2017	 	  	2016	 	  	2015	 	  	2014	 	  	2013	 	
Statements of Income Data:	  				  				  				  				  				
Net revenue	  	$	1,033,654	 	  	$	1,018,225	 	  	$	866,280	 	  	$	785,263	 	  	$	531,126	 	
Total operating expenses	  	 	281,075	 	  	 	312,610	 	  	 	265,525	 	  	 	229,847	 	  	 	132,287	 	
Operating profit	  	 	245,103	 	  	 	284,881	 	  	 	236,158	 	  	 	218,575	 	  	 	100,815	 	
Net income attributable to Amneal Pharmaceuticals LLC and Subsidiaries	  	 	167,648	 	  	 	207,378	 	  	 	169,451	 	  	 	176,928	 	  	 	91,776	 	

 	  	As of December 31,	 	
(In thousands)	  	2017	 	 	2016	 	 	2015	 	 	2014	 	 	2013	 	
Balance Sheet Data:	  				 				 				 				 				
Cash and cash equivalents	  	$	74,166	 	 	$	27,367	 	 	$	61,087	 	 	$	117,522	 	 	$	81,885	 	
Working capital	  	 	475,050	 	 	 	501,041	 	 	 	365,454	 	 	 	325,989	 	 	 	207,501	 	
Total assets	  	 	1,341,889	 	 	 	1,218,817	 	 	 	1,014,093	 	 	 	829,983	 	 	 	592,289	 	
Total liabilities	  	 	1,717,471	 	 	 	1,394,762	 	 	 	1,200,966	 	 	 	927,670	 	 	 	616,375	 	
Total members’ (deficit) equity	  	 	(375,582	) 	 	 	(175,945	) 	 	 	(186,873	) 	 	 	(97,686	) 	 	 	(24,086	) 	
Impax

(In thousands, except per share data)	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	  	2014	 	  	2013	 	
Statements of Operations Data:	  				 				 				  				  				
Total revenues, net	  	$	775,787	 	 	$	824,429	 	 	$	860,469	 	  	$	596,049	 	  	$	511,502	 	
Total operating expenses	  	 	546,491	 	 	 	343,080	 	 	 	282,836	 	  	 	223,837	 	  	 	205,687	 	
(Loss) income from operations	  	 	(402,692	) 	 	 	(494,182	) 	 	 	69,568	 	  	 	88,816	 	  	 	(6,387	) 	
Net (loss) income	  	 	(469,287	) 	 	 	(472,031	) 	 	 	38,997	 	  	 	57,353	 	  	 	101,259	 	
Net (loss) income per share—Basic	  	$	(6.53	) 	 	$	(6.63	) 	 	$	0.56	 	  	$	0.84	 	  	$	1.51	 	
Net (loss) income per share—Diluted	  	$	(6.53	) 	 	$	(6.63	) 	 	$	0.54	 	  	$	0.81	 	  	$	1.47	 	
		
(In thousands)	  	As of December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	  	2014	 	  	2013	 	
Balance Sheet Data:	  				 				 				  				  				
Cash, cash equivalents and short-term investments	  	$	181,778	 	 	$	180,133	 	 	$	340,351	 	  	$	414,856	 	  	$	413,133	 	
Working capital	  	 	341,317	 	 	 	309,817	 	 	 	495,312	 	  	 	516,927	 	  	 	505,852	 	
Total assets	  	 	1,351,300	 	 	 	1,823,018	 	 	 	1,922,487	 	  	 	1,079,197	 	  	 	996,923	 	
Total liabilities	  	 	1,164,099	 	 	 	1,199,044	 	 	 	860,078	 	  	 	191,320	 	  	 	186,720	 	
Total stockholders’ equity	  	 	187,201	 	 	 	623,974	 	 	 	1,062,409	 	  	 	887,877	 	  	 	810,203	 	
Pro Forma New Amneal

(In thousands)	  	Year Ended
December 31, 2017	 	
 	  			
Statement of Operations Data:	  				
Net revenue	  	$	1,809,441	 	
Total operating expenses	  	 	806,792	 	
Operating loss	  	 	(167,931	) 	
Net loss	  	 	(342,128	) 	
Net loss per share—Basic	  	$	(1.29	) 	
Net loss per share—Diluted	  	$	(1.29	) 	

(In thousands)	  	As of
December 31, 2017	 	
 	  			
Balance Sheet Data:	  				
Cash and cash equivalents	  	$	243,163	 	
Working capital	  	 	899,727	 	
Total assets	  	 	4,313,360	 	
Total liabilities	  	 	3,492,877	 	
Total stockholders’ equity	  	 	820,483	 	

 
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 RISK FACTORS
Investing in our common stock involves a high degree of risk. You should carefully consider the following risks and uncertainties, together with all other information in this prospectus, including our financial statements and related notes, before investing in our common stock. Any of the risk factors we describe below could adversely affect our business, financial condition or results of operations. The market price of our Class A common stock could decline if one or more of these risks or uncertainties actually occur, causing you to lose all or part of the money you paid to buy our common stock. Additional risks that we currently do not know about or that we currently believe to be immaterial may also impair our business. Certain statements below are forward-looking statements. See “Cautionary Note Regarding Forward-Looking Statements” in this prospectus.
Risk Factors Relating to the Combination
The integration of Impax and Amneal following Closing will present challenges that may result in a decline in the anticipated benefits of the Combination.
The Combination involves the integration of two businesses that previously operated as independent businesses. Impax and Amneal will be required to devote management attention and resources to integrating their business practices and operations following the Closing. Potential difficulties Impax, Amneal or New Amneal may encounter in the integration process include the following:
 
 	•	 	the inability to successfully integrate the two businesses, including operations, technologies, products and services, in a manner that permits Impax, Amneal or New Amneal to achieve the cost savings and operating synergies anticipated to result from the Combination, which could result in the anticipated benefits of the Combination not being realized partly or wholly in the time frame currently anticipated or at all;	
 
 	•	 	the loss of sales and customers as a result of certain customers of either or both of the two businesses deciding not to continue to do business with Impax or Amneal, or deciding to decrease their amount of business in order to reduce their reliance on a single company;	
 
 	•	 	the necessity of coordinating geographically separated organizations, systems and facilities;	
 
 	•	 	potential unknown liabilities and unforeseen expenses, delays or regulatory conditions associated with the Combination;	
 
 	•	 	the integration of personnel with diverse business backgrounds and business cultures, while maintaining focus on providing consistent, high-quality products and services;	
 
 	•	 	the consolidation and rationalization of information technology platforms and administrative infrastructures as well as accounting systems and related financial reporting activities;	
 
 	•	 	the potential weakening of established relationships with regulators; and	
 
 	•	 	the challenge of preserving important relationships of both Impax and Amneal and resolving potential conflicts that may arise.	
Furthermore, it is possible that the integration process could result in the loss of talented employees or skilled workers of Impax and Amneal. The loss of talented employees and skilled workers could adversely affect Impax’s, Amneal’s or New Amneal’s ability to successfully conduct their respective businesses because of such employees’ experience and knowledge of Impax’s and Amneal’s businesses. In addition, Impax, Amneal or New Amneal could be adversely affected by the diversion of management’s attention and any delays or difficulties encountered in connection with the integration of Impax and Amneal. The process of integrating operations could cause an interruption of, or loss of momentum in, the activities of one or more of Impax’s or Amneal’s

 
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businesses. If Impax, Amneal or New Amneal experience difficulties with the integration process, the anticipated benefits of the Combination may not be realized fully or at all, or may take longer to realize than expected. These integration matters could have an adverse effect on the business, results of operations, financial condition or prospects of Impax, Amneal or New Amneal during this transition period and for an undetermined period after completion of the Combination.
New Amneal is controlled by the Amneal Group Members. The interests of Amneal Group Members may differ from those of other holders of New Amneal Shares.
Immediately following Closing and the closing of the PIPE Investment, Amneal Group Members (as defined in the Stockholders Agreement) beneficially own approximately 60% of the fully diluted New Amneal Shares.
Through its ownership of a majority of New Amneal’s voting power and the provisions set forth in the New Amneal Charter, the restated bylaws of New Amneal Bylaws and the Stockholders Agreement, the Amneal Group Members have the ability to designate a majority of the New Amneal Board. As a result of the Amneal Group Members’ ownership of a majority of the voting and economic interests in the combined businesses of Impax and Amneal under New Amneal, New Amneal is a “controlled company” as defined in the NYSE listing rules and, therefore, is not be subject to the NYSE requirements that would otherwise require New Amneal to have (i) a majority of independent directors, (ii) a nominating committee composed solely of independent directors, (iii) the compensation of its executive officers determined by a majority of the independent directors or a compensation committee composed solely of independent directors, and (iv) director nominees selected, or recommended for the board’s selection, either by a majority of the independent directors or a nominating committee composed solely of independent directors. Further, Amneal Holdings has the right to nominate half of the directors to serve on each of the Nominating Committee and Compensation Committee for so long as the Amneal Group Members beneficially own more than 50% of the outstanding New Amneal Shares. For further information regarding the New Amneal Board and its committees following Closing, see the section entitled “ Management. ”
Amneal Holdings also has control over certain New Amneal actions through certain consent rights:
 
 	•	 	For so long as Amneal Holdings and its permitted transferees beneficially owns more than 25% of the outstanding New Amneal Shares, New Amneal will not take the following actions without obtaining the prior consent of Amneal Holdings:	
 
 	•	 	amend, modify, or repeal any provision of the New Amneal Charter or the New Amneal Bylaws in a manner that adversely impacts Amneal Holdings and its permitted transferees;	
 
 	•	 	effect any change in the authorized number of directors, except pursuant to the Stockholders Agreement;	
 
 	•	 	create or reclassify any new or existing class or series of capital stock to grant rights, preferences, or privileges with respect to voting, liquidation, redemption, conversion or dividends that are senior to or on parity with those of the New Amneal Shares; or	
 
 	•	 	consummate any transaction as a result of which (i) more than 50% of the outstanding New Amneal Shares will be beneficially owned by any persons other than Amneal Holdings and its permitted transferees and (ii) Amneal Holdings or its permitted transferees receives an amount or form of consideration different that which is granted to from other holders of New Amneal Shares.	
 
 	•	 	For so long as Amneal Holdings and its permitted transferees satisfy certain ownership thresholds pursuant to the Stockholders Agreement, New Amneal must obtain consent from Amneal Holdings before consummating any transaction involving New Amneal or any of its subsidiaries that would reasonably be expected to result in the recognition of $40,000,000 or more in taxable income or gain by Amneal Holdings.	
 
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 	•	 	Pursuant to the Tax Receivable Agreement, New Amneal and its subsidiaries must seek consent from Amneal Holdings or agree to certain conditions before (i) making a disposition of certain assets if the cumulative “amount realized” (as such term is defined for U.S. federal income tax purposes) for all such dispositions in any 12-month period would be in excess of $40,000,000, (ii) acquiring any equity interests or assets of other business entities, or (iii) entering into additional agreements with other persons that are similar to the Tax Receivable Agreement. In addition, New Amneal will be required to pay an Early Termination Payment to the Members in the event of a Change of Control (as defined in the section entitled “ Certain Related Parties and Related Party Transactions—Tax Receivable Agreement. ”).	
Amneal Holdings may have different interests than other holders of New Amneal Shares and may make decisions adverse to your interests.
Among other things, Amneal Holdings’ control of New Amneal could delay, defer, or prevent a sale of New Amneal that other New Amneal Stockholders support, or, conversely, could result in the consummation of such a transaction that other New Amneal Stockholders do not support. This concentrated control could discourage a potential investor from seeking to acquire Class A common stock and, as a result, might harm the market price of that Class A common stock.
Impax, Amneal and New Amneal have incurred and will incur transaction-related costs in connection with the Combination and the integration of the two businesses.
Impax, Amneal and New Amneal have incurred and will incur transaction-related costs in connection with the Combination and in connection with the integration of Impax’s and Amneal’s businesses. There are many systems that must be integrated, including information management, purchasing, accounting and finance, sales, billing, payroll and benefits, and regulatory compliance. Impax and Amneal are in the early stages of assessing the magnitude of these costs and are therefore unable to provide estimates of these costs. Moreover, many of the expenses that will be incurred, by their nature, are difficult to estimate accurately at the present time. Such expenses could, particularly in the near term, reduce the cost synergies that Impax and Amneal expect to achieve from the elimination of duplicative expenses and the realization of economies of scale and cost synergies related to the integration of the businesses following the completion of the Combination. Accordingly, any net synergies may not be achieved in the near term or at all. These integration expenses may result in Impax, Amneal or New Amneal taking significant charges against earnings following the completion of the Combination.
The unaudited pro forma condensed combined financial information of Impax and Amneal is not intended to reflect what actual results of operations and financial condition would have been had Impax and Amneal been a combined company for the periods presented, and therefore these results may not be indicative of Impax’s, Amneal’s or New Amneal’s future operating performance. 
Because Amneal only recently combined with Impax upon completion of the Combination, there is no available historical financial information that combines the financial results of Impax and Amneal. The historical financial statements contained in this document consist of and are based on the separate financial statements of Impax and Amneal.
The unaudited pro forma condensed combined financial information presented in this document is for illustrative purposes only and is not intended to, and does not purport to, represent what Impax’s, Amneal’s or New Amneal’s actual results or financial condition would have been if the Combination, the related financing transactions and the PIPE Investment had occurred on the relevant dates. In addition, such unaudited pro forma condensed combined financial information is based in part on certain assumptions regarding the transactions that Impax, Amneal and New Amneal believe are reasonable. These assumptions, however, are merely preliminary and will be updated after Closing. The unaudited pro forma condensed combined financial information has been prepared using the acquisition method of accounting. Under the acquisition method of accounting, the purchase
 
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price is allocated to the underlying tangible and intangible assets acquired and liabilities assumed based on their respective acquisition date fair values with any excess purchase price allocated to goodwill. The pro forma purchase price allocation was based on an estimate of the acquisition date fair values of the tangible and intangible assets and liabilities of Impax. In arriving at the estimated fair values, Impax and Amneal have considered the preliminary appraisals of independent consultants, which were based on a preliminary and limited review of the assets and liabilities related to Impax to be held by New Amneal following the consummation of the Combination. New Amneal has a one-year period following Closing to complete the purchase price allocation after considering the fair value of Impax’s assets and liabilities at the level of detail necessary to finalize the required purchase price allocation. The final purchase price allocation may be different from that reflected in the pro forma purchase price allocation presented herein, and this difference may be material.
The unaudited pro forma condensed combined financial information does not reflect the costs of any integration activities or transaction-related costs or incremental capital spending that Impax’s or Amneal’s management believes are necessary to realize the anticipated synergies from the Combination. Accordingly, the pro forma financial information included in this document does not reflect what Impax’s, Amneal’s or New Amneal’s results of operations or operating condition would have been had Impax and Amneal been a combined entity during the period presented, or what Impax’s, Amneal’s or New Amneal’s results of operations and financial condition will be in the future.
Business issues previously faced by one company may be imputed to the operations of New Amneal.
To the extent that, prior to the Closing, either Amneal or Impax had or was perceived to have operational, regulatory, legal or other challenges, those challenges may raise concerns with respect to the other company following Closing, which may limit or impede Impax’s, Amneal’s or New Amneal’s future ability to conduct its business consistently with past practice.
If Amneal were to cease being a subsidiary of New Amneal or Impax were to cease being a subsidiary of Amneal in the future, such a separation could adversely affect our business and profitability due to Amneal’s strong brand and reputation.
Amneal has marketed and Impax and Amneal expect to market many of their respective products and services using the “Amneal” brand name and logo. Impax believes that the association with Amneal will provide many benefits, including:
 
 	•	 	brand associated with trust, integrity and longevity;	
 
 	•	 	perception of high-quality products and related services;	
 
 	•	 	strong research and development (“R&D”) capabilities, intellectual property, and technology; and	
 
 	•	 	established relationships with regulators, suppliers, customers and employees.	
While there is no present intention to separate Impax from Amneal or separate Amneal from New Amneal, if Impax were to cease being a subsidiary of Amneal or Amneal were to cease being a subsidiary of New Amneal, such a separation could adversely affect Impax’s, Amneal’s or New Amneal’s ability to attract and retain customers. Impax, Amneal or New Amneal may be required to provide more favorable pricing and other terms to our customers and take other action to maintain our relationship with existing, and attract new, customers, all of which could have a material adverse effect on our business, financial condition and results of operations.
Some of Impax’s or Amneal’s existing agreements contain change in control or early termination rights that may be implicated by the Combination.
Parties with which Impax or Amneal currently does business or may do business in the future, including customers and suppliers, may experience uncertainty associated with the Combination, including with respect to
 
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current or future business relationships with Impax, Amneal and New Amneal. As a result, the business relationships of Impax or Amneal may be subject to disruptions if customers, suppliers, or others attempt to negotiate changes in existing business relationships or consider entering into business relationships with parties other than Impax, Amneal or New Amneal. For example, certain customers and collaborators may have contractual consent rights or termination rights that may be triggered by a change of control or assignment of the rights and obligations of contracts that will be transferred in the Combination. These disruptions could harm our relationships with existing customers and preclude us from attracting new customers, all of which could have a material adverse effect on our business, financial condition and results of operations, cash flows, and/or share price of Impax, Amneal or New Amneal.
Some of Impax’s or Amneal’s relationships with its customers may experience disruptions in connection with the Combination, which may limit New Amneal’s business.
Parties with which Impax or Amneal currently does business or may do business in the future, including customers and suppliers, may experience uncertainty associated with the Combination, including with respect to future business relationships with the other or with New Amneal. As a result, the business relationships of Impax, Amneal and New Amneal may be subject to disruptions if customers, suppliers, or others attempt to renegotiate changes in existing business relationships or consider entering into business relationships with parties other than Impax, Amneal or New Amneal, in respect of Impax, Amneal or New Amneal. For example, certain customers and collaborators of Impax or Amneal may exercise contractual termination rights as they arise or elect to not renew contracts with Impax or Amneal. These disruptions could harm relationships with existing customers, suppliers or others and preclude us from attracting new customers, all of which could have a material adverse effect on our business, financial condition and results of operations, cash flows, and/or the share price of Impax, Amneal or New Amneal.
Potential changes in laws and regulations affecting Impax’s and Amneal’s businesses could have a material adverse effect on their respective financial performance.
Many of Impax’s and Amneal’s businesses are subject to various federal, state, local and foreign laws and regulations. Their failure to comply with applicable laws and regulations could restrict their ability to provide certain services or result in imposition of civil fines and criminal penalties, substantial regulatory and compliance costs, litigation expense, adverse publicity and loss of revenues. Adverse legislation or regulations could be adopted in any country, state or municipality in which Impax and Amneal operate. If such legislation or regulation is adopted in any particular jurisdiction and Impax or Amneal is unable to continue to operate profitably under the new rules, then Impax or Amneal may decide to make certain strategic decisions, resulting in decreased revenues, earnings and assets. If Impax or Amneal is unable to adapt its products and services to conform to any new laws and regulations, or if such laws and regulations have a negative effect on their customers, Impax or Amneal may experience customer losses or increased operating costs or be required to dispose of all or a part of their businesses, which could have a material adverse effect on their businesses, financial condition and results of operations.
Amneal Holdings may be contemplating sale of its post-Closing interest in New Amneal, which could impact or differ from the remaining interest holders in New Amneal.
The sale of additional New Amneal Shares by Amneal Holdings to other potential investors may adversely affect prevailing market prices for New Amneal Shares. In addition, such investors may have registration rights, the future exercise of which may adversely affect the market price of New Amneal Shares.
The Combination could have an adverse effect on the Impax and Amneal brands.
The success of Impax and Amneal is largely dependent upon the ability of Impax and Amneal to maintain and enhance the value of their respective brands, their customers’ connection to and perception of the brands, and
 
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a positive relationship with customers and suppliers. The businesses and results of operations of Impax and Amneal, could be severely damaged if the Combination receive considerable negative publicity or if customers or suppliers otherwise come to have a diminished view of the brands as a result of the Combination or the common ownership of the existing businesses.
The Tax Receivable Agreement with Amneal Holdings requires us to make cash payments to them in respect of certain tax benefits to which we may become entitled, and we expect that the payments we will be required to make will be substantial.
We are a party to the Tax Receivable Agreement with Amneal Holdings. Under the Tax Receivable Agreement, we will be required to make cash payments to Amneal Holdings and its permitted transferees equal to 85% of certain tax benefits, if any, that we actually realize, or in certain circumstances are deemed to realize, as a result of redemptions or exchanges of Amneal Common Units by Amneal Holdings and its permitted transferees as described under “Certain Relationships and Related Transactions, and Director Independence—LLC Agreement—Amneal Common Units Redemption Right.” We expect that the amount of the cash payments that we will be required to make under the Tax Receivable Agreement will be significant. Any payments made by us to Amneal Holdings or its permitted transferees under the Tax Receivable Agreement will generally reduce the amount of overall cash flow that might have otherwise been available to us. Furthermore, our future obligation to make payments under the Tax Receivable Agreement could make us a less attractive target for an acquisition, particularly in the case of an acquirer that cannot use some or all of the tax benefits that are the subject of the Tax Receivable Agreement. For more information, see “ Related Party Transactions — Tax Receivable Agreement .” Payments under the Tax Receivable Agreement are not conditioned on Amneal Holdings or its permitted transferees’ continued ownership of Amneal Common Units or our Class A Common Stock.
The actual amount and timing of any payments under the Tax Receivable Agreement, will vary depending upon a number of factors, including the timing of redemptions or exchanges by the holders of Amneal Common Units, the amount of gain recognized by such holders, the amount and timing of the taxable income we generate in the future, and the federal tax rates then applicable.
In certain cases, payments under the Tax Receivable Agreement to Amneal Holdings or its permitted transferees may be accelerated or significantly exceed the actual benefits we realize in respect of the tax attributes subject to the Tax Receivable Agreement.
The Tax Receivable Agreement provides that upon certain mergers, asset sales, other forms of business combinations or other changes of control or if, at any time, we elect an early termination of the Tax Receivable Agreement, then our obligations under the Tax Receivable Agreement to make payments thereunder would be based on certain assumptions, including an assumption that we would have sufficient taxable income to fully utilize all potential future tax benefits that are subject to the Tax Receivable Agreement.
As a result of the foregoing, we could be required to make payments under the Tax Receivable Agreement that (i) are greater than the actual benefits we ultimately realize in respect of the tax benefits that are subject to the Tax Receivable Agreement and (ii) are based on the present value of the anticipated future tax benefits that are the subject of the Tax Receivable Agreement, which payment may be required to be made significantly in advance of the actual realization, if any, of such future tax benefits. In these situations, our obligations under the Tax Receivable Agreement could have a substantial negative impact on our liquidity and could have the effect of delaying or preventing certain mergers, asset sales, other forms of business combinations or other changes of control. There can be no assurance that we will be able to fund or finance our obligations under the Tax Receivable Agreement.
 
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We will not be reimbursed for any payments made to the Amneal Holdings or its permitted transferees under the Tax Receivable Agreement in the event that any tax benefits are disallowed.
Payments under the Tax Receivable Agreement will be based on the tax reporting positions that we determine, and the Internal Revenue Service (the “IRS”) or another tax authority may challenge all or part of the tax benefits we claim, as well as other related tax positions we take, and a court could sustain such challenge. If the outcome of any such challenge would reasonably be expected to materially adversely affect a recipient’s rights or obligations (including the amount or timing of payments) under the Tax Receivable Agreement, then we will not be permitted to settle or fail to contest such challenge without the consent of Amneal Holdings. We will not be reimbursed for any cash payments previously made to Amneal Holdings or its permitted transferees under the Tax Receivable Agreement in the event that any tax benefits initially claimed by us and for which payment has been made to Amneal Holdings or its permitted transferees are subsequently challenged by a taxing authority and are ultimately disallowed. Instead, any excess cash payments made by us to Amneal Holdings or its permitted transferees will be netted against any future cash payments that we might otherwise be required to make to Amneal Holdings or its permitted transferees under the terms of the Tax Receivable Agreement. However, we might not determine that we have effectively made an excess cash payment to Amneal Holdings or its permitted transferees for a number of years following the initial time of such payment. As a result, payments could be made under the Tax Receivable Agreement in excess of the tax savings that we realize in respect of the tax attributes with respect to Amneal Holdings or its permitted transferees.
Risk Factors Relating to Us and the Combined Business
Global economic conditions could harm us.
While global economic conditions have been fairly stable as a whole in recent years, continued concerns about the systemic impact of potential geopolitical issues and economic policy uncertainty, particularly in areas in which we operate, could potentially cause economic and market instability in the future and could adversely affect our business, including our financial performance.
Challenging economic conditions could result in tighter credit conditions. The cost and availability of credit may be adversely affected by illiquid credit markets and wider credit spreads, which could adversely affect the ability of our third-party distributors, partners, manufacturers and suppliers to buy inventory or raw materials and to perform their obligations under agreements with us, which could disrupt our operations and adversely affect our financial performance.
Global efforts to contain health care costs continue to exert pressure on product pricing and market access to pharmaceutical products. In many international markets, government-mandated pricing actions have reduced prices of patented drugs. Some countries may be subject to periods of financial instability, may have reduced resources to spend on healthcare or may be subject to economic sanctions, and our business in these countries may be disproportionately affected by these changes. In addition, the currencies of some countries may depreciate against the U.S. dollar substantially and if we are unable to offset the impact of such depreciation, our financial performance within such countries could be adversely affected.
We may be unable to integrate operations successfully and realize the anticipated synergies and other benefits of the Combination.
The Combination involves the combination of two companies that operated as independent public companies prior to the Combination. The integration of the businesses may be more time consuming and require more resources than initially estimated and we may fail to realize some or all of the anticipated benefits of the Combination if the integration process takes longer than expected or is more costly than expected. In addition, until the completion of the Combination, Impax and Amneal operated independently. It is possible that the integration process could result in the diversion of each company’s management’s attention, the disruption or interruption of, or the loss of momentum in, each company’s ongoing businesses or inconsistencies in standards,
 
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control, procedures and policies, any of which could adversely affect New Amneal’s ability to maintain relationships with customers, partners and employees or its ability to achieve the anticipated benefits of the Combination, or could reduce the earnings or otherwise adversely affect our business and financial results. Moreover, in addition to our failure to realize the anticipated benefits of any acquisition, including our revenues or return on investment assumptions, we may be exposed to unknown liabilities or impairment charges as a result of acquisitions we do complete.
If we are unable to successfully develop or commercialize new products, our operating results will suffer.
Developing and commercializing a new product is time consuming, costly and subject to numerous factors that may delay or prevent such development and commercialization. Our future results of operations will depend to a significant extent upon our ability to successfully commercialize new products in a timely manner. We face several challenges when developing and commercializing new products, including:
 
 	•	 	our ability to develop products in a timely and cost-efficient manner and in compliance with regulatory requirements, including delays associated with the FDA listing and approval process and our ability to obtain required regulatory approvals in a timely manner, or at all, and maintain such approvals if obtained;	
 
 	•	 	the success of our clinical testing process to ensure that new products are safe and effective or bioequivalent to the reference listed drug;	
 
 	•	 	the risk that any of our products presently under development, if and when fully developed and tested, will not perform as expected;	
 
 	•	 	the risk that legal action may be brought against our generic drug products by our branded drug product competitors, including patent infringement claims among others;	
 
 	•	 	the availability, on commercially reasonable terms, of raw materials, including APIs and other key ingredients necessary to the development of our generic drug products; and	
 
 	•	 	Our ability to scale-up manufacturing methods to successfully manufacture commercial quantities of generic drug product in compliance with regulatory requirements.	
As a result of these and other difficulties, our products currently in development may or may not receive necessary regulatory approvals on a timely basis or at all, which may result in unsuccessful development or commercialization of new products. If any of our products, when acquired or developed and approved, cannot be successfully or timely commercialized, our operating results could be adversely affected. We cannot guarantee that any investment we make in developing or marketing products will be recouped, even if we are successful in commercializing those products.
If we fail to obtain exclusive marketing rights for our products or fail to introduce our products on a timely basis, our revenues, gross margin and operating results may decline significantly.
The Hatch-Waxman amendments to the Federal Food, Drug, and Cosmetic Act (the “ FDCA ”) provide for a period of 180 days of generic marketing exclusivity for any applicant that is first to file an ANDA containing a certification of invalidity, non-infringement or unenforceability related to a patent listed with respect to the corresponding branded drug (commonly referred to as a “ Paragraph IV certification ”). “First filers” are often able to price the applicable generic drug to yield relatively high gross margins during this 180-day marketing exclusivity period.
With respect to our generic products, ANDAs containing Paragraph IV certifications generally become the subject of patent litigation that can be both lengthy and costly. There is no certainty that we will prevail in any such litigation, that we will be the first to file and thus granted the 180-day marketing exclusivity period, or, if we are granted the 180-day marketing exclusivity period, that we will not forfeit such period. Even where we are
 
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awarded marketing exclusivity, we may be required to share our exclusivity period with other first filers. In addition, branded drug product companies often authorize a generic version of the corresponding branded drug product to be sold during any period of marketing exclusivity that is awarded (described further below), which reduces gross margins during the marketing exclusivity period. Branded drug product companies may also reduce the price of their branded drug product to compete directly with generic drug products entering the market, which would similarly have the effect of reducing gross margins. Furthermore, timely commencement of the litigation by the patent owner imposes an automatic stay of ANDA approval by the FDA for 30 months, unless the case is decided in the ANDA applicant’s favor during that period. Finally, if the court decision is adverse to the ANDA applicant, the ANDA approval will be delayed until the challenged patent expires, and the applicant forfeits the 180-day marketing exclusivity.
Our future profitability depends, to a significant extent, upon our ability to introduce, on a timely basis, new generic drug products that are either the first-to-market (or among the first-to-market) or that otherwise can gain significant market share. The timeliness of our product introductions is dependent upon, among other things, the timing of regulatory approval of our products, which to a large extent is outside of our control, as well as the timing of the introduction of competing products. As additional distributors introduce comparable generic pharmaceutical products, price competition intensifies, market access narrows, and product sales prices and gross margins decline, often significantly and rapidly. Accordingly, our revenues and future profitability are dependent, in large part, upon our ability or the ability of our development partners to file ANDAs with the FDA in a timely and effective manner or, alternatively, to enter into contractual relationships with other parties that have obtained marketing exclusivity. No assurances can be given that we will be able to develop and introduce successful products in the future within the time constraints necessary to be successful. If we or our development partners are unable to continue to timely and effectively file ANDAs with the FDA or to partner with other parties that have obtained marketing exclusivity, our revenues, gross margin and operating results may decline significantly, and our prospects and business may be materially adversely affected.
With respect to our branded products, generic equivalents for branded phannaceutical products are typicallv sold at lower prices than the branded products. The regulatory approval process in the United States and European Union exempts generic products from costly and time-consuming clinical trials to demonstrate their safety and efficacy and rely instead on the safety and efficacy of prior products. After the introduction of a competing generic product, a significant percentage of the prescriptions previously written for the branded product are often written for the generic version. In addition, legislation enacted in most U.S. states allows or, in some instances mandates, that a pharmacist dispense an available generic equivalent when filling a prescription for a branded product, in the absence of specific instructions from the prescribing physician. Pursuant to the provisions of the Hatch-Waxman Act, manufacturers of branded products often bring lawsuits to enforce their patent rights against generic products released prior to the expiration of branded products’ patents, but it is possible for generic manufacturers to offer generic products while such litigation is pending. As a result, branded products typically experience a significant loss in revenues following the introduction of a competing generic product, even if subject to an existing patent. Our branded pharmaceutical products are or may become subject to competition from generic equivalents because there is no proprietary protection for some of the branded pharmaceutical products we sell, because our patent protection expires or because our patent protection is not sufficiently broad or enforceable.
We face intense competition in the pharmaceutical industry from both brand and generic drug product companies, which could significantly limit our growth and materially adversely affect our financial results.
The pharmaceutical industry is highly competitive. The principal competitive factors in the pharmaceutical market include:
 
 	•	 	introduction of other generic drug manufacturers’ products in direct competition with our generic drug products;	
 
 	•	 	introduction of authorized generic drug products in direct competition with our products, particularly during exclusivity periods;	
 
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 	•	 	the ability of generic drug product competitors to quickly enter the market after the expiration of patents or exclusivity periods, diminishing the amount and duration of significant profits;	
 
 	•	 	consolidation among distribution outlets through mergers and acquisitions and the formation of buying groups;	
 
 	•	 	the willingness of generic drug customers, including wholesale and retail customers, to switch among products of different pharmaceutical manufacturers;	
 
 	•	 	pricing pressures by competitors and customers;	
 
 	•	 	a company’s reputation as a manufacturer and distributor of quality products;	
 
 	•	 	a company’s level of service (including maintaining sufficient inventory levels for timely deliveries);	
 
 	•	 	product appearance and labeling; and	
 
 	•	 	a company’s breadth of product offerings.	
Many of our competitors have longer operating histories and greater financial, R&D, marketing and other resources than us. Consequently, some of our competitors may be able to develop products and/or processes competitive with, or superior to, our products. Furthermore, we may not be able to (i) differentiate our products from those of our competitors, (ii) successfully develop or introduce new products—on a timely basis or at all—that are less costly than those of our competitors, or (iii) offer customers payment and other commercial terms as favorable as those offered by our competitors. The markets in which we compete and intend to compete are undergoing, and are expected to continue to undergo, rapid and significant change. We expect competition to intensify as technological advances and consolidation continues. New developments by other manufacturers and distributors could render our products uncompetitive or obsolete.
We believe our principal competitors in the U.S. generic pharmaceutical market, where we primarily compete, are Teva Pharmaceutical Industries Limited (“ Teva ”), Sandoz (a division of Novartis AG) (“ Sandoz ”), Endo International plc (Par) (“ Endo ”), Mylan Inc. (“ Mylan ”) and Fresenius Medical Care AG & Co. KGAA /Akorn, Inc. These companies, among others, collectively compete with the majority of our products. We also faces price competition generally as other generic manufacturers enter the market. Any such price competition may be especially pronounced where our competitors source their products from jurisdictions where production costs may be lower (sometimes significantly) than our production costs, especially lower-cost foreign jurisdictions. Any of these factors could result in reductions in our sales prices and gross margin. This price competition has led to an increase in demands for downward price adjustments by generic pharmaceutical distributors. Our principal strategy in addressing our competition is to offer customers a consistent supply of our generic drug products, as well as to pursue product opportunities with the potential for limited competition, such as high-barrier-to-entry first-to-file or first-to-market products. There can be no assurance, however, that this strategy will enable us to compete successfully in the generic drug product industry or that we will be able to develop and implement any new or additional viable strategies.
Competition in the generic drug industry has also increased due to the proliferation of authorized generic pharmaceutical products. Authorized generic drug products are generic drug products that are introduced by brand companies, either directly or through third parties, under the brand’s New Drug Application (“ NDA ”) approval for our own branded drug. Authorized generics do not face any regulatory barriers to introduction and are not prohibited from sale during the 180-day marketing exclusivity period granted to the FTF Abbreviated New Drug Application (“ ANDA ”) applicant. The sale of authorized generics adversely impacts the market share of a generic drug product that has been granted 180 days of marketing exclusivity. This is a significant source of competition for us, because an authorized generic drug product can materially decrease the profits that we could receive as an otherwise exclusive marketer of a generic drug product. Such actions have the effect of reducing the potential market share and profitability of our generic drug products and may inhibit us from developing and introducing generic pharmaceutical drug products corresponding to certain branded drugs.
 
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If we are unable to manage our growth, our business will suffer.
We have experienced rapid growth in the past several years, and anticipate continued rapid expansion in the future. This growth has required us to expand, upgrade, and improve our administrative, operational, and management systems, internal controls and resources. Although we cannot assure you that we will, in fact, grow as we expect, if we fail to manage growth effectively or to develop a successful marketing approach, our business and financial results will be materially harmed. We may also seek to expand our business through complementary or strategic acquisitions of other businesses, products or assets, or through joint ventures, strategic agreements or other arrangements. Any such acquisitions, joint ventures or other business combinations may involve significant integration challenges, operational complexities and time consumption and require substantial resources and effort. It may also disrupt our ongoing businesses, which may adversely affect our relationships with customers, employees, regulators and others with whom we have business or other dealings. Further, if we are unable to realize synergies or other benefits expected to result from any acquisitions, joint ventures or other business combinations, or to generate additional revenue to offset any unanticipated inability to realize these expected synergies or benefits, our growth and ability to compete may be impaired, which would require us to focus additional resources on the integration of operations rather than other profitable areas of our business, and may otherwise cause a material adverse effect on our business, results of operations and financial condition.
As our competitors introduce their own generic equivalents of our generic drug products, our revenues and gross margin from such products generally decline, often rapidly.
Revenues and gross margin derived from generic pharmaceutical products often follow a pattern based on regulatory and competitive factors that we believe are unique to the generic pharmaceutical industry. As the patent(s) for a brand name product or the statutory marketing exclusivity period (if any) expires, the first generic manufacturer to receive regulatory approval for a generic equivalent of the product is often able to capture a substantial share of the market. However, as other generic manufacturers receive regulatory approvals for their own generic versions, that market share, and the price of that product, will typically decline depending on several factors, including the number of competitors, the price of the branded product and the pricing strategy of the new competitors. We cannot provide assurance that we will be able to continue to develop such products or that the number of our competitors for any given product will not increase to such an extent that we may stop marketing a generic drug product for which we previously obtained approval, which may have a material adverse impact on our revenues and gross margin.
The illegal distribution and sale by third parties of counterfeit versions of our products or of stolen products could have a negative impact on our reputation and a material adverse effect on our business, results of operations and financial condition.
Third parties could illegally distribute and sell counterfeit versions of our products, which do not meet the rigorous manufacturing and testing standards that our products undergo. Counterfeit products are frequently unsafe or ineffective, and can be life-threatening. Counterfeit medicines may contain harmful substances, the wrong dose of the active pharmaceutical ingredient or no active pharmaceutical ingredients at all. However, to distributors and users, counterfeit products may be visually indistinguishable from the authentic version.
Reports of adverse reactions to counterfeit drugs or increased levels of counterfeiting could materially affect patient confidence in the authentic product. It is possible that adverse events caused by unsafe counterfeit products will mistakenly be attributed to the authentic product. In addition, thefts of inventory at warehouses, plants or while in-transit, which are not properly stored and which are sold through unauthorized channels could adversely impact patient safety, our reputation and our business.
Public loss of confidence in the integrity of pharmaceutical products as a result of counterfeiting or theft could have a material adverse effect on our business, results of operations and financial condition.
 
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Our business is highly dependent on market perceptions of us and the safety and quality of our products. Our business, products or product pricing could be subject to negative publicity, which could have a material adverse effect on our business, results of operations and financial condition.
Market perceptions of our business are very important to us, especially market perceptions of the safety and quality of our products. If any of our products or similar products that other companies distribute are subject to market withdrawal or recall or are proven to be, or are claimed to be, harmful to consumers, then this could have a material adverse effect on our business, results of operations and financial condition. Also, because our business is dependent on market perceptions, negative publicity associated with product quality, illness or other adverse effects resulting from, or perceived to be resulting from, our products could have a material adverse impact on our business, results of operations and financial condition.
The generic pharmaceutical industry has also in recent years been the subject of significant publicity regarding the pricing of pharmaceutical products more generally, including publicity and pressure resulting from prices charged by competitors and peer companies for new products as well as price increases by competitors and peer companies on older products that the public has deemed excessive. Any downward pricing pressure on the price of certain of our products arising from social or political pressure to lower the cost of pharmaceutical products could have a material adverse impact on our business, results of operations and financial condition.
Accompanying the press and media coverage of pharmaceutical pricing practices and public complaints about the same, there has been increasing U.S. federal and state legislative and enforcement interest with respect to drug pricing. For instance, the United States Department of Justice issued subpoenas to pharmaceutical companies, including Impax, seeking information about the sales, marketing and pricing of certain generic drugs. In addition to the effects of any investigations or claims brought against us, our business, results of operations and financial condition could also be adversely affected if any such inquiries, of us or of other pharmaceutical companies or the industry more generally, were to result in legislative or regulatory proposals that limit our ability to increase the prices of our products.
A substantial portion of our total revenues is expected to be derived from sales of a limited number of products.
We expect that we will derive a substantial portion of our revenue from sales of a limited number of products. In 2017, Impax’s significant products accounted for 15%, 12%, 9%, 7% and 7%, or an aggregate of 50%, of its product sales, net. In 2017, Amneal’s significant products accounted for 13%, 9%, 8%, 4%, and 3%, or an aggregate of 37% of its net revenue. The sale of our products may be significantly influenced by market conditions, as well as regulatory actions. We may experience decreases in the sale of our products in the future as a result of actions taken by our competitors, such as price reductions, or as a result of regulatory actions related to our products or to competing products, which could have a material impact on our results of operations. Actions which could be taken by our competitors, which may materially and adversely affect our business, results of operations and financial condition, may include, without limitation, pricing changes and entering or exiting the market for specific products.
Our growth is dependent on our ability to continue to successfully develop and commercialize new products in a timely manner.
Our financial results will depend upon our ability to introduce and commercialize additional generic and branded products in a timely manner. In the generic pharmaceutical products market, revenue from newly launched generic products is typically relatively high during the period immediately following launch and can be expected generally to decline over time. Revenue from generic drugs in general, including prices of generic products that have generic alternatives on the market, can generally be expected to decline over time. Revenue from branded pharmaceutical products can be expected to decline as the result of entry of new competitors, particularly of companies producing generic versions of the branded products. Our growth is therefore dependent upon our ability to successfully introduce and commercialize new generic and branded products.
 
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Our ability to develop or license, or otherwise acquire, and introduce new products on a timely basis in relation to our competitors’ product introductions involves inherent risks and uncertainties.
Product development is inherently risky, especially for new drugs for which safety and efficacy have not been established and the market is not yet proven. Likewise, product licensing involves inherent risks including uncertainties due to matters that may affect the achievement of milestones, as well as the possibility of contractual disagreements with regard to terms such as license scope or termination rights. The development and commercialization process, particularly with regard to new drugs, also requires substantial time, effort and financial resources. The process of obtaining FDA approval to manufacture and market new pharmaceutical products is rigorous, time consuming, costly and largely unpredictable. We, or a partner, may not be successful in obtaining FDA approval or in commercializing any of the products that we are developing or licensing.
Our approved products may not achieve expected levels of market acceptance.
Even if we are able to obtain regulatory approvals for our new products, the success of those products is dependent upon market acceptance. Levels of market acceptance for our new products could be affected by several factors, including:
 
 	•	 	the availability of alternative products from our competitors;	
 
 	•	 	the prices of our products relative to those of our competitors;	
 
 	•	 	the timing of our market entry;	
 
 	•	 	the ability to market our products effectively at the retail level;	
 
 	•	 	the perception of patients and the healthcare community, including third-party payers, regarding the safety, efficacy and benefits of our drug products compared to those of competing products; and	
 
 	•	 	the acceptance of our products by government and private formularies.	
Some of these factors will not be in our control, and our products may not achieve expected levels of market acceptance. Additionally, continuing and increasingly sophisticated studies of the proper utilization, safety and efficacy of pharmaceutical products are being conducted by the industry, government agencies and others which can call into question the utilization, safety and efficacy of products previously or currently marketed by Impax or Amneal. In some cases, studies have resulted, and may in the future result, in the discontinuance of product marketing or other risk management programs such as the need for a patient registry.
We may discontinue the manufacture and distribution of certain existing products, which may adversely impact our business, results of operations and financial condition.
We continually evaluate the performance of our products, and may determine that it is in our best interest to discontinue the manufacture and distribution of certain of our products. We cannot guarantee that we have correctly forecasted, or will correctly forecast in the future, the appropriate products to discontinue or that our decision to discontinue various products is prudent if market conditions change. In addition, we cannot assure you that the discontinuance of products will reduce our operating expenses or will not cause us to incur material charges associated with such a decision. Furthermore, the discontinuance of existing products entails various risks, including, in the event that we decide to sell the discontinued product, the risk that we will not be able to find a purchaser for such products or that the purchase price obtained will not be equal to at least the book value of the net assets for such products. Other risks include managing the expectations of, and maintaining good relations with, our customers who previously purchased products from our discontinued products, which could prevent us from selling other products to them in the future. Moreover, we may incur other significant liabilities and costs associated with our discontinuance of products, which could have a material adverse effect on our business, results of operations and financial condition.
 
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Manufacturing or quality control problems may damage our reputation for quality production, demand costly remedial activities and negatively impact our business, results of operations and financial condition.
As a pharmaceutical company, we are subject to substantial regulation by various governmental authorities. For instance, we must comply with requirements of the FDA and other healthcare regulators with respect to the manufacture, labeling, sale, distribution, marketing, advertising, promotion and development of pharmaceutical products. We must register our facilities, whether located in the United States or elsewhere, with the FDA as well as regulators outside the United States, and our products must be made in a manner consistent with current good manufacturing practices (“cGMP”), or similar standards in each territory in which we manufacture. The failure of one of our facilities, or a facility of one of our third party suppliers, to comply with applicable laws and regulations may lead to breach of representations made to our customers or to regulatory or government action against us related to products made in that facility.
In addition, the FDA and other agencies periodically inspect our manufacturing facilities. Following an inspection, an agency may issue a notice listing conditions that are believed to violate cGMP or other regulations, or a warning letter for violations of “regulatory significance” that may result in enforcement action if not promptly and adequately corrected. We remain committed to continuing to improve our quality control and manufacturing practices; however, we cannot be assured that the FDA will continue to be satisfied with our corrective actions and with our quality control and manufacturing systems and standards. Failure to comply strictly with these regulations and requirements may damage our reputation and lead to financial penalties, compliance expenditures, the recall or seizure of products, total or partial suspension of production and/or distribution, withdrawal or suspension of the applicable regulator’s review of our submissions, enforcement actions, injunctions and criminal prosecution. Further, other federal agencies, our customers and partners in our alliance, development, collaboration and other partnership agreements with respect to our products and services may take any such FDA observations or warning letters into account when considering the award of contracts or the continuation or extension of such partnership agreements. Because regulatory approval to manufacture a drug is site-specific, the delay and cost of remedial actions, or obtaining approval to manufacture at a different facility, could negatively impact our business. Any failure by us to comply with applicable laws and regulations and/or any actions by the FDA and other agencies as described above could have a material adverse effect on our business, financial position and results of operations.
The development, manufacture and sale of our products involves the risk of product liability and other claims by consumers and other third parties, and insurance against such potential claims is expensive and may be difficult to obtain.
The development, manufacture and sale of our drug products involves an inherent risk of product liability and other claims and the associated adverse publicity, and insurance against such potential claims is expensive and may be difficult to obtain. Litigation is inherently subject to uncertainties and we may be required to expend substantial amounts in the defense or resolution of this and similar matters. We regularly monitor the use of our products for trends or increases in reports of adverse events or product complaints, and regularly reports such matters to the FDA. In some cases, an increase in adverse event reports may be an indication that there has been a change in a product’s specifications or efficacy. Such changes could lead to a recall of the product in question or, in some cases, increases in product liability claims related to the product in question. If the coverage limits for product liability and other insurance policies are not adequate, or if certain of our products are excluded from coverage, a claim brought against us, whether covered by insurance or not, could have a material adverse effect on our business, results of operations, financial condition and cash flows. We also rely on self-insurance to cover product liability and other claims, and these claims may exceed the amounts we have reserved under our self-insurance program.
In the ordinary course of our business, we may also be subject to a variety of other types of claims, proceedings, investigations and litigation initiated by government agencies or third parties. These matters may include compliance matters, product regulation or safety, taxes, employee benefit plans, employment
 
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discrimination, health and safety, environmental, antitrust, customs, import/export, government contract compliance, financial controls or reporting, intellectual property, allegations of misrepresentation, false claims or false statements, commercial claims, claims regarding promotion of our products and services, or other similar matters. In addition, government investigations related to the use of our generic drug products may cause reputational harm to us. Negative publicity, whether accurate or inaccurate, about the efficacy, safety or side effects of our generic drug products or product categories, whether involving us or a competitor, could materially reduce market acceptance of our products, cause consumers to seek alternatives to our products, result in product withdrawals and cause our stock price to decline. Negative publicity could also result in an increased number of product liability claims, whether or not these claims have a basis in scientific fact. Any such claims, proceedings, investigations or litigation, regardless of the merits, might result in substantial costs, restrictions on product use or sales, or otherwise injure our business.
We manufacture and derive a portion of our revenue from the sale of pharmaceutical products in the opioid class of drugs. The U.S. Department of Health and Human Services has declared the wide spread addiction to and abuse of such products a public health emergency, and in recent months, the federal government has also announced plans to increase federal oversight on opioid sale and consumption. These plans, along with changing public and clinical perceptions of opioid products and the risks relating to their use may result in the imposition of even stricter regulation of such products and further restrictions on their sale and use, as well as a potential increase in opioid-related litigation involving us, all of which could result in material adverse effects on our business and results of operations. See “Business—Legal Proceedings” for more information.
We are subject to United States federal and state laws related to healthcare fraud and abuse and health information privacy and security, and the failure to comply with such laws may adversely affect our business.
In the United States, many of our products are eligible for reimbursement under federal and state health care programs such as Medicaid, Medicare, TriCare, and/or state pharmaceutical assistance programs, and as a result, certain federal and state healthcare laws and regulations pertaining to fraud and abuse and patients’ rights are, and will be, applicable to our business. We could be subject to healthcare fraud and abuse and patient privacy regulation by both the federal government and the states in which we conduct our business. The laws that may affect our ability to operate include, but are not limited to: (i) the U.S. Anti-Kickback Statute, which applies to our marketing and research practices, educational programs, pricing policies and relationships with healthcare providers or other entities, by prohibiting, among other things, soliciting, receiving, offering or paying remuneration, directly or indirectly, as a means of inducing, or in exchange for, either the referral of an individual or the purchase or recommendation of an item or service reimbursable under a federal healthcare program, such as the Medicare and Medicaid programs; (ii) federal civil and criminal false claims laws and civil monetary penalty laws, which prohibit, among other things, individuals or entities from knowingly presenting, or causing to be presented, claims for payment from Medicare, Medicaid or other third-party payers that are false or fraudulent; (iii) the U.S. Health Insurance Portability and Accountability Act of 1996, (“ HIPAA ”), which among other things created new federal criminal statutes that prohibit executing a scheme to defraud any healthcare benefit program or making false statements relating to healthcare matters, and HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, and our implementing regulations, which impose certain requirements relating to the privacy, security and transmission of individually identifiable health information and place restrictions on the use of such information for marketing communications; (iv) the U.S. Physician Payments Sunshine Act, which among other things, requires manufacturers of drugs, devices, biologics and medical supplies for which payment is available under a federal healthcare program to report annually information related to “payments or other transfers of value” made to physicians and teaching hospitals, and ownership and investment interests held by certain healthcare professionals and their immediate family members, and similar state laws; (v) the government pricing rules applicable to the Medicaid, Medicare Part B, 340B Drug Pricing Program, the U.S. Department of Veterans Affairs program, the TRICARE program, and state price reporting laws; and (vi) state and foreign law equivalents of each of the above U.S. laws, such as anti-kickback and false claims laws which may apply to items or services reimbursed by any third-party payer, including commercial insurers, and state and foreign laws governing the privacy and security of health
 
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information in certain circumstances, many of which differ from each other in significant ways and often are not preempted by HIPAA, thus complicating compliance efforts. Violations of the fraud and abuse laws may result in severe penalties against us and/or our responsible employees, including jail sentences, large fines, and the exclusion of our products from reimbursement under federal and state programs. Defense of litigation claims and government investigations can be costly, time-consuming, and distract management, and it is possible that we could incur judgments or enter into settlements that would require us to change the way we operate our business. We are committed to conducting the sales and marketing of our products in compliance with the healthcare fraud and abuse laws, but certain applicable laws may impose liability even in the absence of specific intent to defraud. Furthermore, should there be ambiguity, a governmental authority may take a position contrary to a position we have taken, or should an employee violate these laws without our knowledge, a governmental authority may impose civil and/or criminal sanctions.
Any adverse outcome in these types of actions, or the imposition of penalties or sanctions for failing to comply with fraud and abuse laws, could adversely affect us and may have a material adverse effect on our business, results of operations, financial condition and cash flows. Some of the statutes and regulations that govern our activities, such as federal and state anti-kickback and false claims laws, are broad in scope, and while exemptions and safe harbors protecting certain common activities exist, they are often narrowly drawn. While we manage our business activities to comply with these statutory provisions, due to their breadth, complexity and, in certain cases, uncertainty of application, it is possible that our activities could be subject to challenge by various government agencies. In particular, the FDA, the DOJ and other agencies have increased their enforcement activities with respect to the sales, marketing, research and similar activities of pharmaceutical companies in recent years, and many pharmaceutical companies have been subject to government investigations related to these practices. A determination that we are in violation of these and/or other government regulations and legal requirements may result in civil damages and penalties, criminal fines and prosecution, administrative remedies, the recall of products, the total or partial suspension of manufacturing and/or distribution activities, seizure of products, injunctions, whistleblower lawsuits, failure to obtain approval of pending product applications, withdrawal of existing product approvals, exclusion from participation in government healthcare programs and other sanctions.
Any of these types of investigations or enforcement actions could affect our ability to commercially distribute our products and could materially and adversely affect our business, financial condition, results of operations and cash flows.
Approvals for our new generic drug products may be delayed or become more difficult to obtain if the FDA institutes changes to its approval requirements.
The FDA may institute changes to its ANDA approval requirements, such as implementing new or additional fees similar to the fees imposed by the Generic Drug Fee User Amendments of 2012 (“ GDUFA ”) and its second iteration (GDUFA II), which may make it more difficult or expensive for us to obtain approval for our new generic products. The FDA may also implement other changes that may directly affect some of our ANDA filings pending approval from the FDA, such as changes to guidance from the FDA regarding bioequivalency requirements for particular drugs. Such changes may cause our development of such generic drugs to be significantly more difficult or result in delays in FDA approval or result in our decision to abandon or terminate certain projects. Any changes in FDA requirements may make it more difficult for us to file ANDAs or obtain approval of our ANDAs and generate revenues and thus have a material adverse effect on our business, results of operations and financial condition.
Federal regulation of arrangements between manufacturers of branded and generic products could adversely affect our business.
As part of the Medicare Prescription Drug and Modernization Act of 2003, companies are required to file with the FTC and the DOJ certain types of agreements entered into between branded and generic pharmaceutical
 
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companies related to the manufacture, marketing and sale of generic versions of branded drugs. This requirement could affect the manner in which brand drug manufacturers resolve intellectual property litigation and other disputes with generic pharmaceutical companies and could result generally in an increase or lengthening of litigation against pharmaceutical companies or additional investigations or proceedings by the FTC or other governmental authorities. The impact of this requirement, the pending legislation and the potential private-party lawsuits associated with arrangements between brand and generic drug manufacturers is uncertain and could adversely affect our business.
Healthcare reform and a reduction in the coverage and reimbursement levels by governmental authorities, HMOs, MCOs or other third-party payers may adversely affect our business.
As part of commercializing our products, we have obtained authorization to receive reimbursement at varying levels for the cost of certain products and related treatments from governmental authorities and private health insurers and other organizations, such as health maintenance organizations (“ HMOs ”) and managed care organizations (“ MCOs ”). The trend toward managed healthcare in the United States, the growth of organizations such as HMOs and MCOs, and legislative proposals to reform healthcare and government insurance programs could significantly influence the purchase of pharmaceutical products, resulting in lower prices and a reduction in product demand. The Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 were signed into law on March 23, 2010 and March 30, 2010, respectively. These laws are referred to herein as “healthcare reform.” A number of provisions of the healthcare reform laws continue to have a negative impact on the price of our products sold to U.S. government entities. For example, the legislation includes measures that (i) significantly increase Medicaid rebates through both the expansion of the program; (ii) substantially expand the Public Health System (340B) program to allow other entities to purchase prescription drugs at substantial discounts; (iii) extend the Medicaid rebate rate to a significant portion of Managed Medicaid enrollees; (iv) apply a 50% discount to Medicare Part D beneficiary spending in the coverage gap for branded and authorized generic prescription drugs; and (v) levy a significant excise tax on the industry to fund healthcare reform. Such cost containment measures and healthcare reform affect our ability to sell our products and have a material adverse effect on our business, results of operations and financial condition. Additionally, the Medicare Part D Prescription Drug Benefit established a voluntary outpatient prescription drug benefit for Medicare beneficiaries (primarily the elderly over 65 and the disabled). These beneficiaries may enroll in private drug plans. There are multiple types of Part D plans and numerous plan sponsors, each with its own formulary and product access requirements. The plans have considerable discretion in establishing formularies and tiered co-pay structures and in placing prior authorization and other restrictions on the utilization of specific products. In addition, Part D plan sponsors are permitted and encouraged to negotiate rebates with manufacturers. The Medicare Part D program, which went into effect January 1, 2006, is administered by the Centers for Medicare & Medicaid Services (“ CMS ”) within the Department of Health and Human Services.
The CMS has issued extensive regulations and other sub-regulatory guidance documents implementing the Medicare Part D benefit, and the OIG has issued regulations and other guidance in connection with the Medicare Part D program. The federal government can be expected to continue to issue guidance and regulations regarding the obligations of Part D sponsors and their subcontractors. Participating drug plans may establish drug formularies that exclude coverage of specific drugs and payment levels for drugs negotiated with Part D drug plans may be lower than reimbursement levels available through private health plans or other payers. Moreover, beneficiary co-insurance requirements could influence which products are recommended by physicians and selected by patients. There is no guarantee that any drug that we market will be offered by drug plans participating under the Medicare Part D program or of the terms of any such coverage, or that covered drugs will be reimbursed at amounts that reflect current or historical levels. Additionally, any reimbursement granted may not be maintained, or limits on reimbursement available from third-party payers may reduce the demand for, or negatively affect the price of those products, which could significantly harm our business, results of operations, financial condition and cash flows. We may also be subject to lawsuits relating to reimbursement programs that could be costly to defend, divert management’s attention and adversely affect our operating results. Most state Medicaid programs have established preferred drug lists, and the process, criteria and timeframe for obtaining
 
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placement on the preferred drug list varies from state to state. Under the Medicaid drug rebate program, a manufacturer must pay a rebate for Medicaid utilization of a product. The rebate for single source products (including authorized generics) is based on the greater of (i) a specified percentage of the product’s average manufacturer price or (ii) the difference between the product’s average manufacturer price and the best price offered by the manufacturer. The rebate for multiple source products is a specified percentage of the product’s average manufacturer price. In addition, many states have established supplemental rebate programs as a condition for including a drug product on a preferred drug list. The profitability of our products may depend on the extent to which they appear on the preferred drug lists of a significant number of state Medicaid programs and the amount of the rebates that must be paid to such states. In addition, there is significant fiscal pressure on the Medicaid program, and amendments to lower the pharmaceutical costs of the program are possible. Such amendments could materially adversely affect our anticipated revenues and results of operations. Due to the uncertainties regarding the outcome of future healthcare reform initiatives and their enactment and implementation, we cannot predict which, if any, of the future reform proposals will be adopted or the effect such adoption may have on our business. Future rulemaking and reform, including repeal of existing law, with respect to the healthcare and pharmaceutical industries, could increase rebates, reduce prices or the rate of price increases for healthcare products and services, or require additional reporting and disclosure. We cannot predict the timing or impact of any future rulemaking, reform or repeal of healthcare laws.
The majority of our products are produced at a few locations and a business interruption at one or more of these locations could have a material adverse effect on our business, financial position and results of operations.
We produce the majority of the products that we manufacture at our manufacturing facilities in New York, New Jersey, California, and India, as well as at certain third party suppliers. A significant disruption at any of these facilities, even on a short-term basis, could impair our ability to produce and ship products to the market on a timely basis, which could have a material adverse effect on our business, financial position and results of operations.
Our profitability depends on our major customers. If these relationships do not continue as expected, our business, condition (financial and otherwise), prospects and results of operations could materially suffer.
We have approximately 220 customers, some of which are part of large purchasing groups. For the year ended December 31, 2017, Amneal’s four largest customers accounted for approximately 56% of net revenue, broken out as follows: AmerisourceBergen Corporation (21%), Cardinal Health, Inc. (13%), McKesson Drug Co. (13%), and CVS Caremark (9%). In 2017, the three major customers of Impax, Cardinal Health, McKesson Corporation, and Amerisource-Bergen, accounted for 33%, 30%, and 25%, respectively, or an aggregate of 88%, of Impax’s gross revenue. The loss of any one or more of these or any other major customer or the substantial reduction in orders from any one or more of our major customers could have a material impact on our future operating results and financial condition.
We may experience declines in the sales volume and prices of our products as a result of the continuing trend of consolidation of certain customer groups, which could have a material adverse effect on our business, financial position and results of operations.
Our ability to successfully commercialize any generic or branded pharmaceutical product depends in large part upon the acceptance of the product by third parties, including pharmacies, government formularies, other retailers, physicians and patients. Therefore, our success will depend in large part on market acceptance of our products. We make a significant amount of our sales to a relatively small number of drug wholesalers and retail drug chains. These customers represent an essential part of the distribution chain of our pharmaceutical products. Drug wholesalers and retail drug chains have undergone, and are continuing to undergo, significant consolidation. This consolidation may result in these groups gaining additional purchasing leverage and, consequently, increasing the product pricing pressures facing our business. Additionally, the emergence of large
 
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buying groups representing independent retail pharmacies and other drug distributors, and the prevalence and influence of managed care organizations and similar institutions, potentially enable such groups to demand larger price discounts on our products. For example, there has been a recent trend of large wholesalers and retailer customers forming partnerships, such as the alliance between Walgreens and AmerisourceBergen Corporation, the alliance between Rite Aid and McKesson Drug Company, and the alliance between CVS Caremark and Cardinal Health. The result of these developments may have a material adverse effect on our business, financial position and results of operations.
From time to time we may need to rely on licenses to proprietary technologies, which may be difficult or expensive to obtain.
We may need to obtain licenses to patents and other proprietary rights held by third parties to develop, manufacture and market products. If we are unable to timely obtain these licenses on commercially reasonable terms, our ability to commercially market our products may be inhibited or prevented, which could have a material adverse effect on our business, results of operations and financial condition.
We depend to a large extent on third-party suppliers and distributors for the raw materials for our products, particularly the chemical compounds comprising the APIs that we use to manufacture our products, as well as for certain finished goods. A prolonged interruption in the supply of such products could have a material adverse effect on our business, financial position and results of operations.
The bulk of the raw materials essential to our manufacturing business are purchased from third parties. If we experience supply interruptions or delays, we may have to obtain substitute materials or products, which in turn would require us to obtain amended or additional regulatory approvals, subjecting us to additional expenditures of significant time and resources. In addition, changes in our raw material suppliers could result in significant delays in production, higher raw material costs and loss of sales and customers, because regulatory authorities must generally approve raw material sources for pharmaceutical products, which may be time consuming. Any significant supply interruption could have a material adverse effect on our business, condition (financial and otherwise), prospects and results of operations. To date, we have experienced no significant difficulties in obtaining raw materials. However, because the federal drug application process requires specification of raw material suppliers, if raw materials from a specified supplier were to become unavailable, FDA approval of a new supplier would be required. The amount of time required for the FDA to qualify a new supplier and confirm that our manufacturing processes meet the necessary standards could cause delays in the manufacturing and marketing of one or more of our products and could, depending on the particular product, have a material adverse effect on our results of operations and financial condition.
The time necessary to develop generic and branded drugs may adversely affect whether, and the extent to which, we receive a return on our capital.
We generally begin our development activities for a new generic drug product several years in advance of the patent expiration date of the brand-name drug equivalent. The development process, including drug formulation, testing, and FDA review and approval, often takes three or more years. This process requires that we expend considerable capital to pursue activities that do not yield an immediate or near-term return. Also, because of the significant time necessary to develop a product, the actual market for a product at the time it is available for sale may be significantly less than the originally projected market for the product. If this were to occur, our potential return on our investment in developing the product, if approved for marketing by the FDA, would be adversely affected and we may never receive a return on our investment in the product. It is also possible for the manufacturer of the brand-name product for which we are developing a generic drug to obtain approvals from the FDA to switch the brand-name drug from the prescription market to the OTC market. If this were to occur, we would be prohibited from marketing our product other than as an OTC drug, in which case revenues could be substantially less than we anticipated.
 
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Developing and commercializing branded pharmaceutical products is generally more costly than developing and commercializing generic products. In order to grow and achieve success in our branded product business, we must continually identify, develop, acquire and license new products that we can ultimately market. There are many difficulties and uncertainties inherent in pharmaceutical research and development, and there is a high rate of failure inherent in new drug discovery and development. Failure can occur at any point in the process, including late in the process after substantial investment. New product candidates that appear promising in development may fail to reach the market or may have only limited commercial success because of efficacy or safety concerns, inability to obtain necessary regulatory approvals and payer reimbursement, limited scope of approved uses, difficulty or excessive costs to manufacture, or infringement of the patents or intellectual property rights of others. Products that do reach the market may ultimately be subject to recalls or other suspensions in sales. Delays and uncertainties in the FDA approval process and the approval processes in other countries can result in delays in product launches and lost market opportunity. Because there is a high rate of failure inherent in the research and development process of new products, there is a significant risk that funds invested in research and development will not generate financial returns. We cannot be certain when or whether any of our products currently under development will be approved or launched or whether, once launched, such products will be commercially successful. We may be required to spend several years and incur substantial expense in completing certain clinical trials. The length of time, number of trial sites and patients required for clinical trials vary substantially, and we may have difficulty finding a sufficient number of sites and subjects to participate in our trials. Delays in planned clinical trials can result in increased development costs, delays in regulatory approvals and delays in product candidates reaching the market. We rely on independent third-party clinical investigators to recruit subjects and conduct clinical trials in accordance with applicable study protocols and laws and regulations. If regulatory authorities detennine that we have not complied with regulations in the development of a product candidate, they may refuse to accept trial data from the site and/or not approve the product candidate, and we would not be able to market and sell that product. If we are not able to market and sell our products after significant expenditures to develop and test them, our business and results of operations could be materially and adversely affected.
The testing required for the regulatory approval of our products is conducted primarily by independent third parties. Any failure by any of these third parties to perform this testing properly and in a timely manner may have an adverse effect upon our ability to obtain regulatory approvals.
Our applications for regulatory approval of our products, including both internally-developed and in-licensed products, incorporate the results of testing and other information that is conducted or gathered primarily by independent third parties (including, for example, manufacturers of raw materials, testing laboratories, contract research organizations or independent research facilities). Our ability to obtain and maintain regulatory approval of the products being tested is dependent upon the quality of the work performed by these third parties, the quality of the third parties’ facilities, and the accuracy of the information provided by third parties. We have little or no control over any of these factors. If this testing is not performed properly, our ability to obtain or maintain regulatory approvals, and to launch or continue selling products, could be restricted or delayed.
We depends on third-party agreements for a portion of our product offerings and any failure to maintain these arrangements or enter into similar arrangements with new partners could result in a material adverse effect.
We have broadened our product offering by entering into a variety of third-party agreements covering any combination of joint development, supply, marketing and/or distribution of products. We cannot provide assurance that the development, supply, marketing and/or distribution efforts of our contractual partners will continue to be successful, that we will be able to renew such agreements or that we will be able to enter into new agreements for additional products. Any alteration to, or termination of, our current distribution and marketing agreements, failure to enter into new and similar agreements, or interruption of our product supply under the such agreements, could have a material adverse effect on our business, condition (financial and otherwise), prospects or results of operations.
 
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We may make acquisitions of, or investments in, complementary businesses or products, which may be on terms that may not turn out to be commercially advantageous, may require additional debt or equity financing, which could increase our leverage and dilute equity holders.
We regularly review the potential acquisition of technologies, products, product rights and complementary businesses and is currently evaluating, and intends to continue to evaluate, potential product and/or company acquisitions and other business development opportunities. We may choose to enter into such transactions at any time. Nonetheless, we cannot provide assurance that we will be able to identify suitable acquisition or investment candidates. To the extent that we do identify candidates that we believe to be suitable, we cannot provide assurance that we will be able to reach an agreement with the selling party or parties, that the terms we may agree to will be commercially advantageous to us, or that we will be able to successfully consummate such investments or acquisitions even after definitive documents have been signed. If we make any acquisitions or investments, we may finance such acquisitions or investments through our cash reserves, debt financing, which may increase our leverage, or by issuing additional equity interests, which could dilute the holdings of our then-existing owners. If we require financing, we cannot provide assurance that we will be able to obtain required financing when needed on acceptable terms or at all.
Our operations in, and anticipated expansion into additional, international markets subjects us to increased regulatory oversight both in those international markets and domestically and regulatory, economic, social and political uncertainties, which could cause a material adverse effect on our business, financial position and results of operations.
We are subject to certain risks associated with having assets and operations located in foreign jurisdictions, including our operations in India, Germany and the United Kingdom. We may also in the future expand our international business and operations into jurisdictions in which we have limited operating experience, including with respect to seeking regulatory approvals, marketing or selling products.
Our operations in these jurisdictions may be adversely affected by general economic conditions and economic and fiscal policy, including changes in exchange rates and controls, interest rates and taxation policies, increased government regulation, and, with respect to India, any reversal of India’s recent economic liberalization and deregulation policies, as well as social stability and political, economic or diplomatic developments in the future. Certain jurisdictions have, from time to time, experienced instances of civil unrest and hostilities, both internally and with neighboring countries. Rioting, military activity, terrorist attacks, or armed hostilities could cause our operations in such jurisdictions to be adversely affected or suspended. We generally do not have insurance for losses and interruptions caused by terrorist attacks, military conflicts and wars. In addition, anti-bribery and anti-corruption laws may conflict with some local customs and practices in foreign jurisdictions. Our international operations may subject us to heightened scrutiny under the U.S. Foreign Corrupt Practices Act (“ FCPA ”), the UK Bribery Act and similar anti-bribery laws, and could subject us to liability under such laws despite our best efforts to comply with such laws. As a result of our policy to comply with the FCPA, the UK Bribery Act and similar anti-bribery laws, we may be at a competitive disadvantage to competitors that are not subject to, or do not comply with, such laws.
We have increased exposure to tax liabilities, including foreign tax liabilities.
As a U.S. company with subsidiaries in, among other countries, India, Germany, Switzerland and England, we are subject to, or potentially subject to, income taxes as well as non-income based taxes in these jurisdictions as well as the United States. Significant judgment is required in determining our worldwide provision for income taxes and other tax liabilities. Changes in tax laws or tax rulings may have a significantly adverse impact on our effective tax rate. In addition, we have potential tax exposures resulting from the varying application of statutes, regulations and interpretations, which include exposures on intercompany terms of cross-border arrangements among foreign subsidiaries in relation to various aspects of our business, including research and development activities and manufacturing. Tax authorities in various jurisdictions may disagree with, and subsequently
 
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challenge, the amount of profits taxed in such jurisdictions; such challenges may result in increased tax liability, including accrued interest and penalties, which would cause our tax expense to increase and which may have a material adverse effect on our business, financial position and results of operations and our ability to satisfy our debt obligations.
Recent U.S. tax legislation may materially adversely affect our financial condition, results of operations and cash flows.
Recently enacted U.S. tax legislation has significantly changed the U.S. federal income taxation of U.S. and multinational businesses, including by reducing the U.S. corporate income tax rate, limiting interest deductions, permitting immediate expensing of certain capital expenditures, modifying or repealing many business deductions and credits (including certain foreign tax credits), adopting elements of a territorial tax system, imposing a one-time transition tax (or “repatriation tax”) on all undistributed earnings and profits of certain U.S.-owned foreign corporations, broadening the categories of income earned by certain U.S.-owned foreign corporations that may be subject to current US taxation, revising the rules governing net operating losses, repealing the deduction of certain performance-based compensation paid to an expanded group of executive officers and introducing new anti-base erosion provisions, such as the base erosion and anti-abuse tax. Many of these changes are effective immediately, without any transition periods or grandfathering for existing transactions. The legislation is unclear in many respects and could be subject to potential amendments and technical corrections, as well as interpretations and implementing regulations by the Treasury and IRS, any of which could lessen or increase certain adverse impacts of the legislation. In addition, it is unclear how these U.S. federal income tax changes will affect state and local taxation, which often uses federal taxable income as a starting point for computing state and local tax liabilities.
Our analysis and interpretation of this legislation is preliminary and ongoing and there may be material adverse effects resulting from the legislation that we have not yet identified. While some of the changes made by the tax legislation may adversely affect us, other changes may be beneficial. We continue to work with our tax advisors and auditors to determine the full impact that the recent tax legislation as a whole will have on us. We urge our investors to consult with their legal and tax advisors with respect to such legislation and its potential effect on an investment in our common stock.
Our competitors or other third parties may allege that we are infringing upon their intellectual property, forcing us to expend substantial resources in litigation, the outcome of which is uncertain. Any unfavorable outcome of such litigation, including losses related to “at-risk” product launches, could have a material adverse effect on our business, financial position and results of operations.
Companies that produce branded pharmaceutical products routinely bring litigation against ANDA or similar applicants that seek regulatory approval to manufacture and market generic forms of their branded products alleging patent infringement or other violations of intellectual property rights. Patent holders may also bring patent infringement suits against companies that are currently marketing and selling approved generic products. Litigation often involves significant expense and can delay or prevent introduction or sale of our generic products. If valid and enforceable patents are infringed by our products, we would need to delay selling the infringing generic product unless we could obtain a license from the patent holder, and, if we were already selling the infringing product, cease selling and potentially destroy existing product stock.
There may be situations in which we may make business and legal judgments to market and sell products that are subject to claims of alleged patent infringement prior to final resolution of those claims by the courts, based upon our belief that such patents are invalid, unenforceable, or are not infringed by our marketing and sale of such products. This is referred to in the pharmaceutical industry as an “at-risk” launch. The risk involved in an at-risk launch can be substantial because, if a patent holder ultimately prevails against us, the remedies available to such holder may include, among other things, damages measured by the profits lost by the patent holder, which can be significantly higher than the profits we makes from selling the generic version of the product. We
 
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could be liable for substantial damages from adverse court decisions in such matters. We may also be harmed by the loss of any value of such inventory that we are unable to market or sell.
We are involved in various legal proceedings, all of which are uncertain, force us to incur substantial expense to defend and/or expose us to substantial liability.
We are or may become a party to litigation in the ordinary course of our business, including, among others, matters alleging product liability, other intellectual property rights infringement, violations of securities laws, employment discrimination or breach of commercial contract. In general, litigation claims can be expensive and time consuming to bring or defend against and could result in settlements or damages that could have a material adverse effect on our business, results of operations and financial condition.
Our agreements to settle patent litigations, which are important to its business, are facing increased government scrutiny in the United States, which may result in increased government actions and private litigation suits.
We are involved in numerous patent litigations in which it challenges the validity or enforceability of innovator companies’ listed patents and/or their applicability to its generic pharmaceutical products, as well as patent infringement litigation in which generic companies challenge the validity or enforceability of our patents and/or their applicability to their generic pharmaceutical products, and therefore settling patent litigations has been and is likely to continue to be an important part of our business. Parties to such settlement agreements in the United States, including us, are required by law to file them with the Federal Trade Commission (“ FTC ”) and the Antitrust Division of the Department of Justice for review. The FTC has publicly stated that, in its view, some of the brand-generic settlement agreements violate the antitrust laws and has brought actions against some brand and generic companies that have entered into such agreements. In June 2013, the U.S. Supreme Court in its decision in FTC v.  Actavis determined that “reverse payment” settlement agreements between brand and generic companies could violate antitrust laws. The Supreme Court held that such settlement agreements are neither immune from antitrust attack nor presumptively illegal but rather should be analyzed under the “Rule of Reason.” It is currently uncertain the effect the Supreme Court’s decision will have on our existing settlement agreements or its impact on its ability to enter into such settlement agreements in the future or the terms thereof. The Supreme Court’s decision may result in heightened scrutiny from the FTC of such settlement agreements and we may become subject to increased FTC investigations or enforcement actions arising from such settlement agreements. Further, private plaintiffs, including direct and indirect purchasers of our products, may also become more active in bringing private litigation claims against us and other brand and generic pharmaceutical companies alleging that such settlement agreements violate antitrust laws. Accordingly, we have in the past received and may receive formal or informal requests from the FTC for information about a particular settlement agreement, and there is a risk that the FTC, or others, such as customers, may commence an action against us alleging violations of the antitrust laws. Such settlement agreements may further expose us to claims by purchasers of the products for unlawfully inhibiting competition. We currently a defendant in private antitrust actions involving certain settlement agreements.
The defense of antitrust investigation and claims are generally expensive and time consuming, and we can give no assurance as to the timing or outcome of such investigation or claims or of any future private litigation or government action alleging that one of its settlement agreements violates antitrust laws.
 
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The use of legal, regulatory and legislative strategies by brand competitors, including authorized generics and citizen’s petitions, as well as the potential impact of proposed legislation, may increase our costs associated with the introduction or marketing of our generic products, delay or prevent such introduction and/or significantly reduce the profit potential of our products.
Brand drug companies often pursue strategies that may serve to prevent or delay competition from our generic alternatives to their branded products. These strategies include, but are not limited to:
 
 	•	 	marketing an authorized generic version of a branded product at the same time that we introduce a generic equivalent of that product, directly or through agreement with a generic competitor;	
 
 	•	 	filing “citizen’s petitions” with the FDA to thwart generic competition by causing delays of our product approvals;	
 
 	•	 	using risk evaluation and mitigation strategies (“ REMS ”), related distribution restrictions or other means of limiting access to their branded products, to prevent us from obtaining product samples needed to conduct bioequivalence testing required for ANDA approval, thereby delaying or preventing us from obtaining FDA approval of a generic version of such branded products;	
 
 	•	 	seeking to secure patent protection of certain “Elements to Assure Safe Use” of a REMS program, which are required medical interventions or other actions healthcare professionals need to execute prior to prescribing or dispensing the drug to the patient, in an attempt to thwart our ability to avoid infringement of the patents in question or secure approval;	
 
 	•	 	seeking to establish regulatory and legal obstacles that would make it more difficult for us to demonstrate a generic product’s bioequivalence or “sameness” to the related branded product;	
 
 	•	 	initiating legislative and administrative efforts in various states to limit the substitution of generic versions of branded pharmaceutical products for the corresponding branded products;	
 
 	•	 	filing suits for patent infringement that automatically delay FDA approval of our generic products;	
 
 	•	 	introducing “next-generation” products prior to the expiration of market exclusivity for their branded product, which often materially reduces the demand for the generic product for which we may be seeking FDA approval;	
 
 	•	 	obtaining extensions of market exclusivity by conducting clinical trials of branded drugs in pediatric populations or by other methods as discussed below;	
 
 	•	 	persuading the FDA to withdraw the approval of branded drugs for which the associated patents are about to expire, thus allowing the brand company to develop and launch new patented products serving as substitutes for the withdrawn products;	
 
 	•	 	seeking to obtain new patents on drugs for which patent protection is about to expire;	
 
 	•	 	filing patent applications that are more complex and costly to challenge;	
 
 	•	 	seeking temporary restraining orders and injunctions against selling a generic equivalent of their branded product based on alleged misappropriation of trade secrets or breach of confidentiality obligations;	
 
 	•	 	seeking temporary restraining orders and injunctions against us after we have received final FDA approval for a product for which we are attempting to launch at-risk prior to resolution of related patent litigation;	
 
 	•	 	reducing the marketing of the branded product to healthcare providers, thereby reducing the branded drug’s commercial exposure and market size, which in turn adversely affects the market potential of the equivalent generic product; and	
 
 	•	 	converting branded prescription drugs that are facing potential generic competition to over-the-counter products, thereby significantly impeding the growth of the generic prescription market for such drugs.	
 
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We expend a significant amount of resources on research and development, including milestones on in-licensed products, which may not lead to successful product introductions.
Much of our development effort is focused on technically difficult-to-formulate products and/or products that require advanced manufacturing technology. We expend significant resources on research and development primarily to enable us to manufacture and market FDA-approved pharmaceuticals in accordance with FDA regulations. We have entered into, and may in the future enter into, agreements that require us to make significant milestone payments upon achievement of various research and development events and regulatory approvals. As we continue to develop and in-license new products, we will likely incur increased research and licensing expenses. Because of the inherent risk associated with research and development efforts in the industry, particularly with respect to new drugs, our research and development expenditures may not result in the successful introduction of FDA-approved pharmaceutical products. Additionally, after we or our development partners submits an ANDA, the FDA may request that additional studies be conducted. As a result, we may be unable to reasonably determine the total research and development costs required to develop a particular product. Finally, we cannot be certain that any investment made in developing products will be recovered, even if we are successful in commercialization. To the extent that we expend significant resources on research and development efforts and are not ultimately able to successfully introduce new products as a result of those efforts, our business, financial position and results of operations may be materially adversely affected.
We have a substantial amount of indebtedness, which could adversely affect our financial health.
We have a substantial amount of indebtedness. As of December 31, 2017, on a pro forma basis giving effect to the Combination and the related financing, New Amneal would have had approximately $2.7 billion of total gross indebtedness and approximately $500.0 million of available borrowing capacity under our credit facilities. For additional details of our expected debt, see the section entitled “ Unaudited Pro Forma Condensed Combined Financial Statements .”
Our substantial level of indebtedness could have important consequences to you. For example, it could:
 
 	•	 	increase our vulnerability to adverse economic and industry conditions;	
 
 	•	 	limit our ability to obtain additional financing for future working capital, capital expenditures, raw materials, strategic acquisitions and other general corporate requirements;	
 
 	•	 	expose us to interest rate fluctuations because the interest on certain debt under the credit facilities is imposed at variable rates;	
 
 	•	 	require us to dedicate a substantial portion of our cash flow from operations to payments on our debt, thereby reducing the availability of cash flow for operations and other purposes;	
 
 	•	 	make it more difficult for us to satisfy our obligations to our lenders, resulting in possible defaults on and acceleration of such indebtedness;	
 
 	•	 	limit our ability to refinance indebtedness or increase the associated costs;	
 
 	•	 	require us to sell assets to reduce debt or influence the decision about whether to do so;	
 
 	•	 	limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate or prevent us from carrying out capital spending that is necessary or important to our growth strategy and efforts to improve operating margins or our business; and	
 
 	•	 	place us at a competitive disadvantage compared to any competitors that have less debt or comparable debt at more favorable interest rates and that, as a result, may be better positioned to withstand economic downturns.	
 
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The risks and uncertainties inherent in conducting clinical trials could delay or prevent the development and commercialization of our own branded products, which could have a material adverse effect on our business, results of operations and financial condition.
With respect to our branded products which do not qualify for the FDA’s abbreviated application procedures, we must demonstrate through clinical trials that these products are safe and effective for use. We have only limited experience in conducting and supervising clinical trials. The process of completing clinical trials and preparing a NDA may take several years and requires substantial resources. Our studies and filings may not result in FDA approval to market our new drug products and, if the FDA grants approval, we cannot predict the timing of any approval. There are substantial filing fees for NDAs that are not refundable if FDA approval is not obtained.
There are a number of risks and uncertainties associated with clinical trials. The results of clinical trials may not be indicative of results that would be obtained from large scale testing. Clinical trials are often conducted with patients having advanced stages of disease and, as a result, during the course of treatment these patients can die or suffer adverse medical effects for reasons that may not be related to the pharmaceutical agents being tested, but which nevertheless affect the clinical trial results. In addition, side effects experienced by the patients may cause delay of approval or limit the profile of an approved product. Moreover, our clinical trials may not demonstrate sufficient safety and efficacy to obtain approval from the FDA or foreign regulatory authorities. The FDA or foreign regulatory authorities may not agree with our assessment of the clinical data or they may interpret it differently. Such regulatory authorities may require additional or expanded clinical trials. Even if the FDA or foreign regulatory authorities approve certain products developed by us, there is no assurance that such regulatory authorities will not subject marketing of such products to certain limits on indicated use.
Failure can occur at any time during the clinical trial process and, in addition, the results from early clinical trials may not be predictive of results obtained in later and larger clinical trials, and product candidates in later clinical trials may fail to show the desired safety or efficacy despite having progressed successfully through earlier clinical testing. A number of companies in the pharmaceutical industry, including us, have suffered significant setbacks in clinical trials, even in advanced clinical trials after showing positive results in earlier clinical trials. The completion of clinical trials for our product candidates may be delayed or halted for the reasons noted above in addition to many other reasons, including:
 
 	•	 	delays in patient enrollment, and variability in the number and types of patients available for clinical trials;	
 
 	•	 	regulators or institutional review boards may not allow us to commence or continue a clinical trial;	
 
 	•	 	our inability, or the inability of our partners, to manufacture or obtain from third parties materials sufficient to complete our clinical trials;	
 
 	•	 	delays or failure in reaching agreement on acceptable clinical trial contracts or clinical trial protocols with prospective clinical trial sites;	
 
 	•	 	risks associated with trial design, which may result in a failure of the trial to show statistically significant results even if the product candidate is effective;	
 
 	•	 	difficulty in maintaining contact with patients after treatment commences, resulting in incomplete data;	
 
 	•	 	poor effectiveness of product candidates during clinical trials;	
 
 	•	 	safety issues, including adverse events associated with product candidates;	
 
 	•	 	the failure of patients to complete clinical trials due to adverse side effects, dissatisfaction with the product candidate, or other reasons;	
 
 	•	 	governmental or regulatory delays or changes in regulatory requirements, policy and guidelines; and	
 
 	•	 	varying interpretation of data by the FDA or foreign regulatory authorities.	
 
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In addition, our product candidates could be subject to competition for clinical study sites and patients from other therapies under development which may delay the enrollment in or initiation of our clinical trials.
The FDA or foreign regulatory authorities may require us to conduct unanticipated additional clinical trials, which could result in additional expense and delays in bringing our product candidates to market. Any failure or delay in completing clinical trials for our product candidates would prevent or delay the commercialization of our product candidates. We cannot assure that our expenses related to clinical trials will lead to the development of brand-name drugs that will generate revenues in the near future. Delays or failure in the development and commercialization of our own branded products could have a material adverse effect on our business, results of operations and financial condition.
Our reporting and payment obligations under the Medicaid rebate program and other governmental purchasing and rebate programs are complex and may involve subjective decisions. Any determination that we have failed to comply with those obligations could subject us to penalties and sanctions, which could have a material adverse effect on our business.
The regulations applicable to us regarding reporting and payment obligations with respect to Medicaid reimbursement and rebates and other governmental programs are complex. As discussed elsewhere in this prospectus, we and other pharmaceutical companies are defendants in a number of suits filed by state attorneys general and have been notified of an investigation by the DOJ with respect to Medicaid reimbursement and rebates. Our calculations and methodologies are subject to review and challenge by the applicable governmental agencies, and it is possible that such reviews could adversely affect us and our business. In addition, because our processes for these calculations and the judgments involved in making these calculations involve, and will continue to involve, subjective decisions and complex methodologies, these calculations are subject to the risk of error and misjudgment. Any governmental agencies that have commenced (or that may commence) an investigation of us could impose, based on a claim of violation of anti-fraud and false claims laws or otherwise, civil and/or criminal sanctions, including fines, penalties and possible exclusion from federal health care programs (including Medicaid and Medicare). Some of the applicable laws may impose liability even in the absence of specific intent to defraud. Furthermore, should there be ambiguity with respect to how to properly calculate and report payments, and even in the absence of any such ambiguity, a governmental authority may take a position contrary to a position that we have taken and may impose civil and/or criminal sanctions on us. Any such penalties, sanctions, or exclusion from federal health care programs could have a material adverse effect on our business, financial position and results of operations. From time to time we conduct routine reviews of our government pricing calculations. These reviews may have an impact on government price reporting and rebate calculations used to comply with various government regulations regarding reporting and payment obligations.
Our operating results are affected by many factors and may fluctuate significantly on a quarterly basis.
Our operating results may vary substantially from quarter to quarter and may be greater or less than those achieved in the immediately preceding period or in the comparable period of the prior year. Factors that may cause quarterly results to vary include, but are not limited to, the following:
 
 	•	 	the number of new product introductions by us;	
 
 	•	 	losses related to inventory write-offs;	
 
 	•	 	marketing exclusivity, if any, which may be obtained on certain new products;	
 
 	•	 	the level of competition in the marketplace for certain products;	
 
 	•	 	our ability to create demand in the marketplace for our products;	
 
 	•	 	availability of raw materials and finished products from suppliers;	
 
 	•	 	our ability to manufacture products at our manufacturing facilities;	
 
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 	•	 	the scope and outcome of governmental regulatory actions;	
 
 	•	 	our dependence on a small number of products for a significant portion of net revenue or income;	
 
 	•	 	legal actions against our generic products brought by brand competitors, and legal challenges to our intellectual property rights by generic competitors;	
 
 	•	 	price erosion and customer consolidation; and	
 
 	•	 	significant payments (such as milestones) payable by us under collaboration, licensing, and development agreements to our partners before the related product has received FDA approval.	
The profitability of our product sales is also dependent upon the prices we are able to charge for our products, the costs to purchase products from third parties, and our ability to manufacture our products in a cost effective manner. If our revenues decline or do not grow as anticipated, we may not be able to reduce our operating expenses to offset such declines. Failure to achieve anticipated levels of revenues could, therefore, significantly harm our operating results for a particular fiscal period.
In certain circumstances, we issue price adjustments and other sales allowances to our customers. Although we may establish reserves based on our estimates of these amounts, if estimates are incorrect and the reserves are inadequate, it may result in adjustments to these reserves that may have a material adverse effect on our financial position and results of operations.
As described above, the first company to file an ANDA containing a Paragraph IV certification that successfully challenges the patent(s) on a branded product may be granted 180 days of generic market exclusivity by the FDA for such generic product. At the expiration of such exclusivity period, other generic distributors may enter the market, resulting in a significant price decline for the drug (in some instances, price declines have exceeded 90%). When we experience price declines following a period of generic marketing exclusivity, or at any time when a competitor enters the market or offers a lower price with respect to a product we are selling, we may, at our discretion, decide to lower the price of our product to retain market share and provide price adjustments to our customers for the difference between our new (lower) price and the price at which we previously sold the product which is still held in inventory by such customers. Because the entry of a competitive generic product following the expiration of any exclusivity period is unpredictable, we do not establish reserves for such potential adjustments, and therefore the full effect of such adjustments are not reflected in our operating results until such adjustments actually occur. There are also circumstances under which we may decide not to provide price adjustments to certain customers, and consequently, as a matter of business strategy, we may risk a greater level of sale returns of products in a customer’s existing inventory and lose future sales volume to competitors rather than reduce our pricing.
Based on estimates, we establish reserves for sales allowances including, but not limited to: sales discounts and returns, chargebacks, sales volume rebates, shelf stocks, re-procurement charges, cash discounts, and Medicaid rebate obligations at the time of sale. Although we believe our reserves are adequate as of the date of this prospectus, we cannot provide assurances that ourreserves will ultimately prove to be adequate. Increases in sales allowances may exceed our estimates for a variety of reasons, including unanticipated competition or an unexpected change in one or more of our contractual relationships. We will continue to evaluate the effects of competition and will record a price adjustment reserve if and when we deem it necessary. Any failure to establish adequate reserves with respect to sales allowances may result in a material adverse effect on our financial position and results of operations.
If we determine that our goodwill and other intangible assets have become impaired, we may record significant impairment charges, which would adversely affect our results of operations.
Goodwill and other intangible assets represent a significant portion of our assets. Goodwill is the excess of cost over the fair market value of net assets acquired in business combinations. In the future, goodwill and
 
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intangible assets may increase as a result of future acquisitions. We review our goodwill and indefinite lived intangible assets at least annually for impairment. We review our intangible assets with finite lives for recoverability whenever events or changes in circumstances indicate that the carrying amount of the assets may not be fully recoverable. For example, during the year ended December 31, 2017, Impax recognized a total of $289.7 million of intangible asset impairment charges, and no impairment charge related to goodwill as a result of its annual testing in 2017. Impairment may result from, among other things, deterioration in the performance of acquired businesses, adverse market conditions and adverse changes in applicable laws or regulations, including changes that restrict the activities of an acquired business. Any impairment of goodwill or other intangible assets would result in a non-cash charge against earnings, which would adversely affect our results of operations.
Investigations and litigation concerning the calculation of average wholesale prices may adversely affect our business.
Many government and third-party payers, including Medicare, Medicaid, HMOs and others, reimburse doctors and others for the purchase of certain prescription drugs based on a drug’s average wholesale price (“ AWP ”). In the past several years, state and federal government agencies have conducted ongoing investigations of manufacturers’ reporting practices with respect to AWP, as a result of which certain agencies have suggested that reporting of inflated AWPs by manufacturers has led to excessive payments for prescription drugs. Numerous pharmaceutical companies have been named as defendants in actions brought by various State Attorneys General and have faced state law qui  tam actions brought on behalf of various states, alleging generally that the defendants defrauded state Medicaid systems by purportedly reporting or causing the reporting of AWP and/or “Wholesale Acquisition Costs” that exceeded the actual selling price of the defendants’ prescription drugs. We, for example, are subject to a civil investigative demand issued by the Texas State Attorney General alleging certain overpayments to us by the Texas Medicaid system. These cases generally seek some combination of actual damages, and/or double damages, treble damages, compensatory damages, statutory damages, civil penalties, disgorgement of excessive profits, restitution, disbursements, counsel fees and costs, litigation expenses, investigative costs, injunctive relief, punitive damages, imposition of a constructive trust, accounting of profits or gains derived through the alleged conduct, expert fees, interest and other relief that the court may have deemed proper.
We can give no assurance that we will be able to settle current or future actions on terms that we deem reasonable, or that such settlements or adverse judgments, if entered, will not exceed the amount of any reserve. Accordingly, such actions could adversely affect us and may have a material adverse effect on our business, results of operations, financial condition and cash flows.
We are increasingly dependent on information technology, and our systems and infrastructure face certain risks, including cybersecurity and data leakage risks.
Significant disruptions to our information technology systems or breaches of information security could adversely affect our business. In the ordinary course of business, we collect, store and transmit large amounts of confidential information, and it is critical that we do so in a secure manner to maintain the confidentiality and integrity of such information. We have also outsourced significant elements of our information technology infrastructure; as a result we manage independent vendor relationships with third parties who are responsible for maintaining significant elements of our information technology systems and infrastructure and who may or could have access to our confidential information. The size and complexity of our information technology systems, and those of our third party vendors, make such systems potentially vulnerable to service interruptions and security breaches from inadvertent or intentional actions by our employees, partners or vendors. These systems are also vulnerable to attacks by malicious third parties, and may be susceptible to intentional or accidental physical damage to the infrastructure maintained by us or by third parties. Maintaining the secrecy of confidential, proprietary, and/or trade secret information is important to our competitive business position. While we have taken steps to protect such information and have invested in systems and infrastructures to do so, there can be no
 
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guarantee that our efforts will prevent service interruptions or security breaches in our systems or the unauthorized or inadvertent wrongful use or disclosure of confidential information that could adversely affect our business operations or result in the loss, dissemination, or misuse of critical or sensitive information. A breach of our security measures or the accidental loss, inadvertent disclosure, unapproved dissemination, misappropriation or misuse of trade secrets, proprietary information, or other confidential information, whether as a result of theft, hacking, fraud, trickery or other forms of deception, or for any other cause, could enable others to produce competing products, use our proprietary technology or information, and/or adversely affect our business position. Further, any such interruption, security breach, loss or disclosure of confidential information could result in financial, legal, business, and reputational harm to us and could have a material adverse effect on our business, financial position, results of operations and/or cash flow.
Our future success depends on our ability to attract and retain talented employees and consultants.
Our future success depends, to a substantial degree, upon the continued service of the members of our management team. The loss of the services of members of our management team, or their inability to perform services on our behalf, could have a material adverse effect on our business, condition (financial and otherwise), prospects and results of operations. Our success also depends, to a large extent, upon the contributions of our sales, marketing, scientific and quality assurance staff. We compete with brand and generic pharmaceutical manufacturers for qualified personnel, and our competitors may offer more favorable employment opportunities than we do. If we are not able to attract and retain the necessary personnel to accomplish our business objectives we could experience constraints that would adversely affect our ability to sell and market our products effectively, to meet the demands of our strategic partners in a timely fashion, and to support our research and development programs. In particular, our sales and marketing efforts depend on the ability to attract and retain skilled and experienced sales, marketing and quality assurance representatives. Although we believe that wehave been successful in attracting and retaining skilled personnel in all areas of our business, we cannot provide assurance that we can continue to attract, train and retain such personnel. Any failure in this regard could limit the rates at which Amneal generates sales and develops or acquires new products.
We depend on our ability to protect our intellectual property and proprietary rights.
Our success depends on our ability to protect and defend the intellectual property rights associated with our current and future products. If we fail to protect our intellectual property adequately, competitors may manufacture and market products similar to, or that may be confused with, our products, and our generic competitors may obtain regulatory approval to make and distribute generic versions of our branded products. Some patent applications in the United States are maintained in secrecy or are not published until the resulting patents issue. We also cannot be certain that patents will be issued with respect to any of our patent applications or that any existing or future patents issued to or licensed by us will provide competitive advantages for our products or will not be challenged, invalidated, circumvented or held unenforceable in proceedings commenced by our competitors or other third parties. Furthermore, our patent rights may not prevent or limit our present and future competitors from developing, making, importing, using or commercializing products that are functionally similar to our products. We rely particularly on trade secrets, trademarks, unpatented proprietary expertise and continuing innovation that we seeks to protect, in part, by registering and using marks; and by entering into confidentiality agreements with licensees, suppliers, employees, consultants and other parties—we use this approach to protecting our intellectual property in large part because few of our products are protected by patents. We cannot provide assurance that these agreements will not be breached or circumvented. We also cannot be certain that we will have recourse to adequate remedies in the event of a breach of such agreements. Disputes may arise concerning the ownership of intellectual property or the applicability of confidentiality agreements. We cannot be sure that our trade secrets and proprietary technology will not be independently developed or otherwise become known by our competitors or, if patents are not issued with respect to our internally-developed products, that we will be able to maintain the confidentiality of information relating to these products. In addition, efforts to ensure our intellectual property rights may be costly, time-consuming and/or ultimately unsuccessful. We cannot be sure that we will have the resources to protect our own rights against infringement by third parties.
 
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There are inherent uncertainties involved in estimates, judgments and assumptions used in the preparation of financial statements in accordance with GAAP. Any future changes in estimates, judgments and assumptions used or necessary revisions to prior estimates, judgments or assumptions could lead to a restatement of our results.
The consolidated financial statements included in this prospectus are prepared in accordance with GAAP. This involves making estimates, judgments and assumptions that affect reported amounts of assets (including intangible assets), liabilities, revenues, expenses and income. Estimates, judgments and assumptions are inherently subject to change in the future and any necessary revisions to prior estimates, judgments or assumptions could lead to a restatement. Any such changes could result in corresponding changes to the amounts of assets (including goodwill and other intangible assets), liabilities, revenues, expenses and income.
If we fail to maintain an effective system of internal control over financial reporting, we may not be able to accurately report our financial results, timely file our periodic reports, maintain our reporting status or prevent fraud.
Our management or our independent registered public accounting firm may identify material weaknesses in our internal control over financial reporting in the future. The existence of internal control material weaknesses may result in current and potential stockholders and alliance and collaboration agreements’ partners losing confidence in our financial reporting, which could harm our business, the market price of our common stock, and our ability to retain our current, or obtain new, alliance and collaboration agreements’ partners.
In addition, the existence of material weaknesses in our internal control over financial reporting may affect our ability to timely file periodic reports under the Exchange Act. An internal control material weakness may develop in the future and affect our ability to timely file our periodic reports. The inability to timely file periodic reports under the Exchange Act could result in the SEC revoking the registration of our common stock, which would prohibit us from listing or having our stock quoted on any public market. This would have an adverse effect on our business and stock price by limiting the publicly available information regarding us and greatly reducing the ability of our stockholders to sell or trade our common stock.
Terrorist attacks and other acts of violence or war may adversely affect our business.
Terrorist attacks at or nearby our facilities may negatively affect our operations. While we do not believe that we are more susceptible to such attacks than other companies, such attacks could directly affect our physical facilities or those of our suppliers or customers and could make the transportation of our products more difficult and more expensive and ultimately affect our sales.
We carry insurance coverage on our facilities of types and in amounts that we believe are in line with coverage customarily obtained by owners of similar properties. We continue to monitor the state of the insurance market in general and the scope and cost of coverage for acts of terrorism in particular, but we cannot anticipate what coverage will be available on commercially reasonable terms in future policy years. Currently, we carry terrorism insurance as part of our property and casualty and business interruption coverage. If we experience a loss that is uninsured or that exceeds policy limits, we could lose the capital invested in the damaged facilities, as well as the anticipated future net sales from those facilities.
The expansion of social media platforms present new risks and challenges, which could cause a material adverse effect on our business, results of operations and financial condition.
The inappropriate use of certain media vehicles could cause brand damage or information leakage or could lead to legal implications from the improper collection and/or dissemination of personally identifiable information. In addition, negative posts or comments about us on any social networking website could seriously damage our reputation. Further, the disclosure of non-public company sensitive information through external
 
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media channels could lead to information loss as there might not be structured processes in place to secure and protect information. If our non- public sensitive information is disclosed or if our reputation is seriously damaged through social media, it could have a material adverse effect on our business, results of operations and financial condition.
We may need to raise additional funds in the future which may not be available on acceptable terms or at all.
We may consider issuing additional debt or equity securities in the future to fund potential acquisitions or investments, to refinance existing debt, or for general corporate purposes. If we issue equity, convertible preferred equity or convertible debt securities to raise additional funds, New Amneal Stockholders may experience dilution, and the new equity or debt securities may have rights, preferences and privileges senior to those of New Amneal Stockholders. If we incur additional debt, we may increase our leverage relative to our earnings or to our equity capitalization, requiring us to pay additional interest expenses and potentially lowering New Amneal’s credit ratings. We may not be able to market such issuances on favorable terms, or at all, in which case, we may not be able to develop or enhance our products, execute our business plan, take advantage of future opportunities, or respond to competitive pressures or unanticipated customer requirements.
The terms of our credit agreements will restrict our operations, particularly our ability to respond to changes or to take certain actions.
Our credit agreements will contain a number of restrictive covenants that impose operating and financial restrictions on us and may limit our ability to engage in acts that may be in our long-term best interest, including restrictions on the ability to:
 
 	•	 	incur additional indebtedness;	
 
 	•	 	pay dividends or make other distributions or repurchase or redeem capital stock;	
 
 	•	 	prepay, redeem or repurchase certain debt;	
 
 	•	 	make loans and investments;	
 
 	•	 	sell assets;	
 
 	•	 	incur liens;	
 
 	•	 	enter into transactions with affiliates;	
 
 	•	 	alter the businesses conducted by us;	
 
 	•	 	enter into agreements restricting subsidiaries’ ability to pay dividends; and	
 
 	•	 	consolidate, merge or sell all or substantially all of our assets.	
A breach of the covenants under such credit agreements could result in an event of default under the applicable indebtedness. Such a default may allow the creditors to accelerate the related debt and may result in the acceleration of any other debt to which a cross-acceleration or cross-default provision applies which could have a material adverse effect on our business, operations and financial results. Furthermore, if we were unable to repay the amounts due and payable under our credit agreements, those lenders could proceed against the collateral granted to them to secure that indebtedness which could force us into bankruptcy or liquidation. In the event our lenders accelerated the repayment of the borrowings, we and our subsidiaries may not have sufficient assets to repay that indebtedness. Any acceleration of amounts due under the credit agreements would likely have a material adverse effect on us. As a result of these restrictions, we may be:
 
 	•	 	limited in how we conduct business;	
 
 	•	 	unable to raise additional debt or equity financing to operate during general economic or business downturns; or	
 
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 	•	 	unable to compete effectively or to take advantage of new business opportunities.	
These restrictions may affect our ability to grow in accordance with our strategy.
We may not be able to generate sufficient cash to service all of our indebtedness and may be forced to take other actions to satisfy our obligations under our indebtedness, which may not be successful.
Our ability to make scheduled payments on or refinance our debt obligations depends on our financial condition and operating performance, which are subject to prevailing economic and competitive conditions and to certain financial, business, legislative, regulatory and other factors which may be beyond our control. We may be unable to maintain a level of cash flows from operating activities sufficient to permit us to pay the principal, premium, if any, and interest on our indebtedness. Following the Combination, we estimate that we currently have approximately $2.7 billion of indebtedness, with an annual interest expense of approximately $138 million to $149 million and an annual debt amortization of approximately $27 million.
If our cash flows and capital resources are insufficient to fund our debt service obligations, we could face substantial liquidity problems and could be forced to reduce or delay investments and capital expenditures or to dispose of material assets or operations, seek additional debt or equity capital or restructure or refinance our indebtedness. We may not be able to affect any such alternative measures on commercially reasonable terms or at all and, even if successful, those alternative actions may not allow us to meet our scheduled debt service obligations. Our credit agreements restrict our ability to dispose of assets and use the proceeds from those dispositions and also restrict our ability to raise debt or equity capital to be used to repay other indebtedness when it becomes due. We may not be able to consummate those dispositions or obtain proceeds in an amount sufficient to meet any debt service obligations when due.
Our inability to generate sufficient cash flows to satisfy our debt obligations, or to refinance our indebtedness on commercially reasonable terms or at all, would materially and adversely affect our financial position and results of operations and our ability to satisfy our obligations, including our indebtedness.
If we cannot make scheduled payments on our debt, we will be in default and, as a result:
 
 	•	 	our debt holders could declare all outstanding principal and interest to be due and payable;	
 
 	•	 	the lenders under our credit agreements could terminate their commitments to lend us money; and	
 
 	•	 	we could be forced into bankruptcy or liquidation.	
Risks Related to Our Class A Common Stock and This Offering
New Amneal is a holding company with nominal net worth and depends on dividends and distributions from its subsidiaries to pay any dividends.
New Amneal is a holding company with nominal net worth and will not have any material assets or conduct any business operations other than its investments in its subsidiaries. New Amneal’s business operations are conducted primarily out of its direct operating subsidiary, Amneal, and its subsidiaries. As a result, notwithstanding any restrictions on payment of dividends under New Amneal’s existing indebtedness, New Amneal’s ability to pay dividends, if any, is dependent upon cash dividends and distributions or other transfers from its subsidiaries, including from Amneal.
 
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The Class A common stock price is expected to be volatile, and the market price of Class A common stock may decline.
The market price of Class A common stock could be subject to significant fluctuations. Market prices for securities of pharmaceutical, biotechnology, and other life sciences companies have historically been particularly volatile. Some of the factors that may cause the market price of Class A common stock to fluctuate include:
 
 	•	 	the ability of New Amneal to obtain regulatory approvals for product candidates, and delays or failures to obtain such approvals;	
 
 	•	 	the failure of any of New Amneal’s product candidates, if approved for marketing and commercialization, to achieve commercial success;	
 
 	•	 	issues in manufacturing New Amneal’s approved products or product candidates;	
 
 	•	 	the entry into, or termination of, key agreements, including key licensing or collaboration agreements;	
 
 	•	 	the initiation of material developments in, or conclusion of, litigation to enforce or defend any of New Amneal’s intellectual property rights or defend against the intellectual property rights of others;	
 
 	•	 	announcements by commercial partners or competitors of new commercial products, clinical progress (or the lack thereof), significant contracts, commercial relationships, or capital commitments;	
 
 	•	 	adverse publicity relating to New Amneal’s markets, including with respect to other products and potential products in such markets;	
 
 	•	 	the introduction of technological innovations or new therapies competing with potential products of New Amneal;	
 
 	•	 	the loss of talented employees;	
 
 	•	 	changes in estimates or recommendations by securities analysts, if any, who cover the Class A common stock;	
 
 	•	 	general and industry-specific economic conditions potentially affecting New Amneal’s research and development expenditures;	
 
 	•	 	changes in the structure of health care payment systems;	
 
 	•	 	period-to-period fluctuations in New Amneal’s financial results;	
 
 	•	 	failure to meet or exceed financial and development projections New Amneal may provide to the public;	
 
 	•	 	failure to meet or exceed the financial and development projections of the investment community;	
 
 	•	 	the perception of the pharmaceutical industry by the public, legislators, regulators, and the investment community;	
 
 	•	 	adverse regulatory decisions;	
 
 	•	 	disputes or other developments relating to proprietary rights, including patents, litigation matters, and New Amneal’s ability to obtain patent protection for its technologies;	
 
 	•	 	sales of the Class A common stock by New Amneal or its stockholders in the future;	
 
 	•	 	trading volume of the Class A common stock; and	
 
 	•	 	period-to-period fluctuations in New Amneal’s financial results.	
Moreover, the stock markets in general have experienced substantial volatility that has often been unrelated to the operating performance of individual companies or the biotechnology sector. These broad market fluctuations may also adversely affect the trading price of the New Amneal’s Class A common stock.
 
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In the past, following periods of volatility in the market price of a company’s securities, stockholders have often instituted class action securities litigation against those companies. Such litigation, if instituted, could result in substantial costs and diversion of management’s attention and resources, which could significantly harm New Amneal’s profitability and reputation.
Future sales of shares by stockholders could cause the Class A common stock price to decline.
If New Amneal Stockholders sell, or indicate an intention to sell, substantial amounts of Class A common stock in the public market after the Lock-up Period and other legal restrictions on resale discussed in this prospectus lapse, the trading price of Class A common stock could decline. Upon completion of this offering, New Amneal is expected to have outstanding a total of approximately 299,994,884 shares of Class A common stock.
The Stockholders Agreement includes certain lock-up provisions limiting the ability of Amneal Holdings and its permitted transferees to transfer New Amneal Shares held by such members for a period of 180 days from the Closing of the Combination. Upon the expiration of the lock-up restrictions, 171,260,707 shares of Class A common stock subject to outstanding Amneal Common Units held by Amneal Holdings and its permitted transferees, as well as the 6,886,140 shares of Class A common stock relating to the Closing Date Redemption, each of which may be transferred under this prospectus, will become eligible for sale or transfer (subject to certain continuing restrictions). If these shares are sold, or if it is perceived that they will be sold, in the public market, the trading price of the Class A common stock could decline.
If the ownership of the Class A common stock is highly concentrated, it may prevent you and other stockholders from influencing significant corporate decisions and may result in conflicts of interest that could cause the Class A common stock’s stock price to decline.
Executive officers and directors of New Amneal, and affiliates of executive officers and directors of New Amneal, beneficially own or control approximately 60% of the outstanding shares of New Amneal Shares. Accordingly, these executive officers, directors, and their affiliates, acting as a group, have substantial influence over the outcome of corporate actions requiring stockholder approval, including the election of directors, any merger, consolidation, or sale of all or substantially all of New Amneal’s assets or any other significant corporate transactions. These stockholders may also delay or prevent a change of control of New Amneal, even if such a change of control would benefit the other New Amneal Stockholders. The significant concentration of stock ownership may adversely affect the trading price of Class A common stock due to investors’ perception that conflicts of interest may exist or arise.
New Amneal is controlled by Amneal Holdings. The interests of the Amneal Holdings may differ from the interests of other stockholders of New Amneal.
Amneal Holdings possesses 59% of the voting power of all outstanding New Amneal Shares (after giving effect to the PIPE Investment and the Closing Date Redemption).
Through its ownership of a majority of New Amneal’s voting power and the provisions set forth in the New Amneal Charter, the New Amneal Bylaws and the Stockholders Agreement, Amneal Holdings and its permitted transferees have the ability to designate and elect a majority of the New Amneal Board. Amneal Holdings and its permitted transferees have control over all matters submitted to New Amneal Stockholders for approval, including changes in capital structure, transactions requiring stockholder approval under Delaware law and corporate governance, subject to the terms of the Stockholders Agreement relating to Amneal Holdings and its permitted transferees’ agreement to vote in favor of Non-Amneal Directors and such other matters that are described in more detail in the section entitled “ Certain Related Parties and Related Party Transactions—Stockholders Agreement. ” Amneal Holdings and its permitted transferees may have different interests than other New Amneal Stockholders and may make decisions adverse to your interests.
 
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Among other things, Amneal Holdings and its permitted transferees’ control could delay, defer, or prevent a sale of New Amneal that the company’s other stockholders support, or, conversely, this control could result in the consummation of such a transaction that other New Amneal Stockholders do not support. This concentrated control could discourage a potential investor from seeking to acquire Class A common stock and, as a result, might harm the market price of that Class A common stock.
The New Amneal Charter provides that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for substantially all disputes between New Amneal and its stockholders, which could limit New Amneal Stockholders’ ability to obtain a favorable judicial forum for disputes with New Amneal or its current or former directors, officers or employees.
The New Amneal Charter provides that unless New Amneal consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if such court does not have jurisdiction, the Superior Court of the State of Delaware or the federal district court for the District of Delaware) will be the sole and exclusive forum for any derivative action or proceeding brought on behalf of New Amneal, any action asserting a claim of breach of fiduciary duty owed by any current or former director or officer of New Amneal to New Amneal or its stockholders, any action asserting a claim arising pursuant to any provision of the DGCL, the New Amneal Charter or the New Amneal Bylaws or any action asserting a claim governed by the internal affairs doctrine. The choice of forum provision may limit a New Amneal Stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with New Amneal or its current or former directors, officers or other employees, which may discourage such lawsuits against New Amneal and its current or former directors, officers and other employees. Alternatively, if a court were to find the choice of forum provision contained in the New Amneal Charter to be inapplicable or unenforceable in an action, New Amneal may incur additional costs associated with resolving such action in other jurisdictions, which could harm its business, results of operations, and financial condition.
An active trading market for the Class A common stock may not develop and New Amneal Stockholders may not be able to resell their shares of Class A common stock for a profit, if at all.
An active trading market for Class A common stock may never develop or be sustained. If an active market for Class A common stock does not develop or is not sustained, it may be difficult for its stockholders to sell their shares at an attractive price or at all.
Anti-takeover provisions under Delaware law could make an acquisition of New Amneal more difficult and may prevent attempts by New Amneal’s stockholders to replace or remove New Amneal’s management.
Because New Amneal is incorporated in Delaware, it is governed by the provisions of Section 203 of the DGCL, which prohibits stockholders owning in excess of 15% of the outstanding voting stock of New Amneal from merging or combining with the New Amneal. Although Impax and Amneal believe these provisions collectively will provide for an opportunity to receive higher bids by requiring potential acquirers to negotiate with New Amneal’s board of directors, they would apply even if the offer may be considered beneficial by some stockholders. In addition, these provisions may frustrate or prevent any attempts by the New Amneal’s stockholders to replace or remove then current management by making it more difficult for stockholders to replace members of the board of directors, which is responsible for appointing the members of management.
We do not anticipate that New Amneal will pay any cash dividends in the foreseeable future.
The current expectation is New Amneal will retain its future earnings to fund the development and growth of New Amneal’s business. As a result, capital appreciation, if any, of the Class A common stock will be your sole source of gain, if any, for the foreseeable future.
 
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If New Amneal fails to maintain proper and effective internal controls, New Amneal’s ability to produce accurate and timely financial statements could be impaired, which could harm its operating results, its ability to operate its business and investors’ views of New Amneal.
New Amneal is required to comply with Section 404 of the Sarbanes-Oxley Act. Section 404 of the Sarbanes-Oxley Act requires public companies to conduct an annual review and evaluation of their internal controls and attestations of the effectiveness of internal controls by independent auditors. Ensuring that New Amneal has adequate internal financial and accounting controls and procedures in place so that it can produce accurate financial statements on a timely basis is a costly and time-consuming effort that will need to be evaluated frequently. New Amneal’s failure to maintain the effectiveness of its internal controls in accordance with the requirements of the Sarbanes-Oxley Act could have a material adverse effect on its business. New Amneal could lose investor confidence in the accuracy and completeness of its financial reports, which could have an adverse effect on the price of its common stock. In addition, if New Amneal’s efforts to comply with new or changed laws, regulations, and standards differ from the activities intended by regulatory or governing bodies due to ambiguities related to practice, regulatory authorities may initiate legal proceedings against New Amneal and its business may be harmed.
If securities or industry analysts do not publish, or cease publishing, research or reports about New Amneal, its business or its market, or if they change their recommendations regarding the Class A common stock adversely, the Class A common stock price and trading volume could decline.
If a trading market for Class A common stock develops, the trading market for Class A common stock will be influenced by whether industry or securities analysts publish research and reports about New Amneal, its business, its market or its competitors and, if any analysts do publish such reports, what they publish in those reports. New Amneal may not obtain analyst coverage in the future. Any analysts that do cover New Amneal may make adverse recommendations regarding the Class A common stock, adversely change their recommendations from time to time, and/or provide more favorable relative recommendations about New Amneal’s competitors. If any analyst who may cover New Amneal in the future were to cease coverage of New Amneal or fail to regularly publish reports on New Amneal, or if analysts fail to cover New Amneal or publish reports about New Amneal at all, New Amneal could lose, or never gain, visibility in the financial markets, which in turn could cause the stock price or trading volume of the Class A common stock to decline.
 
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 CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that involve risks and uncertainties. All statements other than statements of historical facts contained in this prospectus are forward-looking statements. In some cases, you can identify forward-looking statements by words such as “anticipate,” “believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “seek,” “should,” “target,” “will,” “would,” or the negative of these words or other comparable terminology. These forward-looking statements include, but are not limited to, statements about: (i) the ability of Impax and Amneal to integrate their businesses successfully and to achieve anticipated synergies, (ii) the possibility that other anticipated benefits of the Combination will not be realized, including without limitation, anticipated revenues, expenses, earnings and other financial results, and growth and expansion of New Amneal’s operations, and the anticipated tax treatment, (iii) possible disruptions from the Combination that could harm Impax’s and/or Amneal’s business, including current plans and operations, (iv) the ability of Impax or Amneal to retain, attract and hire talented personnel, (v) potential adverse reactions or changes to relationships with clients, employees, suppliers or other parties resulting from the announcement or completion of the combination, (vi) potential business uncertainty, including changes to existing business relationships, during the pendency of the Combination that could affect Impax’s or Amneal’s financial performance, (vii) certain restrictions during the pendency of the Combination that may impact Impax’s or Amneal’s ability to pursue certain business opportunities or strategic combination, (viii) continued availability of capital and financing and rating agency actions, (ix) legislative, regulatory and economic developments (including the impact of changes in the tax code as a result of recent federal tax legislation and uncertainty as to how some of those changes may be applied), (x) unpredictability and severity of catastrophic events, including, but not limited to, acts of terrorism or outbreak of war or hostilities, as well as management’s response to any of the aforementioned factors, and (xi) such other factors as are set forth in this prospectus under the heading “ Risk Factors. ” Any forward-looking statements in this prospectus reflect our current views with respect to future events or to our future financial performance and involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements. Important factors that may cause actual results to differ materially from current expectations include, among other things, those listed under “Risk Factors” and elsewhere in this prospectus. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Except as required by law, we assume no obligation to update or revise these forward-looking statements for any reason, even if new information becomes available in the future.
This prospectus also contains estimates, projections and other information concerning our industry, our business, and the markets in which we operate. Information that is based on estimates, forecasts, projections, market research or similar methodologies is inherently subject to uncertainties and actual events or circumstances may differ materially from events and circumstances reflected in this information. Unless otherwise expressly stated, we obtained this industry, business, market and other data from reports, research surveys, studies and similar data prepared by market research firms and other third parties, industry, medical and general publications, government data and similar sources.
 
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 THE COMBINATION
On May 4, 2018, pursuant to the BCA, among other things: (i) the Impax Merger was effected; (ii) each Impax Share outstanding immediately prior to the Impax Merger Effective Time, other than Cancelled Shares, was converted into the right to receive one share of Class A common stock; (iii) Impax converted to a Delaware limited liability company named Impax Laboratories, LLC; (iv) Holdco contributed all of the equity interests of Impax to Amneal in exchange for certain equity interests of Amneal; (v) New Amneal issued shares of Class B common stock to the Existing Amneal Members, which were subsequently assigned and transferred to Amneal Holdings; and (vi) New Amneal became the managing member of Amneal.
Immediately following the Closing: (i) (A) Amneal Holdings held 100% of the Class B common stock, which represented approximately 75% of the voting power of the outstanding New Amneal Shares, and (B) Impax Stockholders immediately prior to the Closing held 100% of the Class A common stock, which represented approximately 25% of the voting power of the New Amneal Shares; (ii) (A) Amneal Holdings held approximately 75% of the Amneal Common Units and (B) Impax Stockholders indirectly, through their ownership in New Amneal, held approximately 25% of the Amneal Common Units; and (iii) the Amneal Common Units were exchangeable on a one-to-one basis for Class A common stock or Class B-1 common stock. The rights (including voting rights) of Class A common stock and Class B common stock are identical, except that Class B common stock has no economic rights and the rights of Class A common stock and Class B-1 common stock are identical, except that Class B-1 common stock has no voting rights (other than to elect the Class B-1 Director).
On May 4, 2018, Amneal Holdings caused Amneal to redeem (the “Closing Date Redemption”) (in accordance with the terms of the LLC Agreement) 6,886,140 of the Amneal Common Units issued to the Existing Amneal Members (and subsequently assigned and transferred to Amneal Holdings) in connection with the Combination for a like number of shares of Class A common stock covered by this prospectus, and intends to distribute such shares to certain direct and indirect members of Amneal Holdings who were or are employees of Amneal and to whom were previously issued (prior to the Closing) profit participation units in Amneal.
After giving effect to the Combination, the PIPE investment and the Closing Date Redemption, as of May 4, 2018, the holders of our Class A (including Amneal Holdings, to the extent of the Class A shares received in the Closing Date Redemption) and Class B-1 common stock hold 100% of the economic interests in us and approximately 43% of the voting power in us, and Amneal Holdings, through its ownership of all of the outstanding Class B common stock, holds no economic interest in us and the remaining approximately 57% of the voting power in us. We are a holding company, and following the Combination and the PIPE Investment, our principal assets are the Amneal Common Units, representing an aggregate approximately 43% economic interest in Amneal. The remaining approximately 57% economic interest in Amneal is owned by Amneal Holdings through its ownership of Amneal Common Units. We are the sole managing member of Amneal and, although we have a minority economic interest in Amneal, we have the sole voting power in, and control the management of, Amneal. Accordingly, we expect to consolidate the financial results of Amneal and report a non-controlling interest in our consolidated financial statements.
 
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 USE OF PROCEEDS
We will not receive any cash proceeds from the offer and sale from time to time by the selling stockholders of any of the shares of Class A common stock that have been registered pursuant to this prospectus. The selling stockholders will receive all of the net proceeds from any such offer and sale.
 
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 PRICE RANGE OF CLASS A COMMON STOCK
Our Class A common stock began trading on NYSE under the symbol “AMRX” on May 7, 2018. Prior to that time, there was no public market for our Class A common stock. The following table sets forth the high and low sale prices per share of our Class A common stock and of Impax’s common stock, which is equivalent in value to our shares of Class A common stock that were issued upon the consummation of the Combination, as reported on NASDAQ, for the periods indicated.

 	  	High	 	  	Low	 	
New Amneal	  				  				
Year Ended December 31, 2018	  				  				
Second quarter (through            , 2018)	  	$		 	  	$		 	
Impax	  				  				
Year Ended December 31, 2015	  				  				
First quarter	  	$	47.30	 	  	$	30.20	 	
Second quarter	  	$	51.31	 	  	$	44.44	 	
Third quarter	  	$	50.32	 	  	$	33.27	 	
Fourth quarter	  	$	44.76	 	  	$	34.53	 	
Year Ended December 31, 2016	  				  				
First quarter	  	$	42.65	 	  	$	30.73	 	
Second quarter	  	$	36.40	 	  	$	28.01	 	
Third quarter	  	$	31.62	 	  	$	21.72	 	
Fourth quarter	  	$	24.23	 	  	$	12.75	 	
Year Ended December 31, 2017	  				  				
First quarter	  	$	14.80	 	  	$	8.00	 	
Second quarter	  	$	17.65	 	  	$	12.15	 	
Third quarter	  	$	23.80	 	  	$	15.10	 	
Fourth quarter	  	$	21.80	 	  	$	15.85	 	
Year Ended December 31, 2018	  				  				
First quarter	  	 	$21.75	 	  	$	17.25	 	
Second quarter (through May 4, 2018)	  	$	20.80	 	  	$	17.40	 	
On May 4, 2018, the date of completion of the Combination, the last reported sale price of Impax’s common stock on NASDAQ was $18.30 per share. As of the date of this prospectus, we had approximately      holders of record of our Class A common stock. The actual number of stockholders is greater than this number of record holders and includes stockholders who are beneficial owners but whose shares are held in street name by brokers and other nominees. This number of holders of record also does not include beneficial owners whose shares may be held in trust by other entities.
 
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 DIVIDEND POLICY
We have never declared or paid cash dividends on our capital stock. We currently intend to retain all available funds and any future earnings, if any, to fund the development and expansion of our business and we do not anticipate paying any cash dividends in the foreseeable future. In addition, pursuant to our credit facilities, we are restricted from paying cash dividends. Moreover, the terms of any future debt agreements may preclude us from paying dividends. Any future determination to pay dividends will be made at the discretion of our board of directors and will depend on various factors, including applicable laws, our results of operations, financial condition, future prospects and any other factors deemed relevant by our board of directors. Investors should not purchase our Class A common stock with the expectation of receiving cash dividend.
 
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 SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION OF AMNEAL
The selected historical consolidated financial data of Amneal for each of the years ended December 31, 2017, 2016, and 2015, and as of December 31, 2017 and 2016 have been derived from Amneal’s audited consolidated financial statements and related notes, which are included in the section entitled “ Index to Amneal Pharmaceuticals LLC and Subsidiaries Consolidated Financial Statements ” included in this prospectus. The selected historical consolidated financial data for the year ended December 31, 2014 and as of December 31, 2015 have been derived from Amneal’s audited consolidated financial statements, which have not been included in this prospectus. The selected historical consolidated financial data for the year ended December 31, 2013 and as of December 31, 2014 and 2013 have been derived from the audited consolidated financial statements and related notes of Amneal’s immediate parent, Amneal Pharmaceuticals Holding Company, LLC (“APHC”), as adjusted to exclude the immaterial activities of APHC. These financial statements have not been included in this prospectus. The information set forth below is only a summary and is not necessarily indicative of the results of future operations of Amneal or New Amneal, and you should read the following information together with Amneal’s audited consolidated financial statements, the related notes and the section entitled “ Management’s Discussion and Analysis of Financial Condition and Results of Operations of Amneal ” included in this prospectus.

 	 	Years Ended December 31,	 	
(In thousands)	 	2017	 	 	2016	 	 	2015	 	 	2014	 	 	2013	 	
Statements of Income Data:	 				 				 				 				 				
Net revenue	 	$	1,033,654	 	 	$	1,018,225	 	 	$	866,280	 	 	$	785,263	 	 	$	531,126	 	
Research and development and intellectual property legal development expenses	 	 	178,068	 	 	 	193,865	 	 	 	153,713	 	 	 	118,539	 	 	 	73,606	 	
Total operating expenses	 	 	281,075	 	 	 	312,610	 	 	 	265,525	 	 	 	229,847	 	 	 	132,287	 	
Operating profit	 	 	245,103	 	 	 	284,881	 	 	 	236,158	 	 	 	218,575	 	 	 	100,815	 	
Net income attributable to Amneal Pharmaceuticals LLC and Subsidiaries	 	 	167,648	 	 	 	207,378	 	 	 	169,451	 	 	 	176,928	 	 	 	91,776	 	

 	 	As of December 31,	 	
(In thousands)	 	2017	 	 	2016	 	 	2015	 	 	2014	 	 	2013	 	
Balance Sheet Data:	 				 				 				 				 				
Cash and cash equivalents	 	$	74,166	 	 	$	27,367	 	 	$	61,087	 	 	$	117,522	 	 	$	81,885	 	
Working capital	 	 	475,050	 	 	 	501,041	 	 	 	365,454	 	 	 	325,989	 	 	 	207,501	 	
Total assets	 	 	1,341,889	 	 	 	1,218,817	 	 	 	1,014,093	 	 	 	829,983	 	 	 	592,289	 	
Long-term debt, net	 	 	1,355,274	 	 	 	1,119,268	 	 	 	911,043	 	 	 	711,914	 	 	 	424,902	 	
Long-term portion of financing obligations	 	 	39,987	 	 	 	40,298	 	 	 	40,578	 	 	 	17,310	 	 	 	16,237	 	
Total liabilities	 	 	1,717,471	 	 	 	1,394,762	 	 	 	1,200,966	 	 	 	927,670	 	 	 	616,375	 	
Total members’ (deficit) equity	 	 	(375,582	) 	 	 	(175,945	) 	 	 	(186,873	) 	 	 	(97,686	) 	 	 	(24,086	) 	
 
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 SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION OF IMPAX
The selected historical consolidated financial data of Impax for each of the years ended December 31, 2017, 2016, and 2015, and as of December 31, 2017 and 2016 have been derived from Impax’s audited consolidated financial statements and related notes, which are included in this prospectus. The selected historical consolidated financial data for the years ended December 31, 2014 and 2013 and as of December 31, 2015, 2014, and 2013 have been derived from Impax’s audited consolidated financial statements, which have not been included in this prospectus. The information set forth below is a summary and not necessarily indicative of future results and should be read together with the other information contained in this prospectus, including the section entitled “ Management’s Discussion and Analysis of Financial Condition and Results of Operations of Impax. ”

 	  	Years Ended December 31,	 	
(In thousands, except per share data)	  	2017	 	 	2016	 	 	2015	 	  	2014	 	  	2013	 	
Statements of Operations Data:	  				 				 				  				  				
Total revenues, net	  	$	775,787	 	 	$	824,429	 	 	$	860,469	 	  	$	596,049	 	  	$	511,502	 	
Research and development	  	 	80,847	 	 	 	80,466	 	 	 	70,622	 	  	 	78,642	 	  	 	68,854	 	
Total operating expenses	  	 	546,491	 	 	 	343,080	 	 	 	282,836	 	  	 	223,837	 	  	 	205,687	 	
(Loss) income from operations	  	 	(402,692	) 	 	 	(494,182	) 	 	 	69,568	 	  	 	88,816	 	  	 	(6,387	) 	
Net (loss) income	  	 	(469,287	) 	 	 	(472,031	) 	 	 	38,997	 	  	 	57,353	 	  	 	101,259	 	
Net (loss) income per share—Basic	  	$	(6.53	) 	 	$	(6.63	) 	 	$	0.56	 	  	$	0.84	 	  	$	1.51	 	
Net (loss) income per share—Diluted	  	$	(6.53	) 	 	$	(6.63	) 	 	$	0.54	 	  	$	0.81	 	  	$	1.47	 	

 	  	As of December 31,	 	
(In thousands)	  	2017	 	 	2016	 	  	2015	 	  	2014	 	  	2013	 	
Balance Sheet Data:	  				 				  				  				  				
Cash, cash equivalents and short-term investments	  	$	181,778	 	 	$	180,133	 	  	$	340,351	 	  	$	414,856	 	  	$	413,133	 	
Working capital	  	 	341,317	 	 	 	309,817	 	  	 	495,312	 	  	 	516,927	 	  	 	505,852	 	
Total assets	  	 	1,351,300	 	 	 	1,823,018	 	  	 	1,922,487	 	  	 	1,079,197	 	  	 	996,923	 	
Long-term debt	  	 	769,524	 	 	 	813,545	 	  	 	424,595	 	  	 	—  	 	  	 	—  	 	
Total liabilities	  	 	1,164,099	 	 	 	1,199,044	 	  	 	860,078	 	  	 	191,320	 	  	 	186,720	 	
(Accumulated deficit) retained earnings	  	 	(372,445	) 	 	 	98,192	 	  	 	570,223	 	  	 	531,226	 	  	 	473,873	 	
Total stockholders’ equity	  	 	187,201	 	 	 	623,974	 	  	 	1,062,409	 	  	 	887,877	 	  	 	810,203	 	
 
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 UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
This unaudited pro forma condensed combined financial information and explanatory notes of New Amneal present how the consolidated financial statements of New Amneal may have appeared had the Transactions (as defined below) and PIPE Investment occurred at earlier dates. The unaudited pro forma condensed combined statement of operations for year ended December 31, 2017 combines the historical consolidated statement of operations of Impax and the historical consolidated statement of income of Amneal, giving effect to the Transactions and PIPE Investment as if Closing had occurred on January 1, 2017. The unaudited pro forma condensed combined balance sheet combines the historical consolidated balance sheets of Impax and Amneal as of December 31, 2017, giving effect to the Transactions and PIPE Investment as if Closing had occurred on December 31, 2017. See “Note 1. Description of the Transactions” herein for additional information on the Transactions and the PIPE Investment.
The following unaudited pro forma condensed combined financial statements of New Amneal present the combination of the historical financial information of Impax and Amneal adjusted to give effect to the Transactions and PIPE Investment, including the impacts of the following:
 
 	•	 	the effects caused by the PIPE Investment on (1) the Tax Receivable Agreement entered into with Amneal Holdings, which provides for the payment by New Amneal to Amneal Holdings and its permitted transferees of 85% of the amount of the cash savings, if any, in U.S. federal and state income tax that New Amneal is deemed to realize as a result of (i) certain tax attributes that are created as a result of the redemption of Amneal Common Units for shares of Class A common stock or, in the case of the PIPE Investment, Class B-1 common stock, (ii) certain other tax attributes acquired from the acquisitions of Amneal Common Units and (iii) tax benefits attributable to payments made under the Tax Receivable Agreement (including imputed interest). If and when New Amneal subsequently realizes a related tax benefit, it will distribute the amount of any such tax benefit to Amneal Holdings and its permitted transferees in respect of their contribution;	
 
 	•	 	adjustments to the provision for income taxes and deferred income taxes reflecting the ownership of Amneal by New Amneal; and	
 
 	•	 	the allocation of net income (loss) between non-controlling interests and New Amneal based on New Amneal’s 40% ownership of Amneal following the consummation of the Transactions and the PIPE Investment.	
The unaudited pro forma condensed combined financial information is presented for informational purposes only and does not purport to represent what the results of operations or financial condition would have been had the Transactions and PIPE Investment actually occurred on the dates indicated, nor do they purport to project the results of operations or financial condition for any future period or as of any future date.
The accompanying unaudited pro forma condensed combined financial statements of New Amneal have been prepared in accordance with Article 11 of SEC Regulation S-X. The Combination is considered a business combination and therefore will be accounted for under the acquisition method of accounting in accordance with ASC 805. Although Impax is considered the legal acquirer of Amneal, for accounting purposes, Amneal is considered to be acquiring Impax in the Combination. Consequently, this transaction will be accounted for as a reverse acquisition.
Amneal was determined to be the accounting acquirer based upon the terms of the BCA and other factors including:
 
 	•	 	immediately after the Combination, Impax Stockholders immediately prior to the effective time of the Combination owned approximately 25.0% of the aggregate number of New Amneal Shares, and Amneal Holdings owned approximately 75.0% of the aggregate number of New Amneal Shares, in	
 
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 	each case calculated on a fully diluted basis for New Amneal and on an as converted to Class A common stock basis; and	
 
 	•	 	directors appointed by Amneal will hold a majority of board seats of New Amneal.	
Under the acquisition method of accounting for purposes of these unaudited pro forma condensed combined financial statements, management of Impax and Amneal have determined a preliminary estimated purchase price, calculated as described in “Note 3. Estimated Purchase Price and Preliminary Purchase Price Allocation” to these unaudited pro forma condensed combined financial statements. The Impax assets acquired and liabilities assumed in connection with the Combination are recorded at their estimated acquisition date fair values. A final determination of these estimated fair values will be based on the actual net assets of Impax that exist as of the date of Closing. Differences between these preliminary estimates and the final acquisition accounting may occur and these differences could be material.
The historical combined financial information has been adjusted to give effect to pro forma events that are (1) directly attributable to the Transactions and the PIPE Investment, (2) factually supportable, and (3) with respect to the statement of operations, expected to have a continuing impact on the combined results. The unaudited pro forma condensed combined financial statements should be read in conjunction with the accompanying notes to the unaudited pro forma condensed combined financial statements. In addition, the unaudited pro forma condensed combined financial statements were based on and should be read in conjunction with:
 
 	•	 	the audited consolidated financial statements of Amneal as of December 31, 2017 and December 31, 2016 and for each of the three years in the period ended December 31, 2017 and the related notes, which are included elsewhere in this prospectus;	
 
 	•	 	the audited consolidated financial statements of Impax as of December 31, 2017 and December 31, 2016 and for each of the three years in the period ended December 31, 2017 and the related notes, which are included elsewhere in this prospectus.	
The unaudited pro forma condensed combined financial statements do not reflect the costs of any integration activities or benefits that may result from realization of future cost savings from operating efficiencies or revenue synergies that may result from the Transactions.
 
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UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET AS OF DECEMBER 31, 2017
(in thousands)

 	 	Historical
Amneal	 	 	Historical
Impax	 	 	Combination
adjustments	 	 	Financing &
other
adjustments	 	 	Non-controlling
interest
adjustments	 	 	PIPE Investment
adjustments	 	 	Pro forma	 	
 	 	(Note 4)	 	 	(Note 4)	 	 	(Note 5)	 	 	(Note 6)	 	 	(Note 7)	 	 	(Note 8)	 	 	 	 	
Assets	 				 				 				 				 				 				 				
Current assets:	 				 				 				 				 				 				 				
Cash and cash equivalents	 	$	74,166	 	 	$	181,778	 	 	$	(956,877	) (a)  	 	$	964,746	(a)  	 	$	—  	 	 	$	(20,650	) (e)  	 	$	243,163	 	
Restricted cash	 	 	3,756	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	3,756	 	
Trade accounts receivable—net	 	 	351,367	 	 	 	233,228	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	584,595	 	
Inventories	 	 	284,038	 	 	 	158,471	 	 	 	16,029	(b)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	458,538	 	
Prepaid expenses and other current assets	 	 	42,396	 	 	 	82,287	 	 	 	(1,540	) (h)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	123,143	 	
Assets held for sale	 	 	—  	 	 	 	32,266	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	32,266	 	
Related party receivables	 	 	16,210	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	16,210	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total current assets	 	 	771,933	 	 	 	688,030	 	 	 	(942,388	) 	 	 	964,746	 	 	 	—  	 	 	 	(20,650	) 	 	 	1,461,671	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Property, plant and equipment—net	 	 	486,758	 	 	 	124,813	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	611,571	 	
Goodwill	 	 	26,444	 	 	 	207,329	 	 	 	(93,117	) (d)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	140,656	 	
Intangible assets—net	 	 	44,599	 	 	 	262,467	 	 	 	1,398,733	(c)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	1,705,799	 	
Deferred income taxes—net	 	 	898	 	 	 	—  	 	 	 	429	(f)  	 	 	79,431	(e)  	 	 	—  	 	 	 	239,443	(a,d)  	 	 	320,201	 	
Other assets	 	 	11,257	 	 	 	61,136	 	 	 	(856	) (e)  	 	 	1,925	(d)  	 	 	—  	 	 	 	—  	 	 	 	73,462	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total assets	 	$	1,341,889	 	 	$	1,343,775	 	 	$	362,801	 	 	$	1,046,102	 	 	$	—  	 	 	$	218,793	 	 	$	4,313,360	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Liabilities and Shareholders’ (Deficit) Equity	 				 				 				 				 				 				 				
Current liabilities:	 				 				 				 				 				 				 				
Accounts payable	 	$	70,013	 	 	$	81,093	 	 	$	—  	 	 	$	—  	 	 	$	—  	 	 	$	—  	 	 	$	151,106	 	
Current portion of debt and capital lease obligations—net	 	 	89,267	 	 	 	17,848	 	 	 	(17,848	) (i)  	 	 	(62,171	) (b)  	 	 	—  	 	 	 	—  	 	 	 	27,096	 	
Accrued expenses and other current liabilities	 	 	124,981	 	 	 	240,602	 	 	 	(651	) (g)  	 	 	(982	) (c)  	 	 	—  	 	 	 	—  	 	 	 	363,950	 	
Liabilities held for sale	 	 	—  	 	 	 	7,170	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	7,170	 	
Related party payables	 	 	12,622	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	12,622	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total current liabilities	 	 	296,883	 	 	 	346,713	 	 	 	(18,499	) 	 	 	(63,153	) 	 	 	—  	 	 	 	—  	 	 	 	561,944	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Long-term debt and capital lease obligations—net	 	 	1,356,099	 	 	 	769,524	 	 	 	(769,524	) (i)  	 	 	1,258,563	(b)  	 	 	—  	 	 	 	—  	 	 	 	2,614,662	 	
Deferred income taxes	 	 	2,491	 	 	 	3,226	 	 	 	(3,226	) (f)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	2,491	 	
Other long-term liabilities	 	 	46,955	 	 	 	37,111	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	214,671	(a)  	 	 	298,737	 	
Related party payables—long-term	 	 	15,043	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	15,043	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total liabilities	 	 	1,717,471	 	 	 	1,156,574	 	 	 	(791,249	) 	 	 	1,195,410	 	 	 	—  	 	 	 	214,671	 	 	 	3,492,877	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Shareholders’ (Deficit) Equity	 				 				 				 				 				 				 				
Members’ equity	 	 	2,716	 	 	 	—  	 	 	 	—  	 	 	 	(2,716	) (g)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Preferred stock	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Impax common stock	 	 	—  	 	 	 	742	 	 	 	(742	) (j)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Class A common stock	 	 	—  	 	 	 	—  	 	 	 	733	(j)  	 	 	—  	 	 	 	—  	 	 	 	345	(b)  	 	 	1,078	 	
Class B-1 common stock	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	123	(b)  	 	 	123	 	
Class B common stock	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	2,250	(g)  	 	 	—  	 	 	 	(468	) (b)  	 	 	1,782	 	
Treasury stock	 	 	—  	 	 	 	(2,157	) 	 	 	2,157	(j)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Additional paid in capital	 	 	8,562	 	 	 	559,632	 	 	 	812,112	(j)  	 	 	(140,127	) (g)  	 	 	(557,630	) 	 	 	260,088	(c,d,e)  	 	 	942,637	 	
Accumulated other comprehensive (loss) income	 	 	(14,232	) 	 	 	1,429	 	 	 	(1,429	) (j)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(14,232	) 	
(Accumulated deficit) retained earnings	 	 	(382,785	) 	 	 	(372,445	) 	 	 	341,219	(j)  	 	 	(8,715	) (g)  	 	 	—  	 	 	 	—  	 	 	 	(422,726	) 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total New Amneal shareholders’ (deficit) equity	 	 	(385,739	) 	 	 	187,201	 	 	 	1,154,050	 	 	 	(149,308	) 	 	 	(557,630	) 	 	 	260,088	 	 	 	508,662	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Non-controlling interests	 	 	10,157	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	557,630	 	 	 	(255,966	) (c)  	 	 	311,821	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total shareholders’ (deficit) equity	 	 	(375,582	) 	 	 	187,201	 	 	 	1,154,050	 	 	 	(149,308	) 	 	 	—  	 	 	 	4,122	 	 	 	820,483	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total liabilities and shareholders’ (deficit) equity	 	$	1,341,889	 	 	$	1,343,775	 	 	$	362,801	 	 	$	1,046,102	 	 	$	—  	 	 	$	218,793	 	 	$	4,313,360	 	

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UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2017
(in thousands except share and per share amounts)

 	  	Historical
Amneal	 	 	Historical
Impax	 	 	Combination
adjustments	 	 	Financing &
other
adjustments	 	 	Non-controlling
interest
adjustments	 	 	PIPE Investment
adjustments	 	 	Pro forma	 	
 	  	 	 	 	(Note 4)	 	 	(Note 5)	 	 	(Note 6)	 	 	(Note 7)	 	 	(Note 8)	 	 	 	 	
Net revenue	  	$	1,033,654	 	 	$	775,787	 	 	$	—  	 	 	$	—  	 	 	$	—  	 	 	$	—  	 	 	$	1,809,441	 	
Cost of goods sold	  	 	480,033	 	 	 	432,464	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	912,497	 	
Depreciation and amortization	  	 	27,443	 	 	 	102,659	 	 	 	31,116	(c)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	161,218	 	
Cost of goods sold impairment charges	  	 	—  	 	 	 	96,865	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	96,865	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Gross profit	  	 	526,178	 	 	 	143,799	 	 	 	(31,116	) 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	638,861	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Selling, general and administrative	  	 	113,826	 	 	 	212,664	 	 	 	(20,774	) (m)  	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	305,716	 	
Research and development	  	 	157,550	 	 	 	77,663	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	235,213	 	
In-process research and development impairment charges	  	 	—  	 	 	 	192,809	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	192,809	 	
Legal settlement gain	  	 	(21,467	) 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(21,467	) 	
Fixed asset impairment charge	  	 	—  	 	 	 	82,508	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	82,508	 	
Change in fair value of contingent consideration	  	 	—  	 	 	 	(31,048	) 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(31,048	) 	
Development contract settlement	  	 	(7,845	) 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(7,845	) 	
Other operating expenses	  	 	39,011	 	 	 	11,895	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	50,906	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating profit (loss)	  	 	245,103	 	 	 	(402,692	) 	 	 	(10,342	) 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(167,931	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Other expense:	  				 				 				 				 				 				 				
Interest expense, net	  	 	(73,640	) 	 	 	(54,627	) 	 	 	53,412	(l)  	 	 	(77,809	) (h)  	 	 	—  	 	 	 	—  	 	 	 	(152,664	) 	
Foreign exchange gain	  	 	29,092	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	29,092	 	
Loss on sale of certain international businesses	  	 	(29,232	) 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(29,232	) 	
Gain on sale of intangible assets	  	 	—  	 	 	 	17,236	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	17,236	 	
Other expense, net	  	 	—  	 	 	 	(10,878	) 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(10,878	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total other expense, net	  	 	(73,780	)  	 	 	(48,269	)  	 	 	53,412	 	 	 	(77,809	)  	 	 	—  	 	 	 	—  	 	 	 	(146,446	)  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Income (loss) before income tax	  	 	171,323	 	 	 	(450,961	) 	 	 	43,070	 	 	 	(77,809	) 	 	 	—  	 	 	 	—  	 	 	 	(314,377	) 	
Income tax provision	  	 	1,998	 	 	 	18,326	 	 	 	(9,897	) (k)  	 	 	6,523	(f)  	 	 	—  	 	 	 	10,801	(d)  	 	 	27,751	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income (loss)	  	 	169,325	 	 	 	(469,287	) 	 	 	52,967	 	 	 	(84,332	) 	 	 	—  	 	 	 	(10,801	) 	 	 	(342,128	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income (loss) attributable to non-controlling interests	  	 	1,677	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(237,512	) 	 	 	48,886	(c)  	 	 	(186,949	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income(loss) attributable to New Amneal	  	$	167,648	 	 	$	(469,287	)  	 	$	52,967	 	 	$	(84,332	)  	 	$	237,512	 	 	$	(59,687	)  	 	$	(155,179	)  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net loss per common share (Note 9):	  				 				 				 				 				 				 				
Basic	  				 	$	(6.53	) 	 				 				 				 				 	$	(1.29	) 	
	  				 	 	 	 	 				 				 				 				 	 	 	 	
Diluted	  				 	$	(6.53	) 	 				 				 				 				 	$	(1.29	) 	
	  				 	 	 	 	 				 				 				 				 	 	 	 	
Weighted-average common shares outstanding (Note 9):	  				 				 				 				 				 				 				
Basic	  				 	 	71,856,950	 	 				 				 				 				 	 	120,366,394	 	
	  				 	 	 	 	 				 				 				 				 	 	 	 	
Diluted	  				 	 	71,856,950	 	 				 				 				 				 	 	120,366,394	 	

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 NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
 
1.	DESCRIPTION OF THE TRANSACTIONS	
Pursuant to the terms of the BCA, Impax and Amneal combined the generics and specialty pharmaceutical business of Impax with the generic drug development and manufacturing business of Amneal in a transaction that represents an opportunity to create a new generics company, New Amneal through the Combination. The Combination includes: (i) the Impax Merger, upon the completion of which each outstanding Impax Share (other than Cancelled Shares), was converted into the right to receive one share of Class A common stock, (ii) the conversion of Impax to a Delaware limited liability company named Impax Laboratories, LLC, (iii) the contribution by Holdco of all of the equity interests of Impax to Amneal in exchange for certain equity interests of Amneal, (iv) the recapitalization of Amneal pursuant to which the Existing Amneal Members received a single class of limited liability company interests in Amneal, which was subsequently assigned and transferred to Amneal Holdings, and (v) the issuance by New Amneal of shares of Class B common stock to the Existing Amneal Members, which was subsequently assigned and transferred to Amneal Holdings. As a result of the Combination, Impax Stockholders immediately prior to Closing collectively held approximately 25.0%, and Amneal Holdings held approximately 75.0%, of the voting and economic interests in the combined businesses of Impax and Amneal under New Amneal.
In order to finance the Combination, Amneal consummated the following transactions (collectively, the “Financing”, and together with the Combination, the “Transactions”): (i) borrowing of $2,700.0 million in aggregate principal amount of new senior secured term loans (the “New Term Facility,”), (ii) entry into a new senior secured asset based revolving credit facility with borrowing capacity of up to $500.0 million (the “New ABL Facility”) under which no amounts were drawn and outstanding upon Closing, and (iii) use the proceeds of the initial borrowings under the New Term Facility, as well as cash on hand, to finance the repayment of both companies’ historical outstanding debt obligations.
Immediately upon the consummation of the Transactions, Amneal Holdings owned a majority interest in New Amneal with an effective voting interest of approximately 75.0% on a fully diluted and as converted basis through their ownership of Class B common stock. Amneal Holdings also held a corresponding number of Amneal Common Units, which entitles it to approximately 75.0% of the economic interests in the combined businesses of Impax and Amneal. New Amneal owned an interest in Amneal of approximately 25.0% and was its managing member. As a result, New Amneal consolidates the financial results of Amneal and will report a non-controlling interest related to the Amneal Common Units held by Amneal Holdings in the consolidated financial statements. Upon the consummation of the Transactions, the Amneal Common Units will become redeemable at the option of the holder for shares of Class A common stock or, in the case of the PIPE Investment, Class B-1 common stock on a one-for-one basis or, at New Amneal’s election, their per-share cash equivalent.
In connection with the Transactions, Amneal Holdings has entered into definitive Share Purchase Agreements with select institutional investors, including TPG and funds affiliated with Fidelity, which provides for the PIPE Investment through a private placement of certain shares of Class A common stock and Class B-1 common stock. Pursuant to the terms of the purchase agreements, upon the Closing of the Combination, Amneal Holdings exercised its right to cause Amneal to redeem approximately 15.0% of their ownership interests in Amneal in exchange for a corresponding number of unregistered shares of Class A common stock or Class B-1 common stock. The shares of Class A common stock and Class B-1 common stock received in the Redemption were sold immediately following the Closing by Amneal Holdings to the PIPE Investors through a private placement at a per share purchase price of $18.25 for gross proceeds of $855.0 million. Following the PIPE Investment, the PIPE Investors owned collectively approximately 15% of the New Amneal Shares on a fully diluted and as converted basis, with TPG owning all outstanding shares of Class B-1 common stock.
As a result of the PIPE Investment, the voting and economic interest of approximately 75.0% held by Amneal Holdings immediately upon Closing, was reduced by approximately 15.0%. As such, the overall
 
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interest percentage held by non-controlling interest holders upon the consummation of the Combination and PIPE Investment will be approximately 60.0%.
 
2.	BASIS OF PRESENTATION	
The unaudited pro forma condensed combined financial statements present the pro forma condensed combined financial position and results of operations of New Amneal based upon the historical financial statements of Amneal and Impax, after giving effect to the Transactions and the PIPE Investment and are intended to reflect the impact of such on New Amneal’s consolidated financial statements.
The Combination will be accounted for as a business combination, with Amneal treated as the “acquirer” and Impax treated as the “acquired” company for financial reporting purposes. Under the acquisition method of accounting, the total estimated purchase price of an acquisition is allocated to the net tangible and intangible assets based on their estimated fair values. Such valuations are based on available information and certain assumptions that management of Impax and Amneal believe are reasonable. The preliminary allocation of the estimated purchase price to the tangible and intangible assets acquired and liabilities assumed is based on various preliminary estimates. Accordingly, the pro forma adjustments are preliminary and have been made solely for the purpose of providing these unaudited pro forma condensed combined financial statements. Differences between these preliminary estimates and the final acquisition accounting, which will be based on the actual net tangible and identifiable intangible assets that exist as of the closing of the Transactions, may occur and these differences could be material. The differences, if any, could have a material impact on the accompanying unaudited pro forma condensed combined financial statements and New Amneal’s future results of operations and financial position.
The pro forma financial statements include certain reclassifications to align the historical financial statement presentation of Impax and Amneal. See “Note 4. Reclassifications” herein for additional information on the reclassifications.
The unaudited pro forma condensed combined statement of operations does not reflect the non-recurring expenses expected to be incurred in connection with the Transactions, including fees to attorneys, accountants and other professional advisors, the write-off of deferred financing costs, and other transaction-related costs that will not be capitalized. However, the impact of such expenses are reflected in the unaudited pro forma condensed combined balance sheet as an increase to accumulated deficit and a corresponding decrease to cash.
Further, the unaudited pro forma condensed combined financial statements do not reflect the restructuring or integration activities that have yet to be determined or other costs that may be incurred to achieve cost or growth synergies of New Amneal. As no assurance can be made that the costs will be incurred or the cost or growth synergies will be achieved, no adjustment has been made.
 
3.	ESTIMATED PURCHASE PRICE AND PRELIMINARY PURCHASE PRICE ALLOCATION	
The pro forma adjustments include a preliminary allocation of the estimated purchase price of Impax to the estimated fair values of assets acquired and liabilities assumed at the acquisition date. The final allocation of the purchase price could differ materially from the preliminary allocation primarily because market prices, interest rates and other valuation variables will fluctuate over time and be different at the time of completion of the Transactions compared to the amounts assumed for the pro forma adjustments.
Estimated Purchase Price
Because of the change of control that results from the Combination, it is considered to be a reverse acquisition and Amneal is deemed to be acquiring Impax for accounting purposes. The measurement of the consideration transferred by Amneal for its interest in Impax is based on the fair value of the equity interest that Amneal would have had to issue to give the Impax shareholders the same percentage equity interest in
 
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New Amneal, which is equal to approximately 25.0%. However, the fair value of the equity of Impax is used to calculate the preliminary consideration for the Combination because it has a quoted market price, the Combination involves only the exchange of equity and Amneal is a private company whose value is difficult to measure. The estimated purchase price, net of cash acquired, is calculated as follows:

(in thousands except share amount and share price)	  	 	 	
Fully diluted Impax share number (1)	  	 	74,998,720	 	
Impax closing share price as of May 4, 2018	  	$	18.30	 	
	  	 	 	 	
Preliminary equity consideration	  	 	1,372,477	 	
	  	 	 	 	
Extinguishment of Impax’s historical debt obligations including accrued and unpaid interest	  	 	925,651	 	
Less: cash acquired	  	 	(181,778	) 	
	  	 	 	 	
Estimated purchase price, net of cash acquired	  	$	2,116,350	 	

(1)	Represents the number of outstanding Impax shares on a fully diluted basis per the BCA, calculated as the sum of 73.5 million shares of Impax common stock issued and outstanding (including Impax restricted shares, assuming that tax withholding with respect to vesting of the Impax restricted shares is effectuated by net cashless settlement) plus 1.6 million shares to be issued related to outstanding options (the vesting of which will be accelerated as a result of change-in-control provisions within the award agreements).	
The preliminary value of the consideration does not purport to represent the actual value of the total consideration that will be received by the Impax Stockholders when the Combination is completed. In accordance with U.S. GAAP, the fair value of the equity securities comprising the consideration will be measured on the closing date of the transactions at the then-current market price per share of Impax Common Stock. This requirement will likely result in a difference from the price per share assumed in the calculation, and that difference may be material. For example, an increase or decrease of 10% in the price of Impax Common Stock upon Closing from the price of Impax Common Stock assumed in these unaudited condensed combined pro forma financial statements would change the value of the preliminary consideration by approximately $137.2 million, which would be reflected as a corresponding increase or decrease to goodwill.
 
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Preliminary purchase price allocation
The following is a summary of the preliminary purchase price allocation giving effect to the Combination as if it had been consummated on December 31, 2017:

(in thousands)	  	 	 	
Trade accounts receivable—net	  	$	233,228	 	
Inventories	  	 	174,500	 	
Prepaid expenses and other current assets	  	 	80,747	 	
Assets held for sale	  	 	32,266	 	
Property, plant and equipment	  	 	124,813	 	
Goodwill	  	 	114,212	 	
Intangible assets	  	 	1,661,200	 	
Deferred income taxes—net	  	 	429	 	
Other assets	  	 	60,280	 	
	  	 	 	 	
Total assets acquired	  	 	2,481,675	 	
	  	 	 	 	
Accounts payable	  	 	81,093	 	
Liabilities held for sale	  	 	7,170	 	
Accrued expenses and other current liabilities	  	 	239,951	 	
Other long-term liabilities	  	 	37,111	 	
	  	 	 	 	
Total liabilities assumed	  	 	365,325	 	
	  	 	 	 	
Net assets acquired	  	$	2,116,350	 	

4.	RECLASSIFICATIONS	
Certain reclassifications have been made to amounts in the historical consolidated financial information of Impax and Amneal to conform the financial statement presentation, including reclassifying the following:
Impax reclassifications in the unaudited pro forma condensed combined statement of operations

 	 	Year ended December 31, 2017	 	
(in thousands)	 	Before
Reclassification	 	 	Reclassification	 	 	After
Reclassification	 	
Impax Generics revenues—net	 	$	549,077	 	 	$	(549,077	) (a)  	 	$	—  	 	
Impax Specialty Pharma revenues—net	 	 	226,710	 	 	 	(226,710	) (a)  	 	 	—  	 	
Net revenues	 	 	—  	 	 	 	775,787	(a)  	 	 	775,787	 	
Cost of revenues	 	 	535,123	 	 	 	(535,123	) (b)  	 	 	—  	 	
Cost of revenues impairment charges	 	 	96,865	 	 	 	(96,865	) (c)  	 	 	—  	 	
Cost of goods sold	 	 	—  	 	 	 	432,464	(b,d)  	 	 	432,464	 	
Cost of goods sold impairment charges	 	 	—  	 	 	 	96,865	(c)  	 	 	96,865	 	
Depreciation and amortization	 	 	—  	 	 	 	102,659	(d)  	 	 	102,659	 	
Selling, general and administrative	 	 	216,270	 	 	 	(3,606	) (e)  	 	 	212,664	 	
Research and development	 	 	80,847	 	 	 	(3,184	) (e)  	 	 	77,663	 	
Other operating expenses	 	 	5,105	 	 	 	6,790	(e)  	 	 	11,895	 	
Other, net	 	 	(10,878	) 	 	 	10,878	(f)  	 	 	—  	 	
Other expense, net	 	 	—  	 	 	 	(10,878	) (f)  	 	 	(10,878	) 	
Provision for income taxes	 	 	18,326	 	 	 	(18,326	) (g)  	 	 	—  	 	
Income tax provision	 	 	—  	 	 	 	18,326	(g)  	 	 	18,326	 	

(a)	Represents the reclassification of Impax Generic revenues – net and Impax Specialty Pharma revenues – net on Impax’s statement of operations into net revenues to conform to Amneal’s statement of income presentation.	
 
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(b)	Represents the reclassification of cost of revenues on Impax’s statement of operations into cost of goods sold to conform to Amneal’s statement of income presentation.	
(c)	Represents the reclassification of cost of revenues impairment charges on Impax’s statement of operations into cost of goods sold impairment charges to conform to Amneal’s statement of income presentation.	
(d)	Represents the reclassification of $102.7 million for the year ended December 31, 2017 reported in cost of revenues on Impax’s statement of operations into depreciation and amortization to conform to Amneal’s statement of income presentation.	
(e)	Represents the reclassification of depreciation and amortization reported in selling, general and administrative and research and development on Impax’s statement of operations into other operating expenses to conform to Amneal’s statement of income presentation.	
(f)	Represents the reclassification of other, net on Impax’s statement of operations into other expenses, net to conform to Amneal’s statement of income presentation.	
(g)	Represents the reclassification of provision for income taxes on Impax’s statement of operations into income tax provision to conform to Amneal’s statement of income presentation.	
Impax reclassifications in the unaudited pro forma condensed combined balance sheet as of December  31, 2017

(in thousands)	  	Before
Reclassification	 	  	Reclassification	 	 	After
Reclassification	 	
Accounts receivable, net	  	$	240,753	 	  	$	(240,753	) (h)  	 	$	—  	 	
Trade accounts receivable—net	  	 	—  	 	  	 	233,228	(h,k)  	 	 	233,228	 	
Inventory, net	  	 	158,471	 	  	 	(158,471	) (i)  	 	 	—  	 	
Inventories	  	 	—  	 	  	 	158,471	(i)  	 	 	158,471	 	
Other non-current assets	  	 	61,136	 	  	 	(61,136	) (j)  	 	 	—  	 	
Other assets	  	 	—  	 	  	 	61,136	(j)  	 	 	61,136	 	
Accrued expenses and other current liabilities	  	 	248,127	 	  	 	(7,525	) (k)  	 	 	240,602	 	
Current portion of long-term debt, net	  	 	17,848	 	  	 	(17,848	) (l)  	 	 	—  	 	
Current portion of long-term debt and capital lease obligations—net	  	 	—  	 	  	 	17,848	(l)  	 	 	17,848	 	
Long-term debt, net	  	 	769,524	 	  	 	(769,524	) (m)  	 	 	—  	 	
Long-term debt and capital lease obligations—net	  	 	—  	 	  	 	769,524	(m)  	 	 	769,524	 	
Other non-current liabilities	  	 	37,111	 	  	 	(37,111	) (n)  	 	 	—  	 	
Other long-term liabilities	  	 	—  	 	  	 	37,111	(n)  	 	 	37,111	 	

(h)	Represents the reclassification of accounts receivable, net on Impax’s balance sheet into trade accounts receivable—net to conform to Amneal’s balance sheet presentation.	
(i)	Represents the reclassification of inventory, net on Impax’s balance sheet into inventories to conform to Amneal’s balance sheet presentation.	
(j)	Represents the reclassification of other non-current assets on Impax’s balance sheet into other assets to conform to Amneal’s balance sheet presentation.	
(k)	Represents the reclassification of the $7.5 million shelf-stock adjustments reported in accrued and other current liabilities on Impax’s balance sheet into trade accounts receivable—net to conform to Amneal’s balance sheet presentation.	
(l)	Represents the reclassification of current portion of long-term debt, net on Impax’s balance sheet into current portion of long-term debt and capital lease obligations, net to conform to Amneal’s balance sheet presentation.	
(m)	Represents the reclassification of long-term debt, net on Impax’s balance sheet into long-term debt and capital lease obligations, net to conform to Amneal’s balance sheet presentation.	
(n)	Represents the reclassification of other non-current liabilities on Impax’s balance sheet into other long-term liabilities to conform to Amneal’s balance sheet presentation.	
 
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Amneal reclassifications in the unaudited pro forma combined balance sheet as of December  31, 2017

(in thousands)	  	Before
Reclassification	 	  	Reclassification	 	 	After
Reclassification	 	
Other assets	  	$	12,155	 	  	$	(898	) (o)  	 	$	11,257	 	
Deferred income taxes—net	  	 	—  	 	  	 	898	(o)  	 	 	898	 	

(o)	Represents the reclassification of deferred income tax assets reported in other assets on Amneal’s balance sheet into deferred income taxes—net to conform to Impax’s balance sheet presentation.	
 
5.	COMBINATION RELATED PRO FORMA ADJUSTMENTS	
The unaudited pro forma condensed combined financial statements reflect the following adjustments related to the Combination:
 
 	(a)	Adjustment to cash represents the following:	

(in thousands)	  	As of
December 31, 2017	 	
Repayment of Impax’s historical debt obligations including accrued and unpaid interest	  	$	(925,651	) 	
Cash paid for transaction costs expected to be incurred through the consummation of the Transactions (1)	  	 	(31,226	) 	
	  	 	 	 	
Total adjustment to cash	  	$	(956,877	) 	

(1)	These fees are recorded against accumulated deficit solely for the purposes of this presentation. As there is no continuing impact of these transaction costs on New Amneal’s results, the fees are not included in the unaudited pro forma condensed combined statement of operations.	
 
 	(b)	Adjustment to state acquired inventory, which consists primarily of raw materials and finished goods, at its preliminary fair value. The preliminary fair value considers replacement cost for materials and net realizable value for work-in-process and finished goods. New Amneal will recognize the increased value of inventory in cost of goods sold as the inventory is sold, which for purposes of these unaudited pro forma condensed combined financial statements is assumed to occur within the first year after the Transactions. As there is no continuing impact of the inventory adjustment to New Amneal’s results, the cost of goods sold associated with the increased inventory value is not included in the unaudited pro forma condensed combined statement of operations.	
 
 	(c)	Adjustment to state acquired identifiable intangible assets, consisting of tradenames, acquired in-process research and development product rights and marketed product rights at their preliminary fair values, and to increase amortization expense accordingly. The estimated fair values were determined using the “income approach,” a valuation technique that estimates the fair value of an asset based on market participant expectations of the cash flows that an asset would generate over its remaining useful life. The following table presents information about the intangible assets:	

 	 	 	 	 	Amortization expense	 	
(in thousands)	 	Fair value	 	 	Year ended
December 31, 2017	 	
Total acquired indefinite lived intangible assets	 	$	375,900	 	 	$	—  	 	
Total acquired finite lived intangible assets (1)	 	 	1,285,300	 	 	 	99,491	 	
	 	 	 	 	 	 	 	 	
Total acquired intangible assets	 	 	1,661,200	 	 	 	99,491	 	
Less: Impax’s historical intangible assets	 	 	(262,467	) 	 	 	(68,375	) 	
	 	 	 	 	 	 	 	 	
Pro forma adjustment	 	$	1,398,733	 	 	$	31,116	 	

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(1)	The adjustment to amortization expense was determined using the straight line method over a weighted-average estimated useful life of 12.92 years.	
With other assumptions held constant, a 10% change to the fair value of acquired finite lived intangible assets would result in an increase or decrease to amortization expense of $9.9 million annually.
 
 	(d)	Adjustment to eliminate Impax’s historical goodwill of $207.3 million and to recognize goodwill related to the proposed Combination of $114.2 million. Goodwill is calculated as the difference between the estimated purchase price and the fair value of identifiable tangible and intangible assets acquired net of liabilities assumed. The adjustment is preliminary and subject to change based upon final determination of the fair value of assets acquired and liabilities assumed and finalization of the purchase price.	
 
 	(e)	Adjustment to eliminate $0.9 million of historical deferred financing fee assets associated with Impax’s historical revolving credit facility.	
 
 	(f)	New Amneal will be subject to U.S. federal and state income taxes and will file income tax returns for U.S. federal and certain state jurisdictions. All tax attributes and related tax adjustments are recorded based on New Amneal’s proportionate share of its ownership interest in assets held directly by Amneal (a tax-transparent entity). Represents the estimated deferred tax impacts related to (i) acquisition accounting adjustments primarily as a result of the step-up in fair value of intangible assets and inventory, and (ii) the historical deferred taxes recorded by Impax that are allocable to the Existing Amneal Owners. The incremental deferred tax impacts were calculated based on the tax effect of the estimated step-up in book basis of the net assets of Impax, excluding the amount attributable to goodwill, using an estimated statutory tax rate of 23.5% (based on recently enacted U.S. tax law). This rate does not reflect New Amneal’s effective tax rate, which includes other items and may be significantly different than the rates assumed for purposes of preparing these statements.	
 
 	(g)	Adjustment to eliminate $0.7 million of accrued interest associated with Impax’s historical debt obligations.	
 
 	(h)	Adjustment to eliminate Impax’s historical deferred rent of $1.5 million, resulting from the recognition of escalating rent payments on a straight-line basis over the lease term as required by GAAP. The deferred rent balance is eliminated through acquisition accounting because it does not meet the definition of an acquired asset or assumed liability.	
 
 	(i)	Adjustment to extinguish Impax’s outstanding debt obligations of $787.4 million which includes $137.6 million of debt discount and unamortized deferred financing fees. The cash to be paid for the extinguishment of Impax’s outstanding debt obligations totaled $925.0 million plus $0.7 million of accrued and unpaid interest, for a total cash payment of $925.7 million as described in Note 3. The difference between the cash to be paid and the carrying amount represents the loss on debt extinguishment from the write off of the debt discount and unamortized fees noted above of $137.6 million. The write-off of the debt discount and fees is recorded against accumulated deficit solely for the purposes of this presentation. As there is no continuing impact of the write-off on New Amneal’s results, the debt discount and fees are not included in the unaudited pro forma condensed combined statement of operations.	
 
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 	(j)	Adjustment to the components of permanent equity represent the following:	

 	  	As of December 31, 2017	 	
(in thousands)	  	Eliminate
Historical Impax
Equity (1)	 	 	Record the
Combination
Consideration	 	  	Other
Equity
Adjustments (2)	 	 	Total
Pro Forma
Adjustment	 	
Preferred stock	  	$	—  	 	 	$	—  	 	  	$	—  	 	 	$	—  	 	
Impax common stock	  	 	(742	) 	 	 	—  	 	  	 	—  	 	 	 	(742	) 	
Class A Common Stock	  	 	—  	 	 	 	733	 	  	 	—  	 	 	 	733	 	
Class B Common Stock	  	 	—  	 	 	 	—  	 	  	 	—  	 	 	 	—  	 	
Treasury stock, at cost	  	 	2,157	 	 	 	—  	 	  	 	—  	 	 	 	2,157	 	
Additional paid-in capital	  	 	(559,632	) 	 	 	1,371,744	 	  	 	—  	 	 	 	812,112	 	
Accumulated other comprehensive income	  	 	(1,429	) 	 	 	—  	 	  	 	—  	 	 	 	(1,429	) 	
(Accumulated deficit) retained earnings	  	 	372,445	 	 	 	—  	 	  	 	(31,226	) 	 	 	341,219	 	
	  	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	
Subtotal—stockholders’ (deficit) equity	  	$	(187,201	) 	 	$	1,372,477	 	  	$	(31,266	) 	 	$	1,154,050	 	

(1)	Represents the elimination of historical Impax shareholders’ (deficit) equity.	
(2)	Includes the estimated transaction costs expected to be incurred through the consummation of the Combination. These costs are recorded against accumulated deficit solely for the purposes of this presentation. As there is no continuing impact of these transaction costs on New Amneal’s results, the fees are not included in the unaudited pro forma condensed combined statement of operations.	
 
 	(k)	New Amneal will be subject to U.S. federal and state income taxes and will file income tax returns for U.S. federal and certain state jurisdictions. All tax attributes and related tax adjustments are recorded based on New Amneal’s proportionate share of its ownership interest in assets held directly by Amneal (a tax-transparent entity). Adjustment to record the income tax impacts of (i) the pro forma adjustments, and (ii) the 75% share of Impax unadjusted income tax expense which is allocable to the Existing Amneal Owners. The incremental tax impacts were calculated using an estimated statutory tax rate of 37.1%. This rate does not reflect New Amneal’s effective tax rate, which includes other items and may be significantly different than the rates assumed for purposes of preparing these statements.	
 
 	(l)	Adjustment to eliminate the historical interest expense associated with Impax’s historical debt obligations for the unaudited pro forma condensed combined statement of operations.	
 
 	(m)	Represents the elimination of one-time transaction costs directly attributable to the Combination of $20.8 million for the year ended December 31, 2017.	
 
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6.	FINANCING AND OTHER RELATED PRO FORMA ADJUSTMENTS	
The unaudited pro forma condensed combined financial statements reflect the following adjustments related to the Financing, the proceeds of which were used in part to fund the Combination:
 
 	(a)	Adjustment to cash represents the following:	

(in thousands)	  	As of
December 31, 2017	 	
Repayment of Amneal’s historical debt obligations including accrued and unpaid interest	  	$	(1,454,142	) 	
Amounts borrowed under the New Term Facility	  	 	2,700,000	 	
Cash paid for fees related to the New Term Facility	  	 	(59,163	) 	
Cash paid for fees related to the New ABL Facility	  	 	(1,925	) 	
Cash distribution to Existing Amneal Members’	  	 	(220,024	) 	
	  	 	 	 	
Total adjustment to cash	  	$	964,746	 	

 	(b)	Adjustment to debt represents the following:	

(in thousands)	  	As of
December 31,
2017	 	
Current portion of debt:	  				
Extinguishment of Amneal’s historical current debt obligations	  	$	(89,171	) 	
Record current portion of the New Term Facility (1)	  	 	27,000	 	
	  	 	 	 	
Total adjustment to current portion of debt	  	$	(62,171	) 	
	  	 	 	 	
Debt, net of current portion:	  				
Extinguishment of Amneal’s historical long-term debt obligations	  	$	(1,355,274	) 	
Record noncurrent portion of the New Term Facility (1)	  	 	2,673,000	 	
Less: financing fees	  	 	(59,163	) 	
	  	 	 	 	
Total adjustment to debt, net of current portion	  	$	1,258,563	 	

(1)	Pursuant to the terms of the credit agreement, Amneal is required to repay amounts borrowed under the New Term Facility in quarterly installments of 0.25% of the total principal amount through the maturity date, at which time the remaining principal balance will be due.	
 
 	(c)	Adjustment to eliminate $1.0 million of accrued interest associated with Amneal’s historical debt obligations.	
 
 	(d)	Adjustment to record the new deferred financing fee asset of $1.9 million associated with New ABL Facility.	
 
 	(e)	New Amneal will be subject to U.S. federal and state income taxes and will file income tax returns for U.S. federal and certain state jurisdictions. All tax attributes and related tax adjustments are recorded based on New Amneal’s proportionate share of its ownership interest in assets held directly by Amneal (a tax-transparent entity). Represents an adjustment of $79.4 million as of December 31, 2017 to the unaudited pro forma condensed combined balance sheet. The adjustment records the historical deferred income taxes associated with assets held directly by Amneal that are allocable to New Amneal based on its proportionate 25.0% ownership interests in the assets held directly by Amneal using an estimated statutory rate of 23.5% (based on recently enacted U.S. tax law). This rate does not reflect New Amneal’s effective tax rate, which includes other items and may be significantly different than the rates assumed for purposes of preparing these statements.	
 
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 	(f)	New Amneal will be subject to U.S. federal and state income taxes and will file income tax returns for U.S. federal and certain state jurisdictions. All tax attributes and related tax adjustments are recorded based on New Amneal’s proportionate share of its ownership interest in assets held directly by Amneal (a tax-transparent entity). Represents an adjustment of $6.5 million for the year ended December 31, 2017. The adjustments record the historical taxes associated with assets held directly by Amneal that are allocable to New Amneal based on its proportionate 25.0% ownership interests in the assets held directly by Amneal using an estimated statutory rate of 37.1%. This rate does not reflect New Amneal’s effective tax rate, which includes other items and may be significantly different than the rates assumed for purposes of preparing these statements.	
 
 	(g)	Adjustment to the components of New Amneal equity represent the following:	

 	  	As of December 31, 2017	 	
(in thousands)	  	Distribution
to Existing
Amneal
Members (1)	 	 	Rollover Historical
Amneal
Equity (2)	 	 	Other Equity
Adjustments (3)	 	 	Total Pro Forma
Adjustment	 	
Members’ equity	  	$	(220,024	) 	 	$	217,308	 	 	$	—  	 	 	$	(2,716	) 	
Preferred stock	  	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Class A common stock	  	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Class B common stock	  	 	—  	 	 	 	2,250	 	 	 	—  	 	 	 	2,250	 	
Treasury stock, at cost	  	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Additional paid-in capital	  	 	—  	 	 	 	(219,558	) 	 	 	79,431	 	 	 	(140,127	) 	
Accumulated other comprehensive loss	  	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
(Accumulated deficit) retained earnings	  	 	—  	 	 	 	—  	 	 	 	(8,715	) 	 	 	(8,715	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Subtotal—stockholders’ (deficit) equity	  	$	(220,024	) 	 	$	—  	 	 	$	70,716	 	 	$	(149,308	) 	

(1)	Represents the distribution of all historical cash and cash equivalents of Amneal and its subsidiaries to the Existing Amneal Members immediately prior to the Closing of the Transactions.	
(2)	Represents the reclassification of member’s deficit to Class B common stock and additional paid in capital to reflect the impact of the new capital structure of New Amneal	
(3)	Includes the following (i) $8.7 million write-off of unamortized deferred financing fees related to Amneal’s historical debt obligations. The write-off of these fees is recorded against accumulated deficit solely for the purposes of this presentation. As there is no continuing impact of the write-off on New Amneal’s results, the fees are not included in the unaudited pro forma condensed combined statement of operations, and (ii) the $79.4 million impact of recording the historical Amneal taxes that will be allocable to New Amneal based on its proportionate 25.0% ownership interest in assets held directly by Amneal.	
 
 	(h)	Adjustment to interest expense consists of the following:	

(in thousands)	  	Year ended
December 31,
2017	 	
Eliminate historical Amneal interest expense	  	$	(71,108	) 	
Interest expense related to new borrowings (1)	  	 	139,898	 	
Amortization of deferred financing fees (2)	  	 	9,019	 	
	  	 	 	 	
Pro forma adjustment to interest expense	  	$	77,809	 	

(1)	Comprised of interest expense related to the New Term Facility. The weighted average cash interest rate, calculated including the effects of quarterly principal payments under the New Term Facility, is approximately 5.13%.	
A 0.125% change in the estimated interest rates on the variable rate indebtedness of $2,700.0 million at the closing of the Transactions, comprised of the New Term Facility, would result in an increase or decrease in the pro forma annual interest expense of approximately $3.4 million annually.
 
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7.	NON-CONTROLLING INTEREST ADJUSTMENTS	
Immediately upon the consummation of the Transactions, Amneal Holdings owned a majority interest in New Amneal with an effective voting interest of approximately 75.0% on a fully diluted and as converted basis through their ownership of Class B common stock. Amneal Holdings also held a corresponding number of Amneal Common Units which entitled them to approximately 75.0% of the economic interests in the combined businesses of Impax and Amneal. New Amneal owned an interest in Amneal of approximately 25.0% and was its managing member. As a result, New Amneal will consolidate the financial results of Amneal and will report a non-controlling interest related to the Amneal Common Units held by Amneal Holdings in the consolidated financial statements. Upon Closing, the Amneal Common Units became redeemable at the option of the holder for shares of Class A common stock or, in the case of the PIPE Investment, Class B-1 common stock on a one-for-one basis or, at New Amneal’s election, their per-share cash equivalent.
The non-controlling interest adjustments to the unaudited pro forma condensed combined balance sheet reflect the cumulative impact to New Amneal’s consolidated shareholders’ deficit as a result of non-controlling interests holding approximately 75.0% of the ownership rights of Amneal, as well as the corresponding impact to net loss attributable to non-controlling interests on the unaudited pro forma condensed combined statement of operations. As a result of the PIPE Investment, the voting and economic interest of approximately 75.0% held by Amneal Holdings immediately upon Closing, was reduced by approximately 15.0%. As such, the overall interest percentage held by non-controlling interest holders upon the consummation of the Combination and PIPE Investment was approximately 60.0%. Refer to “Note 8. PIPE Investment Related Pro Forma Adjustments” for information regarding the impact of the PIPE Investment on non-controlling interests. All non-controlling interest adjustments have been calculated on a pre-tax basis due to the fact that all tax attributes reflected in the unaudited pro forma condensed combined financial statements represent New Amneal’s proportionate ownership share in assets held directly by Amneal. Accordingly, income taxes associated with assets held directly by Amneal are only reflected in the consolidated financial statements of New Amneal to the extent of its 25% ownership interest in Amneal.
 
8.	PIPE INVESTMENT RELATED PRO FORMA ADJUSTMENTS	
The unaudited pro forma condensed combined financial statements reflect the following adjustments related to the PIPE Investment:
 
 	(a)	New Amneal will be subject to U.S. federal and state income taxes and will file income tax returns for U.S. federal and certain state jurisdictions. These adjustments reflect the recognition of additional deferred taxes in connection the Transactions related to historical temporary differences in the book basis as compared to the tax basis of assets held directly by Amneal that are now allocable to New Amneal, as well as the impact of the Transactions on New Amneal’s tax attributes.	
In addition, New Amneal is a party to the Tax Receivable Agreement pursuant to which, New Amneal is required to pay to Amneal Holdings and its permitted transferees 85% of the applicable cash savings, if any, in U.S. federal and state income tax that are realized in certain circumstances as a result of certain tax attributes of their Amneal Common Units sold to New Amneal and that are created as a result of (i) the redemptions of their Amneal Common Units, and (ii) tax benefits attributable to payments made under this Tax Receivable Agreement. See “Ancillary Agreements Related to the Combination—Tax Receivable Agreement.”
The net deferred tax asset adjustment of $252.6 million, resulting from the PIPE Investment, and the $214.7 million adjustment to recognize the liability related to the Tax Receivable Agreement are assuming: (1) only the Redemption associated with the PIPE Investment, (2) a share price equal to $18.25 per share, (3) an estimated 23.5% effective tax rate (based on recently enacted U.S. tax law), (4) no material changes in tax law, (5) the ability to utilize tax attributes, and (6) future Tax Receivable Agreement and exchange agreement payments.
 
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The net impact of the adjustments to net deferred taxes and the liability for the Tax Receivable Agreement have been recorded as an increase to additional paid in capital, as these adjustments arise from equity transactions of New Amneal. Additionally, because the amounts under the Tax Receivable Agreement are the sole obligation of New Amneal, no amount is allocated to non-controlling interests.
We anticipate that we will account for the income tax effects resulting from future taxable redemptions of Amneal Common Units by Amneal Holdings and its permitted transferees for shares of Class A common stock or, in the case of the PIPE Investment, Class B-1 common stock or cash by recognizing an increase in deferred tax assets, based on the enacted tax rates at the date of each exchange. Further, management will evaluate the likelihood that New Amneal will realize the benefit represented by the deferred tax asset, and, to the extent it is estimated that it is more likely than not that New Amneal will not realize the benefit, the carrying amount of the deferred tax asset will be reduced by a valuation allowance.
 
 	(b)	Adjustment to record an $0.5 million increase in par value of issued and outstanding Class A common stock and Class B-1 common stock, along with a corresponding decrease in par value of issued and outstanding Class B common stock, as a result of the cancellation of the number of shares of Class B common stock delivered to New Amneal by Existing Amneal Members as part of the Redemption.	
 
 	(c)	Represents the impact of the PIPE Investment on non-controlling interest and net loss allocable to non-controlling interest. The percentage of non-controlling interest is expected to decrease from 75.0% to approximately 60.0% as a result of the Redemption. All non-controlling interest adjustments have been calculated on a pre-tax basis due to the fact that all tax attributes reflected in the unaudited pro forma condensed combined financial statements represent New Amneal’s proportionate ownership share of Amneal. Accordingly, income taxes associated with assets held directly by Amneal are only reflected in the financial statements of New Amneal to the extent of its 40% membership interest in Amneal.	
 
 	(d)	Represents a $13.1 million deferred tax liability adjustment (which is being netted against deferred tax assets for presentation purposes) as of December 31, 2017 to the unaudited pro forma condensed combined balance sheet and corresponding adjustment to the unaudited pro forma condensed combined statement of operations of a $10.8 million increase for the year ended December 31, 2017. The adjustments record the additional 15% of historical taxes associated with assets held directly by Amneal that will be allocable to New Amneal due to the increase in their ownership interest of Amneal to approximately 40.0% as a result of the Redemption and PIPE Investment.	
 
 	(e)	Adjustment to record cash paid for transaction costs expected to be incurred as a result of the PIPE Investment. These fees are recorded against accumulated deficit solely for the purposes of this presentation. As there is no continuing impact of these transaction costs on New Amneal’s results, the fees are not included in the unaudited pro forma condensed combined statement of operations.	
 
9.	NEW AMNEAL EARNINGS PER SHARE INFORMATION	
The unaudited pro forma combined basic and diluted earnings per share (“EPS”) for the year ended December 31, 2017 are based on pro forma net loss reflecting the adjustments discussed above divided by the basic and diluted weighted-average number of common shares outstanding. New Amneal has three classes of issued and outstanding common stock; Class A common stock, Class B-1 common stock and Class B common stock. Holders of Class A common stock and holders of Class B-1 common stock have substantially identical economic rights, including rights with respect to any declared dividends or distributions of cash or property, and the right to receive proceeds on liquidation or dissolution of the New Amneal after payment of outstanding indebtedness. The two classes have different voting rights for matters submitted to a vote of stockholders, with each holders of Class A common stock entitled to one vote per share while holders of Class B-1 common stock are not entitled to any voting rights. Holders of Class B common stock are not entitled to receive any dividends or distributions, but are entitled to one vote per
 
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share. At any time at the option of the holder, the shares of Class B-1 common stock are convertible into, and the Amneal Common Units underlying shares of Class B common stock are redeemable (with the accompanying cancellation of such shares of Class B common stock) for, shares of Class A common stock on a share-for-share basis. New Amneal has the option to require the holders of Class B-1 common stock to convert their shares into Class A common stock upon the earlier of one year from the date of Closing or when the holders of Class B-1 common stock appoint a director to the board of directors. In addition, shares of Class B-1 common stock will be automatically converted into a like number of shares of Class A common stock upon transfer to any person or entity who is not a permitted transferee.
The two class method has been utilized for calculating unaudited pro forma basic EPS due to the fact that both the Class A common stock and Class B-1 common stock are considered participating securities under ASC 260 - Earnings Per Share . The shares of Class B common stock have no rights to dividends or distributions, whether in cash or stock, and therefore are not deemed to be participating securities and are excluded from the unaudited pro forma basic EPS calculation. As the economic rights of both the Class A common stock and the Class B-1 common stock are identical, the unaudited pro forma combined basic EPS for Class A common stock and Class B-1 common stock is the same and is calculated based on the number of shares of Class A common stock and Class B-1 common stock that will be issued and outstanding following the close of the Transactions and PIPE Investment. These shares represent the shares of Class A common stock exchanged for the outstanding Impax Shares, and shares of Class A common stock and Class B-1 common stock issued in connection with the PIPE Investment.
The unaudited pro forma diluted EPS calculation should give effect to all potentially dilutive shares following the close of the Transactions and PIPE Investment, including: (i) shares issuable pursuant to outstanding stock options, based on the application of the treasury stock method, (ii) outstanding Class B common stock which will be cancelled upon the redemptions of Amneal Common Units, on a share-for-share basis of such redeemed Amneal Common Units for such number of Class A common stock, based on the application of the as-if converted method, and (iii) outstanding Class B-1 common stock that is convertible into Class A common stock on a share-for-share basis, based on the application of the as-if converted method. The conversion of Class B-1 common stock to Class A common stock results in the exchange of all shares of Class B-1 common stock outstanding, and therefore the two class method is not required for unaudited pro forma combined diluted EPS. Similarly, the redemption of all outstanding Amneal Common Units held by Amneal Holdings and its permitted transferees for Class A common stock results in the cancellation of all shares of Class B common stock outstanding. Upon the completion of such redemptions, there will be no Amneal Common Units held by outside investors, resulting in the reduction of the non-controlling interest to 0%. As such, the pro forma net loss attributable to non-controlling interests should be added back to the numerator for purposes of calculating unaudited pro forma diluted EPS as if the redemptions and cancellation of the Class B common shares had occurred at the beginning of the period.
The shares issuable pursuant to outstanding stock options, the redemption of the Amneal Common Units held by Amneal Holdings and its permitted transferees for shares of Class A common stock and the add back of the net loss attributable to non-controlling interests have been excluded from the calculation of unaudited pro forma diluted EPS because the effect would have been anti-dilutive.
 
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The unaudited pro forma basic and diluted EPS are calculated as follows:

(in thousands except share and per share data)	  	Year ended
December 31, 2017	 	
Pro Forma Basic EPS	  				
Pro forma net loss attributable to New Amneal	  	$	(155,179	) 	
Pro forma basic weighted-average common stock outstanding (1)	  	 	120,366,394	 	
	  	 	 	 	
Pro forma basic EPS	  	$	(1.29	) 	
	  	 	 	 	
Pro Forma Diluted EPS	  				
Pro forma net loss attributable to New Amneal	  	$	(155,179	) 	
Pro forma net loss attributable to non-controlling interests	  	 	—  	 	
	  	 	 	 	
Pro forma net loss	  	 	(155,179	) 	
Pro forma basic weighted-average common shares outstanding (1)	  	 	120,366,394	 	
Pro forma dilutive effect of the redemptions of Amneal Common Units	  	 	—  	 	
Pro forma dilutive effect of New Amneal stock options	  	 	—  	 	
	  	 	 	 	
Pro forma diluted weighted-average common shares outstanding	  	 	120,366,394	 	
	  	 	 	 	
Pro forma diluted EPS	  	$	(1.29	) 	

(1)	Represents the number of shares of Class A common stock and Class B-1 common stock that will be issued and outstanding following the close of the Transactions and PIPE Investment.	
 
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 MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS OF AMNEAL
The following discussion and analysis summarizes the significant factors affecting the results of operations, financial condition and liquidity position of Amneal as of and for the years ended December 31, 2017, 2016, and 2015, should be read in conjunction with the consolidated financial statements and related notes of Amneal beginning on page F-1 of this prospectus. The following discussion and analysis of the financial condition and results of operations of Amneal covers periods prior to the consummation of the Combination described elsewhere in this prospectus and does not reflect its effect on future periods. The Combination will result in financial results that are materially different from those reflected in the consolidated financial statements of Amneal that are included elsewhere in this prospectus. For an understanding of pro forma financial information including the effect of the Combination, see the section entitled “ Unaudited Pro Forma Condensed Combined Financial Statements .” The following discussion and analysis contains forward-looking statements that reflect Amneal’s plans, estimates and beliefs. Actual results could differ materially from those discussed in the forward-looking statements. See “Cautionary Statement Regarding Forward-Looking Statements.” Factors that could cause or contribute to these differences include those discussed below and elsewhere in this prospectus, particularly in the section entitled “ Risk Factors ” beginning on page 9.
Unless otherwise indicated, the components reported in millions may not equal the total amount reported due to rounding. Percentages presented are calculated from the numbers in millions.
Overview
Amneal is a generic pharmaceutical company specializing in developing, manufacturing, marketing and distributing high-value generic pharmaceutical products across a broad array of dosage forms and therapeutic areas. Amneal currently markets over 125 product families in the United States and its marketed and pipeline generics portfolios cover an extensive range of dosage forms and delivery systems, including both immediate and extended release oral solids such as tablets, capsules and powders, liquids, sterile injectables, nasal sprays, inhalation and respiratory products, ophthalmics (which are sterile pharmaceutical preparations administered for ocular conditions), films, transdermal patches and topicals (which are creams or gels designed to administer pharmaceuticals locally through the skin). Amneal focuses on developing products with substantial barriers-to-entry as a result of complex drug formulations or manufacturing, legal and/or regulatory challenges. Focusing on these opportunities allows Amneal to offer FTF, FTM and other “high-value” products, which Amneal defines as products with zero to three generic competitors at time of launch. These products generally have limited competition at launch, tend to be more profitable and often have longer life cycles than other generic pharmaceuticals. As of December 31, 2017, Amneal had 156 products approved but not yet launched or pending FDA approval and another 123 products in various stages of clinical development. Over 58% of Amneal’s total generic pipeline consists of potential FTF, FTM and high-value products.
Amneal has an integrated, team-based approach to product development that combines its formulation, regulatory, legal, manufacturing and commercial capabilities.
Amneal was founded in 2002 by Chintu and Chirag Patel and is a limited liability company organized under the laws of Delaware. Since Amneal’s founding, Amneal has invested heavily in R&D and infrastructure in order to fuel future growth. As a result of these investments, as well as a continued focus on quality and customer service, Amneal has developed what it believes to be one of the largest generic product pipelines in the United States, as well as comprehensive development and manufacturing expertise and capability across all major dosage forms. This allows Amneal a greater degree of profitability, control over quality and agility in the face of changing market dynamics. Amneal has also developed vertically integrated API manufacturing capabilities, which it utilizes on a selective, product-by-product basis based on API scarcity or as alternate supply for strategically critical products. As of December 31, 2017, Amneal had launched 34 products in 2017, compared to 18 and 14 for the full years ended December 31, 2016 and 2015, respectively.
 
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Amneal’s product development strategy emphasizes potential FTF, FTM and other high-value products. A generic pharmaceutical product is considered a FTF product if the ANDA filed with respect to such product is the first to be filed for such product which contains a paragraph IV patent challenge to the branded form of the product (a “ Paragraph IV Challenge ”) under the Hatch-Waxman Act. FTF status provides a statutory 180-day exclusivity period if the Paragraph IV Challenge either renders a favorable court decision or the expiration of 30 months after the patent owner brings an infringement action within 45 days from receiving notification by the applicant of the patent challenge, and the ANDA is approved by the FDA. This exclusivity period may be awarded to one ANDA sponsor or, under certain circumstances, may be required to be shared with other applicable ANDA sponsors with Paragraph IV certifications. A generic product is considered a FTM product if it is the first marketed generic version of a branded pharmaceutical for reasons other than statutory exclusivity. Amneal defines other “high-value” products as those with zero to three generic competitors (not including Amneal) at the time of launch. Within Amneal’s pipeline of filed and in-development products, over 58% are intended to be FTF, FTM or otherwise high-value products. As a result, and in light of the significant investment Amneal makes in R&D and infrastructure, Amneal is well positioned to support sustainable profitability and growth with anticipated future product launches.
The principal source of growth for Amneal’s business over the last five years has been the launch of internally developed products in the United States, and it expects this trend to continue in the near future. As of December 31, 2017, Amneal’s generic product pipeline contained 279 products, of which 156 are approved but not yet launched or pending with the FDA and 123 are in active stages of development. Amneal believes the strength and breadth of its product pipeline will enable it to differentiate itself in a challenging environment for the generic manufacturing industry and to continue its track record of revenue and EBITDA growth. Additionally, because the majority of Amneal’s product launches over the next two years are with respect to generic products for which an ANDA has already been filed with the FDA, Amneal believes that such product launches carry significantly less development risk.
Amneal has a network of ten manufacturing sites and seven co-located R&D centers within the United States, India and Ireland, with broad dosage capability across oral solids, solutions, suspensions, creams, gels, ointments, nasal sprays, hormonals, patches, oral thin films, dry powder inhalers, metered dose inhalers, cytotoxics, injectables, ophthalmics, otics, and tablets / capsules, as described below. Amneal also has a distribution center in Glasgow, Kentucky and a packaging center in East Hanover, New Jersey. In addition, Amneal selectively manufactures API for a subset of its products, which helps to reduce the overall cost of manufacturing for Amneal’s products and gives Amneal greater control over its supply chain. Since 2002, Amneal has had 60 successful FDA inspections of its various facilities (including its distribution facility in Glasgow, Kentucky) and Amneal has not received any warning letters with respect to any of Amneal’s facilities. Amneal believes the operational capabilities that it has developed will allow Amneal to continue to grow its business in the future.
In the United States and the Commonwealth of Puerto Rico, Amneal markets its products primarily through wholesalers and distributors, retail pharmacies, mail-order pharmacies and directly into hospitals and institutions. The majority of Amneal’s generic pharmaceutical products are marketed through wholesalers. Amneal’s sterile injectable products, while generally also marketed through wholesalers, are occasionally sold directly to large hospitals and institutions. Some of Amneal’s wholesalers purchase products and warehouse them for retail drug stores, independent pharmacies and managed care organizations, such as hospitals, nursing homes, health maintenance organizations, clinics, pharmacy benefit management companies and mail-order customers.
In Europe and other foreign jurisdictions, Amneal sells its products to wholesalers, distributors, independent pharmacies and, in certain countries, directly to hospitals. Through a broad network of sales representatives, Amneal adapts its strategy to different markets as dictated by such market’s respective regulatory and competitive landscapes.
 
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Results of Operations
Years Ended December 31, 2017 and 2016:
Net Revenue
Amneal’s net revenue for the years ended December 31, 2017 and December 31, 2016 was $1,034 million and $1,018 million, respectively, representing an increase of $16 million or 2%.
New product launches in the United States for 2017 were responsible for a significant portion of Amneal’s net revenue growth in 2017, with such product launches contributing $193 million in net revenues led by Aspirin-Dipyridamole ER (launched in January), Oseltamivir (launched in July), Tepadina Injection (launched in April), Mometasone Furoate Nasal Spray (launched in April) and Capecitabine (launched in March). These new product launches illustrate Amneal’s diverse product pipeline, including its first internally developed nasal product, a growing injectables portfolio, and complex oral products.
Amneal’s U.S. base business net revenue, which excludes 2017 new product launches, decreased by $165 million period over period. Lidocaine Ointment, Metaxalone, Fluocinolone and Acyclovir net revenues declined due to market competition on both price and volume, with net revenue attributable to Naproxen Sodium declining due primarily to volume reduction, and net revenue attributable to Ibuprofen and Oxy/APAP declining due primarily to supply constraints. Such net revenue declines were partially offset by higher net revenue of Yuvafem, a generic to Estradiol Vaginal Tablets (launched in October 2016), and Diclofenac Sodium Gel (launched in March 2016). Also contributing to the decrease were higher re-procurement charges of $26 million from 2016 to 2017 attributable to supply constraints caused by vendor delays and lower production in Amneal’s New York manufacturing facilities due to renovations. Before re-procurement charges and the erosion of three semi-exclusive products that experienced competition in 2017, Amneal’s U.S. base business decreased 9%, which consisted of price declines of 16%, partially offset by volume growth of 7%.
Amneal’s international net revenue decreased by $12 million period over period due primarily to the divestitures of (i) Amneal’s Australian business in August 2017 and (ii) Amneal’s Spain and Nordics businesses in September 2017, offset slightly by new product launches in Germany.
Gross Profit and Gross Margin
Gross profit and gross margin for the years ended December 31, 2017 and December 31, 2016 were $526 million and 51%, and $597 million and 59%, respectively. The decrease in gross margin for the year ended December 31, 2017 from the same period in 2016 of 8% was primarily a result of optimization expenses incurred amounting to $24 million or a gross margin decrease of approximately 3%. In 2017, Amneal began and completed a project to upgrade certain older manufacturing facilities in New York to optimize its manufacturing footprint. Such optimization expenses were incurred as internal resources and were deployed for these upgrades or were idle and production was lower than capacity. In addition, certain re-procurement charges were incurred as a result of lower production. The manufacturing facility upgrades were completed and these costs are not expected to continue in the future. Additionally, Amneal’s gross margins during the years ended December 31, 2017 were impacted by (i) higher depreciation / lease expense from equipment and capital expenditures and (ii) lower production of certain of Amneal’s products for which API was temporary unavailable and has since been resolved.
Gross margin of Amneal’s products decreased from 2016 to 2017 by approximately 3%. This decrease is primarily the result of (i) lower pricing due to increased competition on certain of Amneal’s products and (ii) price reductions attributable to the continued consolidation of Amneal’s customers. These declines in gross margin were partially offset by Amneal’s launch of certain high-value products.
 
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Selling, General and Administrative
Amneal’s selling, general and administrative (“SG&A”) expenses for the years ended December 31, 2017 and December 31, 2016 were $104 million and $115 million, respectively. SG&A expenses for 2016 included a legal contract settlement payment of $2.8 million payable pursuant to a former development partner. Excluding this settlement, SG&A expenses decreased by $8 million or 7%. This decrease in SG&A from 2016 to 2017 was primarily due to lower sales expenses, and salaries and benefits as a result of the divestitures of (i) Amneal’s Australian business in August 2017 and (ii) Amneal’s Spain and Nordics businesses in September 2017, and additional resources being converted to R&D activities in Ireland to support the development of the inhalation products. Also, professional fees declined legal settlements achieved. These declines in SG&A were partially offset by higher freight costs.
Research and Development
R&D expenses for the years ended December 31, 2017 and December 31, 2016 were $158 million and $168 million, respectively, representing a decrease of $10 million or 6%. This decrease was the result of lower material and supplies costs, lower external development costs due to the timing of certain projects, and lower exhibit batch product costs as more of Amneal’s projects in 2017 were performed in India, which has lower production costs compared to the United States. This decrease was partially offset by higher patient study (bio-equivalence) costs due to timing of such studies, and salaries and benefits to support escalating the development of inhalation products in Ireland.
Intellectual Property Legal Development Expenses
Amneal’s intellectual property legal development expenses for the years ended December 31, 2017 and December 31, 2016 were $21 million and $26 million, respectively, representing a decrease of $5 million or 19%. This decrease was the result primarily of reduced expenses related to trials on patent challenges during 2017. Intellectual property development expenses relate to legal challenges of innovator’s patents for invalidity or non-infringement, which are customary in the generic pharmaceutical industry, and are incurred predominantly during development of a pharmaceutical product and prior to regulatory approval of such product. Associated costs include, but are not limited to, formulation assessments, patent challenge opinions and strategy, and litigation expenses to defend the intellectual property supporting Amneal’s regulatory filings.
Depreciation
Amneal’s depreciation expense for the years ended December 31, 2017 and December 31, 2016 was $18.5 million and $14.5 million, respectively, representing an increase of $4.0 million or 28%. The increase was due primarily to a full year in 2017 of depreciation from Amneal’s new offices placed into service in August 2016 to support Amneal’s expanded operations for its New York manufacturing facilities. In addition, those expanded facilities became operational in third quarter of 2017.
Patent Litigation Settlements Gain
During the year ended December 31, 2016, Amneal received cash payments of $11.0 million in the aggregate in connection with the settlement of certain patent infringement matters with respect to Amneal’s ANDA product filings. Patent challenges against innovator patents are customary in the generic pharmaceutical industry. Amneal did not have patent litigation settlements where cash was received during the year ended December 31, 2017.
Development Contract Settlement
Pursuant to a product development agreement, Amneal and Kashiv, a related party, agreed to collaborate on the development and commercialization of Oxycodone HCI ER Oral Tablets. Under the agreement, this product
 
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is owned by Kashiv, with Amneal acting as the exclusive marketing partner and as Kashiv’s agent for filing the product ANDA and the leader of all services regarding intellectual property litigation. In addition, Amneal was also responsible for assuming control of and managing all aspects of the patent litigation arising from the filing of the ANDA, including selecting counsel and settling such proceeding (subject to Kashiv’s consent). In December 2017, Amneal and Kashiv terminated the product development agreement and pursuant to the termination and settlement of the agreement, Kashiv agreed to pay Amneal $7.8 million, an amount equal to the legal costs incurred by Amneal related to the defense of the ANDA.
Legal Settlement Gain
In July 2017, Amneal entered into a settlement agreement regarding one of its generic pharmaceutical products, Buprenorphine and Naloxone, pursuant to which Amneal received a settlement payment of $25 million, resulting in a net gain of $21.5 million after legal fees. Amneal filed a claim against the innovator of Suboxone, a combination of active pharmaceutical ingredients Buprenorphine and Naloxone, alleging anti-competitive conduct resulting in lost profits during the time period in which Amneal was restricted from entering the market to sell its generic version of Suboxone. There were no legal settlement gains for the year ended December 31, 2016.
Loss on Sale of Certain International Businesses
Australian Business Divestiture :
On August 31, 2017, Amneal consummated a transaction to sell 100% of the capital stock of its Australian subsidiary, Amneal Pharma Pty Ltd, to Arrow Pharmaceuticals Pty Ltd for cash consideration of $9.9 million. As a result of the sale, Amneal recognized a loss of $24.0 million, inclusive of divestiture costs. There were no divestitures for the years ended December 31, 2016.
Spain / Nordics Divestiture :
On September 30, 2017, Amneal consummated a transaction to sell 100% of the capital stock, and certain marketing authorizations and associated dossiers of its Amneal Nordic ApS and Amneal Pharma Spain S.L. subsidiaries to Aristo Pharma GmbH for cash consideration of $8.4 million. As a result of such sales, Amneal recognized a loss of $5.2 million. There were no divestitures for the years ended December 31, 2016.
Acquisition and Transaction-Related Expenses
In the ordinary course of its business, Amneal consummates certain business combinations, acquisitions or divestitures and, in connection therewith, incurs acquisition-related costs. Acquisition-related costs are expensed as incurred and amounted to $0.3 million for the year ended December 31, 2017.
In addition, as a result of the Combination, Amneal recognized transaction-related expenses. A total of $9.1 million in transaction-related expenses were incurred for the year December 31, 2017. There were no such expenses for the years ended December 31, 2016.
Interest Expense
Amneal’s interest expense for the years ended December 31, 2017 and December 31, 2016 was $71 million and $56 million, respectively, representing an increase of $15 million, or 27% from 2016 to 2017. The higher interest expense in 2017 was due primarily to increased borrowings which occurred in both April 2017 and May 2016 under Amneal’s term and revolving credit facilities, and higher amortization of debt issuance costs.
Foreign Exchange Gain/Loss
Amneal’s foreign currency transaction gains and losses are included in its determination of net income in Amneal’s consolidated statements of income as a component of Total other expense, net. Such foreign currency
 
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transaction gains and losses include fluctuations related to long term subsidiary loans, primarily to India, Switzerland, Australia and Ireland that are payable in the foreseeable future. Transaction gains were $29.1 million for the year ended December 31, 2017, compared to transaction losses of $14.1 million for the year ended December 31, 2016, representing a variation of $43.2 million from 2016 to 2017. The strengthening of certain foreign currencies, primarily in Switzerland, Ireland and India, against the U.S. Dollar, coupled with additional loans to these entities from Amneal, resulted in the significant transaction gains in foreign currency during the year ended December 31, 2017 compared to transaction losses during the same period in 2016.
Loss on Extinguishment and Modification of Debt
In April 2017, Amneal executed Amendment No. 6 to its credit facility, which provided for (i) incremental borrowing on Amneal’s term loan credit facility, and (ii) expansion of the borrowing capacity under Amneal’s revolving facility. As a result of the amendments, Amneal recorded a $2.5 million charge from the extinguishment and modification of debt due to incurring third-party debt issuance costs. There were no similar charges for the year ended December 31, 2016.
Income Tax Provision
The operations of Amneal are conducted through a limited liability company that is treated as a partnership for U.S. federal income tax purposes. All U.S. federal income tax benefits and/or liabilities of Amneal are passed through to its members. Amneal provides for a tax provision in the various foreign jurisdictions in which it operates.
Amneal’s income tax expense for the years ended December 31, 2017 and December 31, 2016 was $2.0 million and $5.4 million, respectively, representing a decrease of $3.4 million, or 63%. The decrease was due primarily to lower earnings in India from product sales to the United States and the effects of certain adjustments recorded in 2017.
Non-GAAP Financial Measures
EBITDA, or earnings before interest, taxes, depreciation and amortization, and adjusted EBITDA are used and provided by Amneal as non-GAAP financial measures. Adjusted EBITDA is intended to provide additional information on Amneal’s performance, operations and profitability. Adjustments to Amneal’s GAAP figures as well as adjusted EBITDA exclude interest expense, loss on extinguishment and modification of debt, income tax provision, depreciation and amortization, legal contract settlement, optimization expense, pro-forma royalty expense, loss of specified international entities, loss on sale of certain international businesses, acquisition and transaction-related costs, foreign exchange gain/loss, severance and non-controlling interest. Certain other special items or substantive events may also be included in the non-GAAP adjustments periodically when their magnitude is significant within the periods incurred. Amneal maintains an established non-GAAP cost policy that guides the determination of what costs will be excluded in non-GAAP measures. Amneal believes that these non-GAAP financial measures, when considered together with the GAAP figures, can enhance an overall understanding of Amneal’s financial and operating performance. The non-GAAP financial measures are included with the intent of providing investors with a more complete understanding of Amneal’s historical financial results and trends and to facilitate comparisons between periods and with respect to projected information. In addition, these non-GAAP financial measures are among the indicators Amneal’s management uses for planning and forecasting purposes and measuring Amneal’s performance. These non-GAAP financial measures should be considered in addition to, and not as a substitute for, or superior to, financial measures calculated in accordance with GAAP. The non-GAAP financial measures used by Amneal may be calculated differently from, and therefore may not be comparable to, non-GAAP financial measures used by other companies.
 
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Reconciliations of reported GAAP net income to EBITDA and adjusted EBITDA are as follows (in millions):

 	  	Years Ended December 31,	 	
 	  	2017	 	  	2016	 	
Net Income	  	$	169.3	 	  	$	209.4	 	
Adjusted to add (deduct):	  				  				
			
Interest expense	  	 	71.1	 	  	 	56.0	 	
Loss on extinguishment and modification of debt	  	 	2.5	 	  	 	—  	 	
Income tax provision	  	 	2.0	 	  	 	5.4	 	
Depreciation and amortization	  	 	45.9	 	  	 	33.0	 	
	  	 	 	 	  	 	 	 	
EBITDA	  	 	290.8	 	  	 	303.8	 	
Adjusted to add (deduct):	  				  				
Legal contract settlement (1)	  	 	—  	 	  	 	2.8	 	
Optimization expense (2)	  	 	24.3	 	  	 	—  	 	
Pro-forma royalty expense (3)	  	 	8.7	 	  	 	4.5	 	
Loss of specified international entities (4)	  	 	4.1	 	  	 	15.7	 	
Loss on sale of certain international businesses (4)	  	 	29.2	 	  	 	—  	 	
Acquisition and transaction-related costs	  	 	9.4	 	  	 	0.1	 	
Foreign exchange (gain) loss	  	 	(29.1	) 	  	 	14.1	 	
Severance	  	 	0.2	 	  	 	1.9	 	
Non-controlling Interest	  	 	(1.6	) 	  	 	(2.0	) 	
	  	 	 	 	  	 	 	 	
Adjusted EBITDA	  	$	336.0	 	  	$	340.9	 	

(1)	In December 2016, Amneal entered into an agreement with a former development partner to settle a contract dispute. The total amount of the settlement was $2.8 million.	
(2)	Optimization expenses were incurred (expensed as period costs) while upgrading Amneal’s New York manufacturing facilities to meet the optimized standards of its new infrastructure. Such optimization expenses were incurred as internal resources deployed for these upgrades or were idle and production was lower than capacity. In addition, certain re-procurement charges were incurred as a result of lower production.	
(3)	Amneal has the commercial rights to distribute Estradiol Vaginal Tablets (“Estradiol”), sold under the tradename Yuvafem ® and owns the full product rights for Aspirin/Dipyridamole ER (“ADip”). Both of the products are marketed by Amneal and respective royalties are paid to the development partner Kashiv Pharmaceuticals, LLC (“Kashiv”), a related party. On June 29, 2017, Amneal and Kashiv entered into a product acquisition and royalty stream purchase agreement under which Amneal acquired all rights including the regulatory information related to Estradiol and the ANDA. Amneal also reacquired the royalty rights associated with ADip. As a result of such purchases, Amneal added back the royalties for these products that related to historical periods.	
(4)	In the third quarter of 2017, Amneal sold certain international businesses (including certain of its businesses in Australia, Spain and the Nordics). Amneal added back the losses related to these entities for both periods presented, and added back the loss on sale of these international businesses.	
Net Income
Amneal’s net income for the years ended December 31, 2017 and December 31, 2016 was $169 million and $209 million, respectively, representing a decrease of $40 million or 19%. Net income as a percentage of net revenue for the years ended December 31, 2017 and December 31, 2016 was 16% and 21%, respectively.
 
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Adjusted EBITDA
Amneal’s adjusted EBITDA for the years ended December 31, 2017 and December 31, 2016 was $336 million and $341 million, respectively, representing a decrease of $5 million or 1%. Adjusted EBITDA as a percentage of net revenue for the years ended December 31, 2017 and December 31, 2016 was 32% and 33%, respectively.
Years Ended December 31, 2016 and 2015
Net Revenue
Amneal’s net revenue for the years ended December 31, 2016 and December 31, 2015 was $1,018 million and $866 million, respectively, representing an increase of $152 million, or 18%.
New product launches in the United States in 2016 were responsible for a significant portion of Amneal’s net revenue growth, with such products contributing $153 million in 2016, led by Yuvafem (launched in October), Diclofenac Sodium Gel (launched in March), Aripiprazole Tablets (launched in July) and Fosphenytoin Sodium Injection (launched in August).
Amneal’s U.S. base business net revenue, which excludes 2016 new product launches, decreased by $23 million from 2015 to 2016. Lower net revenue was attributable to Buprenorphine and Naloxone, Metaxalone, Oxycodone/APAP, Flecainide, Fluocinolone, Hydrocodone/APAP and Atovaquone, as a result of competition entering the market at the end of 2015 and early 2016, and supply constraints of EEMT, and partially offset by higher net revenue attributable to Lidocaine Ointment (launched in November 2015) and Omega-3 Caps (launched in December 2015). Overall, the decline in net revenue for Amneal’s U.S. base business of 3% from 2015 to 2016 consisted of price declines of 11%, partially offset by volume growth of 8%.
Amneal’s international net revenue grew by $22 million from 2015 to 2016, mostly in Australia from Amneal’s acquisition of the Actavis Australian business in May 2015, and organic growth in the UK and Germany, primarily as a result of Amneal’s new product launches.
Gross Profit and Gross Margin
Amneal’s gross profit and gross margin for the years ended December 31, 2016 and December 31, 2015 were $597 million and 59%, and $502 million and 58%, respectively. The increase in Amneal’s gross margin from 2015 to 2016 of 1% was due primarily to Amneal’s launch of certain high-value products and lower facility ramp-up costs. In 2015, Amneal began production activities in its Piscataway, New Jersey facility and incurred ramp-up costs to ready the facility for production. These costs were reported as period costs in 2015 and no such costs were incurred in 2016. Gross margin improvement in 2016 was partially offset by U.S. base business price reductions and certain inventory write-off charges taken in Australia, primarily related to inventory purchased in the Actavis Australia acquisition for product that would not be sold before expiry.
Selling, General and Administrative
Amneal’s SG&A expenses for the years ended December 31, 2016 and December 31, 2015 were $115 million and $97 million, respectively. SG&A expenses for 2016 included a settlement payment of $2.8 million payable pursuant to a former development partner of Amneal. Excluding this settlement, SG&A expenses increased by $15 million, or 15%. The increase in Amneal’s SG&A expenses for 2016 was primarily due to an increase in personnel-related costs to support of the overall growth of Amneal’s business, both in the United States and internationally, costs related to product specific Risk Evaluation and Mitigation Strategies (“ REMS ”) programs, and professional fees. Amneal’s marketing costs were higher in 2016 compared to 2015 due to its promotional programs to expand the Yuvafem market, launched in October 2016, as well as costs incurred to support sales of injectables through institutional market channels.
 
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Research and Development
Amneal’s R&D expenses for the years ended December 31, 2016 and December 31, 2015 were $168 million and $137 million, respectively, representing an increase of $31 million or 23%. Overall, the increase was due primarily to Amneal’s continued efforts to invest in its product pipeline in a measured way for continued growth both in the United States and internationally. Amneal’s increased spend in 2016 primarily related to additional projects requiring expanded infrastructure such as personnel, lab supplies and production support as well as higher materials and sample spend compared to 2015. Higher materials spend in 2016 was driven by Amneal’s expansion into multiple dosage forms and increased sourcing of material and samples in support of development activity including exhibit batch production.
Intellectual Property Legal Development Expenses
Amneal’s intellectual property legal development expenses for the years ended December 31, 2016 and December 31, 2015 were $26 million and $17 million, respectively, representing an increase of $9 million or 53%. The increase from 2015 to 2016 related primarily to additional ANDA regulatory filings subject to patent challenges, many of which took place in the trial phase which is often the most costly phase of the patent challenge process. Intellectual property legal development expenses relate to legal challenges of innovator’s patents for invalidity or non-infringement, which are customary in the generic pharmaceutical industry, and are incurred predominately during development and prior to regulatory approval.
Depreciation
Amneal’s depreciation expense for the years ended December 31, 2016 and December 31, 2015 was $14.5 million and $10.4 million, respectively, representing an increase of $4.1 million or 39%. The increase from 2015 was due primarily to depreciation from various assets placed into service, including: (i) R&D facilities and equipment for injectable, inhalation and topical products, (ii) new revenue management software, and (iii) an additional distribution warehouse.
Member Units Purchase
In May 2015, Amneal purchased membership units from certain of its employees for an aggregate purchase price of $12.5 million in cash. The purchased membership units were originally issued through a profit participation plan established for a select group of employees in recognition of their past and continued service to Amneal. The purchased membership units were purchased at the discretion of Amneal’s management and no annual purchase program was adopted. Amneal did not purchase any membership units in 2016.
Patent Litigation Settlement Gain
During the years ended December 31, 2016 and December 31, 2015, Amneal received aggregate cash payments of $11.0 million and $8.7 million, respectively, with respect to the settlement of certain patent infringement matters with respect to its ANDA product filings.
Interest Expense
Amneal’s interest expense for the years ended December 31, 2016 and December 31, 2015 was $56 million and $46 million, respectively, representing an increase of $10 million or 22% from 2015 to 2016. The higher expense was due primarily to increased borrowings under Amneal’s term loan facility in 2016, partially offset by a lower interest rate on borrowings under Amneal’s term loan credit facility by 0.5% effective June 2015.
Foreign Exchange Loss
Amneal’s foreign currency transaction gains and losses are included in the determination of net income in Amneal’s consolidated statements of income as a component of Total other expense, net. Such foreign currency
 
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transaction gains and losses include fluctuations related to long term subsidiary loans, primarily to India, Switzerland, Australia and Ireland that are payable in the foreseeable future. Amneal’s transaction losses were $14.1 million and $12.2 million for the years ended December 31, 2016 and December 31, 2015, respectively, representing an increase in foreign currency losses of $1.9 million.
Loss on Extinguishment and Modification of Debt
In April 2015 and June 2015, Amneal executed Amendments No. 3 and 4 to its credit facility, which provided for (i) incremental borrowings on the term loan, reduction of quarterly principle payments and reduction of interest rate of Amneal’s term loan, and (ii) expansion of the borrowing capacity under Amneal’s revolving facility. As a result of the amendments, Amneal recorded a $2.6 million charge from the extinguishment and modification of debt due to the write-off of unamortized debt issuance costs.
Income Tax Provision
The operations of Amneal are conducted through a limited liability company that is treated as a partnership for United States federal income tax purposes. All United States federal income tax benefits and/or liabilities of Amneal are passed through to its members. Amneal provides for a tax provision in the various foreign jurisdictions in which it operates.
Amneal’s income tax expense for the years ended December 31, 2016 and December 31, 2015 was $5.4 million and $5.0 million, respectively, representing an increase of $0.4 million, or 8%. The increase was due primarily to higher earnings in India.
Non-GAAP Financial Measures
EBITDA, or earnings before interest, taxes, depreciation and amortization, and adjusted EBITDA are used and provided by Amneal as non-GAAP financial measures. Adjusted EBITDA is intended to provide additional information on Amneal’s performance, operations and profitability. Adjustments to Amneal’s GAAP figures as well as adjusted EBITDA exclude interest expense, loss on extinguishment and modification of debt, income tax provision, depreciation and amortization, legal contract settlement, member units purchase, pro-forma royalty expense, loss of specified international entities, acquisition-related costs, foreign exchange loss, severance and non-controlling interest. Certain other special items or substantive events may also be included in the non-GAAP adjustments periodically when their magnitude is significant within the periods incurred. Amneal maintains an established non-GAAP cost policy that guides the determination of what costs will be excluded in non-GAAP measures. Amneal believes that these non-GAAP financial measures, when considered together with the GAAP figures, can enhance an overall understanding of Amneal’s financial and operating performance. The non-GAAP financial measures are included with the intent of providing investors with a more complete understanding of Amneal’s historical financial results and trends and to facilitate comparisons between periods and with respect to projected information. In addition, these non-GAAP financial measures are among the indicators Amneal’s management uses for planning and forecasting purposes and measuring Amneal’s performance. These non-GAAP financial measures should be considered in addition to, and not as a substitute for, or superior to, financial measures calculated in accordance with GAAP. The non-GAAP financial measures used by Amneal may be calculated differently from, and therefore may not be comparable to, non-GAAP financial measures used by other companies.
 
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Reconciliations of reported GAAP net income to EBITDA and adjusted EBITDA are as follows (in millions):

 	  	Year Ended December 31,	 	
 	  	2016	 	  	2015	 	
Net Income	  	$	209.4	 	  	$	170.6	 	
Adjusted to add (deduct):	  				  				
Interest expense	  	 	56.0	 	  	 	45.8	 	
Loss on extinguishment and modification of debt	  	 	—  	 	  	 	2.6	 	
Income tax provision	  	 	5.4	 	  	 	5.0	 	
Depreciation and amortization	  	 	33.0	 	  	 	25.5	 	
	  	 	 	 	  	 	 	 	
EBITDA	  	 	303.8	 	  	 	249.5	 	
Adjusted to add (deduct):	  				  				
Legal contract settlement(1)	  	 	2.8	 	  	 	—  	 	
Member units purchase(2)	  	 	—  	 	  	 	12.5	 	
Pro-forma royalty expense(3)	  	 	4.5	 	  	 	—  	 	
Loss of specified international entities(4)	  	 	15.7	 	  	 	—  	 	
Acquisition-related costs	  	 	0.1	 	  	 	0.4	 	
Foreign exchange loss	  	 	14.1	 	  	 	12.1	 	
Severance	  	 	1.9	 	  	 	1.2	 	
Non-controlling interest	  	 	(2.0	) 	  	 	(1.2	) 	
	  	 	 	 	  	 	 	 	
Adjusted EBITDA	  	$	340.9	 	  	$	274.5	 	

 
(1)	In December 2016, Amneal entered into an agreement with a former development partner to settle a contract dispute. The total amount of the settlement was $2.8 million.	
(2)	In 2015, Amneal purchased in cash certain membership units from certain member classes. As a result of the purchased membership units, Amneal recorded $12.5 million in expense.	
(3)	Amneal has the commercial rights to distribute Yuvafem and owns the full product rights for Aspirin/Dipyridamole ER. Both of the products are marketed by Amneal and respective royalties are paid to the development partner Kashiv, a related party of Amneal. On June 30, 2017, Amneal purchased the full product rights for Yuvafem, and the future royalties on Aspirin/Dipyridamole ER from Kashiv. As a result of these purchases, Amneal added back the royalties that related to historical periods.	
(4)	In the third quarter of 2017, Amneal sold certain of its international businesses (Australia, Spain and the Nordics). Amneal added back the losses related to these entities in 2016.	
Net Income
Amneal’s net income for the years ended December 31, 2016 and December 31, 2015 was $209 million and $171 million, respectively, representing an increase of $38 million or 22%. Net income as a percentage of net revenue for the years ended December 31, 2016 and December 31, 2015 was 21% and 20%, respectively.
Adjusted EBITDA
Amneal’s adjusted EBITDA for the years ended December 31, 2016 and December 31, 2015 was $341 million and $275 million, respectively, representing an increase of $66 million or 24%. Adjusted EBITDA as a percentage of net revenue for the years ended December 31, 2016 and December 31, 2015 was 33% and 32%, respectively.
 
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Liquidity and Capital Resources

 	  	December 31,
2017	 	  	December 31,
2016	 	
	  	 	(in millions)	 	
Cash and cash equivalents	  	$	74.2	 	  	$	27.4	 	
	  	 	 	 	  	 	 	 	
As of December 31, 2017, Amneal had total cash and cash equivalents of $74.2 million, compared to $27.4 million as of December 31, 2016. The increase of $46.8 million during the period resulted primarily from favorable earnings, trade accounts receivable collections and accounts payable increases due to timing of payments, partially offset by equity distributions and capital expenditures.
As of December 31, 2017, all of Amneal’s cash and cash equivalents consist of cash on deposit and highly liquid investments. A portion of Amneal’s cash flows are derived outside the United States. As a result, Amneal is subject to market risk associated with changes in foreign exchange rates. Amneal maintains cash balances at both U.S. based and foreign country based commercial banks. At various times during the year, Amneal’s cash balances held in the United States may exceed amounts that are insured by the Federal Deposit Insurance Corporation (FDIC). Amneal makes its investments in accordance with its investment policy. The primary objectives of Amneal’s investment policy are liquidity and safety of principal.
Cash Flows from Operating, Investing and Financing Activities

 	  	Years Ended December	 	
 	  	2017	 	  	2016	 	  	2015	 	
 	  	(in millions)	 	
Net cash provided by (used in):	  				  				  				
Operating activities	  	$	234.2	 	  	$	115.1	 	  	$	104.9	 	
Investing activities	  	 	(91.8	) 	  	 	(130.9	) 	  	 	(135.6	) 	
Financing activities	  	 	(95.0	) 	  	 	(19.5	) 	  	 	(25.0	) 	
Effect of foreign exchange rate on cash	  	 	(0.6	) 	  	 	1.6	 	  	 	(0.7	) 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Net increase (decrease) in cash and cash equivalents	  	$	46.8	 	  	$	(33.7	) 	  	$	(56.4	) 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Amneal’s net cash provided by operating activities was $234.2 million in 2017, as compared to $115.1 million in 2016, and $104.9 million in 2015. The increase of $119.1 million in net cash provided by operating activities was due primarily to strong collection of trade accounts receivable and an increase in accounts payable and accrued expenses as a result of the timing of cash disbursements for inventory and capital expenditures, which was partially offset by a reduction in net income adjusted for non-cash expenditures, higher prepaid expenses other current assets due primarily to goods and service tax prepayments in India, export incentives in India and a royalty stream that was prepaid on a license with a related-party, and higher related-party receivables from a development contract settlement. The increase of $10.2 million in 2016 was due primarily to higher net income adjusted for non-cash expenditures, lower inventories from the timing of product launches, and lower prepaid expenses due to lower royalty receivable. This was partially offset by an increase in trade accounts receivable reflecting increased sales and the timing of cash collections, and a decrease in accounts payable and accrued expenses as a result of the timing of cash disbursements.
Amneal’s net cash used in investing activities was $91.8 million in 2017, as compared to $130.9 million in 2016, and $135.6 million in 2015. The decrease of $39.1 million in 2017 was primarily due to a decrease in purchases of property, plant and equipment due to completing the expansion of certain facilities, the proceeds received on the sale of certain international businesses, partially offset by the acquisition of product rights. The decrease of $4.7 million in net cash used in 2016 was due primarily to a reduction in acquisitions as Amneal acquired the Actavis Australia business in 2015, partially offset by an increase in purchases of property, plant and equipment from the expansion of Amneal’s facilities worldwide.
 
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Amneal’s net cash used in financing activities was $95.0 million in 2017, as compared to $19.5 million in 2016, and $25.0 million in 2015. The increase of $75.5 million in 2017 was primarily related to equity distributions, partially offset by proceeds from increases in borrowings under Amneal’s term and revolving loan facilities. The decrease of $5.5 million in 2016 was primarily related to lower equity distributions, partially offset by repayments of amounts drawn on Amneal’s revolving loan facility.
Sources and Uses of Capital
Amneal’s primary sources of liquidity to date have been financing activities and cash provided by profitable operating activities. In order to complete development of Amneal’s current product pipeline, Amneal plans to continue financing its investments in R&D from cash liquidity generated by operating profits.
Amneal’s primary uses of capital resources to date have been to fund operating activities, including R&D expenses associated with new product filings, and pharmaceutical product manufacturing expenses, license payments, and spending on production facility expansions and capital equipment items.
In April 2017, Amneal executed an amendment to its existing credit facility increasing the amounts available under its term loan by $250.0 million, for a total availability under the term loan facility equal to $1,388.8 million. The interest rate for Amneal’s term loan facility is LIBOR plus 3.5% with a 1.00% LIBOR floor rate. The availability under Amneal’s revolving loan facility was also increased by $80.0 million, from $120.0 million to $200.0 million and the interest rate reduced by 0.5% to LIBOR plus 2.0% with a 1.00% LIBOR floor rate. As part of the transaction, $50.0 million was drawn on Amneal’s revolving facility. The maturity date for the Amneal’s term loan facility is November 1, 2019, but can be prepaid at any time at no additional cost. The revolving loan facility matures on November 1, 2018, but can be prepaid at any time at no additional cost. Amneal has the option to extend the maturity date of the revolving loan facility to November 1, 2019.
In May 2016, Amneal increased borrowings available under its term loan facility by $225.0 million for total availability under the term loan facility equal to $1,150.4 million, at an interest rate of LIBOR plus 3.5% with a 1.00% LIBOR floor rate. The borrowing limit on Amneal’s revolving loan facility was also increased by $30.0 million to $120.0 million. The interest rate on the revolving loan facility was reduced by 0.25% to LIBOR plus 2.5% and a 1.00% LIBOR floor rate.
Amneal has a letter of credit for $0.8 million issued to the landlord of a facility in Bridgewater, New Jersey, as required by the lease agreement of such facility, and the letter of credit is collateralized by a certificate of deposit for the same amount, which is recorded as restricted cash.
Amneal’s future capital requirements and the adequacy of available funds will depend on many factors, including those set forth in the section entitled “ Risk Factors ” beginning on page 9. As of December 31, 2017 Amneal has available to it $125.0 million of undrawn commitments on its revolving loan facility. Amneal believes that it has an adequate balance in cash and cash equivalents to fund its operations for at least the next twelve months.
 
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Contractual Obligations
The following table summarizes Amneal’s significant contractual obligations, inclusive of interest expense, as of December 31, 2017, and the effect such obligations are expected to have on Amneal’s liquidity and cash flow in future periods (in millions):

 	  	2018	 	  	2019	 	  	2020	 	  	2021	 	  	Thereafter	 	  	Total	 	
Bank term loan and revolver (a)	  	$	156.0	 	  	$	1,424.2	 	  	$	—  	 	  	$	—  	 	  	$	—  	 	  	$	1,580.2	 	
Operating lease obligations (b)	  	 	18.2	 	  	 	17.7	 	  	 	14.2	 	  	 	13.4	 	  	 	39.8	 	  	 	103.3	 	
Capital lease obligations (b)	  	 	0.1	 	  	 	0.1	 	  	 	0.1	 	  	 	0.2	 	  	 	0.7	 	  	 	1.2	 	
Financing obligations (c)	  	 	5.3	 	  	 	5.3	 	  	 	5.3	 	  	 	5.3	 	  	 	112.3	 	  	 	133.5	 	
Contingent consideration (d)	  	 	0.4	 	  	 	—  	 	  	 	—  	 	  	 	—  	 	  	 	—  	 	  	 	0.4	 	
	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
	  	$	180.0	 	  	$	1,447.3	 	  	$	19.6	 	  	$	18.9	 	  	$	152.8	 	  	$	1,818.6	 	

(a)	Includes payoff of $75.0 million Revolver balance in 2018. These loans carry a LIBOR floating rate plus a contractual interest rate. Amneal assumed the LIBOR rate stays constant in the future periods for purposes of calculating future interest payments.	
(b)	Amounts represent future minimum rental payments under non-cancelable leases for certain facilities and machinery and equipment.	
(c)	Amounts represent future minimum rental payments under non-cancelable financing obligation for a production facility in NY.	
(d)	In 2015, Amneal acquired the Actavis Australian generics business. A portion of the consideration was contingent consideration based on 12% of aggregate future net sales. Amounts represent future contingent payments remaining and will terminate at end of first quarter 2018.	
The foregoing table does not include milestone payments potentially payable by Amneal under its collaboration agreements and licenses. Such milestone payments are dependent upon the occurrence of specific and contingent events, and not the passage of time. Significant transactions including milestones are as follows:
Adello License and Commercialization Agreement
On October 1, 2017, Amneal and Adello entered into a license and commercialization agreement. Adello granted Amneal an exclusive license, under its NDA, to distribute and sell two bio-similar products in the United States. Adello is responsible for development, regulatory filings, obtaining FDA approval, and manufacturing, and Amneal is responsible for marketing, selling and pricing activities. The term of the agreement is 10-years from the applicable product’s launch date.
In connection with the agreement, Amneal paid an upfront amount of $1.5 million in October 2017 for execution of the agreement. The agreement also provides for potential future milestone payments to Adello of (i) up to $21 million relating to regulatory approval, (ii) up to $43 million for successful delivery of commercial launch inventory, (iii) between $20 million and $50 million relating to number of competitors at launch for one product, and (iv) between $15 million and $67.5 million for the achievement of cumulative net sales for both products. The milestones are subject to certain performance conditions, which may or may not be achieved, including FDA filing, FDA approval, launch activities and commercial sales volume objectives. In addition, the agreement provides for Amneal to pay a profit share equal to 50% of Net Profits, after considering manufacturing and marketing costs.
Quantitative and Qualitative Disclosures About Market Risk
Interest Rate Risk
Amneal has exposure to interest rate risk due to the fact that the credit facilities are variable rate debt. The impact of changes in interest rates on the market value of the credit facilities is generally not significant,
 
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however, rate fluctuations do affect the amount of Amneal’s interest payments and, therefore, Amneal’s future earnings and cash flows, assuming other factors are held constant. At December 31, 2017, Amneal had variable rate debt of approximately $1,453.2 million.
Holding other variables constant, including levels of indebtedness, a 1% increase in interest rates on Amneal’s variable rate debt would have an adverse impact on pre-tax earnings and cash flows on an annual basis of approximately $14.5 million.
Foreign Currency Exchange Rate Risk
By the nature of Amneal’s global operations, Amneal is exposed to cash flow and earnings fluctuations resulting from foreign exchange rate variation. These exposures are transactional and translational in nature. Since Amneal manufactures and sells its products throughout the world, its foreign currency risk is diversified. Principal drivers of this diversified foreign exchange exposure include the European Euro, British pound, Indian Rupee, and the Swiss Franc. Amneal’s transactional exposure arises from the purchase and sale of goods and services in currencies other than the functional currency of Amneal’s operational units. Amneal also has exposure related to the translation of financial statements of its foreign divisions into U.S. dollars, the functional currency of Amneal. The financial statements of Amneal’s operations outside the U.S. are measured using the local currency as the functional currency. Adjustments to translate the assets and liabilities of these foreign operations in U.S. dollars are accumulated as a component of other comprehensive income/(loss) utilizing period-end exchange rates. Transaction gains and losses are included in the determination of net income in Amneal’s consolidated statements of income as a component of other expense. Such foreign currency transaction gains and losses include fluctuations related to long term intercompany loans that are payable in the foreseeable future.
Critical Accounting Policies and Estimates
Amneal’s discussion and analysis of its operating results and financial condition is based upon Amneal’s consolidated financial statements, which have been prepared in accordance with U.S. GAAP. The preparation of the financial statements requires Amneal to make estimates, judgments, and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent amounts. While Amneal believes Amneal’s estimates, judgments and assumptions are reasonable, the inherent nature of estimates is such that actual results will likely differ from estimates made. Amneal’s senior management has reviewed these critical accounting policies and related disclosures with Amneal’s Audit Committee. Amneal’s significant accounting policies are described in Note 2 to the Consolidated Financial Statements for the year ended December 31, 2017 set forth in the section entitled “ Index to Amneal Pharmaceuticals LLC and Subsidiaries Consolidated Financial Statements .” Amneal believes the following critical accounting policies affect Amneal’s most significant judgments, assumptions, and estimates used in the preparation of Amneal’s consolidated financial statements and, therefore, are important in understanding Amneal’s financial condition and results of operations.
Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires Amneal’s management to make estimates and assumptions that affect the reported financial position of Amneal at the date of the financial statements and the reported results of operations during the reporting period. Such estimates and assumptions affect the reported amounts of Amneal’s assets, liabilities, revenues and expenses, and disclosure of contingent assets and liabilities in the consolidated financial statements and accompanying notes. The following are some, but not all, of such estimates: the determination of chargebacks, sales returns, rebates, bill backs, allowances for accounts receivable, accrued liabilities, valuation of inventory balances, the determination of useful lives for product rights and the assessment of expected cash flows used in evaluating goodwill and other long-lived assets for impairment. Actual results could differ from those estimates.
 
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Revenue Recognition
Revenue from sales of Amneal’s products is recognized when persuasive evidence of an arrangement exists, title and risk of loss has transferred to the customer, the price is fixed or determinable, and collection is reasonably assured. Amneal permits the return of product under certain circumstances. Product sales are recorded net of all sales-related deductions including, but not limited to: sales discounts and returns, chargebacks, sales volume rebates, shelf stocks, re-procurement charges, cash discounts, and Medicaid rebate obligations. Amneal establishes provisions for its sales- related deductions in the same period that it recognizes the related gross sales. These accruals reduce gross revenues and, with the exception of returns and Medicaid rebates, are treated as a reduction of trade receivables. Returns and Medicaid rebates are recorded as a liability. At the time a rebate or chargeback payment is made or a product return credit is issued, Amneal records a reduction to the contra accounts receivable or liability account.
Amneal estimates sales-related deductions based primarily on historical experience, estimated future trends, estimated customer inventory levels and contract sales terms with Amneal’s wholesale, retail, indirect, and institutional customers. The product returns accrual is primarily based on estimates of future product returns based generally on historical sales and return rates. Amneal estimates its chargeback accrual based on its estimates of the level of inventory of its products in the distribution channel that remain subject to chargebacks and historical chargeback rates. The estimate of the level of products in the distribution channel is based primarily on data provided by key customers. Amneal’s sales volume rebate accrual is based on actual net sales and the rebate rate for each customer. Amneal provides for cash discounts, which are deducted from revenues at the time of sale. Amneal estimates its Medicaid rebate accruals based on monthly sales, historical rates, and estimated lag time of the rebate invoices. Amneal’s accruals for returns, chargebacks, and rebates are adjusted as appropriate for specific known developments that may result in a change in its obligations. No material revisions were made to the methodology used in determining these reserves during the years ended December 31, 2017, 2016, and 2015.
A rollforward of the major categories of sales-related deductions for the years ended December 31, 2017, 2016, and 2015 is as follows (in thousands):

 	  	Contract
Charge-backs
and Sales
Volume
Allowances	 	 	Cash
Discount
Allowances	 	 	Accrued
Returns
Allowance	 	 	Accrued
Medicaid
Rebates	 	
Balance at January 1, 2015	  	$	262.5	 	 	$	14.4	 	 	$	27.6	 	 	$	4.2	 	
Provision related to sales recorded in the period	  	 	1,900.7	 	 	 	62.4	 	 	 	14.9	 	 	 	31.6	 	
Credits issued during the period	  	 	(1,832.4	) 	 	 	(61.9	) 	 	 	(10.4	) 	 	 	(21.4	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at December 31, 2015	  	 	330.8	 	 	 	14.9	 	 	 	32.1	 	 	 	14.4	 	
Provision related to sales recorded in the period	  	 	2,182.6	 	 	 	70.7	 	 	 	31.8	 	 	 	17.2	 	
Credits issued during the period	  	 	(2,146.6	) 	 	 	(67.2	) 	 	 	(17.7	) 	 	 	(23.5	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at December 31, 2016	  	 	366.8	 	 	 	18.4	 	 	 	46.2	 	 	 	8.1	 	
Provision related to sales recorded in the period	  	 	2,489.7	 	 	 	79.8	 	 	 	24.6	 	 	 	26.0	 	
Credits issued during the period	  	 	(2,402.8	) 	 	 	(77.8	) 	 	 	(25.6	) 	 	 	(21.2	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at December 31, 2017	  	$	453.7	 	 	$	20.4	 	 	$	45.2	 	 	$	12.9	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Inventories
Inventories consist of finished goods held for sale, raw materials, and work in process. Inventories are stated at the lower of cost or market, with cost determined using the first-in, first-out method. Adjustments for excess and obsolete inventories are established based upon historical experience and Amneal management’s assessment of current product demand. These assessments include inventory obsolescence based on its expiration date, damaged or rejected product, and slow-moving products.
 
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Goodwill
Goodwill, which represents the excess of purchase price over the fair value of net assets acquired, is carried at cost. Goodwill is not amortized; rather, it is subject to a periodic assessment for impairment by applying a fair value based test. Amneal reviews goodwill for possible impairment annually during the fourth quarter, or whenever events or circumstances indicate that the carrying amount may not be recoverable.
The impairment model prescribes a two-step method for determining goodwill impairment. However, an entity is permitted to first assess qualitative factors to determine whether the two-step goodwill impairment test is necessary. The qualitative factors considered by Amneal may include, but are not limited to, general economic conditions, Amneal’s outlook, market performance of Amneal’s industry and recent and forecasted financial performance. Further testing is only required if the entity determines, based on the qualitative assessment, that it is more likely than not that a reporting unit’s fair value is less than its carrying amount. Otherwise, no further impairment testing is required. In the first step, Amneal determines the fair value of its reporting unit using a discounted cash flow analysis. If the net book value of the reporting unit exceeds its fair value, Amneal then performs the second step of the impairment test, which requires allocation of the reporting unit’s fair value to all of its assets and liabilities using the acquisition method prescribed under authoritative guidance for business combinations with any residual fair value being allocated to goodwill. An impairment charge is recognized when the implied fair value of Amneal’s reporting unit’s goodwill is less than its carrying amount.
Assumptions and estimates used in the evaluation of impairment may affect the carrying value of long-lived assets, which could result in impairment charges in future periods. Such assumptions include projections of future cash flows and the current fair value of the asset.
Impairment of Long-Lived Assets (Including Intangible Assets with Finite Lives)
Amneal reviews its long-lived assets, including intangible assets with finite lives, for recoverability whenever events or changes in circumstances indicate that the carrying amount of the assets may not be fully recoverable. Amneal evaluates assets for potential impairment by comparing estimated future undiscounted net cash flows to the carrying amount of the asset. If the carrying amount of the assets exceeds the estimated future undiscounted cash flows, impairment is measured based on the difference between the carrying amount of the assets and fair value which is generally an expected present value cash flow technique. Management’s policy in determining whether an impairment indicator exists comprises measurable operating performance criteria as well as other qualitative measures.
Intangible assets, other than indefinite-lived intangible assets, are amortized using a straight line basis based on their estimated useful lives as the straight line basis of amortization approximates the pattern of economic benefit of the asset. The useful life is the period over which the assets are expected to contribute directly or indirectly to future cash flows. Intangible assets are not written-off in the period of acquisition unless they become impaired during that period.
Amneal regularly evaluates the remaining useful life of each intangible asset that is being amortized to determine whether events and circumstances warrant a revision to the remaining period of amortization. If the estimate of the intangible asset’s remaining useful life is changed, the remaining carrying amount of the intangible asset is amortized prospectively over that revised remaining useful life.
Income Taxes
The operations of Amneal are conducted through a limited liability company that is treated as a partnership for U.S. federal income tax purposes. All U.S. federal income tax benefits and/or liabilities of Amneal are passed through to Amneal’s members. Amneal provides for a tax provision in the various foreign jurisdictions in which it operates.
 
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The provision for income taxes is determined using the asset and liability method. Under this method, deferred tax assets and liabilities are recognized based upon the differences between the financial statement and tax bases of assets and liabilities using enacted tax rates that will be in effect at the time such differences are expected to reverse. When necessary, deferred tax assets are reduced by a valuation allowance to reflect the amount that is estimated to be recoverable.
The guidance related to accounting for income taxes requires that a valuation allowance be established when it is more-likely-than-not that all or a portion of a deferred tax asset will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income of the appropriate character during the period in which those temporary differences are deductible. Amneal applies a valuation allowance against deferred tax assets in the required jurisdictions.
Research and Development
R&D activities are expensed as incurred. Primarily, R&D costs consist of direct and allocated expenses incurred with the process of formulation, clinical research, and validation associated with new product development, and external regulatory filing fees. Upfront and milestone payments made to third parties in connection with R&D collaborations are expensed as incurred up to the point of regulatory approval or when there is no alternative future use. Payments made to third parties subsequent to regulatory approval are capitalized and amortized over the remaining useful life of the respective intangible asset. Amounts capitalized for such payments are included in intangible assets, net of accumulated amortization.
Intellectual Property Legal Development Expenses
Amneal expenses external intellectual property legal development expenses as incurred. These costs relate to legal challenges of innovator’s patents for invalidity or non-infringement, which are customary in the generic pharmaceutical industry, and are incurred predominately during development of a product and prior to regulatory approval. Associated costs include, but are not limited to, formulation assessments, patent challenge opinions and strategy, and litigation expenses to defend the intellectual property supporting Amneal’s regulatory filings.
Risks and Uncertainties
Amneal is subject to risks common to companies in the pharmaceutical industry including, but not limited to, uncertainties related to commercialization of products, regulatory approvals, dependence on key products, dependence on key customers and suppliers, and protection of intellectual property rights. For additional information regarding the risks attendant to Amneal’s business and the generic pharmaceutical industry, see the section entitled “ Risk Factors .”
Recently Adopted Accounting Pronouncements
See the sections entitled “ Amneal Pharmaceuticals LLC and Subsidiaries Notes to Consolidated Financial Statements—Recently Adopted Accounting Pronouncements. ”
Recently Issued Accounting Pronouncements
New Amneal will meet the definition of a public business entity and will adopt recently issued accounting pronouncements in accordance with the transition provisions and effective dates for public business entities. Below is a summary of the recently issued accounting pronouncements that will be relevant to New Amneal.
In January 2017, the Financial Accounting Standards Board (“ FASB ”) issued Accounting Standards Update (“ ASU ”) 2017-04, Intangibles—Goodwill and Other (Topic  350): Simplifying the Test for Goodwill Impairment , that eliminates the requirement to calculate the implied fair value of goodwill (i.e., Step 2 of today’s goodwill
 
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impairment test) to measure a goodwill impairment charge. Instead, entities will record an impairment charge based on the excess of a reporting unit’s carrying amount over its fair value (i.e., measure the charge based on today’s Step 1). The standard will be applied prospectively and is effective for New Amneal’s annual and interim impairment tests performed in periods beginning after December 15, 2019. Early adoption is permitted for annual and interim goodwill impairment testing dates after January 1, 2017. New Amneal is evaluating the impact of this new guidance on its consolidated financial statements.
In May 2017, the FASB issued ASU 2017-09, Compensation—Stock Compensation (Topic 718): Scope of Modification Accounting , which provides guidance about which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting in Topic 718. The guidance will be effective for New Amneal for annual and interim periods beginning after December 15, 2017, with early adoption permitted. The amendments in this ASU should be applied prospectively to an award modified on or after the adoption date. New Amneal is currently evaluating the impact that the standard will have on its consolidated financial statements.
In February 2017, the FASB issued ASU 2017-05, Other Income—Gains and Losses from the Derecognition of Nonfinancial Assets (Subtopic 610-20), which provides clarification regarding the scope of the asset derecognition guidance and accounting for partial sales of nonfinancial assets. The update defines an in substance nonfinancial asset and clarifies that an entity should identify each distinct nonfinancial asset or in substance nonfinancial asset promised to a counterparty and derecognize each asset when a counterparty obtains control of it. All businesses and nonprofit activities within the scope of Subtopic 610-20 are excluded from the amendments in this update. This guidance will be effective for New Amneal for annual and interim periods beginning after December 15, 2017 and is required to be applied at the same time as ASU 2014-09 (described above) is applied. The guidance can be applied using one of two methods: the full retrospective method, which requires the standard to be applied to each prior period presented, or the modified retrospective method, which requires the cumulative effect of adoption to be recognized as an adjustment to opening retained earnings in the period of adoption. New Amneal is currently evaluating the impact that the standard will have on its consolidated financial statements.
In November 2016, the FASB issued ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash (a consensus of the FASB Emerging Issues Task Force) , to clarify how entities should present restricted cash and restricted cash equivalents in the statement of cash flows. The guidance requires entities to show the changes inthe total of cash, cash equivalents, restricted cash and restricted cash equivalents in the statement of cash flows. As a result, entities will no longer present transfers between cash and cash equivalents and restricted cash and restricted cash equivalents in the statement of cash flows. The guidance will be applied retrospectively and is effective for New Amneal for annual and interim periods beginning after December 15, 2017. New Amneal is evaluating the impact of this new guidance on its consolidated financial statements.
In October 2016, the FASB issued ASU 2016-16, Income Taxes (Topic 740): Intra-Entity Transfers of Assets Other Than Inventory , that will require companies to account for the income tax effects of intercompany transfers of assets other than inventory (e.g., intangible assets) when the transfer occurs. The guidance is effective for New Amneal for annual and interim periods beginning after December 15, 2017. New Amneal is evaluating the impact of this new guidance on its consolidated financial statements.
In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments (a consensus of the Emerging Issues Task Force) , to clarify how entities should classify certain cash receipts and cash payments on the statement of cash flows. The new guidance also clarifies how the predominance principle should be applied when cash receipts and cash payments have aspects of more than one class of cash flows. The guidance will be applied retrospectively and is effective for New Amneal for annual and interim periods beginning after December 15, 2017. Early adoption is permitted. New Amneal is evaluating the impact of this new guidance on its consolidated financial statements.
 
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In June 2016, the FASB issued ASU 2016-13, Financial Instruments—Credit Losses (Topic  326): Measurement of Credit Losses on Financial Instruments , guidance that changes the impairment model for most financial assets including trade receivables and certain other instruments that are not measured at fair value through net income. The standard will replace today’s “incurred loss” approach with an “expected loss” model for instruments measured at amortized cost and require entities to record allowances for available-for-sale debt securities rather than reduce the carrying amount, as they do today under the other-than-temporary impairment model. It also simplifies the accounting model for purchased credit-impaired debt securities and loans. Entities will apply the standard’s provisions as a cumulative effect adjustment to retained earnings as of the beginning of the first reporting period in which the guidance is effective. The guidance is effective for New Amneal for annual and interim periods beginning after December 15, 2019. New Amneal is evaluating the impact of this new guidance on its consolidated financial statements.
In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842) . The new standard establishes a right-of-use (ROU) model that requires a lessee to record a ROU asset and a lease liability on the balance sheet for all leases with terms longer than 12 months. Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The guidance is effective for New Amneal for annual and interim periods beginning after December 15, 2018, with early adoption permitted. A modified retrospective transition approach is required for lessees for capital and operating leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements, with certain practical expedients available. New Amneal is currently evaluating the impact that the standard will have on its consolidated financial statements.
In January 2016, the FASB issued ASU 2016-01, Financial Instruments—Overall (Subtopic 825 -10), Recognition and Measurement of Financial Assets and Financial Liabilities , which addresses certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. The guidance is effective for annual and interim periods beginning after December 15, 2017, and early adoption is permitted. New Amneal is currently evaluating the impact that the standard will have on its consolidated financial statements.
In May 2014, the FASB issued ASU 2014-09, Revenue from Contracts with Customers (Topic 606) . This guidance represents a comprehensive new revenue recognition model that requires a company to recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which that company expects to be entitled to receive in exchange for those goods or services. This update sets forth a new five-step revenue recognition model which replaces the prior revenue recognition guidance in its entirety and is intended to eliminate numerous industry-specific pieces of revenue recognition guidance that have historically existed. The FASB has since issued eight additional ASUs, including ASU 2017-13 in September 2017 and ASU 2017-14 in December 2017. This ASU is effective for New Amneal for annual and interim periods beginning after December 15, 2017. The new guidance can be adopted using one of two methods: the full retrospective method, which requires the standard to be applied to each prior period presented, or the modified retrospective method, which requires the cumulative effect of adoption to be recognized as an adjustment to opening retained earnings in the period of adoption. New Amneal will adopt the new revenue recognition standard in 2018 using the modified retrospective method. In addition, the new standard will result in additional revenue-related disclosures in the notes to the consolidated financial statements.
The Amneal business has made substantial progress in completing its impact assessment of the potential changes from adopting ASU 2014-09. The impact assessment consists of a review of a representative sample of contracts, surveying key stakeholders, and a cataloging of potential impacts on Amneal’s financial statements, accounting policies, financial control, and operations. The majority of Amneal’s revenue relates to the sale of finished generic pharmaceutical products to its customers, and though Amneal is still evaluating the impact of this standard, management does not anticipate that the adoption will have a significant impact on these transactions. Amneal is continuing to evaluate the impact on certain less significant non-standard arrangements. In addition, the new standard will require changes to processes and controls to support additional disclosures; and Amneal is in the process of identifying and designing such changes to processes and controls to ensure readiness.
 
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Off-Balance Sheet Arrangements
Amneal has not participated in any transactions with unconsolidated entities, such as special purpose entities, which would have been established for the purpose of facilitating off-balance sheet arrangements.
 
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 MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF IMPAX
The following discussion and analysis, as well as other sections in this report, should be read in conjunction with the consolidated financial statements and related Notes to Consolidated Financial Statements included elsewhere herein. All references to years mean the relevant 12-month period ended December 31.
Overview
Impax is a specialty pharmaceutical company applying formulation and development expertise, as well as its drug delivery technology, to the development, manufacture and marketing of bioequivalent pharmaceutical products, commonly referred to as “generics,” in addition to the development, manufacture and marketing of branded products. Impax operates in two segments, referred to as “Impax Generics” and “Impax Specialty Pharma.” Impax Generics concentrates its efforts on generic products, which are the pharmaceutical and therapeutic equivalents of brand-name drug products and are usually marketed under their established nonproprietary drug names rather than by a brand name. Impax Specialty Pharma utilizes its specialty sales force to market proprietary branded pharmaceutical products for the treatment of CNS disorders and other select specialty segments. Impax sells its Impax Generics division products within the continental United States and the Commonwealth of Puerto Rico. Impax has no sales in foreign countries.
Impax plans to continue to expand Impax Generics through targeted ANDAs and a first-to-file and first-to-market strategy and to continue to evaluate and pursue external growth initiatives, including acquisitions and partnerships. Impax focuses its efforts on a broad range of therapeutic areas including products that have technically challenging drug-delivery mechanisms or unique product formulations. Impax employs its technologies and formulation expertise to develop generic products that reproduce brand-name products’ physiological characteristics but do not infringe any valid patents relating to such brand-name products. Impax generally focuses its generic product development on brand-name products as to which the patents covering the active pharmaceutical ingredient have expired or are near expiration, and Impax employs its proprietary formulation expertise to develop controlled-release technologies that do not infringe patents covering the brand-name products’ controlled-release technologies. Impax also develops, manufactures, sells and distributes specialty generic pharmaceuticals that Impax believes present one or more competitive advantages, such as difficulty in raw materials sourcing, complex formulation or development characteristics or special handling requirements. In addition to its focus on solid oral dosage products, Impax has expanded its generic pharmaceutical products portfolio to include alternative dosage form products, primarily through alliance and collaboration agreements with third parties. As of December 31, 2017, Impax marketed 225 generic pharmaceuticals, which represent dosage variations of 77 different pharmaceutical compounds through its Impax Generics division; another five of its generic pharmaceuticals representing dosage variations of two different pharmaceutical compounds are marketed by its alliance and collaboration agreement partners. As of December 31, 2017, in its Impax Generics Division, Impax had 17 applications pending at the FDA and 20 other products in various stages of development for which applications have not yet been filed.
The Impax Generics division develops, manufactures, sells, and distributes generic pharmaceutical products primarily through the following sales channels:
 
 	•	 	the “Impax Generics sales channel” for sales of generic prescription products Impax sells directly to wholesalers, large retail drug chains, and others;	
 
 	•	 	the “Private Label Product sales channel” for generic pharmaceutical over-the-counter and prescription products Impax sells to unrelated third-party customers who in-turn sell the product to third parties under their own label;	
 
 	•	 	the “Rx Partner sales channel” for generic prescription products sold through unrelated third-party pharmaceutical entities under their own label pursuant to alliance agreements; and	
 
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 	•	 	the “OTC Partner sales channel” for sales of generic pharmaceutical over-the-counter products sold through unrelated third-party pharmaceutical entities under their own label pursuant to alliance agreements.	
Revenues from generic products are reported under the caption “Impax Generics, net.”
Impax Specialty Pharma is engaged in the development, sale and distribution of proprietary branded pharmaceutical products that Impax believes represent improvements to already-approved pharmaceutical products addressing CNS disorders, including migraine, multiple sclerosis, Parkinson’s disease and post-herpetic neuralgia, and other select specialty segments. Impax believes that Impax has the research, development and formulation expertise to develop branded products that will deliver significant improvements over existing therapies.
Impax’s branded pharmaceutical product portfolio consists of commercial CNS and other select specialty products, as well as development stage projects. In February 2012, Impax licensed from AZ the exclusive U.S. commercial rights to Zomig ® (zolmitriptan) tablet, orally disintegrating tablet and nasal spray formulations pursuant to the terms of the Distribution, License, Development and Supply Agreement between Impax and AstraZeneca UK, Limited, dated as of January 31, 2012 (the “AZ Agreement”), and began sales of the Zomig ® products under its label during the year ended December 31, 2012 through its specialty sales force. In May 2013, Impax’s exclusivity period for branded Zomig ® tablets and orally disintegrating tablets expired and Impax launched authorized generic versions of those products in the United States. In June 2015, the FDA approved the Zomig ® nasal spray for use in pediatric patients 12 years of age or older for the acute treatment of migraine with or without aura. In addition to the Zomig ® products and Impax’s internally developed pharmaceutical product, Rytary ® for the treatment of Parkinson’s disease, post-encephalitic parkinsonism, and parkinsonism that may follow carbon monoxide intoxication and/or manganese intoxication, which was approved by the FDA on January 7, 2015, Impax is currently engaged in the sales and marketing of Emverm ® (mebendazole) 100 mg chewable tablets, indicated for the treatment of pinworm, whipworm, common roundworm, common hookworm, and two other products, all acquired by Impax in its acquisition of Tower Holdings, Inc. (“ Tower ”) and its subsidiaries on March 9, 2015 (the “ Tower Acquisition ”). In November 2015, the European Commission granted marketing authorization for Numient ® (referred to as Rytary ® in the United States). The review of the Numient ® application was conducted under the centralized licensing procedure as a therapeutic innovation, and the authorization is applicable in all 28 member states of the European Union, as well as Iceland, Liechtenstein and Norway.
Results of Operations
Year Ended December 31, 2017 Compared to Year Ended December 31, 2016
Overview
The following table sets forth Impax’s summarized, consolidated results of operations for the years ended December 31, 2017 and 2016 (in thousands):

 	  	Year Ended December 31,	 	 	Increase / (Decrease)	 	
 	  	2017	 	 	2016	 	 	Dollars	 	 	Percentage	 	
Total revenues	  	$	775,787	 	 	$	824,429	 	 	$	(48,642	) 	 	 	(6	)% 	
Gross profit (loss)	  	 	143,799	 	 	 	(151,102	) 	 	 	294,901	 	 	 	*	 	
(Loss) income from operations	  	 	(402,692	) 	 	 	(494,182	) 	 	 	91,490	 	 	 	(19	)% 	
(Loss) income before income taxes	  	 	(450,961	) 	 	 	(576,325	) 	 	 	125,364	 	 	 	(22	)% 	
Provision for (benefit from) income taxes	  	 	18,326	 	 	 	(104,294	) 	 	 	122,620	 	 	 	*	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 				
Net (loss) income	  	$	(469,287	) 	 	$	(472,031	) 	 	$	2,744	 	 	 	(1	)% 	

*	Percentage exceeds 100%	
 
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Consolidated total revenues for the year ended December 31, 2017 decreased by 6%, or $48.6 million, to $775.8 million compared to $824.4 million for the year ended December 31, 2016. The decrease was primarily attributable to lower Impax Generics division product sales. Selling price for existing products decreased consolidated total revenues by 22%, while volumes for existing products increased consolidated total revenues by 14%, in each case compared to the prior year. The decrease in selling price was primarily the result of additional competition during the year ended December 31, 2017 in generic Adderall XR ® , fenofibrate, diclofenac sodium gel, metaxalone and lower prices on epinephrine auto injector, partially offset by volume increases in epinephrine auto injector and Rytary ® . New product launches increased consolidated total revenues by 2% compared to the prior year. Impax currently expects pricing pressures on generic products to continue in the industry at least in the near term. Impax is closely monitoring these developments as they related to Impax’s products, customers and end users.
Revenues from the Impax Generics division for the year ended December 31, 2017 were $549.1 million, a decrease of $57.2 million or 9%, over the prior year. The decrease compared to the prior year period was primarily due to increased competition on diclofenac sodium gel, metaxalone, generic Adderall XR ® and fenofibrate. These decreases were partially offset by increased sales of its epinephrine auto-injector, budesonide and other products Impax acquired as part of Impax’s acquisition of a portfolio of products acquired from Teva Pharmaceuticals Industries Ltd. and affiliates of Allergan plc in August 2016 (the “Teva Transaction”) compared to the prior year period.
Revenues from Impax’s Specialty Pharma division for the year ended December 31, 2017 were $226.7 million, an increase of $8.6 million or 4% over the prior year. The increase from the prior year period was primarily due to higher sales of Rytary ® , partially offset by lower sales of Impax’s anthelmintic products franchise and Zomig ® .
Net loss for the year ended December 31, 2017 was $469.3 million, a decrease in Impax’s loss of $2.7 million compared to a net loss of $472.0 million for the year ended December 31, 2016. The net loss for the year ended December 31, 2017 was due to $289.7 million in intangible asset impairment charges and an approximate $74.1 million fixed assets impairment charge of Impax’s Taiwan manufacturing facility associated with its announced sale of the Taiwan operations. Additionally, during the year ended December 31, 2017, revenue from Impax’s generic products decreased due to increased competition and an approximate $48.4 million increase in cost of revenues caused by under-utilization of its plants associated with its restructuring initiatives. Impax’s fiscal year 2016 net loss was driven largely by its $541.6 million asset impairment charges and a $40.3 million reserve recorded as a result of the uncertainty of collection of the receivable due from Turing Pharmaceuticals AG (“Turing”) for reimbursement of Daraprim ® chargebacks and Medicaid rebate liabilities pursuant to an Asset Purchase Agreement between Impax and Turing dated August 7, 2015 (the “Turing APA”).
Of the $289.7 million intangible asset impairment charges Impax incurred during the year ended December 31, 2017, Impax recognized $96.9 million in cost of revenues impairment charges and $192.8 million in in-process research and development impairment charges on its consolidated statement of operations. The impairment charge was attributable to eight currently marketed products and four in-process research and development (“IPR&D”) product rights, the majority of which were acquired as part of the Teva Transaction. For the currently marketed products, the impairment charge was the result of continued significant price and volume erosion during the year ended December 31, 2017, resulting in significantly lower expected future cash flows. The IPR&D impairment was the result of delays in the anticipated product launch and related competition in the market.
 
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Impax Generics
The following table sets forth results of operations for the Impax Generics division for the years ended December 31, 2017 and 2016 (in thousands):

 	  	Year Ended December 31,	 	 	Increase / (Decrease)	 	
 	  	2017	 	 	2016	 	 	Dollars	 	 	Percentage	 	
Revenues:	  				 				 				 				
Impax Generics sales, net	  	$	549,077	 	 	$	606,320	 	 	$	(57,243	) 	 	 	(9	)% 	
	  	 	 	 	 	 	 	 	 	 	 	 	 				
Cost of revenues	  	 	454,911	 	 	 	417,316	 	 	 	37,595	 	 	 	9	% 	
Cost of revenues impairment charges	  	 	96,865	 	 	 	464,319	 	 	 	(367,454	) 	 	 	(79	)% 	
	  	 	 	 	 	 	 	 	 	 	 	 	 				
Gross loss	  	 	(2,699	) 	 	 	(275,315	) 	 	 	272,616	 	 	 	(99	)% 	
	  	 	 	 	 	 	 	 	 	 	 	 	 				
Operating expenses:	  				 				 				 				
Selling, general and administrative	  	 	28,294	 	 	 	20,508	 	 	 	7,786	 	 	 	38	% 	
Research and development	  	 	63,245	 	 	 	61,980	 	 	 	1,265	 	 	 	2	% 	
In-process research and development impairment charges	  	 	192,809	 	 	 	27,765	 	 	 	165,044	 	 	 	*	 	
Patent litigation expense	  	 	827	 	 	 	829	 	 	 	(2	) 	 	 	—  	% 	
Change in fair value of contingent consideration	  	 	(31,048	) 	 	 	—  	 	 	 	(31,048	) 	 	 	*	 	
Fixed assets impairment charges	  	 	8,380	 	 	 	—  	 	 	 	8,380	 	 	 	*	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 				
Total operating expenses	  	 	262,507	 	 	 	111,082	 	 	 	151,425	* 	 				
	  	 	 	 	 	 	 	 	 	 	 	 	 				
Loss from operations	  	$	(265,206	) 	 	$	(386,397	) 	 	$	121,191	 	 	 	(31	)% 	

*	Percentage exceeds 100%	
Revenues
Total revenues for the Impax Generics division for the year ended December 31, 2017 were $549.1 million, a decrease of $57.2 million or 9%, compared to the prior year. The decrease compared to the prior year period was primarily due to increased competition on diclofenac sodium gel, metaxalone, generic Adderall XR ® and fenofibrate. The decreases in revenue related to these products were partially offset by increased sales of Impax’s epinephrine auto-injector, budesonide and other products Impax acquired as part of the Teva Transaction compared to the prior year period.
Cost of Revenues
Cost of revenues was $454.9 million for the year ended December 31, 2017, an increase of $37.6 million from the prior year. The increase was due to $22.4 million of higher intangible asset amortization expenses resulting from the Teva Transaction, an increase of $14.4 million of inventory reserves primarily for bad batches and short-dated product, $11.6 million of additional restructuring costs incurred in connection with the closure of Impax’s Middlesex, New Jersey facility and the reduction-in-force of its technical operations group. The additional costs are offset by lower production costs due to increased absorption primarily as a result of restocking of new product launch inventory.
Cost of Revenues Impairment Charges
Cost of revenues impairment charges was $96.9 million for the year ended December 31, 2017, as compared to $464.3 million for the year ended December 31, 2016. The $96.9 million of impairment charges for the year ended December 31, 2017 were mostly due to continued price and volume erosion on eight currently marketed products, of which six were acquired in the Teva Transaction without an offsetting increase in customer demand, resulting in significantly lower expected future cash flows. The $464.3 million of impairment charges for the
 
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year ended December 31, 2016 were primarily due to price reductions taken on certain products acquired as part of the Teva Transaction in order to retain key customers.
Gross Loss
Gross loss for the year ended December 31, 2017 was $2.7 million as compared to gross loss of $275.3 million for the prior year. The decrease in gross loss was due primarily to $367.5 million of lower intangible asset impairment charges offset by an increase of $22.4 million intangible asset amortization expenses both relating to assets acquired in the Teva Transaction. The gross loss decrease was also partially offset by continued price erosion due to competition and customer mix along with an increase of $14.4 million of inventory reserves, $11.6 million of additional restructuring costs incurred with the closure of Impax’s Middlesex, New Jersey facility and the reduction-in-force of its technical operations group.
Selling, General and Administrative Expenses
Selling, general, and administrative expenses for the year ended December 31, 2017 were $28.3 million, as compared to $20.5 million for the year ended December 31, 2016. The $7.8 million increase from the prior year was primarily due to $2.9 million of additional freight costs, $2.8 million of higher supply claims from Impax’s wholesale customers and $2.2 million higher marketing costs.
Research and Development Expenses
Research and development expenses for the year ended December 31, 2017 were $63.2 million, as compared to $62.0 million for the year ended December 31, 2016. The $1.2 million increase from the prior year period was primarily due to $3.3 million of higher internal project costs and $0.8 million of employee termination benefits from the closure of the Impax Generic Division’s research and development site in Middlesex, New Jersey partially offset by $3.4 million of lower external development.
In-process Research and Development Impairment Charges
In-process research and development impairment charges were $192.8 million for the year ended December 31, 2017, as compared to $27.8 million for the year ended December 31, 2016. The $192.8 million of impairment charges for the year ended December 31, 2017 were due to delays in the anticipated launch of products and marketing rights acquired in the Teva Transaction and associated competition in the market. The $27.8 million of impairment charges for the year ended December 31, 2016 were due to delays in the expected start of commercialization and/or lower pricing amid highly competitive market conditions of certain pipeline products, resulting in lower expected future cash flows.
Change in Fair Value of Contingent Consideration
During the year ended December 31, 2017, Impax recognized $31.0 million of income on the change in the fair value of contingent consideration, compared to a minimal change in fair value of contingent consideration recognized during the prior year. Impax is required under the Termination Agreement entered into as a part of the Teva Transaction with Teva to make certain milestone payments to Teva associated with its methylphenidate hydrochloride (generic Concerta ® ) product. Impax conducted a review of the underlying inputs and assumptions at December 31, 2017, and based on timing and probability of the product launch, and corresponding number of competitors expected to be in the market at both launch and the one-year anniversary of launch, Impax concluded that the fair value of its contingent consideration was $0.
Fixed Assets Impairment Charges
The fixed assets impairment charges recognized during the year ended December 31, 2017 were primarily due to the closure of Impax’s Middlesex, New Jersey manufacturing facility; Impax sold the entity which held
 
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the leases to the site to a third party in early 2018. In addition, Impax recognized fixed impairment charges associated with abandoned software. There was no comparable loss in 2016.
Impax Specialty Pharma
The following table sets forth results of operations for the Impax Specialty Pharma division for the years ended December 31, 2017 and 2016 (in thousands):

 	  	Year Ended December 31,	 	  	Increase / (Decrease)	 	
 	  	2017	 	 	2016	 	  	Dollars	 	 	Percentage	 	
Revenues:	  				 				  				 				
Rytary ® , net	  	$	91,637	 	 	$	73,834	 	  	$	17,803	 	 	 	24	% 	
Zomig ® , net	  	 	51,115	 	 	 	53,539	 	  	 	(2,424	) 	 	 	(5	)% 	
All other Specialty Pharma Products, net	  	 	83,958	 	 	 	90,736	 	  	 	(6,778	) 	 	 	(7	)% 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
Total revenues	  	 	226,710	 	 	 	218,109	 	  	 	8,601	 	 	 	4	% 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
Cost of revenues	  	 	80,212	 	 	 	69,583	 	  	 	10,629	 	 	 	15	% 	
Cost of revenues impairment charges	  	 	—  	 	 	 	24,313	 	  	 	(24,313	) 	 	 	(100	)% 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
Gross profit	  	 	146,498	 	 	 	124,213	 	  	 	22,285	 	 	 	18	% 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
Operating expenses:	  				 				  				 				
Selling, general and administrative	  	 	67,949	 	 	 	61,448	 	  	 	6,501	 	 	 	11	% 	
Research and development	  	 	17,602	 	 	 	18,486	 	  	 	(884	) 	 	 	(5	)% 	
In-process research and development impairment charges	  	 	—  	 	 	 	25,200	 	  	 	(25,200	) 	 	 	(100	)% 	
Fixed assets impairment charges	  	 	74,128	 	 	 	—  	 	  	 	74,128	 	 	 	*	 	
Patent litigation expense	  	 	4,278	 	 	 	6,990	 	  	 	(2,712	) 	 	 	(39	)% 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
Total operating expenses	  	 	163,957	 	 	 	112,124	 	  	 	51,833	 	 	 	46	 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
(Loss) income from operations	  	$	(17,459	) 	 	$	12,089	 	  	$	(29,548	) 	 	 	*	 	

*	Percentage exceeds 100%	
Revenues
Total revenues for the Impax Specialty Pharma division for the year ended December 31, 2017 were $226.7 million, an increase of $8.6 million or 4% over the prior year. The increase from the prior year period was primarily due to higher sales of Rytary ® , partially offset by lower sales of Impax’s anthelmintic products franchise and Zomig ® .
Cost of Revenues
Cost of revenues was $80.2 million for the year ended December 31, 2017, a $10.6 million increase over the prior year. The increase is primarily due to higher sales of Rytary, increase in inventory reserve of $4.6 million and increase in accelerated depreciation expenses of $9.1 million related to Impax’s manufacturing facility located in Taiwan, which it sold in February of 2018. The cost of revenues increase was partially offset by a reduction in amortization of $10.6 million due to impairment of Emverm ® intangible asset in 2016.
Cost of Revenues Impairment Charges
Cost of revenues impairment charges were $24.3 million for the year ended December 31, 2016, primarily as a result of lower than expected script volume for Emverm ® . There were no comparable charges during 2017.
 
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Gross Profit
Gross profit for the year ended December 31, 2017 was $146.5 million, or 65% of total revenues, as compared to $124.2 million, or 57% of total revenues, in the prior year. The increase in gross profit was primarily due to higher product sales of Rytary ® during the year ended December 31, 2017 and a reduction in intangible asset impairment charges compared to 2016.
Selling, General and Administrative Expenses
Selling, general and administrative expenses for the year ended December 31, 2017 were $67.9 million, as compared to $61.4 million for the year ended December 31, 2016. The $6.5 million increase compared to the prior year was primarily due to certain employee termination benefits and higher advertising and promotion costs related to Emverm ® and Zomig ® .
Research and Development Expenses
Research and development expenses for the year ended December 31, 2017 were $17.6 million, as compared to $18.5 million for the year ended December 31, 2016. The $0.9 million decrease compared to the prior year was primarily due to a $2.6 million AstraZeneca reimbursement to us related to the juvenile toxicity study and pediatric study required by the FDA under the Pediatric Research Equity Act for approval of the nasal formulation of Zomig ® for the acute treatment of migraine in pediatric patients ages six through eleven years old pursuant to the terms of the AZ Agreement, as well as reduced expenses related to Impax’s branded initiatives, partially offset by higher spend for its Drug Safety/Pharmacovigilance group of $2.5 million.
In-process Research and Development Impairment Charges
In-process research and development impairment charges were $25.2 million for the year ended December 31, 2016. The impairment charges resulted from management’s decision during the fourth quarter of 2016 to cease development on Impax’s next generation Albenza ® product due to continued difficulties in sourcing the active pharmaceutical ingredient for the product. There were no comparable charges during 2017.
Fixed Assets Impairment Charges
The fixed assets impairment charges recorded during the year ended December 31, 2017 were primarily due to a $74.1 million loss associated with a stock and asset purchase agreement Impax entered into with a third party during the year ended December 31, 2017 pursuant to which Impax agreed to sell Impax Taiwan, including its Taiwan facility.. There was no comparable fixed asset impairment charges recorded in 2016.
Patent Litigation Expenses
Patent litigation expenses for the year ended December 31, 2017 were $4.3 million, as compared to $7.0 million for the year ended December 31, 2016. The $2.7 million higher cost during the prior year was primarily due to patent litigation activity related to Zomig ® trial during the third quarter of 2016.
 
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Corporate and Other
The following table sets forth corporate general and administrative expenses, as well as other items of income and expense presented below income or loss from operations for the years ended December 31, 2017 and 2016 (in thousands):

 	  	Year Ended December 31,	 	 	Increase / (Decrease)	 	
 	  	2017	 	 	2016	 	 	Dollars	 	 	Percentage	 	
General and administrative expenses	  	$	120,027	 	 	$	119,874	 	 	$	153	 	 	 	—  	% 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Interest expense, net	  	 	(53,412	) 	 	 	(40,419	) 	 	 	(12,993	) 	 	 	32	% 	
Reserve for Turing receivable	  	 	(3,999	) 	 	 	(40,312	) 	 	 	36,313	 	 	 	(90	)% 	
Gain on sale of assets	  	 	17,236	 	 	 	175	 	 	 	17,061	 	 	 	*	 	
Loss on debt extinguishment	  	 	(1,215	) 	 	 	—  	 	 	 	(1,215	) 	 	 	*	 	
Other expense, net	  	 	(6,879	) 	 	 	(1,587	) 	 	 	(5,292	) 	 	 	*	 	
Loss before income taxes	  	 	(168,296	) 	 	 	(202,017	) 	 	 	33,721	 	 	 	(17	)% 	
Provision for (benefit from) income taxes	  	$	18,326	 	 	$	(104,294	) 	 	$	122,620	 	 	 	*	 	

*	Percentage exceeds 100%	
General and Administrative Expenses
General and administrative expenses for the year ended December 31, 2017 were $120.0 million, as compared to $119.9 million for the year ended December 31, 2016. The $0.1 million increase during 2017 compared to the prior year was primarily due to $8.6 million higher legal expenses compared to the prior year period and $11.7 million integration costs. These higher expenses were largely offset primarily by $5.4 million of lower executive costs, $4.8 million lower share-based compensation costs, $4.3 million of reduction in IT spending, and $1.5 million lower business development spending. The expenses in 2016 also included $3.7 million related to the Teva Transaction, of which there were no comparable charges during year ended December 31, 2017.
Interest Expense, net
Interest expense, net was $53.4 million for the year ended December 31, 2017, a $13.0 million increase from the prior year. Interest expense for 2017 reflected interest on Impax’s $600.0 million convertible senior notes issued in 2015, interest on its $400.0 million Term Loan with Royal Bank of Canada entered into in the third quarter of 2016 to fund the Teva Transaction, and unused line of credit fees on its Revolving Credit Facility with Royal Bank of Canada entered into in 2016. In contrast, prior year interest expense of $40.4 million reflected interest expense on Impax’s Term Loan with Barclays Bank PLC entered into in connection with the financing of the Tower Acquisition, which was repaid in full on June 30, 2016 using proceeds from the issuance of its $600.0 million convertible senior notes. Refer to “Outstanding Debt Obligations” below for additional information related to Impax’s outstanding convertible notes and credit facilities. Interest income was $1.0 million for the year ended December 31, 2017, which was relatively consistent with interest income for the year ended December 31, 2016.
Reserve for Turing Receivable
During the year ended December 31, 2016, Impax recorded a reserve of $40.3 million as a result of the uncertainty of collection of the receivable due from Turing for reimbursement of Daraprim ® chargebacks and Medicaid rebate liabilities, as compared to a net $4.0 million of such charges during the year ended December 31, 2017.
 
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Gain on Sale of Assets
During the year ended December 31, 2017, Impax recognized a $12.5 million gain on the sale of 29 ANDAs and one NDA for non-strategic approved generic products, the vast majority of which products were not marketed, and all acquired as part of the Tower Acquisition, and $4.7 million gain from the sale of the its storage warehouse in Hayward, California.
Loss on Debt Extinguishment
During the year ended December 31, 2017, Impax recognized a $1.2 million loss on debt extinguishment related to the voluntary prepayment of $50.0 million on its Term Loan Facility with Royal Bank of Canada. There was no comparable loss in 2016.
Other Expense, Net
Other expense, net was $6.9 million for year ended December 31, 2017, as compared to $1.6 million for the year ended December 31, 2016. The expense for the year ended December 31, 2017 was primarily due to legal settlement costs related to its settlement with Endo Pharmaceuticals Inc. on its marketed oxymorphone hydrochloride tablets, which Impax settled in August 2017, and the suit related to the Telephone Consumer Protection Act.
Income Taxes
During the year ended December 31, 2017, Impax recorded an aggregate tax provision of $18.3 million for U.S. domestic income taxes and foreign income taxes, an increase of $122.6 million compared to an aggregate tax benefit of $104.3 million Impax recorded during the prior year. The effective tax rate decreased to (4.1)% for the year ended December 31, 2017 compared to 18.1% for the year ended December 31, 2016.
The effective income tax rate was (4.1)% for the fiscal year ended December 31, 2017, and reflected the increase in valuation allowance of $77.1 million against net deferred tax assets. Based on an evaluation of both the positive and negative evidence available, as discussed below, Impax determined that it was necessary to establish a valuation allowance against all of its net deferred tax assets for the fiscal year ended December 31, 2017.
A valuation allowance, if needed, reduces deferred tax assets to the amount expected to be realized. When determining the amount of net deferred tax assets that are more likely than not to be realized, Impax assess all available positive and negative evidence. This evidence includes, but is not limited to, scheduled reversal of deferred tax liabilities, prior earnings history, projected future earnings, carry-back and carry-forward periods and the feasibility of ongoing tax strategies that could potentially enhance the likelihood of the realization of a deferred tax asset. The weight given to the positive and negative evidence is commensurate with the extent the evidence may be objectively verified. As such, it is generally difficult for positive evidence regarding projected future taxable income (exclusive of reversing taxable temporary differences and carryforwards) to outweigh objective negative evidence of a recent financial reporting loss for the year ended December 31, 2017.
Based on these criteria and the relative weighting of both the positive and negative evidence available, and in particular the activity surrounding its prior earnings history, including the intangible impairments charges recognized during 2017, Impax determined that it was necessary to establish a valuation allowance against all of its net deferred tax assets as of December 31, 2017. Given the objectively verifiable negative evidence of a three-year cumulative loss which, under the provisions of FASB ASC Topic 740 is a significant element of negative evidence that is difficult to overcome, and the weighting of all available positive evidence, Impax excluded projected taxable income from the assessment of income that could be used as a source of taxable income to realize the deferred tax assets.
 
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Year Ended December 31, 2016 Compared to Year Ended December 31, 2015
Overview
The following table sets forth Impax’s summarized, consolidated results of operations for the years ended December 31, 2016 and 2015 (in thousands):

 	  	Year Ended December 31,	 	  	Increase / (Decrease)	 	
 	  	2016	 	 	2015	 	  	Dollars	 	 	Percentage	 	
Total revenues	  	$	824,429	 	 	$	860,469	 	  	$	(36,040	) 	 	 	(4	)% 	
Gross (loss) profit	  	 	(151,102	) 	 	 	352,404	 	  	 	(503,506	) 	 	 	*	 	
(Loss) income from operations	  	 	(494,182	) 	 	 	69,568	 	  	 	(563,750	) 	 	 	*	 	
(Loss) income before income taxes	  	 	(576,325	) 	 	 	59,368	 	  	 	(635,693	) 	 	 	*	 	
(Benefit from) provision for income taxes	  	 	(104,294	) 	 	 	20,371	 	  	 	(124,665	) 	 	 	*	 	
Net (loss) income	  	$	(472,031	) 	 	$	38,997	 	  	$	(511,028	) 	 	 	*	 	

*	Percentage exceeds 100%	
Consolidated total revenues for the year ended December 31, 2016 decreased by 4%, or $36.1 million, to $824.4 million compared to $860.5 million for the year ended December 31, 2015. The decrease was primarily attributable to lower Impax Generics division product sales, partially offset by higher Impax Specialty Pharma division product sales. Selling price for existing products decreased consolidated total revenues by 16%, while volumes for existing products increased consolidated total revenues by 2%, in each case compared to the prior year. New product launches, including those resulting from acquisitions, increased consolidated total revenues by 9% compared to the prior year.
Revenues from the Impax Generics division decreased by $104.6 million during the year ended December 31, 2016, as compared to the prior year. This decrease was primarily due to lower selling prices across a majority of the products in the division, partially offset by higher sales volumes, including those resulting from product acquisitions. The products that experienced significant declines in selling price during the year ended December 31, 2016 compared to the prior year included diclofenac sodium gel, metaxalone, generic Adderall XR ® , and fenofibrate family products. In connection with the pricing declines, Impax recorded $15.0 million in shelf-stock adjustments related to diclofenac sodium gel and metaxalone during 2016. Partially offsetting these pricing declines were price and volume increases of certain products compared to 2015 primarily related to Impax’s epinephrine auto-injector and oxymorphone products.
Revenues from the Impax Specialty Pharma division increased by $68.6 million during the year ended December 31, 2016, as compared to the prior year. The increase was primarily due to higher selling prices and higher sales volumes across a majority of the products in the division including Zomig ® , Rytary ® , which launched in April 2015, and Impax’s anthelmintic products franchise.
Net loss for the year ended December 31, 2016 was $472.0 million, a decrease of $511.0 million compared to net income of $39.0 million for the year ended December 31, 2015. The net loss for the year ended December 31, 2016 was primarily driven by $541.6 million in intangible asset impairment charges, as compared to $13.7 million of such charges in the prior year, as well as a $40.3 million reserve recorded as a result of the uncertainty of collection of the receivable due from Turing for reimbursement of Daraprim ® chargebacks and Medicaid rebate liabilities. Included in Impax’s 2015 results was a $45.6 million gain related to the sale of Daraprim ® to Turing, for which there was no comparable gain in 2016.
Of the $541.6 million in intangible asset impairment charges Impax incurred in 2016, $308.4 million of such charges related to certain intangible assets acquired as part of the Teva Transaction. Upon closing the Teva Transaction on August 3, 2016, Impax initiated the process of transferring and securing Teva’s and Allergan’s customers for the acquired products to its account. Impax assumed certain price concessions would occur
 
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following the closing. However, Impax elected to take additional price reductions on certain of the acquired products in order to retain key customers. These reductions produced significantly lower than expected operating cash flows from the acquired product lines and triggered an impairment charge of $251.0 million during the third quarter of 2016. Impax experienced even further price reductions on certain of the products acquired in the Teva Transaction during the fourth quarter of 2016, which resulted in $57.4 million of additional intangible asset impairment charges. In total, Impax’s impairment analyses for the products acquired in the Teva Transaction resulted in the recognition of $308.4 million of non-cash impairment charges to earnings, comprised of a $301.7 million charge recorded in cost of revenues impairment charges and a $6.7 million charge recorded in-process research and development impairment charges in its consolidated statement of operations for the year ended December 31, 2016.
During 2016, Impax also incurred other non-cash impairment charges on certain of its intangible assets, primarily related to the products acquired from the Tower Acquisition, totaling $233.2 million. These impairment charges arose primarily due to increased competition, price degradation, product discontinuations and delays in expected product launches. The largest intangible asset impairment charge related to products acquired in the Tower Acquisition was for Impax’s epinephrine auto-injector product, which occurred during the fourth quarter of 2016 and accounted for more than half of the $233.2 million in charges. The impairment charge on the epinephrine auto-injector product was triggered by current and projected price degradation as a result of unexpected changes in the pricing environment and additional competition.
Impax Generics
The following table sets forth results of operations for the Impax Generics division for the years ended December 31, 2016 and 2015 (in thousands):

 	  	Year Ended December 31,	 	  	Increase / (Decrease)	 	
 	  	2016	 	 	2015	 	  	Dollars	 	 	Percentage	 	
Revenues:	  				 				  				 				
Impax Generics sales, net	  	$	591,744	 	 	$	699,844	 	  	$	(108,100	) 	 	 	(15	)% 	
Rx Partner	  	 	14,339	 	 	 	9,307	 	  	 	5,032	 	 	 	54	% 	
Other Revenues	  	 	237	 	 	 	1,781	 	  	 	(1,544	) 	 	 	(87	)% 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
Total revenues	  	 	606,320	 	 	 	710,932	 	  	 	(104,612	) 	 	 	(15	)% 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
Cost of revenues	  	 	417,316	 	 	 	442,742	 	  	 	(25,426	) 	 	 	(6	)% 	
Cost of revenues impairment charges	  	 	464,319	 	 	 	7,303	 	  	 	457,016	 	 	 	*	 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
Gross (loss) profit	  	 	(275,315	) 	 	 	260,887	 	  	 	(536,202	) 	 	 	*	 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
Operating expenses:	  				 				  				 				
Selling, general and administrative	  	 	20,508	 	 	 	29,641	 	  	 	(9,133	) 	 	 	(31	)% 	
Research and development	  	 	61,980	 	 	 	52,478	 	  	 	9,502	 	 	 	18	% 	
In-process research and development impairment charges	  	 	27,765	 	 	 	6,360	 	  	 	21,405	 	 	 	*	 	
Patent litigation expense	  	 	829	 	 	 	2,942	 	  	 	(2,113	) 	 	 	(72	)% 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
Total operating expenses	  	 	111,082	 	 	 	91,421	 	  	 	19,661	 	 	 	22	% 	
	  	 	 	 	 	 	 	 	  	 	 	 	 				
(Loss) income from operations	  	$	(386,397	) 	 	$	169,466	 	  	$	(555,863	) 	 	 	*	 	

*	Percentage exceeds 100%	
Revenues
Total revenues for the Impax Generics division for the year ended December 31, 2016 were $606.3 million, a decrease of $104.6 million or 15%, over the prior year. The decrease was primarily due to increased
 
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competition on diclofenac sodium gel, metaxalone, and fenofibrate, coupled with lower market share for generic Adderall XR ® during the first half of 2016, in each case compared to the prior year. These decreases were partially offset by increased sales of oxymorphone, increased sales of epinephrine auto-injector, which was acquired as part of the Tower Acquisition in March 2015, and sales of the products acquired as part of the Teva Transaction in August 2016, in each case compared to the prior year. In addition, during the year ended December 31, 2016, Impax recorded a $15.0 million shelf-stock adjustment related to diclofenac sodium gel and metaxalone as a result of declining prices during 2016, for which there was no comparable charge in the prior year.
Cost of Revenues
Cost of revenues was $417.3 million for the year ended December 31, 2016, a decrease of $25.4 million from the prior year. The decrease was primarily attributable to lower costs related to decreased product revenue compared to the prior year and the absence of costs related to (i) the step-up to fair value of inventory in connection with the Tower Acquisition, (ii) Hayward remediation activities and (iii) the Philadelphia restructuring, which were all incurred in the prior year but for which Impax did not incur comparable costs in 2016. The reduced costs during 2016 compared to the prior year were partially offset by higher intangible asset amortization expenses resulting from the Teva Transaction and a full year of amortization expense related to products acquired in the Tower Acquisition, along with higher restructuring costs incurred in conjunction with the previously announced closure of the Middlesex, New Jersey facility.
Cost of Revenues Impairment Charges
Cost of revenues impairment charges was $464.3 million for the year ended December 31, 2016, a $457.0 million increase over the prior year. Of this increase, $301.7 million related to impairments recognized on certain intangible assets acquired as part of the Teva Transaction. As discussed above, Impax assumed certain price concessions would occur following the closing of the Teva Transaction on August 3, 2016. However, Impax elected to take additional price reductions on certain of the acquired products in order to retain key customers. These reductions produced significantly lower than expected operating cash flows from the acquired product lines and triggered an impairment charge of $248.0 million during the third quarter of 2016. Impax experienced even further price reductions on certain of the products acquired in the Teva Transaction during the fourth quarter of 2016, which resulted in $53.7 million of additional intangible asset impairment charges recorded in cost of revenues impairment charges.
During 2016, Impax also incurred other non-cash impairment charges recorded to cost of revenues impairment charges on certain of its intangible assets, primarily related to the products acquired from the Tower Acquisition, totaling $162.6 million. These impairment charges arose primarily due to increased competition, price degradation, and product discontinuations. The largest intangible asset impairment charge related to the products acquired in the Tower Acquisition was on Impax’s epinephrine auto-injector product, which occurred during the fourth quarter of 2016. The impairment charge on the epinephrine auto-injector product was triggered by current and projected price degradation as a result of changes in the pricing environment and additional competition.
Gross (Loss) Profit
Gross (loss) for the year ended December 31, 2016 was ($275.3) million, or 45% of total revenues, as compared to gross profit of $260.9 million, or 37% of total revenues, for the prior year. The decreases in gross profit and gross margin were primarily due to intangible asset impairment charges, lower product sales, higher shelf-stock adjustments, increased intangibles amortization, and increased restructuring costs, as noted above. These decreases were partially offset by the absence of remediation costs related to the Hayward facility and the absence of restructuring costs related to the Philadelphia facility in 2016, both incurred in 2015.
 
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Selling, General and Administrative Expenses
Selling, general, and administrative expenses for the year ended December 31, 2016 were $20.5 million, as compared to $29.6 million for the year ended December 31, 2015. The $9.1 million decrease from the prior year was primarily attributable to a decrease in failure to supply claims during 2016.
Research and Development Expenses
Research and development expenses for the year ended December 31, 2016 were $62.0 million, as compared to $52.5 million for the year ended December 31, 2015. The $9.5 million increase from the prior year was primarily due to an increase in external development costs from increased research and development activities and a full year of research and development expenses from the Tower acquired companies.
In-process Research and Development Impairment Charges
In-process research and development impairment charges were $27.8 million for the year ended December 31, 2016, an increase of $21.4 million from the prior year. The 2016 impairment charges included $21.1 million related to products acquired as part of the Tower Acquisition and caused primarily due to delays in the expected start of commercialization and/or lower anticipated pricing of such products amid highly competitive market conditions, resulting in lower forecasted future cash flows. There were $6.4 million of similar charges recorded in the prior year. In addition, the 2016 impairment charges included $6.7 million related to products acquired as part of the Teva Transaction and caused by lower anticipated pricing amid highly competitive market conditions, resulting in lower forecasted future cash flows.
Patent Litigation Expenses
Patent litigation expenses for the year ended December 31, 2016 were $0.8 million, as compared to $2.9 million for the year ended December 31, 2015. The $2.1 million decrease was due to reduced legal activity in 2016 compared to the prior year.
Impax Specialty Pharma
The following table sets forth results of operations for the Impax Specialty Pharma division for the years ended December 31, 2016 and 2015 (in thousands):

 	  	Year Ended December 31,	 	  	Increase / (Decrease)	 	
 	  	2016	 	  	2015	 	  	Dollars	 	 	Percentage	 	
Revenues:	  				  				  				 				
Rytary ® , net	  	$	73,834	 	  	$	42,364	 	  	$	31,470	 	 	 	74	% 	
Zomig ® , net	  	 	53,539	 	  	 	49,251	 	  	 	4,288	 	 	 	9	% 	
All other Specialty Pharma Products, net	  	 	90,736	 	  	 	57,922	 	  	 	32,814	 	 	 	57	% 	
	  	 	 	 	  	 	 	 	  	 	 	 	 				
Total revenues	  	 	218,109	 	  	 	149,537	 	  	 	68,572	 	 	 	46	% 	
	  	 	 	 	  	 	 	 	  	 	 	 	 				
Cost of revenues	  	 	69,583	 	  	 	58,020	 	  	 	11,563	 	 	 	20	% 	
Cost of revenues impairment charges	  	 	24,313	 	  	 	—  	 	  	 	24,313	 	 	 	*	 	
	  	 	 	 	  	 	 	 	  	 	 	 	 				
Gross profit	  	 	124,213	 	  	 	91,517	 	  	 	32,696	 	 	 	36	% 	
	  	 	 	 	  	 	 	 	  	 	 	 	 				
Operating expenses:	  				  				  				 				
Selling, general and administrative	  	 	61,448	 	  	 	52,427	 	  	 	9,021	 	 	 	17	% 	
Research and development	  	 	18,486	 	  	 	18,144	 	  	 	342	 	 	 	2	% 	
In-process research and development impairment charges	  	 	25,200	 	  	 	—  	 	  	 	25,200	 	 	 	*	 	
Patent litigation expense	  	 	6,990	 	  	 	1,625	 	  	 	5,365	 	 	 	*	 	
	  	 	 	 	  	 	 	 	  	 	 	 	 				
Total operating expenses	  	 	112,124	 	  	 	72,196	 	  	 	39,928	 	 	 	55	% 	
	  	 	 	 	  	 	 	 	  	 	 	 	 				
Income from operations	  	$	12,089	 	  	$	19,321	 	  	$	(7,232	) 	 	 	(37	)% 	

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*	Percentage exceeds 100%	
Revenues
Total revenues for the Impax Specialty Pharma division for the year ended December 31, 2016 were $218.1 million, an increase of $68.6 million or 46% over the prior year. The increase was primarily due to increased sales from Rytary ® , which Impax launched in April 2015, and increased revenues resulting from the Tower Acquisition, including sales from its anthelmintic products franchise.
Cost of Revenues
Cost of revenues was $69.6 million for the year ended December 31, 2016, an $11.6 million increase over the prior year. The increase was primarily due to higher costs related to increased product sales and a full year of amortization expense related to products acquired in the Tower Acquisition. Additionally, cost of revenues for the prior year included a $5.4 million step-up to fair value of inventory charge in connection with the Tower Acquisition, for which there was no comparable charge in 2016.
Cost of Revenues Impairment Charges
Cost of revenues impairment charges were $24.3 million for the year ended December 31, 2016. There were no comparable charges during the prior year. The impairment charge was primarily the result of lower than expected script volume for Emverm ® .
Gross Profit
Gross profit for the year ended December 31, 2016 was $124.2 million, or 57% of total revenues, as compared to $91.5 million, or 61% of total revenues, in the prior year. The increase in gross profit in 2016 compared to the prior year was primarily due to increased product sales and the absence in 2016 of the $5.4 million step-up to fair value of inventory charge in connection with the Tower Acquisition Impax incurred in 2015, partially offset by higher impairment charges during 2016. The decrease in gross margin during the year ended December 31, 2016 was primarily due to lower selling prices on certain products compared to the prior year.
Selling, General and Administrative Expenses
Selling, general and administrative expenses for the year ended December 31, 2016 were $61.4 million, as compared to $52.4 million for the year ended December 31, 2015. The $9.0 million increase during the year ended December 31, 2016 was primarily due to expenses related to the sales force expansion to support sales and marketing activities for Rytary ® and increased advertising and promotion expenses to support the launch of Emverm ® and the new indication of Zomig ® nasal spray for pediatric patients approved by the FDA in June 2015. The increase in expenses during 2016 was partially offset by training expenses incurred during the year ended December 31, 2015 to support the launch of Rytary ® .
Research and Development Expenses
Research and development expenses for the year ended December 31, 2016 were $18.5 million, as compared to $18.1 million for the year ended December 31, 2015. The $0.4 million increase compared to the prior year was primarily due to increased research and development activities related to Impax’s branded initiatives.
 
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In-process Research and Development Impairment Charges
In-process research and development impairment charges were $25.2 million for the year ended December 31, 2016. There were no comparable charges during the prior year. The impairment charges resulted from management’s decision during the fourth quarter of 2016 to cease development on Impax’s next generation Albenza ® product due to continued difficulties in sourcing the active pharmaceutical ingredient for the product.
Patent Litigation Expenses
Patent litigation expenses for the year ended December 31, 2016 were $7.0 million, as compared to $1.6 million for the year ended December 31, 2015. The $5.4 million increase during 2016 compared to the prior year was due to increased patent litigation activity in 2016.
Corporate and Other
The following table sets forth corporate general and administrative expenses, as well as other items of income and expense presented below income from operations for the years ended December 31, 2016 and 2015 (in thousands):

 	  	Year Ended December 31,	 	 	Increase / (Decrease)	 	
 	  	2016	 	 	2015	 	 	Dollars	 	 	Percentage	 	
General and administrative expenses	  	$	119,874	 	 	$	119,219	 	 	$	655	 	 	 	1	% 	
	  	 	 	 	 	 	 	 	 	 	 	 	 				
Interest expense, net	  	 	(40,419	) 	 	 	(26,226	) 	 	 	(14,193	) 	 	 	54	% 	
Reserve for Turing receivable	  	 	(40,312	) 	 	 	—  	 	 	 	(40,312	) 	 	 	*	 	
Gain on sale of asset	  	 	—  	 	 	 	45,574	 	 	 	(45,574	) 	 	 	*	 	
Loss on debt extinguishment	  	 	—  	 	 	 	(16,903	) 	 	 	16,903	 	 	 	*	 	
Net change in fair value of derivatives	  	 	—  	 	 	 	(13,000	) 	 	 	13,000	 	 	 	*	 	
Other (expense) income, net	  	 	(1,412	) 	 	 	355	 	 	 	(1,767	) 	 	 	*	 	
Loss before income taxes	  	 	(202,017	) 	 	 	(129,419	) 	 	 	(72,598	) 	 	 	56	% 	
(Benefit from) provision for income taxes	  	$	(104,294	) 	 	$	20,371	 	 	$	(124,665	) 	 	 	*	 	

*	Percentage exceeds 100%	
General and Administrative Expenses
General and administrative expenses for the year ended December 31, 2016 were $119.9 million, as compared to $119.2 million for the year ended December 31, 2015. The $0.7 million increase during 2016 compared to the prior year was primarily due to costs recognized in 2016 related to the separation of G. Frederick Wilkinson as Impax’s President and Chief Executive Officer in December 2016 and higher legal expenses compared to the prior year, partially offset by lower transaction and integration expenses related to strategic transactions during 2016 as compared to the transaction and integration expenses incurred related to the Tower Acquisition during the prior year.
Interest Expense, net
Interest expense, net was $40.4 million for the year ended December 31, 2016, a $14.2 million increase from the prior year. Interest expense for 2016 reflected interest on Impax’s $600.0 million convertible senior notes issued in 2015, interest on its $400.0 million Term Loan with Royal Bank of Canada entered into in 2016 to fund the Teva Transaction, and unused line of credit fees on its Revolving Credit Facility with Royal Bank of Canada entered into in 2016. In contrast, prior year interest expense of $27.3 million reflected interest expense on Impax’s Term Loan with Barclays Bank PLC entered into in connection with the financing of the Tower Acquisition, which was repaid in full on June 30, 2016 using proceeds from the issuance of its $600.0 million
 
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senior notes. Refer to “Outstanding Debt Obligations” below for additional information related to Impax’s outstanding convertible notes and credit facilities. Interest income was $1.0 million for the year ended December 31, 2016, which was relatively consistent with interest income for the year ended December 31, 2015.
Reserve for Turing Receivable
During the year ended December 31, 2016, Impax recorded a reserve of $40.3 million, representing the amount of the estimated receivable due from Turing for reimbursement of Daraprim ® chargebacks and Medicaid rebate liabilities. Impax received $7.7 million in payments from Turing during the fourth quarter of 2016, which reduced the reserve balance of $48.0 million as of September 30, 2016 to the reserve balance of $40.3 million as of December 31, 2016.
Gain on Sale of Asset
During the year ended December 31, 2015, Impax recognized a $45.6 million gain on the sale of its right to Daraprim ® . There was no comparable gain in 2016.
Loss on Debt Extinguishment
During the year ended December 31, 2015, Impax recognized a $16.9 million loss on debt extinguishment related to the repayment of its $435.0 million term loan with Barclays Bank PLC. There was no comparable loss in 2016.
Net Change in Fair Value of Derivatives
During the year ended December 31, 2015, Impax recognized a $13.0 million expense as the net change in the fair value of its derivative instruments entered into in conjunction with its convertible senior notes due 2022. This expense resulted from the change in its stock price from June 30, 2015 to December 31, 2015. A third party valuation firm with expertise in valuing financial instruments was engaged to determine the fair value of Impax’s bond hedge derivative asset and conversion option derivative liability at each reporting period. There was no comparable change in the fair value of derivatives during 2016.
Other (Expense) Income, Net
Other expense, net was $1.4 million for the year ended December 31, 2016, a $1.8 million increase from the prior year. The increase was primarily due to the change in the fair value of the contingent consideration due to Teva pursuant to the Termination Agreement with Teva whereby Teva returned to us Impax’s full commercial rights to its then pending ANDA for methylphenidate hydrochloride and due to an increase in fixed asset impairments over the prior year.
Income Taxes
During the year ended December 31, 2016, Impax recorded an aggregate tax benefit of $104.3 million for U.S. domestic income taxes and for foreign income taxes, a decrease of $124.7 million compared to an aggregate tax provision of $20.4 million Impax recorded during the prior year. The decrease in the tax provision during 2016 compared to the prior year resulted from lower income before taxes in the year ended December 31, 2016. The effective tax rate decreased to 18.1% for the year ended December 31, 2016 compared to 34.3% for the year ended December 31, 2015.
The effective income tax rate was 18.1% for the fiscal year ended December 31, 2016, and reflected the establishment of a valuation allowance of $108.8 million against net deferred tax assets. Based on an evaluation of both the positive and negative evidence available, as discussed below, Impax determined that it was necessary to establish a valuation allowance against a significant portion of its net deferred tax assets for the fiscal year ended December 31, 2016.
 
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A valuation allowance, if needed, reduces deferred tax assets to the amount expected to be realized. When determining the amount of net deferred tax assets that are more likely than not to be realized, Impax assesses all available positive and negative evidence. This evidence includes, but is not limited to, scheduled reversal of deferred tax liabilities, prior earnings history, projected future earnings, carry-back and carry-forward periods and the feasibility of ongoing tax strategies that could potentially enhance the likelihood of the realization of a deferred tax asset. The weight given to the positive and negative evidence is commensurate with the extent the evidence may be objectively verified. As such, it is generally difficult for positive evidence regarding projected future taxable income (exclusive of reversing taxable temporary differences and carryforwards) to outweigh objective negative evidence of a recent financial reporting loss for the year ended December 31, 2016.
Based on these criteria and the relative weighting of both the positive and negative evidence available, and in particular the activity surrounding its prior earnings history, including the intangible impairments charges recognized during 2016, Impax determined that it was necessary to establish a valuation allowance against a significant portion of its net deferred tax assets as of December 31, 2016. Given the objectively verifiable negative evidence of a three-year cumulative loss which, under the provisions of FASB ASC Topic 740 is a significant element of negative evidence that is difficult to overcome, and the weighting of all available positive evidence, Impax excluded projected taxable income from the assessment of income that could be used as a source of taxable income to realize the deferred tax assets.
Liquidity and Capital Resources
Impax generally funds its operations with cash from operating activities, although Impax hasalso funded its operations with proceeds from the sale of debt and equity securities. Impax’s cash flows from operating activities consist primarily of the proceeds from sales of its products and services.
Impax expects to incur significant operating expenses, including research and development and patent litigation expenses, for the foreseeable future. In addition, Impax is generally required to make cash expenditures to manufacture and/or acquire finished product inventory in advance of selling the finished product to its customers and collecting payment, which may result in a significant use of cash. Impax believes its existing cash and cash equivalents, together with cash expected to be generated from operations and its revolving line of credit facility, will be sufficient to meet its financing requirements through the next 12 months. Impax may, however, seek additional financing through alliance, collaboration, and licensing agreements, as well as from the debt and equity capital markets, to fund capital expenditures, research and development plans, potential acquisitions, and potential revenue shortfalls due to delays in new product introductions or otherwise. Impax cannot be assured that such financing will be available on favorable terms, or at all.
Cash Flows—Year Ended December 31, 2017 Compared to Year Ended December 31, 2016
Net cash provided by operations increased by $0.4 million to $84.2 million for the year ended December 31, 2017, from $83.8 million for year ended December 31, 2016. Impax’s cash flows are impacted by its underlying results from operations and related timing of cash receipts and cash disbursements. For the year ended December 31, 2017, while Impax experienced reduced operating results, its working capital management improved in 2017, most notably with inventory and payables.
Net cash used in investing activities for the year ended December 31, 2017 was $9.7 million, a decrease of $617.4 million compared to $627.1 million in the prior year. In 2017, net cash used in investing activities primarily consisted of a $26.7 million for capital expenditures partially offset by proceeds from the sale of intangible assets and property, plant and equipment of $21.5 million. In 2016, net cash used in investing activities primarily consisted of a $585.8 million payment to fund the Teva Transaction. Increased capital expenditures in 2016 were partially offset by proceeds from the repayment by Tolmar of the outstanding $15.0 million balance due to us under Impax’s loan and security agreement with Tolmar pursuant to which provided to Tolmar one or more loans in an aggregate amount not to exceed $15.0 million (the “Tolmar Loan Agreement”).
 
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Net cash used in financing activities for the year ended December 31, 2017 was $73.7 million, representing a decrease of $456.2 million as compared to $382.5 million net cash provided by financing activities in the prior year. In 2017, $70.0 million of principal payments were made on the $400.0 million of proceeds from the term loan entered into with Royal Bank of Canada to finance the Teva Transaction in 2016. In 2016, net cash provided by financing activities primarily consisted of $400.0 million of proceeds from the term loan entered into with Royal Bank of Canada to finance the Teva Transaction.
Cash Flows—Year Ended December 31, 2016 Compared to Year Ended December 31, 2015
Net cash provided by operating activities for the year ended December 31, 2016 was $83.9 million, a decrease of $8.6 million as compared to the prior year $92.5 million net cash provided by operating activities. While the 2016 cash flows from operations were relatively stable compared to 2015, there were some large variations in the line items. Impax’s lower net income during 2016 was more than offset by higher non-cash items. Significant changes in non-cash items during 2016 included higher depreciation and amortization resulting from acquisition activity, non-cash interest expense, intangible asset impairment charges, and the reserve related to the receivable from Turing. Working capital items also experienced significant changes in 2016 compared to the prior year as increased cash flow from accounts receivable collections were more than offset by higher cash outflows related to profit sharing payments, higher inventory in support of product launches as well as lower cash inflows from accounts payable and accrued expenses largely related to payments made on behalf of Turing.
Net cash used in investing activities for the year ended December 31, 2016 was $627.1 million, an increase of $159.6 million compared to $467.5 million in the prior year. In 2016, net cash used in investing activities primarily consisted of a $585.8 million payment to fund the Teva Transaction. Increased capital expenditures in 2016 were partially offset by proceeds from the repayment by Tolmar of the outstanding $15.0 million balance due to us under the Tolmar Loan Agreement. Net cash used in investing activities for the prior year included a $691.3 million payment to fund the Tower Acquisition, partially offset by $200.1 million from the maturity of investments and $59.5 million in proceeds from the sale to Turing of Impax’s rights to Daraprim ® , both of which had no similar activity during 2016.
Net cash provided by financing activities for the year ended December 31, 2016 was $382.5 million, representing a decrease of $118.4 million as compared to $500.9 million in the prior year. In 2016, net cash provided by financing activities primarily consisted of $400.0 million of proceeds from the term loan entered into with Royal Bank of Canada to finance the Teva Transaction. In contrast, prior year net cash provided by financing activities included $600.0 million from the issuance of convertible notes and $88.3 million from the sale of warrants, offset by the payment of $147.0 million to purchase the bond hedge derivative asset, for which similar activity did not occur during 2016.
Commitments and Contractual Obligations
Impax’s contractual obligations as of December 31, 2017 were as follows (in thousands):

 	  	Payments Due by Period	 	
Contractual Obligations	  	Total	 	  	Less Than
1 Year	 	  	1-3 Years	 	  	3-5 Years	 	  	More Than
5 Years	 	
Open Purchase Order Commitments	  	$	108,071	 	  	$	108,071	 	  	$	—  	 	  	$	—  	 	  	$	—  	 	
Operating Leases (a)	  	 	28,142	 	  	 	5,575	 	  	 	6,318	 	  	 	5,136	 	  	 	11,113	 	
Long-term debt obligations	  	 	925,000	 	  	 	20,000	 	  	 	305,000	 	  	 	600,000	 	  	 	—  	 	
Interest payments on long-term debt obligations (b)	  	 	112,852	 	  	 	29,286	 	  	 	77,566	 	  	 	6,000	 	  	 	—  	 	
	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Total (c)	  	$	1,174,065	 	  	$	162,932	 	  	$	388,884	 	  	$	611,136	 	  	$	11,113	 	

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(a)	Impax leases office, warehouse, and laboratory facilities under non-cancelable operating leases with expiration dates through December 2027. Impax also leases certain equipment under various non-cancelable operating leases with various expiration dates through July 2022.	
(b)	Interest on existing debt obligations was calculated based on applicable rates at December 31, 2017.	
(c)	Liabilities for uncertain tax positions FASB ASC Topic 740, Sub-topic 10, were excluded as Impax is not able to make a reasonably reliable estimate of the amount and period of related future payments. As of December 31, 2017, Impax had a $3.5 million provision for uncertain tax positions.	
Off-Balance Sheet Arrangements
Impax did not have any off-balance sheet arrangements as of December 31, 2017 and 2016.
Outstanding Debt Obligations Prior to the Closing
The following section describes Impax’s material debt obligations that were terminated upon the Closing in connection with the consummation of the Transactions.
Royal Bank of Canada Credit Facilities
On August 3, 2016, Impax entered into a restatement agreement with Royal Bank of Canada, as administrative agent, and the lenders and guarantors party thereto (the “Restatement Agreement”). The Restatement Agreement amends and restates the existing Revolving Credit Facility Agreement (as amended and restated and amended to date, the “Amended and Restated Credit Agreement”) to, among other things, (i) add a term loan feature to allow for the borrowing of up to $400.0 million of term loans (the “Term Loan Facility”) by us in accordance with the terms of the Amended and Restated Credit Agreement, (ii) increase the aggregate principal amount of revolving loans permitted under the Amended and Restated Credit Agreement (the “Revolving Credit Facility,” and, together with the Term Loan Facility, the “RBC Credit Facilities”), from $100.0 million to $200.0 million and (iii) extend the maturity date of the Revolving Credit Facility from August 4, 2020 to August 3, 2021. On March 27, 2017, Impax entered into Amendment No. 1 by and among us, Royal Bank of Canada, as administrative agent, and the lenders party thereto (the “Amendment”) to the Amended and Restated Credit Agreement.
Borrowings under the Amended and Restated Credit Agreement will accrue interest at a rate equal to LIBOR or the base rate, plus an applicable margin. The applicable margin may be increased or reduced by 0.25% based on Impax’s total net leverage ratio. Up to $12.5 million of the Revolving Credit Facility is available for issuance of letters of credit and any such letters of credit will reduce the amount available under the Revolving Credit Facility on a dollar-for-dollar basis. Impax is required to pay a commitment fee to the lenders on the average daily unused portion of the Revolving Credit Facility at 0.50% or 0.375% per annum, depending its total net leverage ratio.
The Amended and Restated Credit Agreement contains certain negative covenants (subject to exceptions, materiality thresholds and other allowances) including, without limitation, negative covenants that limit Impax’s and its restricted subsidiaries’ ability to incur additional debt, guarantee other obligations, grant liens on assets, make loans, acquisitions or other investments, dispose of assets, make optional payments in connection with or modify certain debt instruments, pay dividends or make other payments on capital stock, engage in mergers or consolidations, enter into arrangements that restrict Impax’s and its restricted subsidiaries’ ability to pay dividends or grant liens, engage in transactions with affiliates, or change its fiscal year. Prior to the effective date of the Amendment on March 27, 2017 the Amended and Restated Credit Agreement also included a financial maintenance covenant whereby Impax must not permit its total net leverage ratio in any 12-month period to exceed 5.00:1.00, as tested at the end of each fiscal quarter. Effective as of March 27, 2017 and pursuant to Amendment, the total net leverage ratio financial covenant was replaced with a senior secured net leverage ratio
 
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financial covenant. Pursuant to the Amendment, Impax must not permit its senior secured net leverage ratio to exceed 2.50:1.00 and its interest coverage ratio to be less than 3.00:1.00, in each case in any 12-month period, as tested at the end of each fiscal quarter. Impax were in compliance with all of its covenants under the Amended and Restated Credit Agreement as of December 31, 2017.
The Amended and Restated Credit Agreement contains events of default, including, without limitation (subject to customary grace periods and materiality thresholds), events of default upon (i) the failure to make payments pursuant to the terms of the Amended and Restated Credit Agreement, (ii) violation of covenants, (iii) incorrectness of representations and warranties, (iv) cross-default and cross-acceleration to other material indebtedness, (v) bankruptcy events, (vi) material monetary judgments (to the extent not covered by insurance), (vii) certain matters arising under the Employee Retirement Income Security Act of 1974, as amended, that could reasonably be expected to result in a material adverse effect, (viii) the actual or asserted invalidity of the documents governing the RBC Credit Facilities, any material guarantees or the security interests (including priority thereof) required under the Amended and Restated Credit Agreement and (ix) the occurrence of a change of control (as defined therein). Upon the occurrence of certain events of default, the obligations under the Amended and Restated Credit Agreement may be accelerated and any remaining commitments thereunder may be terminated.
The full amount of the proceeds from the Term Loan Facility of $400.0 million, along with $196.4 million of cash were used to finance the Teva Transaction, including transaction fees, on its closing date of August 3, 2016. As of December 31, 2017, the full amount of the $200.0 million Revolving Credit Facility remains available to us for working capital and other general corporate purposes.
In connection with the Term Loan Facility, Impax incurred $11.0 million of debt issuance costs for banking, legal and accounting fees and other expenses during the third quarter of 2016. In connection with the Amendment, Impax incurred $0.8 million of debt issuance costs for banking fees during the first quarter of 2017. These debt issuance costs were recorded on Impax’s consolidated balance sheet as a reduction to the current and long-term portions of debt related to the Term Loan Facility. These deferred debt issuance costs will be accreted to interest expense over the term of the debt using the effective interest method. In connection with the increase in the aggregate principal amount of revolving loans permitted under the Revolving Credit Facility, Impax incurred $0.8 million of debt issuance costs for banking fees which were recorded as an asset with current and long-term portions on its consolidated balance sheet. These deferred debt issuance costs, in addition to the $0.3 million balance remaining from the initial balance remaining from the initial $100.0 million revolving credit facility, will be amortized to interest expense over the term of the Revolving Credit Facility using the straight-line method.
For the year ended December 31, 2017, Impax recognized $17.7 million of interest expense related to the Term Loan Facility, of which $15.5 million was cash and $2.2 million was non-cash accretion of the debt discount recorded for deferred debt issuance costs. For the period of August 3, 2016 through December 31, 2016, Impax recognized $6.9 million of interest expense related to the Term Loan Facility, of which $6.0 million was cash and $0.9 million was non-cash accretion of debt discounts recorded for deferred debt issuance costs. As of December 31, 2017, the Term Loan Facility had a carrying value of $317.5 million, of which $17.8 million is classified as current debt and $299.7 million is classified as long-term debt on Impax’s consolidated balance sheet. The Term Loan Facility requires us to make quarterly principal payments of $5.0 million beginning from December 2016 through June 2021, and the remaining principal balance is payable in August 2021. As of December 31, 2017, the outstanding principal amount for the Term Loan Facility was $325.0 million.
Loss on Early Extinguishment of Debt—Voluntary Prepayment of $50.0 Million of Principal—RBC Term Loan Facility
On February 28, 2017, Impax made a voluntary prepayment in the amount of $50.3 million under its Term Loan Facility representing $50.0 million of principal amount and $0.3 million of accrued interest thereon. As a
 
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result of the voluntary prepayment, for the quarter ended March 31, 2017, Impax recorded a loss on early extinguishment of debt of $1.2 million to write-off a pro rated portion of the related unaccreted debt issuance costs.
2% Convertible Senior Notes due June 2022
On June 30, 2015, Impax issued an aggregate principal amount of $600.0 million of 2.00% Convertible Senior Notes due June 2022 (the “Notes”) in a private placement offering, which are its senior unsecured obligations. The Notes were issued pursuant to an Indenture dated June 30, 2015 (the “Indenture”) between us and Wilmington Trust, N.A., as trustee. The Indenture includes customary covenants and sets forth certain events of default after which the Notes may be due and payable immediately. The Notes will mature on June 15, 2022, unless earlier redeemed, repurchased or converted. The Notes bear interest at a rate of 2.00% per year, and interest is payable semiannually in arrears on June 15 and December 15 of each year, beginning on December 15, 2015.
The conversion rate for the Notes is initially set at 15.7858 shares per $1,000 of principal amount, which is equivalent to an initial conversion price of $63.35 per share of Impax’s common stock. If a Make-Whole Fundamental Change (as defined in the Indenture) occurs or becomes effective prior to the maturity date and a holder elects to convert its Notes in connection with the Make-Whole Fundamental Change, Impax are obligated to increase the conversion rate for the Notes so surrendered by a number of additional shares of its common stock as prescribed in the Indenture. Additionally, the conversion rate is subject to adjustment in the event of an equity restructuring transaction such as a stock dividend, stock split, spinoff, rights offering, or recapitalization through a large, nonrecurring cash dividend (“standard antidilution provisions,” per FASB ASC 815-40, Contracts in Entity’s Own Equity (“ASC 815-40”)).
The Notes are convertible at the option of the holders at any time prior to the close of business on the business day immediately preceding December 15, 2021 only under the following circumstances:
 
 	(i)	If during any calendar quarter commencing after the quarter ending September 30, 2015 (and only during such calendar quarter) the last reported sale price of Impax’s common stock for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is greater than 130% of the conversion price on each applicable trading day; or	
 
 	(ii)	If during the five business day period after any 10 consecutive trading day period (the “measurement period”) in which the trading price per $1,000 of principal amount of Notes for each trading day of the measurement period was less than 98% of the product of the last report sale price of Impax’s common stock and the conversion rate on each such trading day; or	
 
 	(iii)	Upon the occurrence of corporate events specified in the Indenture.	
On or after December 15, 2021 until the close of business on the second scheduled trading day immediately preceding the maturity date, the holders may convert their Notes at any time, regardless of the foregoing circumstances. Impax may satisfy its conversion obligation by paying or delivering, as the case may be, cash, shares of its common stock, or a combination of cash and shares of its common stock, at its election and in the manner and subject to the terms and conditions provided in the Indenture.
Concurrently with the offering of the Notes and using a portion of the proceeds from the sale of the Notes, Impax entered into a series of convertible note hedge and warrant transactions (the “Note Hedge Transactions” and “Warrant Transactions”) which are designed to reduce the potential dilution to its stockholders and/or offset the cash payments Impax are required to make in excess of the principal amount upon conversion of the Notes. The Note Hedge Transactions and Warrant Transactions are separate transactions, in each case, entered into by us with a financial institution and are not part of the terms of the Notes. These transactions will not affect any
 
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holder’s rights under the Notes, and the holders of the Notes have no rights with respect to the Note Hedge Transactions and Warrant Transactions. See “Note 10. Debt” and “Note 11. Stockholders’ Equity” for additional information.
For the years ended December 31, 2017 and December 31, 2016, Impax recognized $35.5 million and $33.8 million, respectively, of interest expense related to the Notes, of which $12.0 million and $12.0 million, respectively, was cash and $23.5 million and $21.8 million, respectively, was non-cash accretion of the debt discounts recorded. As the Notes mature in 2022, they have been classified as long-term debt on Impax’s consolidated balance sheets, with a carrying value of $469.9 million and $446.4 million as of December 31, 2017 and December 31, 2016, respectively. Accrued interest payable on the Notes of $0.5 million as of both December 31, 2017 and December 31, 2016 is included in accrued expenses on Impax’s consolidated balance sheets.
On November 6, 2017, Impax entered into a supplemental indenture (the “First Supplemental Indenture”) to the Indenture. The First Supplemental Indenture was entered into to effectuate certain amendments to the Indenture in connection with the consummation of Impax’s consent solicitation with respect to the Notes on October 30, 2017, seeking consents from holders of the Notes to the proposed amendments as set forth in the First Supplemental Indenture.
The First Supplemental Indenture (a) amends a covenant in the Indenture relating to Impax’s corporate existence, (b) allows Impax to satisfy its reporting requirements by providing reports of any parent entity, (c) adds a provision to the Indenture requiring Impax to make and consummate a tender offer for any outstanding notes under the Indenture, and (d) expressly authorizes Impax to consummate the transactions contemplated by the Business Combination Agreement.
Critical Accounting Policies and Use of Estimates
The preparation of Impax’s consolidated financial statements in accordance with accounting principles generally accepted in the United States (“GAAP”) and the rules and regulations of the U.S. Securities & Exchange Commission (“SEC”) require the use of estimates and assumptions, based on complex judgments considered reasonable, and affect the reported amounts of assets and liabilities and disclosure of contingent assets and contingent liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. The most significant judgments are employed in estimates used in determining values of tangible and intangible assets, contingent consideration, legal contingencies, tax assets and tax liabilities, fair value of share-based compensation related to equity incentive awards issued to employees and directors, and estimates used in applying Impax’s revenue recognition policy including those related to accrued chargebacks, rebates, distribution service fees, product returns, Medicare, Medicaid, and other government rebate programs, shelf-stock adjustments, and the timing and amount of deferred and recognized revenue under its several alliance and collaboration agreements. Actual results may differ from estimated results. Certain prior year amounts have been reclassified to conform to the presentation for the year ended December 31, 2017.
Although Impax believes its estimates and assumptions are reasonable when made, they are based upon information available to us at the time they are made. Impax periodically reviews the factors having an influence on its estimates and, if necessary, adjust such estimates. Due to the risks and uncertainties involved in Impax’s business and evolving market conditions, and given the subjective element of the estimates made, actual results may differ from estimated results. This possibility may be greater than normal during times of pronounced economic volatility.
Impax Generics sales, net, and Impax Specialty Pharma sales, net. Impax recognizes revenue from the sale of products when title and risk of loss of the product is transferred to the customer and the sales price is fixed and determinable. Provisions for discounts, early payments, rebates, sales returns and distributor chargebacks under
 
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terms customary in the industry are provided for in the same period the related sales are recorded. Impax record estimated reductions to revenue at the time of the initial sale and these estimates are based on the sales terms, historical experience and trend analysis.
Gross to Net Sales Accruals. Sales returns accruals are based on using a historical lag period, which is the time between when the product is sold and when it is ultimately returned, and estimated return rates which may be adjusted based on various assumptions including: changes to internal policies and procedures, business practices, commercial terms with customers, and the competitive position of each product; the amount of inventory in the wholesale and retail supply chain; the introduction of new products; and changes in market sales information. Impax also consider other factors, including significant market changes which may impact future expected returns, and actual product returns. Impax allow our customers to return product if approved by authorized personnel in writing or by telephone with the lot number and expiration date accompanying any request and if such products are returned within six months prior to or until twelve months following, the product’s expiration date. Impax estimates and recognizes an accrued provision for product returns as a percentage of gross sales based upon historical experience. Any changes from the historical trend rates are considered in determining the current sales return allowance. If the historical data Impax uses to calculate these estimates do not properly reflect future returns, then a change in the allowance would be made in the period in which such a determination is made and revenues in that period could be materially affected.
Cash discount accruals are based on payment terms extended to customers which are generally 2% to 3% of the gross selling price, as an incentive for paying within invoice terms, which generally range from 30 to 90 days. An estimate of cash discounts is recorded in the same period when revenue is recognized.
Government rebate accruals are based on estimated payments due to governmental agencies for purchases made by third parties under various governmental programs. U.S. Medicaid rebate accruals are generally based on historical payment data and estimates of future Medicaid beneficiary utilization applied to the Medicaid unit rebate formula established by the Center for Medicaid and Medicare Services. The accrual of the rebates associated with Medicaid Managed Care Organizations is calculated based on actual billings received from the states. Impax adjusts the rebate accruals as more information becomes available and to reflect actual claims experience. Effective January 1, 2011, manufacturers of pharmaceutical products are responsible for 50% of the patient’s cost of branded prescription drugs related to the Medicare Part D Coverage Gap. In order to estimate the cost to us of this coverage gap responsibility, Impax analyzes the historical invoices. This expense is recognized throughout the year as costs are incurred. TRICARE is a health care program of the U.S. Department of Defense Military Health System that provides civilian health benefits for military personnel, military retirees and their dependents. TRICARE rebate accruals are based on estimated Department of Defense eligible sales multiplied by the TRICARE rebate formula.
Rebates and administrative fees are offered to certain customers, group purchasing organizations and pharmacy benefit managers, consistent with pharmaceutical industry practices. Settlement of rebates and fees may generally occur from one to 15 months from the date of sale. Impax provides a provision for rebates and administrative fees at the time of sale based on contracted rates and historical redemption rates. Assumptions used to establish the provision include level of customer inventories, contract sales mix and average contract pricing. Impax regularly reviews the information related to these estimates and adjust the provision accordingly.
Chargeback accruals are based on the differentials between product acquisition prices paid by wholesalers and lower contract pricing paid by eligible customers.
Distribution service fee accruals are based on contractual fees to be paid to the wholesale distributor for services provided.
A significant majority of Impax’s gross to net accruals are the result of chargebacks and rebates and administrative fees, with the majority of those programs having an accrual to payment cycle of three months. In
 
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addition to this relatively short accrual to payment cycle, Impax receives monthly information from the wholesalers regarding their sales of its products and actual on hand inventory levels of its products. During the year ended December 31, 2017, the three large wholesalers account for 99% of Impax’s chargebacks and 66% of its indirect sales rebates. Consistent with the pharmaceutical industry, the accrual to payment cycle for returns is longer and can take several years depending on the expiration of the related products. However, returns represent the smallest gross to net adjustment. Impax has not experienced any significant changes in its estimates as it relates to its chargebacks, rebates or returns in each of the years in the three-year period ended December 31, 2017.
The following tables are rollforwards of the activity in the reserves for the years ended December 31, 2017, 2016 and 2015 with an explanation for any significant changes in the accrual percentages (in thousands):

 	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	
Chargeback reserve	  				 				 				
Beginning balance	  	$	151,978	 	 	$	102,630	 	 	$	43,125	 	
Acquired balances	  	 	—  	 	 	 	—  	 	 	 	24,532	 	
Provision recorded during the period	  	 	1,212,039	 	 	 	1,011,400	 	 	 	833,157	 	
Credits issued during the period	  	 	(1,227,126	) 	 	 	(962,052	) 	 	 	(798,184	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Ending balance	  	$	136,891	 	 	$	151,978	 	 	$	102,630	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Provision as a percent of gross product sales	  	 	42	% 	 	 	36	% 	 	 	34	% 	
As noted in the table above, the provision for chargebacks, as a percent of gross product sales, increased to 42% in 2017 from 36% in 2016 primarily due to the change in products sales mix due to the Teva Transaction, which closed in August 2016 and which products carry a higher chargeback rate, a higher chargeback rate on both Fenofibrate and Budesonide product sales due to increase market competition in 2017 and lower product sales of Diclofenac Sodium Gel, which carried a lower chargeback rate.
The aggregate provision for chargebacks, as a percent of gross product sales, increased to 36% in 2016 from 34% in 2015 primarily as a result of product sales mix and inclusion of product sales from the Tower Acquisition and Teva Transaction.

 	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	
Rebate reserve	  				 				 				
Beginning balance	  	$	300,647	 	 	$	265,229	 	 	$	88,812	 	
Acquired balances	  	 	—  	 	 	 	—  	 	 	 	75,447	 	
Provision recorded during the period	  	 	663,724	 	 	 	768,629	 	 	 	571,642	 	
Credits issued during the period	  	 	(769,104	) 	 	 	(733,211	) 	 	 	(470,672	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Ending balance	  	$	195,267	 	 	$	300,647	 	 	$	265,229	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Provision as a percent of gross product sales	  	 	23	% 	 	 	27	% 	 	 	23	% 	
As noted in the table above, the provision for rebates, as a percent of gross product sales, decreased from 27% during the year ended December 31, 2016 to 23% during the year ended December 31, 2017 as a result of lower product sales of Diclofenac Sodium Gel, which carried a higher rebate rate, and the discontinuation of the Amphetamine Salts IR products in May 2017, which carried a higher rebate rate.
The provision for rebates, as a percent of gross product sales, increased from 23% during the year ended December 31, 2015 to 27% during the year ended December 31, 2016 as a result of product sales mix, the formation of alliances between certain major wholesalers and major retailers and the inclusion of product sales from the Tower Acquisition, which carry a higher rebate rate.
 
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The table above represents rebates in both the Impax Generics and Impax Specialty Pharma divisions. The payment mechanisms for rebates in the Impax Generics and Impax Specialty Pharma divisions are different, which impacts the location on its balance sheet. Only rebates in the Impax Generics division are shown, as Impax Specialty Pharma rebates are classified as Accrued Expenses on Impax’s consolidated balance sheets.

 	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	
Returns reserve	  				 				 				
Beginning balance	  	$	72,888	 	 	$	48,950	 	 	$	27,174	 	
Acquired balances	  	 	—  	 	 	 	—  	 	 	 	11,364	 	
Provision related to sales recorded in the period	  	 	47,709	 	 	 	52,383	 	 	 	43,967	 	
Credits issued during the period	  	 	(44,304	) 	 	 	(28,445	) 	 	 	(33,555	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Ending balance	  	$	76,293	 	 	$	72,888	 	 	$	48,950	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Provision as a percent of gross product sales	  	 	1.7	% 	 	 	1.9	% 	 	 	2.0	% 	
As noted in the table above, the provision for returns as a percent of gross product sales decreased to 1.7% in 2017 compared to 1.9% in 2016 as a result of slightly lower historical returns experience.
The provision for returns as a percent of gross product sales decreased to 1.9% in 2016 compared to 2.0% in 2015 as a result of slightly lower historical returns experience.
Medicaid and Other Government Pricing Programs. As required by law, Impax provides a rebate payment on drugs dispensed under the Medicaid, Medicare Part D, TRICARE, and other U.S. government pricing programs. Impax determines its estimate of the accrued rebate reserve for government programs primarily based on historical experience of claims submitted by the various states, and other jurisdictions, as well as any new information regarding changes in the pricing programs that may impact its estimate of rebates. In determining the appropriate accrual amount, Impax considers historical payment rates and processing lag for outstanding claims and payments. Impax records estimates for government rebate payments as a deduction from gross sales, with corresponding adjustments to accrued liabilities. The accrual for payments under government pricing programs totaled $60.3 million, $72.1 million, and $91.7 million as of December 31, 2017, December 31, 2016 and December 31, 2015, respectively.
Shelf-Stock Adjustments. Based upon competitive market conditions, Impax may reduce the selling price of some of its products to customers for certain future product shipments. Impax may issue a credit against the sales amount to a customer based upon its remaining inventory of the product in question, provided the customer agrees to continue to make future purchases of product from us. This type of customer credit is referred to as a shelf-stock adjustment, which is the difference between the sales price and the revised lower sales price, multiplied by an estimate of the number of product units on hand at a given date. Decreases in selling prices are discretionary decisions made by us in response to market conditions, including estimated launch dates of competing products and estimated declines in market price. The accrued reserve for shelf-stock adjustments totaled $7.5 million, $7.0 million, and $6.6 million as of December 31, 2017, December 31, 2016 and December 31, 2015, respectively.
Rx Partner and OTC Partner. Each of Impax’s Rx Partner and OTC Partner agreements contain multiple deliverables in the form of products, services and/or licenses over extended periods. FASB ASC Topic 605-25 supplemented SAB 104 and provides guidance for accounting for such multiple-element revenue arrangements. With respect to its multiple-element revenue arrangements that are material to its financial results, Impax determines whether any or all of the elements of the arrangement should be separated into individual units of accounting under FASB ASC Topic 605-25. If separation into individual units of accounting is appropriate, Impax recognizes revenue for each deliverable when the revenue recognition criteria specified by SAB 104 are achieved for the deliverable. If separation is not appropriate, Impax recognizes revenue and related direct
 
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manufacturing costs over the estimated life of the agreement or its estimated expected period of performance using either the straight-line method or a modified proportional performance method.
The Rx Partners and OTC Partners agreements obligate us to deliver multiple goods and/or services over extended periods. Such deliverables include manufactured pharmaceutical products, exclusive and semi-exclusive marketing rights, distribution licenses, and research and development services. In exchange for these deliverables, Impax receives payments from its agreement partners for product shipments and research and development services, and may also receive other payments including royalty, profit sharing, upfront payments, and periodic milestone payments. Revenue received from Impax’s partners for product shipments under these agreements is generally not subject to deductions for chargebacks, rebates, product returns, and other pricing adjustments. Royalty and profit sharing amounts Impax receives under these agreements are calculated by the respective agreement partner, with such royalty and profit share amounts generally based upon estimates of net product sales or gross profit which include estimates of deductions for chargebacks, rebates, product returns, and other adjustments the alliance agreement partners may negotiate with their customers. Impax records the agreement partner’s adjustments to such estimated amounts in the period the agreement partner reports the amounts to us.
OTC Partner revenue was previously related to Impax’s alliance and collaboration agreement with Pfizer, Inc., formerly Wyeth LLC (“Pfizer”) and its supply agreement with L. Perrigo Company (“Perrigo”) with respect to the supply of over-the-counter pharmaceutical product Loratadine and Pseudoephedrine Sulfate 5 mg/120 mg 12-hour Extended Release Tablets (the “D12 Product”). Following the expiration of its obligation to supply the D12 Product to Pfizer and Perrigo as described below, Impax does not currently sell any over-the-counter pharmaceutical products through this sales channel. Impax previously recognized profit share revenue in the period earned.
During the quarter ended September 30, 2016, Impax sold the ANDAs for both the D12 Product and Loratadine and Pseudoephedrine Sulfate 10 mg/240 mg 24-hour Extended Release Tablets, in addition to other specified assets, to Perrigo pursuant to an asset purchase agreement with Perrigo dated as of March 31, 2016 (the “Perrigo APA”). Under the terms of the Perrigo APA, Impax was required to continue to supply the D-12 Product to Pfizer and Perrigo until the date that was the earliest of (i) the date that Perrigo’s manufacturing facility was approved to manufacture the D-12 Product and (ii) December 31, 2017. On November 30, 2017, Impax transferred manufacturing of the D12 Product to Perrigo and assigned and transferred its supply agreement with Pfizer in its entirety to Perrigo in accordance with the Perrigo APA.
Research Partner. Impax has entered into development agreements with unrelated third-party pharmaceutical companies under which Impax iscollaborating in the development of five dermatological products, including four generic products and one branded dermatological product. Impax is not currently in the process of developing the branded dermatological product. Under each of the development agreements, Impax received an upfront fee with the potential to receive additional milestone payments upon completion of contractually specified clinical and regulatory milestones. Impax defers and recognizes revenue received from the achievement of contingent research and development milestones in the period such payment is earned. Impax will recognize royalty fee income, if any, as current period revenue when earned.
Estimated Lives of Alliance and Collaboration Agreements. Because Impax may defer revenue Impax receives under its alliance agreements, and recognize it over the estimated life of the related agreement, or its expected period of performance, Impax isrequired to estimate the recognition period under each such agreement in order to determine the amount of revenue to be recognized in each period. Sometimes this estimate is based on the fixed term of the particular alliance agreement. In other cases the estimate may be based on more subjective factors as noted in the following paragraphs. While changes to the estimated recognition periods have been infrequent, such changes, should they occur, may have a significant impact on Impax’s consolidated financial statements.
 
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Third-Party Research Agreements. In addition to its own research and development resources, Impax may use unrelated third-party vendors, including universities and independent research companies, to assist in its research and development activities. These vendors provide a range of research and development services to us, including clinical and bio-equivalency studies. Impax generally signs agreements with these vendors which establish the terms of each study performed by them, including, among other things, the technical specifications of the study, the payment schedule, and timing of work to be performed. Third-party researchers generally earn payments either upon the achievement of a milestone, or on a pre-determined date, as specified in each study agreement. Impax accounts for third-party research and development expenses as they are incurred according to the terms and conditions of the respective agreement for each study performed, with an accrued expense at each balance sheet date for estimated fees and charges incurred by us, but not yet billed to us. Impax monitors aggregate actual payments and compare them to the estimated provisions to assess the reasonableness of the accrued expense balance at each quarterly balance sheet date.
Share-Based Compensation. Impax recognizes the grant date fair value of each option and restricted share over its vesting period. Stock options and restricted stock awards granted under the 2002 Plan generally vest over a four year period and, in the case of stock options, have a term of ten years. Impax estimates the fair value of each stock option award on the grant date using the Black-Scholes-Merton option-pricing model, wherein expected volatility is based on historical volatility of its common stock. Impax bases the expected term calculation on the “simplified” method described in SAB No. 107, Share-Based Payment and SAB No. 110, Share-Based Payment, because it provides a reasonable estimate in comparison to its actual experience. Impax bases the risk-free interest rate on the U.S. Treasury yield in effect at the time of grant for an instrument with a maturity that is commensurate with the expected term of the stock options. The dividend yield is zero as Impax has never paid cash dividends on its common stock, and have no present intention to pay cash dividends.
Income Taxes. Impax is subject to U.S. federal, state and local income taxes, Netherlands income tax, Republic of Ireland income tax and Taiwan R.O.C. income taxes. In accordance with U.S. Securities and Exchange Commission Staff Accounting Bulletin No. 118 (“SAB 118”) the amounts recorded in the fourth quarter of 2017 related to the 2017 Tax Reform Act represent reasonable estimates based on Impax’s analysis to date and are considered to be provisional and subject to revision during 2018. Provisional amounts were recorded for the Transition Tax, and the re-measurement of its 2017 U.S. net deferred tax liabilities. These amounts are considered to be provisional as Impax continues to assess available tax methods and elections and refine its computations. In addition, further regulatory guidance related to the 2017 Tax Reform Act is expected to be issued in 2018 which may result in changes to Impax’s current estimates. Any revisions to the estimated impacts of the 2017 Tax Reform Act will be recorded quarterly until the computations are complete which is expected no later than the fourth quarter of 2018.
Significant management judgment is required in determining the provision for income taxes, deferred tax assets and liabilities, and any valuation allowance recorded against net deferred tax assets. The process involves summarizing temporary differences between the financial statement carrying values (in accordance with U.S. GAAP) and the tax bases of Impax’s assets and liabilities. These differences result in a net deferred tax asset or liability, which is included within the consolidated balance sheet. In addition, Impax is required to assess whether valuation allowances should be established against its deferred tax assets based on consideration of all available evidence using a “more likely than not” standard. To the extent a valuation allowance is established in a period, an expense must generally be recorded within the income tax provision in the statement of operations.
In assessing the realizability of its deferred tax assets, Impax considers whether it is more likely than not that its deferred tax assets will be realized based upon all available evidence, including, but not limited to, scheduled reversal of deferred tax liabilities, prior earnings history, projected future earnings, carryback and carryforward periods and the feasibility of ongoing tax strategies that could potentially enhance the likelihood of the realization of a deferred tax asset. The weight Impax affords the evidence is commensurate with the extent the evidence may be objectively verified. As such, Impax did not rely on or project future taxable income (exclusive of reversing taxable temporary differences and carryforwards) to outweigh objective negative evidence of a recent financial reporting loss for the years ended December 31, 2017 or December 31, 2016.
 
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In relying on the objectively verifiable negative evidence of the three-year cumulative loss, and in not considering or projecting taxable income under the provisions of FASB ASC Topic 740, “Income Taxes,” Impax confined its sources of income to realize the deferred tax assets to (1) carryback to recover taxes paid in the current year or prior years and (2) offsetting taxable amounts related to taxable temporary differences within the carryback or carryforward period for which deferred tax liabilities are more likely than not to be realized. The deferred tax liabilities consist of indefinite-lived acquired in-process research and development (“IPR&D”) product rights.
Impax’s consolidated net deferred tax asset valuation allowance totaled $184.6 million as of December 31, 2017, such that Impax realizes on a more likely than not basis, a tax-effected net deferred tax liability of $3.2 million. If actual results differ from these estimates or these estimates are adjusted in future periods, the valuation allowance may need to be adjusted, which could materially impact Impax’s financial position and results of operations. If sufficient positive evidence arises in the future indicating that all or a portion of the deferred tax assets meet the more likely than not standard for realization, the valuation allowance would be reduced accordingly in the period that such a conclusion is reached.
Impax recognizes the effect of income tax positions only if those positions are more likely than not of being sustained. Recognized income tax positions are measured at the largest amount that is greater than 50% likely of being realized. Impax reevaluates the effect of uncertain income tax positions on a quarterly basis, and any changes in recognition or measurement are reflected in the period in which the change in judgment occurs. This evaluation is based on factors including, but not limited to, changes in facts and circumstances, changes in tax law, effectively settled issues, and new audit activity. Any changes in these factors could result in changes to a tax benefit or tax provision.
Contingencies. In the normal course of business, Impax is subject to loss contingencies, such as legal proceedings and claims arising out of its business, covering a wide range of matters, including, among others, patent litigation, stockholder lawsuits, and product and clinical trial liability. In accordance with FASB ASC Topic 450, “Contingencies,” Impax records accrued loss contingencies when it is probable a liability will be incurred and the amount of loss can be reasonably estimated. Impax do not recognize gain contingencies until they have been realized.
Intangible Assets. Impax’s intangible assets include both finite lived and indefinite lived assets. Finite lived intangible assets, consisting of marketed product rights and royalties received from product sales by Impax’s third party partners, are amortized over the estimated useful life of the asset based on the pattern in which the economic benefits are expected to be consumed or otherwise used up or, if that pattern is not readily determinable, on a straight-line basis. Indefinite-lived intangible assets consist of acquired IPR&D product rights and acquired future royalty rights to be paid based on other companies’ net sales of products not yet approved. IPR&D assets acquired in a business combination are considered indefinite-lived until the completion or abandonment of the associated research and development efforts. Amortization over the estimated useful life will commence at the time of the respective product’s launch. If FDA approval to market the product is not obtained, Impax will immediately expense the related capitalized cost.
Finite lived intangible assets are tested for impairment when events or changes in circumstances indicate that the carrying value of the asset may not be recoverable. All of Impax’s indefinite-lived intangible assets are tested for impairment at least annually during the fourth quarter of the fiscal year, or more often if indicators of impairment are present. Impairment testing requires management to estimate the future undiscounted cash flows of an intangible asset using assumptions believed to be reasonable, but which are unpredictable and inherently uncertain. Actual future cash flows may differ from the estimates used in the impairment testing. Impax recognizes an impairment loss when and to the extent that the estimated fair value of an intangible asset is less than its carrying value.
Goodwill . In accordance with FASB ASC Topic 350, “Goodwill and Other Intangibles,” rather than recording periodic amortization of goodwill, goodwill is subject to an annual assessment for impairment. Under
 
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FASB ASC Topic 350, if the fair value of the reporting unit exceeds the reporting unit’s carrying value, including goodwill, then goodwill is considered not impaired, making further analysis not required. Impax considers each of its Impax Generics division and Impax Specialty Pharma division operating segments to be a reporting unit, as this is the lowest level for each of which discrete financial information is available. Impax attributes $59.7 million of goodwill to the Impax Specialty Pharma division and $147.6 million of goodwill to the Impax Generics division.
Impax concluded the carrying value of goodwill was not impaired as of December 31, 2017 and 2016, as the fair value of the Impax Specialty Pharma division and the Impax Generics division exceeded their respective carrying values at each date. In the fourth quarter of 2017, Impax determined that it was not more likely than not that the fair value of goodwill was less than its carrying value. As a result Impax did not perform a quantitative analysis. In the fourth quarter of 2016, Impax performed a quantitative analysis and estimated the fair value of the Impax Specialty Pharma division and the Impax Generics division using a discounted cash flow model for both the reporting unit and the enterprise, as well as earnings and revenue multiples per common share outstanding for enterprise fair value. In addition, on a quarterly basis, Impax performs a review of its business operations to determine whether events or changes in circumstances have occurred that could have a material adverse effect on the estimated fair value of each reporting unit, and thus indicate a potential impairment of the goodwill carrying value. If such events or changes in circumstances were deemed to have occurred, Impax would perform an interim impairment analysis, which may include the preparation of a discounted cash flow model, or consultation with one or more valuation specialists, to analyze the impact, if any, on its assessment of the reporting unit’s fair value.
Recent Accounting Pronouncements
Recently issued accounting standards are discussed in Note 5 of the consolidated financial statements of Impax included elsewhere in this prospectus.
Quantitative and Qualitative Disclosures about Market Risk
Impax’s cash is held on deposit in demand accounts at large financial institutions in amounts in excess of the Federal Deposit Insurance Corporation (FDIC) insurance coverage limit of $250,000 per depositor, per FDIC-insured bank, per ownership category. Impax’s cash equivalents are comprised of highly-rated money market funds. Impax had no short-term investments as of December 31, 2017 or December 31, 2016.
Financial instruments that potentially subject us to concentrations of credit risk consist principally of cash equivalents and accounts receivable. Impax limits its credit risk associated with cash equivalents by placing investments with high credit quality securities, including U.S. government securities, treasury bills, corporate debt, short-term commercial paper and highly-rated money market funds. Impax is party to a Term Loan facility of $400.0 million (of which $325.0 million is outstanding as of December 31, 2017) and a Revolving Credit Facility, of up to $200.0 million pursuant to the RBC Credit Facilities. The amount under Impax’s Revolving Credit Facility is available for working capital and other general corporate purposes. Impax also issued the Notes in a private placement offering on June 30, 2015, which are its senior unsecured obligations, as described above under “Outstanding Debt Obligations.”
Impax limits its credit risk with respect to accounts receivable by performing credit evaluations when deemed necessary. Impax does not require collateral to secure amounts owed to us by its customers. Impax recorded a reserve in the amount of $48.0 million on its consolidated statement of operations for the period ended March 31, 2016, representing the full amount of the estimated receivable due from Turing for reimbursement of Daraprim ® chargebacks and Medicaid rebate liabilities as of March 31, 2016. During the fourth quarter of 2016, Impax received $7.7 million in payments from Turing. During the year ended December 31, 2017, Impax increased the reserve balance by a net $4.0 million, consisting of a $5.0 million increase in the reserve resulting from additional Medicaid rebate claims received during the period and a $1.0 million reduction in the reserve
 
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resulting from payments received from Turing during the period. As of December 31, 2017, the $44.3 million estimated receivable due from Turing was fully reserved.
Prior to June 30, 2015, Impax had no derivative assets or liabilities and did not engage in any hedging activities. As a result of its June 30, 2015 issuance of the Notes described, Impax entered into a series of convertible note hedge and warrant transactions (the “Note Hedge Transactions” and “Warrant Transactions”) which are designed to reduce the potential dilution to its stockholders and/or offset the cash payments Impax is required to make in excess of the principal amount upon conversion of the Notes.
Impax does not use derivative financial instruments or engage in hedging activities in its ordinary course of business and have no material foreign currency exchange exposure or commodity price risks.
Impax does not believe that inflation has had a significant impact on its revenues or operations to date.
 
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 BUSINESS
Our Business
We are a specialty pharmaceutical company specializing in developing, manufacturing, marketing and distributing high-value generic pharmaceutical products across a broad array of dosage forms and therapeutic areas, as well as the development, manufacture and sale of branded products.
Background
Amneal
Amneal is a generic pharmaceutical company specializing in developing, manufacturing, marketing and distributing high-value generic pharmaceutical products across a broad array of dosage forms and therapeutic areas. Amneal currently markets over 125 product families in the United States and its marketed and pipeline generics portfolios cover an extensive range of dosage forms and delivery systems, including both immediate and extended release oral solids such as tablets, capsules and powders, liquids, sterile injectables, nasal sprays, inhalation and respiratory products, ophthalmics (which are sterile pharmaceutical preparations administered for ocular conditions), films, transdermal patches and topicals (which are creams or gels designed to administer pharmaceuticals locally through the skin). Amneal focuses on developing products with substantial barriers-to-entry as a result of complex drug formulations or manufacturing, legal and/or regulatory challenges. Focusing on these opportunities allows Amneal to offer FTF, FTM and other “high-value” products, which Amneal defines as products with zero to three generic competitors at time of launch. These products generally have limited competition at launch, tend to be more profitable and often have longer life cycles than other generic pharmaceuticals. As of December 31, 2017, Amneal had 156 products approved but not yet launched or pending FDA approval and another 123 products in various stages of clinical development. Over 58% of Amneal’s total generic pipeline consists of potential FTF, FTM and high-value products. Amneal has an integrated, team-based approach to product development that combines its formulation, regulatory, legal, manufacturing and commercial capabilities.
Amneal was founded in 2002 by Chintu and Chirag Patel and is a limited liability company organized under the laws of Delaware. Since Amneal’s founding, Amneal has invested heavily in R&D and infrastructure in order to fuel future growth. As a result of these investments, as well as a continued focus on quality and customer service, Amneal has developed what it believes to be one of the largest generic product pipelines in the United States, as well as comprehensive development and manufacturing expertise and capability across all major dosage forms. This allows Amneal a greater degree of profitability, control over quality and agility in the face of changing market dynamics. Amneal has also developed vertically integrated API manufacturing capabilities, which it utilizes on a selective, product-by-product basis based on API scarcity or as alternate supply for strategically critical products. As of December 31, 2017, Amneal had launched 34 products in 2017, compared to 18 and 14 for the full years ended December 31, 2016 and 2015, respectively.
For the year ended December 31, 2017, Amneal had net revenue of $1,033.7 million, net income of $169.3 million and adjusted EBITDA of $336.1 million. Amneal’s investment in growth initiatives and ability to successfully launch new products has resulted in a compound annual revenue growth rate of 10%, and an adjusted EBITDA compound annual growth rate of 9% over the last three years. Net income had a compound annual decline of 2% over the last three years. Amneal plans to strengthen its competitive position as a leading generic pharmaceutical company by continuing to focus on developing and commercializing high-value products.
As noted above, Amneal’s product development strategy emphasizes potential FTF, FTM and other high-value products. A generic pharmaceutical product is considered a FTF product if the ANDA filed with respect to such product is the first to be filed for such product which contains a paragraph IV patent challenge to the branded form of the product (a “ Paragraph IV Challenge ”) under the Hatch-Waxman Act FTF status provides a statutory 180-day exclusivity period if the Paragraph IV Challenge either renders a favorable court decision or
 
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the expiration of 30 months after the patent owner brings an infringement action within 45 days from receiving notification by the applicant of the patent challenge, and the ANDA is approved by the FDA. This exclusivity period may be awarded to one ANDA sponsor or, under certain circumstances, may be required to be shared with other applicable ANDA sponsors with Paragraph IV certifications. A generic product is considered an FTM product if it is the first marketed generic version of a branded pharmaceutical for reasons other than statutory exclusivity. Amneal defines other “high-value” products as those with zero to three generic competitors (not including Amneal) at the time of launch. Within Amneal’s pipeline of filed and in-development products, over 58% are intended to be FTF, FTM or otherwise high-value products. As a result, and in light of the significant investment Amneal makes in R&D and infrastructure, Amneal is well positioned to support sustainable profitability and growth with anticipated future product launches.
The principal source of growth for Amneal’s business over the last five years has been the launch of internally developed products in the United States, and it expects this trend to continue in the near future. As of December 31, 2017, Amneal’s generic product pipeline contained 279 products, of which 156 are approved but not yet launched or pending with the FDA and 123 are in active stages of development. Amneal believes the strength and breadth of its product pipeline will enable it to differentiate itself in a challenging environment for the generic manufacturing industry and to continue its track record of revenue and EBITDA growth. Additionally, because the majority of Amneal’s product launches over the next two years are with respect to generic products for which an ANDA has already been filed with the FDA, Amneal believes that such product launches carry significantly less development risk.

Approved or Pending ANDA Filings: 156	 	
Dosage Form	  	# of Products	 	  	% of Total	 	 	LTM December
2017
IMS Sales ($bn)	 	
Sterile Injectables/Aseptics	  	 	30	 	  	 	19	% 	 	$	9.0	 	
Oral Solids	  	 	95	 	  	 	61	% 	 	 	55.3	 	
Liquids/Semi-solids	  	 	25	 	  	 	16	% 	 	 	5.9	 	
Transdermals/Mucosals	  	 	6	 	  	 	4	% 	 	 	2.4	 	
	  	 	 	 	  	 	 	 	 	 	 	 	
Total	  	 	156	 	  	 	100	%  	 	$	72.6	 	

Current Development Pipeline: 123	 	
Dosage Form	  	# of Products	 	  	% of Total	 	 	LTM December
2017
IMS Sales ($bn)	 	
Sterile Injectables/Aseptics	  	 	45	 	  	 	37	% 	 	$	11.8	 	
Oral Solids	  	 	43	 	  	 	35	% 	 	 	14.2	 	
Liquids/Semi-solids	  	 	21	 	  	 	17	% 	 	 	1.8	 	
Transdermals/Mucosals	  	 	7	 	  	 	6	% 	 	 	2.8	 	
Respiratory	  	 	7	 	  	 	6	% 	 	 	12.9	 	
	  	 	 	 	  	 	 	 	 	 	 	 	
Total	  	 	123	 	  	 	100	%  	 	$	43.6	 	
Figure 1. Pending ANDA Filings and Current Development Pipeline. This information is an estimate derived from the use of information under license from the following IMS health information service: SMART US Edition for the period through December, 2017. IMS expressly reserves all rights, including rights of copying, distribution and republication. The information provided by IMS is publicly available and was not prepared at the request of Impax, Amneal or Holdco.
For the years ended December 31, 2012 through 2017, Amneal invested a total aggregate of approximately $1.3 billion on R&D and capital expenditures as it built its pipeline and expanded its development and manufacturing capabilities. Amneal’s R&D expenses, including intellectual property (“ IP ”) legal development expenses, were approximately 15% of its net revenue in 2014, growing to 19% of its net revenue in 2016 and 17% in 2017. Going forward, Amneal expects that its investments will support strong topline and profitability
 
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growth. For further detail on Amneal’s historical GAAP R&D expenses, see the section entitled “ Selected Historical Consolidated Financial Information of Amneal. ”
In 2008, Amneal acquired the assets, facilities and business of Interpharm, a U.S. generic pharmaceutical company. The acquisition included Interpharm’s manufacturing sites in Long Island, New York as well as IP such as ANDAs, technology and processes. Amneal successfully integrated the acquired assets, which contributed to achieving its growth and scale targets.
While the majority of Amneal’s subsequent growth has been driven by organic product development, Amneal’s senior management team has a strong track record of executing business development opportunities and product acquisitions. In the ordinary course of business, Amneal engages in a variety of product acquisitions and business development collaborations. Apart from product acquisitions and development collaborations, over the past several years Amneal has also selectively acquired manufacturing facilities in the United States, India and Ireland in order to support its growth and expand into more complex dosage forms. A summary of key product and business acquisitions and collaborations is included in the table below:

Figure 2. Selected Transactions Completed by Amneal
 
1.	Amneal’s Spain and Nordics businesses were divested in September 2017 and Amneal’s Australian business was divested in August 2017.	
As a generic pharmaceutical company, Amneal’s business involves marketing generic pharmaceuticals following the expiry, invalidity or non-infringement of branded company IP. As such, Amneal’s competitors may allege that Amneal is infringing their IP, forcing Amneal to expend resources in the resulting litigation.
 
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As a generic pharmaceutical company, Amneal may periodically have significant working capital requirements, which Amneal defines as current assets less current liabilities. These can include an increase in inventory ahead of an expected product launch, for which the exact date is often uncertain; an increase in accounts receivable, as Amneal may not receive payment from its customers for several months after sale; and a decrease in accounts payable, as Amneal submits payment to its vendors and suppliers. The total sum of Amneal’s backlog orders as of December 31, 2017 was $12.2 million.
Impax
Impax is a specialty pharmaceutical company applying formulation and development expertise, as well as its drug delivery technology, to the development, manufacture and marketing of generic pharmaceutical products, in addition to the development, manufacture and marketing of branded products. Impax operates in two segments, referred to as “Impax Generics” and “Impax Specialty Pharma.” Impax Generics concentrates its efforts on generic products, which are the pharmaceutical and therapeutic equivalents of brand-name drug products and are usually marketed under their established nonproprietary drug names rather than by a brand name. Impax Specialty Pharma utilizes its specialty sales force to market proprietary branded pharmaceutical products for the treatment of central nervous system (“ CNS ”) disorders and other select specialty segments.
Impax was incorporated in the State of Delaware in 1995. Its corporate headquarters are located at 30831 Huntwood Avenue, Hayward, California, 94544. Impax was formerly known as Global Pharmaceutical Corporation until December 14, 1999, when Impax Pharmaceuticals, Inc., a privately held drug delivery company, merged into Global Pharmaceutical Corporation and the name of the resulting entity was changed to Impax Laboratories, Inc.
Impax Generics Division
In the generic pharmaceutical market, Impax focuses its efforts on developing, manufacturing, selling and distributing complex solid dose and alternative dosage form products covering a broad range of therapeutic areas and having technically challenging drug-delivery mechanisms or unique product development formulations. Impax employs its technologies and formulation expertise to develop generic products that reproduce brand-name products’ physiological characteristics but do not infringe any valid patents relating to such brand-name products. Generic products contain the same active ingredient and are of the same route of administration, dosage form, strength and indication(s) as brand-name products already approved for use in the United States by the FDA. Impax generally focuses its generic product development on brand-name products as to which the patents covering the active pharmaceutical ingredient have expired or are near expiration, and it employs its experience to develop bioequivalent versions of such brand-name products. Impax also develops, manufactures, sells and distributes specialty generic pharmaceuticals that it believes present certain competitive advantages, such as difficulty in raw materials sourcing, complex formulation or development characteristics or special handling requirements. Impax has generally obtained rights to its alternative dosage form products through third party alliance and collaboration agreements, such as through our partnership agreement with Tolmar, Inc. (“ Tolmar ”).
Impax sells and distributes generic pharmaceutical products primarily through four sales channels:
 
 	•	 	the “ Impax Generics sales channel ” for sales of generic prescription products it sells directly to wholesalers, large retail drug chains, and others;	
 
 	•	 	the “ Private Label sales channel ” for generic pharmaceutical over-the-counter (“ OTC ”) and prescription products it sells to unrelated third party customers who in-turn sell the product to third parties under their own label;	
 
 	•	 	the “ Rx Partner sales channel ” for generic prescription products sold through unrelated third-party pharmaceutical entities under their own label pursuant to alliance agreements; and	
 
 	•	 	the “ OTC Partner sales channel ” for sales of generic pharmaceutical OTC products sold through unrelated third-party pharmaceutical entities under their own label pursuant to alliance agreements.	
 
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As of December 31, 2016, Impax marketed 207 generic pharmaceutical products representing dosage variations of 72 different product families through its Impax Generics division, and five other generic pharmaceutical products, representing dosage variations of two different product families, through our alliance and collaboration agreement partners. As of December 31, 2016, Impax’s significant marketed generic products were Epinephrine Auto-Injector (generic Adrenaclick ® ), oxymorphone hydrochloride extended release tablets (AB rated to original OPANA ® ER), diclofenac sodium gel 3% (generic Solaraze ® ), and fenofibrate (generic Lofibra ® ).
As of December 31, 2017, we had 17 applications pending at the FDA. The following table lists our publicly identified product applications pending at the FDA as of December 31, 2017:

Product	  	Generic of	
Apixaban Tablets 2.5, 5 mg	  	Eliquis ®	
Carvedilol Phosphate ER Capsules 10, 20, 40, 80 mg	  	Coreg CR ®	
Colesevelam Tablets 625mg	  	Welchol ®	
Dimethyl Fumarate DR Capsules 120, 240 mg	  	Tecfidera ®	
Fentanyl Buccal Tablet 100, 200, 400, 600, 800 mcg	  	Fentora ®	
Mixed Amphetamine Salts ER Capsules 5, 10, 15, 20, 25, 30 mg	  	Adderall XR ®	
Oxycodone ER Tablets (new formulation) 10, 15, 20, 30, 40, 60, 80 mg	  	Oxycontin ®	
Risedronate Sodium DR Tablets 35 mg	  	Atelvia ®	
Teriflunomide Tablets 14 mg	  	Aubagio ®	
Impax Specialty Pharma
Impax Specialty Pharma is engaged in the development, sale and distribution of proprietary branded pharmaceutical products that it believes represents improvements to already-approved pharmaceutical products addressing CNS disorders and other select specialty segments. Impax estimates that there are approximately 16,000 neurologists in the United States. Historically, a concentrated number of these neurologists are responsible for writing the majority of neurology prescriptions. CNS is the largest therapeutic category in the United States with 2017 sales of about $66.7 billion, or 14.2% of the $470 billion U.S. prescription drug market. CNS product sales contracted (5.2%) in 2017, compared to 1.5% growth for the overall pharmaceutical market, while total CNS prescriptions declined 1.1%, compared to a 0.2% reduction in the overall pharmaceutical industry prescriptions. (Source: IQVIA).
Impax’s branded pharmaceutical product portfolio consists of commercial CNS and other select specialty products, as well as development stage projects. In February 2012, Impax licensed from AstraZeneca UK Limited (“ AstraZeneca ”) the exclusive U.S. commercial rights to Zomig ® (zolmitriptan) tablet, orally disintegrating tablet and nasal spray formulations pursuant to the terms of a Distribution, License, Development and Supply Agreement with AstraZeneca, which was subsequently amended (the “ AZ Agreement ”) and began sales of the Zomig ® products under its label during the year ended December 31, 2012 through its specialty sales force. In May 2013, our exclusivity period for branded Zomig ® tablets and orally disintegrating tablets expired and Impax launched authorized generic versions of those products in the United States. In June 2015, the FDA approved the Zomig ® nasal spray for use in pediatric patients 12 years of age or older for the acute treatment of migraine with or without aura. In addition to the Zomig ® products and our internally developed pharmaceutical product, Rytary ® for the treatment of Parkinson’s disease, post-encephalitic parkinsonism, and parkinsonism that may follow carbon monoxide intoxication and/or manganese intoxication, which was approved by the FDA on January 7, 2015, Impax is currently engaged in the sales and marketing of Emverm ® (mebendazole) 100 mg chewable tablets, indicated for the treatment of pinworm, whipworm, common roundworm, common hookworm, and two other products, all acquired in our acquisition of Tower and Lineage which closed in March 2015. In November 2015, the European Commission granted marketing authorization for Numient ® (referred to as Rytary ® in the United States). The review of the Numient ® application was conducted under the centralized licensing procedure as a therapeutic innovation, and the authorization is applicable in all 28 member states of the European Union, as well as Iceland, Liechtenstein and Norway.
 
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Impax has a couple of product candidates that are in varying stages of development and it currently intends to expand its portfolio of branded pharmaceutical products primarily through internal development and through licensing and acquisitions, with a focus on late-stage product opportunities.
Impax conducts most of its research and development activities at its facilities in Hayward, California. In addition, Impax has outsourced a number of research and development projects to third-party laboratories.
Impax spent approximately $80.5 million, $70.6 million and $78.6 million on research and development activities during the years ended December 31, 2016, 2015 and 2014, respectively. Impax does not generally track research and development expense by individual product in either the Impax Generics division or the Impax Specialty Pharma division.
In the Impax Generics division, Impax focuses its research and development efforts based on drug-delivery technology and on products that it believes may have certain competitive advantages, rather than on any particular therapeutic area. As of December 31, 2017, the Impax Generics division had 17 applications pending with the FDA and another 20 products in development. Accordingly, Impax believes that its generic pipeline products will, in the aggregate, generate a significant amount of revenue for it in the future. However, while a generic product is still in development, Impax is unable to predict the level of commercial success that the product may ultimately achieve given the uncertainties relating to the successful and timely completion of bioequivalence studies, ANDA filing, receipt of marketing approval and resolution of any related patent litigation, as well as the amount of competition in the market at the time of product launch and thereafter and other factors detailed in “Risk Factors.” Additionally, Impax does not believe that any individual generic pipeline product is currently significant in terms of accrued or anticipated research and development expense given the large volume of products under development in the Impax Generics division, as detailed above. Further, on a per product basis, development costs for generic products tend to be significantly lower than for branded products, as the process for establishing bioequivalence is significantly less extensive than the standard clinical trial process. The regulatory approval process is significantly less onerous as well compared to the process for branded products.
In the Impax Specialty Pharma division, Impax currently markets one internally developed branded pharmaceutical product, Rytary ® (IPX066) for the treatment of Parkinson’s disease, post-encephalitic parkinsonism, and parkinsonism that may follow carbon monoxide intoxication and/or manganese intoxication, which was approved by the FDA on January 7, 2015 and which Impax launched in the United States in April 2015. In addition to Rytary ® , Impax Specialty Pharma is also currently engaged in the sale and distribution of four other branded products; the more significant include Zomig ® (zolmitriptan) products, indicated for the treatment of migraine headaches, under the terms the AZ Agreement, and Emverm ® (mebendazole) 100 mg chewable tablets, indicated for the treatment of pinworm, whipworm, common roundworm, common hookworm, and American hookworm in single or mixed infection. Impax also has a number of product candidates that are in varying stages of development. While Impax believes the pipeline products in this division are potentially viable, profitable product candidates for us, given the uncertainties relating to the successful completion of clinical trials, the FDA approval process for branded products, reimbursement levels, the amount of competition at the time of product launch and thereafter and other factors detailed in “Risk Factors,” such pipeline products are too early in the development process to be considered significant at this point in time.
Impax has developed a number of different controlled-release delivery technologies which may be utilized with a variety of oral dosage forms and drugs. Controlled-release drug delivery technologies are designed to release drug dosages at specific times and in specific locations in the body and generally provide more consistent and appropriate drug levels in the bloodstream than immediate-release dosage forms. Controlled-release pharmaceuticals may improve drug efficacy, ensure greater patient compliance with the treatment regimen, reduce side effects or increase drug stability and be more patient friendly by reducing the number of times a drug must be taken.
 
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Impax believes its controlled-release drug delivery technologies are flexible and can be applied to develop a variety of pharmaceutical products, both generic and branded. Impax’s technologies utilize a variety of polymers and other materials to encapsulate or entrap the active pharmaceutical ingredients and to release them at varying rates or at predetermined locations in the gastrointestinal tract.
Manufacturing and distribution capability
Amneal
Amneal has a network of ten manufacturing sites and seven co-located R&D centers within the United States, India and Ireland, with broad dosage capability across oral solids, solutions, suspensions, creams, gels, ointments, nasal sprays, hormonals, patches, oral thin films, dry powder inhalers, metered dose inhalers, cytotoxics, injectables, ophthalmics, otics, and tablets / capsules, as described below. Amneal also has a distribution center in Glasgow, Kentucky and a packaging center in East Hanover, New Jersey. Amneal manufactures the vast majority of its products internally; of these products, those manufactured in Amneal’s U.S. facilities contributed 77.1% of product net revenue compared to 14.6% for those manufactured in India as of December 31, 2017. Amneal relies on third-party manufacturers to supply a small number of products in its portfolio representing approximately 8.3% of its net revenue. In addition, Amneal selectively manufactures API for a subset of its products, which helps to reduce the overall cost of manufacturing for Amneal’s products and gives Amneal greater control over its supply chain.

 
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Figure 3. Amneal and Impax Facilities
Within Amneal’s facilities across the United States, India and Ireland, Amneal believes it has adequate capacity to support its growth for the foreseeable future. Amneal has manufacturing sites in Brookhaven and Hauppauge, New York; Branchburg, Patterson and Piscataway, New Jersey; Cashel, Ireland; and Ahmedabad, Hyderabad, Vizag and Dahej, India, which collectively handle the production, assembly, quality assurance testing and packaging of the majority of Amneal’s products.

Facility	  	Functional Area	  	Installed Capacity (1)	  	Utilized Capacity (2)	  	Units	
U.S. and Europe	
Brookhaven, NY
Hauppauge, NY
Piscataway, NJ	  	Oral Solids (3)	  	~8.0 -~10.0 billion	  	~7.5 billion (4)	  	Tablets/Capsules	
					
Piscataway, NJ
Branchburg, NJ	  	Liquids	  	~1.8 million	  	~ 0.4 million	  	Bottles	
					
Piscataway, NJ	  	Topicals	  	~32 million	  	~8 million	  	Tubes / Jars	
					
Piscataway, NJ	  	Transdermals	  	~86 million	  	~16 million	  	Patches	
					
Cashel, Ireland	  	Respiratory	  	~ 13 million	  	N/A	  	MDI / DPI Inhalers	
	
India	
Ahmedabad, India
Hyderabad, India	  	Sterile Injectables/
Aceptics	  	~95 million	  	~2.6 million	  	Vials/Pre-filled Syringes	
					
Ahmedabad, India	  	Oral Solids	  	~6 - ~8 billion	  	~ 4 billion	  	Tablets / Capsules	
					
Vizag, India
Dahej, India	  	API	  	~250	  	~81	  	Metric Tons	
Figure 4. Amneal’s Manufacturing Sites
 
1.	Represents total production capacity assuming 100% utilization.	
 
2.	Represents expected utilized capacity for the trailing twelve month period ended December 31, 2017.	
 
3.	Excludes Patterson, NJ site, which is planned to be shut down in 2018.	
 
4.	Adjusted for select discretionary facility upgrades made over the course of 2017.	
Impax
Impax sources its finished dosage form products from its own facility in Hayward, California and several third party contract manufacturers for this purpose. The Hayward facility’s installed capacity is approximately 1.0 billion tablets/capsules and is approximately 30% utilized. During 2015, Impax restructured its packaging and distribution operations. As a result, Impax closed its Philadelphia packaging site and all of its company-wide distribution operations were outsourced to United Parcel Services (UPS).
Quality Control
We are committed to maintaining high levels of quality in manufacturing and have built strong quality systems to support our operational and strategic initiatives. Our manufacturing and R&D facilities are compliant with Current Good Manufacturing Practices (“ cGMPs ”) regulations.
 
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Since 2002, Amneal has had 60 successful FDA inspections of its various facilities (including its distribution facility in Glasgow, Kentucky) and has not received any warning letters with respect to any of its facilities.
Impax has in the past received a warning letter from the FDA regarding certain operations within its manufacturing network at its Hayward manufacturing facility, which it subsequently resolved in 2015. Impax remains committed to continuing to improve its quality control and manufacturing practices, however, Impax cannot be assured that the FDA will continue to be satisfied with its corrective actions and with its quality control and manufacturing systems and standards.
Regulatory agencies such as the FDA regularly inspect our manufacturing facilities and the facilities of our third-party suppliers. The failure of one of our facilities, or a facility of one of our third-party suppliers, to comply with applicable laws and regulations may lead to breach of representations made to our customers or to regulatory or government action against it related to products made in that facility. Failure to comply strictly with these regulations and requirements may damage our reputation and lead to financial penalties, compliance expenditures, the recall or seizure of products, total or partial suspension of production and/or distribution, withdrawal or suspension of the applicable regulator’s review of our submissions, enforcement actions, injunctions and criminal prosecution. Further, other federal agencies, our customers and partners in our alliance, development, collaboration and other partnership agreements with respect to our products and services may take any such FDA observations or warning letters into account when considering the award of contracts or the continuation or extension of such partnership agreements. Because regulatory approval to manufacture a drug is site-specific, the delay and cost of remedial actions, or obtaining approval to manufacture at a different facility, could negatively impact our business. Any failure by us to comply with applicable laws and regulations and/or any actions by the FDA and other agencies as described above could have a material adverse effect on our business, financial position and results of operations. See “Risk Factors—Risk Factors Relating to Us and the Combined Business” for more information.
The Combined Business’ Strengths
Amneal has built a leading generic pharmaceutical company with an extensive product pipeline and comprehensive manufacturing and development capabilities that Amneal believes will enable continued growth, supported by increased scale from the addition of Imapx’s generics business and stable cash flow from Impax’s specialty franchise. Amneal believes the strengths of its business are as follows:
Broad in-house expertise and capabilities across dosage forms
Amneal has invested substantial resources developing and expanding its manufacturing and development infrastructure in the United States, India and Ireland. Amneal’s strategy is to co-locate its R&D centers within its manufacturing sites (as opposed to a center of excellence) in order to foster seamless scale-up and launch of its products. As a result, Amneal has a full in-house suite of dosage forms, including immediate release (“ IR ”) and extended release (“ ER ”) oral solids, transdermals, respiratory applications, inhalation solutions, topical gels, creams, and ointments, sterile aseptics, nasal sprays and complex injectables, as well as cytotoxics and hormonal products. These capabilities allow Amneal to flexibly target attractive product development opportunities across various dosage forms. Additionally, Amneal’s internal API capability allows it to better control the development of certain products from formulation through commercialization and provides a stable source of API supply for these products at competitive prices.

Amneal Dosage Form Capability:	
IR / ER
Oral Solids	  	Sterile
Injectables	  	Oral Liquids	  	Nasal Sprays	  	Inhalants	  	Ophthalmics /
Otics	  	Transdermals	  	Topicals	
✓	  	✓	  	✓	  	✓	  	✓	  	✓	  	✓	  	✓	
 
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Figure 5. Amneal Dosage Capabilities
Industry leading R&D pipeline with visibility into future launches
Amneal has focused its R&D efforts and expenditures to create a diversified portfolio of high-value generic products, with 156 filed products approved but not yet launched or pending FDA approval and 123 in various stages of development. Among Amneal’s products with pending ANDAs, over 40 of such products are potential FTF or FTM opportunities. Developing and commercializing a new product is time consuming, costly and subject to numerous factors that may delay or prevent such development and commercialization. For more information on the risks attendant to Amneal’s development of new generic pharmaceutical products, please see the section entitled “Risk Factors.”
The following chart illustrates the approximate gross sales of products (according to QuintilesIMS sales during the twelve month period ended as of December 2017) corresponding to selected generic products in Amneal’s pipeline.

Selected Products	  	Brand	 	  	Total Sales ($ in bn)
(LTM IMS December 2017)	 	
Dimethyl Fumarate DR Capsules	  	 	Tecfidera	 	  	$	3.8	 	
Glatiramer Injection 40mg	  	 	Copaxone HD	 	  	 	3.6	 	
Emtricitabine + Tenofovir Disoproxil Fumarate	  	 	Truvada	 	  	 	2.9	 	
Lurasidone Tablets, 20mg, 40mg, 60mg, 80mg and 120mg	  	 	Latuda	 	  	 	2.9	 	
Cinacalcet HCl 30mg, 60mg and 90mg Tablets	  	 	Sensipar	 	  	 	1.7	 	
Esomeprazole Magnesium Delayed Release Capsules	  	 	Nexium	 	  	 	1.0	 	
Sildenafil Citrate Tablets	  	 	Viagra	 	  	 	1.4	 	
Teriflunomide Tablets	  	 	Aubagio	 	  	 	1.5	 	
Quetiapine Fumarate Extended Release Tablets	  	 	Seroquel XR	 	  	 	0.6	 	
Mesalamine Delayed Release Tablet, 1.2gm	  	 	Lialda	 	  	 	1.1	 	
IMATINIB MESYLATE Tablets	  	 	Gleevec	 	  	 	1.5	 	
Abiraterone Acetate Tablets, 250mg	  	 	Zytiga	 	  	 	1.4	 	
Testosterone Metered Gel 1.62% Pump	  	 	Androgel	 	  	 	1.1	 	
	  				  	 	 	 	
Total:	  				  	$	24.4	 	
	  				  	 	 	 	
Figure 6. Value of Amneal’s Marketed Products According to QuintilesIMS on a Trailing Twelve Month Basis as of December 2017. This information is an estimate derived from the use of information under license from the following IMS Health information service: SMART US Edition for the period through September, 2017. IMS expressly reserves all rights, including rights of copying, distribution and republication. The information provided by IMS is publicly available and was not prepared at the request of Impax, Amneal or Holdco.
Growing portfolio of diverse products with strong market positions
Amneal has a broad portfolio of over 125 product families across multiple therapeutic areas. For the year ended December 31, 2017, 16 of Amneal’s top 20 products held #1 or #2 market share positions. In addition to Amneal’s current products, Amneal’s pipeline includes a range of new products with complex dosage forms that will further diversify its portfolio. Given Amneal’s track record of successfully commercializing its products post-approval and capturing market share, Amneal is confident in its ability to drive future growth through new product launches.
Strong history of quality and manufacturing excellence
Since its founding, Amneal has always maintained a commitment to quality with a culture of quality assurance and control, and has invested in quality systems to support all aspects of development, analytical
 
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testing, and manufacturing. Amneal currently operates ten FDA-approved manufacturing facilities across the United States, India and Ireland. As the FDA has heightened standards for and increased its monitoring of pharmaceutical manufacturers significantly over the last decade, Amneal continues to manufacture and market products to the highest quality standards. Since 2002, Amneal’s facilities have been successfully inspected 60 times, including two inspections at distribution facilities, with no major discrepancies observed and no warning letters issued.

Figure 7. History of FDA Inspections
 
1.	Includes two inspections at Amneal’s API facilities.	
History of strong financial performance
Amneal submitted 35, 23, 44 and 49 new ANDA filings in 2014, 2015, 2016 and the year ended December 31, 2017, respectively, and launched 74 new generics products during the same time period. Amneal’s net revenue has grown from $785.6 million for the year ended December 31, 2014 to $1,033.7 million for the year ended December 31, 2017, representing a CAGR of 10%. Amneal’s net income decreased from $177.8 million for the year ended December 31, 2014 to $169.3 million for the year ended December 31, 2017, representing a compound annual decline of 2%. Amneal’s adjusted EBITDA grew from $257.4 million for the year ended December 31, 2014 to $336.1 million for the year ended December 31, 2017, representing a CAGR of 9%. For further detail on Amneal’s historical GAAP and non-GAAP financial results, see the section entitled “ Selected Historical Consolidated Financial Information of Amneal. ” Amneal expects to submit approximately 30 to 40 new ANDA filings during each of 2018, 2019 and 2020, and expects a number of these potential products to be FTF or FTM opportunities that will contribute significantly to Amneal’s revenue, net income and adjusted EBITDA.
 
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The Combined Business’ Strategy
Our strategic goal is to continue developing, manufacturing and commercializing high-value generic, branded, and biosimilar products that will support our growth and strengthen our competitive position relative to our generic pharmaceutical peers. In implementing our strategy, we are focused on the following:
Leverage our capabilities by focusing on high-value products
We have historically been successful in developing complex generic pharmaceutical products with high barriers-to-entry and high revenue potential, including products with the potential to be FTF, FTM or otherwise high-value as previously defined. We target products that are difficult to formulate and manufacture, and/or present complex legal and IP hurdles. As part of our strategy, we also fund clinical trials for products that, while costly, provide higher returns on investment relative to products with lower development costs. These products are potentially more profitable and may have a longer life cycle than typical generic products. Over 50% of our pipeline is comprised of what we believe has the potential to be high-value products. We believe we have built a comprehensive and robust infrastructure through its investment in R&D, manufacturing facilities and personnel, which will enable us to continue to develop and commercialize these types of high-value products.
Advance and expand upon the existing pipeline
Our pipeline provides the foundation for our future growth and as of December 31, 2017, we currently have 316 products either approved and yet to be launched, pending FDA approval in the United States or in active development. We have successfully launched over 80 new generic pharmaceutical products since January 1, 2014 and expect to submit approximately 30 to 40 new ANDA filings during each of 2018, 2019 and 2020 and to continue our R&D efforts in order to strengthen and grow our portfolio across multiple complex dosage forms.
Utilize our dosage form capability to diversify our product portfolio
Historically, the majority of our marketed products have been oral solids. As we have expanded our capabilities and invested at higher-than-industry-average rates in newer pharmaceutical delivery technologies and manufacturing facilities over time, however, our pipeline has diversified and now includes a broad array of dosage forms such as oral liquids, sterile injectables, transdermals, nasal sprays, inhalation and respiratory products, ophthalmics and topicals. As such, we expect future product approvals and launches to diversify our portfolio away from oral solids and support the transition towards higher barrier-to-entry complex products.
Expand into high growth adjacencies such as biosimilars
Biosimilar products represent a significant growth opportunity for us as well as the U.S. generic industry broadly. According to Bank of America Merrill Lynch Global Research estimates, the global biosimilar market is expected to reach $20 billion by 2025. Successful development of these products is complex, timely and highly expensive, and many generic pharmaceutical companies lack the expertise and means to successfully develop and commercialize biosimilars. Through our partnership with Adello Biologics, LLC, we have in-licensed two biosimilar products for near-term commercialization: filgrastim (biosimilar of branded product Neupogen™), for which an ANDA has been filed, and peg-filgrastim (biosimilar of branded product Neulasta™), which is currently in late-stage development. We continue to work to build its portfolio of biosimilar products through licensing transactions and expects these products to support topline and profitability growth in the future.
Leverage our platform to increase operational efficiency
We have developed a highly capable and comprehensive R&D, operations and commercial infrastructure that support the development, manufacture, sale and distribution of generic pharmaceuticals. Coupled with our vertically integrated supply chain, this infrastructure enables us to quickly and efficiently move through the cycle
 
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of product selection to development, manufacture and, ultimately, commercialization, which supports the achievement of our growth and profitability targets. We expect to continue to build on and leverage these existing capabilities and our infrastructure to accelerate margin expansion and cash flow generation.
Continued focus on proprietary brand-name pharmaceutical products to treat CNS disorders and other specialty segments
A core component of our strategy includes an ongoing focus on proprietary brand-name pharmaceutical products to treat CNS disorders and other specialty segments. We believe that we have the research, development and formulation expertise to develop branded products that will deliver significant improvements over existing therapies. We plan to continue investing in its development pipeline, both internally and through acquisitions and partnerships primarily focused on late-stage and next generation product opportunities.
Alliance and Collaboration Agreements
Impax has entered into several alliance, collaboration or license and distribution agreements with respect to certain of its products and services and may enter into similar agreements in the future. These agreements typically obligate Impax to deliver multiple goods and/or services over extended periods. Such deliverables include manufactured pharmaceutical products, exclusive and semi-exclusive marketing rights, distribution licenses, and research and development services. Impax’s alliance and collaboration agreements often include milestones and provide for payments upon achievement of these milestones.
Our Industry
Prescription pharmaceutical products are sold either as branded or generic products. Generic pharmaceutical products have the same API, dosage form, potency, route of administration, and intended use as patented branded pharmaceutical products and are usually marketed under their chemical (generic) names rather than brand names. However, generic pharmaceutical products are intended to provide a cost-effective alternative for consumers while maintaining the safety, efficacy and stability of the branded product, and as such are generally sold at prices below their branded equivalents. Typically, a generic pharmaceutical may not be marketed until the expiration of applicable patent(s) on the corresponding branded product, unless the resolution of patent litigation results in an earlier opportunity to enter the market.
Generic manufacturers are required to file and receive approval for an ANDA in order to market a generic pharmaceutical product. In general, those companies that are able to prepare high quality ANDA submissions are comparatively advantaged. Under the previous Generic Drug User Fee Amendments (“ GDUFA ”) authorization, the time required to obtain FDA approval of ANDAs was on average approximately 42-44 months post-filing. In August 2017, GDUFA was reauthorized and signed into law by President Trump as part of the Food and Drug Administration Reauthorization Act. This reauthorization, known as GDUFA II, is in effect from October 1, 2017 through September 30, 2022. As a result of GDUFA II, Amneal and Impax expect the average time required to achieve approval of a generic pharmaceutical product after an ANDA filing is made to decrease.
Generic pharmaceutical products play a very significant role in the United States and global healthcare systems. According to Frost and Sullivan’s Global Generic Pharmaceuticals Market Forecast to 2020 , the global generic pharmaceutical market was valued at approximately $366 billion in 2016, and by the end of 2020, annual revenue from generic pharmaceutical products is expected to reach approximately $557 billion, compounding at 11% annually. According to the U.S. Bureau of Census and the Centers for Medicare and Medicaid Services, the United States spends approximately $3 trillion on healthcare annually, and prescription pharmaceutical products represent approximately 11% of those total healthcare system costs. According to the Association for Accessible Medicines, approximately 89% of prescriptions dispensed in the United States are filled using generic pharmaceutical products, but these prescriptions represent only 26% of total prescription pharmaceutical costs.
 
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We expect key drivers of the future growth of the generic pharmaceutical industry to include:
Demographic trends
Rising healthcare costs due, in part, to an aging population, increased life expectancy, and higher incidence of chronic diseases are contributing to the increased use of generic pharmaceutical products in the United States. According to the U.S. Census Bureau, in 2015 the U.S. population over 65 years of age was 47.8 million and is expected to grow over 18% to 56.4 million by 2020. The growth in this segment of the population, who are significant consumers of pharmaceutical products, is expected to increase the utilization and proliferation of generic pharmaceutical products. Additionally, because generic pharmaceutical products have become widely accepted as lower-cost equivalents of branded pharmaceutical products among consumers, physicians and pharmacists, we expect the market opportunities for generic pharmaceutical products to remain strong.
Increasing efforts by the government to control healthcare costs
As the parties responsible for paying for pharmaceutical products, both government agencies and private payors worldwide are actively engaged in efforts to control healthcare costs. According to Frost and Sullivan’s Global Generic Pharmaceuticals Market Forecast to 2020 , approximately 80% of adults above age 65 globally have at least one chronic disorder, including diabetes, cardiovascular diseases, or cancer. As this segment of the population grows, budgetary constraints provide an impetus for healthcare payors to find cost-effective alternatives to higher-priced branded pharmaceutical drug products. Accordingly, governments and the private sector have been encouraging the use of generic pharmaceutical products, as evidenced by their promotion of the substitution of generic pharmaceutical products for their branded equivalents. According to the Association for Accessible Medicines, the use of generic pharmaceutical products saved patients and taxpayers $253 billion in 2016; over the last decade, it is estimated that the U.S. healthcare system has saved $1.67 trillion due to the availability of low-cost generic pharmaceutical products. As significant cost-containment measures continue to be implemented by healthcare payors globally, we expect demand for generic pharmaceutical products to remain strong.
Growing acceptance of biosimilars
A biosimilar is a biological product that is highly similar to the original reference biological product, and with respect to which there are no clinically meaningful differences between the biological product at issue and the reference product in terms of the safety, purity, and potency of the product. In 2009, Congress passed the Biologics Price Competition and Innovation Act of 2009, which created an abbreviated licensure pathway for biosimilar products. Over the last eight years, both traditional generic pharmaceutical product competitors and those not previously involved in the marketing of small molecule pharmaceutical products have begun shifting towards the development and commercialization of biosimilars given the significant market opportunity and current unmet need for less expensive biologics. While the market for these pharmaceuticals is nascent, the global biosimilar market is expected to reach $20 billion by 2025, according to Bank of America Merrill Lynch Global Research estimates. This secular shift will provide a major growth driver for generics companies with the ability to develop and/or commercialize biosimilar products.
Sales & Marketing and Customers
In the United States and the Commonwealth of Puerto Rico, we market our products primarily through wholesalers and distributors, retail pharmacies, mail-order pharmacies and directly into hospitals and institutions. The majority of our generic pharmaceutical products are marketed through wholesalers. Our sterile injectable products, while generally also marketed through wholesalers, are occasionally sold directly to large hospitals and institutions. Some of our wholesalers purchase products and warehouse them for retail drug stores, independent pharmacies and managed care organizations, such as hospitals, nursing homes, health maintenance organizations, clinics, pharmacy benefit management companies and mail-order customers. In Europe and other foreign
 
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jurisdictions, we sell our products to wholesalers, distributors, independent pharmacies and, in certain countries, directly to hospitals. Through a broad network of sales representatives, we adapt our strategy to different markets as dictated by such market’s respective regulatory and competitive landscapes. We have over 220 customers, some of which are part of large purchasing groups. For the year ended December 31, 2017, Amneal’s four largest customers accounted for approximately 56% of Amneal’s net revenue, broken out as follows: AmerisourceBergen Corporation 21%, Cardinal Health, Inc. 13%, McKesson Drug Co. 13%, and CVS Caremark 9%. In 2017, the three major customers of Impax, Cardinal Health, McKesson Corporation, and Amerisource-Bergen, accounted for 33%, 30%, and 25%, respectively, or an aggregate of 88%, of Impax’s gross revenue.
We have no long-term agreements that guarantee future business with any of our major customers and the loss of or substantial reduction in orders from any one or more of these customers could have a material adverse effect on our operating results, future prospects and financial condition.
Raw materials
The raw materials, including the APIs used to manufacture our products are either purchased from distributors of bulk pharmaceutical chemicals that are generally available from several sources in the United States and throughout the world or, as determined on a product-by-product basis, manufactured in-house through our API facilities in Dahej and Vizag. In some cases, however, the raw materials, such as the API used to manufacture our products, are available only from a single supplier. Further, even if more than one supplier exists, we may choose, and have done so in the case of our API suppliers for a majority of our products, to list only one supplier in our product applications submitted to the FDA. Generally, we would need as long as 18 months to find and qualify a new sole-source supplier. If we receive less than one year’s termination notice from a sole-source supplier that it intends to cease supplying raw materials, it could result in disruption of our ability to produce the drug involved. Although to date, we have only experienced occasional interruptions in supplies, no assurance can be given that we will continue to receive uninterrupted or adequate supplies of such raw materials. Any inability to obtain raw materials on a timely basis, or any significant price increases not passed on to customers, could have a material adverse effect on our business.
Because legal and regulatory requirements mandate that our product marketing authorizations specify API and raw material suppliers, if a specified supplier were for any reason unable to continue to supply us, we would need to seek FDA approval of a new supplier. The resulting delay in the manufacture and marketing of the impacted pharmaceutical during the FDA process to qualify and approve the new supplier could, depending on the product, have a material adverse effect on our results of operations and financial condition. We protect against the unlikely risk of such an event by generally providing for, where feasible, two or more suppliers of raw materials for the pharmaceutical products we manufacture, including those for which we manufacture API in-house. Additionally, we may enter into a contract with a raw material distributor in order to secure adequate supply for specific products.
Competition
The pharmaceutical industry is highly competitive and is affected by new technologies, new developments, government regulations, health care legislation, availability of financing, and other factors. Many of our competitors have longer operating histories and substantially greater financial, research and development, marketing, and other resources than it does. Competing manufacturers of generic pharmaceutical products create value for our customers by offering substitutes for branded pharmaceutical products at significantly lower prices, and at times we may not be able to differentiate our product offerings from those of our competitors, successfully formulate and bring to market new products that are less expensive than those of our competitors, or offer commercial terms as favorable as those of our competitors. We compete with numerous other companies that currently operate, or intend to operate, in the pharmaceutical industry, including companies that are engaged in the development of controlled-release drug delivery technologies and products, and other manufacturers that may decide to undertake development of such products. Our principal competitors in the generic pharmaceutical
 
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products market are Teva Pharmaceutical Industries Ltd., Mylan N.V., Endo International plc, Sandoz and Fresenius Medical Care AG & Co. KGAA /Akorn, Inc., Sun Pharmaceutical Industries Ltd., Lannett Company, Inc., and Lupin Pharmaceuticals, Inc.
By focusing on our high-value products with complex dosage forms and high barriers to entry, as well as taking advantage of our vertically integrated supply chain and selective use of internal API, we aim to manufacture more profitable products relative to our competition. However, there is no guarantee that this or any future strategy will enable us to compete successfully in the generic pharmaceutical industry.
The Hatch-Waxman Act amended the Food, Drug and Cosmetic Act (“ FDCA ”) and provided for a period of 180 days of generic marketing exclusivity for each applicant that is first-to-file an ANDA with a Paragraph IV certification. The holder of the approved ANDA that successfully challenges the relevant innovator drug patent(s) usually enjoys higher market share and sales during the 180-day period of exclusivity. When the exclusivity period concludes, other generic competitors may launch their versions of the product, which may cause significant price erosion and loss of market share. In cases where we are the holder of an ANDA for a FTF product, upon the expiration of the 180 day exclusivity period, we may adjust the price of such product and provide price adjustments to our customers for the difference between the lower price and the price at which we previously sold the product then held in inventory by our customers. These adjustments are commonly known as shelf stock adjustments. In certain circumstances, we may decide not to provide price adjustments to certain customers and, as a result, we may receive returns of unsold product from these customers and forego future sales volume as opposed to reducing pricing.
Authorized generic pharmaceutical products, which are generic versions of pharmaceutical products introduced by brand companies (directly or through a third party) under the brand’s new drug application (“ NDA ”) approval, have also increased competition in the generic pharmaceutical industry. Authorized generic pharmaceutical products may be sold throughout and subsequent to the 180-day exclusivity period and are a significant source of competition, because brand companies do not face any regulatory barriers to rapidly introducing generic versions of their pharmaceutical products.
Additionally, consolidation among wholesalers and retailers and the formation of group purchasing organizations (“ GPOs ”) has caused increased price competition in the generic pharmaceutical market. The downward price adjustments demanded by distributors of generic pharmaceutical products has reduced revenue and average product gross margin across the industry. Should these price reductions continue or even increase, it could have a material adverse effect on our revenue and gross margin.
The main competitive factors in the generic pharmaceutical market include:
 
 	•	 	a generic pharmaceutical products manufacturer’s ability to rapidly develop and obtain regulatory approval for and supply commercial quantities of generic pharmaceutical products;	
 
 	•	 	the introduction of other generic pharmaceutical manufacturers’ products in direct competition with our products;	
 
 	•	 	the introduction of authorized generic pharmaceutical products in direct competition with our products;	
 
 	•	 	consolidation among our customers and the formation of buyer consortia;	
 
 	•	 	pricing pressures by competitors and customers;	
 
 	•	 	product quality of our generic pharmaceutical competitors;	
 
 	•	 	our and our competitors’ breadth of product offerings across its portfolio;	
 
 	•	 	our ability and the ability of our generic pharmaceutical competitors to quickly enter the market after the expiration of patents or statutory exclusivity periods, limiting the extent and duration of profitability for our products;	
 
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 	•	 	the willingness of our customers to switch their source of supply of products among various generic pharmaceutical competitors;	
 
 	•	 	the ability of our generic pharmaceutical competitors to identify and market niche products;	
 
 	•	 	our and our competitors’ level of service (including maintenance of inventories for timely delivery) and reputation as a reliable developer and manufacturer of generic pharmaceutical products; and	
 
 	•	 	product appearance and labeling for our products and those of our competitors.	
In the brand-name pharmaceutical market, our principal competitors are pharmaceutical companies that are focused on Parkinson’s disease and other CNS disorders. In addition, with respect to products that we are developing internally and/or any additional products we may in-license from third parties, we expect that we will face increased competition from large pharmaceutical companies, drug delivery companies and other specialty pharmaceutical companies that have focused on the same disorders as our branded products.
A description of the competition we face from brand-name and generic pharmaceutical companies is included in “Risk Factors.”
Information Technology
Our information technology (“ IT ”) department utilizes industry-standard infrastructure to ensure strict compliance adherence and support reliable operations that enable our long-term growth and profitability goals.
Employees
As of December 31, 2017, Amneal had approximately 5,210 employees worldwide. Of these, there are approximately 1,853 employees in the United States and 3,357 outside of the United States, primarily in India. Global headcount is divided into the following functional areas: manufacturing/operations (approximately 2,610 full time employees), quality (approximately 1,206 full time employees), R&D (approximately 920 full time employees), sales and marketing (approximately 100 full time employees), and general & administrative (approximately 474 full time employees). None of Amneal’s employees are covered by a collective bargaining agreement. Amneal considers its employee relations to be good.
As of December 31, 2017, Impax had 1,257 full-time employees, of which 409 were in operations, 153 in research and development, 320 in the quality area, 210 in legal and administration, and 165 in sales and marketing. None of Impax’s employees are subject to collective bargaining agreements with labor unions, and Impax believes its employee relations are good.
Government regulation
The business of developing, manufacturing, selling and distributing generic products is subject to significant environmental, health and safety laws and regulations, including those governing laboratory procedures and the handling, use, storage, treatment and disposal of hazardous materials and wastes. These regulatory regimes are overseen by governmental bodies, principally the FDA and, as applicable, the Drug Enforcement Agency (“ DEA ”), FTC and several state and local government agencies in the United States and abroad. Failure to comply with the regulations of these governmental agencies may result in suspension of regulatory approval and potential civil and criminal actions against us. The regulatory environment, particularly enforcement positions, statues and legal interpretations applicable to the generic pharmaceutical industry are constantly in flux and not always clear. Significant changes in this environment could have a material adverse effect on our financial condition and results of operations.
The FDCA, the Controlled Substances Act and other statutes and regulations govern the development, testing, manufacture, safety, effectiveness, labeling, storage, record keeping, approval and promotion of our
 
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products. Failure to comply with these regulations can result in judicial and or administrative sanctions, such as product seizures, injunctions, fines and criminal prosecutions. The FDA has the authority to withdraw its approval of pharmaceuticals at any time, in accordance with its regulatory due process procedures, and can enforce the recall of products.
Pharmaceutical approval process in the United States
In the United States, FDA approval is required before any “new drug” may be marketed, including new formulations, strengths, dosage forms and generic versions of previously approved drugs. Generally, the following two types of applications are used to obtain FDA approval of a “new drug.”
New Drug Application (“NDA”). For a drug product containing an active ingredient not previously approved by the FDA, a prospective manufacturer must submit a complete application containing the results of clinical studies supporting the drug product’s safety and efficacy. A NDA is also required for a drug with a previously approved active ingredient if the drug will be used to treat an indication for which the drug was not previously approved or if the dosage form, strength or method of delivery is changed. The process required by the FDA before a pharmaceutical product may be approved for marketing in the U.S. generally involves the steps listed below, which could take from approximately three to more than ten years to complete.
 
 	•	 	Laboratory and clinical tests;	
 
 	•	 	Submission of an Investigational New Drug (“IND”) application, which must become effective before clinical studies may begin;	
 
 	•	 	Adequate and well-controlled human clinical studies to establish the safety and efficacy of the proposed product for its intended use;	
 
 	•	 	Submission of a NDA containing the results of the preclinical tests and clinical studies establishing the safety and efficacy of the proposed product for its intended use, as well as extensive data addressing such matters such as manufacturing and quality assurance;	
 
 	•	 	Scale-up to commercial manufacturing; and	
 
 	•	 	FDA approval of a NDA.	
As noted above, the submission of a NDA is not a guarantee that the FDA will find it complete and accept it for filing. The FDA reviews all NDAs submitted before it accepts them for filing. It may refuse to file the application and instead request additional information, in which case, the application must be resubmitted with the supplemental information. After the application is deemed filed by the FDA, FDA staff will review a NDA to determine, among other things, whether a product is safe and efficacious for its intended use.
If, after reviewing the NDA, the FDA determines that the application cannot be approved in its current form, the FDA sends the NDA applicant a Complete Response Letter identifying all outstanding deficiencies that preclude final approval. The FDA then halts its review until the applicant resubmits the NDA with new information designed to address the deficiencies. An applicant receiving a Complete Response Letter may resubmit the application with data and information addressing the FDA’s concerns or requirements, withdraw the application without prejudice to a subsequent submission of a related application or request a hearing on whether there are grounds for denying approval of the application. If a product receives regulatory approval, the approval may be significantly limited to specific diseases and dosages or the indications for use may otherwise be limited, which could restrict the commercial value of the product. In addition, the FDA may require an applicant to conduct Phase 4 testing which involves clinical trials designed to further assess a drug’s safety and effectiveness after NDA approval, and may require surveillance programs to monitor the safety of approved products which have been commercialized. Once issued, the FDA may withdraw product approval if ongoing regulatory requirements are not met or if safety or efficacy questions are raised after the product reaches the market. The agency may also impose requirements that the NDA holder conduct new studies, make labeling changes, implement Risk Evaluation and Mitigation Strategies, and take other corrective measures.
 
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Abbreviated New Drug Application (“ANDA”). For a generic version of an approved drug—a drug product that contains the same active ingredient as a drug previously approved by the FDA and is in the same dosage form and strength, utilizes the same method of delivery and will be used to treat the same indications as the approved product—the FDA requires only an abbreviated new drug application that ordinarily need not include clinical studies demonstrating safety and efficacy. An ANDA typically requires only data demonstrating that the generic formulation is bioequivalent to the previously approved “reference listed drug,” indicating that the rate of absorption and levels of concentration of the generic drug in the body do not show a significant difference from those of the reference listed drug. In July 2012, the Generic Drug Fee User Amendments of 2012 (“GDUFA”) was enacted into law. The GDUFA legislation implemented fees for new ANDA applications, Drug Master Files, product and establishment fees and a one-time fee for back-logged ANDA applications pending approval as of October 1, 2012. In return, the program was intended to provide faster and more predictable ANDA reviews by the FDA and increased inspections of drug facilities. Under GDUFA, generic product companies face significant penalties for failure to pay the new user fees, including rendering an ANDA application not “substantially complete” until the fee is paid. Prior to the implementation of GDUFA, the FDA took an average of approximately 30 months to approve an ANDA. Following the implementation of GDUFA, the FDA’s stated internal goal for ANDAs submitted in fiscal year 2016 was to have a “first-action” goal date within 15 months of submission on 75% of submitted ANDAs. The “first-action” goal date is referred to by the FDA as the date in which the FDA takes a first action on an application by either granting approval or tentative approval or in the event of deficiencies, identifying those deficiencies in a complete response letter or in a refusal to receive the application.
The Hatch-Waxman Act established the modern regulatory system for generic pharmaceutical products by creating a standardized approach for generic pharmaceutical makers to file ANDAs and receive FDA approval for generic pharmaceutical products. In order to gain FDA approval, there are various regulatory hurdles that a prospective generic manufacturer must clear:
Current Good Manufacturing (cGMP) Practices
In order to obtain FDA approval for its products, a generic pharmaceutical manufacturer must demonstrate that its facilities comply with cGMP regulations. The manufacturer is required to comply with cGMP standards at all times during the production and processing of pharmaceuticals, and the FDA may inspect the manufacturer’s sites at any time to ensure compliance.
Safety and Efficacy
With respect to ANDA filings for generic pharmaceutical manufacturers, the FDA waives the requirement for certain clinical trials because manufacturers of the brand pharmaceutical product has already performed these studies and established the safety and efficacy of the reference pharmaceutical product. However, an ANDA filer is still required to conduct bioequivalence studies to test the generic pharmaceutical product against the brand pharmaceutical product. For most orally administered pharmaceutical products, bioequivalence between brand and generic is established when there is no statistically significant difference in the rate and extent to which the API from the product is absorbed into the bloodstream. For certain pharmaceutical products, such as topical, locally acting pharmaceutical products, other means of establishing bioequivalence may be required by the FDA. Additionally, an ANDA for a generic pharmaceutical product must contain other information, such as patent certifications and stability, chemistry, manufacturing and labeling data.
Patent Provisions
A branded pharmaceutical product is usually protected under patents granted by the U.S. Patent and Trademark Office that allow only the pharmaceutical company that developed the pharmaceutical product to market and sell such product. For a generic pharmaceutical manufacturer to introduce a generic version of a
 
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referenced branded pharmaceutical product, it must submit to the FDA an ANDA with a certification stating one of the following:
Paragraph I: That the required patent information relating to the patent for the referenced branded pharmaceutical product has not been filed
Paragraph II: That the patent for the referenced branded pharmaceutical product has expired;
Paragraph III: That the patent for the referenced branded pharmaceutical product will expire on a particular date; or
Paragraph IV: That the patent for the referenced branded pharmaceutical product is invalid or will not be infringed by the pharmaceutical product for which approval is being sought
Filing an ANDA with certifications under Paragraph I or II, referenced above, permits the ANDA to be approved immediately, if it is otherwise eligible. Filing an ANDA with certifications under Paragraph III, referenced above, indicates that the ANDA may be approved on the expiration date of the referenced branded pharmaceutical product’s patent. Under Paragraph IV, referenced above, a generic pharmaceutical manufacturer can challenge the patent of the branded referenced pharmaceutical product.
If the ANDA for a generic pharmaceutical product has a Paragraph IV certification, the filer must also notify the NDA and patent holders upon acceptance of the ANDA filing by the FDA (such notice the “ PIV Notice ”). The NDA and patent holders may initiate a patent infringement lawsuit in response, the filing of which automatically prevents the FDA from approving the ANDA until the earlier of (i) 30 months following receipt of the PIV Notice and/or (ii) a decision in the lawsuit that is favorable to the ANDA filer.
Generic pharmaceutical pricing
The pricing of a generic pharmaceutical product nearly always correlates to the number of companies manufacturing generic versions of such pharmaceutical product. A generic pharmaceutical product is usually at its highest price immediately after the first generic launch of the product, either because a single manufacturer has been granted 180-day exclusivity or because only a few manufacturers have entered the market due to other technical or operational obstacles to bringing such product to market, such as raw materials shortages or complex formulation. As additional generic manufacturers enter the market, the price of a generic pharmaceutical product typically falls as manufacturers compete on price to capture market share. Additionally, consolidation among wholesalers and retailers and the formation of GPOs has caused increased price competition in the generic pharmaceutical market.
Healthcare reform
In the United States, there have recently been multiple federal and state proposals related to the pricing of pharmaceuticals and other changes to the healthcare system. It is currently unclear what, if any, legislative proposals may be adopted or how governmental bodies and private payors will respond to such healthcare reform. As such, we cannot predict the impact of potential legislation on our business and cannot guarantee that such legislation will not have a material adverse effect on our financial condition and results of operations.
Pharmaceutical pedigree laws
Various pharmaceutical pedigree laws, such as the Drug Supply Chain Security Act (“ DSCSA ”) enacted in 2014, require the tracking of all transactions involving prescription pharmaceutical products from the manufacturer to the dispensary (e.g. pharmacy). Compliance with such laws requires extensive tracking systems and tight coordination with customers and manufacturers. While we currently fully comply with these laws and
 
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intends to do so in the future, such legislation and government enforcement regarding these laws is constantly evolving. Failure to comply could result in fines, penalties or loss of business that could have a material adverse effect on our financial results.
Federal regulation of patent litigation settlements and authorized generic arrangements
Pursuant to the Medicare Prescription Drug Improvement and Modernization Act of 2003, generic and brand pharmaceutical companies must file with the DOJ and FTC certain agreements entered into between other brand and/or generic pharmaceutical companies in regards to the settlement of patent ligation and/or the manufacture and marketing of generic versions of branded pharmaceutical products. This requirement impacts the ways in which generic pharmaceutical companies resolve IP litigation and may result in an increase in private-party litigation against pharmaceutical companies and/or additional investigations by the FTC or other governmental organizations.
Other regulatory requirements
We are subject to the Maximum Allowable Cost Regulations, which limit reimbursements for certain generic prescription drugs under Medicare, Medicaid, and other programs to the lowest price at which these drugs are generally available. In many instances, only generic prescription drugs fall within the regulations’ limits. Generally, the pricing and promotion of, method of reimbursement and fixing of reimbursement levels for, and the reporting to federal and state agencies relating to drug products is under active review by federal, state and local governmental entities, as well as by private third-party reimbursers and individuals under whistleblower statutes. At present, the Justice Department and U.S. Attorneys Offices and State Attorneys General have initiated investigations, reviews, and litigation into industry-wide pharmaceutical pricing and promotional practices, and whistleblowers have filed qui tam suits. We cannot predict the results of those reviews, investigations, and litigation, or their impact on our business.
Virtually every state, as well as the District of Columbia, has enacted legislation permitting the substitution of equivalent generic prescription drugs for brand-name drugs where authorized or not prohibited by the prescribing physician, and some states mandate generic substitution in Medicaid programs.
In addition, numerous state and federal requirements exist for a variety of controlled substances, such as narcotics, that may be part of our product formulations. The DEA, which has authority similar to the FDA’s and may also pursue monetary penalties, and other federal and state regulatory agencies have far reaching authority.
The State of California requires that any manufacturer, wholesaler, retailer or other entity in California that sells, transfers, or otherwise furnishes certain so called precursor substances must have a permit issued by the California Department of Justice, Bureau of Narcotic Enforcement. The substances covered by this requirement include ephedrine, pseudoephedrine, norpseudoephedrine, and phenylpropanolamine, among others. The Bureau has authority to issue, suspend and revoke precursor permits, and a permit may be denied, revoked or suspended for various reasons, including (i) failure to maintain effective controls against diversion of precursors to unauthorized persons or entities; (ii) failure to comply with the Health and Safety Code provisions relating to precursor substances, or any regulations adopted thereunder; (iii) commission of any act which would demonstrate actual or potential unfitness to hold a permit in light of the public safety and welfare, which act is substantially related to the qualifications, functions or duties of the permit holder; or (iv) if any individual owner, manager, agent, representative or employee of the permit applicant/permit holder willfully violates any federal, state or local criminal statute, rule, or ordinance relating to the manufacture, maintenance, disposal, sale, transfer or furnishing of any precursor substances.
Patents, Trademarks and Licenses
We own or license a number of patents in the U.S. and other countries covering certain products and product candidates and have also developed brand names and trademarks for other products and product candidates.
 
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Generally, the brand pharmaceutical business relies upon patent protection to ensure market exclusivity for the life of the patent. We consider the overall protection of our patents, trademarks and license rights to be of material value and acts to protect these rights from infringement. However, our business is not dependent upon any single patent, trademark or license.
In the branded pharmaceutical industry, the majority of an innovative product’s commercial value is usually realized during the period in which the product has market exclusivity. In the U.S. and some other countries, when market exclusivity expires and generic versions of a product are approved and marketed, there can often be very substantial and rapid declines in the branded product’s sales. The rate of this decline varies by country and by therapeutic category; however, following patent expiration, branded products often continue to have market viability based upon the goodwill of the product name, which typically benefits from trademark protection.
An innovator product’s market exclusivity is generally determined by two forms of intellectual property: patent rights held by the innovator company and any regulatory forms of exclusivity to which the innovator is entitled.
Patents are a key determinant of market exclusivity for most branded pharmaceuticals. Patents provide the innovator with the right to exclude others from practicing an invention related to the medicine. Patents may cover, among other things, the active ingredient(s), various uses of a drug product, pharmaceutical formulations, drug delivery mechanisms and processes for (or intermediates useful in) the manufacture of products. Protection for individual products extends for varying periods in accordance with the expiration dates of patents in the various countries. The protection afforded, which may also vary from country to country, depends upon the type of patent, its scope of coverage and the availability of meaningful legal remedies in the country.
Market exclusivity is also sometimes influenced by regulatory exclusivity rights. Many developed countries provide certain non-patent incentives for the development of medicines. For example, the U.S., the EU and Japan each provide for a minimum period of time after the approval of a new drug during which the regulatory agency may not rely upon the innovator’s data to approve a competitor’s generic copy. Regulatory exclusivity rights are also available in certain markets as incentives for research on new indications, on orphan drugs and on medicines useful in treating pediatric patients. Regulatory exclusivity rights are independent of any patent rights and can be particularly important when a drug lacks broad patent protection. However, most regulatory forms of exclusivity do not prevent a competitor from gaining regulatory approval prior to the expiration of regulatory data exclusivity on the basis of the competitor’s own safety and efficacy data on its drug, even when that drug is identical to that marketed by the innovator.
We estimate the likely market exclusivity period for each of our branded products on a case-by-case basis. It is not possible to predict the length of market exclusivity for any of our branded products with certainty because of the complex interaction between patent and regulatory forms of exclusivity, and inherent uncertainties concerning patent litigation. There can be no assurance that a particular product will enjoy market exclusivity for the full period of time that Impax currently estimates or that the exclusivity will be limited to the estimate.
In addition to patents and regulatory forms of exclusivity, we also market products with trademarks. Trademarks have no effect on market exclusivity for a product, but are considered to have marketing value. Trademark protection continues in some countries as long as used; in other countries, as long as registered. Registration is for fixed terms and may be renewed indefinitely.
Legal Proceedings
Our legal proceedings are complex, constantly evolving and subject to uncertainty. As such, we cannot predict the outcome or impact of the legal proceedings set forth below. While we believe we have valid claims and/or defenses to the matters described below, the nature of litigation is unpredictable and the outcome of the following proceedings could include damages, fines, penalties and injunctive or administrative remedies. For any proceedings where losses are probable and reasonably capable of estimation, we have accrued for such potential
 
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loss as described below. While these accruals have been deemed reasonable by our management, the assessment process relies heavily on estimates and assumptions that may ultimately prove inaccurate or incomplete. Additionally, unforeseen circumstances or events may lead us to subsequently change its estimates and assumptions. Unless otherwise indicated below, we are at this time unable to estimate the possible loss, if any, associated with such litigation.
There is substantial litigation in the pharmaceutical, biological and biotechnology industries with respect to the manufacture, use and sale of new products which are the subject of conflicting patent and intellectual property claims. One or more patents often cover the brand name products for which the Company is developing generic versions and the Company typically has patent rights covering the Company’s branded products.
Under federal law, when a drug developer files an ANDA for a generic drug seeking approval before expiration of a patent, which has been listed with the FDA as covering the brand name product, the developer must certify its product will not infringe the listed patent(s) and/or the listed patent is invalid or unenforceable (commonly referred to as a “Paragraph IV” certification). Notices of such certification must be provided to the patent holder, who may file a suit for patent infringement within 45 days of the patent holder’s receipt of such notice. If the patent holder files suit within the 45 days period, the FDA can review and approve the ANDA, but is prevented from granting final marketing approval of the product until a final judgment in the action has been rendered in favor of the generic drug developer, or 30 months from the date the notice was received, whichever is sooner. The Company’s generic products division is typically subject to patent infringement litigation brought by branded pharmaceutical manufacturers in connection with the Company’s Paragraph IV certifications seeking an order delaying the approval of the Company’s ANDA until expiration of the patent(s) at issue in the litigation. Likewise, the Company’s branded products division is currently involved in patent infringement litigation against generic drug manufacturers who have filed Paragraph IV certifications to market their generic drugs prior to expiration of the Company’s patents at issue in the litigation.
The uncertainties inherent in patent litigation make the outcome of such litigation difficult to predict. The potential consequences in the event of an unfavorable outcome in such litigation include delaying launch of the Company’s generic products until patent expiration. If the Company were to launch its generic product prior to successful resolution of a patent litigation, the Company could be liable for potential damages measured by the profits lost by the branded product manufacturer rather than the profits earned by the Company if we are found to infringe a valid, enforceable patent. For the Company’s branded products division, an unfavorable outcome may significantly accelerate generic competition ahead of expiration of the patents covering the Company’s branded products. All such litigation typically involves significant expense.
The Company is generally responsible for all of the patent litigation fees and costs associated with current and future products not covered by its alliance and collaboration agreements. The Company has agreed to share legal expenses with respect to third-party and Company products under the terms of certain of the alliance and collaboration agreements. The Company records the costs of patent litigation as expense in the period when incurred for products it has developed, as well as for products which are the subject of an alliance or collaboration agreement with a third-party.
We currently intend to vigorously prosecute and/or defend these proceedings as appropriate. From time to time, however, we may settle or otherwise resolve these matters on terms and conditions that we believe to be in the Company’s best interest. Resolution of any or all claims, legal proceedings or investigations could have a material adverse effect on the Company’s results of operations and/or cash flow in any given accounting period, or on its overall financial condition.
Additionally, we manufacture and derive a portion of our revenue from the sale of pharmaceutical products in the opioid class of drugs, and may therefore face claims arising from the regulation and/or consumption of such products. See “Risk Factors—The development, manufacture and sale of our products involves the risk of product liability and other claims by consumers and other third parties, and insurance against such potential claims is expensive and may be difficult to obtain” for more information.
 
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Further information regarding legal and regulatory proceedings involving Amneal and Impax may be found in the notes to the financial statements included elsewhere in this prospectus.
Although the outcome and costs of the asserted and unasserted claims is difficult to predict, based on the information presently known to management, the Company does not currently expect the ultimate liability, if any, for such matters to have a material adverse effect on its business, financial condition, results of operations, or cash flows.
Patent Defense Matters
Endo Pharmaceuticals Inc. and Grunenthal GmbH v. Impax Laboratories, Inc. and ThoRx Laboratories, Inc. (Oxymorphone hydrochloride); Endo Pharmaceuticals Inc. and Grunenthal GmbH v. Impax Laboratories, Inc. (Oxymorphone hydrochloride)
In November 2012, Endo Pharmaceuticals, Inc. and Grunenthal GmbH filed suit against ThoRx Laboratories, Inc., a wholly owned subsidiary of Impax (“ThoRx”), and Impax in the U.S. District Court for the Southern District of New York alleging patent infringement based on the filing of ThoRx’s ANDA relating to Oxymorphone hydrochloride, Extended Release tablets, 5 mg, 7.5 mg, 10 mg, 15 mg, 20 mg, 30 mg and 40 mg, generic to Opana ER ® . In January 2013, Endo filed a separate suit against Impax in the U.S. District Court for the Southern District of New York alleging patent infringement based on the filing of Impax’s ANDA relating to the same products. ThoRx and Impax filed an answer and counterclaims to the November 2012 suit and Impax filed an answer and counterclaims with respect to the January 2013 suit. A bench trial was completed in April 2015. In June 2016, the Court entered an amended judgment in both cases that the products described in Impax’s and ThoRx’s ANDAs would, if marketed, infringe certain claims of the patents asserted by Endo and Grunenthal. The Court also found that the asserted claims of patents owned by Endo were not invalid, but that the asserted claims of patents owned by Grunenthal were invalid. As a result, the Court enjoined Impax and ThoRx from marketing their products until expiration of the Endo patents in 2023. Appeals in these cases are pending. The appeals with respect to the Grunenthal patents are stayed. The Company and ThoRx moved to dismiss the appeals concerning the Endo patents. That motion is pending.
In November 2014, Endo Pharmaceuticals Inc. and Mallinckrodt LLC filed suit against Impax in the U.S. District Court for the District of Delaware making additional allegations of patent infringement based on the filing of Impax’s Oxymorphone hydrochloride ANDA described above. Also in November 2014, Endo and Mallinckrodt filed a separate suit in the U.S. District Court for the District of Delaware making additional allegations of patent infringement based on the filing of ThoRx’s Oxymorphone hydrochloride ANDA described above. ThoRx and Impax filed an answer and counterclaim to those suits in which they are named as a defendant. The cases were dismissed in February 2018.
Merck Sharp & Dohme Corp. v. Amneal Pharmaceuticals LLC (Mometasone furoate)
In March 2015, Merck Sharp & Dohme Corp filed suit against Amneal in the U.S. District Court for the District of Delaware alleging patent infringement based on the filing of the Amneal’s ANDA for a generic alternative to Merck’s Nasonex ® product. The District Court trial was completed on June 22, 2016. The court issued an opinion finding that Amneal’s proposed generic product did not infringe the asserted patent. Merck filed an appeal of that decision with the Court of Appeals for the Federal Circuit which remains pending. Amneal launched its generic version of the product on April 5, 2017, prior to the rendering of an appellate court decision, and continues to sell the product as of the date of this prospectus. Amneal believes that it has substantial meritorious defenses to the claims alleged. However, these actions, if successful, could adversely affect Amneal and could have a material adverse effect on Amneal’s business, results of operations, financial condition and cash flows.
Otsuka Pharmaceutical Co. Ltd. v. Amneal Pharmaceuticals LLC, et. al. (Aripiprazole)
In March 2015, Otsuka Pharmaceutical Co. Ltd. filed suit against Amneal in the U.S. District Court for the District of New Jersey alleging patent infringement based on the filing of Amneal’s ANDA for a generic
 
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alternative to Otsuka’s Abilify ® tablet product. Otsuka filed an appeal with the Court of Appeals for the Federal Circuit related to rulings from the District Court regarding some of the patents-in-suit. The District Court has not yet set a trial date for the remaining patents-in-suit. Amneal, like a number of other generic manufacturers, has launched its generic version of Otsuka’s Abilify ® “at-risk,” prior to the rendering of an appellate court decision, and continues to sell the product as of the date hereof. Amneal believes that it has substantial meritorious defenses to the claims alleged. However, these actions, if successful, could adversely affect Amneal and could have a material adverse effect on Amneal’s business, results of operations, financial condition and cash flows.
Bristol-Myers Squibb Company, et al. v. Impax Laboratories, Inc. (Apixaban)
On April 10, 2017, Bristol-Myers Squibb Company and Pfizer Inc. filed suit against Impax in the United States District Court for the District of Delaware alleging patent infringement based on the filing of Impax’s ANDA related to Apixaban Tablets, 2.5 mg and 5 mg, generic to Eliquis ® . Impax responded to the complaint on June 2, 2017 and Plaintiffs further responded on June 22, 2017. On September 22, 2017, the parties jointly filed a proposed schedule with the Court, proposing that Impax’s case and a number of related cases be consolidated. On November 3, 2017, the Court consolidated the related cases and set the case schedule. Fact discovery has commenced. Trial is scheduled for October 15, 2019.
Biogen MA Inc. v. Impax Laboratories, Inc. (Dimethyl Fumarate)
On June 26, 2017, Biogen MA Inc. filed suit against Impax in the U.S. District Court for the District of Delaware alleging patent infringement based on the filing of Impax’s ANDA relating to Dimethyl Fumarate 120 and 240 mg capsules, generic to Tecfidera ® . Impax answered the complaint on October 16, 2017. On February 2, 2017, the Court consolidated the related cases and set the case schedule. A trial with respect to this complaint by Biogen MA Inc. is scheduled to begin on December 9, 2019.
On March 5, 2018, Biogen International GmbH filed a complaint in the matter Biogen International GmbH v. Impax Laboratories, Inc., based on the same ANDA, alleging infringement of two additional patents. The Company answered that complaint on March 26, 2018. No further schedule has been set with respect to this complaint.
Shire Development LLC, et al. v. Impax Laboratories, Inc. (Amphetamine Mixed Salts)
On April 13, 2018, Shire Development LLC, Shire LLC, and Shire US Inc. filed suit against Impax in the United States District Court for the District of Delaware alleging patent infringement based on the filing of Impax’s ANDA related to Amphetamine Mixed Salts Extended Release Oral Capsules, 12.5 mg, 25 mg, 37.5 mg, and 50 mg, generic to Mydayis ® . Impax has not yet responded to the complaint, and no schedule has yet been set for the case.
Patent Infringement Matters
Impax Laboratories Inc., et al. v. Lannett Holdings, Inc. and Lannett Company (Zomig ® )
In July 2014, Impax filed suit against Lannett Holdings, Inc. and Lannett Company (collectively, “Lannett”) in the United States District Court for the District of Delaware, alleging patent infringement based on the filing of the Lannett ANDA relating to Zolmitriptan Nasal Spray, 5mg, generic to Zomig ® Nasal Spray. The case went to trial in September 2016. On March 29, 2017, the District Court issued a Trial Opinion finding the asserted patents valid and infringed. On April 17, 2017, the District Court entered a Final Judgment and Injunction that, inter alia, bars FDA approval of Lannett’s proposed generic product prior to May 29, 2021. On May 12, 2017, Lannett filed a Notice of Appeal with the United States Court of Appeals for the Federal Circuit. Briefing of Lannett’s appeal has been completed and oral argument occurred on April 5, 2018.
 
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Impax Laboratories Inc., et al. v. Par Pharmaceutical, Inc. (Zomig ® )
On September 23, 2016, Impax filed suit against Par Pharmaceutical, Inc. (“Par”) in the United States District Court for the District of Delaware, alleging patent infringement based on the filing of the Par ANDA relating to Zolmitriptan Nasal Spray, 2.5 mg and 5 mg, generic to Zomig ® Nasal Spray. On October 12, 2016, the parties stipulated to stay the case pending the outcome of the related case, Impax Laboratories Inc., et al. v. Lannett matter described above. On April 24, 2017, the parties stipulated that the stay shall remain in effect until the Impax Laboratories Inc., et al. v. Lannett matter is fully resolved. As such, Par has not yet filed an answer or counterclaims to the Impax’s complaint. The 30-month stay of approval for applicable to the Par ANDA has been tolled pending resumption of this case.
Impax Laboratories Inc., et al. v. Actavis Laboratories FL, Inc. and Actavis Pharma Inc. (Rytary ® )
In September 2015, Impax filed suit against Actavis Laboratories FL, Inc. and Actavis Pharma Inc. (collectively, “Actavis”) in the United States District Court for the District of New Jersey, alleging patent infringement of U.S. Patent Nos. 7,094,427; 8,377,474; 8,454,998; 8,557,283; 9,089,607; 9,089,608, based on the filing of the Actavis ANDA relating to carbidopa and levodopa extended release capsules, generic to Rytary ® . Impax filed related actions alleging infringement of later-issued U.S. Patent No. 9,463,246 in December 2016 and of later-issued U.S. Patent No. 9,533,046 in May 2017. Both related actions were consolidated with the lead action. On December 15, 2017, the Patent and Trademark Office issued an Ex Parte Reexamination Certificate canceling all claims of the ‘427 patent; the parties subsequently stipulated to dismiss with prejudice all claims and counterclaims relating to the ‘427 patent. Fact discovery and claim construction briefing have concluded and a claim construction hearing was held on April 26, 2017. On May 9, 2017, the District Court issued a decision interpreting certain claim terms in dispute in the litigation. Subject to reservation of all rights to appeal the Court’s May 9, 2017 decision, the parties stipulated to dismiss without prejudice all claims and counterclaims relating to the ‘474, ‘998, and ‘607 patents, and the Court entered an order recognizing this stipulation on June 8, 2017. The parties have completed expert discovery and Actavis filed a summary judgment motion on October 23, 2017. On March 8, 2018, the Court issued an Opinion and Order, granting in part Actavis’s motion for summary judgment, finding no literal infringement of claims 1-3 and 5 of the ‘283 patent; claims 5, 8, 10, 13, 17, 18, and 19 of the ‘608 patent; claims 1, 9, 14, 17, 19, 21, 25, 26, 37, 40, 42, 44, 48, 49, 51, and 53 of the ‘246 patent; and claims 7, 12, 14, 16, 18, 20, 21, 30, and 31 of the ‘046 patent. The Court denied Actavis’s motion with respect to infringement under the doctrine of equivalents as to all claims, and further held that Actavis is precluded from raising certain non-infringement arguments as untimely disclosed. A four day trial is scheduled to begin on May 14, 2018.
Impax Laboratories, Inc. v. Sandoz Inc. (Rytary ® )
On March 31, 2017, Impax filed suit against Sandoz Inc. in the United States District Court for the District of New Jersey, alleging infringement of U.S. Patent Nos. 7,094,427; 8,377,474; 8,454,998; 8,557,283; 9,089,607; 9,089,608; 9,463,246; and 9,533,046, based on the filing of Sandoz’s ANDA relating to carbidopa and levodopa extended release capsules, generic to Rytary ® . Sandoz answered the complaint on March 22, 2018. Fact discovery has not yet commenced.
Impax Laboratories, Inc. v. Zydus Pharmaceuticals USA, Inc. and Cadila Healthcare Ltd. (Rytary ® )
On December 21, 2017, Impax filed suit against Zydus Pharmaceuticals USA, Inc. and Cadila Healthcare Ltd. (collectively, “Zydus”) in the United States District Court for the District of New Jersey, alleging infringement of U.S. Patent No. 9,089,608, based on the filing of Zydus’s ANDA relating to carbidopa and levodopa extended release capsules, generic to Rytary ® . Zydus has not yet answered or otherwise responded to the Complaint.
 
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Other Litigation Related to Impax’s and Amneal’s Business
Solodyn ®  Antitrust Class Actions
From July 2013 to January 2016, 18 complaints were filed as class actions on behalf of direct and indirect purchasers, as well as by certain direct purchasers, against manufacturers of the brand drug Solodyn ® and its generic equivalents, including Impax.
On July 22, 2013, Plaintiff United Food and Commercial Workers Local 1776 & Participating Employers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On July 23, 2013, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 1, 2013, Plaintiff International Union of Operating Engineers Local 132 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of California on behalf of itself and others similarly situated. On August 29, 2013, this Plaintiff withdrew its complaint from the United States District Court for the Northern District of California, and on August 30, 2013, re-filed the same complaint in the United States Court for the Eastern District of Pennsylvania, on behalf of itself and others similarly situated.
On August 9, 2013, Plaintiff Local 274 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 12, 2013, Plaintiff Sheet Metal Workers Local No. 25 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 27, 2013, Plaintiff Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 29, 2013, Plaintiff Heather Morgan, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 30, 2013, Plaintiff Plumbers & Pipefitters Local 178 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On September 9, 2013, Plaintiff Ahold USA, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated.
On September 24, 2013, Plaintiff City of Providence, Rhode Island, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Arizona on behalf of itself and others similarly situated.
On October 2, 2013, Plaintiff International Union of Operating Engineers Stationary Engineers Local 39 Health & Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated.
 
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On October 7, 2013, Painters District Council No. 30 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated.
On October 25, 2013, Plaintiff Man-U Service Contract Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On March 13, 2014, Plaintiff Allied Services Division Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated.
On March 19, 2014, Plaintiff NECA-IBEW Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated.
On February 25, 2014, the United States Judicial Panel on Multidistrict Litigation ordered the pending actions transferred to the District of Massachusetts for coordinated pretrial proceedings, as In Re Solodyn (Minocycline Hydrochloride) Antitrust Litigation.
On March 26, 2015, Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson’s LLC, direct purchasers, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On April 8, 2015, the Judicial Panel on Multi-District Litigation ordered the action be transferred to the District of Massachusetts, to be coordinated or consolidated with the coordinated proceedings. The original complaint filed by the plaintiffs asserted claims only against defendant Medicis. On October 5, 2015, the plaintiffs filed an amended complaint asserting claims against Impax and the other generic defendants.
On April 16, 2015, Rite Aid Corporation and Rite Aid Hdqtrs. Corp, direct purchasers, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On May 1, 2015, the Judicial Panel on Multi-District Litigation ordered the action be transferred to the District of Massachusetts, to be coordinated or consolidated with the coordinated proceedings. The original complaint filed by the plaintiffs asserted claims only against defendant Medicis. On October 5, 2015, the plaintiffs filed an amended complaint asserting claims against Impax and the other generic defendants.
On January 25, 2016, CVS Pharmacy, Inc., a direct purchaser, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On February 11, 2016, the Judicial Panel on Multi-District Litigation ordered the action to be transferred to the District of Massachusetts to be coordinated or consolidated with the coordinated proceedings.
The consolidated amended complaints allege that Medicis engaged in anticompetitive schemes by, among other things, filing frivolous patent litigation lawsuits, submitting frivolous Citizen Petitions, and entering into anticompetitive settlement agreements with several generic manufacturers, including Impax, to delay generic competition of Solodyn ® and in violation of state and federal antitrust laws. Plaintiffs seek, among other things, unspecified monetary damages and equitable relief, including disgorgement and restitution. On August 14, 2015, the District Court granted in part and denied in part defendants’ motion to dismiss the consolidated amended complaints. On October 16, 2017, the Court certified the Direct Purchaser Plaintiffs’ and End-Payor Plaintiffs’ classes. On October 30, 2017, Impax filed a petition for interlocutor appeal challenging the Court’s certification of the End-Payor Plantiffs’ class. On January 25, 2018, the Court denied Plaintiffs’ and Impax’s summary judgment motions. Trial began on March 12, 2018. During March 2018, the Company separately settled all claims with the direct purchaser plaintiff class, retailer plaintiffs and the end payor plaintiff class for a total settlement amount of $84.5 million. The settlements with the class plaintiffs are subject to court approval. The settlement with the direct purchaser plaintiff class was preliminarily approved by the Court on March 12, 2018, and a fairness hearing is scheduled for July 11, 2018.
 
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Opana ER ® FTC Antitrust Suit
On February 25, 2014, Impax received a Civil Investigative Demand (“CID”) from the FTC concerning its investigation into the drug Opana ® ER and its generic equivalents. On March 30, 2016, the FTC filed a complaint against Impax, Endo, and others in the United States District Court for the Eastern District of Pennsylvania, alleging that Impax and Endo violated antitrust laws when they entered into a June 2010 co-promotion and development agreement and a June 2010 settlement agreement that resolved patent litigation in connection with the submission of Impax’s ANDA for generic original Opana ® ER. In July 2016, the defendants filed a motion to dismiss the complaint, and a motion to sever the claims regarding Opana ® ER from claims with respect to a separate settlement agreement that was challenged by the FTC. On October 20, 2016, the Court granted the motion to sever, formally terminating the suit against Impax, with an order that the FTC re-file no later than November 3, 2016 and dismissed the motion to dismiss as moot. On October 25, 2016, the FTC filed a notice of voluntary dismissal. On January 19, 2017, the FTC filed a Part 3 Administrative complaint against Impax with similar allegations regarding Impax’s June 2010 settlement agreement with Endo that resolved patent litigation in connection with the submission of Impax’s ANDA for generic original Opana ® ER. Impax filed its answer to the Administrative Complaint on February 7, 2017. Trial concluded on November 15, 2017. Post-trial briefing is complete and closing arguments were held February 15, 2018. A decision is pending.
Opana ER ® Antitrust Class Actions
From June 2014 to April 2015, 14 complaints were filed as class actions on behalf of direct and end-payor (indirect) purchasers, as well as by certain direct purchasers, against the manufacturer of the brand drug Opana ER ® and Impax.
On June 4, 2014, Plaintiff Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 4, 2014, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 6, 2014, Plaintiff Value Drug Company, a direct purchaser, filed a class action complaint in the United States District Court for the Northern District of California on behalf of itself and others similarly situated. On June 26, 2014, this Plaintiff withdrew its complaint from the United States District Court for the Northern District of California, and on July 16, 2014, re-filed the same complaint in the United States District Court for the Northern District of Illinois, on behalf of itself and others similarly situated.
On June 19, 2014, Plaintiff Wisconsin Masons’ Health Care Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated.
On July 17, 2014, Plaintiff Massachusetts Bricklayers, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 11, 2014, Plaintiff Pennsylvania Employees Benefit Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated.
On September 19, 2014, Plaintiff Meijer Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated.
 
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On October 3, 2014, Plaintiff International Union of Operating Engineers, Local 138 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated.
On November 17, 2014, Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana, an indirect purchaser, filed a class action complaint in the United States District Court for the Middle District of Louisiana on behalf of itself and others similarly situated.
On December 12, 2014, the United States Judicial Panel on Multidistrict Litigation ordered the pending actions transferred to the Northern District of Illinois for coordinated pretrial proceedings, as In Re Opana ER Antitrust Litigation.
On December 19, 2014, Plaintiff Kim Mahaffay, an indirect purchaser, filed a class action complaint in the Superior Court of the State of California, Alameda County, on behalf of herself and others similarly situated. On January 27, 2015, the Defendants removed the action to the United States District Court for the Northern District of California.
On January 12, 2015, Plaintiff Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated.
On March 26, 2015 Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson’s LLC, direct purchasers, filed a separate complaint in the United States District Court for the Northern District of Illinois.
On April 23, 2015, Rite Aid Corporation and Rite Aid Hdqtrs. Corp, direct purchasers, filed a separate complaint in the United States District Court for the Northern District of Illinois.
In each case, the complaints allege that Endo engaged in an anticompetitive scheme by, among other things, entering into an anticompetitive settlement agreement with Impax to delay generic competition of Opana ER ® and in violation of state and federal antitrust laws. Plaintiffs seek, among other things, unspecified monetary damages and equitable relief, including disgorgement and restitution. Consolidated amended complaints were filed on May 4, 2015 by direct purchaser plaintiffs and end-payor (indirect) purchaser plaintiffs.
On July 3, 2015, defendants filed motions to dismiss the consolidated amended complaints, as well as the complaints of the “Opt-Out Plaintiffs” (Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson’s LLC, Rite Aid Corporation and Rite Aid Hdqtrs. Corp.).
On February 1, 2016, CVS Pharmacy, Inc. filed a complaint in the United States District Court for the Northern District of Illinois. The parties agreed that CVS Pharmacy, Inc. would be bound by the court’s ruling on the defendants’ motion to dismiss the Opt-Out Plaintiffs’ complaints.
On February 10, 2016, the court granted in part and denied in part defendants’ motion to dismiss the end-payor purchaser plaintiffs’ consolidated amended complaint, and denied defendants’ motion to dismiss the direct purchaser plaintiffs’ consolidated amended complaint. The end-payor purchaser plaintiffs have filed a second consolidated amended complaint and Impax has moved to dismiss certain state law claims.
On February 25, 2016, the court granted defendants’ motion to dismiss the Opt-Out Plaintiffs’ complaints, with leave to amend. The Opt-Out Plaintiffs and CVS Pharmacy, Inc. have filed amended complaints and Impax has filed its answer.
Discovery is ongoing. No trial date has been scheduled.
 
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Sergeants Benevolent Association Health & Welfare Fund v. Actavis, PLC, et. al.
In August 2015, a complaint was filed against Amneal in the U.S. District Court for the Southern District of New York involving patent litigation settlement agreements between Amneal and Forest Laboratories. Amneal was one of a number of pharmaceutical companies named in the lawsuit. The settlement agreement at issue settled the patent litigation between Forest Laboratories and Amneal regarding Namenda © immediate release tablets. On September 13, 2016, the court denied the defendants’ motion to dismiss with respect to the federal claims and stayed the state law claims pending against Amneal and the other generic pharmaceutical company defendants until the federal claims are resolved. The court denied the defendants’ motion to dismiss with respect to the state law claims without prejudice to renew the motion after the federal claims have been resolved. The court cited the interests of judicial economy and the myriad state antitrust and unfair business practices laws as the basis for severing the state law claims and placing them on the court’s inactive docket. The court’s decision places the entirety of the claims pending against Amneal and the other generic pharmaceutical companies on the court’s inactive docket, which effectively stays the litigation as to Amneal until the federal claims are resolved or until the court removes those claims from its inactive docket. Amneal believes that it has substantial meritorious defenses to the claims alleged. However, these actions, if successful, could adversely affect Amneal and could have a material adverse effect on Amneal’s business, results of operations, financial condition and cash flows.
United States Department of Justice Investigations
Previously on November 6, 2014, Impax disclosed that one of its sales representatives received a grand jury subpoena from the Antitrust Division of the United States Justice Department (the “Justice Department”). In connection with this same investigation, on March 13, 2015, Impax received a grand jury subpoena from the Justice Department requesting the production of information and documents regarding the sales, marketing, and pricing of certain generic prescription medications. In particular, the Justice Department’s investigation currently focuses on four generic medications: digoxin tablets, terbutaline sulfate tablets, prilocaine/lidocaine cream, and calcipotriene topical solution. Impax has been cooperating and intends to continue cooperating with the investigation. However, no assurance can be given as to the timing or outcome of the investigation.
Attorney General of the State of Connecticut Interrogatories and Subpoena Duces Tecum
On July 14, 2014, Impax received a subpoena and interrogatories (the “Subpoena”) from the State of Connecticut Attorney General (“Connecticut AG”) concerning its investigation into sales of Impax’s generic product, digoxin. According to the Connecticut AG, the investigation is to determine whether anyone engaged in a contract, combination or conspiracy in restraint of trade or commerce which has the effect of (i) fixing, controlling or maintaining prices or (ii) allocating or dividing customers or territories relating to the sale of digoxin in violation of Connecticut state antitrust law. Impax intends to cooperate with the Connecticut AG in producing documents and information in response to the Subpoena. To the knowledge of Impax, no proceedings by the Connecticut AG have been initiated against Impax at this time; however no assurance can be given as to the timing or outcome of this investigation.
Texas State Attorney General Civil Investigative Demand
On May 27, 2014, a civil investigative demand (“ CID ”) was served on Amneal by the Office of the Attorney General for the state of Texas (the “ Texas AG ”) relating to products distributed by Amneal under a specific Amneal labeler code. Shortly thereafter, Amneal received a second CID with respect to the same products sold by Interpharm Holding, Inc. (“Interpharm”), the assets of which had been acquired by Amneal in June 2008. Amneal completed its production of the direct and indirect sales transaction data in connection with the products at issue and provided this information to the Texas AG in November 2015. In May 2016, the Texas AG delivered two settlement demands to Amneal in connection with alleged overpayments made by the State of Texas for such products under its Medicaid programs. For the Amneal and Interpharm products at issue, the Texas AG’s initial demand was for an aggregate total of $36 million based on $16.2 million in alleged
 
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overpayments. After analyzing the Texas AG’s demand, Amneal raised certain questions regarding the methodology used in the Texas AG’s overpayment calculations, including the fact that the calculations treated all pharmacy claims after 2012 for the products at issue as claims for over-the-counter (“ OTC ”) drugs, even though the products were prescription pharmaceuticals. This had the effect of increasing the alleged overpayment because the dispensing fee for OTC drugs was lower than that for prescription drugs. Therefore the Texas AG’s calculations were derived by subtracting a lower (and incorrect) OTC dispensing fee from the higher (and correct) prescription dispensing fee. The Texas AG later acknowledged this discrepancy and is in the process of re-calculating the alleged overpayment.
In re Generic Pharmaceuticals Pricing Antitrust Litigation
From March 2016 to April 2017, 22 complaints were filed as class actions on behalf of direct and indirect purchasers against manufacturers of generic digoxin and doxycycline and Impax alleging a conspiracy to fix, maintain and/or stabilize prices of these generic products. From January 2017 to April 2017, three complaints were filed on behalf of indirect purchasers against manufacturers of generic lidocaine/prilocaine and Impax alleging a conspiracy to fix, maintain and/or stabilize prices of these generic products.
On March 2, 2016, Plaintiff International Union of Operating Engineers Local 30 Benefits Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. The plaintiff filed an amended complaint on June 9, 2016.
On March 25, 2016, Plaintiff Tulsa Firefighters Health and Welfare Trust, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On March 25, 2016, Plaintiff NECA-IBEW Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On April 4, 2016, Plaintiff Pipe Trade Services MN, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On April 25, 2016, Plaintiff Edward Carpinelli, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On April 27, 2016, Plaintiff Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On May 2, 2016, Plaintiff Nina Diamond, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On May 5, 2016, Plaintiff UFCW Local 1500 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On May 6, 2016, Plaintiff Minnesota Laborers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
 
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On May 12, 2016, Plaintiff the City of Providence, Rhode Island, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Rhode Island on behalf of itself and others similarly situated.
On May 18, 2016, Plaintiff KPH Healthcare Services, Inc. a/k/a Kinney Drugs, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On May 19, 2016, Plaintiff Philadelphia Federation of Teachers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 8, 2016, Plaintiff United Food & Commercial Workers and Employers Arizona Health and Welfare Trust, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 17, 2016, Plaintiff Ottis McCrary, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 20, 2016, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 27, 2016, Plaintiff César Castillo Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 29, 2016, Plaintiff Plumbers & Pipefitters Local 33 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On July 1, 2016, Plaintiff Plumbers & Pipefitters Local 178 Health and Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On July 15, 2016, Plaintiff Ahold USA, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On September 7, 2016, Plaintiff United Here Health, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On September 20, 2016, Plaintiff Valerie Velardi, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On January 13, 2017, Plaintiff International Union of Operating Engineers Local 30 Benefits Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated against manufacturers of generic lidocaine/prilocaine and Impax alleging a conspiracy to fix, maintain and/or stabilize prices of this generic drug.
 
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On April 17, 2017, Plaintiff UFCW Local 1500 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated against manufacturers of generic lidocaine/prilocaine and Impax alleging a conspiracy to fix, maintain and/or stabilize prices of this generic drug.
On April 25, 2017, Plaintiff Louisiana Health Service Indemnity Company, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated against manufacturers of generic lidocaine/prilocaine and Impax alleging a conspiracy to fix, maintain and/or stabilize prices of this generic drug.
On May 19, 2016, several indirect purchaser plaintiffs filed a motion with the Judicial Panel on Multidistrict Litigation to transfer and consolidate the actions in the United States District Court for the Eastern District of Pennsylvania. The Judicial Panel ordered the actions consolidated in the Eastern District of Pennsylvania and ordered that the actions be renamed “ In re Generic Digoxin and Doxycycline Antitrust Litigation ” .  On January 27, 2017, plaintiffs filed two consolidated class action complaints. With respect to doxycycline, the plaintiffs dropped their allegations against Impax. On March 28, 2017, Impax, separately and along with other defendants, filed motions to dismiss the digoxin class action complaint. On April 6, 2017, the Judicial Panel on Multidistrict Litigation ordered the consolidation of all civil actions involving allegations of antitrust conspiracies in the generic pharmaceutical industry regarding 18 generic drugs to the Eastern District of Pennsylvania. The consolidated actions have been renamed  In re Generic Pharmaceuticals Pricing Antitrust Litigation . On October 6, 2017, Impax filed a motion to dismiss the digoxin complaint. Briefing on the motion to dismiss is complete and a decision is pending. On February 9, 2018, the Court issued an order denying the discovery stay and allowing certain fact discovery to proceed.
On January 19, 2018, Plaintiffs The Kroger Co., Albertsons Companies, LLC, and H.E. Butt Grocery Company L.P., opt-outs, filed a complaint in the United States District Court for the Eastern District of Pennsylvania against 35 companies, including Impax, alleging a conspiracy to fix, maintain and/or stabilize prices of thirty drugs and specifically digoxin and lidocaine/prilocaine with respect to Impax. No schedule has been set.
AWP Litigation
On December 30, 2015, Plumbers’ Local Union No. 690 Health Plan and others similarly situated filed a class action against several generic drug manufacturers, including Impax, in the Court of Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, Civil Trial Division, alleging that Impax and others violated the law, including the Pennsylvania Unfair Trade Practices and Consumer Protection law, by inflating the Average Wholesale Price (“AWP”) of certain generic drugs. The case has since been removed to federal court in the United States District Court for the Eastern District of Pennsylvania. By virtue of an amended complaint filed on March 29, 2016, the suit has been amended to comprise a nationwide class of third party payors that allegedly reimbursed or purchased certain generic drugs based on AWP and to assert causes of action under the laws of other states in addition to Pennsylvania. On May 17, 2016, this case was stayed. On January 18, 2017, Impax, along with the other defendants, filed a joint motion to dismiss the complaint. On September 15, 2017, the Court dismissed the complaint with prejudice. The time period to file an appeal has lapsed.
On February 5, 2016, Delaware Valley Health Care Coalition filed a lawsuit based on substantially similar allegations in the Court of Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, Civil Trial Division that seeks declaratory judgment. On May 20, 2016, this case was stayed pending resolution of the federal court action described above.
Impax Laboratories, Inc. v. Turing Pharmaceuticals AG
On May 2, 2016, Impax filed suit against Turing Pharmaceuticals AG (“Turing”) in the United States District Court for the Southern District of New York alleging breach of the terms of the contract by which
 
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Turing purchased from Impax the right to sell the drug Daraprim ® , as well as the right to sell certain Daraprim ® inventory (the “Purchase Agreement”). Specifically, Impax seeks (i) a declaratory judgment that Impax may revoke Turing’s right to sell Daraprim ® under Impax’s labeler code and national drug codes; (ii) specific performance to require Turing to comply with its obligations under the Purchase Agreement for past due reports and for reports going forward; and (iii) money damages to remedy Turing’s failure to reimburse Impax for chargebacks and Medicaid rebate liability when due, currently in excess of $40.9 million, and for future amounts that may be due. Turing has filed its answer and a counterclaim against Impax alleging breach of contract and breach of the duty of good faith and fair dealing. Discovery is closed. On October 14, 2016, Impax filed a motion for summary judgment. The District Court issued its order on September 29, 2017. The Court found that Turing breached the Purchase Agreement by failing to reimburse Impax for Medicaid rebate liability, however, the Court also found that the Company breached the Purchase Agreement by not filing a restatement with the Centers for Medicare and Medicaid Services at Turing’s request. Therefore, Impax was not entitled to damages. On October 13, 2017, Impax filed a Motion for Clarification / Reconsideration of the Summary Judgment Order. Briefing on the motion is complete and a decision is pending.
Telephone Consumer Protection Act Cases
On January 31, 2017, Plaintiff Family Medicine Pharmacy LLC filed a class action complaint in the United States District Court for the Southern District of Alabama on behalf of itself and others similarly situated against Impax alleging violation of the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act of 2005 (the “Telephone Consumer Protection Act”). On March 27, 2017, Impax filed a motion to dismiss the complaint and plaintiff filed an amended complaint on April 10, 2017. On July 18, 2017, the parties reached an agreement in principle regarding the class settlement. On September 29, 2017, the District Court preliminarily approved the proposed class settlement. The Court held a hearing on March 6, 2018 and issued an order with final approval of the proposed class settlement.
On February 14, 2017, Plaintiff Medicine To Go Pharmacies, Inc. filed a class action complaint in the United States District Court for the District of New Jersey on behalf of itself and others similarly situated against Impax alleging violation of the Telephone Consumer Protection Act. On April 17, 2017, Impax filed a motion to dismiss, transfer, or stay this case in light of the first-filed case described above. This case was transferred to the Southern District of Alabama. On September 15, 2017, the Court stayed this matter pending the final approval of the class settlement described above.
Securities Class Action
On April 17, 2017, Lead Plaintiff New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund filed an amended class action complaint in the United States District Court for the Northern District of California on behalf of itself and others similarly situated against Impax alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. Impax filed its motion to dismiss the amended complaint on June 1, 2017 and briefing has been completed.
Shareholder Derivative Action
On February 22, 2017, Plaintiff Ed Lippman filed a shareholder derivative complaint in the Superior Court for the State of California in the County of Alameda on behalf of Impax against former executives, a current executive, and certain current members of the board of directors alleging breach of fiduciary duty, unjust enrichment, abuse of control, gross mismanagement, and corporate waste. This matter has been stayed pending the securities class action referenced above.
Securities Class Actions related to the Combination
On December 12, 2017 and December 14, 2017, Plaintiffs Susan Vana and David Stone, respectively, filed class action complaints in the United States District Court for the Northern District of California on behalf of
 
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themselves and others similarly situated against Impax alleging violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 generally alleging that the Registration Statement on Form S-4 related to the Combination contains false and misleading statements and/or omissions concerning the financial projections of Impax, Amneal, and New Amneal; Morgan Stanley & Co. LLC’s valuation analyses and Fairness Opinions relating to Impax and Amneal; potential conflicts of interest associated with one of Impax’s financial advisors and the Combination with Amneal; and background information of the proposed business combination, including confidentiality agreements entered into by Impax in connection with the Combination. On April 4, 2018, plaintiffs filed a Stipulation and Proposed Order voluntarily dismissing the actions and on April 5, 2018, the court issued an order to dismiss the actions. By no later than June 1, 2018, plaintiffs shall file any petition and supporting papers for an award of attorneys’ fees and expenses.
Teva v. Impax Laboratories, Inc.
On February 15, 2017, Plaintiffs Teva Pharmaceuticals USA, Inc. and Teva Pharmaceuticals Curacao N.V. (“Teva”) filed a Praecipe to Issue Writ of Summons and Writ of Summons (precursor to a complaint) in the Philadelphia County Court of Common Pleas against Impax alleging that Impax breached the Strategic Alliance Agreement between the parties by not indemnifying Teva in its two litigations with GlaxoSmithKline LLC regarding Wellbutrin ® XL. Impax filed a Motion to Disqualify Teva’s counsel related to the matter, and on August 23, 2017, the Court denied Impax’s motion. Following the Court’s order, Teva filed its complaint. Impax has filed its appeal regarding the disqualification order, and oral argument will be held on April 10, 2018. The matter is currently stayed.
California Wage and Hour Class Action
On August 3, 2017, Plaintiff Emielou Williams filed a class action complaint in the Superior Court for the State of California in the County of Alameda on behalf of herself and others similarly situated against Impax alleging violation of California Business and Professions Code section 17200 by violating various California wage and hour laws. On October 10, 2017, Impax filed a Demurrer and Motion to Strike Class Allegations. On December 12, 2017, the Court overruled Impax’s Demurrer to Plaintiff’s individual claims, however, it struck all of Plaintiff’s class allegations. On March 13, 2018, Plaintiff filed her First Amended Complaint once again including the same class allegations. The Company filed a Demurrer and Motion to Strike Class Allegations on April 12, 2018 and hearing is scheduled for May 25, 2018. Discovery is ongoing.
From time to time, we may become subject to other legal proceedings, claims or litigation arising in the ordinary course of business. In addition, we may receive letters alleging infringement of patents or other IP rights. If an unfavorable outcome were to occur in litigation, the impact could be material to our business, financial condition, cash flow or results of operations, depending on the specific circumstances of the outcome.
American Resources Insurance Company, Inc. Class Action
On March 28, 2018, Plaintiff American Resources Insurance Company, Inc. filed a class action complaint in the United States District Court for the Southern District of Alabama on behalf of itself and others similarly situated against Impax, Amneal and several other drug manufacturers and distributors alleging violations of the RICO statute, negligence, fraud, unjust enrichment, and subrogration with respect to the sale and distribution of opioids. No schedule has been set.
Environmental Laws
We are subject to comprehensive federal, state and local environmental laws and regulations that govern, among other things, air polluting emissions, waste water discharges, solid and hazardous waste disposal, and the remediation of contamination associated with current or past generation handling and disposal activities. Amneal
 
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and Impax are subject periodically to environmental compliance reviews by various environmental regulatory agencies. While it is impossible to predict accurately the future costs associated with environmental compliance and potential remediation activities, compliance with environmental laws is not expected to require significant capital expenditures and has not had, and is not expected to have, a material adverse effect on our business, operations or financial condition.
Other Information
Unless otherwise indicated, all product sales data and U.S. market size data in this prospectus are based on information obtained from IMS Health, unrelated third-party providers of prescription market data. We did not independently engage IMS Health to provide this information.
Properties
Amneal owns or leases numerous properties in domestic and foreign locations. Amneal’s principal properties include manufacturing facilities, R&D laboratories, warehouses, and corporate offices. Amneal also has numerous smaller facilities that include sales and support offices and storage facilities throughout the world.
 
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The following table summarizes the primary properties owned or leased by Amneal and Impax.

Property Address	 	Legal
Status	 	 	Purpose	 	 	Expiration of Lease	 	
Amneal Pharmaceuticals LLC	 				 				 				
280 Newport Center Drive, Newport, California, USA	 	 	Lease	 	 	 	Administrative, Sales and
Marketing	
 	 	 	June 30, 2020	 	
118 Beaver Trail, Glasgow, Kentucky	 	 	Lease	 	 	 	Administrative, Distribution
and Warehouse	
 	 	 	September 30, 2020	 	
40 Aberdeen Drive, Glasgow, Kentucky	 	 	Lease	 	 	 	Warehouse	 	 	 	September 30, 2020	 	
360 Moreland Road, Commack, New York	 	 	Lease	 	 	 	Warehouse	 	 	 	January 31, 2018; renewing
for 1 year	
 	
21 Colonial Drive, Piscataway, New Jersey	 	 	Lease	 	 	 	Warehouse	 	 	 	September 30, 2025	 	
39-49 Colonial Drive, Piscataway, New Jersey	 	 	Lease	 	 	 	Warehouse	 	 	 	October 31, 2024	 	
1045 Centennial Ave, Piscataway, New Jersey	 	 	Lease	 	 	 	R&D; manufacturing in 2018	 	 	 	November 30, 2025	 	
131 Chambersbrook Rd., Branchburg, New Jersey	 	 	Lease	 	 	 	Manufacturing	 	 	 	December 5, 2027	 	
65 Readington, Branchburg, New Jersey	 	 	Lease	 	 	 	Manufacturing	 	 	 	December 5, 2027	 	
One New England Avenue, Piscataway, New Jersey	 	 	Lease	 	 	 	Manufacturing	 	 	 	February 28, 2031	 	
1041 US Highway 202/206, Bridgewater, New Jersey	 	 	Lease	 	 	 	Subleased to Kashiv
Pharmaceuticals LLC	
 	 	 	April 30, 2018	 	
209 McLean Blvd., Paterson, New Jersey	 	 	Lease	 	 	 	Manufacturing	 	 	 	July 31, 2018; closing
March 31, 2018	 
 	
19 Readington Road, Branchburg, New Jersey	 	 	Lease	 	 	 	Warehouse	 	 	 	May 31, 2022	 	
400 Crossing Boulevard, Third Floor, Bridgewater, New Jersey	 	 	Lease	 	 	 	Warehouse	 	 	 	May 31, 2022	 	
One Murray Road, East Hanover, New Jersey	 	 	Lease	 	 	 	Packaging	 	 	 	April 30, 2022	 	
1041 U.S. Highway 202/206, Bridgewater, New Jersey	 	 	Lease	 	 	 	N/A	 	 	 	September 30, 2025	 	
Amneal Biosciences LLC	 				 				 				
400 Crossing Boulevard, Bridgewater, New Jersey	 	 	Lease	 	 	 	Administrative—Amneal
Biosciences LLC	 
 	 	 	Month-to-month	 	
Amneal Pharmaceuticals of New York, LLC	 				 				 				
50 Horseblock Road, (Yaphank) Brookhaven, New York	 	 	Lease	 	 	 	Manufacturing, R&D,
Quality and Regulatory	 
 	 	 	June 30, 2043	 	
75 Adams, Hauppage, New York	 	 	Lease	 	 	 	Manufacturing, R&D,
Quality and Regulatory	 
 	 	 	March 31, 2021	 	
 
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Property Address	 	Legal
Status	 	 	Purpose	 	 	Expiration of Lease	 	
Amneal Ireland Ltd	 				 				 				
Cahir Road, Cashel Co, Tipperary, Ireland	 	 	Owned	 	 	 	R&D with manufacturing
once product approved	 
 	 	 	N/A	 	
Creo Pharma Limited	 				 				 				
Felsted Business Centre, Felsted, Essex, United Kington	 	 	Lease	 	 	 	Administrative, Sales and
Marketing	 
 	 	 	June 19, 2019	 	
Amneal Pharmaceuticals Company GmbH	 				 				 				
Turmstrasse 30, 6312 Steinhausen, Zug, Switzerland	 	 	Lease	 	 	 	Administrative	 	 	 	June 30, 2018	 	
Amneal Pharmaceuticals Pvt Ltd	 				 				 				
881/1 and 871, Near Hotel Karnavati, Vill Rajoda, Tal Bavla, Ahmedabad—380001	 	 	Owned	 	 	 	Oral Solids Manufacturing
and R&D	 
 	 	 	N/A	 	
Plot No 15-16-17, Pharmasez, SARKHEJ BALVA HIGHWAY NH NO. 8A VILLAGE MATODA	 	 	Leased	 	 	 	Oral Solids & Injectables
Manufacturing and R&D	 
 	 	 	December 31, 2109	 	
509-514 Venus Atlantis, Nr Shell Petrol Pump, Prahladnagar, Satellite, Ahmedabad 380 015	 	 	Leased	 	 	 	Corporate Office	 	 	 	April 30, 2022	 	
Magnet Park, Corporate House No 18, Sarkhej Gandhinagar Highway, Thaltej, Ahmedabad	 	 	Leased	 	 	 	Corporate Office	 	 	 	April 30, 2022	 	
Magnet Park, Corporate House No 18, Sarkhej Gandhinagar Highway, Thaltej, Ahmedabad	 	 	Leased	 	 	 	R&D (Injectables)	 	 	 	February 26, 2026	 	
Plot No 99, Gallops Industrial Park, Village Rajoda, Bavla, Ahmedabad 382 220	 	 	Leased	 	 	 	Additional Warehouse for
OSD	 
 	 	 	February 28, 2022	 	
901-905, 906-910 & 911 Iscon Elegance, S.G.Highway, Ahmedabad	 	 	Leased	 	 	 
	Corporate Office
(lease deed executed)	 
 	 	 	December 31, 2027	 	
Amneal Oncology Pvt Ltd	 				 				 				
Plot S3, S4 & S5 -A, TSIIC,SEZ, JADCHERLA TELANGANA MAHABUBNAGAR 509302	 	 	Leased	 	 	 	Oncology R&D &
Manufacturing	 
 	 	 	August 23, 2044	 	
H No. 5-250/1/E, Vijaynagar Colony, Jedcharla, Mandal, Mahabubnagar	 	 	Leased	 	 	 	Corporate lodging	 	 	 
	November 30, 2017
(renewable by mutual
agreement)	 

Raks Pharmaceuticals Pvt Ltd	 				 				 				
PLOT NO 68 SY NO 60,62&63 OFE BONAMGI REVENUE VILLAGE PARAWADA MANDAL AP 008 VISAKHAPATAM APANDHRA PRADESH, 530001	 	 	Owned	 	 	 	API Manufacturing and
R&D	 
 	 	 	N/A	 	
PLOT NO Z/111/A DAHEJ SEZ, PART II DAHEJ, GUJARAT BHARUCH-392110	 	 	Leased	 	 	 	API Manufacturing	 	 	 	October 15, 2042	 	
 
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Property Address	 	Legal
Status	 	Purpose	 	Expiration of Lease	
105, Shriram Heights, Duvvada Station Rd., Kurmannapalam, Vishakhapatnam 530 036	 	Leased	 	Corporate lodging	 	March 31, 2017, renewable
by mutual agreement	
55, Rang Platinum, Opp A.B.C. Colony, Dahej Bypass Road, Bharuch (3HBK)	 	Leased	 	Corporate lodging	 	March 31, 2017, renewable
by mutual agreement	
55, Rang Platinum, Opp A.B.C. Colony, Dahej Bypass Road, Bharuch (3HBK)	 	Leased	 	Corporate lodging	 	November 30, 2017
(Renewal in process)	
Flat No. 301, 3rd Floor, R Square, Plot No 1C, Addagutta Society, Pragathi Nagar Road, JNTU Circle, K P H B Colony, Kukatpally, Hyderabad—500072	 	Leased	 	Day to day operations
Purchase Dept—RAKS	 	November 30, 2017
(Renewal in process)	
Zydus Infrastructure Private Limited ,	 		 		 		
Gr. Floor, Office Buildings Block no 3 and 4, National Highway no. 8A, Sarkhej Bavla Road, Matoda, Ahmedabad	 	Leased	 	Corporate office	 	March 31, 2018	
Impax’s primary properties consist of various owned and leased facilities in California, Pennsylvania and New Jersey. As of December 31, 2017, we also owned a significant manufacturing facility in Taiwan, R.O.C. classified as held for sale. The expiration dates of the lease agreements for Impax’s leased facilities are up to December 31, 2027. Impax’s properties are generally used to support the operations of both the Impax Generics division and the Impax Specialty Pharma division. The table below shows the square feet owned or leased by function at each location.

Location	  	Owned	 	  	Leased	 	  	Total	 	  	Function	
Hayward, CA	  	 	35,000	 	  	 	—  	 	  	 	35,000	 	  	Research & development	
Hayward, CA	  	 	50,000	 	  	 	—  	 	  	 	50,000	 	  	Manufacturing	
Hayward, CA	  	 	19,000	 	  	 	—  	 	  	 	19,000	 	  	Administration & lab	
Hayward, CA	  	 	13,300	 	  	 	—  	 	  	 	13,300	 	  	Manufacturing support	
Hayward, CA	  	 	—  	 	  	 	76,180	 	  	 	76,180	 	  	Warehouse & lab	
Hayward, CA	  	 	—  	 	  	 	45,000	 	  	 	45,000	 	  	Corporate offices	
Hayward, CA	  	 	—  	 	  	 	88,677	 	  	 	88,677	 	  	Manufacturing & lab	
	  	 	 	 	  	 	 	 	  	 	 	 	  		
California Properties	  	 	117,300	 	  	 	209,857	 	  	 	327,157	 	  		
	  	 	 	 	  	 	 	 	  	 	 	 	  		
Fort Washington, PA	  	 	—  	 	  	 	47,379	 	  	 	47,379	 	  	Administration	
	  	 	 	 	  	 	 	 	  	 	 	 	  		
Middlesex, NJ	  	 	—  	 	  	 	37,500	 	  	 	37,500	 	  	Manufacturing*	
Middlesex, NJ	  	 	—  	 	  	 	18,593	 	  	 	18,593	 	  	Packaging*	
Middlesex, NJ	  	 	—  	 	  	 	816	 	  	 	816	 	  	Research & development *	
Middlesex, NJ	  	 	—  	 	  	 	32,516	 	  	 	32,516	 	  	Administration*	
Bridgewater, NJ	  	 	—  	 	  	 	32,806	 	  	 	32,806	 	  	Administration	
	  	 	 	 	  	 	 	 	  	 	 	 	  		
New Jersey Properties	  	 	—  	 	  	 	122,231	 	  	 	122,231	 	  		
	  	 	 	 	  	 	 	 	  	 	 	 	  		
Taiwan	  	 	—  	 	  	 	397,917	 	  	 	397,917	 	  	Manufacturing#%	
	  	 	 	 	  	 	 	 	  	 	 	 	  		
Totals	  	 	117,300	 	  	 	777,384	 	  	 	894,684	 	  		

#	This facility is on land that is leased from the state.	
*	Impax’s leases in Middlesex, NJ expire on March 31, 2018.	
%	Sold on February 6, 2018.	
 
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 MANAGEMENT
Executive Officers and Directors
The business and affairs of New Amneal are managed by or under the direction of the New Amneal Board. The Stockholders Agreement provides for the New Amneal director designation rights of Impax and Amneal.
Pursuant to the Stockholders Agreement, the New Amneal Board is as set forth below:
 
 	•	 	Amneal Directors. Seven Amneal Directors were designated by Amneal Holdings, including the Co-Chairmen. Following the Closing, Chirag Patel and Chintu Patel are the Co-Chairmen of the New Amneal Board.	
 
 	•	 	Non-Amneal Directors. Five Non-Amneal Directors were designated by Impax, including Paul M. Bisaro, the CEO of Impax, and four directors selected from the Impax Board as of the date of the BCA that meet the NYSE independence standards, including Robert L. Burr, the former chairman of the Impax Board, who serves as Lead Independent Director of the New Amneal Board and, Robert A. Stewart, who serves as the CEO of New Amneal.	
The table below lists (i) the persons nominated and elected to the New Amneal Board, along with the party to the Stockholders Agreement nominating each person, and (ii) the persons appointed as executive officers of New Amneal, along with each individual’s age and any other position that such individual holds with New Amneal.

Name	  	Position with New Amneal	 	  	Age	  	Nominated By	
Directors	  				  		  		
Paul M. Bisaro	  	 	Director	 	  	57	  	Impax	
Bob Burr	  	 	Lead Independent Director	 	  	67	  	Impax	
Chintu Patel	  	 	Co-Chairman	 	  	46	  	Amneal	
Chirag Patel	  	 	Co-Chairman	 	  	50	  	Amneal	
Robert A. Stewart	  	 	Director and Chief
Executive Officer	 
 	  	50	  	Impax	
Kevin Buchi	  	 	Director	 	  	62	  	Impax	
Peter Terreri	  	 	Director	 	  	60	  	Impax	
Janet Vergis	  	 	Director	 	  	53	  	Impax	
Gautam Patel	  	 	Director	 	  	45	  	Amneal	
Ted Nark	  	 	Director	 	  	59	  	Amneal	
Emily Peterson Alva	  	 	Director	 	  	43	  	Amneal	
Jean Selden Greene	  	 	Director	 	  	45	  	Amneal	
Dharmendra Rama	  	 	Director	 	  	49	  	Amneal	
Executive Officers	  				  		  		
Bryan M. Reasons	  	 	Chief Financial Officer	 	  	50	  	—  	
Andrew Boyer	  	 	Executive Vice President,
Commercial Operations	 
 	  	52	  	—  	
The following is a brief biography of each director nominee of the New Amneal Board and individual expected to serve as an executive officer of New Amneal that is known as of the date of this prospectus.
Paul M. Bisaro served as Impax’s President and Chief Executive Officer and Director from March 27, 2017 to the completion of the Combination, and now serves as a director on the board of New Amneal. Mr. Bisaro previously served as Executive Chairman of the Board of Directors of Allergan plc (NYSE: AGN) (“Allergan”), a global pharmaceutical company (formerly Actavis plc) since July 2014 and previously served as Chairman, President and Chief Executive Officer of Actavis until June 2014. Mr. Bisaro currently serves as a director on the board of Allergan. He was appointed President, Chief Executive Officer and a member of the board of Actavis in
 
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September 2007 and he was appointed Chairman of the board of Actavis in October 2013. Prior to joining Actavis (formerly Watson Pharmaceuticals), Mr. Bisaro was President, Chief Operating Officer and a member of the board of Barr Pharmaceuticals, Inc. (“Barr”), a global specialty pharmaceutical company, from 1999 to 2007. Between 1992 and 1999, Mr. Bisaro served as General Counsel of Barr, and from 1997 to 1999 served in various additional capacities including Senior Vice President, Strategic Business Development. Prior to joining Barr, he was associated with the law firm Winston & Strawn LLP and a predecessor firm, Bishop, Cook, Purcell and Reynolds LLP from 1989 to 1992. Mr. Bisaro served on the board of directors of Zimmer Biomet Holdings, Inc. (NYSE: ZBH) (“Zimmer Biomet”), a musculoskeletal healthcare company, from December 2013 to May 2017. Since May 2015, he has also served on the board of directors of Zoetis, Inc. (NYSE: ZTS), a producer of medicine and vaccinations for pets and livestock, and on the compensation and quality committees of such board. Since 2014, Mr. Bisaro has served on the Board of Visitors of The Catholic University of America’s Columbus School of Law. He also served as Chairman of the Board of the Generic Pharmaceutical Association (GPhA) in 2010 and 2011. Mr. Bisaro holds an undergraduate degree in General Studies from the University of Michigan and a Juris Doctor from The Catholic University of America in Washington, D.C. Mr. Bisaro’s extensive experience in the pharmaceutical industry and in executive and chairman positions with publicly traded companies provides the board with unique insights into our operations, challenges and opportunities.
Chintu Patel was Amneal’s Co-Founder and served as Co-Chairman and Co-Chief Executive Officer of Amneal from 2002 to the completion of the Combination, and now serves as Co-Chairman of New Amneal. Mr. Patel holds a bachelor’s degree in pharmacy from Rutgers College of Pharmacy. With his brother, Chirag Patel, Mr. Patel built the Amneal Alliance Companies, a group of independent companies engaged in the development of healthcare technologies and products. The Amneal Alliance Companies include Adello Biologics, LLC (“Adello”) (engaged in the development of biosimilar pharmaceutical products), AmDerma Pharmaceuticals, LLC (“AmDerma”) (engaged in the development of dermatological products), Asana Biosciences, LLC (“Asana”) (an early stage drug discovery and R&D company focusing on several therapeutic areas, including oncology, pain and inflammation), Kashiv (engaged in the development of pharmaceutical products) and Prolong Pharmaceuticals LLC (“Prolong”) (an early stage biotechnology company focused on new branded hematology and oncology products). Mr. Patel serves on the management boards of each of these companies other than Kashiv. Mr. Patel also serves on the boards of the Long Island Association and the Make-a-Wish Foundation ® , and is a recipient of the Ernst & Young National Entrepreneur of the Year Life Sciences Award. Mr. Patel’s long experience as an entrepreneur in the healthcare industry as a co-founder and leader of numerous successful pharmaceutical businesses, including Amneal, gives him deep understanding of the pharmaceutical industry and extensive expertise in the wide range of strategic, commercial, R&D and operational matters relevant to Amneal.
Chirag Patel was Amneal’s Co-Founder and served as Co-Chairman and Co-Chief Executive Officer of Amneal from 2005 to the completion of the Combination, and now serves as Co-Chairman of New Amneal. Mr. Patel received his bachelor’s degree in commerce from H.A. College of Commerce, India and his B.S. in business administration from New Jersey City University. He also holds an honorary doctorate degree from New Jersey City University. With his brother, Chintu Patel, Mr. Patel built the Amneal Alliance Companies, a group of independent companies engaged in the development of healthcare technologies and products. The Amneal Alliance Companies include Adello (engaged in the development of biosimilar pharmaceutical products), AmDerma (engaged in the development of dermatological products), Asana (an early stage drug discovery and R&D company focusing on several therapeutic areas, including oncology, pain and inflammation), Kashiv (engaged in the development of pharmaceutical products) and Prolong (an early stage biotechnology company focused on new branded hematology and oncology products). Mr. Patel serves on the management boards of each of these companies other than Kashiv. Mr. Patel also serves on the boards of the Association for Accessible Medicines ® (formerly Generic Pharmaceutical Association), Liberty Science Center ® , the Art of Living Foundation ® , New Jersey City University Foundation and the Family Reach ® Foundation, and is a recipient of the Ernst & Young National Entrepreneur of the Year Life Sciences Award. Mr. Patel’s long experience as an entrepreneur in the healthcare industry as a co-founder and leader of numerous successful pharmaceutical businesses, including Amneal, gives him deep understanding of the pharmaceutical industry and extensive expertise in the wide range of strategic, commercial, financial and operational matters relevant to Amneal.
 
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Robert A. Stewart served as Chief Executive Officer of Amneal from January 25, 2018 to the completion of the Combination, and now serves as Director and Chief Executive Officer of New Amneal. He most recently served as Executive Vice President and Chief Operating Officer of Allergan, a global pharmaceutical company beginning from May 2016 to December 2017 and previously at Allergan as President, Generics and Global Operations from March 2015 to May 2016, Chief Operating Officer from July 2014 to March 2015 and President, Global Operations, from August 2010 to July 2014. He previously served as Senior Vice President, Global Operations at Watson Pharmaceuticals from 2009 to August 2010 and held various positions with Abbott Laboratories, Inc. (NYSE: ABT), a multinational healthcare company, from 2001 until 2009 where he most recently served as Divisional Vice President, Global Supply Chain, Quality Assurance and prior to this position served as Divisional Vice President for U.S./Puerto Rico and Latin America Plant Operations. Preceding his time at Abbott Laboratories, Inc., he worked for Knoll Pharmaceutical Company from 1995 to 2001 and Hoffman La-Roche Inc. Mr. Stewart has been a North American Manufacturing board member since September 2016, and a member of the Fairleigh Dickinson University Board of Trustees since June 2017. He earned his Bachelor’s degree in Business Management and Finance from Fairleigh Dickinson University.
Bob Burr served as Chairman of the Impax board from 2008 until the Closing, having served as an independent director since 2001. Mr. Burr has been a self-employed investment manager since May 2008. Mr. Burr was employed by J.P. Morgan Chase & Co. and associated entities from 1995 to May 2008, at which time he resigned his position as Managing Partner of the Fleming US Discovery III Funds. From 1992 to 1995, Mr. Burr was head of Private Equity at the investment banking firm Kidder, Peabody & Co., Inc. Prior to that time, Mr. Burr served as the Managing General Partner of Morgan Stanley Ventures and General Partner of Morgan Stanley Venture Capital Fund I, L.P. and was a corporate lending officer with Citibank, N.A. Mr. Burr received an MBA from Columbia University and a BA from Stanford University. Mr. Burr’s financial acumen and his extensive knowledge of capital markets represent a valuable resource to the board in the assessment of our capital and liquidity needs. In addition, Mr. Burr’s venture capital and private equity investment experience gives him the leadership and consensus-building skills to guide the board on a variety of matters, including compensation, corporate governance and risk assessment.
Emily Peterson Alva is a financial, strategic and business advisor to senior executives, founders and corporate boards of directors, and has focused on private company advisory projects and family office investing since 2013. Prior to this time, Ms. Alva spent more than 15 years at Lazard as a senior Mergers & Acquisitions investment banker advising industry leading companies. Ms. Alva’s extensive advisory and transaction work covers multiple industries with a primary sector focus and expertise in Healthcare. While at Lazard, Ms. Alva held leadership roles, both with clients and internally. She advised some of Lazard’s most important clients over many years, and was one of the youngest bankers promoted to Managing Director at the firm. During her Lazard tenure, Ms. Alva was selected for the Council on Foreign Relations’ Corporate Leaders Program, which recognizes accomplished professionals on a senior management track and links business leaders with decision makers in government and academia. Prior to joining Lazard, Ms. Alva worked at a development stage company focused on engineering-based solutions to improve industrial waste processing systems. More recently, Ms. Alva has served as a Board Member and Treasurer for the Alumnae Board of Directors of Barnard College. Ms. Alva received a B.A. in Economics from Barnard College, Columbia University. Ms. Alva’s financial acumen together with her advisory and transaction experience reaching deep into many sectors of healthcare, provide the Amneal Board with insight into a variety of matters, including corporate development and strategy.
Kevin Buchi served as Impax’s Interim President and Chief Executive Officer from December 2016 until March 27, 2017 and as a member of the Impax board of directors from 2016 until the Closing. From August 2013 to December 2016, Mr. Buchi served as President and Chief Executive Officer and member of the board of directors of TetraLogic Pharmaceuticals Corporation (formerly NASDAQ: TLOG), a biopharmaceutical company (“ TetraLogic Pharmaceuticals ”), whose assets were subsequently acquired by Medivir AB in December 2016. Prior to TetraLogic Pharmaceuticals, Mr. Buchi served as Corporate Vice President, Global Branded Products of Teva Pharmaceutical Industries Ltd. (NYSE: TEVA), from October 2011 to May 2012. Prior to Teva, Mr. Buchi served as Chief Executive Officer of Cephalon, Inc. (formerly NASDAQ: CEPH),
 
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which was subsequently acquired by Teva, from December 2010 to October 2011, and held various positions at Cephalon including Chief Operating Officer from January 2010 to December 2010 and Chief Financial Officer from 1996 to 2009. Since April 2013, Mr. Buchi has served as a director and member of the remuneration and nominating committee, and audit committee of the board of Benitec Biopharma Ltd. (NASDAQ: BNTC), a biotechnology company headquartered in Australia. Mr. Buchi received his B.A. degree from Cornell University and a Masters of Management from the J.L. Kellogg Graduate School of Management at Northwestern University. Mr. Buchi’s extensive experience as a senior executive and board member in the pharmaceutical industry provides the board with unique insights into our business.
Jean Selden Greene is currently a Managing Director at Lazard and has served in a variety of roles at the firm since 1999. Throughout her tenure at Lazard, Ms. Greene has led financial and strategic advisory assignments for industrial clients across a wide range of sectors, with a focus on Capital Goods and Multi-Industry. From 1994 to 1997, Ms. Greene was an Analyst at Smith Barney, where she worked on equity and debt financings and M&A transactions for clients in the energy sector. Ms. Greene serves on the Board of Directors of Dress for Success, a global non-profit organization that promotes the economic independence of disadvantaged women. Ms. Greene received a B.A. from Wellesley College and an MBA from the University of Chicago. Ms. Greene brings to the Board significant financial expertise and experience in strategic planning and corporate development activities.
Ted Nark has served as Managing Director of KRG Capital Partners, a Denver-based private equity fund currently investing a $2 billion fund, since 2007. In that role, Mr. Nark has led the identification, negotiation and due diligence of new acquisitions and has worked with portfolio companies and maintained relationships with limited partners. While at KRG, Mr. Nark has led the acquisition and successful monetization of companies including Convergint Technologies, Diversified Food Services and Petrochoice. From 2006 to 2007, Mr. Nark was a Partner at Leonard Green & Partners and from 2002 to 2006, he served as Chief Executive Officer and Chairman of the Board of White Cap Construction Supply, a Leonard Green-owned distributor of construction hardware, tools and materials to professional contractors in the United States. Previously, Mr. Nark served as Chief Executive Officer of Corporate Express Australia and Group President at Corporate Express Inc. Mr. Nark currently serves as on the Board of Directors of Convergint Techologies, Western Windows, Trafficware, and The Maroon Group. Mr. Nark has previously served on the Boards of Corporate Express Australia, Fort Dearborn, White Cap Construction Supply, FTD, Leslies Pools, Gaiam, Real Goods Solar and Claim Jumper. Mr. Nark received a B.S. from Washington State University. Mr. Nark’s strong background in finance and corporate development combined with his service in executive leadership roles within complex corporate organizations contribute strategic and management insight to our Board.
Gautam Patel has served as Managing Director of Tarsadia Investments, a private investment firm based in Newport Beach, California, since 2012. In that role, Mr. Patel has led a team of investment professionals to identify, evaluate and execute principal control equity investments across sectors including life sciences, financial services and technology. Prior to joining Tarsadia, Mr. Patel served as Managing Director at Lazard from 2008 to 2012, where he led financial and strategic advisory efforts in sectors including transportation and logistics, private equity, and healthcare. Prior to that, Mr. Patel served in a variety of advisory roles at Lazard from 1999 to 2008, including multiple restructuring, bankruptcy and corporate reorganization assignments in 2001 and 2008. From 1994 to 1997, Mr. Patel was an Analyst at Donaldson, Lufkin & Jenrette, where he worked on mergers & acquisitions as well as high-yield and equity financings. Mr. Patel is currently a Board Member of several private companies such as Adello Biologics, Asana Biosciences, LERETA, Envisics and AIONX Antimicrobial Technologies. Mr. Patel also serves on the boards of Tarsadia Foundation and Casita Maria Center for Arts & Education, a New York based non-profit organization which aims to empower children through arts based education. Mr. Patel received a B.A. from Claremont McKenna College, a B.S. from Harvey Mudd College, an MSc from the London School of Economics and an MBA from the University of Chicago. Mr. Patel brings an extensive knowledge of Amneal’s business and operations combined with deep experience in finance, corporate development and healthcare investing to the Board.
Dharmendra (D.J.) Rama has served as President and CEO of Auro Hotels, a privately held owner, developer and manager of upscale hotels, since 2017. Prior to the formation of Auro Hotels in 2017, Mr. Rama served as
 
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President of JHM Hotels, a predecessor company ranked as the eleventh largest hotel owner and developer as of 2016. From 1995 to 2011, Mr. Rama served as JHM’s Director of Operations. Prior to joining JHM, Mr. Rama held positions with Holiday Inn Worldwide, Interstate Hotels and Marriott Corporation. Mr. Rama currently serves on the Board of the American Hotel and Lodging Association, and as co-chairman of the Owners Council of such board. Mr. Rama is a member of the Owners Advisory Councils of both Marriott International and Hyatt Hotels and Resorts. Mr. Rama currently serves on the Dean’s Advisory Board of the Cornell Hotel School, is President of the Cornell Hotel Society of South Carolina, and a member of the Board of Trustees of the Peace Center for the Performing Arts. Mr. Rama received a B.S. from Johnson & Wales University, a Master of Management in Hospitality from Cornell University, and is a 2016 graduate of the Owner/President Management Program at Harvard Business School. Mr. Rama brings significant entrepreneurial, managerial and transactional experience to the Board.
Peter R. Terreri served as a director on the Impax board from 2003 until the Closing and is President, Chief Executive Officer and director of CGM, Inc., a manufacturing company that he has owned and operated since 2000. He previously served as Senior Vice President and Chief Financial Officer of Teva Pharmaceuticals USA from 1985 through 2000 and as an auditor at PricewaterhouseCoopers LLP from 1981 to 1984. Mr. Terreri received his B.S. in Accounting from Drexel University and has been a certified public accountant since 1981. Mr. Terreri’s more than 20 years of experience in the pharmaceutical industry provides the board with comprehensive understanding of our operations and strategy. His prior experience as Chief Financial Officer of a major generic pharmaceutical company also brings to the board deep understanding of accounting and risk management issues.
Janet S. Vergis served as a director on the Impax board from 2015 until the Closing and has served as an Executive Advisor for private equity firms since January 2013, where she identifies and evaluates healthcare investment opportunities. From January 2011 to August 2012, Ms. Vergis was the Chief Executive Officer of OraPharma, Inc., a specialty pharmaceutical company dedicated to oral health. From 2004 to 2009, she served as President of Janssen Pharmaceuticals LP, McNeil Pediatrics, Inc. and Ortho-McNeil Neurologics, Inc., subsidiaries of Johnson and Johnson (NYSE:JNJ). Ms. Vergis contributed to a number of Johnson & Johnson companies during her 21 years, holding positions of increasing responsibility in research and development, new product development, sales, and marketing. Since May 2014, Ms. Vergis has served as a director on the board of Church & Dwight Co., Inc. (NYSE:CHD), a leading consumer and specialty products company, and is currently a member of the audit and governance committees. She has also served as a director and Chair of the Commercialization Committee for the Board of MedDay Pharmaceuticals, a privately held biotechnology company, since November 2016. Ms. Vergis previously served as a director of Lumara Health, a privately held pharmaceutical company (sold to AMAG Pharmaceuticals) from October 2013 to November 2014, and as a director of OraPharma from January 2011 to June 2012. Ms. Vergis received her M.S. degree in Physiology and her B.S. degree in Biology from The Pennsylvania State University. Ms. Vergis’ extensive experience in the pharmaceutical industry in executive and director positions brings to the board unique business expertise, particularly in the areas of new product development, sales, and marketing.
Bryan M. Reasons serves as the Chief Financial Officer of New Amneal. Mr. Reasons served as Impax’s Senior Vice President, Finance and Chief Financial Officer from December 2012 to the completion of the Combination and previously served as Impax’s Acting Chief Financial Officer from June 2012 to December 2012 and as Impax’s Vice President, Finance from January 2012 to June 2012. Since March 2017, Mr. Reasons has served on the audit committee of Recro Pharma, Inc. (NASDAQ: REPH), a specialty pharmaceutical company developing multiple non-opioid therapeutics or the treatment of acute post-operative pain. Prior to joining Impax in January 2012, Mr. Reasons served as Vice President, Finance, from January 2010 to November 2011 and as Vice President, Risk Management and General Auditor, from October 2005 to January 2010 at Cephalon, Inc. (“Cephalon”), a biopharmaceutical company. Following the acquisition of Cephalon by Teva Pharmaceutical Industries Ltd., a generic pharmaceuticals company, he served as Vice President, Finance of Teva from November 2011 to January 2012. Prior to joining Cephalon, Mr. Reasons held various finance management positions at DuPont from 2003 to 2005 and served as senior manager at PricewaterhouseCoopers LLP from 1992
 
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to 2003. Mr. Reasons has a Bachelor’s Degree in accounting from Pennsylvania State University and an MBA from Widener University and is a certified public accountant.
Andrew Boyer served as Amneal’s Executive Vice President, Commercial Operations from February 5, 2018 to the completion of the Combination, and now serves in the same capacity for New Amneal . Mr. Boyer received his bachelor’s degree in Business Administration and Management from State University of New York at Albany. Prior to joining Amneal, Mr. Boyer served as President & CEO of North America Generics, Teva Pharmaceuticals, Inc. Before that, Mr. Boyer was Senior Vice President of Sales and Marketing for the U.S. Generics Division at Allergan since September 5, 2006. Mr. Boyer joined Allergan in 1998 as Associate Director of Marketing in Generics. Before joining Allergan, Mr. Boyer served as National Accounts Manager for Lederle/American Cyanamid as well as Marketing Manager for Barr Laboratories. He serves as a Director of Association for Accessible Medicines.
Committees of the New Amneal Board of Directors
As of the Closing, New Amneal has established the Audit Committee, a nominating and corporate governance committee (the “Nominating and Corporate Governance Committee”), a compensation committee (the “Compensation Committee”), a conflicts committee (the “Conflicts Committee”) and an integration committee (the “Integration Committee”) of the Company’s board of directors, with the following compositions:

Audit Committee	  	Peter Terreri (Chair)	
	  	Kevin Buchi	
	  	Emily Peterson Alva	
		
Nominating and Corporate Governance Committee	  	Robert Burr (Chair)	
	  	Jean Selden Greene	
	  	Dharmendra Rama	
	  	Kevin Buchi	
		
Compensation Committee	  	Ted Nark (Chair)	
	  	Janet Vergis	
	  	Robert Burr	
	  	Gautam Patel	
		
Conflicts Committee	  	Janet Vergis (Chair)	
	  	Kevin Buchi	
	  	Robert Burr	
	  	Peter Terreri	
		
Integration Committee	  	Chintu Patel (Chair)	
	  	Chirag Patel	
	  	Paul Bisaro	
	  	Robert Stewart	
New Amneal Director Compensation
Compensation for directors of New Amneal is determined by the New Amneal Board. Compensation for service on the New Amneal Board will be provided only to the non-employee directors of New Amneal and will generally be consistent with the compensation provided to the current non-employee directors of New Amneal’s peer companies in the generic pharmaceuticals industry. The New Amneal Board will periodically assess the amount and terms of any compensation paid to directors of New Amneal.
 
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The following table sets forth information concerning the compensation of individuals who provided services to Amneal prior to the completion of the Combination and who are expected to serve as non-employee directors of New Amneal during the year ended December 31, 2017:

Name	  	All Other
Compensation
($)	 	 	Total ($)	 	
Chintu Patel (1)	  	 	1,120,236	(2)  	 	 	1,120,236	 	
Chintu Patel (1)	  	 	1,124,116	(3)  	 	 	1,124,116	 	

(1)	Messrs. Patel and Patel each serve as Co-Chairman of the New Amneal Board, but neither serves as an executive officer of New Amneal. All of the compensation disclosed in this table for each of Messrs. Patel and Patel was earned or paid in connection with his service as Co-CEO of Amneal. Neither Mr. Patel nor Mr. Patel received additional compensation for his service as Co-Chairman of the Amneal Board.	
(2)	Consists of (i) $1,025,000 in salary paid to Mr. Chintu Patel for his service as Co-CEO of Amneal and (ii) $95,236 relating to the aggregate incremental cost associated with Mr. Patel’s use of a car and chauffeur provided by Amneal.	
(3)	Consists of (i) $1,025,000 in salary paid to Mr. Chirag Patel for his services as Co-CEO of Amneal and (ii) $99,116 relating to the aggregate incremental cost associated with Mr. Patel’s use of cars and a chauffeur provided by Amneal.	
The following table sets forth information concerning the compensation of Mr. Burr, who provided services to Impax prior to the completion of the Combination and who now serves as a non-employee director of New Amneal, during the year ended December 31, 2017:

Name	  	Fees Earned or Paid in
Cash
($)	 	  	Stock Awards
($) (1)	 	 	Option Awards
($) (1)	 	 	Total
($)	 	
Robert L. Burr (1)	  	 	130,000	 	  	 	71,750	(2)  	 	 	80,793	(3)  	 	 	282,543	 	

(1)	Consists of the aggregate grant date fair value of 4,735 shares of restricted stock and 10,575 stock options granted on May 16, 2017 under the Impax Laboratories, inc. Third Amended and Restated Equity Plan (the “Impax Equity Plan”) and computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, referred to as “ASC Topic 718,” and without giving effect to the estimate of forfeitures related to service-based vesting conditions.	
(2)	At December 31, 2017, Mr. Burr held 111,950 options to purchase shares of Impax common stock under the Impax Equity Plan.	
(3)	At December 31, 2017, Mr. Burr held 5,408 shares of restricted stock under the Impax Equity Plan.	
 
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 EXECUTIVE COMPENSATION
Prior to the completion of the Combination, we operated as two independent companies that each maintained separate equity incentive plans and executive compensation arrangements. Certain information about the compensation of individuals who provided services to Amneal and Impax prior to the completion of the Combination may be found in the sections entitled “Management—New Amneal Director Compensation” for Mr. Chirag Patel and Mr. Chintu Patel and below under “—2017 Continuing Impax Executive Officer Compensation Discussion and Analysis” (for Messrs. Paul Bisaro and Bryan Reasons) and “—Post-ombination Employment Agreements” (for Messrs. Paul Bisaro, Bryan Reasons, Robert Stewart and Andrew Boyer).
After the Combination, New Amneal now maintains the Amneal Pharmaceuticals, Inc. 2018 Incentive Award Plan (the “2018 Plan”). New Amneal intends to grant equity-based awards and cash awards to eligible individuals (including selected employees and executive officers of New Amneal) under the 2018 Plan. The purposes of the 2018 Plan are (1) to promote the success and enhance the value of New Amneal by linking the individual interests of the members of the New Amneal Board and employees and consultants of New Amneal and its subsidiaries to those of New Amneal stockholders and by providing such individuals with an incentive for outstanding performance to generate superior returns to New Amneal stockholders and (2) to provide flexibility to New Amneal in its ability to motivate, attract, and retain the services of members of the New Amneal Board and employees and consultants of New Amneal and its subsidiaries upon whose judgment, talent, and special effort New Amneal’s success is largely dependent. For a more detailed description of the 2018 Plan, see the section entitled “Executive Compensation—Amneal Pharmaceuticals, Inc. 2018 Incentive Award Plan . ”
2017 Continuing Impax Executive Officer Compensation Discussion and Analysis 1
The following discussion provides an analysis of Impax’s compensation program for, and discusses the material factors involved in Impax’s decisions regarding the compensation of, the following individuals (the “Continuing Impax Executive Officers”):
 
 	•	 	Paul M. Bisaro, who has served as Impax’s President and Chief Executive Officer beginning March 27, 2017; and	
 
 	•	 	Bryan M. Reasons, Impax’s Senior Vice President, Finance and Chief Financial Officer.	
The following discussion cross-references those specific tabular and narrative disclosures that appear following this subsection where appropriate.
2017 Performance Summary
Impax’s overall compensation goal is to reward its executive officers in a manner that supports its pay-for-performance philosophy while maintaining an overall level of compensation that Impax believes is reasonable and competitive. Although Impax experienced a slight decline in its total revenues for fiscal year 2017 compared to the prior year, Impax succeeded in executing on several strategic and operational objectives, including announcing its proposed pending business combination with Amneal in October 2017 pursuant to the terms of the BCA. During fiscal year 2017, Impax also completed a number of previously announced cost improvement and consolidation initiatives, approximately one year ahead of Impax’s proposed target completion date. Impax successfully closed its Middlesex packaging site and entered into a sales agreement with a third party for the sale of its Taiwan subsidiary, including the manufacturing facility. The sale of Impax’s Taiwan subsidiary subsequently closed during the first quarter of 2018.
Impax made significant progress in its product development and approval process during 2017 in both divisions of Impax. In Impax’s Generics Division, Impax launched nine new products, received approval of

1  	This Compensation Discussion and Analysis, as well as the following compensation disclosure, are presented without regard to the terms of the Combination.	
 
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seven new Abbreviated New Drug Applications, or ANDASANDAs, and filed five ANDAs with the FDA during 2017. In Impax’s Specialty Pharma Division, Impax received a positive Phase IIB study for IPX203, its follow on pipeline product to Rytary ® .
During fiscal year 2017, Impax attained total revenues of $775.8 million, a decrease of 6% compared to the prior year, and a net loss of $469 million, compared to a net loss of $472 million over the prior year.
Executive Team Changes
On March 27, 2017, Mr. Bisaro was appointed Impax’s President and Chief Executive Officer and as a member of the Impax Board.
Compensation Philosophy and Objectives
At its core, Impax’s executive compensation program recognizes that Impax’s success is dependent upon its ability to attract, motivate and retain the highly talented individuals Impax needs to achieve its business results. The program reflects the following key principles:
 
 	•	 	To attract, motivate and retain the best talent Impax can obtain, Impax’s  compensation should be competitive. Impax strongly believes that its future success rests with its people, including its executive officers. To be successful, Impax must be able to attract, motivate and retain quality executive officers. As compensation is a key tool to achieve this objective, one facet of Impax’s compensation program is to provide its executive officers pay amounts and components that are competitive with those of other companies in its industry and with which Impax competes for talent.	
 
 	•	 	Impax’s compensation program should encourage and reward positive  performance. Impax’s executive compensation program is designed to promote and reward positive performance. In doing so, Impax considers both the overall performance of its business as well as the individual performance of each executive. Positive performance on the part of Impax’s company and management will permit Impax’s executives to be eligible to receive incentive compensation. On the other hand, when Impax’s business is facing financial or other challenges or an individual executive does not meet stated objectives, this incentive compensation may be appropriately reduced or eliminated.	
 
 	•	 	Impax seeks to align the interests of its executives and  stockholders. Impax believes that equity compensation is an excellent way to encourage its executive officers to act in the best interests of its stockholders. Impax provides its executives with equity awards as part of their overall compensation to encourage equity ownership and to align their interests with those of Impax’s stockholders.	
 
 	•	 	Compensation should encourage teamwork and executive cohesion. While individual performance is carefully reviewed and considered, Impax has also maintained a philosophy of generally similar compensation for officers who are at similar executive levels. Impax believes that following such a plan of pay equity fosters teamwork and cohesion and discourages internal comparison of compensation packages among executives.	
 
 	•	 	Impax’s compensation program should balance its short- and long-term  financial and operational goals. Impax generally strives to achieve a balance between achievement of both short- and long-term goals through the use of both salary and annual cash incentives and equity-based incentives. Impax’s management incentive program primarily rewards short-term performance by paying out base salary and annual cash incentive awards based on performance over a period of one year. Equity-based awards are generally designed to reward long-term financial performance.	
Impax believes that the mix and design of the elements of its executive compensation does not encourage management to assume excessive risks and is not reasonably likely to have a material adverse effect on Impax.
 
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Impax’s Compensation Decision-Making Process
Role of Chief Executive Officer and Compensation Committee
In general, as to most items of compensation, Impax’s Chief Executive Officer annually evaluates the performance of each Impax executive, other than himself, and recommends to the Impax compensation committee each component of compensation for all of the Impax executives other than himself. Compensation that is generally not covered by Impax’s Chief Executive Officer’s evaluation includes benefits and other compensation mandated or determined by reference to an existing employment or similar agreement or benefits and other programs generally available to all of Impax’s employees.
As to the compensation of Impax’s Chief Executive Officer, the Impax compensation committee evaluates its Chief Executive Officer’s performance and discusses and determines the amount of and any changes to his compensation. The committee also evaluates Impax’s Chief Executive Officer’s proposals as to the compensation of other Impax executives, modified them as necessary and approves such compensation.
Generally, as part of its process of setting and approving the executive annual compensation, the Impax compensation committee reviews gains realized from prior compensation awarded or compensation to be received upon a future termination of employment or a change-in-control. Severance and change-in-control compensation is intended to maximize stockholder value and assure continuity of leadership by allowing executives to perform their duties without regard to any concerns that they may have regarding their continued employment or an acquisition of Impax.
Role of Compensation Consultants
In 2017, as in recent years past, Impax retained the consulting services of Radford, a division of the Aon Hewitt Company (which is a subsidiary of Aon Corporation), referred to as “Radford”, to assist in the evaluation of Impax’ compensation program for its executives. Radford was engaged by, and reports directly to, the Impax compensation committee, and the Impax compensation committee has the general authority to retain and dismiss compensation consultants.
Impax management did not specifically recommend Radford. Radford regularly meets with the Impax compensation committee and provides advice regarding the design and implementation of Impax’s executive compensation program as well as Impax’s director compensation program. In particular, upon the Impax compensation committee’s request, Radford:
 
 	•	 	advises the Impax compensation committee as to best practices and regulatory or legislative changes;	
 
 	•	 	provides market data and performs benchmarking;	
 
 	•	 	reviews and makes recommendations regarding executive and director compensation (including amounts and forms of compensation); and	
 
 	•	 	assists in the preparation of Impax’s compensation-related disclosure.	
In providing services to the Impax compensation committee, with the Impax compensation committee’s knowledge, Radford may contact Impax’s management from to time to time to obtain data and other information about Impax and to work together in the development of proposals and alternatives for the Impax compensation committee to review and consider. In fiscal 2017, Impax paid approximately $307,631 in fees to Radford for its services to the Impax compensation committee and to Impax’s management team as it relates to executive compensation.
In addition, in fiscal 2017, (i) Aon Hewitt Health & Benefits, an affiliate of Radford, provided services as an insurance broker for Impax’s medical insurance and employee benefits insurance, (ii) Aon Hewitt Executive Benefits, an affiliate of Radford, provided services as a third party administrator of Impax’s non-qualified
 
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deferred compensation plan and additional company-paid executive health and disability benefit plans, (iii) Aon Risk Services, an affiliate of Radford, provided services as an insurance broker for Impax’s products liability insurance, directors and officers liability insurance and other commercial business insurance; and (iv) Aon Investment Consulting, an affiliate of Radford, provided consulting services related to Impax’s 401(k) Plan.  In fiscal 2017, the Aon entities received an aggregate of approximately $498,480 in connection with their services described above.
The Impax compensation committee regularly evaluates the nature and scope of the services provided by Radford. The Impax compensation committee approved the fiscal 2017 executive and director compensation consulting services described above. Although the compensation committee was aware of the other services performed by Aon Hewitt Health & Benefits, Aon Hewitt Executive Benefits and Aon Risk Services, and considered any potential conflict with Radford’s independence, the Impax compensation committee did not review such other services as those services were reviewed and approved by Impax management in the ordinary course of business.
In order to ensure that Radford is independent, Radford is only engaged by, takes direction from, and reports to, the Impax compensation committee and, accordingly, only the Impax compensation committee has the right to terminate or replace Radford at any time. Further, Radford maintains certain internal controls within Aon Corporation, which include, among other things:
 
 	•	 	All Radford and Aon staff are required to review and complete courses covering Impax’s Code of Conduct, which forbids Radford and Aon staff from trading in a client’s stock as well as obligations regarding the treatment of confidential client information;	
 
 	•	 	Radford maintains a separate account management structure and database of contacts to protect the confidentiality of client lists and contacts;	
 
 	•	 	Radford is not reliant on any one client for meeting performance expectations during the year, thereby minimizing any account concentration risk for an account manager, which could impair objectivity;	
 
 	•	 	Radford’s survey data are maintained on a separate IT platform to protect and secure the confidential nature of client information and the relationships where Radford provide services; and	
 
 	•	 	Radford’s staff is not directly compensated for any cross-selling of Aon product or services.	
The Impax compensation committee has considered the independence of Radford and other advisors in light of the NASDAQ and SEC rules and regulations and has determined that Radford and such other advisors have no conflict of interest.
Review of Executive Compensation
In 2017, the Impax compensation committee, with the assistance of Radford, conducted a comprehensive review of Impax’s executive compensation to ensure that Impax is paying its executive officers competitive levels of compensation that best reflect their individual responsibilities and contributions to its operations and provide incentives to achieve its business objectives. Impax’s compensation committee, with the assistance of Radford, has adopted a compensation philosophy that examines executive compensation at the 50 th percentile of the target market, represented by proxy data and the Radford Global Life Sciences Survey data, for salary, cash incentive awards and equity awards, which was largely consistent with Impax’s approved compensation philosophy in 2016.
Evaluating Executive Compensation
In 2016, with the assistance of Radford, the Impax compensation committee established the following peer group of companies for the purpose of determining 2017 compensation for its executives. Comparative
 
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compensation data from the following peer group was one of the principal reference points considered by the Impax compensation committee in making decisions around target bonus payouts, merit increases, and executive equity grants in 2017:

•  Acorda Therapeutics, Inc.;
 	    	•  Endo International plc;
 	    	•  Medivation, Inc.;
 	
•  Akorn, Inc.;
 	    	•  Horizon Pharma Limited;
 	    	•  Myriad Genetics, Inc.;
 	
•  Alkermes plc;
 	    	•  Incyte Corporation;
 	    	•  Nektar Therapeutics;
 	
•  BioMarin Pharmaceuticals, Inc.;
 	    	•  Ionis Pharmaceuticals;
 	    	•  Seattle Genetics, Inc.;
 	
•  Cepheid;
 	    	•  Jazz Pharmaceuticals plc;
 	    	•  The Medicines Company; and
 	
•  Emergent Biosolutions Inc.;	    	•  Mallinckrodt plc;	    	•  United Therapeutics Corporation.	
In selecting a peer group, the Impax compensation committee identified U.S. based publicly traded companies in the biopharmaceutical industry that, in its view, (i) had a comparable financial performance as measured by trailing twelve months in revenue (generally targeting a range of $330 million to $3.0 billion at the time the peer group was approved by the Impax compensation committee), (ii) compared to Impax based on size, as measured by market capitalization (generally targeting a range of $750 million to $6.7 billion) and number of employees (a range of 430 to 3,900 employees, which is one-third to three times the number of employees at Impax); (iii) had similar stage of development of commercial products and (iv) giving preference to East Coast and West Coast headquartered companies, given Impax’s operations in Hayward, California and New Jersey and Pennsylvania.
The Impax compensation committee reviews the composition of the peer group annually to ensure that companies comprising the peer group are relevant for comparative purposes. In 2016, in approving the peer group to be used in making compensation decisions for 2017, the Impax compensation committee approved the addition of Horizon Pharma Ltd. to the peer group to be used in making compensation decisions for 2017. As compared to Impax’s peer group, as of August 2016, Impax was at the 66th percentile based on trailing twelve months revenue, the 15th percentile based on market capitalization, and the 59th percentile based on number of employees.
Radford provided Impax with information regarding compensation practices, including both cash and equity compensation, of companies comprising Impax’s peer group and published survey data using the 2016 Radford Global Life Sciences Survey. Impax believes that such information constituted appropriate guidelines for Impax’s compensation committee to compare proposed pay levels for Impax’s executives with those of other companies in the life sciences industry. The purpose of using this data was to assist the decision makers in assessing whether the proposed executive compensation was competitive. The decision makers considered these data only as a guidepost to their evaluation of proposed compensation amounts, and there was no mandate that any actual compensation paid must fall within any set range. Impax’s compensation committee believes that using the Radford data in this manner is useful in establishing an appropriate and competitive compensation structure. Each year, Impax’s compensation committee will review this process and in future years may determine to measure executive compensation by reference to data of companies in a different percentile range if Impax’s performance criteria or results, as viewed by reference to Impax’s yearly budget and incentive plan targets, change significantly, or they may choose to implement a different process altogether.
The Role of Stockholder Say-on-Pay Votes
In May 2017, Impax provided stockholders an advisory vote to approve the compensation of Impax’s named executive officers (the “say-on-pay” proposal). At Impax’s 2017 annual meeting, Impax’s stockholders approved the compensation of Impax’s named executive officers, with over 95% of the votes cast in favor of the “say-on-pay” proposal. In evaluating Impax’s executive compensation program, the Impax compensation
 
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committee considered the results of the “say-on-pay” proposal. In light of the approval by a substantial majority of stockholders of Impax’s 2017 “say-on-pay” proposal as well as consideration of numerous other factors, the Impax compensation committee did not implement significant changes to Impax’s executive compensation program in 2017. The Impax compensation committee will continue to monitor and assess Impax’s executive compensation program and consider the outcome of Impax’s say-on-pay votes when making future compensation decisions for Impax’s named executive officers.
Components of Impax Executive Compensation Program
Overview of Elements of Compensation
Total compensation for the Continuing Impax Executive Officers is comprised of the following elements:
 
 	•	 	base salary;	
 
 	•	 	cash incentive awards under Impax’s Short-Term Incentive Plan;	
 
 	•	 	options and other equity-based awards under Impax’s Long-Term Incentive Plan;	
 
 	•	 	non-qualified deferred compensation plan contributions;	
 
 	•	 	401(k) retirement plan contributions;	
 
 	•	 	post-employment and change-in-control benefits, including severance protection; and	
 
 	•	 	other benefits and perquisites.	
Base Salary
Base salary is paid to the Continuing Impax Executive Officers to provide them with a degree of financial certainty and a source of fixed compensation to meet their day-to-day living and other needs. Impax believes that its base salaries should be set competitively with other companies in its peer group and in the life sciences industry group in general so that they may serve to attract and retain talented executives.
Impax generally sets an initial base salary range for a particular executive level (for example, all officers with the title of Senior Vice President or President of a division) and then apply that range to all executives at that level. In establishing these base salary ranges, Impax considers:
 
 	•	 	the experience, education and skills required and value of the position to Impax and its operations;	
 
 	•	 	the particular needs of Impax for an executive at the level being considered;	
 
 	•	 	Impax’s desire to promote a cohesive management team among executives of that level by establishing internal pay equity; and	
 
 	•	 	salaries for executives in similar positions in other companies in Impax’s peer group.	
Once the base salary range is established for a particular executive level, Impax then determines the amount of salary that a specific executive officer will receive. For new hires or promotions to a particular executive level, Impax considers:
 
 	•	 	the individual experience, education and skills of the particular executive;	
 
 	•	 	with respect to new hires, the compensation such executive earned in his/her prior place of employment;	
 
 	•	 	for promotion candidates, the executive’s prior performance and length of service with Impax and the salaries of any other executives at that level; and	
 
 	•	 	other special circumstances applicable to the particular executive.	
 
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Impax believes that generally the 2017 base salary levels Impax set for the Continuing Impax Executive Officers represented competitive compensation for an executive who:
 
 	•	 	is fully experienced and educated as required by the position;	
 
 	•	 	is a strong performer and strong leader who makes solid contributions; and	
 
 	•	 	possesses a full skill set for his position and applies those skills successfully.	
Impax’s compensation committee determines salary adjustments for Mr. Bisaro. Base salary adjustments for Impax’s other executives are evaluated and proposed by Mr. Bisaro, whose proposals are reviewed, modified as necessary and approved by Impax’s compensation committee.
In an effort to maintain pay equity, Mr. Bisaro generally recommended, and Impax’s compensation committee approved, 2017 base salary increases for other Impax executives consistently among executives serving in similar capacities and with similar levels of responsibility and Impax’s compensation committee maintained that consistency when determining Mr. Bisaro’s base salary increase. In February 2017, Mr. Reasons’ base salary was set at $515,542, representing a 3% increase to his 2016 base salary. Mr. Bisaro joined Impax effective March 27, 2017 and his base salary was set at $850,000.
The amount of a Continuing Impax Executive Officer’s base salary may also serve as a reference point for determining the amount of his or her other compensation elements. For example, in 2017, the range of the potential annual cash incentive awards for each Continuing Impax Executive Officer was derived from a percentage of the Continuing Impax Executive Officer’s base salary.
Short-Term Incentive Plan – Cash Incentive Awards
Impax provides the Continuing Impax Executive Officers with cash incentive awards based on the achievement of annual corporate and individual goals under its Short-Term Incentive Plan. Impax generally believes that a meaningful amount of executive compensation should be variable and contingent on individual and corporate performance. Establishing executive compensation that is rewarded upon the achievement of these performance-based criteria, discussed in more detail below, supports Impax’s goal of providing incentives to its executives who dedicate their full efforts toward achieving its performance objectives, which in turn make its business successful and contributes to increases in stockholder value in the short-term.
Annual cash incentive awards were generally calculated as a percentage of base salary based upon corporate and individual performance goals that must be achieved to earn the award. For 2017, the corporate goals constituted corporate financial performance metrics, as described below. The establishment of individual and corporate goals in 2017 was tied to and consistent with Impax’s compensation philosophy, as described above. In an effort to maintain pay parity, executives at the same job level and with similar degrees of responsibility will generally be eligible to receive annual cash incentive awards calculated at the same percentage of base salary.
Under Impax’s Short-Term Incentive Plan in 2017, the achievement of the corporate goals based on operating cash flow and Adjusted EBITDA (in each case as detailed below) determined the available amount of funds available for cash incentive awards to be used across the organization, including awards granted to Impax’s executives. The corporate goals are defined as a range of 80% to 120% of the target goal. No bonuses are awarded if the corporate performance falls short of the minimum performance range, or if otherwise determined at the discretion of Impax’s compensation committee.
For 2017, Impax’s corporate goals were comprised of the following: (i) an operating cash flow target of $100 million (weighted 25%) and (ii) an internal Adjusted EBITDA target of $200 million (weighted 75%). Operating cash flow is a GAAP measure and refers to the amount of cash generated from Impax’s revenues, excluding cash flow from investing and financing activities. Adjusted EBITDA refers to Impax’s earnings before
 
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interest, taxes, depreciation, amortization and share-based compensation expense, adjusted for exceptional and non-recurring expenses. Non-GAAP financial measures should be viewed in addition to, and not as an alternative for, financial results prepared in accordance with GAAP.
Impax’s 2017 corporate goals were recommended by Impax’s senior management and set by the Impax compensation committee based on their assessment of current and anticipated market and other conditions affecting Impax’s business and the goals. In the view of the Impax compensation committee, payout on these performance goals in 2017 required substantial achievement by each executive. For Impax’s executives other than its President and Chief Executive Officer, achievement of Impax’s corporate goals constituted 80% of their target cash incentive compensation and individual goals comprised 20% of their target cash incentive compensation for 2017 performance. For Impax’s President and Chief Executive Officer, achievement of Impax’s corporate goals constituted 100% of his target cash incentive compensation.
For 2017, Impax achieved operating cash flow of $84.2 million, representing 84% attainment of Impax’s internal operating cash flow target (weighted 25%) and $165.6 million in Adjusted EBITDA, representing 83% attainment of Impax’s internal EBITDA-based target (weighted 75%), representing a total weighted corporate financial performance achievement of 83.2%.
During 2017, Impax’s Chief Executive Officer worked with the other executives to develop individual performance goals based on the corporate goals; all performance goals were disclosed to and discussed between Impax’s Chief Executive Officer and each of the executives during the year. Individual goals were customized for the applicable executive and reflected the responsibilities and duties that Impax believes the executive should fulfill in connection with his or her particular position to further each of the corporate goals.
Each individual goal required above average achievement from each such executive. Each set of performance goals counts for a portion of the total potential bonus that may be received. Payouts of the individual portion of an executive’s cash incentive award are determined in part by the Impax compensation committee’s or Impax’s Chief Executive Officer’s determination (in case of executive officers other than Impax’s Chief Executive Officer) as to whether the applicable individual performance goals were achieved in whole or in part based on Impax’s Chief Executive Officer’s recommendation (other than with respect to himself).
The material individual performance goals used to determine cash incentive compensation for 2017 performance for the Continuing Impax Executive Officers (other than Impax’s Chief Executive Officer) who participated in the Short-Term Incentive Plan are set forth below. Other than the individual goals described below, no other individual goal was material to the potential cash incentive award that could have been paid to such executive for 2017 performance.

Executive Officer	  	General Description of Performance Goals	
		
Bryan M. Reasons	  	•  Consolidate and restructure back office commercial operations for both divisions;	
	  	•  Successfully implement financial planning and analysis consolidation system;	
	  	•  Reduce costs by specified amount and successfully sell or close Taiwan facility; and	
	  	•  Reduce year over year adjusted tax rate by specified percentage through implementation of tax planning strategies.	
The Impax compensation committee evaluates and establishes targets consisting of percentages of base salaries for Impax executives’ cash incentive compensation as part of the yearly compensation process or in connection with new hires. The Impax compensation committee generally sets such ranges of percentages of base salaries based on the same factors that it reviews to set base salary ranges for its executives.
With the exception of Mr. Bisaro, Impax’s President and Chief Executive Officer beginning from March 27, 2017, each of Impax’s current executive’s 2017 annual cash incentive award was targeted at 60% of such
 
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executive’s 2017 base salary, with the maximum amount of such annual cash incentive award capped at 90% of such officer’s 2017 base salary. Mr. Bisaro’s annual cash incentive award was targeted at 100% of his 2017 base salary, with the maximum amount of such annual cash incentive award capped at 150% of his 2017 base salary.
The range of percentage targets for annual cash incentive awards and actual bonuses paid in 2018 for 2017 performance (presented both as a cash payment and as a percentage of 2017 base salary established in February 2017) for each Continuing Impax Executive Officer, are presented in the following table:

Name	  	Annual Cash
Incentive
Award Target
(%)	 	  	Maximum
Target for
Annual Cash
Incentive
Award (%)	 	  	Actual
Achievement
of Individual
Goals (%)	 	  	Actual
Award ($)	 	  	Actual
Award as
Percentage
of Salary
(%)	 	  	Actual
Award as
Percentage
of Target
Incentive
Award (%)	 	
Paul M. Bisaro(1)	  	 	100	 	  	 	150	 	  	 	—  	 	  	 	624,358	 	  	 	96	 	  	 	96	 	
Bryan M. Reasons	  	 	60	 	  	 	90	 	  	 	125	 	  	 	283,119	 	  	 	55	 	  	 	92	 	
 
(1)	Mr. Bisaro was appointed as Impax’s President and Chief Executive Officer effective March 27, 2017. The cash incentive award he received for 2017 performance was prorated based on his employment period during 2017. The actual award as a percentage of salary reflected in the above table reflects the percentage based off Mr. Bisaro’s prorated target. Achievement of Impax’s corporate goals constituted 100% of Mr. Bisaro’s target cash incentive compensation, however, Impax’s compensation committee awarded him a cash incentive award greater than the target amount based on Impax’s corporate performance due to his significant contributions in enabling Impax to achieve Impax’s cost improvement and consolidation initiatives significantly ahead of schedule and Impax’s entry into the BCA.	
Once set, the Impax compensation committee has the discretion to pay at, above or below the percentage targets set forth in the column “Annual Cash Incentive Award Target” in the table above depending on its overall financial and operational performance and the executive officers’ individual performance. The percentage targets in the column “Maximum Target for Annual Cash Incentive Award” represent maximum percentages of executives’ respective 2017 base salaries that Impax can award for superior performance. The actual cash incentive awards granted by the Impax compensation committee for 2017 performance of Impax’s executives were below the target annual award percentages for Impax’s executives described above.
Long-Term Incentive Plan – Equity Awards
Impax maintains its Fourth Amended and Restated 2002 Equity Incentive Plan (“2002 Plan”) in accordance with its Long-Term Incentive Plan for the purpose of granting stock options and other equity-based awards, such as restricted stock awards, to its employees, including its executives. Option awards produce value to its executives only if the price of its stock appreciates, and then only to the extent of the excess of its stock price over the exercise price of the option. Impax’s stock options are granted with an exercise price equal to the fair market value on the date of grant as required to avoid negative tax consequences and to avoid providing any immediate benefit to executives upon grant.
Option and restricted stock awards link the interests of its executives to its stockholders. Because they generally vest incrementally over time, equity awards create an incentive for executives to continue their employment with Impax for extended periods after the initial grant.
Impax established procedures for granting equity awards to all of its eligible employees, including the Continuing Impax Executive Officers. Each year Impax establishes a stock option or restricted stock award amount, referred to as the “equity compensation award,” for each level of responsibility within its organization. In arriving at the option or restricted stock component of the equity compensation award for the Continuing Impax Executive Officers, Impax uses a number of factors, including the grant date fair value of the award and the percentage of total shares outstanding that each award would represent.
 
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The Impax Board or compensation committee, however, retains discretion, in appropriate circumstances, to adjust the number of shares or value of equity compensation awards for both the new hire and/or promotion and the annual grants to its executive officers. The Impax Board or compensation committee might, for example, increase the number of shares underlying options above the specified amount if needed to recruit an executive who would, upon leaving his or her current position with another employer, be required to forfeit a substantial unvested option or restricted stock award held at a prior employer. Impax has not, and in the future does not intend to, time the award of any stock options to coincide with the release of favorable or unfavorable information about Impax.
Impax’s equity awards to its executives were issued as long-term compensation under its Long-Term Incentive Plan that generally vest over a period of four years, subject to continued service. This is consistent with Impax’s philosophy of linking the financial interests of Impax’s executives to those of Impax’s stockholders. The long-term compensation balances the short-term compensation paid in the form of base salary and annual incentive awards.
For all of Impax’s equity awards, Impax establishes the amount to be awarded to each Continuing Impax Executive Officer based upon the level of each position, with the award size determined solely on the targeted value of the long term incentive award. As part of its goal of maintaining pay parity wherever possible, Impax tends to grant the same or similar amounts of equity awards to executives with similar titles and levels of responsibility.
Impax’s compensation committee typically approves annual grants of options and restricted stock awards to executives, comprised of approximately an equal percentage of restricted stock awards and options, using a Black Scholes option pricing model and with reference to the grant date fair value of awards made to executives in similar positions at its peer group of companies at approximately the 50th percentile.
Given the closing of the Combination, the Impax compensation committee determined in March 2018 that the annual equity awards granted to its executives for 2017 performance would be suspended until after the closing of the Combination and none of the Continuing Impax Executive Officers received equity awards for 2017 performance.
401(k) Plan and Non-Qualified Deferred Compensation Plan Contributions
Retirement plans, in general, are designed to provide executives with financial security after their employment has terminated and, through the incremental vesting of Impax’s matching contributions to such plans over time, provide a retentive element to the overall pay package. Impax’s executives are eligible to participate in the Impax 401(k) Profit Sharing Plan, which allows them to contribute a portion of their base salary and bonus to support their financial needs upon retirement. Under Impax’s 401(k) plan, Impax may contribute to each participant’s account an amount equal to 100% of the amount contributed by executive, with Impax’s contribution not to exceed 5% of the participant’s annual total compensation. Impax’s matching contributions to the 401(k) plan vest depending on the number of years the executive has worked at Impax, with all matching contributions vesting after the third year of service. Amounts contributed to the 401(k) plan are invested in one or more investment fund options.
Impax’s executives also are eligible to participate in the Impax Laboratories, Inc. Amended and Restated Executive Non-Qualified Deferred Compensation Plan, amended effective January 1, 2009. See “— Non-Qualified Deferred Compensation During Year Ended December 31, 2017” and “— Narrative Disclosure to Non-Qualified Deferred Compensation Table.” Each participant can defer up to 75% of the participant’s base salary and up to 100% of the amount of the participant’s bonus or cash incentive awards. Impax makes a matching contribution for each participant equal to 50% of the participant’s contribution up to 10% of base salary and bonus and cash incentive awards per year. A participant’s account is notionally invested in one or more investment funds and the value of the account is determined with respect to such investment allocations.
 
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These benefits are offered to provide financial security for Impax’s executives, and are consistent with Impax’s goal of attracting and retaining Impax’s executives. Impax also believe these contributions represent standard benefits that executive-level employees of public companies commonly receive. For these reasons, Impax does not take these matching contributions into consideration when setting other aspects of compensation for Impax’s executive officers.
Other Benefits and Perquisites
All of Impax’s full-time employees, including Impax’s executives, are eligible to participate in Impax’s health and welfare plans. These benefits are provided to Impax’s executives on the same general terms as they are provided to all of Impax’s full-time employees, with the exception of certain additional supplemental long-term disability insurance, which covers participating executives, including Impax’s executives, in addition to any related gross-up of taxes to make the executives whole. In addition, Impax has agreed under certain circumstances to pay directly or reimburse Impax’s executives for certain travel and/or relocation expenses incurred, in addition to pay any related tax gross-up, in connection with commuting and/or a relocation made at the request of Impax. Impax believes that providing these benefits is a relatively inexpensive way to enhance the competitiveness of the executives’ compensation packages.
Post-Employment and Change-in-Control Benefits
Severance payments provided by Impax include a cash payment that is generally based upon the salary and annual incentive payment history of executive at issue. Severance benefits may also include the accelerated vesting of Impax’s matching contributions under the non-qualified deferred compensation plan, the accelerated vesting of stock options and restricted stock awards, and the extension of the exercisability of an award.
Generally speaking, Impax provides severance to its executives to give them financial security in the event they suffer an involuntary termination other than for cause or resign for good reason. Impax believes that the risk or possibility of an involuntary termination creates uncertainty for executives regarding their continued employment with Impax. These scenarios may include, among other things, a termination of employment or a change in an executive’s job location, position or duties, whether on an individual basis or due to an overall reduction in or change to Impax’s workforce, or a change in other members of senior management resulting from a change in control event. As a result, Impax’s severance benefits are linked to Impax’s compensation philosophy of encouraging the long-term retention of its executives.
The employment agreements with Impax’s executives also provide for severance benefits pursuant to a “double trigger” in the event of a change of control of Impax; that is, the executive is entitled to the severance benefits if Impax terminates the executive involuntarily or the executive resigns for good reason following a change of control of Impax. Impax believes a “double trigger” maximizes stockholder value by preventing an unintended windfall to executives in the event of a friendly change of control, while still providing Impax’s executives with appropriate incentives to cooperate in negotiating any change of control and a certain measure of job security and protection against termination without cause or loss of employment through no fault of their own. See “— Potential Payments upon Termination or Change in Control — Employment Agreements with Continuing Impax Executive Officers ” for a summary of the termination provisions in the employment agreements with the Continuing Impax Executive Officers.
Tax and Accounting Treatment of Compensation
Section 162(m)
Section 162(m) of the Internal Revenue Code of 1986, as amended, referred to as the “Code”, generally limits Impax’s federal income tax deduction for compensation in excess of $1 million paid to certain “covered employees” of a publicly held corporation. For taxable years ending December 31, 2017 and earlier, “covered
 
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employees” generally referred to Impax’s chief executive officer and its next three most highly compensated executive officers (other than the chief financial officer) in the year that the compensation is paid. This limitation does not apply to compensation that is considered “qualified performance-based compensation” under the rules of Section 162(m) of the Code. Amounts Impax paid as base salary and cash incentive compensation in respect of 2017 do not qualify for the “performance-based compensation” exception.
The exemption from Section 162(m) of the Code’s deduction limitation for “qualified performance-based compensation” has been repealed by recent legislation, effective for taxable years beginning after December 31, 2017, such that compensation paid to Impax’s covered executive officers in excess of $1 million will not be deductible unless it qualifies for transition relief applicable to certain arrangements in place as of November 2, 2017 (the scope of which is uncertain under the legislation). In addition, beginning with taxable years beginning after December 31, 2017, “covered employees” generally was expanded to include Impax’s chief financial officer; also, each individual who is a covered employee for any taxable year beginning after December 31, 2016 will remain a covered employee for all future years. The Impax compensation committee continues to evaluate the changes to Section 162(m) of the Code and their significance to Impax’s compensation programs, but its primary focus in its compensation decisions will remain on most productively furthering Impax’s business objectives and not on whether compensation is deductible.
Section 280G
Under Sections 280G and 4999 of the Code, Impax is disallowed a tax deduction with respect to “excess parachute payments” to certain executives in the event of a change of control and a 20% excise tax is imposed upon the individuals who receive “excess parachute payments” upon a change in control. An excess parachute payment is deemed to be received to the extent that such a change-in-control payment exceeds an amount approximating three times the employee’s average annual compensation, determined using the employee’s average compensation over the five years preceding the year the change in control occurs. In approving the compensation arrangements for Impax’s executives, Impax’s compensation committee considers all elements of the cost to Impax of providing such compensation, including the potential impact of Section 280G of the Code. However, Impax’s compensation committee may, in its judgment, authorize compensation arrangements that could give rise to loss of deductibility under Section 280G of the Code and the imposition of excise taxes under Section 4999 of the Code when it believes that such arrangements are appropriate to attract and retain executive talent.
Section 409A
Section 409A of the Code may impose additional taxes on Impax’s service providers (including Impax’s directors, officers and employees) with respect to various non-qualified deferred compensation arrangements Impax maintains, including:
 
 	•	 	employment and severance agreements between Impax and its officers;	
 
 	•	 	Impax’s non-qualified deferred compensation plan; and	
 
 	•	 	other compensation arrangements Impax enters into with its directors, officers and employees.	
Section 409A of the Code generally does not apply to incentive stock options and non-qualified stock options that are granted with an exercise price not less than fair market value if there is no deferral of income recognition beyond exercise. Section 409A of the Code also generally does not apply to Impax’s restricted stock awards. In the event that a deferred compensation arrangement fails to comply with Section 409A of the Code in form or operation, a service provider may become subject to:
 
 	•	 	the imposition of U.S. federal income tax, and potentially state and local income tax, on all amounts deferred in the tax year in which the amounts are deferred (or, if later, in the tax year when the receipt of the benefits is no longer subject to a substantial risk of forfeiture);	
 
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 	•	 	a penalty tax of 20% of the includable amount (in addition to the regular income tax at ordinary income rates); and	
 
 	•	 	interest at the underpayment rate plus 1 percent from the time the amount was first deferred (or, if later, the tax year when the benefits are no longer subject to a substantial risk of forfeiture) until the time the amount is included in income.	
Impax’s compensation committee takes into consideration Section 409A of the Code when making awards of compensation and, generally, structures compensation to be exempt from Section 409A of the Code. Compensation that cannot be structured to be exempt from Section 409A of the Code is generally structured to comply with Section 409A of the Code. Impax has not provided any executives or other employees with any gross-up in connection with Section 409A of the Code.
ASC Topic 718
Accounting rules and pronouncements govern how Impax values option and restricted stock awards that Impax makes and when those awards are to be recognized as compensation expense on Impax’s consolidated financial statements. Under ASC Topic 718, Impax calculates the full grant date fair value of awards using a variety of assumptions. This calculation is performed for accounting purposes, as an executive officer might never realize any value from the award. This may happen, for example, when the value of a share of stock on which the executive holds an option falls below the exercise price of the option and remains below the exercise price, rendering the option worthless to the executive. ASC Topic 718 also requires that companies recognize the compensation cost of a stock option or stock bonus award proportionately over the period that an employee is required to render service in exchange for a share-based payment.
Summary Compensation Table
The following table sets forth summary information relating to all compensation awarded to, earned by or paid to the Continuing Impax Executive Officers.

Name and Principal Position	 	Year	 	 	Salary
($)	 	 	Bonus
($)	 	 	Stock
Awards
($)(1)	 	 	Option
Awards
($)(1)	 	 	Non-Equity
Incentive Plan
Compensation
($)(2)	 	 	All Other
Compensation
($)(3)	 	 	Total
($)	 	
Paul M. Bisaro(4)
President and Chief
Executive Officer	 	 	2017	 	 	 	621,154	 	 	 	—  	 	 	 	—  	 	 	 	5,287,000	 	 	 	624,358	 	 	 	—  	 	 	 	6,532,512	 	
Bryan M. Reasons
Senior Vice President, Finance and Chief Financial Officer (principal financial officer)	 	 

	2017
2016
2015	 

	512,712
496,620
482,885	 

	—  
—  
32,643	 

	217,593
868,780
814,000	 

	251,151
826,545
804,175	 

	283,119
—  
337,311	 

	49,459
56,579
544,346	 

	1,314,034
2,248,524
3,015,360	 

 

(1)	Represents the aggregate grant date fair value of stock or option awards, as applicable, computed in accordance with ASC Topic 718, based on assumptions set forth in Note 13 to the consolidated financial statements included in Impax’s Annual Report on Form 10-K filed with the SEC on March 1, 2018 and without giving effect to the estimate of forfeitures related to service-based vesting conditions.	
(2)	For 2017, represents annual cash incentive awards for 2017 performance under Impax’s Short-Term Incentive Plan, a portion of which were paid in December 2017 and the balance paid in March 2018. The amount of the awards that were paid in December 2017 are as follows: Mr. Bisaro - $431,749 and Mr. Reasons - $206,474.	
 
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(3)	“All Other Compensation” column for the year ended December 31, 2017 includes the following compensation items:	

Name	  	Matching
Contributions
Under Non-
Qualified
Deferred
Compensation
Plan ($)	  	Matching
Contributions
Under 401(k)
Plan ($)	  	Total
($)	
Paul M. Bisaro	  	—  	  	—  	  	—  	
Bryan M. Reasons	  	35,959	  	13,500	  	49,459	
 
(4)	Mr. Bisaro was appointed as Impax’s President and Chief Executive Officer effective March 27, 2017.	
Grants of Plan-Based Awards During Year Ended December 31, 2017
The table below sets forth information regarding grants of plan-based awards to the Continuing Impax Executive Officers during the year ended December 31, 2017.

 	 	 	 	Estimated Possible Payouts Under
Non-Equity Incentive Plan
Awards(1)	 	 	All Other
Stock
Awards:
Number of
Shares of
Stock or
Units
(#)(2)	 	 	All Other
Option
Awards:
Number of
Securities
Underlying
Options
(#)(2)	 	 	Exercise
or
Base
Price
of
Option
Awards
($/Sh)	 	 	Grant
Date Fair
Value of
Stock and
Option
Awards
($)(3)	 	
Name	 	Grant Date	 	Threshold
($)	 	 	Target
($)	 	 	Maximum
($)	 	 			 			 			 			
Paul M. Bisaro(4)	 	—	 	 	—  	 	 	 	850,000	 	 	 	1,275,000	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
	 	March 27, 2017	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	850,000	 	 	 	12.70	 	 	 	5,287,000	 	
Bryan M. Reasons	 	—	 	 	—  	 	 	 	309,325	 	 	 	463,988	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
	 	March 2, 2017	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	23,272	 	 	 	—  	 	 	 	—  	 	 	 	217,593	 	
	 	March 2, 2017	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	56,232	 	 	 	9.35	 	 	 	251,151	 	
 
(1)	The target payout is based on 60% of the respective 2017 base salaries of Mr. Reasons and 100% for Mr. Bisaro. The maximum payout is based on 90% of the respective 2017 base salaries of Mr. Reasons and 150% for Mr. Bisaro, in each case, to be awarded for superior performance. Impax has the discretion to pay at, above or below these percentage targets depending on Impax’s overall financial and operational performance and the executive officer’s individual performance.	
(2)	Except as noted otherwise, all stock options and restricted stock grants vest in four equal annual installments beginning on the first anniversary of the date of grant, subject to continued service. The exercise price of all the options granted to the Continuing Impax Executive Officers was the closing trading price of Impax’s common stock on the date of grant.	
(3)	Represents the grant date fair value of stock or option awards, as applicable, computed in accordance with ASC Topic 718, based on assumptions set forth in Note 13 to the consolidated financial statements included in Impax’s Annual Report on Form 10-K filed with the SEC on March 1, 2018 and without giving effect to the estimate of forfeitures related to service-based vesting conditions.	
(4)	Mr. Bisaro was appointed as Impax’s President and Chief Executive Officer effective March 27, 2017. The stock options granted to Mr. Bisaro vest in four equal annual installments beginning on March 27, 2018, the first anniversary of the effective date of Mr. Bisaro’s appointment as Impax’s President and Chief Executive Officer. The grant was made in accordance with NASDAQ’s employment inducement grant exemption and therefore was not granted under a stockholder approved plan. The grant is subject to the terms of an option agreement with Mr. Bisaro to evidence the award.	
 
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Agreements with the Continuing Impax Executive Officers
During 2017, Impax was party to an employment agreement with each of the Continuing Impax Executive Officers. For additional details regarding each such employment agreement, see the section entitled “Executive Compensation—Post-Combination Employment Agreements” below.
Outstanding Equity Awards at December 31, 2017.
The table below sets forth the information regarding the outstanding option and stock awards for the Continuing Impax Executive Officers at December 31, 2017.

 	 	 	 	 	 	 	Option Awards	 	 	 	 	 	Stock Awards	 	
Name	 	Grant
Date	 	Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable (1)	 	 	Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable (1)	 	 	Option
Exercise
Price ($)	 	 	Option
Expiration
Date	 	 	Number of
Shares of
Stock That
Have Not
Vested (#)(1)	 	 	Market Value
of Shares of
Stock That
Have Not
Vested ($)(2)	 	
Paul M. Bisaro(3)	 	3/27/2017	 	 	—  	 	 	 	850,000	 	 	 	12.70	 	 	 	3/27/2027	 	 	 	—  	 	 	 	—  	 	
Bryan M. Reasons	 	5/15/2013	 	 	52,000	 	 	 	—  	 	 	 	17.99	 	 	 	5/15/2023	 	 	 	—  	 	 	 	—  	 	
	 	5/14/2014	 	 	41,250	 	 	 	13,750	 	 	 	25.24	 	 	 	5/14/2024	 	 	 	5,750	 	 	 	95,738	 	
	 	2/26/2015	 	 	23,750	 	 	 	23,750	 	 	 	40.70	 	 	 	2/26/2025	 	 	 	10,000	 	 	 	166,500	 	
	 	2/26/2016	 	 	15,773	 	 	 	47,322	 	 	 	33.27	 	 	 	2/26/2026	 	 	 	19,585	 	 	 	326,090	 	
	 	3/2/2017	 	 	—  	 	 	 	56,232	 	 	 	9.35	 	 	 	3/2/2027	 	 	 	23,272	 	 	 	387,479	 	
 
(1)	Except as noted otherwise, all the stock options and restricted stock grants vest in four equal annual installments beginning on the first anniversary of the date of grant.	
(2)	Based on the closing trading price of common stock of $16.65 per share at December 29, 2017.	
(3)	Mr. Bisaro was appointed as Impax’s President and Chief Executive Officer effective March 27, 2017. The stock options granted to Mr. Bisaro vest in four equal annual installments beginning on March 27, 2018, the first anniversary of the effective date of Mr. Bisaro’s appointment as Impax’s President and Chief Executive Officer. The grant was made in accordance with NASDAQ’s employment inducement grant exemption and therefore was not granted under a stockholder approved plan. The grant is subject to the terms of an option agreement with Mr. Bisaro to evidence the award.	
Option Exercises and Stock Vested During Year Ended December 31, 2017
The following table provides information about the value realized by the Continuing Impax Executive Officers on the vesting of stock awards during the year ended December 31, 2017. No options were exercised by the Continuing Impax Executive Officers during 2017.

 	  	Stock Awards	 	
Name	  	Number of
Shares Acquired
on Vesting (#)	 	  	Value Realized
on Vesting ($)(1)	 	
Paul M. Bisaro	  	 	—  	 	  	 	—  	 	
Bryan M. Reasons	  	 	20,978	 	  	 	325,616	 	

(1)	The value realized on the vesting of stock awards is calculated by multiplying the number of shares of common stock vested by the closing trading price of the common stock on the vesting date.	
 
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Non-Qualified Deferred Compensation During Year Ended December 31, 2017
The following table sets forth the benefits received by the Continuing Impax Executive Officers under Impax’s non-qualified deferred compensation plan during the year ended December 31, 2017 as well as the aggregate non-qualified deferred compensation balances at December 31, 2017:

Name	  	Executive
Contributions
in 2017 ($)(1)	 	  	Company
Contributions
in 2017 ($)(2)	 	  	Aggregate
Earnings /
(Loss) in
2017 ($)(3)	 	  	Aggregate
Withdrawals/
Distributions ($)	 	  	Aggregate
Balance at
December 31,
2017 ($)	 	
Paul M. Bisaro	  	 	—  	 	  	 	—  	 	  	 	—  	 	  	 	—  	 	  	 	—  	 	
Bryan M. Reasons	  	 	71,918	 	  	 	35,959	 	  	 	142,812	 	  	 	—  	 	  	 	858,025	 	

(1)	Represents amounts deferred by each Continuing Impax Executive Officer to Impax’s non-qualified deferred compensation plan and reported in the Summary Compensation Table above under “ Salary ” for 2017 as follows:	

Name	  	Salary Contributions
($)	 	
Paul M. Bisaro	  	 	—  	 	
Bryan M. Reasons	  	 	51,271	 	
Amounts deferred by the Continuing Impax Executive Officers to Impax’s non-qualified deferred compensation plan from their respective cash incentive awards paid in 2017 and 2018 for 2017 performance and Impax’s matching contributions related to such deferred compensation made in 2018.
 
(2)	These amounts are reported under “ All Other Compensation ” in the Summary Compensation Table above.	
(3)	These amounts are not included in the Summary Compensation Table above as they do not constitute above-market or preferential earnings for purposes of SEC rules.	
Narrative Disclosure to Non-Qualified Deferred Compensation Table
Impax’s non-qualified deferred compensation plan permits highly-compensated individuals to receive a similar level of benefits (in terms of the overall percentage of their income eligible for tax deferral and employer matching contributions) as are available to employees with lower levels of income. Each participant can defer up to 75% of the participant’s base salary and up to 100% of the amount of the participant’s bonus or cash incentive awards. Impax makes a matching contribution for each participant equal to 50% of the participant’s contribution up to 10% of base salary and bonus and cash incentive awards per year. A participant’s account is notionally invested in one or more investment funds and the value of the account is determined with respect to such investment allocations. Participants are fully vested in their contributions when made. Impax’s matching contributions vest depending on the number of years of service, with participants being fully vested after five years of service. No contributions are forfeited as a result of a separation due to death, disability, termination of the plan or a change in control.
 
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Benefits attributable to a participant may be valued as if they were invested in one or more investment funds, as directed by participants in writing. The investment funds and their annual rates of return for the fiscal year ended December 31, 2016 are contained in the table below. Participants may change their selection of investment funds from time to time in writing in accordance with the procedure established by the plan administrator. Changes will take effect as soon as administratively practicable.

Name of Valuation Fund	  	Rate of Return in 2017	 	
		
Fidelity / VIP Money Market	  	 	0.43	% 	
MFS / Sun Life Government Securities	  	 	2.22	% 	
PIMCO Total Return	  	 	4.91	% 	
MFS VIT I Total Return	  	 	12.30	% 	
MFS VIT I Value Series Initial	  	 	17.65	% 	
Dreyfus Stock Index	  	 	21.54	% 	
T. Rowe Price Blue Chip Growth	  	 	36.17	% 	
AllianceBern Small / Mid Cap Value	  	 	13.15	% 	
Fidelity VIP Mid Cap	  	 	20.81	% 	
Delaware VIP Small Cap Value	  	 	12.05	% 	
AllianceBern International Value	  	 	25.42	% 	
MFS / Sun Life Emerging Market	  	 	37.95	% 	
MFS Global Real Estate	  	 	13.33	% 	
If a participant terminates his or her employment, or an eligible consultant ceases to render service to Impax, for any reason, including death, Impax will pay the participant an amount equal to the value of the vested balance credited to the participant’s plan account. If the participant has died, the balance of that account will be paid to one or more beneficiaries designated by the participant. See “— Potential Payments upon Termination or Change in Control — Non-Qualified Deferred Compensation Plan ” for a description of the form of payouts, withdrawals and other distributions under Impax’s non-qualified deferred compensation plan.
Potential Payments upon Termination or Change in Control
In 2017, upon termination of employment and/or upon a change in control, the Continuing Impax Executive Officers would have been entitled to receive from Impax potential payments and benefits under the following agreements and plans, as applicable:
 
 	•	 	employment agreements;	
 
 	•	 	Impax’s 2002 Plan; and	
 
 	•	 	Impax’s non-qualified deferred compensation plan.	
Employment Agreements with Continuing Impax Executive Officers
During 2017, Impax was party to an employment agreement with each of the Continuing Impax Executive Officers. For additional details regarding each such employment agreement, see the section entitled “Executive Compensation—Post-Combination Employment Agreements” below.
Stock Incentive Plans and Award Agreements
The table below sets forth the benefits that each Continuing Impax Executive Officer holding awards granted under Impax’s 2002 Plan would be entitled to receive should his employment terminate under the following specified circumstances. These rights and benefits may be amended or modified as otherwise determined by the
 
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Impax Board at the time that a grant or award is made or, if the Continuing Impax Executive Officer’s rights are not reduced, thereafter:

Termination Circumstance	  	Stock Incentive Plan Benefit	
Death or disability	  	The vested portion of any stock option as of the date of death or disability may be exercised within one year from the date of death or disability, but in no event after the stated expiration of the option.	
		
Termination other than death, disability or for cause (1)	  	The vested portion of any stock option as of the date of termination may be exercised within 30 days from the date of termination, but in no event after the stated expiration of the option.	

(1)	Under Impax’s 2002 Plan, “cause” is defined as under an applicable employment or consulting agreement. If there is no such agreement or no such definition in an agreement, “cause” is defined to mean dishonesty, fraud, insubordination, willful misconduct, refusal to perform services or materially unsatisfactory performance of duties.	
Under Impax’s 2002 Plan, if, in the event of a “change in control,” the surviving corporation refuses to assume or to substitute with similar awards the outstanding awards granted under these plans, then all such outstanding awards will become immediately exercisable, referred to as an “equity plan change in control event.” The award will terminate if it is not exercised at or prior to the event constituting the change in control.
For these purposes, a “change in control” means:
 
 	•	 	a sale of all or substantially all of Impax’s assets;	
 
 	•	 	a merger or consolidation in which Impax is not the surviving corporation; or	
 
 	•	 	a reverse merger in which Impax is the surviving corporation but the shares of Impax’s common stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise.	
Non-Qualified Deferred Compensation Plan
Impax’s non-qualified deferred compensation plan provides that matching contributions by Impax vest depending on the number of years of service for each executive, with such officers being fully vested after five years of service. Upon the occurrence of an executive’s death or “disability,” the amount of matching contributions by Impax to such officer under the plan will immediately vest. Further, upon the occurrence of a “change in control” of Impax, the amount of matching contributions by Impax to the executives under the plan will immediately vest.
Under the non-qualified deferred compensation plan, “disability” is generally defined as a physical or mental condition whereby the executive: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of such executive’s employer.
Under the non-qualified deferred compensation plan, a “change in control” is generally defined as a change in the ownership or effective control of Impax, or in the ownership of a substantial portion of the assets of Impax, as
 
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defined and determined under Section 409A(a)(2)(A)(v) of the Code, Treasury Notice 2005-1 and any further guidance published with respect to such term, and includes any one of the following events:
 
 	•	 	a change in ownership in which a person, group or entity acquires more than 50% of the total fair market value or total voting power of Impax’s stock;	
 
 	•	 	a person, group or entity acquires (in a 12-month period) ownership of stock with 35% or more of the total voting power of Impax’s stock;	
 
 	•	 	a majority of the Impax Board is replaced in a 12-month period by directors whose appointment or election was not endorsed by a majority of the Impax Board before their appointment or election; or	
 
 	•	 	a change in ownership of a substantial portion of Impax’s assets in which a person, group or entity acquires 40% or more of the gross fair market value of Impax’s assets.	
The payment of vested account balances, including matching contributions, under the plan to Impax’s executives (or such officer’s estate) in the event of death, disability or a change in control will be made as follows:
 
 	•	 	upon death, (i) if the payment of benefits under the plan had commenced, pursuant to the then existing benefit payment plan, or (ii) if the payment of benefits under the plan had not yet commenced, in a lump sum payment as soon as administratively possible;	
 
 	•	 	upon disability, in a lump sum payment not earlier than the sixth month following the executive’s disability; and	
 
 	•	 	upon a change in control, as specified by such executive in the distribution election, (i) a lump sum payment as soon as administratively possible; or (ii) annual installments for a period of up to 15 years (or in the event of payment of an in-service account, a maximum of five years) with annual payments equal to the balance of the account immediately prior to the payment, multiplied by a fraction, the numerator of which is one and the denominator of which commences at the number of annual payments initially chosen and is reduced by one in each succeeding year.	
 
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Potential Payments to Continuing Impax Executive Officers upon Termination or Change in Control
Potential Payments upon Termination
The following table shows the estimated amount of payments and benefits that would be provided by Impax to each of the Continuing Impax Executive Officers under the plans and agreements described above assuming that their employment was terminated as of December 31, 2017 for various reasons as described below.

 	 	Reason for Termination of Employment	 	 	 	 	
Continuing Impax
Executive Officer and
Nature of Payment	 	Terminated by
Impax without
Cause or by
Officer With
Good Reason
(no Change in
Control) ($)	 	 	 	 	 	Terminated
by Impax for
Cause ($)	 	 	 	 	 	Terminated by
Officer
without
Good Reason
($)	 	 	 	 	 	Disability ($)	 	 	 	 	 	Death ($)	 	 	 	 	 	Terminated by
Impax without
Cause or by Officer
for Good Reason in
Connection with a
Change of Control
($)	 	 	 	 	
Paul M. Bisaro (1)	 				 				 				 				 				 				 				 				 				 				 				 				
Base Severance Payment	 	 	47,077	 	 	 	(2	) 	 	 	47,077	 	 	 	(2	) 	 	 	47,077	 	 	 	(2	) 	 	 	47,077	 	 	 	(2	) 	 	 	47,077	 	 	 	(2	) 	 	 	47,077	 	 	 	(2	) 	
Accrued Benefits	 	 	—  	 	 	 	(3	) 	 	 	—  	 	 	 	(3	) 	 	 	—  	 	 	 	(3	) 	 	 	1,890,893	 	 	 	(3	) 	 	 	500,000	 	 	 	(3	) 	 	 	—  	 	 	 	(3	) 	
Cash Severance Payment	 	 	2,948,716	 	 	 	(4	) 	 	 	—  	 	 				 	 	—  	 	 				 	 	2,948,716	 	 	 	(4	) 	 	 	2,948,716	 	 	 	(4	) 	 	 	3,685,895	 	 	 	(4	) 	
Pro Rata Award	 	 	624,358	 	 	 	(5	) 	 	 	—  	 	 				 	 	—  	 	 				 	 	624,358	 	 	 	(5	) 	 	 	624,358	 	 	 	(5	) 	 	 	624,358	 	 	 	(5	) 	
Cost of continuation of benefits	 	 	—  	 	 	 	(6	) 	 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 	 	(6	) 	 	 	—  	 	 	 	(6	) 	 	 	—  	 	 	 	(6	) 	
Value of accelerated stock options	 	 	1,678,750	 	 	 	(7	) 	 	 	—  	 	 				 	 	—  	 	 				 	 	839,375	 	 	 	(7	) 	 	 	839,375	 	 	 	(7	) 	 	 	3,357,500	 	 	 	(8	) 	
Value of accelerated restricted stock	 	 	—  	 	 	 	(9	) 	 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 	 	(9	) 	 	 	—  	 	 	 	(9	) 	 	 	—  	 	 	 	(10	) 	
Non-Qualified Deferred Compensation	 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 				
Total	 	 	5,298,901	 	 				 	 	47,077	 	 				 	 	47,077	 	 				 	 	6,350,419	 	 				 	 	4,959,526	 	 				 	 	7,714,830	 	 				
Bryan M. Reasons	 				 				 				 				 				 				 				 				 				 				 				 				
Base Severance Payment	 	 	83,280	 	 	 	(2	) 	 	 	83,280	 	 	 	(2	) 	 	 	83,280	 	 	 	(2	) 	 	 	83,280	 	 	 	(2	) 	 	 	83,280	 	 	 	(2	) 	 	 	83,280	 	 	 	(2	) 	
Accrued Benefits	 	 	—  	 	 	 	(3	) 	 	 	—  	 	 	 	(3	) 	 	 	—  	 	 	 	(3	) 	 	 	3,022,885	 	 	 	(3	) 	 	 	500,000	 	 	 	(3	) 	 	 	—  	 	 	 	(3	) 	
Cash Severance Payment	 	 	1,250,281	 	 	 	(11	) 	 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 				 	 	1,875,422	 	 	 	(11	) 	
Pro Rata Award	 	 	283,119	 	 	 	(5	) 	 	 	—  	 	 				 	 	—  	 	 				 	 	283,119	 	 				 	 	283,119	 	 				 	 	283,119	 	 	 	(5	) 	
Cost of continuation of benefits	 	 	61,323	 	 	 	(6	) 	 	 	—  	 	 				 	 	—  	 	 				 	 	15,331	 	 	 	(12	) 	 	 	—  	 	 				 	 	61,323	 	 	 	(6	) 	
Value of accelerated stock options	 	 	102,623	 	 	 	(13	) 	 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 	 	(14	) 	 	 	—  	 	 	 	(14	) 	 	 	410,494	 	 	 	(8	) 	
Value of accelerated restricted stock	 	 	384,548	 	 	 	(15	) 	 	 	—  	 	 				 	 	—  	 	 				 	 	487,903	 	 	 	(16	) 	 	 	975,807	 	 	 	(10	) 	 	 	975,807	 	 	 	(10	) 	
Non-Qualified Deferred Compensation	 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 				 	 	—  	 	 	 	(17	) 	 	 	—  	 	 	 	(17	) 	 	 	—  	 	 	 	(17	) 	
Total	 	 	2,165,174	 	 				 	 	83,280	 	 				 	 	83,280	 	 				 	 	3,892,518	 	 				 	 	1,842,205	 	 				 	 	3,689,443	 	 				
 
(1)	Mr. Bisaro was appointed as Impax’s President and Chief Executive Officer beginning March 27, 2017.	
(2)	Represents the amount payable under the Continuing Impax Executive Officer’s employment agreement, for (i) any earned but unpaid base salary through the termination date; (ii) any annual cash incentive award earned but unpaid for the prior fiscal year, which amount is paid within two and one-half months following the end of the then current calendar year; and (iii) any accrued but unused vacation time.	
(3)	Represents the amount payable under the Continuing Impax Executive Officer’s employment agreement for vested accrued benefits and other payments, if any, which such officer or his dependents are entitled to under Impax’s employee benefit arrangements, plans and programs, as of the termination date, except severance pay plans.	
(4)	Represents the amount payable under Mr. Bisaro’s employment agreement with Impax, with the aggregate amount due paid in equal installments for a period of 12 months from the termination date.	
(5)	Represents the estimated amount of the pro rata award payable under the Continuing Impax Executive Officer’s employment agreement, which amount will be paid within two and one-half months following the end of the calendar year to which it relates.	
(6)	Represents the estimated cost to continue the Continuing Impax Executive Officer’s benefits for a period of 24 months from the termination date.	
(7)	Represents (i) in the event of termination for good reason, the value realized on the acceleration of the vesting of all unvested stock options scheduled to vest within 24 months from the termination date, which value is determined for each unvested stock option (subject to vesting within 24 months) by subtracting the exercise price for such stock option from $16.65, the closing price of Impax’s common stock on December 29, 2017, the termination date and (ii) in the event of termination for disability or death, acceleration of the vesting of all unvested stock options scheduled to vest within 12 months from the termination date, which value is determined for each unvested stock option (subject to vesting within 12 months) by subtracting the exercise price for such stock option from $16.65, the closing price of Impax’s common stock on December 29, 2017.	
 
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(8)	Represents the value realized on the acceleration of the vesting of all unvested stock options, which value is determined for each unvested stock option by subtracting the exercise price for such stock option from $16.65, the closing price of Impax’s common stock on December 29, 2017, the termination date.	
(9)	Represents (i) in the event of termination for good reason, the value realized on the acceleration of the vesting of all shares of restricted stock scheduled to vest within 24 months from the termination date, which value is determined by multiplying $16.65, the closing price of Impax’s common stock on December 29, 2017, the termination date, by the number of shares of restricted stock (subject to vesting within 24 months) as of such date and (ii) in the event of termination from death or disability, the value realized on the acceleration of the vesting of all shares of restricted stock scheduled to vest within 12 months from the termination date, which value is determined by multiplying $16.65, the closing price of Impax’s common stock on December 29, 2017, the termination date, by the number of shares of restricted stock (subject to vesting within 12 months).	
(10)	Represents the value realized on the acceleration of the vesting of all shares of restricted stock, which value is determined by multiplying $16.65, the closing price of Impax common stock on December 29, 2017, the termination date, by the number of shares of restricted stock as of such date.	
(11)	Represents the amount payable under Mr. Reasons’ employment agreement with Impax, with the aggregate amount due paid in equal installments for a period of 12 months from the termination date.	
(12)	Represents the estimated cost to continue the Continuing Impax Executive Officer’s benefits for a period of six months from the termination date.	
(13)	Represents the value realized on the acceleration of the vesting of all unvested stock options scheduled to vest within 12 months from the termination date, which value is determined for each unvested stock option (subject to vesting within 12 months) by subtracting the exercise price for such stock option from $16.65, the closing price of Impax common stock on December 29, 2017, the termination date.	
(14)	Represents the value realized on the acceleration of the vesting of all unvested stock options scheduled to vest in the calendar year of the termination upon the certification of the Impax compensation committee based on the achievement of performance goals through the termination date, which value is determined for each unvested stock option by subtracting the exercise price for such stock option from $16.65, the closing price of Impax common stock on December 29, 2017, the termination date.	
(15)	Represents the value realized on the acceleration of the vesting of all shares of restricted stock scheduled to vest within 12 months from the termination date, which value is determined by multiplying $16.65, the closing price of Impax common stock on December 29, 2017, the termination date, by the number of shares of restricted stock (subject to vesting within 12 months) as of such date.	
(16)	Represents the value realized on the acceleration of the vesting of 50% of all shares of restricted stock, which value is determined by multiplying $16.65, the closing price of Impax common stock on December 29, 2017, the termination date, by the number of shares of such restricted stock as of such date.	
(17)	Represents the value received on the acceleration of the vesting of the unvested portion of the matching contributions made by Impax for the benefit of the Continuing Impax Executive Officer under Impax’s 401(k) plan and non-qualified deferred compensation plan.	
 
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Potential Payments upon Change in Control
Other than as noted below, the following table shows the potential benefit to each Continuing Impax Executive Officer related to (i) the acceleration of the vesting of the unvested portions of the stock options and the restricted stock held by such officer under the 2002 Plan assuming an equity plan change in control event occurred on December 31, 2017 and (ii) the acceleration of the vesting of the unvested portion of the matching contributions made by Impax for the benefit of the Continuing Impax Executive Officer under Impax’s non-qualified deferred compensation plan upon the occurrence of a “change in control” of Impax:

 	  	Option Awards	 	  	Stock Awards	 	  	 	 	
Continuing Impax Executive Officer and
Change in Control Event	  	Number of
Securities
Underlying
Unvested
Options (#)	 	  	Accelerated
Vesting of
Unvested
Options ($)(1)	 	  	Number of
Shares of
Unvested
Restricted
Stock (#)	 	  	Accelerated
Vesting of
Restricted
Stock ($)(2)	 	  	Accelerated
Vesting of
Matching
Contributions
by us ($)(3)	 	
Paul M. Bisaro	  				  				  				  				  				
Equity plan change in control event	  	 	850,000	 	  	 	3,357,500	 	  	 	—  	 	  	 	—  	 	  	 	—  	 	
Non-Qualified Deferred Compensation	  	 	—  	 	  	 	—  	 	  	 	—  	 	  	 	—  	 	  	 	—  	 	
Bryan M. Reasons	  				  				  				  				  				
Equity plan change in control event	  	 	141,054	 	  	 	410,494	 	  	 	58,607	 	  	 	975,807	 	  	 	—  	 	
Non-Qualified Deferred Compensation	  	 	—  	 	  	 	—  	 	  	 	—  	 	  	 	—  	 	  	 	—  	 	

(1)	Based on the difference between the closing price of Impax common stock on December 29, 2017 of $16.65 per share and the exercise price of the stock option.	
(2)	Based on the closing price of Impax common stock on December 29, 2017 of $16.65 per share.	
(3)	Represents the value received on the acceleration of the vesting of the unvested portion of the matching contributions made by Impax for the benefit of the Continuing Impax Executive Officer under Impax’s 401(k) plan and non-qualified deferred compensation plan.	
Post-Combination Employment Agreements
We have entered into employment agreements with certain of our executive officers (the “Employment Agreements”). The following summary details the material terms of the Employment Agreements, which will remain effective and, to the extent applicable, ratified by the New Amneal Board.
Paul M. Bisaro
Paul M. Bisaro served as Impax’s President and Chief Executive Officer and Director from March 27, 2017 to the completion of the Combination, and now serves as a director on the board of New Amneal. In connection with his appointment as President and CEO of Impax, Mr. Bisaro and Impax entered into an employment agreement (the “Bisaro Employment Agreement”). The Bisaro Employment Agreement expires on March 27, 2019, unless further extended or earlier terminated. The Bisaro Employment Agreement automatically renews for single one-year periods unless either party provides a written notice of non-renewal at least 90 days prior to the end of the applicable term or unless it is terminated earlier.
Mr. Bisaro receives an annual base salary of $850,000, subject to increase, or decrease (only if salary decreases are concurrently implemented across the senior executives of Impax), as determined by the Impax Board or the compensation committee of the Impax Board. Mr. Bisaro is also eligible to receive an annual incentive bonus under Impax’s management bonus program. His eligibility for a 2017 annual incentive bonus is targeted at 100% of his base salary and up to 150% of his base salary based on the attainment of goals established in writing by the Impax Board or the compensation committee of the Impax Board, with such amount prorated based on the number of days elapsed in the year before and the date he commenced employment with Impax. On March 27, 2017, Mr. Bisaro was granted an option to purchase 850,000 Impax Shares with an exercise price per share of $12.70 that will vest and become exercisable as to 25% of the underlying shares on
 
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each of the first four anniversaries of March 27, 2017, subject to Mr. Bisaro’s continued employment with Impax.
Under the Bisaro Employment Agreement, Mr. Bisaro is entitled to severance payments and benefits if (i) Mr. Bisaro resigns for “good reason” (as defined in the Bisaro Employment Agreement), (ii) Impax terminates Mr. Bisaro’s employment without cause (as defined in the Bisaro Employment Agreement) or (iii) Mr. Bisaro’s employment is terminated by reason of death or for reasons of disability of: (A) two times the sum of his base salary as then in effect plus two times the average of the annual cash bonus awards received by Mr. Bisaro for all fiscal years during the term of the Bisaro Employment Agreement; (B) in the event such resignation or termination occurs following Impax’s first fiscal quarter of any year, a pro rata portion of his cash bonus award for the fiscal year in which the termination occurs; (C) continuation of benefits for 24 months from the termination date; and (D) the vesting of Mr. Bisaro’s stock options and restricted stock will be accelerated to the extent such stock options and restricted stock would have vested had Mr. Bisaro’s employment continued for an additional 24 months or, in the case of termination on account of Mr. Bisaro’s death or disability, 12 months; and (E) each stock option held by Mr. Bisaro will remain exercisable for up to 12 months following his termination date.
Under the Bisaro Employment Agreement, Mr. Bisaro is also entitled to severance payments and benefits if (i) Mr. Bisaro resigns for good reason within 60 days preceding or 12 months following a change in control, (ii) Impax terminates Mr. Bisaro’s employment without cause or Mr. Bisaro’s employment is terminated by reason of death or disability, in each case within 60 days preceding or 12 months following a change in control or (iii) the employment term expires or is not renewed by Impax and Mr. Bisaro’s employment is then terminated without cause within 12 months following the change in control of: (A) two and one half times the sum of his base salary as then in effect, plus two and one half times the average of the annual cash bonus awards received by Mr. Bisaro for all fiscal years during the term of the Bisaro Employment Agreement; (B) in the event such resignation or termination occurs following Impax’s first fiscal quarter of any year, a pro rata portion of his cash bonus award for the fiscal year in which the termination occurs; (C) continuation of benefits for 24 months from the termination date; (D) the vesting of Mr. Bisaro’s stock options and restricted stock will be fully accelerated; and (E) each stock option held by Mr. Bisaro will remain exercisable for up to 12 months following his termination date.
On December 16, 2017, Mr. Bisaro entered into the MOU, pursuant to which the parties agreed that as of the Closing and subject to both Mr. Bisaro serving as Chief Executive Officer of Impax through the Closing and Mr. Stewart commencing service as Chief Executive Officer of New Amneal as of the Closing, (i) Mr. Bisaro will commence service as the Executive Chairman of New Amneal (ii) no later than immediately following the Closing, Mr. Bisaro and New Amneal will enter into an employment agreement (the “Chairman Employment Agreement”) and (iii) the Bisaro Employment Agreement will then immediately terminate without triggering any right to severance payments or benefits thereunder. The MOU terminates upon the earliest of (a) the later of the Closing or the execution and delivery of the Chairman Employment Agreement and (b) 12 months from the MOU Effective Date. Pursuant to the MOU, Mr. the Bisaro Employment Agreement remains in full force and effect in accordance with its terms, subject to a waiver by Mr. Bisaro dated as of October 17, 2017, until the termination of the MOU, and will remain in full force and effect following the MOU’s termination as a result of the occurrence of the 12-month anniversary of the MOU Effective Date. In the event the MOU is terminated due to the Closing or the execution and delivery of the Chairman Employment Agreement, (x) Mr. Bisaro agrees that he will execute such other documents as reasonably necessary or appropriate to evidence the termination of the Bisaro Employment Agreement without triggering any severance obligations thereunder and (y) Impax will pay or provide all payments or benefits to Mr. Bisaro that are vested or earned but unpaid prior to the termination of the Bisaro Employment Agreement within 10 days of the termination of his existing employment agreement.
The initial term of the Chairman Employment Agreement pursuant to which Mr. Bisaro will serve as Executive Chairman of the New Amneal Board began on the Closing and will expire on the third anniversary of the Closing, unless further extended or earlier terminated as provided in the Chairman Employment Agreement.
 
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The Chairman Employment Agreement automatically renews for single one-year periods unless either party provides a written notice of non-renewal at least 90 days prior to the end of the applicable term or unless it is terminated earlier.
Under the Chairman Employment Agreement, Mr. Bisaro will receive an annual base salary of $750,000, subject to increase, or decrease (only if salary decreases are concurrently implemented across the senior executives of New Amneal), as determined by the New Amneal Board or the Compensation Committee. Mr. Bisaro is also eligible to receive an annual bonus targeted at 100% of his base salary under the annual incentive program adopted by the New Amneal Board based on the attainment of performance objectives established in writing by the New Amneal Board, and such amount may be between zero and 150% of Mr. Bisaro’s base salary. The annual bonus will be prorated for Mr. Bisaro’s initial year of employment. As provided under the Chairman Employment Agreement, on or as promptly as practicable following the effective date of the Chairman Employment Agreement, but no later than 30 days immediately following such date, New Amneal will grant to Mr. Bisaro (i) an option to purchase the number of shares of New Amneal common stock necessary for the option to have a grant date fair value of $3.0 million (the “Initial Chairman Option”) and (ii) an award of restricted stock units having a grant date fair value equal to $1.5 million (the “Initial Chairman RSUs”). The per share exercise price of the Initial Chairman Option will be equal to the per share fair market value of the common stock of New Amneal on the date of grant. The Initial Chairman Option and the Initial Chairman RSUs will vest and become exercisable with respect to 25% of the total number of shares subject to the Initial Chairman Option and Initial Chairman RSUs, as applicable, on each of the first four anniversaries of the effective date of the Chairman Employment Agreement, subject to Mr. Bisaro’s continuous service to New Amneal through the applicable vesting date. The Initial Chairman Option and the Initial Chairman RSUs will otherwise be subject to the terms of the plan pursuant to which they are granted and award agreements to be entered into between Mr. Bisaro and New Amneal.
The Chairman Employment Agreement provides for severance payments and benefits if (i) Mr. Bisaro resigns for “good reason” (as defined in the Chairman Employment Agreement) or (ii) New Amneal terminates Mr. Bisaro’s employment without cause (as defined in the Chairman Employment Agreement), in each case other than during the period that is within three months preceding or 24 months following a change in control (as defined in the Chairman Employment Agreement). In addition to payment of earned and vested payments and benefits, these severance payments and benefits include: (A) two times his base salary as then in effect; (B) continuation of healthcare benefits until the second anniversary of his termination date; and (C) the vesting and if applicable, exercisability of each outstanding equity award granted to Mr. Bisaro will be accelerated to the extent such equity award would have vested had Mr. Bisaro’s employment continued until the first anniversary of his termination date and each stock option held by Mr. Bisaro will remain exercisable for a period of 12 months following his termination date (or until the original expiration date of the option, if earlier).
The Chairman Employment Agreement also provides for severance payments and benefits if Mr. Bisaro’s employment terminates as a result of Mr. Bisaro’s death or disability (as defined in the Chairman Employment Agreement), in each case other than during the period that is within three months preceding or 24 months following a change in control. In addition to payment of earned and vested payments and benefits, these severance payments and benefits include: (A) a pro-rated annual bonus based on actual performance for the fiscal year during which such termination occurs; (B) accelerated vesting of 100% of the then-unvested restricted stock and restricted stock units previously granted to Mr. Bisaro (or, upon a termination as a result of Mr. Bisaro’s disability, accelerated vesting of 50% of such then-unvested restricted stock and restricted stock units); (C) accelerated vesting and exercisability of the portion of the stock options previously granted to Mr. Bisaro that are scheduled to vest in the calendar year of Mr. Bisaro’s death or disability, as applicable; and (D) solely in the event of a termination as a result of Mr. Bisaro’s Disability, continuation of healthcare benefits for six months.
The Chairman Employment Agreement also provides for severance payments and benefits if (i) Mr. Bisaro resigns for good reason, (ii) New Amneal terminates Mr. Bisaro’s employment without cause or (iii) Mr. Bisaro’s employment terminates by reason of death or disability, in each case within three months
 
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preceding or 24 months following a change in control, In addition to payment of earned and vested payments and benefits, these severance payments and benefits include: (A) the sum of (x) two times his base salary as then in effect plus (y) an amount equal to two times his target annual bonus as then in effect; (B) continuation of healthcare benefits until the second anniversary of his termination date; and (C) the vesting and if applicable, exercisability of each equity award granted to Mr. Bisaro will be fully accelerated and each stock option held by Mr. Bisaro will remain exercisable for a period of 12 months following his termination date (or until the original expiration date of the option, if earlier). The Combination shall not constitute a change in control under the Chairman Employment Agreement.
The Chairman Employment Agreement requires Mr. Bisaro to maintain the confidentiality of information relating to New Amneal and its subsidiaries during and after the term of such agreement and also contains non-competition, non-solicitation and non-disparagement covenants as well as other provisions customary for this type of employment agreement.
Bryan M. Reasons
Bryan M. Reasons serves as the Chief Financial Officer of New Amneal. Mr. Reasons served as Impax’s Senior Vice President, Finance and Chief Financial Officer from December 2012 to the completion of the Combination and previously served as Impax’s Acting Chief Financial Officer from June 2012 to December 2012 and as Impax’s Vice President, Finance from January 2012 to June 2012. Mr. Reasons is party to an Employment Agreement dated as of December 12, 2012, by and among Impax and Mr. Reasons, as amended (the “Reasons Employment Agreement”). The Reasons Employment Agreement automatically renews for a one-year period unless either party provides at least 90 days written notice of non-renewal prior to the end of the applicable term or unless it is terminated earlier.
The Reasons Employment Agreement provides for (i) an initial base salary of $385,000, subject to increase or decrease as determined by the Impax Board or the compensation committee of the Impax Board; (ii) an annual cash incentive bonus based upon a percentage of Mr. Reasons’ base salary and the attainment of goals established in writing by the Impax Board or the compensation committee of the Impax Board; (iii) grants of stock options and restricted stock in an amount and on the terms determined by the compensation committee of the Impax Board; and (iv) other compensation that may be awarded by the Impax Board or the compensation committee of the Impax Board.
Mr. Reasons is also entitled to have the benefit of all group life, disability, hospital, surgical and major medical insurance plans and other employee benefit plans made available to Impax executive personnel.
The Reasons Employment Agreement may be terminated by Impax with or without “cause” or by Mr. Reasons without “good reason” or for no reason, as such terms are defined in the Reasons Employment Agreement.
The Reasons Employment Agreement requires the Mr. Reasons to maintain the confidentiality of information relating to Impax during and after the term of the agreement and also contain non-competition, non-solicitation, non-disparagement and cooperation covenants as well as other provisions customary for this type of employment agreement.
The Reasons Employment Agreement specifies Impax’s obligations to Mr. Reasons upon termination of his employment under various circumstances. The Reasons Employment Agreement may be terminated upon the death of Mr. Reasons, by Impax on 30 days written notice upon the disability of Mr. Reasons, by Impax upon written notice to Mr. Reasons with or without “cause” and by Mr. Reasons upon 60 days written notice without “good reason” or at any time prior to the 60th day after any event providing “good reason,” provided such event is not cured within 30 days.
 
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Upon the death of Mr. Reasons, Mr. Reasons’ estate shall receive: (i) any earned but unpaid base salary through the termination date; (ii) any annual cash incentive award earned but unpaid for the prior fiscal year, which amount will be paid within two and one-half months following the end of the calendar year to which it relates; (iii) reimbursement for any unreimbursed expenses properly incurred and paid through the termination date; (iv) any accrued but unused vacation time; (v) all vested stock options and restricted stock; and (vi) vested accrued benefits and other payments, if any, which Mr. Reasons or his dependents are entitled to under Impax’s employee benefit arrangements, plans and programs, as of the termination date, except severance pay plans, collectively referred to as the “amounts and benefits.” If the termination event occurs after our first fiscal quarter of any year, we will pay a pro rata portion of Mr. Reasons’ annual cash incentive award, to be determined by multiplying the amount of such award which would be due for the full fiscal year, as determined by the Impax Board, by a fraction, the numerator of which is the number of days during the fiscal year of termination Mr. Reasons was employed and the denominator of which is 365, referred to as the “pro rata award,” which amount will be paid within two and one-half months following the end of the calendar year to which it relates. In addition, all unvested restricted stock granted to Mr. Reasons will immediately vest and the portion of unvested stock options of Mr. Reasons which are scheduled to vest in the calendar year of the termination will vest upon the certification of the compensation committee of the Impax Board based on the achievement of performance goals through the termination date.
If the employment of Mr. Reasons is terminated by Impax on 30 days written notice upon the disability of Mr. Reasons, Impax will pay Mr. Reasons the amount and benefits, the pro rata award and medical benefits for six months. In addition, upon the receipt of a general release of claims from such officer, 50% of all unvested restricted stock granted to Mr. Reasons will immediately vest on the termination date and the portion of the unvested stock options of Mr. Reasons scheduled to vest in the calendar year of the termination will vest upon the certification of the compensation committee of the Impax Board based on the achievement of performance goals through the termination date.
If the employment Mr. Reasons is terminated for cause by us or without good reason by Mr. Reasons, we will pay Mr. Reasons the amount and benefits.
If the employment of Mr. Reasons is terminated without cause by Impax or for good reason by Mr. Reasons, we will pay Mr. Reasons the amounts and benefits. In addition, Mr. Reasons will receive the following: (i) a cash payment in an amount equal to the sum of (a) the balance of the base salary due under the Reasons Employment Agreement or one and one half times his base salary as then in effect, whichever is greater, plus (b) an amount equal to one and one half times the average of the annual cash incentive awards received by Mr. Reasons for all fiscal years ending during the term of the Reasons Employment Agreement, with the aggregate amount due paid in equal installments for a period of 12 months from the termination date; (ii) the pro rata award; and (iii) all benefits for 24 months from the termination date.
In addition, if the employment of Mr. Reasons is terminated without cause by us or for good reason by Mr. Reasons, all of the unvested stock options and restricted stock held by Mr. Reasons will be accelerated by 12 months and such stock options will remain exercisable for 12 months following his termination date.
If the employment of Mr. Reasons is terminated without cause by Impax or for good reason by Mr. Reasons within 60 days preceding or 12 months following a change in control or, with respect to Mr. Reasons, if the term of the Reasons Employment Agreement expires or is not renewed and Mr. Reasons is then terminated without cause by Impax within 12 months following a change of control, then, in addition to the amounts and benefits, Mr. Reasons will receive the following: (i) an amount equal to the sum of (a) the balance of the base salary due Mr. Reasons under the Reasons Employment Agreement or two and one quarter times Mr. Reasons’ then current base salary, whichever is greater, plus (b) an amount equal to two and one quarter times the average of the annual cash incentive awards received by Mr. Reasons for all fiscal years ending during the term of the agreement, with the aggregate amount due paid in equal installments for a period of 12 months from the termination date; and (ii) in the event such termination or resignation occurs following Impax’s first fiscal quarter of any year, the pro
 
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rata award, which amount will be paid within two and one-half months following the end of the calendar year to which it relates.
In addition, Mr. Reasons will also receive all benefits for 24 months from the termination date and the vesting of Mr. Reasons’ unvested stock options and restricted stock will be accelerated with respect to 100% of the shares subject thereto and his stock options will remain exercisable for 12 months following the termination date.
Under the Reasons Employment Agreement, upon a termination by Impax without cause or by Mr. Reasons for good reason, whether or not following a change of control, Impax’s obligation to (i) make severance payments and (ii) distribute, accelerate vesting periods or extend exercise periods with respect to restricted stock or stock options, as applicable, except for the provision of the amounts and benefits, is conditioned upon the receipt of a general release of claims from Mr. Reasons. In addition, any severance payable under the Reasons Employment Agreement which remains unpaid or other benefits yet to be received in connection with a termination by Impax without cause or by Mr. Reasons for good reason, whether or not following a change of control, will be forfeited by Mr. Reasons for failure to comply with the terms of the confidentiality and non-disclosure provisions, the non-solicitation covenants, the non-disparagement covenant, and the cooperation covenants.
Robert A. Stewart
In connection with his appointment as President of Amneal prior to the Closing and as President and Chief Executive Officer of New Amneal following the Closing, Robert A. Stewart entered into an Employment Agreement dated as of December 16, 2017 by and among Amneal, Holdco and Mr. Stewart (the “Stewart Employment Agreement”).
The initial term of the Stewart Employment Agreement began on January 25, 2018 and expires on the third anniversary of such date, unless further extended or earlier terminated as provided in the Stewart Employment Agreement. The Stewart Employment Agreement automatically renews for single one-year periods unless either party provides a written notice of non-renewal at least 90 days prior to the end of the applicable term or unless it is terminated earlier.
Under the Stewart Employment Agreement, Mr. Stewart receives an annual base salary of $1.0 million subject to increase (but not decrease), as determined by the Amneal Board or the New Amneal Board, as applicable. Mr. Stewart is also eligible to receive an annual bonus targeted at 100% of his base salary under the annual incentive program adopted by the Amneal Board based on the attainment of performance objectives established in writing by the Amneal Board, and such amount may be between zero and 150% of Mr. Stewart’s base salary. The annual bonus will be prorated for Mr. Stewart’s initial year of employment.
As provided under the Stewart Employment Agreement, on or as promptly as practicable following the Closing, but no later than 30 days immediately following the Closing, New Amneal will grant to Mr. Stewart (i) an award of restricted stock units having a grant date fair value equal to $2.5 million (the “Sign-on RSUs”); (ii) an option to purchase the number of shares of New Amneal common stock necessary for the option to have a grant date fair value of $5.0 million (the “Stewart Option”); and (iii) an award of restricted stock units having a grant date fair value equal to $2.5 million (the “Additional RSUs” and with the Sign-on RSUs, the “Stewart RSUs”). The per share exercise price of the Stewart Option will be equal to the per share fair market value of the common stock of New Amneal on the date of grant. The Stewart Option and the Stewart RSUs will vest and become exercisable with respect to 25% of the total number of shares subject to the Stewart Option and the Stewart RSUs, as applicable, on each of the first four anniversaries of the Closing, subject to Mr. Stewart’s continuous service to New Amneal through the applicable vesting date. The Stewart Option and the Stewart RSUs will otherwise be subject to the terms of the plan pursuant to which they are granted and an award agreement to be entered into between Mr. Stewart and New Amneal.
 
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The Stewart Employment Agreement provides for severance payments and benefits if (i) Mr. Stewart resigns for “good reason” (as defined in the Stewart Employment Agreement) or (ii) the Amneal Board terminates Mr. Stewart’s employment without “cause” (as defined in the Stewart Employment Agreement), in each case other than during the period that is within three months preceding or 24 months following a “change in control” (as defined in the Stewart Employment Agreement). In addition to payment of earned and vested payments and benefits, these severance payments and benefits include: (A) two times his base salary as then in effect; (B) a pro rata portion of his annual bonus for the fiscal year in which the termination occurs, based on actual performance for such fiscal year; (C) continuation of healthcare benefits until the second anniversary of his termination date; (D) the vesting and if applicable, exercisability of each outstanding equity award granted to Mr. Stewart will be accelerated to the extent such equity award would have vested had Mr. Stewart’s employment continued until the first anniversary of his termination date, provided however that if Mr. Stewart is terminated prior to the grant of the Stewart RSUs or Stewart Option and if substitute equity awards granted by
Amneal providing for an aggregate economic opportunity of not less than $10 million the (“Substitute Equity Awards”) have not been granted prior to Mr. Stewart’s termination date, then in lieu of the vesting acceleration of such equity awards, Mr. Stewart will receive a cash payment in an amount equal to $2.5 million, less withholding taxes, in a lump-sum payment on the first payroll date following the 60th day after his termination date; and (E) outplacement services by a reputable national outplacement service for up to two years following his termination date.
The Stewart Employment Agreement also provides for severance payments and benefits if (i) Mr. Stewart resigns for good reason, (ii) the Amneal Board terminates Mr. Stewart’s employment without cause or (iii) Mr. Stewart’s employment terminates by reason of death or disability (as defined in the Stewart Employment Agreement), in each case within three months preceding or 24 months following a change in control. In addition to payment of earned and vested payments and benefits, these severance payments and benefits include: (A) the sum of (x) two times his base salary as then in effect plus (y) two times his target annual bonus as then in effect; (B) a pro rata portion of his annual bonus for the fiscal year in which the termination occurs, based on actual performance for such fiscal year; (C) continuation of healthcare benefits until the second anniversary of his termination date; (D) the vesting and if applicable, exercisability of each equity award granted to Mr. Stewart will be fully accelerated, provided however that if Mr. Stewart is terminated prior to the grant of the Stewart RSUs or Stewart Option and if the Substitute Equity Awards have not been granted prior to Mr. Stewart’s termination date, then in lieu of the vesting acceleration, Mr. Stewart will receive a cash payment equal to $10 million, less withholding taxes, in a lump-sum payment on the first payroll date following the 60th day after his termination date; and (E) outplacement services by a reputable national outplacement service for up to two years following his termination date. The Combination shall not constitute a change in control under the Stewart Employment Agreement.
The Stewart Employment Agreement requires Mr. Stewart to maintain the confidentiality of information relating to Amneal and New Amneal, as applicable, during and after the term of such agreement and also contains non-competition, non-solicitation and non-disparagement covenants as well as other provisions customary for this type of employment agreement.
Andrew Boyer
In connection with his appointment as Executive Vice President, Commercial Operations of Amneal prior to the Closing and as Executive Vice President, Commercial Operations of New Amneal following the Closing, Andrew Boyer entered into an Employment Agreement, effective as of February 5, 2018, by and among Amneal, Amneal Holdings and Mr. Boyer (the “Boyer Employment Agreement”).
The initial term of the Boyer Employment Agreement began on February 5, 2018 and expires on June 30, 2021, unless further extended or earlier terminated as provided in the Boyer Employment Agreement. The Boyer Employment Agreement automatically renews for single one-year periods unless either party provides a written notice of non-renewal at least 90 days prior to the end of the applicable term or unless it is terminated earlier.
 
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Under the Boyer Employment Agreement, Mr. Boyer receives an annual base salary of $650,000 subject to increase (but not decrease), as determined by the Amneal Board or the New Amneal Board, as applicable. Mr. Boyer is also eligible to receive an annual bonus targeted at 80% of his base salary under the annual incentive program adopted by the Amneal Board based on the attainment of reasonable performance objectives established in writing by the Amneal Board, and such amount may be between zero and 150% of Mr. Boyer’s base salary. The annual bonus will be prorated for Mr. Boyer’s initial year of employment.
As provided under the Boyer Employment Agreement, on or as promptly as practicable following the Closing, but no later than 30 days immediately following the Closing, New Amneal will grant to Mr. Boyer (i) an award of restricted stock units having a grant date fair value equal to $1.0 million (the “Boyer RSUs”) and (ii) an option to purchase the number of shares of New Amneal common stock necessary for the option to have a grant date fair value of $2.0 million (the “Boyer Option”). The per share exercise price of the Boyer Option will be equal to the per share fair market value of the common stock of New Amneal on the date of grant. The Boyer Option and the Boyer RSUs will vest and become exercisable with respect to 25% of the total number of shares subject to the Boyer Option and the Boyer RSUs, as applicable, on each of the first four anniversaries of the Closing, subject to Mr. Boyer’s continuous service to New Amneal through the applicable vesting date. The Boyer Option and the Boyer RSUs will otherwise be subject to the terms of the plan pursuant to which they are granted and an award agreement to be entered into between Mr. Boyer and New Amneal. In the event that the BCA is terminated and the Closing is not consummated, Amneal will grant to Mr. Boyer, within 30 days following such event, one or more profit participation unit awards providing for an aggregate economic opportunity of not less than $3.0 million.
The Boyer Employment Agreement provides for severance payments and benefits if (i) Mr. Boyer resigns for “good reason” (as defined in the Boyer Employment Agreement) or (ii) the Amneal Board terminates Mr. Boyer’s employment without “cause” (as defined in the Boyer Employment Agreement), in each case other than during the period that is within three months preceding or 24 months following a “change in control” (as defined in the Boyer Employment Agreement). In addition to payment of earned and vested payments and benefits, these severance payments and benefits include: (A) two times his base salary as then in effect; (B) a pro rata portion of his annual bonus for the fiscal year in which the termination occurs, based on actual performance for such fiscal year, and the prior year’s bonus to the extent not then already paid (based on the higher of target or actual performance of the relevant goals); (C) continuation of healthcare benefits until the second anniversary of his termination date; (D) the vesting and if applicable, exercisability of each outstanding equity award granted to Mr. Boyer will be accelerated to the extent such equity award would have vested had Mr. Boyer’s employment continued until the first anniversary of his termination date (and, to the extent applicable, each outstanding equity award granted to Mr. Boyer will remain exercisable until the first anniversary of his termination date); and (E) outplacement services by a reputable national outplacement service for up to two years following his termination date.
The Boyer Employment Agreement also provides for severance payments and benefits if (i) Mr. Boyer resigns for good reason, (ii) the Amneal Board terminates Mr. Boyer’s employment without cause or (iii) Mr. Boyer’s employment terminates by reason of death or disability (as defined in the Boyer Employment Agreement), in each case within three months preceding or 24 months following a change in control. In addition to payment of earned and vested payments and benefits, these severance payments and benefits include: (A) the sum of (x) two times his base salary as then in effect plus (y) two times his target annual bonus as then in effect; (B) a pro rata portion of his annual bonus for the fiscal year in which the termination occurs, based on actual performance for such fiscal year, and the prior year’s bonus to the extent not then already paid (based on the higher of target or actual performance of the relevant goals); (C) continuation of healthcare benefits until the second anniversary of his termination date; (D) the vesting and if applicable, exercisability of each equity award granted to Mr. Boyer will be fully accelerated (and, to the extent applicable, each outstanding equity award granted to Mr. Boyer will remain exercisable until the first anniversary of his termination date); and (E) outplacement services by a reputable national outplacement service for up to two years following his
 
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termination date. The Combination shall not constitute a change in control under the Boyer Employment Agreement.
The Boyer Employment Agreement requires Mr. Boyer to maintain the confidentiality of information relating to Amneal and New Amneal, as applicable, during and after the term of such agreement and also contains non-competition, non-solicitation and non-disparagement covenants as well as other provisions customary for this type of employment agreement.
Amneal Pharmaceuticals, Inc. 2018 Incentive Award Plan
Eligibility and Administration
Employees, consultants and directors of New Amneal, and employees, consultants and directors of New Amneal’s subsidiaries will be eligible to receive awards under the 2018 Plan. The 2018 Plan will be administered by the New Amneal Board with respect to awards to non-employee directors and by the New Amneal compensation committee with respect to other participants, each of which may delegate its duties and responsibilities to committees of New Amneal’s directors and/or officers (referred to collectively as the plan administrator below), subject to certain limitations that may be imposed under current law (including Section 162(m) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), Section 16 of the Exchange Act, and/or stock exchange rules, as applicable). The plan administrator will have the authority to make all determinations and interpretations under, prescribe all forms for use with, and adopt rules for the administration of, the 2018 Plan, subject to the 2018 Plan’s express terms and conditions. The plan administrator will also set the terms and conditions of all awards under the 2018 Plan, including any vesting and vesting acceleration conditions.
Limitations on Awards and Shares Available
An aggregate of 23,000,000 shares of Class A common stock will initially be available for issuance under awards granted pursuant to the 2018 Plan, which shares may be authorized but unissued shares, or shares purchased in the open market. If an award under the 2018 Plan is forfeited, expires or is settled for cash, any shares subject to such award may, to the extent of such forfeiture, expiration or cash settlement, be used again for new grants under the 2018 Plan. However, the following shares may not be used again for grant under the 2018 Plan: (1) shares tendered or withheld to satisfy grant or exercise price or tax withholding obligations associated with an award; and (2) shares subject to a stock appreciation right (“SAR”) that are not issued in connection with the stock settlement of the SAR on its exercise.
Awards granted under the 2018 Plan upon the assumption of, or in substitution for, awards authorized or outstanding under a qualifying equity plan maintained by an entity with which we enter into a merger or similar corporate transaction will not reduce the shares available for grant under the 2018 Plan. The maximum aggregate value of any cash awards and equity-based awards that may be granted to any non-employee director of the New Amneal Board during any calendar year will be $700,000, with the value of any equity-based awards based on the grant date fair value of such award.
Awards
The 2018 Plan provides for the grant of stock options, including incentive stock options (“ISOs”), and nonqualified stock options (“NSOs”), restricted stock, dividend equivalents, stock payments, restricted stock units (“RSUs”), performance shares, other incentive awards (including, without limitation, phantom equity awards), SARs, and cash awards. Under current law, certain awards under the 2018 Plan may constitute or provide for a deferral of compensation, subject to Section 409A of the Code, which may impose additional requirements on the terms and conditions of such awards. All awards under the 2018 Plan will be set forth in award agreements, which will detail all terms and conditions of the awards, including any applicable vesting and
 
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payment terms and post-termination exercise limitations. Awards other than cash awards generally will be settled in shares of Class A common stock, but the plan administrator may provide for cash settlement of any award. A brief description of each award type follows.
 
 	•	 	Stock Options . Stock options provide for the purchase of shares of Class A common stock in the future at an exercise price set on the grant date. Under current law, ISOs, by contrast to NSOs, may provide tax deferral beyond exercise and favorable capital gains tax treatment to their holders if certain holding period and other requirements of the Code are satisfied. The exercise price of a stock option may not be less than 100% of the fair market value of the underlying share on the date of grant (or 110% in the case of ISOs granted to certain significant stockholders), except with respect to certain substitute options granted in connection with a corporate transaction. The term of a stock option may not be longer than ten years (or five years in the case of ISOs granted to certain significant stockholders). Vesting conditions determined by the plan administrator may apply to stock options and may include continued service, performance and/or other conditions.	
 
 	•	 	SARs . SARs entitle their holder, upon exercise, to receive an amount equal to the appreciation of the shares subject to the award between the grant date and the exercise date. The exercise price of a SAR may not be less than 100% of the fair market value of the underlying share on the date of grant (except with respect to certain substitute SARs granted in connection with a corporate transaction) and the term of a SAR may not be longer than ten years. Vesting conditions determined by the plan administrator may apply to SARs and may include continued service, performance and/or other conditions.	
 
 	•	 	Restricted Stock, RSUs and Performance Shares . Restricted stock is an award of nontransferable shares of Class A common stock that remain forfeitable unless and until specified conditions are met, and which may be subject to a purchase price. RSUs are contractual promises to deliver shares of Class A common stock in the future, which may also remain forfeitable unless and until specified conditions are met. Delivery of the shares underlying RSUs may be deferred under the terms of the award or at the election of the participant, if the plan administrator permits such a deferral. Performance shares are contractual rights to receive a range of shares of Class A common stock in the future based on the attainment of specified performance goals, in addition to other conditions which may apply to these awards. Conditions applicable to restricted stock, RSUs and performance shares may be based on continuing service, the attainment of performance goals and/or such other conditions.	
 
 	•	 	Stock Payments, Other Incentive Awards and Cash Awards . Stock payments are awards of fully vested shares of Class A common stock that may, but need not, be made in lieu of base salary, bonus, fees or other cash compensation otherwise payable to any individual who is eligible to receive awards. Other incentive awards (including, without limitation, phantom equity awards) are awards other than those enumerated in this summary that are denominated in, linked to or derived from shares of Class A common stock or value metrics related to such shares, and may remain forfeitable unless and until specified conditions are met. Cash awards are cash incentive bonuses subject to performance goals.	
 
 	•	 	Dividend Equivalents . Dividend equivalents represent the right to receive the equivalent value of dividends paid on shares of Class A common stock and may be granted alone or in tandem with awards other than stock options or SARs. Dividend equivalents are credited as of dividend record dates during the period between the date an award is granted and the date such award vests, is exercised, is distributed or expires, as determined by the plan administrator. Dividend equivalents may not be paid on awards under the 2018 Plan unless and until such awards have vested.	
Certain Transactions
The plan administrator has broad discretion to take action under the 2018 Plan. Such discretion includes the ability to make adjustments to the terms and conditions of existing and future awards to prevent the dilution or enlargement of intended benefits and to facilitate necessary or desirable changes in the event of certain transactions and events affecting Class A common stock, such as stock dividends, stock splits, mergers,
 
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acquisitions, consolidations and other corporate transactions. In addition, in the event of certain non-reciprocal transactions with New Amneal stockholders known as “equity restructurings,” the plan administrator will make equitable adjustments to the 2018 Plan and outstanding awards. In the event of a change in control of New Amneal (as defined in the 2018 Plan), to the extent that the surviving entity declines to continue, convert, assume or replace outstanding awards, then the administrator may cause all such awards to become fully vested and exercisable (including with extension of exercise periods) in connection with the transaction or to be terminated in exchange for cash, rights or other property. Individual award agreements may provide for additional accelerated vesting and payment provisions.
Foreign Participants, Clawback Provisions, Transferability, and Participant Payments
The plan administrator may modify award terms, establish subplans and/or adjust other terms and conditions of awards, subject to the share limits described above, in order to facilitate grants of awards subject to the laws and/or stock exchange rules of countries outside of the United States. All awards will be subject to the provisions of any clawback policy implemented by New Amneal to the extent set forth in such clawback policy and/or in the applicable award agreement. With limited exceptions for estate planning, domestic relations orders, certain beneficiary designations and the laws of descent and distribution, awards under the 2018 Plan are generally non-transferable prior to vesting, and are exercisable only by the participant. With regard to tax withholding, exercise price and purchase price obligations arising in connection with awards under the 2018 Plan, the plan administrator may, in its discretion, accept cash or check, shares of Class A common stock that meet specified conditions, a “market sell order” or such other consideration as it deems suitable.
Plan Amendment and Termination
The New Amneal Board may amend or terminate the 2018 Plan at any time; however, except in connection with certain changes in New Amneal’s capital structure, stockholder approval will be required for any amendment that increases the number of shares available under the 2018 Plan, “reprices” any stock option or SAR, or cancels any stock option or SAR in exchange for cash or another award when the option or SAR price per share exceeds the fair market value of the underlying shares. No award may be granted pursuant to the 2018 Plan after the tenth anniversary of the date on which the Impax Board adopts the 2018 Plan.
Summary of U.S. Federal Income Tax Consequences
The following summary of tax consequences to New Amneal and to 2018 Plan participants is intended to be used solely by stockholders in considering how to vote on this proposal and not as tax guidance to participants in the 2018 Plan. It relates only to U.S. federal income tax and does not address state, local or foreign income tax rules or other U.S. tax provisions, such as estate or gift taxes. Different tax rules may apply to specific participants and transactions under the 2018 Plan, particularly in jurisdictions outside the United States. In addition, this summary is as of the date of this prospectus; federal income tax laws and regulations are frequently revised and may be changed again at any time. Therefore, each recipient is urged to consult a tax advisor before exercising any award or before disposing of any shares of Class A common stock acquired under the 2018 Plan. This summary is subject to change to the extent that the tax consequences with respect to any awards change as a result of currently proposed U.S. tax reform legislation.
Stock Options and SARs
The grant of an option or SAR will create no tax consequences for the participant or New Amneal. A participant will have no taxable income upon exercise of an incentive stock option, except that the alternative minimum tax may apply. Upon exercise of an option other than an incentive stock option, a participant generally must recognize ordinary income equal to the fair market value of the shares of Class A common stock acquired minus the exercise price. When disposing of shares of Class A common stock acquired by exercise of an incentive stock option before the end of the applicable incentive stock option holding periods, the participant
 
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generally must recognize ordinary income equal to the lesser of (1) the fair market value of the shares of Class A common stock at the date of exercise minus the exercise price or (2) the amount realized upon the disposition of the shares of Class A common stock minus the exercise price. Otherwise, a participant’s disposition of shares of Class A common stock acquired upon the exercise of an option (including an incentive stock option for which the incentive stock option holding periods are met) generally will result in only capital gain or loss.
Other Awards
Other awards under the 2018 Plan generally will result in ordinary income to the participant at the later of the time of delivery of cash, shares of Class A common stock, or other awards, or the time that either the risk of forfeiture or restriction on transferability lapses on previously delivered cash, shares of Class A common stock or other awards.
Company Deduction
Except as discussed below, New Amneal is generally entitled to a tax deduction equal to the amount recognized as ordinary income by the participant in connection with options, SARs or other awards, but not for amounts the participant recognizes as capital gain. Thus, New Amneal will not be entitled to any tax deduction with respect to an incentive stock option if the participant holds the shares of Class A common stock for the incentive stock option holding periods.
Impact of Section 162(m) of the Code Deduction Limitation
Section 162(m) of the Code imposes a $1,000,000 cap on the compensation deduction that a public company may take in respect of compensation paid to New Amneal “covered employees” (which should include New Amneal’s Chief Executive Officer, New Amneal’s Chief Financial Officer and New Amneal’s next three most highly compensated employees), but excludes from the calculation of amounts subject to this limitation any awards that qualify for transition relief applicable to newly public companies under current law.
New Plan Benefits
The benefits that will be awarded or paid under the 2018 Plan are not currently determinable. Awards granted under the 2018 Plan are within the discretion of the New Amneal compensation committee, and the New Amneal compensation committee has not determined future awards or who might receive them.
 
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 CERTAIN RELATED PARTIES AND RELATED PARTY TRANSACTIONS
In the ordinary course of New Amneal’s business, New Amneal may enter into a number of transactions with its directors, officers, employees or stockholders, or with the directors, managers, officers, employees, members or stockholders of its affiliates. The conflicts committee (the “ Conflicts Committee ”) of the New Amneal Board is governed by a written charter of the Conflicts Committee and has the authority delegated by the New Amneal Board pursuant thereto.
Pursuant to the delegation of authority from the New Amneal Board, the Conflicts Committee is responsible for reviewing all transactions between New Amneal, its subsidiaries, or any person controlled by New Amneal and any Amneal Group Member (as defined in the Stockholders Agreement), or its directors, officers, employees, or “associates” (as defined in Rule 12b-2 promulgated under the Exchange Act) to determine whether such persons have a direct or indirect material interest in such transaction. Pursuant to delegation of authority from the New Amneal Board and the charter of the Conflicts Committee, the Conflicts Committee is also responsible for the review and approval of any transaction between (i) any Amneal Group Member, or any director, officer, employee or associate of any Amneal Group Member, on the one hand and (ii) New Amneal, or any of its subsidiaries, or any person controlled by New Amneal (collectively, the “ Company Group ”), on the other hand, which involves aggregate amounts in excess of $2,500,000 or is otherwise material to the Company Group. Based on all the relevant facts and circumstances, the Conflicts Committee will decide whether the above referenced related-party transactions with respect to New Amneal are appropriate and will approve only those transactions that are in the best interests of New Amneal.
Except as described below, each of the following transactions was entered into on an arm’s length basis, but prior to the Closing and therefore prior to the establishment of the Conflicts Committee. As such, the following transactions have not been reviewed or approved by the Conflicts Committee.
Related Party Transactions Involving Mr. Chirag Patel and Mr. Chintu Patel
As of the date of this prospectus, Messrs. Chirag Patel and Chintu Patel are the Co-Chief Executive Officers of Amneal and are each a member of the Amneal’s Board. Each of Mr. Chirag Patel and Mr. Chintu Patel are expected to serve on the New Amneal Board as co-Chairmen following the Closing.
Adello Biologics, LLC
Adello is an independent clinical stage company engaged in the development of biosimilar pharmaceutical products.
Amneal and Adello are party to a license and commercialization agreement (the “ Adello License Agreement ”) pursuant to which Adello and Amneal have agreed to cooperate with respect to certain development activities in connection with two biologic pharmaceutical products (the “ Adello Products ”). In addition, under the Adello License Agreement, Adello has appointed Amneal as its exclusive marketing partner for the Adello Products in the United States. In connection with the Adello License Agreement, Adello received an upfront payment of $1.5 million from Amneal in October 2017 and is entitled to share in Amneal’s Net Profits on the Products if and when commercialized. In addition, Adello is eligible to receive from Amneal payments of (i) up to $21 million in milestones relating to obtaining regulatory approval for the Adello Products, (ii) up to $43 million in milestones for the successful manufacture and delivery of the Adello Products, (iii) between $20 million and $50 million in milestones depending on the number of competitors for one of the Adello Products at launch and (iv) between $15 and $67.5 million for the achievement of cumulative combined Net Sales levels for the Adello Products, subject to certain conditions and the achievement of specific development and commercial objectives.
In October, 2017, Adello and a subsidiary of Amneal terminated a product development agreement pursuant to which such subsidiary and Adello had been collaborating to develop and commercialize Glatiramer Acetate
 
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products. Pursuant to the termination agreement, the parties’ activities under the product development terminated and Amneal’s subsidiary purchased Adello’s rights to receive a share of the profits from Amneal’s future commercialization of Glatiramer Acetate products in exchange for Amneal’s payment of $10.5 million to Adello.
In October, 2017, pursuant to a Deed of Transfer, Adello also sold its interest in the real property associated with Amneal’s Cashel, Ireland manufacturing facility to Amneal for a purchase price of Euro 12.5 million. Amneal financed the purchase price pursuant to the issuance of an interest-bearing, unsecured promissory note in favor of Adello payable on or before July 1, 2019.
Amneal and Adello are also party to a master services agreement (the “ Adello Services Agreement ”) pursuant to which Amneal from time to time provides human resources, product quality assurance and other services to Adello. Pursuant to the Adello Services Agreement, the total amount of net expense paid to Adello from these agreements for the years ended December 31, 2017 and 2016 was $98,000 and $67,000, respectively.
From time to time, Adello may enter into arm’s length services and other arrangements or agreements with Amneal or certain of its subsidiaries in the ordinary course, none of which is material to the business of either party.
Mr. Chirag Patel and Mr. Chintu Patel beneficially own, directly and through certain revocable or irrevocable trusts for the benefit of their immediate families, 45.5% in the aggregate of the outstanding equity securities of Adello.
AE Companies LLC
AE Companies LLC (“ AE LLC ”) is an independent company which provides certain shared services and finance, legal and other administrative functions to a number of entities with which Amneal conducts business, including Adello, AmDerma, Asana, Kashiv and Prolong.
Amneal and AE LLC are party to an Administrative & Support Services Agreement (the “ AE LLC Agreement ”) pursuant to which Amneal provides administrative services to AE LLC. The total amount of income earned from these agreements for the years ended December 31, 2017 and 2016 was $0.8 million and $1.1 million, respectively.
Mr. Chirag Patel and Mr. Chintu Patel beneficially own, through their respective revocable trusts, 50% in the aggregate of the outstanding equity securities of AE LLC.
AmDerma Pharmaceuticals, LLC and Asana Biosciences, LLC
AmDerma is an independent company engaged in the research and development of dermatological products with one product in development for the treatment of psoriasis. Asana is an independent early stage drug discovery and R&D company focusing on several therapeutic areas, including oncology, pain and inflammation. Pursuant to a development and manufacturing agreement (the “ Asana Agreement ”) between Amneal and Asana, Amneal provides development and manufacturing services to Asana with respect to certain products owned by Asana and also provides development and manufacturing services to Asana with respect to products owned by AmDerma, which is managed by Asana. Amneal received $53,000 from AmDerma during fiscal year 2016 and immaterial amounts during the year ended December 31, 2017 for services provided pursuant to the Asana Agreement, a portion of which related to Amneal’s work in connection with AmDerma’s product.
Mr. Chirag Patel and Mr. Chintu Patel beneficially own, directly and through certain revocable or irrevocable trusts for the benefit of their immediate families, 37% in the aggregate of the outstanding equity securities of AmDerma. Mr. Chirag Patel and Mr. Chintu Patel beneficially own, directly and through certain revocable or irrevocable trusts for the benefit of their immediate families, 47% in the aggregate of the outstanding equity securities of Asana.
 
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Gemini Laboratories, LLC
Gemini Laboratories, LLC (“ Gemini ”) is an independent specialty pharmaceuticals company focused on promoting niche branded products to endocrinologists, pediatricians, OB/GYNs and other specialist physicians. Gemini also engages in the wholesale distribution of generic pharmaceuticals to compounding pharmacies and to directly dispensing physicians, and promotes and distributes certain branded or quasi-branded products. Gemini predominantly sells products through branded wholesalers and certain compounding pharmacies and partners that service directly dispensing physicians.
Amneal and Gemini are party to a license, supply and distribution agreement dated as of January 1, 2014 related to certain unapproved drug products no longer marketed by Amneal. Under this agreement Amneal licensed to Gemini the rights to market, sell and distribute Phenazopyridine and Salsalate products, and to utilize the tradename Pyridium ® . Amneal earns profits on both the supply of product and royalty income received from Gemini.
Amneal and Gemini are also party to a license, supply and distribution agreement dated as of September 28, 2015 for the non-exclusive supply of certain generic drug products and the license of the trademark Activella ® . Under this agreement, Amneal non-exclusively supplies Gemini with certain generic pharmaceutical products on an arms-length basis and earns profits on both the supply of product and royalty income received from Gemini.
In addition, Amneal and Gemini are party to a license, supply and distribution agreement, dated as of April 13, 2016, pursuant to which Amneal licensed to Gemini the rights to Nizatidine oral solution and granted Gemini the right to promote, market and sell the product in the United States. Gemini is the registered owner of the trademark Axid, which it may use in conjunction with the promotion of the product.
Pursuant to the three agreements described above, total gross profit earned from the sale of inventory to Gemini for the years ended December 31, 2017 and 2016 was $2.6 million and $16.0 million, respectively. The total profit share paid by Gemini for the years ended December 31, 2017 and 2016 was $11.5 million and $14.9 million, respectively.
Amneal and Gemini are also party to a contract development, manufacturing and supply agreement, dated as of March 1, 2017 (the “ Gemini CDMO Agreement ”), pursuant to which Gemini has engaged Amneal to perform certain contract development and manufacturing services for a Gemini 505(b)(2) NDA product in development. Gemini is responsible to reimburse all of Amneal’s out-of-pocket development costs and Amneal is entitled to a royalty on the net sales of the product once it is commercialized. As of September 30, 2017, Amneal had incurred immaterial amounts in reimbursable expenses under the Gemini CDMO Agreement. No royalty income has been received during the year ended December 31, 2017, as the product is still in development.
On May 7, 2018, Amneal entered into a Purchase and Sale Agreement (the “Purchase Agreement”) with Gemini and its members (the “Gemini Sellers”), pursuant to which, among other matters and on the terms and subject to the conditions of the Purchase Agreement, Amneal purchased from the Gemini Sellers 98% of the outstanding membership interests of Gemini in exchange for aggregate consideration consisting of: (i) $40,000,000 in cash, (ii) $77,200,000 in the form of a promissory note with a six month maturity date (issued by Amneal to the Gemini Sellers and (iii) certain assumed liabilities (the “Gemini Purchase”). The Purchase Agreement contains customary representations, warranties and covenants. As the Purchase Agreement was entered into after the Closing, the Conflicts Committee of the Company’s board of directors approved the terms of the Gemini Purchase prior to Amneal’s entry into the Purchase Agreement.
From time to time, Gemini may enter into other arm’s length services and other arrangements or agreements with Amneal or certain of its subsidiaries in the ordinary course, none of which is material to the business of either party.
 
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Certain members of Mr. Chirag Patel’s and Mr. Chintu Patel’s immediate families beneficially own, indirectly through limited liability companies, 46% in the aggregate of the outstanding equity securities of Gemini.
Industrial Real Estate Holdings NY, LLC
Industrial Real Estate Holdings NY, LLC (“ Industrial Real Estate ”) is an independent real estate management entity and is the landlord Amneal’s leased manufacturing facility located at 75 Adams Street, Hauppauge, New York, pursuant to certain sublease agreements entered into by Industrial Real Estate and Amneal Pharmaceuticals of New York LLC, a subsidiary of Amneal (collectively, the “ New York Sublease Agreements ”). Pursuant to the New York Sublease Agreements, rent expense paid to Industrial Real Estate for the years ended December 31, 2017 and 2016 was $1.1 million and $1.4 million, respectively.
Mr. Chirag Patel and Mr. Chintu Patel beneficially own, directly and through certain revocable trusts for the benefit of their immediate families, 23.5% in the aggregate of the outstanding equity securities of Industrial Real Estate Holdings.
Kanan, LLC
Kanan, LLC (“ Kanan ”) is an independent real estate company and is the landlord (pursuant to lease agreements entered into with Amneal Pharmaceuticals LLC) of Amneal’s leased manufacturing facilities located at 65 Readington Road, Branchburg, New Jersey, 131 Chambers Brook Road, Branchburg, New Jersey and 1 New England Avenue, Piscataway, New Jersey, pursuant to certain lease agreements entered into by Amneal and Kanan (the “ New Jersey Lease Agreements ”). Pursuant to the New Jersey Lease Agreements, rent expense to Kanan for both the years ended December 31, 2017 and 2016 was $2.0 million.
Mr. Chirag Patel and Mr. Chintu Patel beneficially own, through certain revocable trusts, 28% in the aggregate of the equity securities of Kanan.
Kashiv Pharmaceuticals LLC
Kashiv is an independent contract development organization focused primarily on the development of 505(b)(2) NDA products utilizing its own proprietary technology platforms, particularly in the areas of abuse deterrence and bioavailability enhancement. Amneal and Kashiv are party to a multi-product development agreement, dated as of August 1, 2011 (the “ Kashiv Multi-Product Agreement ”), pursuant to which Amneal and Kashiv have agreed to collaborate on the development and commercialization of a number of generic pharmaceutical products. Pursuant to the Kashiv Multi-Product Agreement, Kashiv provides services (at Amneal’s direction) for the development of a given product, including analytical and formulation development. In exchange for the services it provides, Kashiv is entitled to receive 20% of the net profits realized with respect to Amneal’s sales of such product.
Amneal and Kashiv were party to a product development agreement, dated as of January 1, 2012 (the “ Estradiol Kashiv Agreement ”), pursuant to which Amneal and Kashiv have agreed to collaborate on the development and commercialization of Estradiol Vaginal Tablets (the “ Estradiol Product ”). Pursuant to the Estradiol Kashiv Agreement, the Estradiol Product was originally owned by Kashiv, with Amneal acting as the exclusive marketing partner under the Estradiol Kashiv Agreement. In June, 2017, Amneal acquired from Kashiv all rights to the Estradiol Product and bought out its royalty obligation to Kashiv with respect to a second product, aspirin dipyridamole extended release capsules, in exchange for payment by Amneal to Kashiv of $25 million and pursuant to a Product Acquisition and Royalty Stream Purchase Agreement dated as of June 29, 2017 (the “ Product and Royalty Purchase Agreement ”). Pursuant to the Product and Royalty Purchase Agreement, Kashiv is also entitled to payment of an addition $10 million if, as of June 30, 2018, certain conditions relating to the Estradiol Product have been met.
 
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Amneal and Kashiv are party to a product development agreement, dated as of August 9, 2013 (the “ Oxycodone Kashiv Agreement ”), pursuant to which Amneal and Kashiv have agreed to collaborate on the development and commercialization of Oxycodone HCI ER Oral Tablets (the “ Oxycodone Product ”). Pursuant to the Oxycodone Kashiv Agreement, the Oxycodone Product is owned by Kashiv, with Amneal acting as the exclusive marketing partner and as Kashiv’s agent for filing an ANDA related to the Oxycodone Product. In October of 2017, Amneal and Kashiv entered into a letter agreement to terminate the Oxycodone Kashiv Agreement prior to the closing of the Combination, subject to Amneal’s confirmation that the Combination will be completed. In the event that the Oxycodone Kashiv Agreement is terminated, Kashiv will be obligated to reimburse Amneal approximately $7.8 million in third party expenses incurred by Amneal in connection with the development of the Oxycodone Product.
Pursuant to the three agreements described above, the total profit share paid to Kashiv for the years ended December 31, 2017 and 2016 was $10.3 million and $5.3 million, respectively.
Amneal and Kashiv are party to a sublease agreement, dated as of May 1, 2013 (the “ Kashiv Sublease ”) pursuant to which Amneal, as sublandlord, leases to Kashiv a building comprising approximately 143,000 square feet of multipurpose space in Bridgewater, New Jersey to Kashiv, as subtenant, for the purposes of pharmaceutical R&D, manufacturing, office space, warehousing and ancillary uses. The original term of the sublease expired on April 30, 2016 but is subject to renewal for successive one year terms unless either party gives the other 12 months prior notice of its election to terminate the sublease. Pursuant to the Kashiv Sublease, rental income from the related-party sublease for the years ended December 31, 2017 and 2016 was $1.9 million and $1.8 million, respectively.
From time to time, Kashiv may enter into arm’s length services and other arrangements or agreements with Amneal or certain of its subsidiaries in the ordinary course, none of which is material to the business of either party.
Mr. Chirag Patel and Mr. Chintu Patel beneficially own, directly and through certain revocable or irrevocable trusts for the benefit of their immediate families, 43.875% in the aggregate of the outstanding equity securities of Kashiv.
Nava Pharma, LLC and PharmaSophia, LLC
PharmaSophia, LLC (“PharmaSophia”) is a joint venture formed by Nava Pharma, LLC (“ Nava ”) and Oakwood Laboratories, LLC for the purpose of developing certain products. PharmaSophia and Nava are parties to a research and development agreement (the “ Nava PharmaSophia Agreement ”) pursuant to which Nava provides R&D services to PharmaSophia. Nava and Amneal are party to a subcontract agreement (the “ Nava Amneal Subcontract Agreement” ) pursuant to which Nava has subcontracted certain of its obligations under the Nava PharmaSophia Agreement to Amneal and Amneal performs such services. Pursuant to the Nava Amneal Subcontract Agreement, the total amount of income earned from these agreements for both the years ended December 31, 2017 and 2016 was $0.3 million.
Mr. Chirag Patel and Mr. Chintu Patel beneficially own, directly and through certain revocable or irrevocable trusts for the benefit of their immediate families, 37.5% in the aggregate of the outstanding equity securities of Nava. Nava beneficially owns 50% of the outstanding equity securities of PharmaSophia.
Employment and Shareholder Arrangements With Immediate Family Members
Vikrant Patel, a brother-in-law of Chirag and Chintu Patel, who are Co-Chairmen of the New Amneal Board, is employed by us as Senior Director, Information Technology. During each of the years ended December 31, 2015, 2016 and 2017, Mr. Vikrant Patel had total compensation of approximately $194,000.
 
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Kanubhai Patel, Chirag and Chintu Patel’s father, is employed by us as the Chairman of Amneal Pharmaceuticals India Private Limited (“Amneal India”). During each of the years ended December 31, 2015, 2016 and 2017, Mr. Kanubhai Patel had total compensation of approximately $327,000.
In exchange for certain ownership rights in and services provided to Amneal’s Indian business, Kanubhai Patel, Sureshbhai Patel and Nikunj Patel (Chirag and Chintu Patel’s father, uncle and cousin, respectively, and collectively, the “Amneal India Family Members”) will receive approximately $6.6 million, $825,000, and $4.1 million respectively in cash.
Kanubhai Patel, Bindu Patel and Vikrant Patel (Chirag and Chintu Patel’s father, sister and brother-in-law, respectively) are holders of profit participation units in Amneal. In connection with the Combination, they received approximately $3.8 million, $0.3 million, and $0.3 million respectively in cash and shares of the Company.
Agreements Entered into in Connection with the Combination and the PIPE Investment
Stockholders Agreement
On October 17, 2017, Holdco and the Existing Amneal Members entered into a stockholders agreement that was subsequently amended and restated on December 16, 2017. (the “ Stockholders Agreement ”), which sets forth, among other things, certain rights and obligations of the Existing Amneal Members and Holdco with respect to the corporate governance of New Amneal, transfer restrictions on shares held by Amneal Group Members and their affiliates, acquisitions of common stock by Amneal Group Members and their affiliates or dispositions of shares held by Amneal Group Members and their affiliates, preemptive rights and related party transactions.
The following summary of the terms of the Stockholders Agreement is not a complete description thereof and is qualified in its entirety by the full text thereof. For purposes of this summary, a reference to Amneal Group Members’ affiliates does not include New Amneal.
Corporate Governance
Board Composition.
The Stockholders Agreement provides that the board of directors of New Amneal (the “ New Amneal Board ”) will consist of no more than 13 members, subject to increase for a Qualifying Investor (as defined below). If an Executive Event has occurred, the New Amneal Board will consist of no more than 11 members, subject to an increase for a Qualifying Investor.
Qualifying Investor.
 
 	•	 	In the event that Amneal Holdings and its permitted transferees transfer more than 4% of the outstanding New Amneal Shares to an investor pursuant to privately negotiated sales exempt from registration requirements of the Securities Act (a “ Qualifying Investor ”) and, following such transfer, Amneal Group Members continue to beneficially own more than 50% of the outstanding New Amneal Shares, then Amneal Holdings will have a one-time right to increase the size of the New Amneal Board by two directors and fill the vacancies with one new director designated by Amneal Holdings and one new director designated by the Qualifying Investor. Such Qualifying Investor may designate a board observer if it has not appointed a director.	
 
 	•	 	In the event that Amneal Group Members transfer more than 5% of the outstanding New Amneal Shares to a Qualifying Investor, and, immediately prior to or following such transfer, Amneal Group Members beneficially own less than 50% of the outstanding New Amneal Shares, then Amneal Holdings will have a one-time right to replace any exiting Amneal director with a director designated by such a Qualifying Investor.	
 
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 	•	 	For so long as the Existing Amneal Members or any of their affiliates, successors and permitted assigns to which any New Amneal Shares have been transferred in accordance with the Stockholders Agreement (each an “ Amneal Group Member ” and collectively, “ Amneal Group ”) continue to beneficially own more than 50% of the outstanding New Amneal Shares, directors designated by Amneal Holdings will have the right to designate the Co-Chairmen of the New Amneal Board, and the Non-Amneal Directors will have the right to designate the Lead Independent Director of the New Amneal Board.	
For so long as the Amneal Group Members continue to beneficially own more than 50% of the outstanding New Amneal Shares, Amneal Holdings will have the right to designate for nomination the lowest number of Amneal designees that constitute a majority of the total number of directors comprising the New Amneal Board. New Amneal will cause such nominee(s) to be included in the slate of nominees recommended by the New Amneal Board to holders of New Amneal Shares for election (including at any special meeting of stockholders held for the election of directors). Seventy-five percent (75%) of the directors serving on the Nominating Committee will be required to approve (i) a decision not to nominate any initial directors of the New Amneal Board for re-election to the New Amneal Board at either of the first two annual meetings of stockholders of New Amneal following the Closing Date and (ii) until the third annual meeting of stockholders of New Amneal following the Closing Date, any change to the individuals serving as Chairman or Co-Chairmen of the New Amneal Board.
If the Amneal Group Members beneficially own less than 50% but more than 10% of the outstanding New Amneal Shares, Amneal Holdings will have the right to designate a number of directors proportionate to the beneficial ownership of outstanding New Amneal Shares by the Amneal Group Members (rounded up to the nearest whole number).
With respect to the Amneal Directors, until the Trigger Date, any vacancy will be filled by the New Amneal Board with a director designated by Amneal Holdings, except when such vacancy is created when the number of the Amneal Directors then serving on the New Amneal Board is in excess of the number of Amneal designees Amneal Holdings has the right to designate under the New Amneal Bylaws and the Stockholders Agreement.
With respect to the Non-Amneal Directors, the Nominating Committee will fill any vacancy (other than the CEO of New Amneal with a person who satisfies all the qualifications of an Independent Director, subject to the prior written consent of the Conflicts Committee.
Committees.
The New Amneal Board will initially have the following committees: (i) Audit Committee, (ii) Nominating Committee, (iii) Compensation Committee, (iv) Conflicts Committee, and (v) Integration Committee. The formation of, composition of, and amendment to the charter of any other committee requires the approval of 75% of the directors of the New Amneal Board.
Nominating and Compensation Committees. Amneal Holdings will have the right to nominate two of the four directors serving on each of the Nominating Committee and Compensation Committee for so long as the Amneal Group Members beneficially own more than 50% of the outstanding New Amneal Shares. The remaining directors will be designated by a majority of the Independent Directors of the New Amneal Board.
An “ Independent Director ” is a director who:
 
 	•	 	meets the independence standards under the NYSE rules;	
 
 	•	 	is not a director designated by Amneal Holdings;	
 
 	•	 	is not a current or former member of the board of directors of any Amneal Group Member or its affiliates or officer or employee of any Amneal Group Member or its affiliates;	
 
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 	•	 	does not have and has not had any other material relationship with Amneal or its affiliates; and	
 
 	•	 	is designated by the Conflicts Committee as an “Independent Director.”	
Conflicts Committee. Until the Trigger Date, the New Amneal Board will have a Conflicts Committee comprised solely of Independent Directors. Any amendments to the Conflicts Committee charter will be approved by (i) 75% of the directors of the New Amneal Board, (ii) a majority of the Independent Directors, and (iii) a majority of the Conflicts Committee. The responsibilities of the Conflicts Committee include approval of certain transfers of New Amneal Shares by an Amneal Group Member to third parties, approval of any related party transactions, and approval of any material amendment to the Stockholders Agreement, as set forth in the Conflicts Committee charter, the form of which is attached as Exhibit A to the Stockholders Agreement.
Integration Committee. For a minimum of two years following the Closing, the Integration Committee will serve as an advisory committee to management in connection with the integration of Impax and Amneal. The Integration Committee will be comprised of Chirag Patel, Chintu Patel and Paul M. Bisaro.
Other Committees . Until the Trigger Date, each committee of the New Amneal Board will include at least one director designated by Amneal Holdings, subject to the applicable NYSE requirements. If at any time, any committee (other than the Conflicts Committee) does not have at least one such Amneal-designated director, Amneal Holdings will be entitled to designate a director to have observer rights. The formation and composition of any committee not specified above requires the approval of 75% of the New Amneal Board.
Chief Executive Officer. Robert A. Stewart will be the CEO of New Amneal following the Closing, unless an Executive Event has occurred. If an Executive Event has occurred, Paul M. Bisaro, the current CEO of Impax, will be the CEO of New Amneal, and for 18 months following the Closing, the removal of Paul M. Bisaro as CEO will require the approval of (i) a majority of the New Amneal Board and a majority of the Non-Amneal Directors (other than Paul M. Bisaro).
Executive Chairman . If and only if an Executive Event has not occurred, Paul M. Bisaro, the current CEO of Impax, will be the Executive Chairman of New Amneal following the Closing. For 18 months following the Closing, the removal of Paul M. Bisaro as the Executive Chairman will require the approval of (i) a majority of the New Amneal Board and a majority of the Non-Amneal Directors (other than Paul M. Bisaro).
Amneal Agreement to Vote. From the Closing and until the Trigger Date, Amneal Group must cause its New Amneal Shares to be present for quorum purposes at any New Amneal Stockholders meeting, vote in favor of all director designees recommended by the New Amneal Board, and not vote in favor of the removal of any Non-Amneal Director, unless such removal is recommended by the Nominating Committee.
Amneal Consent Rights. For so long as Amneal Group Members beneficially own more than 25% of the outstanding New Amneal Shares, New Amneal will not take the following actions without obtaining prior consent by Amneal Holdings:
 
 	•	 	amend, modify, or repeal any provision of the New Amneal Charter or the New Amneal Bylaws in a manner that adversely impacts any Amneal Group Member;	
 
 	•	 	effect any change in the authorized number of directors, except pursuant to the Stockholders Agreement;	
 
 	•	 	create or reclassify any new or existing class or series of capital stock to grant rights, preferences, or privileges with respect to voting, liquidation, redemption, conversion or dividends that are senior to or on parity with those of the New Amneal Shares; or	
 
 	•	 	consummate any transaction as a result of which (a) more than 50% of the outstanding New Amneal Shares will be beneficially owned by any persons other than Amneal Group Members and (b) any Amneal Group Member receives an amount or form of consideration different that which is granted to from other holders of New Amneal Shares.	
 
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Restrictions on Transfers and Acquisitions
Lock-up. During the Lock-up Period, no Amneal Group Member may transfer any New Amneal Shares, unless with the prior written consent of the Conflicts Committee, subject to the following exceptions:
 
 	•	 	a transfer of New Amneal Shares pursuant to a tender or exchange offer that has been approved or recommended by the New Amneal Board;	
 
 	•	 	a transfer of New Amneal Shares pursuant to any (a) merger, share exchange, consolidation, recapitalization or similar transaction resulting, directly or indirectly, in more than 50% of the total number of shares of outstanding New Amneal Shares being beneficially owned after such transaction by any person or persons other than the Amneal Group or (b) a sale of all or substantially all of the assets of New Amneal (a “ Company Sale ”);	
 
 	•	 	a transfer of New Amneal Shares to an affiliate;	
 
 	•	 	a transfer of New Amneal Shares in connection with any pledge of any Amneal Group Member’s New Amneal Shares made pursuant to a bona fide loan or financing transaction with a third party;	
 
 	•	 	with respect to any Amneal Group Member that is an individual, a transfer of New Amneal Shares (x) to such Amneal Group Member’s ancestors, descendants, siblings, cousins or spouse, (y) to trusts for the benefit of such Amneal Group Member or such persons or (z) by way of bequest or inheritance upon death (provided that such transferee agrees in a writing to be bound by the terms of the Stockholders Agreement as an Amneal Group Member);	
 
 	•	 	with respect to any Amneal Group Member that is an entity, a transfer of New Amneal Shares to such Amneal Group Member’s members, partners or other equity holders (provided that such transferee agrees in a writing to be bound by the terms of the Stockholders Agreement as an Amneal Group Member); and	
 
 	•	 	solely until the Closing Date, one or more transfers by any Amneal Group Member of up to a total of 60,000,000 Class A common stock or Class B-1 common stock, in the aggregate (which 60,000,000 shares include the 46,849,316 Class A common stock or Class B-1 common stock to be transferred to the PIPE Investors).	
Following the expiration of the Lock-up Period, Amneal Group Members may transfer of New Amneal Shares:
 
 	•	 	in a registered offering pursuant to the procedures described in Article V of the Stockholders Agreement (including, for the avoidance of doubt, the resale of New Amneal Shares by Amneal Group registered pursuant to a shelf registration statement, once declared effective under the Securities Act);	
 
 	•	 	in open market sales pursuant to, if available, Rule 144 under the Securities Act; provided, however, that Amneal Group may not, in the aggregate, transfer more than 15% of the outstanding shares of Class A common stock pursuant to the terms of the Stockholders Agreement in any 12-month period without the approval of the Conflicts Committee;	
 
 	•	 	in one or more privately negotiated sales exempt from the registration requirements of the Securities Act (a “ PIPE Transaction ”); provided, however, that the Amneal Group may not, in the aggregate, transfer more than 15% of the outstanding shares of Class A common stock pursuant to the Stockholders Agreement in any 12-month period without the approval of the Conflicts Committee;	
 
 	•	 	with the prior written consent of the Conflicts Committee; or	
 
 	•	 	as otherwise permitted during the Lock-up Period.	
However, without the approval of the Conflicts Committee, Amneal Group Members will be prohibited from making transfers of New Amneal Shares (i) if after such transfer, such transferee or group of transferees
 
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that would own more than 15% of the voting power of the outstanding New Amneal Shares or (ii) to any New Amneal Shares to any person or group who, prior to such transfer, beneficially owned 15% or more of the outstanding New Amneal Shares. This 15% ownership restriction will not apply to widely distributed public offerings of Shares and is subject to other customary exceptions.
Transfers to Affiliates. At any time, an Amneal Group Member may transfer New Amneal Shares to an affiliate of such Amneal Group Member.
Standstill Provisions. Until the earlier of (i) the third anniversary of the Closing Date and (ii) such time when the Amneal Group Members beneficially own less than 20% of the outstanding New Amneal Shares, the Amneal Group will not, without the prior written consent of the Conflicts Committee, directly or indirectly, alone or in concert, be permitted to:
 
 	•	 	acquire beneficial ownership of New Amneal Shares; provided, that when such acquisition is effected after Amneal Holdings loses the right to designate one or more directors due to the issuance of securities by New Amneal or the transfer of securities by an Amneal Group Member, then Amneal Group will be permitted to acquire up to the number of shares needed to regain the right to designate such number of the Amneal Directors that Amneal Holdings was entitled to designate immediately prior to such issuance or transfer, plus 1% of the outstanding New Amneal Shares;	
 
 	•	 	publicly seek a change in the composition or size of the New Amneal Board, except in furtherance of the provisions of the Stockholders Agreement;	
 
 	•	 	deposit any New Amneal Shares into a voting trust or subject any such stock to any proxy or agreement that conflicts with Amneal’s obligations under the Stockholders Agreement;	
 
 	•	 	publicly initiate, publicly propose or publicly announce any intention to participate in any “solicitation” of “proxies” to vote (as such terms are defined in Regulation 14A under the Exchange Act) with respect to the election of the Non-Amneal Directors or the removal of any Non-Amneal Directors or publicly become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to the election of the Non-Amneal Directors or the removal of any Non-Amneal Director; or	
 
 	•	 	call for any general or special stockholders meeting or publicly solicit proxies in connection with the election and removal of Non-Amneal Directors.	
Amneal Buyout Transactions. Any proposal by an Amneal Group Member to acquire all outstanding New Amneal Shares held by all other stockholders (other than other Amneal Group Members) must be approved by the Conflicts Committee and, as long as the Amneal Group Members beneficially own more than 37.5% of the outstanding New Amneal Shares, be subject to a non-waivable condition that a majority of the voting power of the outstanding New Amneal Shares held by such other stockholders approve the transaction.
Approvals of Certain Taxable Transactions. For so long as the Amneal Group beneficially owns either (a) shares of Class B common stock representing at least 10% of the outstanding New Amneal Shares or (b) at least 45,000,000 New Amneal Shares (as adjusted for any capital structure change), New Amneal must obtain the approval of Amneal Holdings before consummating any transaction involving New Amneal or any of its subsidiaries that would reasonably be expected to result in the recognition of $40,000,000 or more of taxable income or gain by Amneal Group.
PIPE Investment
As described under “The Combination and the PIPE Investment,” in connection with the Combination and the PIPE Investment, members of the Amneal Group entered into the PIPE Purchase Agreement with select institutional investors, including the PIPE Investors. Pursuant to the PIPE Purchase Agreement, upon the Closing
 
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of the Combination, members of the Amneal Group exercised their right to cause Amneal to redeem the Redeemed Units held by such members pursuant to the LLC Agreement. In connection with such redemption, such members of the Amneal Group received shares of Class A common stock or shares of Class B-1 common stock in exchange for such Redeemed Units, in each case pursuant to the LLC Agreement (such redemption and issuance of Class A common stock and Class B-1 common stock to the members of the Amneal Group, the “ Redemption ”). Following the Redemption, the members of the Amneal Group sold such shares of Class A common stock and Class B-1 common stock to the PIPE Investors at a per share purchase price of $18.25 for gross proceeds of approximately $855,000,000. Following the PIPE Investment, the PIPE Investors own collectively approximately 15% of the New Amneal Shares on a fully diluted and as converted basis, with TPG owning all outstanding shares of Class B-1 common stock.
In connection with the Combination and in furtherance of the PIPE Investment, TPG, Amneal Holdings and Holdco entered into the PIPE Side Letter providing for certain rights and obligations of each in connection with the PIPE Investment. Pursuant to the PIPE Side Letter, TPG has customary registration rights with respect to the New Amneal Shares owned by it. The PIPE Side Letter also provides TPG the right to designate a board observer with respect to the New Amneal Board, as well as the right, subject to certain ownership thresholds discussed herein, to designate a director for appointment to the New Amneal Board.
Registration Rights Agreement
We entered into a Registration Rights Agreement with the PIPE Investors in connection with the closing of the Combination. The Registration Rights Agreement provides the PIPE Investors certain registration rights whereby Amneal Holdings and Impax will be required to jointly prepare and file with the SEC a shelf registration statement on Form S-1 with respect to resales of all shares of Class A common stock beneficially owned by Amneal Holdings (“Registrable Shares”). We will use our reasonable best efforts to become eligible to use Form S-3 and, upon becoming eligible, we will promptly file a shelf registration statement on Form S-3. The Registration Rights Agreement also provides for piggyback registration rights for the Original SSE Equity Owners. See “Shares Eligible for Future Sale—Registration Rights” for more information.
Tax Receivable Agreement
Pursuant to the LLC Agreement, Amneal Holdings and its permitted transferees have the right to redeem all or a portion of its Amneal Common Units for Class A common stock or Class B-1 common stock. In connection with such redemption, New Amneal will receive a “step-up” in its share of the tax basis in the Amneal assets and possibly certain other tax benefits, and New Amneal will pay the Members (as defined below) for the value of such benefits.
The following summary of the terms of the Tax Receivable Agreement is not a complete description thereof and is qualified in its entirety by the full text thereof.
At Closing, New Amneal, Amneal and Amneal Holdings entered into the Tax Receivable Agreement. The Tax Receivable Agreement governs the administration and allocation between the parties of tax liabilities and benefits arising prior to, as a result of, and subsequent to the Combination, and the respective rights, responsibilities and obligations of the Members and New Amneal with respect to various other tax matters. The term “Members” includes the then existing members of Amneal at Closing (other than New Amneal) and any persons who have executed and delivered a joinder in accordance with the Tax Receivable Agreement.
Determination of Realized Tax Benefit
Under the Tax Receivable Agreement, New Amneal will ensure that Amneal and its subsidiaries that are treated as a partnership for U.S. federal income tax purposes will have in effect an election under Section 754 of the Code.
 
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Basis Schedules
Within 90 days after the filing of the U.S. federal income tax return of New Amneal for each relevant taxable year, New Amneal will at its own expense deliver to the Members a schedule that shows (a) the basis adjustments with respect to the reference assets as a result of the relevant exchanges effected in such taxable year, calculated (i) in the aggregate and (ii) solely with respect to exchanges by the applicable Member; (b) the period (or periods) over which the reference assets are amortizable and/or depreciable; and (c) the period (or periods) over which each basis adjustment is amortizable and/or depreciable.
Tax Benefit Schedules
Within 90 days after the filing of the U.S. federal income tax return of New Amneal for any taxable year in which there is a realized tax benefit or realized tax detriment, New Amneal shall, at its own expense, deliver to the Members a schedule showing the calculation of the realized tax benefit or realized tax detriment for such taxable year.
Tax Benefit Payments
Each Member is entitled to receive an amount equal to the sum of (1) 85% of the cumulative net realized tax benefit attributable to such Member as of the end of such taxable year over the aggregate amount of all tax benefit payments previously made to such Member, and (2) the interest calculated at the agreed rate from the due date for filing the U.S. federal income tax return of New Amneal for such taxable year until the date on which New Amneal makes a timely tax benefit payment to the Member.
Approvals by Amneal Holdings
New Amneal and its subsidiaries must obtain prior written consent from Amneal Holdings before (i) making a disposition of any assets held by Amneal or its subsidiaries prior to the Closing if the cumulative “amount realized” (as such term is defined for U.S. federal income tax purposes) for all such dispositions in any 12-month period would be in excess of $40,000,000 unless New Amneal agrees to use its best efforts to ensure that each Member receives tax distributions equal to its assumed tax liability, (ii) making certain acquisitions that would reasonably be expected to materially adversely affect any member’s rights or obligations under the Tax Receivable Agreement, or (iii) entering into certain additional agreements with other persons that are similar to the Tax Receivable Agreement.
Termination
New Amneal may terminate the Tax Receivable Agreement with the written approval of a majority of the independent directors of the New Amneal Board by making a payment to the Members, equal to the present value of the tax benefit payments to be paid to each such Member, discounted at the lesser of ICE LIBOR plus 100 basis points or 6.50% per annum, compounded annually (an “ Early Termination Payment ”). The Tax Receivable Agreement will also be deemed to be terminated by New Amneal and an Early Termination Payment by New Amneal will be required in the event of either (a) a Change of Control (as defined below) or (b) a material breach by New Amneal of any of its material obligations under the Tax Receivable Agreement.
A “ Change of Control ” includes (a) any person other than Amneal Holdings and its permitted transferes beneficially owning more than 50% of the combined voting power of New Amneal; (b) the liquidation or dissolution of New Amneal, or the sale of all or substantially all of the assets of New Amneal, unless the sale is to an entity of which at least 50% of the combined voting power is owned by New Amneal Stockholders who owned New Amneal immediately prior to such sale in substantially the same proportions; (c) a business combination of New Amneal or any of its subsidiaries with any other entity, after which the New Amneal Board immediately prior to such combination does not constitute at least a majority of the board of directors of the
 
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surviving company or its parent, or all of the beneficial owners of the voting securities of New Amneal prior to such combination do not beneficially own more than 50% of the combined voting power of the surviving entity; and (d) the following individuals ceasing to constitute a majority of the New Amneal Board: (i) the directors of New Amneal as of the Closing (“Initial Directors”) and (ii) any new director whose appointment or nomination was approved by at least two-thirds of the directors who were (x) Initial Directors or (y) whose appointment or nomination was approved by at least two-thirds of the Initial Directors.
LLC Agreement
In connection with the Combination, Amneal, New Amneal and the Existing Amneal Members (and Amneal Holdings, following the assignment and transfer by the Existing Amneal Members of Amneal Common Units to Amneal Holdings) entered into and are governed by the LLC Agreement, which sets forth, among other things, certain transfer restrictions on Amneal Common Units, and rights to redeem Amneal Common Units in certain circumstances. The following summary of the terms of the LLC Agreement is not a complete description thereof and is qualified in its entirety by the full text thereof.
Appointment of New Amneal as Manager
Under the LLC Agreement, New Amneal is admitted as the sole managing member of Amneal. As the managing member, New Amneal will conduct, direct and exercise full control over all activities of Amneal, including day-to-day business affairs and decision-making of Amneal, without the approval of any other member. As such, New Amneal, through Amneal’s officers, will be responsible for all operational and administrative decisions of Amneal and the day-to-day management of Amneal’s business.
Pursuant to the terms of the LLC Agreement, New Amneal will not be permitted, under any circumstances, to be removed as managing member by the members of Amneal. New Amneal will not resign or cease to be the managing member unless proper provision is made for the obligations of New Amneal to remain in full force and effect.
The managing member may cause Amneal to contract with the managing member or any affiliate of the managing member as long as the contracts are on terms comparable to those available to others dealing at arm’s length or are approved by the members (other than the managing member and its controlled affiliates) holding a majority of the Amneal Common Units.
Officers
The managing member will appoint the officers of Amneal to implement the day-to-day business and operations of Amneal. In the event of a vacancy, the managing member has the right to appoint a new officer to fill the vacancy. At the Closing, the managing member will appoint the CEO of New Amneal to serve as the CEO of Amneal until his death or until he resigns or is removed by the managing member. The managing member may remove any officer with or without cause.
Compensation
New Amneal will not be entitled to compensation for its services as managing member. It will be entitled to reimbursement by Amneal for reasonable fees and expenses incurred on behalf of Amneal, except for payment obligations of New Amneal under the Tax Receivable Agreement.
Units
The LLC Agreement provides that at the Closing there will be one class of Amneal Common Units. In accordance with the BCA, all Amneal Common Units held by the Existing Amneal Members prior to the
 
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execution of the LLC Agreement are converted into Amneal Common Units. The managing member may establish additional securities of Amneal in its discretion in accordance with the terms, and subject to the restrictions of, the LLC Agreement. The managing member may create one or more classes or series of Amneal Common Units or preferred units solely to the extent they are in the aggregate substantially equivalent to a class of common stock of Amneal or class or series of preferred stock of Amneal.
Allocations and Distributions
Allocations.
Pursuant to the LLC Agreement, items of income, gain, loss or deduction of Amneal generally will be allocated among the members for capital accounts on a pro rata basis in accordance with each member’s percentage interest, except that partner nonrecourse deductions attributable to partner nonrecourse debt will be allocated in the manner required by the Treasury Regulations Section 1.704-2(i). Nonrecourse deductions for any taxable year will be allocated pro rata among the members in accordance with their percentage interests.
Distributions.
Amneal may make distributions out of distributable cash and other funds or property to its members from time to time at the discretion of the managing member of Amneal. Such distributions generally will be made to the members on a pro rata basis in proportion to the number of Amneal Common Units held by each member on the record date for the distribution. Amneal will not be required to make distributions to the extent that such distributions would render Amneal insolvent or if such distribution would violate any applicable law or the terms of the any credit agreement in existence at Closing.
Tax Distributions.
In connection with any tax period, Amneal will be required to make distributions to its members, on a pro rata basis in proportion to the number of Amneal Common Units held by each member, of cash until each member (other than New Amneal) has received an amount at least equal to its assumed tax liability and New Amneal has received an amount sufficient to enable it to timely satisfy all of its U.S. federal, state and local and non-U.S. tax liabilities, and meet its obligations pursuant to the Tax Receivable Agreement. To the extent that any member does not receive its percent interest of the aggregate tax distribution, the tax distribution for such member will be increased to ensure that all distributions are made pro rata in accordance with such member’s percentage interest.
Repurchase or Redemption of Amneal Common Units
Upon written notice to Amneal and New Amneal, each member is entitled to cause Amneal to effect a redemption (a “Redemption”) of all or any portion of its Amneal Common Units in exchange for the number of shares of Class A common stock or Class B-1 common stock equal to the number of redeemed Amneal Common Units (the “Share Settlement”) or, at Amneal’s election, cash in an amount equal to the product of the Share Settlement and the average of the volume-weighted closing price for a share of Class A common stock on the NYSE for the five consecutive full trading days ending on and including the last full trading day immediately prior to the redemption notice date, subject to appropriate and equitable adjustment for any stock splits, reverse splits, stock dividends or similar events affecting the Class A common stock (the “Cash Settlement”). New Amneal may, in its sole and absolute discretion, elect to effect the exchange of the redeemed Amneal Common Units for the Share Settlement or Cash Settlement, at New Amneal’s option, through a direct exchange of such redeemed Amneal Common Units and such consideration between the redeemed member and New Amneal. See “Exchanges of Amneal Common Units for Class A Common Stock.”
 
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Transfer Restrictions
No interest in Amneal may be transferred except as permitted under the LLC Agreement. The LLC Agreement permits transfers:
 
 	(iv)	by a member to an affiliate of such member;	
 
 	(v)	by the Existing Amneal Members or any direct or indirect transferee of such members (including Amneal Holdings):	
 
 	(A)	with the prior written consent of the conflicts committee,	
 
 	(B)	in response to a tender or exchange offer that has been approved or recommended by the New Amneal Board;	
 
 	(C)	in connection with any Company Sale;	
 
 	(D)	that is an individual, (1) to such Existing Amneal Member’s (or such transferee’s) spouse, (2) to such Existing Amneal Member’s (or such transferee’s) lineal ancestors, lineal descendants, siblings, cousins or the spouses thereof, (3) to trusts for the benefit of such Existing Amneal Member (or such transferee) or such persons, (4) to foundations established by such Existing Amneal Member (or such transferee) or such persons or affiliates thereof or (5) by way of bequest or inheritance upon death;	
 
 	(E)	that is an entity, to such Existing Amneal Member’s (or such transferee’s) members, partners or other equity holders; or	
 
 	(F)	of up to a total of 60,000,000 Amneal Common Units; or	
 
 	(vi)	pursuant to a Redemption or direct exchange as described above.	
Dissolution
The LLC Agreement provides that the unanimous consent of at least 75% of all members holding Amneal Common Units will be required to voluntarily dissolve Amneal. In addition to a voluntary dissolution, Amneal may be dissolved upon the entry of a decree of judicial dissolution or upon other circumstances in accordance with Delaware law. Upon a dissolution event, the proceeds of liquidation will be distributed in the following order: (i) to pay the expenses of winding up Amneal; (ii) to pay debts and liabilities owed to creditors of Amneal; and (iii) to the members pro rata in accordance with their respective percentage ownership interests in Amneal.
Corporate Opportunities and Waiver of Fiduciary Duty
The LLC Agreement provides that, notwithstanding any duty, including fiduciary duty, otherwise applicable at law or in equity, the doctrine of corporate opportunity, or any analogous doctrine, will not apply to any member or related person of such member, and no member or related person of such member that acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for Amneal or the members will have any duty to communicate or offer such opportunity to Amneal or the members, or to develop any particular investment, and such person will not be liable to Amneal or the members for breach of any fiduciary or other duty (other than fiduciary duties owed to New Amneal) by reason of the fact that such person pursues or acquires for, or directs such opportunity to, another person or does not communicate such investment opportunity to the members.
Indemnification and D&O Insurance
Amneal will indemnify any member or affiliate, the managing member or any of its affiliates, any officer, or individual serving at the request of Amneal as an officer, director, principal, member, employee or agent of another corporation, partnership, joint venture, limited liability company, trust or other enterprise. Such persons
 
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will be entitled to payment in advance of expenses, including attorneys’ fees, that they incur in defending a proceeding, but they will be required to repay any such advance if it is ultimately determined that they were not entitled to indemnification by Amneal. Indemnification will not be available for any expenses, liabilities, damages and losses suffered that are attributable to any such person’s or its affiliates’ gross negligence, willful misconduct or knowing violation of the law or for any present or future breaches of any representations, warranties or covenants contained in the LLC Agreement or in other agreements with Amneal.
Tax Classification
The members intend that Amneal be treated as a partnership for U.S. federal and, if applicable, state or local income tax purposes. Each member and Amneal will file all tax returns and will take all tax and financial reporting positions in a manner consistent with such tax treatment.
Amendments
The LLC Agreement may only be amended in writing by the manager with the written consent of the holders of at least 75% of the Amneal Common Units then outstanding.
 
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 EXCHANGES OF AMNEAL COMMON UNITS FOR CLASS A COMMON STOCK
Amneal Holdings and its permitted transferees, from time to time, may require Amneal to redeem or exchange all or a portion of their Amneal Common Units for newly-issued shares of Class A common stock on a one-for-one basis. New Amneal’s Board of Directors, which includes directors who are affiliated with Amneal Holdings, and may include such directors in the future, may, at its option, instead make a cash payment in accordance with the terms of the LLC Agreement. Shares of our Class B common stock will be surrendered and cancelled on a one-for-one basis if we redeem or exchange Amneal Common Units held by Amneal Holdings and its permitted transferees pursuant to the terms of the LLC Agreement.
In order for Amneal Holdings to offer or sell pursuant to this prospectus, we will implement the exchange procedures set forth in the LLC Agreement pursuant to which such holder will exchange, on a one-for-one basis, its Amneal Common Units for newly-issued shares of Class A common stock that will be sold (and their shares of Class B common stock will be surrendered and cancelled on a one-for-one basis upon such issuance). When Amneal Holdings exchanges Amneal Common Units for shares of Class A common stock, because New Amneal acquires additional Amneal Common Units, the number of Amneal Common Units owned by New Amneal will correspondingly increase. See “Certain Related Parties and Related Party Transactions—Agreements Entered into in Connection with the Combination—LLC Agreement.”
The Class A common stock being registered pursuant to this prospectus includes up to an aggregate of (i) 41,406,689 restricted shares of Class A common stock previously issued to certain of our stockholders, (ii) 4,109,589 shares of Class A common stock that will result from the automatic conversion upon transfer of restricted shares of Class B-1 common stock that have previously been issued to certain of our stockholders and (iii) the remaining 171,260,707 shares of Class A common stock issuable upon the exchange by Amneal Holdings of an equivalent number of currently outstanding Amneal Common Units. Each of the currently outstanding Amneal Common Units described in (iii) is paired with one share of our Class B common stock that will be surrendered and cancelled in connection with the exchange of such Amneal Common Unit, To the extent that the holders of currently outstanding Amneal Common Units exchange such Amneal Common Units for shares of Class A common stock, our economic ownership in Amneal will be correspondingly increased.
On May 4, 2018, Amneal Holdings caused Amneal to redeem (in accordance with the terms of the LLC Agreement) 6,886,140 of the Amneal Common Units issued to the Existing Amneal Members (and subsequently assigned and transferred to Amneal Holdings, LLC) in connection with the Combination for a like number of shares of Class A common stock covered by this prospectus, and intends to distribute such shares to certain direct and indirect members of Amneal Holdings who were or are employees of Amneal and to whom were previously issued (prior to the Closing) profit participation units in Amneal.
 
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 PRINCIPAL AND SELLING STOCKHOLDERS
The following table sets forth information relating to the beneficial ownership of our Class A common stock as of May 4, 2018, after giving effect to the Combination, the PIPE Investment, and the Closing Date Redemption by:
 
 	•	 	each person, or group of affiliated persons, known by us to beneficially own more than 5% of our outstanding shares of common stock;	
 
 	•	 	each of our directors;	
 
 	•	 	each of our named executive officers;	
 
 	•	 	all directors and executive officers as a group; and	
 
 	•	 	other selling stockholders.	
The percentage of shares beneficially owned is computed based on the number of shares of our Class A common stock outstanding on May 4, 2018, upon completion of the transactions described in this prospectus, including the Combination, the PIPE Investment, the Closing Date Redemption and the redemption of Amneal Common Units pursuant to the LLC Agreement. Shares of our Class A common stock that a person has the right to acquire within 60 days of May 4, 2018 are deemed outstanding for purposes of computing the percentage ownership of the person holding such rights, but are not deemed outstanding for purposes of computing the percentage ownership of any other person, except with respect to the percentage ownership of all directors and executive officers as a group. Unless otherwise indicated below, the address for each beneficial owner listed is Amneal Pharmaceuticals LLC, 400 Crossing Boulevard, Third Floor, Bridgewater, NJ 08807.
The selling stockholders named below may offer or sell from time to time pursuant to this prospectus up to an aggregate of 224,996,163 shares of Class A common stock. The table below describes, as of May 4, 2018, each selling stockholder’s beneficial ownership of shares of our Class A common stock, shares of our Class B-1 common stock and shares of our Class B common stock (a) according to the information available to us as of the date of this prospectus and (b) assuming each selling stockholder has sold all shares of Class A common stock registered pursuant to this prospectus.
Because the selling stockholders may sell, transfer or otherwise dispose of all, some or none of the shares of our Class A common stock covered by this prospectus, we cannot determine the number of such shares that will be sold, transferred or otherwise disposed of by the selling stockholders, or the amount or percentage of shares of our Class A common stock that will be held by the selling stockholders upon termination of any particular offering or sale. See “Plan of Distribution.” For the purposes of the table below, we assume that each selling stockholder will sell all of its shares of our Class A common stock covered by this prospectus. When we refer to the selling stockholders in this prospectus, we mean the entities listed in the table below, as well as their pledgees, donees, assignees, transferees and successors in interest.
Amneal Holdings is entitled to have its Amneal Common Units redeemed for Class A common stock on a one-for-one basis, or, at the option of New Amneal, cash equal to the market value of the applicable number of shares of our Class A common stock. In addition, at New Amneal’s election, New Amneal may effect a direct exchange of such shares of Class A common stock or such cash for such Amneal Common Units. In connection with the Closing, we issued to Amneal Holdings for nominal consideration one share of Class B common stock for each Amneal Common Unit it owned. As a result, the number of shares of Class B common stock listed in the table below equals the number of Amneal Common Units that Amneal Holdings owns.
On May 4, 2018, Amneal Holdings caused Amneal to redeem (in accordance with the terms of the LLC Agreement) 6,886,140 of the Amneal Common Units issued to the Existing Amneal Members (and subsequently assigned and transferred to Amneal Holdings) in connection with the Combination for a like number of shares of
 
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Class A common stock covered by this prospectus, and intends to distribute such shares to certain direct and indirect members of Amneal Holdings who were or are employees of Amneal and to whom were previously issued (prior to the Closing) profit participation units in Amneal.
The number of shares beneficially owned by each stockholder is determined under rules issued by the SEC and includes voting or investment power with respect to securities. Under these rules, beneficial ownership includes any shares as to which the individual or entity has sole or shared voting power or investment power. In computing the number of shares beneficially owned by an individual or entity and the percentage ownership of that person, shares of common stock subject to options, or other rights, including the redemption right described above, held by such person that are currently exercisable or will become exercisable within 60 days of May 4, 2018, are considered outstanding, although these shares are not considered outstanding for purposes of computing the percentage ownership of any other person. Each of the stockholders listed has sole voting and investment power with respect to the shares beneficially owned by the stockholder unless noted otherwise, subject to community property laws where applicable.
Any selling stockholder may be deemed to be an “underwriter” within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”). Based upon the applicable facts and circumstances, including when and how each selling stockholder’s respective shares of Class A common stock were acquired, Amneal Holdings believes that it should be considered an “underwriter” within the meaning of such term under the Securities Act. None of the other selling stockholders believes that it should be considered an “underwriter” within the meaning of such term under the Securities Act.
For information regarding material relationships and transactions between us and the selling stockholders, see the “ Certain Relationships and Related Transactions, and Director Independence ” section in this prospectus.
 
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Information concerning the selling stockholders may change from time to time. Any changes to the information provided below will be set forth in a prospectus supplement if and when necessary.
																																																																	
 	 	Amneal Common
Units (and an
equivalent amount
of shares of
Class B common
stock) owned
prior to the
offering	 	 	Amneal Common
Units (and an
equivalent amount
of shares of Class B
common stock to
be surrendered
and cancelled) to be
redeemed in the
offering(+) (1)	 	 	Amneal
Common Units
(and an
equivalent
amount of shares
of Class B
common stock)
owned after the
offering(+) (2)	 	 	Shares of
Class A
common
stock owned
prior to the
offering	 	 	Shares of Class 
B-1 common
stock owned
prior to the
offering	 	 	Shares of
Class A
Common
Stock that
may be sold
by selling
stockholders
in this
offering(‡)	 	 	Shares of
Class A
common
stock
owned after
this
offering (2)	 	 	Shares of
Class B-1
common
stock owned
after this
offering (2)	 	
Name and address of
beneficial owner (3)	 	(#)	 	 	(%)	 	 	(#)	 	 	(%) (4)	 	 	(#)	 	 	(%)	 	 	(#)	 	 	(%) (4)	 	 	(#)	 	 	(%)	 	 	(#)	 	 	(%) (5)	 	 	(#)	 	 	(%)	 	 	(#)	 	 	(%)	 	
5% or greater stockholders:	 				 				 				 				 				 				 				 				 				 				 				 				 				 				 				 				
Amneal Holdings, LLC (6)(7)
c/o Amneal Pharmaceutical LLC
400 Crossing Boulevard,
Third Floor
Bridgewater, New Jersey 08807	 	 	171,260,707	 	 	 	100	% 	 	 	171,260,707	 	 	 	100	% 	 	 	—  	 	 	 	—  	 	 	 	6,886,140	 	 	 	5.35	% 	 	 	—  	 	 	 	—  	 	 	 	178,146,847	 	 	 	59.38	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Funds affiliated with Fosun International Limited
Room 808, ICBC Tower
3 Garden Road, Central, Hong Kong	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	20,293,351	(8)  	 	 	15.76	% 	 	 	—  	 	 	 	—  	 	 	 	16,438,356	 	 	 	5.48	% 	 	 	3,854,995	 	 	 	1.29	% 	 	 	—  	 	 	 	—  	 	
TPG Improv Holdings, L.P.
c/o TPG Partners VII, L.P.
301 Commerce Street
Suite 3300
Fort Worth, Texas 76102
Attn: Adam Fliss	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	4,109,589	 	 	 	3.19	% 	 	 	12,328,767	 	 	 	100.00	% 	 	 	16,438,356	 	 	 	5.48	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Named Executive Officers, Directors and Director Nominees	 				 				 				 				 				 				 				 				 				 				 				 				 				 				 				 				
Paul M. Bisaro	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	850,000	(9)  	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	212,500	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Robert L. Burr	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	178,482	(10)  	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	165,474	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Chintu Patel (6)(7)	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Chirag Patel (6)(7)	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Robert A. Stewart	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Bryan M. Reasons	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	368,511	(11)  	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	278,373	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Andrew Boyer	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
All directors, director nominees and executive officers as a group (seven persons))	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	656,347	 	 	 	*	% 	 	 	—  	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	656,347	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Other Selling Stockholders	 				 				 	 	—  	 	 				 				 				 				 				 				 				 				 				 				 				 				 				
Entities affiliated with Wellington Management Company LP	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	5,845,700	(8)  	 	 	4.54	% 	 	 	—  	 	 	 	—  	 	 	 	5,733,390	 	 	 	1.92	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Fidelity Select Portfolios: Pharmaceuticals Portfolio
Mag & Co. c/o Brown Brothers Harriman & Co.
Attn: Corporate Actions /Vault
140 Broadway New York, NY 10005	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	460,443	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	243,243	 	 	 	*	% 	 	 	217,200	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Fidelity Select Portfolios: Health Care Portfolio Mag & Co. c/o Brown Brothers Harriman & Co.
Attn: Corporate Actions /Vault 140 Broadway
New York, NY 10005	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	1,821,622	 	 	 	1.41	% 	 	 	—  	 	 	 	—  	 	 	 	1,621,622	 	 	 	*	% 	 	 	200,000	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Fidelity Advisor Series VII: Fidelity Advisor Health Care Fund M.Gardiner & Co c/o JPMorgan Chase Bank, N.A
P.O. Box 35308 Newark, NJ 07101-8006	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	766,676	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	675,676	 	 	 	*	% 	 	 	91,000	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Fidelity Central Investment Portfolios LLC: Fidelity Health Care Central Fund M.Gardiner & Coc/o
JPMorgan Chase Bank, N.A P.O. Box 35308
Newark, NJ 07101-8006	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	625,141	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	540,541	 	 	 	*	% 	 	 	84,600	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
 
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 	 	Amneal Common
Units (and an
equivalent amount
of shares of
Class B common
stock) owned
prior to the
offering	 	 	Amneal Common
Units (and an
equivalent amount
of shares of Class B
common stock to
be surrendered
and cancelled) to be
redeemed in the
offering(+) (1)	 	 	Amneal
Common Units
(and an
equivalent
amount of shares
of Class B
common stock)
owned after the
offering(+) (2)	 	 	Shares of
Class A
common
stock owned
prior to the
offering	 	 	Shares of Class 
B-1 common
stock owned
prior to the
offering	 	 	Shares of
Class A
Common
Stock that
may be sold
by selling
stockholders
in this
offering(‡)	 	 	Shares of
Class A
common
stock
owned after
this
offering (2)	 	 	Shares of
Class B-1
common
stock owned
after this
offering (2)	 	
Name and address of
beneficial owner (3)	 	(#)	 	 	(%)	 	 	(#)	 	 	(%) (4)	 	 	(#)	 	 	(%)	 	 	(#)	 	 	(%) (4)	 	 	(#)	 	 	(%)	 	 	(#)	 	 	(%) (5)	 	 	(#)	 	 	(%)	 	 	(#)	 	 	(%)	 	
Variable Insurance Products Fund IV: Health Care Portfolio M.Gardiner & Coc/o JPMorgan Chase Bank, N.A
P.O. Box 35308 Newark, NJ 07101-8006	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	202,778	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	178,378	 	 	 	*	% 	 	 	24,400	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Strategic Advisers Core Fund-FIAM Sector Managed Health Care Sub BNY Mellon Attn: Stacey Wolfe 525 William Penn Place Rm 0400 Pittsburgh, PA 15259	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	125,676	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	75,676	 	 	 	*	% 	 	 	50,000	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
Fidelity Advisor Series I: Fidelity Advisor Stock Selector Mid Cap Fund Mag & Co. c/o Brown Brothers Harriman & Co. Attn: Corporate Actions /Vault 140 Broadway
New York, NY 10005	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	347,297	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	297,297	 	 	 	*	% 	 	 	50,000	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	
CVI Investments, Inc. c/o Heights Capital Management, Inc.
101 California Street, Suite 3250 San Francisco, California 94111 Attention: Martin Kobinger, Investment Manager	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	2,321,760	 	 	 	1.80	% 	 	 	—  	 	 	 	—  	 	 	 	2,321,760	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Entities affiliated with Janus Capital Management LLC c/o Janus Capital Management, LLC 151 Detroit Street Denver Colorado 80206 Attention: Legal Department	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	2,247,308	 	 	 	1.75	% 	 	 	—  	 	 	 	—  	 	 	 	2,245,021	 	 	 	*	% 	 	 	2,287	 	 	 	*	% 	 	 	—  	 	 	 	—  	 	

*	Represents beneficial ownership of less than 1%	
(+)	Amneal Holdings will exchange, on a one-for-one basis, its Amneal Common Units, at the option of New Amneal, for cash or newly-issued shares of Class A common stock, to the extent they offer or sell shares of Class A common pursuant to this prospectus (and an equivalent number of shares of Class B common stock held by such selling stockholders will be surrendered and cancelled in connection with each such Amneal Common Unit exchange). See “Certain Related Parties and Related Party Transactions—Agreements Entered into in Connection with the Combination—LLC Agreement.”	
(‡)	Includes the shares of Class A common stock to be offered or sold by (i) TPG after giving effect to the automatic conversion of their shares of Class B-1 common stock and (ii) Amneal Holdings after giving effect to the exchange of its Amneal Common Units.	
(1)	Assumes all Amneal Common Units are redeemed (or exchanged) (and all shares of Class B common stock are surrendered and cancelled) for shares of Class A common stock.	
(2)	Assumes the sale by the selling stockholders of all shares of Class A common stock registered pursuant to this prospectus.	
(3)	Unless otherwise noted, the address for each beneficial owner listed on the table is Amneal Pharmaceuticals LLC, 400 Crossing Boulevard, Third Floor, Bridgewater, NJ 08807.	
(4)	Percentage of ownership calculated against the existing number of shares of Class A common stock outstanding upon completion of the other transactions described in this prospectus, but prior to the redemption of Amneal Common Units pursuant to the LLC Agreement and the automatic conversion of the shares of Class B-1 common stock held by TPG.	
(5)	Percentage of ownership calculated against the total number of shares of Class A common stock outstanding upon completion of the other transactions described in this prospectus, including the Combination and the PIPE Investment, the redemption of Amneal Common Units pursuant to the LLC Agreement and the automatic conversion of the shares of Class B-1 common stock held by TPG.	
(6)	Amneal Holdings, LLC is record holder of the Amneal Common Units. Investment and voting decisions are made by Amneal Holdings, LLC through its board of managers, which is composed of four individuals, including Chintu Patel and Chirag Patel, and which can only act by at least majority approval. None of the members of the board of managers of Amneal Holdings, LLC may act alone to direct the voting or disposition of the Amneal Common Units held by Amneal Holdings, LLC or otherwise has voting or investment power over such securities. Each of Chintu Patel and Chirag Patel disclaims beneficial ownership of the Amneal Common Units held by Amneal Holdings, LLC.	
(7)	Each of Chintu Patel and Chirag Patel is a manager of Amneal Holdings, LLC and therefore may be deemed to share voting and dispositive power with respect to the Amneal Common Units held by Amneal Holdings, LLC. Each of them disclaims beneficial ownership of these securities.	
(8)	Includes shares of Class A common stock converted from Impax Shares upon the completion of the Combination.	
(9)	Represents 850,000 shares of common stock underlying options that may be exercised within 60 days of May 4, 2018.	
(10)	Represents 60,475 shares of common stock held by Mr. Burr directly, 6,057 shares of common stock held by Robert L. Burr’s IRA account, as to which Mr. Burr has sole voting and investment power, and 111,950 shares of common stock underlying options that may be exercised within 60 days of May 4, 2018.	
(11)	Represents 94,684 shares of common stock held by Mr. Reasons directly and 273,827 shares of common stock underlying options that may be exercised within 60 days of May 4, 2018.	
 
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 DESCRIPTION OF CAPITAL STOCK
The following summary of the terms of the capital stock of New Amneal is not meant to be complete and is qualified in its entirety by reference to the New Amneal Charter and the New Amneal Bylaws.
Authorized Capital Stock
Under the New Amneal Charter, New Amneal has the authority to issue 1,220,000,000 shares of stock, initially consisting of (i) 1,218,000,000 shares of common stock, $0.01 par value per share, of which 900,000,000 are designated as Class A common stock, 300,000,000 are designated as Class B common stock and 18,000,000 are designated as Class B-1 common stock, and (ii) 2,000,000 shares of blank check preferred stock, $0.01 par value per share (“Preferred Stock”).
New Amneal Shares
New Amneal Shares Outstanding
The shares of Class A common stock, Class B common stock and Class B-1 common stock issued pursuant to the Combination, the PIPE Investment and the Closing Date Redemption are duly authorized, validly issued, fully paid and non-assessable. The rights, preferences and privileges of holders of Class A common stock, Class B common stock and Class B-1 common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of Preferred Stock that New Amneal may designate and issue in the future. As of May 4, 2017, following completion of the Combination, the PIPE Investment and the Closing Date Redemption, approximately 116,405,410 shares of Class A common stock and approximately 171,260,707 shares of Class B common stock (all of which Class B common stock is held by Amneal Holdings) and approximately 12,328,767 shares of Class B-1 common stock (all of which Class B-1 common stock is held by TPG) are issued and outstanding.
On May 4, 2018, Amneal Holdings caused Amneal to redeem (in accordance with the terms of the LLC Agreement) 6,886,140 of the Amneal Common Units issued to the Existing Amneal Members (and subsequently assigned and transferred to Amneal Holdings) in connection with the Combination for a like number of shares of Class A common stock covered by this prospectus, and intends to distribute such shares to certain direct and indirect members of Amneal Holdings who were or are employees of Amneal and to whom were previously issued (prior to the Closing) profit participation units in Amneal.
Voting Rights
Holders of Class A common stock are entitled to one vote for each share of Class A common stock held.
Holders of Class B common stock are entitled to one vote for each share of Class B common stock held.
Except as required by law and except in connection with the election of the Class B-1 Director, holders of Class B-1 common stock are not entitled to vote on any matter.
Holders of Class B common stock are entitled to one vote for each share of Class B common stock held. Holders of Class A common stock and Class B common stock vote together as a single class on each matter submitted to a stockholder vote. Holders of Class A common stock and Class B common stock are not entitled to vote on any amendment to the New Amneal Charter that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote on such terms pursuant to the New Amneal Charter or the DGCL.
The New Amneal Bylaws provide that the directors of the New Amneal Board will be elected by the affirmative vote of the majority of the votes cast with respect to such director’s election (meaning the number of
 
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shares voted “ FOR ” a nominee must exceed the number of shares voted “ AGAINST ” such nominee) at any meeting for the election of directors at which a quorum is present; provided that each director will be elected by a plurality of the votes cast (instead of by votes cast for or against a nominee) at any meeting at which a quorum in present for which the New Amneal Board determines that the number of nominees exceeds the number of directors to be elected at such election and such determination has not been rescinded by the New Amneal Board on or prior to the tenth day preceding the date New Amneal first mails its notice of meeting for such meeting to the stockholders.
The New Amneal Bylaws provide that, in all matters other than the election of directors, the affirmative vote of the majority in voting power of shares of stock will be the act of the stockholders unless a different or minimum vote is required by the New Amneal Charter, the New Amneal Bylaws or the rules and regulations of any stock exchange applicable to New Amneal or its securities, in which case such different or minimum vote will be the applicable vote on the matter.
Class B-1 common stock Board Designation Rights
Until the earlier of (i) such time as TPG ceases to own at least 4% of the outstanding New Amneal Shares and (ii) the date that is twelve months from the Closing, the holders of the Class B-1 common stock have the right to designate a director for appointment to the New Amneal Board (the “ Class  B-1 Director ”).
Amendments
The affirmative vote of the holders of a majority of the voting power of the issued and outstanding shares of capital stock of New Amneal entitled to vote is required to amend the New Amneal Charter, including amendments to increase or decrease the number of authorized shares of either common stock or Preferred Stock.
The New Amneal Bylaws provide that, without the approval of the New Amneal Board, the New Amneal Stockholders may only amend, alter or repeal the New Amneal Bylaws by an affirmative vote of the holders of a majority in voting power of the issued and outstanding shares entitled to vote; provided, however, any amendment to or repeal of the New Amneal Bylaws sections regarding annual meetings, special meetings, voting, notice of stockholder proposals, number of directors, term of directors, qualifications of directors, notice of nominations for directors, removal of directors, vacancies and newly created directorships, dividends, and legal relationship between the New Amneal Bylaws and the New Amneal Charter requires an affirmative vote of the holders of not less than two-thirds of the voting power of the issued and outstanding shares entitled to vote at a duly called and convened annual or special meeting of stockholders. Further, the New Amneal Bylaws and the New Amneal Charter also provide that, subject to the Stockholders Agreement, the New Amneal Board may in its discretion make, alter, amend or repeal the New Amneal Bylaws by the affirmative vote of not less than a majority of the New Amneal Board or by unanimous written consent, except as such power may be restricted or limited by the DGCL.
* * *
Amneal Holdings, by virtue of its ownership of a majority of the voting power of the common stock but subject to the Stockholders Agreement, is able to approve any matter brought to a vote of New Amneal Stockholders without the affirmative vote of any other stockholders. See the section entitled “ Certain Related Parties and Related Party Transactions—Stockholders Agreement. ”
Dividend Rights
The holders of Class A common stock and Class B-1 common stock are entitled to receive dividends, if any, payable in cash, property, or securities of New Amneal, as may be declared by the New Amneal Board, out of funds legally available for the payment of dividends, subject to any preferential or other rights of the holders of any outstanding shares of Preferred Stock. The holders of Class B common stock will not be entitled to receive any dividends.
 
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Liquidation Rights
On the liquidation, dissolution or winding-up of New Amneal, whether voluntary or involuntary, the holders of Class A common stock and Class B-1 common stock are entitled to share equally in all assets of New Amneal available for distribution among the stockholders of New Amneal after payment to all creditors of New Amneal and subject to any preferential or other rights of the holders of any outstanding shares of Preferred Stock. The holders of Class B common stock are not entitled to share in such net assets.
Participation Rights
Under the New Amneal Charter, the holders of Class A common stock, Class B common stock and Class B-1 common stock have no participation rights. However, the Stockholders Agreement provides that if New Amneal proposes to issue any securities, other than in certain issuances, Amneal Holdings will have the right to purchase its pro rata share of such securities, based on the number of shares of common stock owned by Amneal Holdings before such issuance. See the section entitled “ Ancillary Agreements Related to the Combination—Stockholders Agreement. ”
Issuance and Restrictions of Class B Common Stock
Pursuant to the New Amneal Charter, shares of Class B common stock will be issued to Amneal Holdings and its permitted transferees only to the extent necessary in certain circumstances to maintain a one-to-one ratio between the number of Amneal Common Units and the number of shares of Class B common stock held by such members. Shares of Class B common stock are transferable only for no consideration to New Amneal for automatic retirement or in accordance with the Stockholders Agreement and the LLC Agreement. See “Certain Related Parties and Related Party Transactions—Agreements Entered into in Connection with the Combination—Stockholders Agreement” and See “Certain Related Parties and Related Party Transactions—Agreements Entered into in Connection with the Combination—LLC Agreement.”
New Amneal Preferred Stock
Preferred Stock Outstanding at Closing
No shares of Preferred Stock are currently issued and outstanding.
Blank Check Preferred Stock
Under the New Amneal Charter, the New Amneal Board has the authority to issue Preferred Stock in one or more series, and to fix for each series the voting powers and the distinctive designations, preferences and relative, participation, optional or other special rights and such qualifications, limitations or restrictions, as may be stated and expressed in the resolution or resolutions adopted by the New Amneal Board providing for the issuance of such series as may be permitted by the DGCL, including dividend rates, conversion rights, terms of redemption and liquidation preferences and the number of shares constituting each such series, without any further vote or action by the stockholders of New Amneal.
Exclusive Forum
The New Amneal Charter requires, to the fullest extent permitted by law, that (i) any derivative action or proceeding brought on New Amneal’s behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of New Amneal’s directors or officers to New Amneal or New Amneal’s stockholders, (iii) any action asserting a claim against New Amneal arising pursuant to any provision of the DGCL, the New Amneal Charter, or the New Amneal Bylaws or (iv) any action asserting a claim against New Amneal governed by the internal affairs doctrine will have to be brought only in the Court of Chancery in the State of Delaware. Although we believe this provision benefits us by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against the New Amneal directors and officers.
 
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Anti-takeover Effects of Provisions of the New Amneal Charter and Bylaws and Other Governing Documents
Although Amneal Holdings owns a majority of New Amneal’s capital stock, the New Amneal Charter and New Amneal Bylaws and other governing documents also contain provisions that may delay, defer or discourage non-Amneal Holdings parties from acquiring control of New Amneal and Amneal Holdings from acquiring 100% of New Amneal. We expect that these provisions, which include those summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of New Amneal to first negotiate with the New Amneal Board, which we believe may result in an improvement of the terms of any such acquisition in favor of New Amneal Stockholders. However, the New Amneal Charter and the New Amneal Bylaws also give the New Amneal Board the power to discourage acquisitions that some stockholders may favor.
Requirements for Advance Notification of Stockholder Meetings, Nominations and Proposals
The New Amneal Bylaws provide that stockholders at an annual meeting may only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of the New Amneal Board or by a qualified stockholder of record on the Record Date for the meeting, who is entitled to vote at the meeting and who has delivered timely written notice in proper form to New Amneal’s secretary of the stockholder’s intention to bring such business before the meeting. The New Amneal Bylaws provide that special meetings of the stockholders may be called by (1) a Co-Chairman of the New Amneal Board, (2) the CEO of New Amneal, or (3) by resolution adopted by a majority of the directors of the New Amneal Board. The New Amneal Bylaws prohibit the conduct of any business at a special meeting other than as specified in the notice for such meeting. In addition, any stockholder who wishes to bring business before an annual meeting or nominate directors must comply with the advance notice and duration of ownership requirements set forth in the New Amneal Bylaws and provide New Amneal with certain information.
These provisions may have the effect of deferring, delaying or discouraging hostile takeovers or changes in control of New Amneal or its management. However, the New Amneal Bylaws also provide that, subject to the DGCL and the New Amneal Charter, any action that could be taken by stockholders at a meeting of stockholders may be taken without a meeting, without prior notice and without a vote if there is written consent signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote were present and voted.
Amneal Directors
See the section entitled “ Ancillary Agreements Related to the Combination—Stockholders Agreement—Corporate Governance. ”These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control of New Amneal or New Amneal’s management by making it more difficult for non-Amneal investors to gain the majority control of the New Amneal Board absent prior consent by the Amneal Group Members.
Amneal Consent Rights
For so long as Amneal Holdings beneficially owns more than 25% of the outstanding New Amneal Shares, New Amneal may not take certain actions without obtaining the prior consent of Amneal Holdings, including but not limited to, amending the New Amneal Charter or the New Amneal Bylaws in a manner that adversely impacts Amneal Holdings and consummating any Company Sale in which Amneal Holdings receives a different amount or form of consideration for the New Amneal Shares held by Amneal Holdings as other holders of such New Amneal Shares. See the section entitled “ —Corporate Governance—Amneal Consent Rights. ”
 
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Restrictions on Transfers
Amneal Holdings will be prohibited from transferring more than 15% of the outstanding Class A common stock in any 12-month period, or any New Amneal Shares to a person or group that would beneficially own more than 15% of the voting power of the outstanding New Amneal Shares after such transfer, unless approval of the Conflicts Committee has been obtained. This 15% ownership restriction will not apply to widely distributed public offerings of common stock and is subject to other customary exceptions. See the section entitled “ —Stockholders Agreement—Restrictions on Transfers and Acquisitions. ”
Restrictions on Acquisitions by the Amneal Group
Any proposal by Amneal Holdings to acquire all outstanding New Amneal Shares held by non-Amneal stockholders will be subject to the approval of the Conflicts Committee and a majority of the non-Amneal stockholders of New Amneal in accordance with the terms of the Stockholders Agreement. Further, until the earlier of the third anniversary of the Closing Date and such time when Amneal Holdings beneficially owns less than 20% of the outstanding New Amneal Shares, Amneal will be prohibited from acquiring beneficial ownership of New Amneal Shares, seeking a change in the composition or size of the New Amneal Board, or soliciting proxies in connection with the election and removal of Non-Amneal Directors, subject to certain exceptions. See the section entitled “ —Stockholders Agreement—Restrictions on Transfers and Acquisitions. ”
These provisions may have the effect of deferring, delaying or discouraging Amneal from buying out New Amneal by limiting Amneal’s ability in acquiring additional equity interests in New Amneal and seeking disproportionate influence on the New Amneal Board.
Requirements for Advance Approval of Certain Taxable Transactions
For so long as Amneal Holdings beneficially owns either (a) shares of Class B common stock representing at least 10% of the outstanding New Amneal Shares or (b) at least 45,000,000 New Amneal Shares, New Amneal must obtain the Amneal Holdings’ consent before consummating any transaction involving New Amneal or any of its subsidiaries that would reasonably be expected to result in the recognition of $40,000,000 or more in taxable income or gain by Amneal Holdings. See the section entitled “ —Stockholders Agreement—Restrictions on Transfers and Acquisitions. ”
New Amneal and its subsidiaries must seek prior written consent from Amneal Holdings or agree to use their best efforts to ensure that, during the taxable periods in which any Member is allocated any gain attributable to such transaction, each such Member would receive distributions equal to its assumed tax liability before (i) making a disposition of any assets held by Amneal or its subsidiaries prior to the Closing if the cumulative “amount realized” (as such term is defined for U.S. federal income tax purposes) for all such dispositions in any 12-month period would be in excess of $40,000,000, (ii) acquiring any equity interests or assets of other business entities, or (iii) entering into additional agreements with other persons that are similar to the Tax Receivable Agreement. See the section entitled “ Certain Related Parties and Related Party Transactions—Tax Receivable Agreement. ”
These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control of New Amneal or New Amneal’s management by limiting the ability of New Amneal to issue securities, make acquisitions, and dispose assets.
Acceleration of Tax Benefit Payment
In the event of a Change of Control, New Amneal will be required to make an Early Termination Payment to the Members, equal to the present value of the tax benefit payments to be paid to each such Member, discounted at the lesser of ICE LIBOR plus 100 basis points or 6.50% per annum, compounded annually. See the
 
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section entitled “ Certain Related Parties and Related Party Transactions—Tax Receivable Agreement. ” These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control of New Amneal or New Amneal’s management by subjecting New Amneal or its successor to significant upfront payment obligations and imposing additional pressure on the cash flow of New Amneal or its successor.
Authorized but Unissued Shares
The authorized but unissued shares of common stock and Preferred Stock are available for future issuance without stockholder approval, subject to any limitations imposed by the listing standards of the NYSE. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved common stock and Preferred Stock could make more difficult or discourage an attempt to obtain control of New Amneal by means of a proxy contest, tender offer, merger or otherwise.
Delaware Anti-takeover Statute
New Amneal is subject to Section 203 of the DGCL. Section 203 of the DGCL provides that if a person acquires 15% or more of the voting stock of a Delaware corporation, such person becomes an “interested stockholder” and may not engage in certain “business combinations” with the corporation for a period of three years from the time such person acquired 15% or more of the corporation’s voting stock, unless: (1) the board of directors approves the acquisition of stock or the merger transaction before the time that the person becomes an interested stockholder, (2) the interested stockholder owns at least 85% of the outstanding voting stock of the corporation at the time the merger transaction commences (excluding voting stock owned by directors who are also officers and certain employee stock plans), or (3) the merger transaction is approved by the board of directors and by the affirmative vote at a meeting, not by written consent, of stockholders of two-thirds of the holders of the outstanding voting stock which is not owned by the interested stockholder. However, the New Amneal Board (including its members designated by the Amneal Group) may approve in advance certain acquisitions for purposes of Section 203 of the DGCL.
Corporate Opportunities and Transactions with Controlling Stockholder
In recognition and anticipation of the fact that (a) that New Amneal is not a wholly owned subsidiary of Amneal Holdings and that Amneal Holdings is a significant stockholder of New Amneal, (b) that directors, officers and/or employees of the Amneal Group may serve as directors and/or officers of New Amneal, (c) that, subject to any contractual arrangements that may otherwise from time to time be agreed to between Amneal Holdings and New Amneal (including the Stockholders Agreement), Amneal Holdings engages in or may engage in lines of business similar to or related to, or the same as those in which New Amneal may engage and/or other business activities that overlap with or compete with those in which New Amneal may engage, and (d) that Amneal Holdings may have an interest in the same areas of corporate opportunity as New Amneal and its affiliates, the New Amneal Charter provides for the allocation of certain transactions and corporate opportunities between New Amneal and Amneal Holdings. Specifically, except as otherwise agreed in writing by New Amneal and the Amneal Group (including in the Stockholders Agreement), Amneal Holdings will be permitted to engage in lines of business similar to or the same as those of New Amneal or to do business with any client, customer or vendor of New Amneal.
Except as otherwise agreed in writing by New Amneal and Amneal Holdings, in the event that Amneal Holdings is presented with or acquires knowledge of a corporate opportunity, such corporate opportunity will belong to Amneal Holdings unless such opportunity was expressly offered to Amneal Holdings in its capacity as a stockholder of New Amneal. New Amneal renounces any interest or expectancy of New Amneal or its affiliates in any corporate opportunity presented to Amneal or to any individual who is a director, officer or employee of New Amneal and is also a director, officer or employee of Amneal Holdings (“Dual Role Person”) pursuant to Section 122(17) of the DGCL, and waives any claim that such business opportunity constituted a corporate
 
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opportunity that should have been presented to New Amneal or its affiliates, and Amneal will not be liable to New Amneal by reason of the fact that Amneal Holdings acquires or seeks such corporate opportunity for itself, directs such corporate opportunity to another person, or otherwise does not communicate information regarding such corporate opportunity to New Amneal.
The New Amneal Charter provides that no Dual Role Person who is presented with or acquires knowledge of a corporate opportunity in any capacity (i) will have any duty to communicate or offer to New Amneal or any of its affiliates any corporate opportunity, (ii) will be prohibited from communicating or offering any corporate opportunity to the Amneal Group or any other person or participating in such corporate opportunity and (iii) to the fullest extent permitted by law, will have any liability to New Amneal or its stockholders for breach of any fiduciary duty as a stockholder, director or officer of New Amneal, as the case may be, related to such corporate opportunity.
By becoming a stockholder in New Amneal, you will be deemed to have had notice of and consented to these provisions of the New Amneal Charter.
Transfer Agent and Registrar
Computershare is the transfer agent and registrar for the Class A common stock.
Listing of Class A Common Stock
Our Class A common stock is listed on the NYSE under the trading symbol “ AMRX .”
 
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 SHARES ELIGIBLE FOR FUTURE SALE
Future sales of our Class A common stock, including shares issued upon the exercise of outstanding options, in the public market after this offering, or the perception that those sales may occur, could cause the prevailing market price for our Class A common stock to fall or impair our ability to raise equity capital in the future. As described below, only a limited number of shares of our Class A common stock will be available for sale in the public market for a period of several months after completion of this offering due to contractual and legal restrictions on resale described below. Future sales of our Class A common stock in the public market either before (to the extent permitted) or after restrictions lapse, or the perception that those sales may occur, could adversely affect the prevailing market price of our Class A common stock at such time and our ability to raise equity capital at a time and price we deem appropriate.
Sale of Restricted Shares
Upon the closing of this offering, based on the number of shares of our Class A common stock outstanding on May 4, 2018 upon completion of the transactions described in this prospectus, including the Combination, the PIPE Investment and the Closing Date Redemption, and redemption of Amneal Common Units pursuant to the LLC Agreement, we will have outstanding an aggregate of approximately 299,994,884 shares of Class A common stock. Of these shares, all of the 224,996,163 shares of Class A common stock to be sold in this offering will be freely tradable in the public market without restriction or further registration under the Securities Act of 1933, as amended, or the Securities Act, unless the shares are held by any of our “affiliates” as such term is defined in Rule 144 of the Securities Act. All remaining shares of common stock held by existing stockholders immediately prior to the completion of this offering will be “restricted securities” as such term is defined in Rule 144. These restricted securities were issued and sold by us, or will be issued and sold by us, in private transactions and are eligible for public sale only if registered under the Securities Act or if they qualify for an exemption from registration under the Securities Act, including the exemptions provided by Rule 144 or Rule 701, which rules are summarized below.
Registration Rights
Pursuant to the Registration Rights Agreement, Amneal Holdings and Impax have agreed to jointly prepare and file with the SEC a shelf registration statement on Form S-1, such as the registration statement of which this prospectus is a part, with respect to resales of all shares of Class A common stock beneficially owned by Amneal Holdings (“Registrable Shares”). We will use our reasonable best efforts to become eligible to use Form S-3 and, upon becoming eligible, we will promptly file a shelf registration statement on Form S-3.
We are entitled to postpone and delay the filing or effectiveness of any registration statement or the offer or sale of any Registrable Shares (i) for reasonable periods of time in advance of the release of our quarterly and annual financial results and (ii) for reasonable periods of time, not in excess of 60 calendar days in any 12-month period and in no event more than two times in any 12-month period if:
 
 	•	 	the Conflicts Committee determines the filing or effectiveness of a registration statement or offering or sale of any Registrable Shares would:	
 
 	•	 	materially impede, materially delay or materially interfere with any pending or proposed material acquisition, disposition or reorganization;	
 
 	•	 	materially adversely affect any registered underwritten public offering of our securities; or	
 
 	•	 	require disclosure of material non-public information, which if disclosed at the time would have a material adverse effect on our business, operations or management; or	
 
 	•	 	the Conflicts Committee determines that it is necessary to amend or supplement the registration statement or prospectus to not include an untrue statement of a material fact or omit to state a material fact.	
 
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In the period following the expiration of the Lock-up Period during which a shelf registration statement is effective, if any Amneal Group Member delivers notice to us stating that it intends to effect an underwritten public offering of all or part of its Registrable Shares included on a shelf registration statement (a “ Demand Underwritten Offering ”), we will use reasonable best efforts to amend or supplement the shelf registration statement as necessary to enable such Registrable Shares to be distributed pursuant to an underwritten offering. Amneal Holdings is permitted to sell its Registrable Shares pursuant to a Demand Underwritten Offering only if the aggregate amount of Registrable Shares to be offered or sold is reasonably expected to result in aggregate gross proceeds of not less than $75,000,000. Amneal Holdings may not request more than two Demand Underwritten Offerings or Company-assisted PIPE Transactions in any 12-month period.
Whenever we propose to publicly sell or register for sale any of its securities in an underwritten offering pursuant to a registration statement on Form S-8 or on Form S-4, we will give notice to Amneal Holdings and will include all Registrable Shares that any Amneal Group member requests for inclusion within 15 days of receiving notice from us.
We will not grant any registration rights to third parties that are more favorable than or inconsistent with the grants granted by the Stockholders Agreement or enter into any agreement, take any action or permit any change to occur that violates or subordinates the rights granted by the Stockholders Agreement.
Amneal Holdings may assign its registration rights to any direct or indirect transferee of Amneal Holdings permitted under the Stockholders Agreement who agrees to be bound by the terms of the Stockholders Agreement. In the event that Amneal Holdings assigns its rights and obligations under Article V to the purchaser of any Registrable Shares in connection with a PIPE Transaction, such purchaser’s rights under Article V will survive for one year following the date of such transfer.
Rule 144
In general, under Rule 144, as currently in effect, a person (or persons whose shares are required to be aggregated) who is not deemed to have been one of our “affiliates” for purposes of Rule 144 at any time during the three months preceding a sale, and who has beneficially owned restricted securities within the meaning of Rule 144 for at least six months, including the holding period of any prior owner other than one of our “affiliates,” is entitled to sell those shares in the public market (subject to the lock-up agreement referred to above, if applicable) without complying with the manner of sale, volume limitations or notice provisions of Rule 144, but subject to compliance with the public information requirements of Rule 144. If such a person has beneficially owned the sales proposed to be sold for at least one year, including the holding period of any prior owner other than “affiliates,” then such person is entitled to sell such shares in the public market without complying with any of the requirements of Rule 144 (subject to the lock- up agreement referred to above, if applicable). In general, under Rule 144, as currently in effect, our “affiliates,” as defined in Rule 144, who have beneficially owned the shares proposed to be sold for at least six months are entitled to sell in the public market, upon expiration of any applicable lock-up agreements and within any three-month period, a number of those shares of our Class A common stock that does not exceed the greater of:
 
 	•	 	1% of the number of common shares then outstanding, which will equal approximately 3.0 million shares of common stock immediately after this offering (calculated on the basis of the number of shares of our Class A common stock outstanding upon completion of the transactions described in this prospectus, including the Combination, the PIPE Investment and the redemption of Amneal Common Units pursuant to the LLC Agreement; or	
 
 	•	 	the average weekly trading volume of our Class A common stock on NYSE during the four calendar weeks preceding the filing of a notice on Form 144 with respect to such sale.	
Such sales under Rule 144 by our “affiliates” or persons selling shares on behalf of our “affiliates” are also subject to certain manner of sale provisions, notice requirements and to the availability of current public
 
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information about us. Notwithstanding the availability of Rule 144, the holders of substantially all of our restricted securities have entered into lock-up agreements as referenced above and their restricted securities will become eligible for sale (subject to the above limitations under Rule 144) upon the expiration of the restrictions set forth in those agreements.
Rule 701
In general, under Rule 701 as currently in effect, any of our employees, directors, officers, consultants or advisors who acquired common stock from us in connection with a written compensatory stock or option plan or other written agreement in compliance with Rule 701 under the Securities Act before the effective date of the registration statement for our initial public offering (to the extent such common stock is not subject to a lock-up agreement) is entitled to rely on Rule 701 to resell such shares beginning 90 days after we become subject to the public company reporting requirements of the Exchange Act in reliance on Rule 144, but without compliance with the holding period requirements contained in Rule 144. Accordingly, subject to any applicable lock-up agreements, beginning 90 days after we become subject to the public company reporting requirements of the Exchange Act, under Rule 701 persons who are not our “affiliates,” as defined in Rule 144, may resell those shares without complying with the minimum holding period or public information requirements of Rule 144, and persons who are our “affiliates” may resell those shares without compliance with Rule 144’s minimum holding period requirements (subject to the terms of the lock-up agreement referred to below, if applicable).
Equity Incentive Plans
See “Executive Compensation—Amneal Pharmaceuticals, Inc. 2018 Incentive Plan” for more information.
 
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 MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS OF CLASS A COMMON STOCK
The following discussion is a summary of the material U.S. federal income tax considerations relevant to Non-U.S. Holders (as defined below) of the purchase, ownership and disposition of our Class A common stock, but does not purport to be a complete analysis of all potential tax effects. The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local or non-U.S. tax laws are not discussed. This discussion is based on the Code, Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the IRS, in each case in effect as of the date hereof. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a Non-U.S. Holder of our common stock. We have not sought and will not seek any rulings from the IRS regarding the matters discussed below. There can be no assurance the IRS or a court will not take a contrary position to that discussed below regarding the tax consequences of the purchase, ownership and disposition of our common stock.
This discussion is limited to Non-U.S. Holders that hold our common stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to a Non-U.S. Holder’s particular circumstances, including the impact of the Medicare contribution tax on net investment income. In addition, it does not address consequences relevant to Non-U.S. Holders subject to special rules, including, without limitation:
 
 	•	 	U.S. expatriates and former citizens or long-term residents of the United States;	
 
 	•	 	persons subject to the alternative minimum tax;	
 
 	•	 	persons holding our common stock as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other integrated investment;	
 
 	•	 	banks, insurance companies, and other financial institutions;	
 
 	•	 	brokers, dealers or traders in securities;	
 
 	•	 	“controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax;	
 
 	•	 	partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein);	
 
 	•	 	tax-exempt organizations or governmental organizations;	
 
 	•	 	persons deemed to sell our common stock under the constructive sale provisions of the Code;	
 
 	•	 	persons who hold or receive our common stock pursuant to the exercise of any employee stock option or otherwise as compensation;	
 
 	•	 	tax-qualified retirement plans;	
 
 	•	 	persons subject to special tax accounting rules as a result of any item of gross income with respect to our common stock being taken into account in an applicable financial statement; and	
 
 	•	 	“qualified foreign pension funds” as defined in Section 897(l)(2) of the Code and entities all of the interests of which are held by qualified foreign pension funds.	
If an entity (or arrangement) classified as a partnership for U.S. federal income tax purposes holds our common stock, the tax treatment of a partner or beneficial owner of the entity will depend on the status of the partner or beneficial owner, the activities of the entity and certain determinations made at the partner or beneficial owner level. Accordingly, entities classified as partnerships for U.S. federal income tax purposes that hold our common stock and the partners or beneficial owners of such entities should consult their tax advisors regarding the U.S. federal income tax consequences to them.
 
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THIS DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT TAX ADVICE. INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR COMMON STOCK ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY.
Definition of a Non-U.S. Holder
For purposes of this discussion, a “Non-U.S. Holder” is any beneficial owner of our common stock that is neither a “U.S. person” nor an entity (or arrangement) classified as a partnership for U.S. federal income tax purposes. A U.S. person is any person that, for U.S. federal income tax purposes, is or is treated as any of the following:
 
 	•	 	an individual who is a citizen or resident of the United States;	
 
 	•	 	an entity created or organized under the laws of the United States, any state thereof, or the District of Columbia that is classified as a corporation for U.S. federal income tax purposes;	
 
 	•	 	an estate, the income of which is subject to U.S. federal income tax regardless of its source; or	
 
 	•	 	a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect to be treated as a United States person for U.S. federal income tax purposes.	
Distributions
As described in the section entitled “Dividend Policy,” we do not anticipate paying dividends to holders of our common stock in the foreseeable future. However, if we do make distributions of cash or property on our common stock, such distributions will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Amounts not treated as dividends for U.S. federal income tax purposes will first constitute a return of capital and be applied against and reduce a Non-U.S. Holder’s adjusted tax basis in its common stock, but not below zero. Any excess will be treated as capital gain and will be treated as described below under “—Sale or Other Taxable Disposition.”
Except as described below with respect to effectively connected dividends and subject to the discussions below of backup withholding and Sections 1471 to 1474 of the Code (such Sections and related Treasury Regulations commonly referred to as the Foreign Account Tax Compliance Act, or FATCA), dividends paid to a Non-U.S. Holder of our common stock will be subject to U.S. federal withholding tax at a rate of 30% of the gross amount of the dividends (or such lower rate specified by an applicable income tax treaty, provided the Non-U.S. Holder furnishes a valid IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) certifying qualification for the lower treaty rate). If a Non-U.S. Holder holds the stock through a financial institution or other intermediary, the Non-U.S. Holder will be required to provide appropriate documentation to the intermediary, which then will be required to provide appropriate documentation to the applicable withholding agent, either directly or through other intermediaries. A Non-U.S. Holder that does not timely furnish the required documentation, but that qualifies for a reduced treaty rate, may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. Non-U.S. Holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.
If dividends paid to a Non-U.S. Holder are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment in the United States to which such dividends are attributable), the
 
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Non-U.S. Holder will be exempt from the U.S. federal withholding tax described above. To claim the exemption, the Non-U.S. Holder must furnish to the applicable withholding agent a valid IRS Form W-8ECI, certifying that the dividends are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States.
Any such effectively connected dividends will be subject to U.S. federal income tax on a net income basis at the regular graduated rates. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected dividends, as adjusted for certain items. Non-U.S. Holders should consult their tax advisors regarding any applicable tax treaties that may provide for different rules or rates.
Sale or Other Taxable Disposition
Subject to the discussions below regarding FATCA and backup withholding, a Non-U.S. Holder will not be subject to U.S. federal income tax on any gain realized upon the sale or other taxable disposition of our common stock unless:
 
 	•	 	the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment in the United States to which such gain is attributable);	
 
 	•	 	the Non-U.S. Holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the disposition and certain other requirements are met; or	
 
 	•	 	our common stock constitutes a U.S. real property interest (“USRPI”) by reason of our status as a U.S. real property holding corporation (“USRPHC”) for U.S. federal income tax purposes.	
Gain described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at the regular graduated rates. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items.
Gain described in the second bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty), which may be offset by U.S. source capital losses of the Non-U.S. Holder (even though the individual is not considered a resident of the United States), provided the Non-U.S. Holder has timely filed U.S. federal income tax returns with respect to such losses.
With respect to the third bullet point above, we believe we currently are not, and do not anticipate becoming, a USRPHC. Because the determination of whether we are a USRPHC depends, however, on the fair market value of our USRPIs relative to the fair market value of our non-U.S. real property interests and our other business assets, there can be no assurance that we currently are not a USRPHC or will not become one in the future. Even if we are or were to become a USRPHC, gain arising from the sale or other taxable disposition by a Non-U.S. Holder of our common stock will not be subject to U.S. federal income tax if our common stock is “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market, and such Non-U.S. Holder owned, actually or constructively, 5% or less of our common stock throughout the shorter of the five-year period ending on the date of the sale or other taxable disposition of, or the Non-U.S. Holder’s holding period for, our common stock.
Non-U.S. Holders should consult their tax advisors regarding potentially applicable income tax treaties that may provide for different rules.
Information Reporting and Backup Withholding
Payments of dividends on our common stock will not be subject to backup withholding, provided the applicable withholding agent does not have actual knowledge or reason to know the holder is a U.S. person and
 
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the holder either certifies its non-U.S. status, such as by furnishing a valid IRS Form W-8BEN, W-8BEN-E or W-8ECI, or otherwise establishes an exemption. However, information returns are required to be filed with the IRS in connection with any dividends on our common stock paid to the Non-U.S. Holder, regardless of whether any tax was actually withheld. In addition, proceeds of the sale or other taxable disposition of our common stock within the United States or conducted through certain U.S.-related brokers generally will not be subject to backup withholding or information reporting, if the applicable withholding agent receives the certification described above and does not have actual knowledge or reason to know that such holder is a U.S. person, or the holder otherwise establishes an exemption. Proceeds of a disposition of our common stock conducted through a non-U.S. office of a non-U.S. broker generally will not be subject to backup withholding or information reporting.
Copies of information returns that are filed with the IRS may also be made available under the provisions of an applicable treaty or agreement to the tax authorities of the country in which the Non-U.S. Holder resides or is established or organized.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a Non-U.S. Holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS.
Additional Withholding Tax on Payments Made to Foreign Accounts
Withholding taxes may be imposed under FATCA on certain types of payments made to non-U.S. financial institutions and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on dividends on, or gross proceeds from the sale or other disposition of, our common stock paid to a “foreign financial institution” (as defined by the Code to include, in addition to banks and traditional financial institutions, entities such as investment funds and certain holding companies) or a “non-financial foreign entity” (as defined in the Code), unless (1) the foreign financial institution undertakes certain diligence, reporting and withholding obligations, (2) the non-financial foreign entity either certifies it does not have any “substantial United States owners” (as defined in the Code) or furnishes identifying information regarding each substantial United States owner, or (3) the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence, reporting and withholding requirements in (1) above, it must enter into an agreement with the U.S. Department of the Treasury requiring, among other things, that it undertake to identify accounts held by certain “specified United States persons” or “United States-owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and withhold 30% on certain payments to non-compliant foreign financial institutions and certain other account holders. Accordingly, the entity through which our common stock is held will affect the determination of whether such withholding is required. Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject to different rules.
Under the applicable Treasury Regulations and administrative guidance, withholding under FATCA generally applies currently to payments of dividends on our common stock and will apply to payments of gross proceeds from the sale or other disposition of such stock on or after January 1, 2019.
Prospective investors should consult their tax advisors regarding the potential application of withholding under FATCA to their investment in our common stock.
 
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 PLAN OF DISTRIBUTION
The selling stockholders, which as used herein includes donees, pledgees, transferees or other successors-in-interest selling shares of Class A common stock or interests in shares of Class A common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer, may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of Class A common stock or interests in shares of Class A common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices.
The selling stockholders may dispose of shares or interests therein in one or more types of transaction, which may include:
 
 	•	 	purchases by underwriters, dealers and agents who may receive compensation in the form of underwriting discounts, concessions or commissions for the selling stockholders and/or the purchasers of the securities for whom they may act as agent;	
 
 	•	 	ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;	
 
 	•	 	block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction, or in crosses, in which the same broker acts as agent on both sides of the trade;	
 
 	•	 	purchases by a broker-dealer as principal and resale by the broker-dealer for its account;	
 
 	•	 	the pledge of securities for any loan or obligation, including pledges to brokers or dealers who may from time to time effect distributions of securities;	
 
 	•	 	one or more exchanges or over-the-counter market transactions;	
 
 	•	 	distributions to equity holders or creditors of the selling stockholders;	
 
 	•	 	an exchange distribution in accordance with the rules of the applicable exchange;	
 
 	•	 	privately negotiated transactions;	
 
 	•	 	short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the SEC;	
 
 	•	 	through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;	
 
 	•	 	broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;	
 
 	•	 	a combination of any such methods of sale; and	
 
 	•	 	any other method permitted by applicable law	
The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of Class A common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of Class A common stock, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of Class A common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
 
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In connection with the sale of our Class A common stock or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the Class A common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our Class A common stock short and deliver these securities to close out their short positions, or loan or pledge the Class A common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to the selling stockholders from the sale of the Class A common stock offered by them will be the purchase price of the Class A common stock less discounts or commissions, if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of Class A common stock to be made directly or through agents. We will not receive any of the proceeds from this offering.
The selling stockholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided that they meet the criteria and conform to the requirements of that rule.
In connection with sales of securities covered hereby, the selling stockholders and any underwriter, broker-dealer or agent and any other participating broker-dealer that executes sales for the selling stockholders may be deemed to be an “underwriter” within the meaning of the Securities Act. Based upon the applicable facts and circumstances, including when and how each selling stockholder’s respective shares of Class A common stock were acquired, Amneal Holdings believes that it should be considered an “underwriter” within the meaning of such term under the Securities Act. None of the other selling stockholders believes that it should be considered an “underwriter” within the meaning of such term under the Securities Act. Accordingly, any profits realized by the selling stockholders and any compensation earned by such underwriter, broker-dealer or agent may be deemed to be underwriting discounts and commissions. Selling stockholders who are “underwriters” under the Securities Act must deliver this prospectus in the manner required by the Securities Act. This prospectus delivery requirement may be satisfied through the facilities of the New York Stock Exchange in accordance with Rule 153 under the Securities Act or satisfied in accordance with Rule 174 under the Securities Act.
To the extent required, the shares of our Class A common stock to be sold, the names of the selling stockholders, the respective purchase prices and public offering prices, the names of any agents, dealer or underwriter, any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
In order to comply with the securities laws of some states, if applicable, the Class A common stock may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the Class A common stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.
We have advised the selling stockholders that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of shares in the market and to the activities of the selling stockholders and their affiliates. In addition, to the extent applicable we will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the selling stockholders for the purpose of satisfying the prospectus delivery requirements of the Securities Act. The selling stockholders may indemnify any broker-dealer that participates in transactions involving the sale of the shares against certain liabilities, including liabilities arising under the Securities Act.
We have agreed to indemnify the selling stockholders against liabilities, including liabilities under the Securities Act, relating to the registration of the shares offered by this prospectus.
 
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In connection with an offering of securities under this prospectus, the underwriters may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in an offering. Stabilizing transaction consist of certain bids or purchases made for the purpose of preventing or retarding a decline in the market price of the securities while an offering is in progress.
The underwriters also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the underwriters have repurchased securities sold by or for the account of that underwriter in stabilizing or short-covering transactions.
These activities by the underwriters may stabilize, maintain or otherwise affect the market price of the securities offered under this prospectus. As a result, the price of the securities may be higher than the price that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by the underwriters at any time. These transactions may be effected on the New York Stock Exchange or another securities exchange or automated quotation system, or in the over-the-counter market or otherwise.
We will not receive any cash proceeds from our issuance of shares of Class A common stock to the selling stockholders or the sale by the selling stockholders of our shares of Class A common stock pursuant to this prospectus. Each selling stockholder will bear the cost of any underwriting discounts and selling commissions related to their respective offering and sale of shares of Class A common stock pursuant to this prospectus. We may be required to indemnify the selling stockholders against liabilities, including some liabilities under the Securities Act, in accordance with the Registration Rights Agreement, or the selling stockholders will be entitled to contribution. We, our affiliates and our respective directors, officers, employees, agents and control persons may be indemnified by the selling stockholders against liabilities that may arise from any written information furnished to us by the selling stockholder specifically for use in this prospectus, in accordance with the Registration Rights Agreement, or we or they may be entitled to contribution.
 
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 LEGAL MATTERS
The validity of the issuance of our Class A common stock offered in this prospectus will be passed upon for us by Latham & Watkins LLP.
 EXPERTS
The consolidated financial statements and financial statement schedule of Impax and subsidiaries as of December 31, 2017 and 2016, and for each of the years in the three-year period ended December 31, 2017, have been included in this prospectus in reliance upon the report of KPMG LLP, independent registered public accounting firm, included elsewhere herein, and upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Amneal Pharmaceuticals LLC at December 31, 2017 and 2016, and for each of the three years in the period ended December 31, 2017, appearing in this Prospectus and Registration Statement have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
 WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1, including exhibits and schedules, under the Securities Act that registers the shares of our Class A common stock to be sold in this offering. This prospectus does not contain all the information contained in the registration statement and the exhibits and schedules filed as part of the registration statement. For further information with respect to us and our Class A common stock, we refer you to the registration statement and the exhibits and schedules filed as part of the registration statement. Statements contained in this prospectus as to the contents of any contract or other document are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, we refer you to the copies of the contract or document that has been filed. Each statement in this prospectus relating to a contract or document filed as an exhibit is qualified in all respects by the filed exhibit.
We file annual, quarterly and current reports, proxy statements and other information with the SEC under the Exchange Act. You can read our SEC filings, including the registration statement, at the SEC’s website at www.sec.gov . You may read and copy the registration statement of which this prospectus is a part at the SEC’s public reference room, which is located at 100 F Street, N.E., Room 1580, Washington, DC 20549. You can request copies of the registration statement by writing to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for more information about the operation of the SEC’s public reference room.
You also can get more information about Impax by visiting its website at www.impaxlabs.com. Website materials are not part of this prospectus.
 
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 INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

Amneal Pharmaceuticals LLC	  				
		
Consolidated Financial Statements	  				
		
Report of Independent Registered Public Accounting Firm	  	 	F-2	 	
		
Consolidated Balance Sheets as of December 31, 2017 and 2016	  	 	F-3	 	
		
Consolidated Statements of Income for the years ended December  31, 2017, 2016, and 2015	  	 	F-4	 	
		
Consolidated Statements of Comprehensive Income for the years ended December 31, 2017, 2016, and 2015	  	 	F-5	 	
		
Consolidated Statements of Changes in Members’ Deficit for the years ended December 31, 2017, 2016, and 2015	  	 	F-6	 	
		
Consolidated Statements of Cash Flows for the years ended December  31, 2017, 2016, and 2015	  	 	F-7	 	
		
Notes to Consolidated Financial Statements	  	 	F-9	 	
		
Impax Laboratories, Inc.	  				
		
Consolidated Financial Statements	  				
		
Report of Independent Registered Public Accounting Firm	  	 	F-41	 	
		
Consolidated Balance Sheets as of December 31, 2017 and 2016	  	 	F-42	 	
		
Consolidated Statements of Operations for the years ended December  31, 2017, 2016, and 2015	  	 	F-43	 	
		
Consolidated Statements of Comprehensive (Loss) Income for the years ended December 31, 2017, 2016, and 2015	  	 	F-44	 	
		
Consolidated Statements of Changes in Stockholders’ Equity for the years ended December 31, 2017, 2016, and 2015	  	 	F-45	 	
		
Consolidated Statements of Cash Flows for the years ended December  31, 2017, 2016, and 2015	  	 	F-46	 	
		
Notes to Consolidated Financial Statements	  	 	F-48	 	
		
Schedule II, Valuation and Qualifying Accounts	  	 	F-118	 	
 
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Table of Contents
 Report of Independent Registered Public Accounting Firm
To the Shareholders and the Board of Managers of Amneal Pharmaceuticals LLC
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Amneal Pharmaceuticals LLC and subsidiaries (the Company) as of December 31, 2017 and 2016, the related consolidated statements of income, comprehensive income, changes in members’ deficit and cash flows for each of the three years in the period ended December 31, 2017, and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2017 and 2016, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2017, in conformity with U.S. generally accepted accounting principles.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB and in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ Ernst & Young LLP
We have served as the Company’s auditor since 2008.
Iselin, New Jersey
March 7, 2018
 
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Table of Contents
 Amneal Pharmaceuticals LLC and Subsidiaries
Consolidated Balance Sheets
(in thousands except unit amounts)

 	  	December 31	 	
 	  	2017	 	 	2016	 	
Assets	  				 				
Current assets:	  				 				
Cash and cash equivalents	  	$	74,166	 	 	$	27,367	 	
Restricted cash	  	 	3,756	 	 	 	10,179	 	
Trade accounts receivable—net	  	 	351,367	 	 	 	394,786	 	
Inventories	  	 	284,038	 	 	 	266,161	 	
Prepaid expenses and other current assets	  	 	42,396	 	 	 	16,446	 	
Related-party receivables	  	 	16,210	 	 	 	11,175	 	
	  	 	 	 	 	 	 	 	
Total current assets	  	 	771, 933	 	 	 	726,114	 	
	  	 	 	 	 	 	 	 	
Property, plant, and equipment—net	  	 	486,758	 	 	 	407,404	 	
Goodwill	  	 	26,444	 	 	 	28,441	 	
Intangible assets—net	  	 	44,599	 	 	 	45,929	 	
Other assets	  	 	12,155	 	 	 	10,929	 	
	  	 	 	 	 	 	 	 	
Total assets	  	$	1,341,889	 	 	$	1,218,817	 	
	  	 	 	 	 	 	 	 	
Liabilities and members’ deficit	  				 				
Current liabilities:	  				 				
Accounts payable	  	$	70,013	 	 	$	60,033	 	
Accrued liabilities	  	 	78,646	 	 	 	74,932	 	
Accrued returns allowance	  	 	45,175	 	 	 	46,195	 	
Current portion of financing obligations	  	 	311	 	 	 	274	 	
Taxes payable	  	 	849	 	 	 	2,625	 	
Revolving credit facility	  	 	75,000	 	 	 	25,000	 	
Current portion of long-term debt	  	 	14,171	 	 	 	11,620	 	
Current portion of capital lease obligations	  	 	96	 	 	 	91	 	
Related-party payables	  	 	12,622	 	 	 	4,303	 	
	  	 	 	 	 	 	 	 	
Total current liabilities	  	 	296,883	 	 	 	225,073	 	
	  	 	 	 	 	 	 	 	
Long-term debt, net	  	 	1,355,274	 	 	 	1,119,268	 	
Long-term portion of financing obligations	  	 	39,987	 	 	 	40,298	 	
Deferred income taxes	  	 	2,491	 	 	 	1,673	 	
Long-term portion of capital leases	  	 	825	 	 	 	921	 	
Other long-term liabilities	  	 	6,968	 	 	 	7,529	 	
Related-party payable—long-term	  	 	15,043	 	 	 	—  	 	
	  	 	 	 	 	 	 	 	
Total long-term liabilities	  	 	1,420,588	 	 	 	1,169,689	 	
	  	 	 	 	 	 	 	 	
Commitments and contingencies (Note 18)	  				 				
			
Members’ equity (189,000,000 units authorized, issued and outstanding at December 31, 2017 and 2016)	  	 	2,716	 	 	 	2,675	 	
Additional paid-in capital	  	 	8,562	 	 	 	—  	 	
Accumulated other comprehensive loss	  	 	(14,232	) 	 	 	(12,797	) 	
Accumulated deficit	  	 	(382,785	) 	 	 	(175,168	) 	
	  	 	 	 	 	 	 	 	
Subtotal—members’ deficit	  	 	(385,739	) 	 	 	(185,290	) 	
Non-controlling interest	  	 	10,157	 	 	 	9,345	 	
	  	 	 	 	 	 	 	 	
Total members’ deficit	  	 	(375,582	) 	 	 	(175,945	) 	
	  	 	 	 	 	 	 	 	
Total liabilities and members’ deficit	  	$	1,341,889	 	 	$	1,218,817	 	
	  	 	 	 	 	 	 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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Table of Contents
 Amneal Pharmaceuticals LLC and Subsidiaries
Consolidated Statements of Income
(in thousands except unit amounts)

 	  	Years ended December 31	 	
 	  	2017	 	 	2016	 	 	2015	 	
Net revenue	  	$	1,033,654	 	 	$	1,018,225	 	 	$	866,280	 	
Cost of goods sold	  	 	480,033	 	 	 	402,227	 	 	 	349,563	 	
Depreciation and amortization	  	 	27,443	 	 	 	18,507	 	 	 	15,034	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Gross profit	  	 	526,178	 	 	 	597,491	 	 	 	501,683	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Selling, general, and administrative	  	 	104,423	 	 	 	115,130	 	 	 	97,179	 	
Research and development	  	 	157,550	 	 	 	168,137	 	 	 	136,870	 	
Intellectual property legal development expenses	  	 	20,518	 	 	 	25,728	 	 	 	16,843	 	
Depreciation	  	 	18,493	 	 	 	14,509	 	 	 	10,413	 	
Member units purchase	  	 	—  	 	 	 	—  	 	 	 	12,500	 	
Patent litigation settlement gain	  	 	—  	 	 	 	(11,000	) 	 	 	(8,650	) 	
Legal settlement gain	  	 	(21,467	) 	 	 	—  	 	 	 	—  	 	
Acquisition and transaction-related expenses	  	 	9,403	 	 	 	70	 	 	 	370	 	
Intangible asset impairment charges	  	 	—  	 	 	 	36	 	 	 	—  	 	
Development contract settlement	  	 	(7,845	) 	 	 	—  	 	 	 	—  	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Operating profit	  	 	245,103	 	 	 	284,881	 	 	 	236,158	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Interest expense	  	 	(71,108	) 	 	 	(55,952	) 	 	 	(45,835	) 	
Foreign exchange gain (loss)	  	 	29,092	 	 	 	(14,108	) 	 	 	(12,150	) 	
Loss on extinguishment and modification of debt	  	 	(2,532	) 	 	 	—  	 	 	 	(2,591	) 	
Loss on sale of certain international businesses	  	 	(29,232	) 	 	 	—  	 	 	 	—  	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Total other expense, net	  	 	(73,780	) 	 	 	(70,060	) 	 	 	(60,576	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Income before tax	  	 	171,323	 	 	 	214,821	 	 	 	175,582	 	
Income tax provision	  	 	1,998	 	 	 	5,395	 	 	 	4,951	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net income	  	 	169,325	 	 	 	209,426	 	 	 	170,631	 	
Less net income attributable to non-controlling interest	  	 	(1,677	) 	 	 	(2,048	) 	 	 	(1,180	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net income attributable to Amneal Pharmaceuticals LLC and Subsidiaries	  	$	167,648	 	 	$	207,378	 	 	$	169,451	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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Table of Contents
 Amneal Pharmaceuticals LLC and Subsidiaries
Consolidated Statements of Comprehensive Income
(in thousands except unit amounts)

 	  	Years ended December 31	 	
 	  	2017	 	 	2016	 	 	2015	 	
Net income	  	$	169,325	 	 	$	209,426	 	 	$	170,631	 	
Other comprehensive income (loss):	  				 				 				
Foreign currency translation adjustment	  	 	(1,435	) 	 	 	3,047	 	 	 	(713	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Comprehensive income	  	 	167,890	 	 	 	212,473	 	 	 	169,918	 	
Less comprehensive income attributable to non-controlling interest	  	 	(1,677	) 	 	 	(2,048	) 	 	 	(1,180	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Comprehensive income attributable to Amneal Pharmaceuticals LLC and Subsidiaries	  	$	166,213	 	 	$	210,425	 	 	$	168,738	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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Table of Contents
 Amneal Pharmaceuticals LLC and Subsidiaries
Consolidated Statements of Changes in Members’ Deficit
(in thousands except unit amounts)

 	 	Members’
Equity	 	 	Additional
Paid-In
Capital	 	 	Accumulated
Other
Comprehensive
Income (Loss)	 	 	(Accumulated
Deficit)
Retained
Earnings	 	 	Non-Controlling
Interest	 	 	Total	 	
Balance—January 1, 2015	 	$	2,694	 	 	$	—  	 	 	$	(15,131	) 	 	$	(93,258	) 	 	$	8,026	 	 	$	(97,669	) 	
Net income	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	169,451	 	 	 	1,180	 	 	 	170,631	 	
Dividend to non-controlling interest	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(936	) 	 	 	(936	) 	
Distributions to members	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(258,169	) 	 	 	—  	 	 	 	(258,169	) 	
Foreign currency translation	 	 	—  	 	 	 	—  	 	 	 	(713	) 	 	 	—  	 	 	 	—  	 	 	 	(713	) 	
Return of capital	 	 	(19	) 	 	 	—  	 	 	 	—  	 	 	 	2	 	 	 	—  	 	 	 	(17	) 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance—December 31, 2015	 	 	2,675	 	 	 	—  	 	 	 	(15,844	) 	 	 	(181,974	) 	 	 	8,270	 	 	 	(186,873	) 	
Net income	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	207,378	 	 	 	2,048	 	 	 	209,426	 	
Dividend to non-controlling interest	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(973	) 	 	 	(973	) 	
Distributions to members	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(200,615	) 	 	 	—  	 	 	 	(200,615	) 	
Foreign currency translation	 	 	—  	 	 	 	—  	 	 	 	3,047	 	 	 	—  	 	 	 	—  	 	 	 	3,047	 	
Return of capital	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	43	 	 	 	—  	 	 	 	43	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance—December 31, 2016	 	 	2,675	 	 	 	—  	 	 	 	(12,797	) 	 	 	(175,168	) 	 	 	9,345	 	 	 	(175,945	) 	
Net income	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	167,648	 	 	 	1,677	 	 	 	169,325	 	
Dividend to non-controlling interest	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(865	) 	 	 	(865	) 	
Capital Contribution	 	 	41	 	 	 	8,562	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	8,603	 	
Distributions to members	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(375,265	) 	 	 	—  	 	 	 	(375,265	) 	
Foreign currency translation	 	 	—  	 	 	 	—  	 	 	 	(1,435	) 	 	 	—  	 	 	 	—  	 	 	 	(1,435	) 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance—December 31, 2017	 	$	2,716	 	 	$	8,562	 	 	$	(14,232	) 	 	$	(382,785	) 	 	$	10,157	 	 	$	(375,582	) 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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Table of Contents
 Amneal Pharmaceuticals LLC and Subsidiaries
Consolidated Statements of Cash Flows
(in thousands except unit amounts)

 	  	Years ended December 31	 	
 	  	2017	 	 	2016	 	 	2015	 	
Operating activities:	  				 				 				
Net income	  	$	169,325	 	 	$	209,426	 	 	$	170,631	 	
Adjustments to reconcile net income to net cash provided by operating activities:	  				 				 				
Depreciation and amortization	  	 	45,936	 	 	 	33,016	 	 	 	25,447	 	
Unrealized foreign currency (gain) loss	  	 	(30,823	) 	 	 	12,162	 	 	 	10,667	 	
Amortization of debt issuance costs	  	 	4,585	 	 	 	3,055	 	 	 	1,857	 	
Loss on extinguishment and modification of debt	  	 	2,532	 	 	 	—  	 	 	 	2,591	 	
Intangible asset impairment charges	  	 	—  	 	 	 	36	 	 	 	—  	 	
Loss on sale of certain international businesses	  	 	29,232	 	 	 	—  	 	 	 	—  	 	
Transaction costs paid by Amneal Holdings, LLC	  	 	8,561	 	 	 	—  	 	 	 	—  	 	
Deferred tax provision	  	 	742	 	 	 	121	 	 	 	171	 	
Inventory provision	  	 	3,771	 	 	 	9,235	 	 	 	1,540	 	
Allowance for doubtful accounts provision	  	 	1,374	 	 	 	161	 	 	 	95	 	
Changes in assets and liabilities:	  				 				 				
Trade accounts receivable—net	  	 	35,255	 	 	 	(122,482	) 	 	 	(44,651	) 	
Inventories	  	 	(31,826	) 	 	 	(42,587	) 	 	 	(78,075	) 	
Prepaid expenses and other current assets	  	 	(24,630	) 	 	 	2,475	 	 	 	(2,733	) 	
Related-party receivables	  	 	(5,485	) 	 	 	307	 	 	 	(4,755	) 	
Other assets	  	 	(675	) 	 	 	(433	) 	 	 	(7,474	) 	
Accounts payable	  	 	15,173	 	 	 	(9,358	) 	 	 	10,130	 	
Accrued returns allowance	  	 	(376	) 	 	 	14,279	 	 	 	4,537	 	
Taxes payable	  	 	(2,263	) 	 	 	40	 	 	 	1,536	 	
Accrued expenses and other current liabilities	  	 	6,444	 	 	 	96	 	 	 	13,020	 	
Other liabilities	  	 	(873	) 	 	 	1,208	 	 	 	349	 	
Related-party payables	  	 	8,208	 	 	 	4,303	 	 	 	—  	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net cash provided by operating activities	  	 	234,187	 	 	 	115,060	 	 	 	104,883	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Investing activities:	  				 				 				
(Increase) decrease in restricted cash	  	 	6,798	 	 	 	(6,272	) 	 	 	(3,843	) 	
Purchases of property, plant, and equipment	  	 	(94,771	) 	 	 	(122,756	) 	 	 	(117,380	) 	
Acquisition of product rights and licenses	  	 	(19,500	) 	 	 	(1,850	) 	 	 	—  	 	
Acquisitions, net of cash acquired	  	 	—  	 	 	 	—  	 	 	 	(14,401	) 	
Proceeds from sale of certain international businesses, net of cash sold	  	 	15,717	 	 	 	—  	 	 	 	—  	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net cash used in investing activities	  	 	(91,756	) 	 	 	(130,878	) 	 	 	(135,624	) 	

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Table of Contents
Amneal Pharmaceuticals LLC and Subsidiaries
Consolidated Statements of Cash Flows
(in thousands except unit amounts)

 	  	Years ended December 31	 	
 	  	2017	 	 	2016	 	 	2015	 	
Financing activities:	  				 				 				
Payments of deferred financing costs	  	 	(5,026	) 	 	 	(6,506	) 	 	 	(2,871	) 	
Payments on capital leases	  	 	(91	) 	 	 	(85	) 	 	 	(80	) 	
Repayments on financing obligations	  	 	(274	) 	 	 	(259	) 	 	 	(1,264	) 	
Net (payments) borrowings from revolving credit line	  	 	50,000	 	 	 	(25,000	) 	 	 	50,000	 	
Proceeds from issuance of term loan debt	  	 	250,000	 	 	 	225,000	 	 	 	200,000	 	
Payments on term loan debt	  	 	(13,534	) 	 	 	(11,052	) 	 	 	(11,667	) 	
Equity contributions	  	 	40	 	 	 	(5	) 	 	 	—  	 	
Dividend to non-controlling interest	  	 	(865	) 	 	 	(973	) 	 	 	(936	) 	
Distributions to members	  	 	(375,265	) 	 	 	(200,615	) 	 	 	(258,169	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net cash used in financing activities	  	 	(95,015	) 	 	 	(19,495	) 	 	 	(24,987	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Effect of foreign exchange rate on cash	  	 	(617	) 	 	 	1,593	 	 	 	(707	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net (decrease) increase in cash and cash equivalents	  	 	46,799	 	 	 	(33,720	) 	 	 	(56,435	) 	
Cash and cash equivalents—beginning of year	  	 	27,367	 	 	 	61,087	 	 	 	117,522	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Cash and cash equivalents—end of year	  	$	74,166	 	 	$	27,367	 	 	$	61,087	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Supplemental disclosure of cash flow information:	  				 				 				
Cash paid during the year for interest	  	$	65,086	 	 	$	50,569	 	 	$	42,405	 	
Foreign incomes taxes paid	  	 	5,780	 	 	$	4,922	 	 	$	4,137	 	
Schedule of Non-Cash Investing and Financing Activities:	  				 				 				
Purchases of property, plant, and equipment	  	$	7,412	 	 	$	—  	 	 	$	—  	 	
Receivable from sale of certain international businesses	  	$	1,936	 	 	$	—  	 	 	$	—  	 	
Note payable resulting from the Ireland building purchase	  	$	14,758	 	 	$	—  	 	 	$	—  	 	
Transaction costs paid by Amneal Holdings	  	$	8,561	 	 	$	—  	 	 	$	—  	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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Table of Contents

 1.	Nature of Operations and Basis of Presentation	
Amneal Pharmaceuticals LLC (“Amneal”) was formed during 2002 and operates through various subsidiaries. Amneal is a vertically-integrated developer, manufacturer, and seller of generic pharmaceutical products. Amneal’s pharmaceutical research includes analytical and formulation development and stability. Amneal has operations in the United States of America (U.S.), Switzerland, India, Ireland and the United Kingdom (U.K.), and certain other countries, primarily in Western Europe. Amneal sells to wholesalers, distributors, hospitals, chain pharmacies and individual pharmacies, either directly or indirectly.
On October 17, 2017, Amneal and Impax Laboratories, Inc. (“Impax”) entered into the Business Combination Agreement (the “Combination”). Under the terms of the Combination, the combined company (“New Amneal”) will be formed. As a result of the Combination, Amneal Holdings, LLC (“Amneal Holdings”) members immediately prior to the closing of the Combination will receive Class B Common Stock and Amneal Common Units and will be able to redeem at their option, at or following closing, their Amneal Common Units for Class A Common Stock or Class B-1 Common Stock. As a result, Amneal members immediately prior to the closing of the Combination will own approximately 75% of the voting power of New Amneal and Impax’s stockholders immediately prior to the closing of the Combination will own approximately 25% of the voting power of New Amneal. The Combination will be structured as an “Up-C” transaction with a tax receivable agreement split 85% / 15% between Amneal Holdings members and New Amneal, respectively.
The Combination has been unanimously approved by the Boards of Managers of Amneal and the Board of Directors of Impax, and is supported by the management teams of both companies. The Combination is expected to close in the first half of 2018, subject to the satisfaction of customary closing conditions, including receipt of regulatory approvals and Impax shareholder approval. Amneal has received the requisite approval from its members for the transaction.
In connection with the Combination, Amneal Holdings members have entered into definitive purchase agreements with select institutional investors including TPG and funds affiliated with Fidelity Management & Research Company to sell 46.8 million unregistered common shares at $18.25 per share in a private placement for gross proceeds of $855 million, or approximately 15% of fully diluted common shares outstanding on an as converted basis.
 
2.	Summary of Significant Accounting Policies	
Principles of Consolidation
The consolidated financial statements include the accounts of Amneal and all of its subsidiaries in which a controlling interest is maintained and are prepared in accordance with generally accepted accounting principles in the U.S. (“U.S. GAAP”). All intercompany transactions and balances have been eliminated in consolidation.
Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires Amneal’s management to make estimates and assumptions that affect the reported financial position at the date of the financial statements and the reported results of operations during the reporting period. Such estimates and assumptions affect the reported amounts of assets, liabilities, revenues and expenses, and disclosure of contingent assets and liabilities in the consolidated financial statements and accompanying notes. The following are some, but not all, of such estimates: the determination of chargebacks, sales returns, rebates, bill backs, allowances for accounts receivable, accrued liabilities, valuation of inventory balances, the determination of useful lives for product rights and the assessment of expected cash flows used in evaluating goodwill and other long-lived assets for impairment. Actual results could differ from those estimates.
 
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Revenue Recognition
Revenue from product sales is recognized when persuasive evidence of an arrangement exists, title and risk of loss has transferred to the customer, the price is fixed or determinable, and collection is reasonably assured. Amneal permits the return of product under certain circumstances. Product sales are recorded net of all sales-related deductions including, but not limited to: sales discounts and returns, chargebacks, sales volume rebates, shelf stocks, re-procurement charges, cash discounts, and Medicaid rebate obligations. Amneal establishes provisions for its sales-related deductions in the same period that it recognizes the related gross sales. These accruals reduce gross revenues and, with the exception of returns and Medicaid rebates, are treated as a reduction of trade receivables. Returns and Medicaid rebates are recorded as a liability. At the time a rebate or chargeback payment is made or a product return credit is issued, Amneal records a reduction to the contra accounts receivable or liability account.
Amneal estimates sales-related deductions based primarily on historical experience, estimated future trends, estimated customer inventory levels and contract sales terms with Amneal’s wholesale, retail, indirect, and institutional customers. The product returns accrual is primarily based on estimates of future product returns based generally on historical sales and return rates. Amneal estimates its chargeback accrual based on its estimates of the level of inventory of its products in the distribution channel that remain subject to chargebacks and historical chargeback rates. The estimate of the level of products in the distribution channel is based primarily on data provided by key customers. Amneal’s sales volume rebate accrual is based on actual net sales and the rebate rate for each customer. Amneal provides for cash discounts, which are deducted from revenues at the time of sale. Amneal estimates its Medicaid rebate accruals based on monthly sales, historical rates, and estimated lag time of the rebate invoices. Amneal’s accruals for returns, chargebacks, and rebates are adjusted as appropriate for specific known developments that may result in a change in its obligations. No material revisions were made to the methodology used in determining these reserves during the years ended December 31, 2017, 2016, and 2015.
A rollforward of the major categories of sales-related deductions for the years ended December 31, 2017, 2016, and 2015 is as follows (in thousands):

 	  	Contract
Charge-backs
and Sales
Volume
Allowances	 	 	Cash Discount
Allowances	 	 	Accrued
Returns
Allowance	 	 	Accrued
Medicaid
Rebates	 	
Balance at January 1, 2015	  	$	262,514	 	 	$	14,420	 	 	$	27,586	 	 	$	4,172	 	
Provision related to sales recorded in the period	  	 	1,900,663	 	 	 	62,392	 	 	 	14,928	 	 	 	31,588	 	
Credits issued during the period	  	 	(1,832,366	) 	 	 	(61,918	) 	 	 	(10,390	) 	 	 	(21,375	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at December 31, 2015	  	 	330,811	 	 	 	14,894	 	 	 	32,124	 	 	 	14,385	 	
Provision related to sales recorded in the period	  	 	2,182,606	 	 	 	70,662	 	 	 	31,741	 	 	 	17,181	 	
Credits issued during the period	  	 	(2,146,569	) 	 	 	(67,118	) 	 	 	(17,670	) 	 	 	(23,509	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at December 31, 2016	  	 	366,848	 	 	 	18,438	 	 	 	46,195	 	 	 	8,057	 	
Provision related to sales recorded in the period	  	 	2,489,681	 	 	 	79,837	 	 	 	24,571	 	 	 	25,982	 	
Credits issued during the period	  	 	(2,402,826	) 	 	 	(77,867	) 	 	 	(25,591	) 	 	 	(21,128	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at December 31, 2017	  	$	453,703	 	 	$	20,408	 	 	$	45,175	 	 	$	12,911	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Revenue from royalties is recognized when Amneal’s commercial partners realize net sales of products. Royalties are recognized as earned in accordance with contract terms with partners and when collection is reasonably assured. Revenues from royalties were 1.2%, 1.7%, and 3.5% of Net Revenue for the years ended December 31, 2017, 2016, and 2015, respectively.
 
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Table of Contents
Acquisition and Transaction-Related Expenses
Amneal incurs acquisition-related costs in connection with business combinations. Acquisition-related costs are expensed as incurred and amounted to $0.3 million for the year ended December 31, 2017.
As a result of the Combination (refer to Note 1. Nature of Operations and Basis of Presentation), Amneal recognized transaction-related expenses of $9.1 million for the year ended December 31, 2017. Of the $9.1 million recognized by Amneal, $8.6 million was incurred by its parent, Amneal Holdings, LLC, and therefore, was recognized as a capital contribution.
Foreign Currencies
Amneal has operations in the U.S., Switzerland, India, the U.K., Ireland, and other international jurisdictions. The results of its non-U.S. dollar based operations are translated to U.S. Dollars at the average exchange rates during the period. Assets and liabilities are translated at the rate of exchange prevailing on the balance sheet date. Investment accounts are translated at historical exchange rates. Translation adjustments are accumulated in a separate component of members’ equity (deficit) in the Consolidated Balance Sheet and are included in the determination of comprehensive income. Transaction gains and losses are included in the determination of net income in Amneal’s Consolidated Statements of Income as a component of Foreign exchange gain/loss. Such foreign currency transaction gains and losses include fluctuations related to long term intercompany loans that are payable in the foreseeable future. There was a Transaction gain of $29.1 million for the year ended December 31, 2017. Transaction losses were $14.1 million and $12.2 million for the years ended December 31, 2016, and 2015, respectively.
Business Combinations
Business combinations are accounted for using the acquisition method of accounting. Under the acquisition method the acquiring entity in a business combination records the assets acquired and liabilities assumed at the date of acquisition at their fair values. Any excess of the purchase price over the fair value of net assets and other identifiable intangible assets acquired is recorded as goodwill. Acquisition-related costs, primarily professional fees, are expensed as incurred.
Cash and Cash Equivalents
Cash and cash equivalents consist of cash on deposit and highly liquid investments with original maturities of three months or less. A portion of Amneal’s cash flows are derived outside the U.S. As a result, Amneal is subject to market risk associated with changes in foreign exchange rates. Amneal maintains cash balances at both U.S. based and foreign based commercial banks. At various times during the year, cash balances in the U.S. may exceed amounts that are insured by the Federal Deposit Insurance Corporation (FDIC).
Restricted Cash
At December 31, 2017 and 2016, respectively, Amneal had restricted cash balances of $3.8 million and $10.2 million in its bank accounts related to the purchase of certain land and equipment.
Accounts Receivable and Allowance for Doubtful Accounts
Trade accounts receivable are recorded at the invoiced amount and do not bear interest. The allowance for doubtful accounts is management’s best estimate of the amount of probable collection losses in Amneal’s existing accounts receivable. Management determines the allowance based on historical experience along with the present knowledge of potentially uncollectible accounts. Account balances are charged off against the allowance when management believes it is probable the receivable will not be recovered. Amneal does not have any off-balance-sheet credit exposure related to customers.
 
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Inventories
Inventories consist of finished goods held for sale, raw materials, and work in process. Inventories are stated at the lower of cost or market, with cost determined using the first-in, first-out method. Adjustments for excess and obsolete inventories are established based upon historical experience and management’s assessment of current product demand. These assessments include inventory obsolescence based on its expiration date, damaged or rejected product, and slow-moving products.
Debt Issuance Costs
Debt issuance costs are presented as a reduction to the carrying value of debt. All debt issuance costs are amortized using the effective interest method over the life of the related obligation through charges to interest expense in the Consolidated Statements of Income.
Property, Plant, and Equipment
Property, plant, and equipment are stated at historical cost less accumulated depreciation. Depreciation expense is computed primarily using the straight-line method over the estimated useful lives of the assets, which are as follows:

Asset Classification	  	Estimated Useful	
Buildings	  	30 years	
Computer equipment	  	5 years	
Furniture and fixtures	  	7 years	
Leasehold improvements	  	Shorter of asset’s useful life or remaining life of lease	
Machinery and equipment	  	7 years	
Vehicles	  	5 years	
Upon retirement or disposal, the cost of the asset disposed and the accumulated depreciation are removed from the accounts, and any gain or loss is reflected as part of operating income in the period of disposal. Expenditures that significantly increase value or extend useful lives of property, plant, and equipment are capitalized, whereas those for normal maintenance and repairs are expensed. Amneal capitalizes interest on borrowings during the construction period of major capital projects as part of the related asset and amortizes the capitalized interest into earnings over the related asset’s remaining useful life.
In-Process Research and Development (IPR&D)
The fair value of IPR&D acquired in a business combination is determined based on the present value of each research project’s projected cash flows using an income approach. Future cash flows are predominately based on the net income forecast of each project. Revenues are estimated based on relevant market size and growth factors, expected industry trends, individual project life cycles and the life of each research project’s underlying marketability. In determining the fair value of each research project, expected cash flows are adjusted for certain risks of completion, including technical and regulatory risk.
The value attributable to IPR&D projects at the time of acquisition is capitalized as an indefinite-lived intangible asset and tested for impairment until the project is completed or abandoned. Upon completion of the project, the indefinite-lived intangible asset is then accounted for as a finite-lived intangible asset and amortized on a straight-line basis over its estimated useful life. If the project is abandoned, the indefinite-lived intangible asset is charged to expense.
Intangible assets with indefinite lives including IPR&D are tested for impairment if impairment indicators arise and, at a minimum, annually. However, an entity is permitted to first assess qualitative factors to determine
 
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if a quantitative impairment test is necessary. Further testing is only required if the entity determines, based on the qualitative assessment, that it is more likely than not that an indefinite-lived intangible asset’s fair value is less than its carrying amount. Otherwise, no further impairment testing is required. The indefinite-lived intangible asset impairment test consists of a one-step analysis that compares the fair value of the intangible asset with its carrying amount. If the carrying amount of an intangible asset exceeds its fair value, an impairment loss is recognized in an amount equal to that excess. Amneal considers many factors in evaluating whether the value of its intangible assets with indefinite lives may not be recoverable, including, but not limited to, expected growth rates, the cost of equity and debt capital, general economic conditions, our outlook and market performance of Amneal’s industry and recent and forecasted financial performance.
Goodwill
Goodwill, which represents the excess of purchase price over the fair value of net assets acquired, is carried at cost. Goodwill is not amortized; rather, it is subject to a periodic assessment for impairment by applying a fair value based test. Amneal reviews goodwill for possible impairment annually during the fourth quarter, or whenever events or circumstances indicate that the carrying amount may not be recoverable.
The impairment model prescribes a two-step method for determining goodwill impairment. However, an entity is permitted to first assess qualitative factors to determine whether the two-step goodwill impairment test is necessary. The qualitative factors considered by Amneal may include, but are not limited to, general economic conditions, Amneal’s outlook, market performance of Amneal’s industry and recent and forecasted financial performance. Further testing is only required if the entity determines, based on the qualitative assessment, that it is more likely than not that a reporting unit’s fair value is less than its carrying amount. Otherwise, no further impairment testing is required. In the first step, Amneal determines the fair value of its reporting unit using a discounted cash flow analysis. If the net book value of the reporting unit exceeds its fair value, Amneal then performs the second step of the impairment test, which requires allocation of the reporting unit’s fair value to all of its assets and liabilities using the acquisition method prescribed under authoritative guidance for business combinations with any residual fair value being allocated to goodwill. An impairment charge is recognized when the implied fair value of Amneal’s reporting unit’s goodwill is less than its carrying amount.
Assumptions and estimates used in the evaluation of impairment may affect the carrying value of long-lived assets, which could result in impairment charges in future periods. Such assumptions include projections of future cash flows and the current fair value of the asset.
Impairment of Long-Lived Assets (Including Intangible Assets with Finite Lives)
Amneal reviews its long-lived assets, including intangible assets with finite lives, for recoverability whenever events or changes in circumstances indicate that the carrying amount of the assets may not be fully recoverable. Amneal evaluates assets for potential impairment by comparing estimated future undiscounted net cash flows to the carrying amount of the asset. If the carrying amount of the assets exceeds the estimated future undiscounted cash flows, impairment is measured based on the difference between the carrying amount of the assets and fair value which is generally an expected present value cash flow technique. Management’s policy in determining whether an impairment indicator exists comprises measurable operating performance criteria as well as other qualitative measures.
Intangible assets, other than indefinite-lived intangible assets, are amortized using a straight line basis based on their estimated useful lives as the straight line basis of amortization approximates the pattern of economic benefit of the asset. The useful life is the period over which the assets are expected to contribute directly or indirectly to future cash flows. Intangible assets are not written-off in the period of acquisition unless they become impaired during that period.
Amneal regularly evaluates the remaining useful life of each intangible asset that is being amortized to determine whether events and circumstances warrant a revision to the remaining period of amortization. If the
 
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estimate of the intangible asset’s remaining useful life is changed, the remaining carrying amount of the intangible asset is amortized prospectively over that revised remaining useful life.
Income Taxes
The operations of Amneal are conducted through a limited liability company that is treated as a partnership for U.S. federal income tax purposes. All U.S. federal income tax benefits and/or liabilities of Amneal are passed through to its members. Amneal provides for a tax provision in the various foreign jurisdictions in which it operates.
The provision for income taxes is determined using the asset and liability method. Under this method, deferred tax assets and liabilities are recognized based upon the differences between the financial statement and tax bases of assets and liabilities using enacted tax rates that will be in effect at the time such differences are expected to reverse. When necessary, deferred tax assets are reduced by a valuation allowance to reflect the amount that is estimated to be recoverable.
The guidance related to accounting for income taxes requires that a valuation allowance be established when it is more-likely-than-not that all or a portion of a deferred tax asset will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income of the appropriate character during the period in which those temporary differences are deductible. Amneal applies a valuation allowance against deferred tax assets in the required jurisdictions.
Comprehensive Income
Comprehensive income includes net income and all changes in equity for cumulative translation adjustments resulting from the consolidation of foreign subsidiaries’ financial statements.
Research and Development
R&D activities are expensed as incurred. Primarily R&D costs consist of direct and allocated expenses incurred with the process of formulation, clinical research, and validation associated with new product development, and external regulatory filing fees. Upfront and milestone payments made to third parties in connection with research and development collaborations are expensed as incurred up to the point of regulatory approval or when there is no alternative future use. Payments made to third parties subsequent to regulatory approval are capitalized and amortized over the remaining useful life of the respective intangible asset. Amounts capitalized for such payments are included in intangible assets, net of accumulated amortization.
Intellectual Property Legal Development Expenses
Amneal expenses external intellectual property legal development expenses as incurred. These costs relate to legal challenges of innovator’s patents for invalidity or non-infringement, which are customary in the generic pharmaceutical industry, and are incurred predominately during development of a product and prior to regulatory approval. Associated costs include, but are not limited to, formulation assessments, patent challenge opinions and strategy, and litigation expenses to defend the intellectual property supporting Amneal’s regulatory filings.
Variable Interest Entities
Amneal performs initial and ongoing evaluations of entities with which an equity or contractual relationship is established for potential variable interests. An entity is a variable interest entity (“VIE”) if it possesses one of the following criteria: (i) it is thinly capitalized, (ii) the residual equity holders do not control the entity, (iii) the equity holders are shielded from the economic losses, (iv) the equity holders do not participate fully in the entity’s residual economics, or (v) the entity was established with non-substantive voting interests. If an entity is
 
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identified as a VIE, an assessment is performed to determine whether Amneal has both (i) the power to direct activities that most significantly impact the VIE’s economic performance and (ii) have the obligation to absorb losses from or the right to receive benefits of the VIE that could potentially be significant to the VIE. If both of these criteria are satisfied, Amneal is identified as the primary beneficiary of the VIE.
If Amneal determines that it is the primary beneficiary of a VIE, Amneal consolidates the statements of operations and financial condition of the VIE into its consolidated financial statements. Amneal’s management concluded there were no relationships that constitute a VIE requiring consolidation during the years ended December 31, 2017, 2016, and 2015.
Advertising Costs
Amneal expenses advertising costs as incurred. Advertising expenses were $0.9 million, $1.3 million, and $0.8 million for the years ended December 31, 2017, 2016, and 2015, respectively.
Shipping Costs
Amneal records the costs of shipping product to its customers as a component of selling, general, and administrative expenses as incurred. Shipping costs were $14.5 million, $12.6 million, and $10.2 million for the years ended December 31, 2017, 2016, and 2015, respectively.
Patent Litigation Settlement
Patent challenges against innovator patents are customary in the generic pharmaceutical industry, and often result in litigation. Gains on settlements of such litigation may result. During 2016 and 2015 Amneal recorded benefits totaling $11.0 million, and $8.7 million, respectively, on the settlement of patent infringement matters on certain products. There were no such benefits recorded during 2017.
Risks and Uncertainties
Amneal is subject to risks common to companies in the pharmaceutical industry including, but not limited to, uncertainties related to commercialization of products, regulatory approvals, dependence on key products, dependence on key customers and suppliers, and protection of intellectual property rights.
Recently Adopted Accounting Pronouncements
On December 22, 2017, the Tax Cuts and Jobs Act was enacted in the United States, which significantly reforms U.S. tax legislation. In December 2017, the SEC issued Staff Accounting Bulletin No. 118 (“SAB 118”), which directs taxpayers to consider the impact of the US legislation as “provisional” when it does not have the necessary information available, prepared, or analyzed in reasonable detail to complete its accounting for the law change. Amneal has not completed the analysis of the impact of the new legislation; however, due to the fact that Amneal is treated as a partnership for US tax purposes, Amneal provisionally has concluded that there will be minimal, if any, impact to its financial statement income tax expense based on the new legislation. Amneal will continue to evaluate the legislative changes during the measurement period allowed under SAB 118, not to extend one year beyond the date of enactment.
In January 2017, the FASB issued ASU 2017-01, Business Combinations (Topic 805): Clarifying the Definition of a Business , that changes the definition of a business to assist entities with evaluating when a set of transferred assets and activities is a business. The guidance requires an entity to evaluate if substantially all of the fair value of the gross assets acquired is concentrated in a single identifiable asset or a group of similar identifiable assets; if so, the set of transferred assets and activities is not a business. The guidance also requires a business to include at least one substantive process and narrows the definition of outputs by more closely
 
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aligning it with how outputs are described in ASC 606. The guidance is effective for Amneal for the annual period beginning after December 15, 2018 and should be applied prospectively. Early adoption is permitted and Amneal early adopted ASU 2017-01 prospectively as of October 1, 2017.
In January 2017, the FASB issued ASU 2017-03, Accounting Changes and Error Corrections (Topic 250) and Investments—Equity Method and Joint Ventures (Topic 323), which add to and amend SEC guidance pursuant to the SEC Staff Announcements at the September 22, 2016 and November 17, 2016 Emerging Issues Task Force (EITF) meetings. The guidance provides additional disclosure requirements regarding the impact of recently issued accounting standards on the financial statements of a registrant when such standards are adopted in a future period. Amneal adopted ASU 2017-03 on January 1, 2017 and it did not have an effect on Amneal’s consolidated financial statements.
In October 2016, the FASB issued ASU 2016-17, Consolidation (Topic 810): Interests Held through Related Parties That Are under Common Control . The guidance requires a single decision maker evaluating whether it is the primary beneficiary of a variable interest entity (VIE) to consider its indirect interests held by related parties that are under common control on a proportionate basis. Under the guidance the FASB issued in 2015 (ASU 2015-02, Consolidation (Topic 810)—Amendments to the Consolidation Analysis), the decision maker had to consider those interests in their entirety. The new guidance could change consolidation conclusions for entities that have already adopted ASU 2015-02 when a decision maker and its related parties holding an interest in the VIE are under common control. The guidance is effective for Amneal beginning after December 15, 2016. Early adoption is permitted, including in an interim period, although entities that have not yet adopted ASU 2015-02 are required to adopt both ASUs at the same time. Entities that have not yet adopted ASU 2015-02 will apply the same transition method they elect when they adopt ASU 2015-02. ASU 2015-02 permits either a retrospective approach or a modified retrospective approach by recording a cumulative-effect adjustment to equity as of the beginning of the fiscal year of adoption. Amneal adopted ASU 2016-17 on January 1, 2017 and it did not have an effect on Amneal’s consolidated financial statements.
In March 2016, the FASB issued ASU 2016-09, Compensation—Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting . The amendments in this ASU are intended to simplify several aspects of the accounting for share-based payment award transactions, including: (a) income tax consequences; (b) classification of awards as either equity or liabilities; and (c) classification on the statement of cash flows. The amendments require all income tax effects of awards to be recognized in the statement of operations when the awards vest or are settled, allows an employer to repurchase more of an employee’s shares than it previously could for tax withholding purposes without triggering liability accounting, and allows companies to make a policy election to account for forfeitures as they occur. This standard is effective for annual periods beginning after December 15, 2016, and interim periods within those annual periods. Early application is permitted. Amneal adopted ASU 2016-09 on January 1, 2017 and it did not have an effect on Amneal’s consolidated financial statements.
In September 2015, the FASB issued ASU 2015-16, Business Combinations (Topic 805): Simplifying the Accounting for Measurement-Period Adjustments (ASU 2015-16) . The FASB issued new guidance that eliminates the requirement that an acquirer in a business combination account for measurement-period adjustments retrospectively. Instead, an acquirer will recognize a measurement-period adjustment during the period in which it determines the amount of the adjustment. The new standard is effective for annual periods beginning after December 15, 2016, with early adoption permitted and prospective application to adjustments to provisional amounts that occur after the effective date is required. Amneal adopted ASU 2015-16 on January 1, 2017 and it did not have an effect on Amneal’s consolidated financial statements.
In July 2015, the FASB issued ASU 2015-11, Inventory (Topic 330): Simplifying the Measurement of Inventory . ASU 2015-11 requires inventory be measured at the lower of cost and net realizable value, and
 
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options that currently exist for market value be eliminated. ASU 2015-11 defines net realizable value as estimated selling prices in the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation. The guidance is effective prospectively for reporting periods beginning after December 15, 2016, and interim periods within those fiscal years with early adoption permitted. Amneal adopted ASU 2015-11 on January 1, 2017 and it did not have a material impact on Amneal’s consolidated financial statements.
In February 2015, the FASB issued ASU 2015-02, Consolidation (Topic 810): Amendments to the Consolidation Analysis . The amendments in ASU 2015-02 are intended to improve targeted areas of consolidation guidance for legal entities such as limited partnerships, limited liability corporations, and securitization structures (collateralized debt obligations, collateralized loan obligations, and mortgage-backed security transactions). In addition to reducing the number of consolidation models from four to two, the new standard simplifies the FASB Accounting Standards Codification and improves current GAAP by: (i) placing more emphasis on risk of loss when determining a controlling financial interest, (ii) reducing the frequency of the application of related-party guidance when determining a controlling financial interest in a VIE and, (iii) changing consolidation conclusions for public and private companies in several industries that typically make use of limited partnerships or VIEs. ASU 2015-02 is effective for fiscal years beginning after December 15, 2016, and interim periods within fiscal years beginning after December 15, 2017. Early adoption is permitted, including adoption in an interim period. ASU 2015-02 may be applied retrospectively in previously issued financial statements for one or more years with a cumulative effect adjustment to retained earnings as of the beginning of the first year restated. Amneal adopted ASU 2015-02 on January 1, 2017 and it did not have an effect on Amneal’s consolidated financial statements.
Recently Issued Accounting Pronouncements
In May 2017, the FASB issued ASU 2017-09, Compensation—Stock Compensation (Topic 718): Scope of Modification Accounting , which provides guidance about which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting in Topic 718. The guidance will be effective for annual and interim periods beginning after December 15, 2017, with early adoption permitted. The amendments in this ASU should be applied prospectively to an award modified on or after the adoption date. Amneal is currently evaluating the impact that the standard will have on its consolidated financial statements.
In February 2017, the FASB issued ASU 2017-05, Other Income—Gains and Losses from the Derecognition of Nonfinancial Assets (Subtopic 610-20) , which provides clarification regarding the scope of the asset derecognition guidance and accounting for partial sales of nonfinancial assets. The update defines an in substance nonfinancial asset and clarifies that an entity should identify each distinct nonfinancial asset or in substance nonfinancial asset promised to a counterparty and derecognize each asset when a counterparty obtains control of it. All businesses and nonprofit activities within the scope of Subtopic 610-20 are excluded from the amendments in this update. This guidance will be effective for annual reporting periods beginning after December 15, 2018, and interim reporting periods within annual reporting periods beginning after December 15, 2019 and is required to be applied at the same time as ASU 2014-09 (described below) is applied. The guidance can be applied using one of two methods: the full retrospective method, which requires the standard to be applied to each prior period presented, or the modified retrospective method, which requires the cumulative effect of adoption to be recognized as an adjustment to opening retained earnings in the period of adoption. Amneal is currently evaluating the impact that the standard will have on its consolidated financial statements.
In January 2017, the FASB issued ASU 2017-04, Intangibles—Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment that eliminates the requirement to calculate the implied fair value of goodwill (i.e., Step 2 of today’s goodwill impairment test) to measure a goodwill impairment charge. Instead, entities will record an impairment charge based on the excess of a reporting unit’s carrying amount over its fair value (i.e., measure the charge based on today’s Step 1). The standard will be applied prospectively and is effective for Amneal’s annual and interim impairment tests performed in periods beginning after December 15,
 
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2021. Early adoption is permitted for annual and interim goodwill impairment testing dates after January 1, 2017. Amneal is evaluating the impact of this new guidance on its consolidated financial statements.
In November 2016, the FASB issued ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash (a consensus of the FASB Emerging Issues Task Force) , to clarify how entities should present restricted cash and restricted cash equivalents in the statement of cash flows. The guidance requires entities to show the changes in the total of cash, cash equivalents, restricted cash and restricted cash equivalents in the statement of cash flows. As a result, entities will no longer present transfers between cash and cash equivalents and restricted cash and restricted cash equivalents in the statement of cash flows. The guidance will be applied retrospectively and is effective for the annual period beginning after December 15, 2018. Amneal is evaluating the impact of this new guidance on its consolidated financial statements.
In October 2016, the FASB issued ASU 2016-16 , Income Taxes (Topic 740): Intra-Entity Transfers of Assets Other Than Inventory , that will require companies to account for the income tax effects of intercompany transfers of assets other than inventory (e.g., intangible assets) when the transfer occurs. The guidance is effective for Amneal beginning after December 15, 2018. Early adoption is permitted as of the beginning of an annual period (i.e., early adoption is permitted only in the first interim period). Amneal is evaluating the impact of this new guidance on its consolidated financial statements.
In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments (a consensus of the Emerging Issues Task Force) , to clarify how entities should classify certain cash receipts and cash payments on the statement of cash flows. The new guidance also clarifies how the predominance principle should be applied when cash receipts and cash payments have aspects of more than one class of cash flows. The guidance will be applied retrospectively and is effective for Amneal for the annual period beginning after December 15, 2018. Early adoption is permitted. Amneal is evaluating the impact of this new guidance on its consolidated financial statements.
In June 2016, the FASB issued ASU 2016-13, Financial Instruments—Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments , guidance that changes the impairment model for most financial assets including trade receivables and certain other instruments that are not measured at fair value through net income. The standard will replace today’s “incurred loss” approach with an “expected loss” model for instruments measured at amortized cost and require entities to record allowances for available-for-sale debt securities rather than reduce the carrying amount, as they do today under the other-than-temporary impairment model. It also simplifies the accounting model for purchased credit-impaired debt securities and loans. Entities will apply the standard’s provisions as a cumulative effect adjustment to retained earnings as of the beginning of the first reporting period in which the guidance is effective. The guidance is effective for Amneal for the annual period beginning after December 15, 2019. Amneal is evaluating the impact of this new guidance on its consolidated financial statements.
In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842) . The new standard establishes a right-of-use (ROU) model that requires a lessee to record a ROU asset and a lease liability on the balance sheet for all leases with terms longer than 12 months. Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The guidance is effective for annual periods beginning after December 15, 2019, and interim periods within annual periods beginning after December 15, 2020, with early adoption permitted. A modified retrospective transition approach is required for lessees for capital and operating leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements, with certain practical expedients available. Amneal is currently evaluating the impact that the standard will have on its consolidated financial statements.
 
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In January 2016, the FASB issued ASU 2016-01, Financial Instruments—Overall (Subtopic 825-10), Recognition and Measurement of Financial Assets and Financial Liabilities , which addresses certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. The guidance is effective for annual periods and interim periods within those annual periods beginning after December 15, 2018, and early adoption is not permitted. Amneal is currently evaluating the impact that the standard will have on its consolidated financial statements.
In May 2014, the FASB issued ASU 2014-09, Revenue from Contracts with Customers (Topic 606) . This guidance represents a comprehensive new revenue recognition model that requires a company to recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which that company expects to be entitled to receive in exchange for those goods or services. This update sets forth a new five-step revenue recognition model which replaces the prior revenue recognition guidance in its entirety and is intended to eliminate numerous industry-specific pieces of revenue recognition guidance that have historically existed. The FASB has since issued eight additional ASUs, including ASU 2017-13 in September 2017 and ASU 2017-14 in December 2017. These ASUs are effective for annual reporting periods beginning after December 15, 2018, and interim periods within annual reporting periods beginning after December 31, 2019. Early adoption is permitted as of annual reporting periods beginning after December 15, 2016, including interim periods within that reporting period. Companies may use either a full retrospective or a modified retrospective approach to adopt this standard. Amneal will adopt the new revenue recognition standard using the modified retrospective method, which requires the cumulative effect of the adoption to be recognized as an adjustment to opening retained earnings in the period of adoption. In addition, the new standard will result in additional revenue-related disclosures in the notes to the consolidated financial statements. Amneal has made substantial progress in completing its impact assessment of the potential changes from adopting ASU 2014-09. The impact assessment consists of a review of a representative sample of contracts, surveying key stakeholders, and a cataloging of potential impacts on our financial statements, accounting policies, financial control, and operations. The majority of Amneal’s revenue relates to the sale of finished generic pharmaceutical products to its customers, and though Amneal is still evaluating the impact of this standard, management does not anticipate that the adoption will have a significant impact on these transactions. Amneal is continuing to evaluate the impact on certain less significant non-standard arrangements. In addition, the new standard will require changes to processes and controls to support additional disclosures; and Amneal is in the process of identifying and designing such changes to processes and controls to ensure readiness.
 
3.	Acquisitions and Divestitures	
2017 Acquisitions
Asset Acquisition
Amneal has the commercial rights to distribute Estradiol Vaginal Tablets (“Estradiol”), sold under the tradename Yuvafem ® , and owns the full product rights for Aspirin/Dipyridamole ER (“ADip”). Both of the products are marketed by Amneal and respective royalties are paid to the development partner Kashiv Pharma, LLC (“Kashiv”), a related party.
On June 29, 2017, Amneal and Kashiv entered into a product acquisition and royalty stream purchase agreement under which Amneal acquired all rights including the regulatory information related to the Estradiol product and the Estradiol Abbreviated New Drug Application (“ANDA”). Amneal also acquired the royalty rights associated with the generic version of Aggrenox (the “ADip product”). The purchase of the Estradiol product intellectual property was accounted for as an asset acquisition and the prepayment of the ADip product royalty was accounted for as a prepaid royalty expense. The aggregate purchase price was $25 million due at closing plus two potential future $5 million earnout payments should certain future milestones be reached. There were no acquisition costs.
 
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The total cost of $25 million was assigned to each acquired asset on a relative fair value basis and has been allocated as follows:

Asset Acquired	 	Value	 	 	Balance Sheet Classification	
Estradiol product intangible asset	 	$	19,500	 	 	Intangible assets—net	
Prepayment of ADip product royalty	 	 	5,500	 	 	Current portion: Prepaid expenses and other current assets Non-current portion: Other assets	
	 	 	 	 	 		
Total	 	$	25,000	 	 		
	 	 	 	 	 		
Amneal will amortize the acquired Estradiol product intangible asset on a straight-line basis over its estimated 15-year useful life. If incurred, the earnout payments will be added to the cost of the Estradiol product intangible asset and will be amortized on a straight-line basis over the remaining life of Estradiol intangible asset. The ADip product prepaid royalty will be amortized on a straight-line basis over five years, the remaining life of the royalty agreement.
License and Commercialization Agreement
On October 1, 2017, Amneal and Adello Biologics, LLC (“Adello”), a related party, entered into a license and commercialization agreement. Adello granted Amneal an exclusive license, under its New Drug Application, to distribute and sell two bio-similar products in the U.S. Adello is responsible for development, regulatory filings, obtaining FDA approval, and manufacturing, and Amneal is responsible for marketing, selling and pricing activities. The term of the agreement is 10-years from the respective product’s launch date.
In connection with the agreement, Amneal paid an upfront amount of $1.5 million in October 2017 for execution of the agreement which was expensed within Research and development expenses in the Consolidated Statement of Income. The agreement also provides for potential future milestone payments to Adello of (i) up to $21 million relating to regulatory approval, (ii) up to $43 million for successful delivery of commercial launch inventory, (iii) between $20 million and $50 million relating to number of competitors at launch for one product, and (iv) between $15 million and $67.5 million for the achievement of cumulative net sales for both products. The milestones are subject to certain performance conditions which may or may not be achieved, including FDA filing, FDA approval, launch activities and commercial sales volume objectives. In addition, the agreement provides for Amneal to pay a profit share equal to 50% of Net Profits, after considering manufacturing and marketing costs.
2017 Divestitures
Australia Divestiture
On August 31, 2017, Amneal sold 100% of the equity of its Australian business, Amneal Pharma Pty Ltd, to Arrow Pharmaceuticals Pty Ltd (“Arrow”) for cash consideration of $9.9 million which was received in October 2017. The consideration received is subject to certain working capital adjustments. The carrying value of the net assets sold was $32.0 million, including intangible assets of $13.9 million and goodwill of $1.9 million. As a result of the sale, Amneal recognized a loss of $24.0 million, inclusive of divestiture costs of $1.5 million and a release of foreign currency translation adjustment loss of $0.4 million, within the Loss on sale of certain international businesses in the Consolidated Statement of Income for the year ended December 31, 2017.
As part of the disposition, Amneal agreed to indemnify Arrow for certain claims for up to 18 months from the closing date of the disposition. Additionally, Amneal will allow Arrow to use the Amneal trademark in Australia to enable Arrow to transfer the labeling and marketing authorizations from the Amneal name to the Arrow name for a period of three years. Amneal will supply Arrow with Linezolid for a period of three years and will further develop four other products for such territory during such three year period. Arrow may be required to pay additional consideration of 1.5 million Australian dollars ($1.2 million based on exchange rate as of December 31, 2017) if certain conditions are met within six months of the closing date of the disposition.
 
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Amneal retained the contingent consideration liability, amounting to $0.4 million at December 31, 2017, related to the business which arose from Amneal’s acquisition of the Actavis Australian generic business in May 2015. Accordingly, Amneal is obligated to make royalty payments based on 12% of aggregate net sales through April 2018.
Spain/Nordics Divestiture
On September 30, 2017, Amneal sold 100% of the equity and certain marketing authorizations, including associated dossiers, of its Amneal Nordic ApS and Amneal Pharma Spain S.L. subsidiaries to Aristo Pharma GmbH (“Aristo”) for cash consideration of $8.4 million. Amneal received $6.5 million in October 2017 and the remainder was due to be paid within 60 days of closing of the disposition based on the actual closing date net working capital of the entities sold. The carrying value of the net assets sold was $13.1 million, including intangible assets of $0.9 million and goodwill of $1.7 million. As a result of the sale, Amneal recognized a loss of $5.2 million, inclusive of a release of foreign currency translation loss of $0.5 million, within the Loss on sale of certain international businesses in the Consolidated Statement of Income for the year ended December 31, 2017.
Aristo is also required to make an additional payment within 12 months of the closing date of the disposition based on the actual inventory, transferred as part of the transaction that the buyer sold over this period.
2015 Acquisitions
Actavis Australian Generics Business
On May 1, 2015, Amneal acquired certain assets and assumed certain liabilities of Actavis Pty. Ltd. (Actavis) which is an Australian based company that commercializes generic pharmaceuticals within the Australian market. Actavis’s Australian products further complement Amneal’s customer base and expands its international presence. Total consideration was comprised of an up-front payment of $14.5 million plus contingent purchase price consideration with an estimated fair value of $8.0 million.
The results of operations from the Australian business of Actavis are included in Amneal’s consolidated financial statements from and after the date of acquisition. Amneal incurred $0.4 million in transaction costs that were expensed as incurred.
The following table summarizes the consideration transferred and the fair values of the assets acquired and liabilities assumed at the acquisition date for the Actavis acquisition:

Fair value of consideration transferred:	  				
Cash	  	$	14,502	 	
Contingent consideration	  	 	7,950	 	
	  	 	 	 	
Total fair value of consideration transferred	  	$	22,452	 	
	  	 	 	 	
Recognized amounts of identifiable assets acquired and liabilities assumed:	  				
Inventory	  	$	9,712	 	
Intangible assets	  	 	11,460	 	
	  	 	 	 	
Total identifiable assets	  	 	21,172	 	
Goodwill	  	 	1,280	 	
	  	 	 	 	
Net assets acquired	  	$	22,452	 	
	  	 	 	 	
Contingent consideration is a future payment based on 12% of aggregate net sales during each of the 12 calendar quarters subsequent to the acquisition, payable on a quarterly basis, which commenced with the calendar quarter of June 30, 2015. Amneal determined the fair value using the present value, discounting at the
 
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weighted average cost of capital (WACC) plus a factor for credit risk, of the projected payments based on probability-weighted revenue projections over the 12 quarters subsequent to acquisition. This fair value measurement is based on significant inputs not observable in the market and thus represents a Level 3 measurement within the fair value hierarchy.
The purchase price was allocated to the tangible assets and identifiable intangible assets acquired and liabilities assumed based on their acquisition date estimated fair values. The identifiable intangible assets principally included Actavis products, which encompassed the market position of the products, the developed technology utilized, and the customer base to which the products are sold. The identified intangible assets are subject to amortization on a straight-line basis over a range of useful lives of 5-20 years.
Amneal, with the assistance of a third-party appraiser, assessed the fair value of the assets. The identifiable intangible asset was valued using the income approach. This method requires several judgments and assumptions to determine the fair value of intangible assets, including growth rates, discount rates, customer attrition rates, expected levels of cash flows, earnings, revenues, and tax rate.
Goodwill represents the excess of the purchase price over the net identifiable tangible and intangible assets acquired. Amneal believes the goodwill related to the acquisition was a result of the expected synergies to be realized from combining operations and is not expected to be deductible for income tax purposes.
 
4.	Trade Accounts Receivable	
Trade accounts receivable is comprised of the following at December 31, (in thousands):

 	  	2017	 	  	2016	 	
Gross trade accounts receivable	  	$	827,302	 	  	$	780,522	 	
Allowance for doubtful accounts	  	 	(1,824	) 	  	 	(450	) 	
Contract charge-backs and sales volume allowances	  	 	(453,703	) 	  	 	(366,848	) 	
Cash discount allowances	  	 	(20,408	) 	  	 	(18,438	) 	
	  	 	 	 	  	 	 	 	
Trade accounts receivable—net	  	$	351,367	 	  	$	394,786	 	
	  	 	 	 	  	 	 	 	
For the year ended December 31, 2017, Amneal’s top three customers represented individually net revenues exceeding 10% or more of total net revenues, respectively, 21%, 13%, and 13%. For the year ended December 31, 2016, Amneal’s top three customers represented individually net revenues exceeding 10% or more of total net revenues, respectively, 17%, 16%, and 11%. For the year ended December 31, 2015, Amneal’s top three customers represented individually net revenues exceeding 10% or more of Amneal’s total net revenues, respectively, 17%, 16%, and 12%.
Receivables from customers representing 10% or more of Amneal’s gross trade accounts receivable reflected three customers at December 31, 2017, equal to 36%, 27%, and 19%, respectively. Receivables from customers representing 10% or more of Amneal’s gross trade accounts receivable reflected three customers at December 31, 2016, equal to 33%, 29%, and 21%, respectively.
One product represented 10% or more of Amneal’s total net revenues which was 13% for the year ended December 31, 2017. One product represented 10% or more of Amneal’s total net revenues which was 12% for the year ended December 31, 2016. Amneal did not have any products representing 10% or more of Amneal’s total net revenues for the year ended December 31, 2015.
 
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5.	Inventories	
Inventories are comprised of the following at December 31, (in thousands):

 	  	2017	 	  	2016	 	
Raw materials	  	$	140,051	 	  	$	127,814	 	
Work-in-progress	  	 	38,146	 	  	 	41,733	 	
Finished goods	  	 	105,841	 	  	 	96,614	 	
	  	 	 	 	  	 	 	 	
Inventories	  	$	284,038	 	  	$	266,161	 	

6.	Prepaid Expenses and Other Current Assets	
Prepaid and other current assets are comprised of the following at December 31, (in thousands):

 	  	2017	 	  	2016	 	
Deposits and advances	  	 	1,851	 	  	 	4,354	 	
Prepaid insurance	  	 	3,154	 	  	 	3,757	 	
Prepaid GDUFA and other regulatory fees	  	 	5,926	 	  	 	2,740	 	
Other current receivables	  	 	15,150	 	  	 	1,390	 	
Other prepaid expenses	  	 	16,315	 	  	 	4,205	 	
	  	 	 	 	  	 	 	 	
Prepaid expenses and other current assets	  	$	42,396	 	  	$	16,446	 	

7.	Property, Plant, and Equipment	
Property, plant, and equipment is comprised of the following at December 31, (in thousands):

 	  	2017	 	  	2016	 	
Land	  	$	5,275	 	  	$	4,923	 	
Buildings	  	 	227,864	 	  	 	64,410	 	
Leasehold improvements	  	 	70,354	 	  	 	89,045	 	
Machinery and equipment	  	 	260,637	 	  	 	177,639	 	
Furniture and fixtures	  	 	18,415	 	  	 	17,210	 	
Vehicles	  	 	1,517	 	  	 	1,457	 	
Computer equipment	  	 	26,831	 	  	 	18,983	 	
Construction in progress	  	 	32,235	 	  	 	146,785	 	
	  	 	 	 	  	 	 	 	
Total property, plant, and equipment	  	 	643,128	 	  	 	520,452	 	
Less accumulated depreciation	  	 	(156,370	) 	  	 	(113,048	) 	
	  	 	 	 	  	 	 	 	
Property, plant, and equipment—net	  	$	486,758	 	  	$	407,404	 	
	  	 	 	 	  	 	 	 	
During the years ended December 31, 2017, 2016, and 2015 Amneal invested $94.8 million, $122.8 million, and $117.4 million, respectively, in global property, plant and equipment. This significant investment relates primarily to the production capacity expansion of certain facilities in the U.S., India and Ireland for growth of existing and new dosage form capabilities.
Depreciation for the years ended December 31, 2017, 2016, and 2015, was $41.9 million, $29.3 million, and $21.7 million, respectively, which includes depreciation for assets recorded as capital leases. Capital leases at December 31, 2017 and 2016, are approximately $0.9 million and $1.1 million for each respective year ended and are included within furniture and fixtures.
Interest capitalized and included in property, plant, and equipment for the years ended December 31, 2017, 2016, and 2015 was $4.4 million, $4.3 million, $3.7 million, respectively.
 
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There were no impairments of property, plant, and equipment for the years ended December 31, 2017, 2016, and 2015.
 
8.	Goodwill and Intangible Assets	
Goodwill
Changes in the carrying amount of goodwill for the years ended December 31, 2017 and 2016 were as follows (in thousands):

 	  	Gross Carrying
Amount	 	
Balance at January 1, 2016	  	$	29,824	 	
Goodwill impairment during the period	  	 	(15	) 	
Effect of currency translation	  	 	(1,368	) 	
	  	 	 	 	
Balance at December 31, 2016	  	$	28,441	 	
Goodwill divested during the period	  	 	(3,895	) 	
Effect of currency translation	  	 	1,898	 	
	  	 	 	 	
Balance at December 31, 2017	  	$	26,444	 	
	  	 	 	 	
Accumulated impairment losses were $15.0 thousand as of December 31, 2017 and 2016.
Intangible Assets
For the years ended December 31, 2017 and 2016, changes in the gross carrying amount of intangible assets consisted of the following (in thousands):

 	  	Gross Carrying
Amount	 	
Balance at January 1, 2016	  	 	65,991	 	
Acquisitions	  	 	1,850	 	
Impairment	  	 	(21	) 	
Effect of currency translation	  	 	(2,243	) 	
	  	 	 	 	
Balance at December 31, 2016	  	$	65,577	 	
Acquisitions	  	 	19,500	 	
Divestitures	  	 	(23,822	) 	
Effect of currency translation	  	 	2,791	 	
	  	 	 	 	
Balance at December 31, 2017	  	$	64,046	 	

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The following is a summary of intangible assets held by Amneal at December 31, 2017 and 2016, (in thousands):

 	  	Weighted average
life	 	  	Cost	 	  	Accumulated
amortization	 	 	Net book
value	 	
December 31, 2017	  				  				  				 				
Amortized intangible assets:	  				  				  				 				
Product rights	  	 	11.1	 	  	$	49,700	 	  	$	(17,210	) 	 	$	32,490	 	
Customer relationships	  	 	15.4	 	  	 	7,421	 	  	 	(1,072	) 	 	 	6,349	 	
Trade names	  	 	15.4	 	  	 	2,699	 	  	 	(522	) 	 	 	2,177	 	
Licenses	  	 	12.0	 	  	 	3,000	 	  	 	(600	) 	 	 	2,400	 	
Marketing authorizations	  	 	1.4	 	  	 	76	 	  	 	(43	) 	 	 	33	 	
	  				  	 	 	 	  	 	 	 	 	 	 	 	
	  				  	 	62,896	 	  	 	(19,447	) 	 	 	43,449	 	
In-process research and development	  				  	 	1,150	 	  	 	—  	 	 	 	1,150	 	
	  				  	 	 	 	  	 	 	 	 	 	 	 	
	  				  	$	64,046	 	  	$	(19,447	) 	 	$	44,599	 	
	  				  	 	 	 	  	 	 	 	 	 	 	 	
December 31, 2016	  				  				  				 				
Amortized intangible assets:	  				  				  				 				
Product rights	  	 	9.3	 	  	$	29,650	 	  	$	(14,542	) 	 	$	15,108	 	
Customer relationships	  	 	16.4	 	  	 	6,788	 	  	 	(981	) 	 	 	5,807	 	
Trade names	  	 	16.4	 	  	 	2,468	 	  	 	(400	) 	 	 	2,068	 	
Licenses	  	 	13.0	 	  	 	3,000	 	  	 	(400	) 	 	 	2,600	 	
Marketing authorizations	  	 	15.8	 	  	 	21,971	 	  	 	(3,325	) 	 	 	18,646	 	
	  				  	 	 	 	  	 	 	 	 	 	 	 	
	  				  	 	63,877	 	  	 	(19,648	) 	 	 	44,229	 	
In-process research and development	  				  	 	1,700	 	  	 	—  	 	 	 	1,700	 	
	  				  	 	 	 	  	 	 	 	 	 	 	 	
	  				  	$	65,577	 	  	$	(19,648	) 	 	$	45,929	 	
	  				  	 	 	 	  	 	 	 	 	 	 	 	
Amortization expense for the years ended December 31, 2017, 2016, and 2015, was $4.0 million, $3.7 million, and $3.7 million, respectively.
The approximate future annual amortization for the next five years is as follows (in thousands):

2018	  	$	4,020	 	
2019	  	 	3,976	 	
2020	  	 	3,906	 	
2021	  	 	3,811	 	
2022	  	 	3,516	 	
Thereafter	  	 	24,220	 	
	  	 	 	 	
	  	$	43,449	 	

9.	Other Assets	
Other assets are comprised of the following at December 31, (in thousands):

 	  	2017	 	  	2016	 	
Receivable from statutory authorities	  	$	2,482	 	  	$	3,169	 	
Security deposits	  	 	2,634	 	  	 	2,485	 	
Deferred taxes	  	 	898	 	  	 	1,268	 	
Other receivables	  	 	6,141	 	  	 	4,007	 	
	  	 	 	 	  	 	 	 	
Total prepaid expenses and other current assets	  	$	12,155	 	  	$	10,929	 	

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Amneal has receivables from government authorities in India for export incentive licenses.
Amneal is required to make security deposits on some of its leases. The deposits are returned at the end of the lease term.
 
10.	Fair Value Measurements of Financial Instruments	
Fair value is the exit price that would be received to sell an asset or paid to transfer a liability. Fair value is a market-based measurement that should be determined using assumptions that market participants would use in pricing an asset or liability. Valuation techniques used to measure fair value should maximize the use of observable inputs and minimize the use of unobservable inputs. To measure fair value, Amneal uses the following fair value hierarchy based on three levels of inputs, of which the first two are considered observable and the last unobservable:
Level  1 – Quoted prices in active markets for identical assets or liabilities.
Level  2 – Inputs other than Level 1 that are observable for the asset or liability, either directly or indirectly, such as quoted prices for similar assets and liabilities in active markets; quoted prices for identical or similar assets or liabilities in markets that are not active; or other inputs that are observable or can be corroborated by observable market data by correlation or other means.
Level  3 – Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities. Value is determined using pricing models, discounted cash flow methodologies, or similar techniques and also includes instruments for which the determination of fair value requires significant judgment or estimation.
Assets and Liabilities Measured at Fair Value on a Recurring Basis
Amneal evaluates its financial assets and liabilities subject to fair value measurements on a recurring basis to determine the appropriate level of classification for each reporting period. The following table sets forth Amneal’s financial assets and liabilities that were measured at fair value on a recurring basis as of December 31, 2017 and 2016 (in thousands):

 	  	Fair Value	 	  	Level 1	 	  	Level 2	 	  	Level 3	 	
December 31, 2017	  				  				  				  				
Liabilities:	  				  				  				  				
Acquisition-related contingent consideration	  	$	401	 	  	$	—  	 	  	$	—  	 	  	$	401	 	
December 31, 2016	  				  				  				  				
Liabilities:	  				  				  				  				
Acquisition-related contingent consideration	  	$	3,193	 	  	$	—  	 	  	$	—  	 	  	$	3,193	 	
There were no transfers between levels in the fair value hierarchy during any period presented herein.
The carrying amounts of cash, accounts receivable and accounts payable approximate their fair values due to the short term maturity of these instruments. As of December 31, 2017, Amneal’s Term Loan was trading at approximately 100.8% of par value, based upon observable third-party market data (Level 2). The applicable fair value of the debt as of December 31, 2017, approximated $1.39 billion versus a carrying value of $1.38 billion. As of December 31, 2016, Amneal’s Term Loan was trading at approximately 100.5% of par value, based upon market data (Level 2). The applicable fair value of the debt as of December 31, 2016, approximated $1.15 billion versus a carrying value of $1.14 billion.
On May 1, 2015, Amneal acquired certain assets and assumed certain liabilities of the Australian business of Actavis. The agreement includes a contingent earn-out provision, which is a future payment based on 12% of
 
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aggregate net sales during each of the 12 calendar quarters commencing with the calendar quarter of June 30, 2015. Amneal determined the fair value using the present value, discounting at the WACC plus a factor for credit risk (discount rate of 10.5%), of the projected payments based on probability-weighted revenues projections over the 12 quarters subsequent to acquisition. At acquisition, the contingent consideration had a fair value of $8.0 million. At December 31, 2017 and 2016, the contingent consideration, using updated inputs to the valuation model, in addition to pay downs, had a fair value of $0.4 million and $3.2 million respectively. The significant unobservable inputs used in the fair value measurement of the contingent consideration are the successful achievement of the probability-weighted revenues projections of Actavis’ Australian business and the discount rate used to present value of the projected payments. Significant increases or decreases in estimated revenues would result in a significantly higher or lower fair value measurement. Significant increases or decreases in the discount rate would result in a significantly lower or higher fair value measurement.
Fair Value Measurements Using Significant Unobservable Inputs
The following table presents changes to Amneal’s financial liabilities measured at fair value on a recurring basis using significant unobservable inputs (Level 3) for the year ended December 31, 2017 and 2016 (in thousands):

 	  	Acquisition-related
contingent
consideration	 	
Liabilities	  				
Balance at January 1, 2015	  	$	100	 	
Contingent consideration acquired/(settled), net	  	 	6,373	 	
Change in fair value recorded in earnings	  	 	(648	) 	
	  	 	 	 	
Balance at December 31, 2015	  	 	5,825	 	
Contingent consideration acquired/(settled), net	  	 	(2,387	) 	
Change in fair value recorded in earnings	  	 	(245	) 	
	  	 	 	 	
Balance at December 31, 2016	  	 	3,193	 	
Contingent consideration acquired/(settled), net	  	 	(2,071	) 	
Change in fair value recorded in earnings	  	 	(721	) 	
	  	 	 	 	
Balance at December 31, 2017	  	$	401	 	
	  	 	 	 	
The change in fair value recorded in earnings is recognized within Cost of goods sold in the Consolidated Statements of Income.
Assets and Liabilities Measured at Fair Value on a Non-Recurring Basis
There were no non-recurring fair value measurements during the years ended December 31, 2017 and 2016.
 
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11.	Accrued Liabilities	
Accrued liabilities are comprised of the following for each of the years ended December 31, (in thousands):

 	  	2017	 	  	2016	 	
Accrued compensation	  	$	23,954	 	  	$	24,892	 	
Medicaid reimbursement accrual (See Note 18)	  	 	15,000	 	  	 	15,000	 	
Accrued royalties	  	 	2,970	 	  	 	3,352	 	
Accrued Medicaid rebates	  	 	12,911	 	  	 	8,057	 	
Accrued insurance benefits	  	 	2,540	 	  	 	2,229	 	
Accrued interest	  	 	982	 	  	 	831	 	
Accrued other	  	 	20,289	 	  	 	20,571	 	
	  	 	 	 	  	 	 	 	
Total accrued liabilities	  	$	78,646	 	  	$	74,932	 	

12.	Debt	
The following is a summary of Amneal’s total indebtedness at December 31, (in thousands):

 	  	2017	 	  	2016	 	
Senior Credit Facility—Term Loan	  	$	1,378,160	 	  	$	1,141,693	 	
Senior Credit Facility—Revolver	  	 	75,000	 	  	 	25,000	 	
	  	 	 	 	  	 	 	 	
Total debt	  	 	1,453,160	 	  	 	1,166,693	 	
Less debt issuance costs	  	 	(8,715	) 	  	 	(10,805	) 	
	  	 	 	 	  	 	 	 	
Total debt, net of debt issuance costs	  	 	1,444,445	 	  	 	1,155,888	 	
	  	 	 	 	  	 	 	 	
Less current portion: Senior Credit Facility—Term Loan	  	 	(14,171	) 	  	 	(11,620	) 	
Less current portion: Senior Credit Facility—Revolver	  	 	(75,000	) 	  	 	(25,000	) 	
	  	 	 	 	  	 	 	 	
Less total current portion	  	 	(89,171	) 	  	 	(36,620	) 	
	  	 	 	 	  	 	 	 	
Total long-term debt, net	  	$	1,355,274	 	  	$	1,119,268	 	
	  	 	 	 	  	 	 	 	
The principal balance, unamortized discount and net carrying amount of Amneal’s long-term debt at December 31, are as follows (in thousands):

 	  	2017	 	  	2016	 	
Long-term debt—gross	  	$	1,363,989	 	  	$	1,130,073	 	
Long-term debt—discount	  	 	(8,715	) 	  	 	(10,805	) 	
	  	 	 	 	  	 	 	 	
Long-term debt—net	  	$	1,355,274	 	  	$	1,119,268	 	
	  	 	 	 	  	 	 	 	
On November 1, 2013, Amneal entered into term loan (“Term Loan”) and revolver (“Revolver”) credit facilities (as amended, the “Credit Facilities”). The proceeds of loans made from the Credit Facilities may be used to fund working capital needs, capital expenditures, acquisitions, dividends, and distributions to the membership unit holders and for other general corporate purposes.
In April 2015, Amneal entered into Amendment No. 3 to the Credit Facility to increase the Term Loan by $200.0 million, through an incremental tranche, and increase the Revolver borrowing limit by $30.0 million to $90.0 million. As a result of Amendment No. 3, Amneal capitalized approximately $0.7 million of debt issuance costs, which were recorded on Amneal’s consolidated balance sheet as a reduction in the carrying amount of long-term debt, net. In addition, Amneal recorded a $1.7 million charge from the modification and extinguishment of debt due to the write- off of unamortized debt issuance costs.
 
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In June 2015, Amneal entered into Amendment No. 4 to the Credit Facility to consolidate Amneal’s Term Loans and reduce the Term Loan’s interest rate by 0.50% to LIBOR plus 3.5%; the interest rate effective at December 31, 2016. As a result of Amendment No. 4, Amneal capitalized approximately $0.9 million of debt issuance costs, which were recorded on Amneal’s Consolidated Balance Sheet as a reduction in the carrying amount of long-term debt, net. In addition, Amneal recorded a $0.9 million charge from the modification and extinguishment of debt due to the write-off of unamortized debt issuance costs.
In May 2016, Amneal entered into Amendment No. 5 to the Credit Facility to increase the Term Loan by $225.0 million, increase the Revolver borrowing limit by $30.0 million to $120.0 million, and reduce the Revolver’s interest rate by 0.25% to a maximum rate of LIBOR plus 2.5%; the interest rate effective at December 31, 2016. As a result of Amendment No. 5, Amneal capitalized approximately $6.5 million of debt issuance costs, which were recorded on Amneal’s Consolidated Balance Sheet as a reduction in the carrying amount of long-term debt, net.
On April 4, 2017, Amneal entered into Amendment No. 6 to increase the Term Loan by $250.0 million, increase the Revolver borrowing limit by $80.0 million to $200.0 million, and reduce the Revolver’s interest rate by 0.5% to a maximum rate of LIBOR plus 2.0%; the interest rate varies depending upon the amount drawn. As part of this transaction, $50 million was drawn on the Revolver. As a result of Amendment No. 6, Amneal capitalized approximately $2.5 million of debt issuance costs, which were recorded on Amneal’s Consolidated Balance Sheets as a reduction in the carrying amount of long-term debt, net. In addition, Amneal recorded a $2.5 million charge from the modification and extinguishment of debt due to the write-off of unamortized debt issuance costs related to the write-off of unamortized debt issuance costs.
At December 31, 2017, the Term Loan currently bears interest at LIBOR plus 3.50% with a 1.00% LIBOR floor and includes a principal pay down of 1% annually. The Term Loan matures on November 1, 2019, but can be prepaid at any time at no additional cost. The Revolver’s borrowing limit is $200.0 million and currently bears interest at LIBOR plus 1.50% with a 1.00% LIBOR floor. Amneal is charged a commitment fee of 0.375% on the daily portion of its unused Revolver limits. The Revolver matures on November 1, 2018, but can be prepaid at any time at no additional cost. Amneal has the option to extend the maturity date of the Revolver to November 1, 2019.
Amneal recorded debt issuance cost amortization expense of $4.6 million, $3.1 million, and $1.8 million related to the Credit Facilities during the years ended December 31, 2017, 2016, and 2015, respectively. Amortization is exclusive of any loss on extinguishment of debt.
Amneal’s obligations under the Credit Facilities are guaranteed by its parent, Amneal Pharmaceuticals Holding Company, LLC (“APHC”), and certain of its subsidiaries and are collateralized by a pledge of all the capital stock and membership interests of APHC and certain of its subsidiaries.
The Credit Facilities contain a number of covenants that, among other things, restrict, subject to certain exceptions, Amneal’s ability to incur additional indebtedness; create liens on assets; sell assets; make investments, loans or advances; pay dividends or distributions or repurchase stock and engage in certain transactions with affiliates. The Credit Facilities also contain certain usual and customary covenants, including, but not limited to covenants to maintain maximum leverage and minimum interest coverage ratios. The Credit Facilities also contain certain customary affirmative covenants and events of default. As of December 31, 2017, Amneal was in compliance with all covenants.
Amneal’s long-term debt agreements, exclusive of capital leases, require payments as follows (in thousands):

 	  	Payments Due	 	
2018	  	$	89,171	 	
2019	  	 	1,363,989	 	
	  	 	 	 	
Total	  	$	1,453,160	 	

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13.	Leases	
Amneal leases buildings and other tangible property. Rent expense under these leases was $17.4 million, $13.6 million, and $8.7 million for the years ended December 31, 2017, 2016, and 2015, respectively. The table below reflects the future minimum lease payments, including reasonably assured renewals, due under these non-cancelable leases as of December 31, 2017 (in thousands):

 	  	Capital Leases	 	  	Operating
Leases	 	
2018	  	$	149	 	  	$	18,227	 	
2019	  	 	149	 	  	 	17,657	 	
2020	  	 	149	 	  	 	14,230	 	
2021	  	 	149	 	  	 	13,412	 	
2022	  	 	149	 	  	 	12,595	 	
Thereafter	  	 	410	 	  	 	27,197	 	
	  	 	 	 	  	 	 	 	
Total	  	$	1,155	 	  	$	103,318	 	
	  				  	 	 	 	
Interest portion of capital leases	  	 	(234	) 	  				
	  	 	 	 	  				
Principal portion of capital leases	  	$	921	 	  				
Less short-term portion	  	 	96	 	  				
	  	 	 	 	  				
Long-term portion	  	$	825	 	  				
	  	 	 	 	  				
Future minimum lease payments for operating leases are shown net of sublease rental income of $2.5 million over the term of the lease.
 
14.	Financing Obligations	
Amneal has a non-cancelable lease agreement dated October 1, 2012, for two buildings located in Long Island, New York, that are used as an integrated manufacturing and office facility. Amneal was responsible for a portion of the renovation and construction costs, and is deemed, for accounting purposes, to be the owner of the building. As a result, Amneal was required to record the property, plant, and equipment and a corresponding financing obligation. The financing obligation is reduced by rental payments through the end of the lease, June 30, 2043.
The remaining financing obligation was $40.3 million and $40.6 million as of December 31, 2017 and 2016, respectively. The current portion of the remaining financing obligation was $0.3 million as of December 31, 2017 and 2016.
The monthly payments required under the terms of the non-cancelable lease agreement over the next five years and thereafter as follows (in thousands):

 	  	Payments Due	 	
2018	  	$	5,315	 	
2019	  	 	5,315	 	
2020	  	 	5,315	 	
2021	  	 	5,315	 	
2022	  	 	5,315	 	
Thereafter	  	 	106,916	 	
	  	 	 	 	
Total	  	$	133,491	 	

15.	Capital Structure	
Amneal is a limited liability company and is treated as a partnership for U.S. tax purposes. As of December 31, 2017 and 2016, Amneal had one Class A membership equity classification in which the members
 
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shared in the profits and losses and have voting rights. At December 31, 2017 and 2016, the Class A members had 189,000,000 units authorized, issued, and outstanding. For the years ended December 31, 2017, 2016, and 2015, Amneal made distributions of $375.3 million ($1.99 per unit), $200.6 million ($1.06 per unit), and $258.2 million ($1.36 per unit), respectively, to the Class A member, within the terms of the current Limited Liability Company Operating Agreement.
During 2011, Amneal established a profit participation plan in the form of profits interests granted through the issuance of Class D, Class E and Class F membership units. In 2015, Amneal added Class G and H membership units to the plan. Amneal issued these membership units to a select group of individuals (“Members”) in recognition of their past and continued services to Amneal. Subject to vesting provisions and forfeiture of the Units, the aggregate percentage interests of the Members will not exceed 6.36% in total membership interest. These interests constitute a profits interest in Amneal pursuant to the Internal Revenue Code and applicable treasury department regulations and pronouncements.
The Members participate in distributions of net proceeds upon a sale of Amneal in accordance with the Distribution of Capital Proceeds provision contained in the Limited Liability Company Operating Agreement of Amneal, as amended. The vesting of certain units is subject to acceleration at the time of a change-in-control event. The Members participate only in net sale proceeds above the applicable floor amounts attributable to the units. Class D and Class E distributions of net sale proceeds are also subject to a cap. The units do not earn or accrue any preferred return. The Members do not have a right to vote or participate in the management of Amneal.
A summary of the unit activity for Members for the years ended December 31, 2017 and 2016, is as follows:

Membership Units	  	Class D
Member	 	  	Class E
Member	 	 	Class F
Member	 	 	Class G
Member	 	 	Class H
Member	 	 	Total	 	
Outstanding—January 1, 2016	  	 	3,300,020	 	  	 	3,360,020	 	 	 	3,985,020	 	 	 	770,020	 	 	 	317,520	 	 	 	11,732,600	 	
Issued	  	 	—  	 	  	 	—  	 	 	 	—  	 	 	 	450,000	 	 	 	—  	 	 	 	450,000	 	
Forfeited	  	 	—  	 	  	 	—  	 	 	 	(42,857	) 	 	 	(120,000	) 	 	 	—  	 	 	 	(162,857	) 	
	  	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Outstanding—December 31, 2016	  	 	3,300,020	 	  	 	3,360,020	 	 	 	3,942,163	 	 	 	1,100,020	 	 	 	317,520	 	 	 	12,019,743	 	
Issued	  	 	—  	 	  	 	—  	 	 	 	—  	 	 	 	75,000	 	 	 	20,000	 	 	 	95,000	 	
Forfeited	  	 	—  	 	  	 	(32,291	) 	 	 	(15,000	) 	 	 	—  	 	 	 	(7,500	) 	 	 	(54,791	) 	
	  	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Outstanding—December 31, 2017	  	 	3,300,020	 	  	 	3,327,729	 	 	 	3,927,163	 	 	 	1,175,020	 	 	 	330,020	 	 	 	12,059,952	 	
	  	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Vested—December 31, 2017	  	 	3,300,020	 	  	 	3,277,729	 	 	 	2,572,563	 	 	 	252,020	 	 	 	155,020	 	 	 	9,557,352	 	
	  	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Amneal will record the related compensation expense for performance conditions that depend on a change-in-control event once the event occurs. This amount, valued as of December 31, 2017, was $146.9 million. Any settlement would come from the proceeds of a change-in-control event and would be recognized as a non-cash charge.
In 2015, Amneal purchased certain membership units amounting to 1,004,078 units in total. As a result of the purchased membership units, Amneal recorded $12.5 million in expense within Member units purchase in the Consolidated Statement of Income for the year ended December 31, 2015.
 
16.	Income Taxes	
The operations of Amneal are conducted through a limited liability company that is treated as a partnership for U.S. federal income tax purposes. Therefore it is not taxable for federal and most state income tax purposes. As a result, Amneal’s earnings or losses, to the extent not included in a taxable subsidiary, for federal and most state purposes are included in the tax returns of the individual members. Net earnings for financial statement purposes may differ significantly from taxable income reportable to members of Amneal as a result of
 
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differences between the tax basis and financial basis of assets and liabilities, differences between tax accounting and financial accounting treatment of certain items, and due to allocation requirements related to taxable income under various operating agreements. For assets held indirectly by Amneal through subsidiaries, the taxes attributable to those subsidiaries are reflected in the consolidated financial statements.
The components of Amneal’s income (loss) before income tax for the years ended December 31, were as follows (in thousands):

 	  	2017	 	  	2016	 	  	2015	 	
United States	  	$	275,235	 	  	$	334,750	 	  	$	269,780	 	
International	  	 	(103,912	) 	  	 	(119,929	) 	  	 	(94,198	) 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Total income before income taxes	  	$	171,323	 	  	$	214,821	 	  	$	175,582	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
The provision for income taxes is comprised of the following for the years ended December 31, (in thousands):

 	  	2017	 	  	2016	 	  	2015	 	
Current:	  				  				  				
Foreign	  	$	1,256	 	  	$	5,274	 	  	$	4,780	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Total current income tax	  	 	1,256	 	  	 	5,274	 	  	 	4,780	 	
Deferred:	  				  				  				
Foreign	  	 	742	 	  	 	121	 	  	 	171	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Total deferred income tax	  	 	742	 	  	 	121	 	  	 	171	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Total provision for income tax	  	$	1,998	 	  	$	5,395	 	  	$	4,951	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
No United States federal income taxes were incurred in the years ended December 31, 2017, 2016, and 2015.
The overall tax rate for the years ended December 31, is as follows:

 	  	2017	 	 	2016	 	 	2015	 	
Federal income tax at the statutory rate	  	 	0.0	% 	 	 	0.0	% 	 	 	0.0	% 	
Losses for which no benefit has been recognized	  	 	10.6	 	 	 	8.2	 	 	 	7.6	 	
Foreign rate differential	  	 	(6.5	) 	 	 	(5.4	) 	 	 	(5.2	) 	
Other	  	 	(2.9	) 	 	 	(0.3	) 	 	 	0.4	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Effective income tax rate	  	 	1.2	% 	 	 	2.5	% 	 	 	2.8	% 	
	  	 	 	 	 	 	 	 	 	 	 	 	
The decrease in effective tax rate for the year ended December 31, 2017, compared to the year ended December 31, 2016, is primarily due to the effects of certain adjustments recorded in 2017.
 
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Temporary differences between accounting for financial statement purposes and accounting for tax purposes result in the current provision for taxes being higher (lower) than the total provision for income taxes for the years ended December 31, (in thousands):

 	  	2017	 	  	2016	 	
Deferred tax assets:	  				  				
Net operating loss carryforward	  	$	34,889	 	  	$	38,035	 	
Capitalized costs	  	 	949	 	  	 	1,237	 	
Accrued expenses	  	 	985	 	  	 	1,650	 	
Intangibles	  	 	122	 	  	 	—  	 	
Tax credits and other	  	 	6,366	 	  	 	3,604	 	
	  	 	 	 	  	 	 	 	
Total deferred tax assets	  	 	43,311	 	  	 	44,526	 	
Valuation allowance	  	 	(41,617	) 	  	 	(42,231	) 	
	  	 	 	 	  	 	 	 	
Net deferred tax assets	  	 	1,694	 	  	 	2,295	 	
Deferred tax liabilities:	  				  				
Fixed assets	  	 	(3,287	) 	  	 	(2,064	) 	
Intangibles	  	 	—  	 	  	 	(986	) 	
	  	 	 	 	  	 	 	 	
Total deferred income liabilities	  	 	(3,287	) 	  	 	(3,050	) 	
	  	 	 	 	  	 	 	 	
Net deferred income tax liability	  	$	(1,593	) 	  	$	(755	) 	
	  	 	 	 	  	 	 	 	
The following table summarizes the changes in Amneal’s valuation allowance on deferred tax assets for the period indicated for the years ended December 31, (in thousands):

 	  	2017	 	  	2016	 	  	2015	 	
Balance at the beginning of the period	  	$	42,231	 	  	$	22,567	 	  	$	7,632	 	
Increases due to current year net operating losses and temporary differences	  	 	23,286	 	  	 	19,664	 	  	 	14,935	 	
Divestitures	  	 	(23,900	) 	  	 	—  	 	  	 	—  	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Balance at the end of the period	  	$	41,617	 	  	$	42,231	 	  	$	22,567	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
At December 31, 2017, Amneal has approximately $350.9 million of foreign net operating loss carry forwards. The majority of these net operating loss carry forwards will expire, if unused, between 2021 and 2024.
Amneal’s Indian subsidiaries are primarily export-oriented and in some cases are eligible for certain limited income tax holiday benefits granted by the government of India for export activities conducted within Special Economic Zones, or SEZs, for periods of up to 15 years. Amneal’s SEZ income tax holiday benefits are currently scheduled to expire in whole or in part during the years 2028 to 2030. Indian profits ineligible for SEZ benefits are subject to corporate income tax at the rate of 34.6%. In addition, all Indian profits, including those generated within SEZs, are subject to the Minimum Alternate Tax (MAT), at the rate of 21.3%. For the years ended December 31, 2017 and 2016, respectively, the effect of the income tax holidays granted by the Indian government reduced the overall income tax provision and increased net income by approximately $1.7 million, $2.1 million. For the year ended 2015, there was no effect.
Amneal accounts for income tax contingencies using the benefit recognition model. Amneal will recognize a benefit if a tax position is more likely than not to be sustained upon audit, based solely on the technical merits. The benefit is measured by determining the amount that is greater than 50% likely of being realized upon settlement, presuming that the tax position is examined by the appropriate taxing authority that has full knowledge of all relevant information. During the years ended December 31, 2017, 2016 and 2015 Amneal did not have an accrual for uncertain tax positions. Further, Amneal did not recognize interest or penalties related to
 
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income tax during the period ended December 31, 2017 and did not accrue for interest or penalties as of December 31, 2017.
Amneal and our subsidiaries file income tax returns in the U.S. federal, and various state, local and foreign jurisdictions. In India, income tax returns for fiscal years ending March 31, 2014 through March 31, 2016 are currently being reviewed by tax authorities as part of the normal procedures and Amneal is not expecting any material adjustments. There are no other income tax returns in the process of examination, administrative appeal, or litigation. Income tax returns are generally subject to examination for a period of 3 years, 5 years, and 2 years after the tax year in India, Switzerland, and United Kingdom, respectively.
Applicable foreign taxes (including withholding taxes) have not been provided on the approximately $51.5 million of undistributed earnings of foreign subsidiaries as at December 31, 2017. These earnings have been and currently are considered to be indefinitely reinvested. Quantification of additional taxes that may be payable on distribution is not practicable.
Amneal continuously monitors government proposals to make changes to tax laws, including the potential for comprehensive tax reform in the United States and proposed legislation in certain foreign jurisdictions resulting from the adoption of the Organization for Economic Cooperation and Development (“OECD”) policies. On December 22, 2017, the Tax Cuts and Jobs Act was enacted in the United States, which significantly reforms U.S. tax legislation (refer to Note 2. Summary of Significant Accounting Policies). If legislative changes are enacted in other countries, any of these proposals may include increasing or decreasing existing statutory tax rates. A change in statutory tax rates in any country would result in the revaluation of Amneal’s deferred tax assets and liabilities related to that particular jurisdiction in the period in which the new tax law is enacted. The statutory tax rate in the United Kingdom was reduced through legislation enacted in 2015 and 2016. The net effects of these changes were a benefit of approximately $97,000 and $91,000, respectively, for the years ended December 31, 2016 and 2015.
 
17.	Related-Party Transactions	
Amneal has various business agreements with certain third-party companies in which there is some common ownership and/or management between those entities, on the one hand, and Amneal, on the other hand. Amneal has no direct ownership or management in any of such related party companies. The related party relationships that generated income and or expense in the respective reporting period are described below.
Kanan, LLC
Kanan, LLC (“Kanan”) is an independent real estate company which owns Amneal’s manufacturing facilities located at 65 Readington Road, Branchburg, New Jersey, 131 Chambers Brook Road, Branchburg, New Jersey and 1 New England Avenue, Piscataway, New Jersey. Amneal leases these facilities from Kanan under two separate triple-net lease agreements that expire in 2027 and 2031, respectively, at an annual rental cost of approximately $2.0 million combined, subject to CPI rent escalation adjustments as provided in the lease agreements. Rent expense to the related party for the years ended December 31, 2017, 2016 and 2015 was $2.0 million.
AE Companies, LLC
AE Companies, LLC (“AE LLC”) is an independent company which provides certain shared services and corporate type functions to a number of independent entities with respect to which, from time to time, Amneal conducts business. Amneal has ongoing professional service agreements with AE LLC for administrative and research and development services. The total amount of income earned from these agreements for the year ended December 31, 2017 was $0.8 million, and for both of the years ended December 31, 2016 and 2015 was $1.1 million. At December 31, 2016, receivables of $0.2 million were due from the related party.
 
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Asana Biosciences, LLC
Asana Biosciences, LLC (“Asana”) is an early stage drug discovery and R&D company focusing on several therapeutic areas, including oncology, pain and inflammation. In July 2014, Amneal entered into a sublease agreement with Asana for a portion of its corporate office space in Bridgewater, NJ. The sublease was for ten years with annual base rent of $0.1 million, subject to CPI increases. The sublease terminated by mutual agreement in August 2016. Rental income from the related-party sublease for the years ended December 31, 2016 and 2015 were $53,000 and $84,000, respectively.
Industrial Real Estate Holdings NY, LLC
Industrial Real Estate Holdings NY, LLC (“IRE”) is an independent real estate management entity which, among other activities, is the landlord of Amneal’s leased manufacturing facilities located at 75 and 85 Adams Avenue, Hauppauge, New York. The lease at 85 Adams Avenue expired in March 2017 while the lease for 75 Adams Avenue expires in March 2021. Rent expense paid to the related party for the years ended December 31, 2017, 2016 and 2015 was $1.1 million, $1.4 million, and $1.5 million, respectively.
Kashiv Pharmaceuticals LLC
Kashiv Pharmaceuticals LLC (“Kashiv”) is an independent contract development organization focused primarily on the development of 505(b) (2) NDA products. Amneal has various business agreements with Kashiv. In May 2013, Amneal entered into a sublease agreement with Kashiv for a portion of one of its research and development facilities. The sublease automatically renews annually if not terminated and has an annual base rent of $1.8 million. Rental income from the related-party sublease for the year ended December 31, 2017 was $1.9 million, and for both of the years ended December 31, 2016 and 2015 was $1.8 million. At December 31, 2017 and 2016, receivables of $10.4 million and $0.4 million were due from the related party, respectively.
Amneal has also entered into various development and commercialization arrangements with Kashiv to collaborate on the development and commercialization of certain generic pharmaceutical products. Kashiv receives a percentage of net profits with respect to Amneal’s sales of these products. The total profit share paid to Kashiv for the year ended December 31, 2017 and 2016 was $10.3 million and $5.3 million, respectively. At December 31, 2017 and 2016 payables of $0.6 million and $4.3 million, respectively, were due to the related party for royalty-related transactions.
In June 2017, Amneal and Kashiv entered a product acquisition and royalty stream purchase agreement (refer to Note 3. Acquisitions and Divestitures). The aggregate purchase price was $25 million on the closing, which has been paid, plus two potential future $5 million earn outs related to the Estradiol Product. The contingent earn outs will be recorded in the period in which they are earned.
Pursuant to a product development agreement, Amneal and Kashiv agreed to collaborate on the development and commercialization of Oxycodone HCI ER Oral Tablets. Under the agreement, this product is owned by Kashiv, with Amneal acting as the exclusive marketing partner and as Kashiv’s agent for filing the product ANDA. Under the agreement, Amneal was also responsible for assuming control of and managing all aspects of the patent litigation arising from the filing of the ANDA, including selecting counsel and settling such proceeding (subject to Kashiv’s consent). In December 2017, Amneal and Kashiv terminated the product development agreement and pursuant to the termination and settlement of the agreement, Kashiv agreed to pay Amneal $7.8 million, an amount equal to the legal costs incurred by Amneal related to the defense of the ANDA. The $7.8 million was recorded within Development contract settlement in the Consolidated Statement of Income for the year ended December 31, 2017 and Related-party receivables in the Consolidated Balance Sheet as of December 31, 2017. The cash payment was received in February 2018.
 
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Adello Biologics, LLC
Adello Biologics, LLC (“Adello”) is an independent clinical stage company engaged in the development of biosimilar pharmaceutical products. Amneal and Adello are parties to a master services agreement pursuant to which, from time to time, Amneal provides human resources & product quality assurance services on behalf of Adello. The parties are also party to a license agreement for parking spaces in Piscataway, NJ. The total amount of net expense paid to Adello from these agreements for the years ended December 31, 2017 and 2016 was $98,000 and $67,000, respectively. The total amount of net income from Adello from these agreements for the period ended December 31, 2015 was $0.2 million. The receivable at December 31, 2016 was $0.3 million.
In March 2017, Amneal entered into a product development agreement with Adello. The collaboration extended the remaining development process to Adello for a complex generic product, while Amneal retained its commercial rights upon approval. Pursuant to the agreement, Adello paid Amneal $10 million for reimbursement of past development costs, which Amneal deferred as a liability and will pay royalties upon commercialization.
In October 2017, Amneal and Adello terminated their product development agreement. Pursuant to the termination agreement, Amneal owed Adello $10.5 million for the up-front payment plus interest. This amount was paid in January 2018 and recognized as a related-party payable in the Consolidated Balance Sheet as of December 31, 2017.
On October 1, 2017, Amneal and Adello entered into a license and commercialization agreement (refer to Note 3. Acquisitions and Divestitures). In connection with the agreement, Amneal paid an upfront amount of $1.5 million in October 2017 which was recorded within Research and development expenses in the Consolidated Statement of Income. The agreement also provides for potential future milestone payments to Adello.
In October 2017, Amneal purchased a building from Adello in Ireland to further support its inhalation dosage form. Amneal issued a promissory note for 12.5 million euros ($14.7 million based on exchange rate as of December 31, 2017) which accrues interest at a rate of 2% per annum, due on or before July 1, 2019.
PharmaSophia, LLC
PharmaSophia, LLC (“PharmaSophia”) is a joint venture formed by Nava Pharma, LLC (“Nava”) and Oakwood Laboratories, LLC for the purpose of developing certain products. Currently PharmaSophia is actively developing two injectable products. PharmaSophia and Nava are parties to a research and development agreement pursuant to which Nava provides research and development services to PharmaSophia. Nava subcontracted this obligation to Amneal, entering into a subcontract research and development services agreement pursuant to which Amneal provides research and development services to Nava in connection with the products being developed by PharmaSophia. The total amount of income earned from these agreements for the years ended December 31, 2017, 2016, and 2015 was $0.3 million. At December 31, 2017 and 2016 receivables of $0.1 million and $0.2 million, respectively, were due from the related party.
Gemini Laboratories, LLC
Gemini Laboratories, LLC (“Gemini”) is an independent specialty pharmaceuticals company focused on promoting niche branded products to endocrinologists, pediatricians, OB/GYNs and other specialist physicians. Gemini also engages in the wholesale distribution of generic pharmaceuticals to compounding pharmacies and to directly dispensing physicians, and promotes and distributes certain branded or quasi-branded products. Gemini predominantly sells products through branded wholesalers and certain compounding pharmacies and partners that service directly dispensing physicians. Amneal and Gemini are parties to various agreements. Total gross profit earned from the sale of inventory to Gemini for the years ended December 31, 2017 and 2016 was $2.6 million and $16.0 million, respectively. The total profit share paid by Gemini for the years ended December 31, 2017,
 
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2016 and 2015 was $11.5 million, $14.9 million, and $22.1 million, respectively. At December 31, 2017 and December 31, 2016, receivables of $4.6 million and $4.8 million were due from the related party, respectively, for profit share earned. At December 31, 2017 and 2016, receivables of $1.1 million and $5.2 million, respectively, were due from the related party from the purchase of inventory.
 
18.	Commitments and Contingencies	
Commitments
Commercial Manufacturing, Collaboration, License, and Distribution Agreements
Amneal continues to seek to enhance its product line and develop a balanced portfolio of differentiated products through product acquisitions and in-licensing. Accordingly, Amneal, in certain instances, may be contractually obligated to make potential future development, regulatory, and commercial milestone, royalty and/or profit sharing payments in conjunction with collaborative agreements or acquisitions that Amneal has entered into with third parties. Amneal has also licensed certain technologies or intellectual property from various third parties. Amneal is generally required to make upfront payments as well as other payments upon successful completion of regulatory or sales milestones. The agreements generally permit Amneal to terminate the agreement with no significant continuing obligation. The payments that could be required to be made pursuant to these other arrangements are not individually significant. These payments are contingent upon the occurrence of certain future events and, given the nature of these events, it is unclear when, if ever, Amneal may be required to pay such amounts. Further, the timing of any future payment is not reasonably estimable.
Contingencies
Amneal’s legal proceedings are complex, constantly evolving and subject to uncertainty. As such, Amneal cannot predict the outcome or impact of the legal proceedings set forth below. While Amneal believes it has valid claims and/or defenses to the matters described below, the nature of litigation is unpredictable and the outcome of the following proceedings could include damages, fines, penalties and injunctive or administrative remedies. For any proceedings where losses are probable and reasonably capable of estimation, Amneal has accrued for such potential loss as described below. While these accruals have been deemed reasonable by Amneal’s management, the assessment process relies heavily on estimates and assumptions that may ultimately prove inaccurate or incomplete. Additionally, unforeseen circumstances or events may lead Amneal to subsequently change its estimates and assumptions. Unless otherwise indicated below, Amneal is at this time unable to estimate the possible loss, if any, associated with such litigation.
Amneal currently intends to vigorously prosecute and/or defend these proceedings as appropriate. From time to time, however, Amneal may settle or otherwise resolve these matters on terms and conditions that it believes to be in its best interest. Resolution of any or all claims, legal proceedings or investigations could have a material adverse effect on Amneal’s results of operations and/or cash flow in any given accounting period, or on Amneal’s overall financial condition.
Legal Contract Settlement
In December 2016, Amneal entered into an agreement with a former development partner to settle a contract dispute. The total amount of the settlement is $2.8 million and is recorded within selling, general and administrative expenses and in Accrued expenses and other liabilities in the Consolidated Balance Sheet as of December 31, 2016. Amneal paid the settlement amount in 2017.
Medicaid Reimbursement Accrual
Amneal is required to provide pricing information to state agencies that administer federal Medicaid programs.
 
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Certain states agencies have alleged that manufacturers have reported improper pricing information, which allegedly caused them to overpay reimbursement costs. Reserves are periodically established by Amneal for any potential claims or settlements of overpayment. Although Amneal intends to vigorously defend against any such claims, Amneal recognized a $15 million accrual during 2014 to provide for any potential penalties. The ultimate settlement of any such potential liability for such claims may be higher or lower than estimated. Amneal believes that all such contingencies are adequately accrued for in the consolidated financial statements for each year presented.
Patent Defense Matters
Amneal is a defendant in a patent infringement action, Merck Sharp & Dohme Corp. v. Amneal Pharmaceuticals LLC, in the U.S. District Court for the District of Delaware. The complaint was filed on March 20, 2015, and involves Amneal’s filing of an ANDA for a generic alternative to Merck’s Nasonex ® product. The District Court trial was completed on June 22, 2016. The court issued an opinion finding that Amneal’s proposed generic product did not infringe the asserted patent. Merck filed an appeal of that decision with the Court of Appeals for the Federal Circuit which remains pending. Amneal launched its generic version of the product on April 5, 2017, prior to the rendering of an appellate court decision, and continues to sell the product as of the date of this combined proxy statement/prospectus. Amneal believes that it has substantial meritorious defenses to the claims alleged. However, these actions, if successful, could adversely affect Amneal and could have a material adverse effect on Amneal’s business, results of operations, financial condition and cash flows.
Amneal is a defendant in a patent infringement action, Otsuka Pharmaceutical Co. Ltd. v. Amneal Pharmaceuticals LLC, et al., in the U.S. District Court for the District of New Jersey. The first complaint was filed on March 2, 2015, and involves Amneal’s filing of an ANDA for a generic alternative to Otsuka’s Abilify ® tablet product. Otsuka filed an appeal with the Court of Appeals for the Federal Circuit related to rulings from the District Court regarding some of the patents-in-suit. The District Court has not yet set a trial date for the remaining patents-in-suit. Amneal, like a number of other generic manufacturers, has launched its generic version of Otsuka’s Abilify ® “at-risk,” prior to the rendering of an appellate court decision, and continues to sell the product as of the date hereof. Amneal believes that it has substantial meritorious defenses to the claims alleged. However, these actions, if successful, could adversely affect Amneal and could have a material adverse effect on Amneal’s business, results of operations, financial condition and cash flows.
Antitrust Litigation
Amneal is a defendant in a class action anti-trust action, Sergeants Benevolent Association Health & Welfare Fund v. Actavis, PLC, et. al., in the U.S. District Court for the Southern District of New York. The complaint was filed on August 19, 2015, and involves patent litigation settlement agreements between Amneal and Forest Laboratories. Amneal was one of a number of pharmaceutical companies named in the lawsuit. The settlement agreement at issue settled the patent litigation between Forest Laboratories and Amneal regarding Namenda © immediate release tablets. On September 13, 2016, the court denied the defendants’ motion to dismiss with respect to the federal claims and stayed the state law claims pending against Amneal and the other generic pharmaceutical company defendants until the federal claims are resolved. The court denied the defendants’ motion to dismiss with respect to the state law claims without prejudice to renew the motion after the federal claims have been resolved. The court cited the interests of judicial economy and the myriad state antitrust and unfair business practices laws as the basis for severing the state law claims and placing them on the court’s inactive docket. The court’s decision places the entirety of the claims pending against Anneal and the other generic pharmaceutical companies on the court’s inactive docket, which effectively stays the litigation as to Amneal until the federal claims are resolved or until the court removes those claims from its inactive docket. Amneal believes that it has substantial meritorious defenses to the claims alleged. However, these actions, if successful, could adversely affect Amneal and could have a material adverse effect on Amneal’s business, results of operations, financial condition and cash flows.
 
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From time to time, Amneal may become subject to other legal proceedings, claims or litigation arising in the ordinary course of business. In addition, Amneal may receive letters alleging infringement of patents or other IP rights. If an unfavorable outcome were to occur in litigation, the impact could be material to Amneal’s business, financial condition, cash flow or results of operations, depending on the specific circumstances of the outcome.
Legal Settlement Gain
In December 2015, Amneal filed an anti-competitive claim against the innovator of Suboxone, a combination of active pharmaceutical ingredients Buprenorphine and Naloxone. The claim alleged anti-competitive conduct involving three kinds of activity which were closely related to delay generic entry and, in the meantime, to convert patients to another dosage form not subject to generic competition. As a result of these alleged anticompetitive activities, Amneal lost profits since it was restricted from entering the market to sell its generic version.
In July 2017, Amneal entered into a settlement with the innovator for $25 million, which was received in cash in August 2017. Amneal recorded a net legal settlement gain of $21.5 million, net of legal fees for the year ended December 31, 2017.
 
19.	Employee Benefit Plan	
Amneal sponsors a defined contribution retirement plan. Substantially all of Amneal’s employees are eligible to be enrolled in the employer-sponsored contributory retirement savings plan, which include features under Section 401(k) of the Internal Revenue Code of 1986, as amended, and provides for company matching contributions. Amneal’s contributions to the plan are determined by its Board of Directors subject to certain minimum requirements as specified in the plan. For the years ended December 31, 2017, 2016, and 2015, Amneal made matching contributions of 50% of employee contributions up to a maximum of 6% of employee compensation, equal to $2.6 million, $2.1 million, and $1.5 million, respectively.
 
20.	Events (unaudited) Subsequent to the Date of the Independent Auditor’s Report	
Combination
On May 4, 2018, Amneal and Impax completed the Combination. The Combination will be accounted for as a business combination under the acquisition method of accounting in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 805, “ Business Combinations ,” with Amneal treated as the “acquirer” and Impax treated as the “acquired” company for financial reporting purposes. Refer to Note 1 for further detail on the Combination.
Refinancing
In order to finance the Combination, Amneal has consummated the following transactions (i) borrowed $2,700.0 million in aggregate principal amount of new senior secured term loans (the “New Term Facility”) at a rate of three-month LIBOR plus 350 basis points; and (ii) entered into a new senior secured asset based revolving credit facility with borrowing capacity of up to $500.0 million under which no amounts were drawn and outstanding upon completion of the Combination. The proceeds of the initial borrowings under the New Term Facility, as well as cash on hand, was used to finance the repayment of the historical outstanding debt obligations of both Amneal and Impax.
Gemini Acquisition
Concurrent with the closing of the Combination, Amneal acquired 98% of the outstanding equity interests in Gemini for consideration of $117.2 million, including a $40.0 million cash payment due upon closing and a $77.2 million promissory note.
 
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Gemini’s portfolio includes licensed and owned, niche and mature branded products, and a pipeline of 505(b)(2) products for niche therapeutic areas. Gemini’s lead product, Unithroid®, is detailed primarily to endocrinologists and high prescribing primary care physicians through a contracted salesforce. Gemini has a long-term distribution agreement for Unithroid with Jerome Stevens Pharmaceuticals.
Gemini is a related party of Amneal; refer to Note 11 for further detail on the nature of Gemini’s operations.
Biosimilar Licensing and Supply Agreement
Concurrent with the closing of the Combination, Amneal entered into a licensing and supply agreement, with Mabxience S.L, for its biosimilar candidate for Avastin® (bevacizumab). Amneal will be the exclusive partner in the US market. Amneal will pay up-front, development and regulatory milestone payments as well as commercial milestone payments on reaching pre-agreed sales targets in the market to Mabxience, up to $71.8 million.
 
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 Report of Independent Registered Public Accounting Firm
To the Board of Directors and Stockholders
Impax Laboratories, Inc.:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Impax Laboratories, Inc. and subsidiaries (the Company) as of December 31, 2017 and 2016, and the related consolidated statements of operations, comprehensive (loss) income, changes in stockholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2017, and the related notes and the consolidated financial statement schedule, “Schedule II—Valuation and Qualifying Accounts” (collectively, the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2017 and 2016, and the results its operations and its cash flows for each of the years in the three-year period ended December 31, 2017, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company’s internal control over financial reporting as of December 31, 2017, based on criteria established in Internal Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission, and our report dated March 1, 2018 expressed an unqualified opinion on the effectiveness of the Company’s internal control over financial reporting.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ KPMG LLP
We have served as the Company’s auditor since 2011.
Philadelphia, Pennsylvania
March 1, 2018
 
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 IMPAX LABORATORIES, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except share and per share data)

 	  	December 31,
2017	 	 	December 31,
2016	 	
Assets	  				 				
Current assets:	  				 				
Cash and cash equivalents	  	$	181,778	 	 	$	180,133	 	
Accounts receivable, net	  	 	240,753	 	 	 	257,368	 	
Inventory, net	  	 	158,471	 	 	 	175,230	 	
Prepaid expenses and other current assets	  	 	21,086	 	 	 	14,897	 	
Income tax receivable	  	 	61,201	 	 	 	3,513	 	
Assets held for sale	  	 	32,266	 	 	 	—  	 	
	  	 	 	 	 	 	 	 	
Total current assets	  	 	695,555	 	 	 	631,141	 	
Property, plant and equipment, net	  	 	124,813	 	 	 	233,372	 	
Intangible assets, net	  	 	262,467	 	 	 	620,466	 	
Goodwill	  	 	207,329	 	 	 	207,329	 	
Deferred income taxes, net	  	 	—  	 	 	 	69,866	 	
Other non-current assets	  	 	61,136	 	 	 	60,844	 	
	  	 	 	 	 	 	 	 	
Total assets	  	$	1,351,300	 	 	$	1,823,018	 	
	  	 	 	 	 	 	 	 	
Liabilities and Stockholders’ Equity	  				 				
Current liabilities:	  				 				
Accounts payable	  	$	81,093	 	 	$	58,952	 	
Accrued expenses	  	 	248,127	 	 	 	244,653	 	
Liabilities held for sale	  	 	7,170	 	 	 	—  	 	
Current portion of long-term debt, net	  	 	17,848	 	 	 	17,719	 	
	  	 	 	 	 	 	 	 	
Total current liabilities	  	 	354,238	 	 	 	321,324	 	
Long-term debt, net	  	 	769,524	 	 	 	813,545	 	
Deferred income taxes	  	 	3,226	 	 	 	—  	 	
Other non-current liabilities	  	 	37,111	 	 	 	64,175	 	
	  	 	 	 	 	 	 	 	
Total liabilities	  	 	1,164,099	 	 	 	1,199,044	 	
	  	 	 	 	 	 	 	 	
Commitments and contingencies (Note 18)	  				 				
Stockholders’ equity:	  				 				
Preferred stock, $0.01 par value; 2,000,000 shares authorized; No shares issued or outstanding at December 31, 2017 and 2016	  	 	—  	 	 	 	—  	 	
Common stock, $0.01 par value; 150,000,000 shares authorized; 74,234,076 issued and 73,990,347 outstanding shares at December 31, 2017; 73,948,340 issued and 73,704,611 outstanding shares at December 31, 2016	  	 	742	 	 	 	739	 	
Treasury stock at cost: 243,729 shares at December 31, 2017 and 2016	  	 	(2,157	) 	 	 	(2,157	) 	
Additional paid-in capital	  	 	559,632	 	 	 	535,056	 	
Retained (deficit) earnings	  	 	(372,445	) 	 	 	98,192	 	
Accumulated other comprehensive income (loss)	  	 	1,429	 	 	 	(7,856	) 	
	  	 	 	 	 	 	 	 	
Total stockholders’ equity	  	 	187,201	 	 	 	623,974	 	
	  	 	 	 	 	 	 	 	
Total liabilities and stockholders’ equity	  	$	1,351,300	 	 	$	1,823,018	 	
	  	 	 	 	 	 	 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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 IMPAX LABORATORIES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except share and per share data)

 	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	
Revenues:	  				 				 				
Impax Generics, net	  	$	549,077	 	 	$	606,320	 	 	$	710,932	 	
Impax Specialty Pharma, net	  	 	226,710	 	 	 	218,109	 	 	 	149,537	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Total revenues, net	  	 	775,787	 	 	 	824,429	 	 	 	860,469	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Cost of revenues	  	 	535,123	 	 	 	486,899	 	 	 	500,762	 	
Cost of revenues impairment charges	  	 	96,865	 	 	 	488,632	 	 	 	7,303	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Gross profit (loss)	  	 	143,799	 	 	 	(151,102	) 	 	 	352,404	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Operating expenses:	  				 				 				
Selling, general and administrative	  	 	216,270	 	 	 	201,830	 	 	 	201,287	 	
Research and development	  	 	80,847	 	 	 	80,466	 	 	 	70,622	 	
In-process research and development impairment charges	  	 	192,809	 	 	 	52,965	 	 	 	6,360	 	
Fixed asset impairment charges	  	 	82,508	 	 	 	—  	 	 	 	—  	 	
Change in fair value of contingent consideration	  	 	(31,048	) 	 	 	—  	 	 	 	—  	 	
Patent litigation	  	 	5,105	 	 	 	7,819	 	 	 	4,567	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Total operating expenses	  	 	546,491	 	 	 	343,080	 	 	 	282,836	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
(Loss) income from operations	  	 	(402,692	) 	 	 	(494,182	) 	 	 	69,568	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Other income (expense):	  				 				 				
Interest expense, net	  	 	(53,412	) 	 	 	(40,419	) 	 	 	(26,226	) 	
Reserve for Turing receivable	  	 	(3,999	) 	 	 	(40,312	) 	 	 	—  	 	
Gain on sale of assets	  	 	17,236	 	 	 	175	 	 	 	45,574	 	
Loss on debt extinguishment	  	 	(1,215	) 	 	 	—  	 	 	 	(16,903	) 	
Net change in fair value of derivatives	  	 	—  	 	 	 	—  	 	 	 	(13,000	) 	
Other, net	  	 	(6,879	) 	 	 	(1,587	) 	 	 	355	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
(Loss) income before income taxes	  	 	(450,961	) 	 	 	(576,325	) 	 	 	59,368	 	
Provision for (benefit from) income taxes	  	 	18,326	 	 	 	(104,294	) 	 	 	20,371	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net (loss) income	  	$	(469,287	) 	 	$	(472,031	) 	 	$	38,997	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net (loss) income per common share:	  				 				 				
Basic	  	$	(6.53	) 	 	$	(6.63	) 	 	$	0.56	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Diluted	  	$	(6.53	) 	 	$	(6.63	) 	 	$	0.54	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Weighted-average common shares outstanding:	  				 				 				
Basic	  	 	71,856,950	 	 	 	71,147,397	 	 	 	69,640,417	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Diluted	  	 	71,856,950	 	 	 	71,147,397	 	 	 	72,027,344	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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 IMPAX LABORATORIES, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME
(In thousands)

 	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	
Net (loss) income	  	$	(469,287	) 	 	$	(472,031	) 	 	$	38,997	 	
Other comprehensive (loss) income component:	  				 				 				
Currency translation adjustments	  	 	9,285	 	 	 	2,607	 	 	 	(4,454	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Comprehensive (loss) income	  	$	(460,002	) 	 	$	(469,424	) 	 	$	34,543	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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 IMPAX LABORATORIES, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
(In thousands)

 	 	Common Stock	 	 	 	 	 	Additional
Paid-in
Capital	 	 	 	 	 	Accumulated
Other
Comprehensive
Income (Loss)	 	 	 	 	
 	 	Number
of Shares	 	 	Par
Value	 	 	Treasury
Stock	 	 			 	Retained
(deficit)
Earnings	 	 			 	Total	 	
Balance, December 31, 2014	 	 	71,228	 	 	$	714	 	 	$	(2,157	) 	 	$	364,103	 	 	$	531,226	 	 	$	(6,009	) 	 	$	887,877	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	38,997	 	 	 	—  	 	 	 	38,997	 	
Other comprehensive loss:	 				 				 				 				 				 				 				
Currency translation adjustment	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(4,454	) 	 	 	(4,454	) 	
Exercises of stock options, issuances of restricted stock and sales of common stock under ESPP	 	 	1,698	 	 	 	15	 	 	 	—  	 	 	 	(3,533	) 	 	 	—  	 	 	 	—  	 	 	 	(3,518	) 	
Share-based compensation	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	28,613	 	 	 	—  	 	 	 	—  	 	 	 	28,613	 	
Sale of warrants	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	88,320	 	 	 	—  	 	 	 	—  	 	 	 	88,320	 	
Reclassification of derivatives to equity, net of related taxes	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	21,038	 	 	 	—  	 	 	 	—  	 	 	 	21,038	 	
Tax benefit related to exercises of stock options and vestings of restricted stock	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	5,536	 	 	 	—  	 	 	 	—  	 	 	 	5,536	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance, December 31, 2015	 	 	72,926	 	 	 	729	 	 	 	(2,157	) 	 	 	504,077	 	 	 	570,223	 	 	 	(10,463	) 	 	 	1,062,409	 	
	 				 				 				 				 				 				 	 	 	 	
Net loss	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(472,031	) 	 	 	—  	 	 	 	(472,031	) 	
Other comprehensive income:	 				 				 				 				 				 				 				
Currency translation adjustment	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	2,607	 	 	 	2,607	 	
Exercises of stock options, issuances of restricted stock and sales of common stock under ESPP	 	 	1,022	 	 	 	10	 	 	 	—  	 	 	 	(612	) 	 	 	—  	 	 	 	—  	 	 	 	(602	) 	
Share-based compensation	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	32,180	 	 	 	—  	 	 	 	—  	 	 	 	32,180	 	
Tax benefit related to exercises of stock options and vestings of restricted stock	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(589	) 	 	 	—  	 	 	 	—  	 	 	 	(589	) 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance, December 31, 2016	 	 	73,948	 	 	 	739	 	 	 	(2,157	) 	 	 	535,056	 	 	 	98,192	 	 	 	(7,856	) 	 	 	623,974	 	
	 				 				 				 				 				 				 	 	 	 	
Cumulative effect of change in accounting principle (Note 3)	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	1,350	 	 	 	(1,350	) 	 	 	—  	 	 	 	—  	 	
Net loss	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(469,287	) 	 	 	—  	 	 	 	(469,287	) 	
Other comprehensive income:	 				 				 				 				 				 				 				
Currency translation adjustment	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	9,285	 	 	 	9,285	 	
Exercises of stock options, issuances of restricted stock and sales of common stock under ESPP	 	 	286	 	 	 	3	 	 	 	—  	 	 	 	(2,855	) 	 	 	—  	 	 	 	—  	 	 	 	(2,852	) 	
Share-based compensation	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	26,258	 	 	 	—  	 	 	 	—  	 	 	 	26,258	 	
Other	 	 	—  	 	 	 	—  	 	 	 	—  	 	 	 	(177	) 	 	 	—  	 	 	 	—  	 	 	 	(177	) 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance, December 31, 2017	 	 	74,234	 	 	$	742	 	 	$	(2,157	) 	 	$	559,632	 	 	$	(372,445	) 	 	$	1,429	 	 	$	187,201	 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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 IMPAX LABORATORIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)

 	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	
Cash flows from operating activities:	  				 				 				
Net (loss) income	  	$	(469,287	) 	 	$	(472,031	) 	 	$	38,997	 	
Adjustments to reconcile net (loss) income to net cash provided by operating activities:	  				 				 				
Depreciation and amortization	  	 	109,449	 	 	 	88,348	 	 	 	68,637	 	
Non-cash interest expense	  	 	25,950	 	 	 	22,845	 	 	 	11,230	 	
Share-based compensation expense	  	 	26,258	 	 	 	32,180	 	 	 	28,613	 	
Deferred income taxes, net and uncertain tax positions	  	 	74,873	 	 	 	(127,405	) 	 	 	(29,558	) 	
Intangible asset impairment charges	  	 	289,674	 	 	 	541,597	 	 	 	13,664	 	
Reserve for Turing receivable	  	 	3,999	 	 	 	40,312	 	 	 	—  	 	
Fixed asset impairment charges	  	 	82,508	 	 	 	—  	 	 	 	—  	 	
Gain on sale of assets	  	 	(17,236	) 	 	 	(175	) 	 	 	(45,574	) 	
Loss on debt extinguishment	  	 	1,215	 	 	 	—  	 	 	 	16,903	 	
Change in fair value of contingent consideration	  	 	(31,048	) 	 	 	—  	 	 	 	—  	 	
Net change in fair value of derivatives	  	 	—  	 	 	 	—  	 	 	 	13,000	 	
Recognition of deferred revenue	  	 	—  	 	 	 	—  	 	 	 	(4,310	) 	
Other	  	 	(1,018	) 	 	 	2,853	 	 	 	(81	) 	
Changes in certain assets and liabilities:	  				 				 				
Accounts receivable	  	 	12,552	 	 	 	26,771	 	 	 	(121,110	) 	
Inventory	  	 	6,650	 	 	 	(45,561	) 	 	 	(14,035	) 	
Prepaid expenses and other assets	  	 	(65,576	) 	 	 	(573	) 	 	 	9,330	 	
Accounts payable and accrued expenses	  	 	32,377	 	 	 	(27,949	) 	 	 	107,402	 	
Other liabilities	  	 	2,882	 	 	 	2,638	 	 	 	(656	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net cash provided by operating activities	  	 	84,222	 	 	 	83,850	 	 	 	92,452	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Cash flows from investing activities:	  				 				 				
Payment for business acquisition (net of cash acquired)	  	 	(121	) 	 	 	(585,800	) 	 	 	(691,348	) 	
Purchases of property, plant and equipment	  	 	(26,749	) 	 	 	(49,402	) 	 	 	(25,199	) 	
Proceeds from sales of property, plant and equipment	  	 	9,111	 	 	 	1,360	 	 	 	—  	 	
Payments for licensing agreements	  	 	(50	) 	 	 	(3,500	) 	 	 	(5,850	) 	
Investment in cash surrender value of insurance	  	 	(4,750	) 	 	 	(4,750	) 	 	 	(4,750	) 	
Proceeds from cash surrender value of insurance	  	 	529	 	 	 	—  	 	 	 	—  	 	
Proceeds from repayment of Tolmar loan	  	 	—  	 	 	 	15,000	 	 	 	—  	 	
Proceeds from sale of intangible assets	  	 	12,350	 	 	 	—  	 	 	 	59,546	 	
Maturities of short-term investments	  	 	—  	 	 	 	—  	 	 	 	200,064	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net cash used in investing activities	  	 	(9,680	) 	 	 	(627,092	) 	 	 	(467,537	) 	

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IMPAX LABORATORIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)

 	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	
Cash flows from financing activities:	  				 				 				
Proceeds from sale of convertible notes	  	 	—  	 	 	 	—  	 	 	 	600,000	 	
Proceeds from issuance of term loan	  	 	—  	 	 	 	400,000	 	 	 	435,000	 	
Repayment of term loan	  	 	(70,000	) 	 	 	(5,000	) 	 	 	(435,000	) 	
Payment of deferred financing fees	  	 	(818	) 	 	 	(11,867	) 	 	 	(36,941	) 	
Purchase of bond hedge derivative asset	  	 	—  	 	 	 	—  	 	 	 	(147,000	) 	
Proceeds from sale of warrants	  	 	—  	 	 	 	—  	 	 	 	88,320	 	
Payment of withholding taxes related to restricted stock awards	  	 	(4,231	) 	 	 	(9,842	) 	 	 	(14,990	) 	
Proceeds from exercises of stock options and ESPP	  	 	1,379	 	 	 	9,239	 	 	 	11,472	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net cash (used in) provided by financing activities	  	 	(73,670	) 	 	 	382,530	 	 	 	500,861	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Effect of exchange rate changes on cash and cash equivalents	  	 	773	 	 	 	494	 	 	 	(298	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net increase (decrease) in cash and cash equivalents	  	 	1,645	 	 	 	(160,218	) 	 	 	125,478	 	
Cash and cash equivalents, beginning of year	  	 	180,133	 	 	 	340,351	 	 	 	214,873	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Cash and cash equivalents, end of year	  	$	181,778	 	 	$	180,133	 	 	$	340,351	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Supplemental disclosure of cash flow information:	  				 				 				
Cash paid for interest	  	$	28,374	 	 	$	18,139	 	 	$	15,365	 	
Cash paid for income taxes, net	  	$	2,928	 	 	$	23,053	 	 	$	43,223	 	
Supplemental disclosure of non-cash investing activity:	  				 				 				
Fair value of contingent consideration issued in business acquisition	  	$	—  	 	 	$	30,100	 	 	$	—  	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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 IMPAX LABORATORIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. DESCRIPTION OF BUSINESS
Operating and Reporting Structure
Impax Laboratories, Inc. (“Impax” or the “Company”) is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. The Company has two reportable segments, referred to as “Impax Generics” and “Impax Specialty Pharma.” The Impax Generics division includes the Company’s legacy Global Pharmaceuticals business as well as the acquired businesses from the Company’s acquisition of Tower Holdings, Inc. (“Tower”) and its subsidiaries on March 9, 2015 (the “Tower Acquisition”).
The Impax Generics division focuses on a broad range of therapeutic areas, including products having technically challenging drug-delivery mechanisms or unique product formulations. In addition to developing solid oral dosage products, the Impax Generics division’s portfolio includes alternative dosage form products, primarily through alliance and collaboration agreements with third parties. Impax Generics develops, manufactures, sells, and distributes generic pharmaceutical products primarily through the following four sales channels: the “Impax Generics” sales channel, for generic pharmaceutical prescription products the Company sells directly to wholesalers, large retail drug chains, and others; the “Private Label” sales channel, for generic pharmaceutical over-the-counter (“OTC”) and prescription products the Company sells to unrelated third-party customers who, in turn, sell the product to third parties under their own label; the “Rx Partner” sales channel, for generic prescription products sold through unrelated third-party pharmaceutical entities under their own label pursuant to alliance agreements; and the “OTC Partner” sales channel, for generic pharmaceutical OTC products sold through unrelated third-party pharmaceutical entities under their own labels pursuant to alliance and supply agreements. Revenues from generic products are reported under the caption “Impax Generics, net.”
The Impax Specialty Pharma division includes the legacy Impax Pharmaceuticals business as well as the acquired business of Amedra Pharmaceuticals, LLC (“Amedra”) from the Tower Acquisition. The Company’s Impax Specialty Pharma division is focused on the development and promotion, through the Company’s specialty sales force, of proprietary branded pharmaceutical products for the treatment of central nervous system (“CNS”) disorders and other select specialty segments. Impax Specialty Pharma currently has one internally developed branded pharmaceutical product, Rytary ® (IPX066), an extended release oral capsule formulation of carbidopa-levodopa for the treatment of Parkinson’s disease, post-encephalitic parkinsonism, and parkinsonism that may follow carbon monoxide intoxication and/or manganese intoxication, which was approved by the FDA on January 7, 2015 and which the Company began marketing in the United States (“U.S.”) in April 2015. The Company received marketing authorization from the European Commission for Numient ® (the brand name of IPX066 outside of the United States) during the fourth quarter of fiscal year 2015. In addition to Rytary ® , Impax Specialty Pharma is also currently engaged in the sale and distribution of four other branded products; the more significant include Zomig ® (zolmitriptan) products, indicated for the treatment of migraine headaches, under the terms of a Distribution, License, Development and Supply Agreement with AstraZeneca UK Limited (“AstraZeneca”) in the United States and in certain U.S. territories (as amended, the “AZ Agreement”), and Emverm ® (mebendazole) 100 mg chewable tablets, indicated for the treatment of pinworm, whipworm, common roundworm, common hookworm, and American hookworm in single or mixed infections. Revenues from branded products are reported under the caption “Impax Specialty Pharma sales, net.” Impax Specialty Pharma also has a number of product candidates that are in varying stages of development. See “Note 20. Segment Information,” for financial information about our segments for the years ended December 31, 2017, 2016 and 2015.
Operating Locations
As of December 31, 2017, the Company owned and/or leased facilities in California, Pennsylvania, New Jersey and Taiwan, Republic of China (“R.O.C.”). In California, the Company utilizes a combination of owned
 
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and leased facilities mainly located in Hayward. The Company’s primary properties in California consist of a leased office building used as the Company’s corporate headquarters, in addition to four properties it owns, including a research and development center facility and a manufacturing facility. Additionally, the Company leases two facilities in Hayward, utilized for additional research and development, equipment storage and quality assurance support. In Pennsylvania, the Company leases office space for sales and marketing, finance, and administrative personnel in Fort Washington. In New Jersey, the Company leases manufacturing, packaging, research and development and warehousing facilities in Middlesex and office space in Bridgewater.
During the year ended December 31, 2017, the Company closed its Middlesex, New Jersey manufacturing facility and on February 6, 2018, we completed the sale of Impax Laboratories (Taiwan), Inc. (“Impax Taiwan”) through a stock and purchase agreement.
Business Combination with Amneal Pharmaceuticals LLC
On October 17, 2017, the Company entered into a Business Combination Agreement (the “Business Combination Agreement”) with Atlas Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Holdco”), K2 Merger Sub Corporation, a Delaware corporation and a wholly-owned subsidiary of Holdco (“Merger Sub”), and Amneal Pharmaceuticals LLC (“Amneal”). The Business Combination Agreement was unanimously approved by the board of directors of the Company on October 16, 2017. Consummation of the Transactions is subject to customary closing conditions, including, among other things, the approval of the Company’s stockholders holding a majority of the outstanding Company Common Stock entitled to vote. The Company and Amneal expect the merger to close in the first half of 2018. However, the Company cannot predict with certainty when, or if, the merger will be completed because completion of the merger is subject to conditions beyond the control of the Company.
At the closing (the “Closing”) of the transactions contemplated by the Business Combination Agreement (the “Transactions”), (i) Merger Sub will merge with and into the Company (the “Impax Merger”), with the Company surviving the Impax Merger as a direct wholly-owned subsidiary of Holdco, (ii) each share of the Company’s common stock issued and outstanding immediately prior to the Impax Merger, other than Company Common Stock held by the Company in treasury, by Amneal or by any of their respective subsidiaries, will be converted into the right to receive one fully paid and nonassessable share of Class A common stock of Holdco, (“Holdco Class A Common Stock”), (iii) the Company will convert to a limited liability company pursuant to the General Corporation Law of the State of Delaware and the Delaware Limited Liability Company Act, (iv) Holdco will contribute to Amneal all of Holdco’s equity interests in the Company to Amneal, in exchange for common units of Amneal, (v) Holdco will issue an aggregate number of shares of Class B common stock of Holdco, par value $0.01 per share (“Holdco Class B Common Stock”, and together with Holdco Class A Common Stock, “Holdco Common Stock”) to the existing members of Amneal (the Existing “Amneal Members”) and (vi) Holdco will become the managing member of Amneal. Upon closing of the transactions, the combination will be accounted for as a business combination under the acquisition method of accounting in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 805, “ Business Combinations ,” with Amneal treated as the “acquirer” and Impax treated as the “acquired” company for financial reporting purposes. In connection with the Closing, Holdco will be renamed Amneal Pharmaceuticals, Inc. (“New Amneal”).
Immediately following the Closing, (i) the Existing Amneal Members will hold 100% of Holdco Class B Common Stock, which, together with their common units of Amneal, will represent approximately 75% of the voting power and economic interests in New Amneal, and (ii) the Company’s stockholders immediately prior to the Closing will hold 100% of the Holdco Class A Common Stock, which will represent approximately 25% of the voting power and economic interests in New Amneal.
Consummation of the Transactions is subject to customary closing conditions, including, among other things, (i) the approval of the Company’s stockholders holding a majority of the outstanding Company Common
 
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Stock entitled to vote (the “Requisite Stockholder Approval”), (ii) expiration of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and (iii) NYSE listing approval for Holdco Class A Common Stock. The obligation to consummate the Transactions is also conditioned upon each party’s representations and warranties being true and correct (subject to certain materiality exceptions) and each party having performed in all material respects its obligations under the Business Combination Agreement.
The Business Combination Agreement contains customary and reciprocal representations and warranties of the Company and Amneal, many of which are subject to and qualified by materiality qualifiers. The Company and Amneal have also made customary covenants in the Business Combination Agreement regarding the operation of their respective businesses and the businesses of their respective subsidiaries in the ordinary course prior to the Closing.
The Business Combination Agreement also contains a customary “no shop” covenant prohibiting the Company from soliciting proposals for alternative proposals to acquire the Company, or providing information or participating in any discussions in connection with any such proposals. However, prior to adoption of the Business Combination Agreement by the Company’s stockholders, the Board may, in the exercise of its fiduciary duties, (i) withhold, withdraw, qualify or modify its recommendation that the Company’s stockholders adopt the Business Combination Agreement in connection with certain intervening events, or (ii) terminate the Business Combination Agreement to enter into an agreement in connection with an alternative proposal to acquire the Company that is more favorable to the Company’s stockholders from a financial point of view than the Transactions (a “Superior Proposal”), in each case, subject to complying with certain notice and other specified requirements, including giving Amneal the opportunity to propose revisions to the terms of the Transactions and the payment of the Termination Fee (as defined below).
Consummation of the Transactions is not subject to a financing condition. However, Amneal is required to use its reasonable best efforts to obtain financing to (i) fund repayment of the Company’s Notes and refinance the RBC Credit Facilities and (ii) refinance outstanding Amneal debt. The Company is required to use reasonable best efforts to provide cooperation in connection with the financing process.
The Business Combination Agreement may be terminated by each of the Company and Amneal under certain circumstances, including if the Closing does not occur on or before July 17, 2018 (the “Outside Date”). Amneal also has certain additional termination rights, including in connection with a change of the Impax Board’s recommendation that the Company’s stockholders adopt and approve the Business Combination Agreement. The Company is required to pay Amneal a termination fee of $45.0 million (the “Termination Fee”) in connection with such a termination by Amneal, as well as under certain other circumstances, including if the Business Combination Agreement is terminated by the Company in connection with a Superior Proposal (as defined in the Business Combination Agreement). Additionally, Amneal will be entitled to reimbursement for up to $15.0 million of its reasonable out-of-pocket expenses incurred in connection with the Business Combination Agreement and the Transactions if the Business Combination Agreement is terminated due to the failure to obtain the Requisite Stockholder Approval.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
As of December 31, 2017, the consolidated financial statements of the Company include the accounts of the operating parent company, Impax Laboratories, Inc., its wholly owned subsidiaries, including Impax Laboratories USA, LLC, Impax Laboratories (Taiwan), Inc., ThoRx Laboratories, Inc., Impax International Holdings, Inc., Impax Holdings, LLC, Impax Laboratories (Netherlands) C.V., Impax Laboratories (Netherlands) B.V., Impax Laboratories Ireland Limited, Atlas Holdings, Inc., Lineage and Tower, including operating subsidiaries CorePharma LLC, Amedra Pharmaceuticals LLC, Mountain LLC and Trail Services, Inc., and
 
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Prohealth Biotech (Taiwan), Inc. (“Prohealth”). The Company acquired all the issued and outstanding share capital in Prohealth on October 24, 2017 and previously held a 57.54% majority ownership interest in the entity prior to such date. All significant intercompany accounts and transactions have been eliminated.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States (“U.S. GAAP”) and the rules and regulations of the U.S. Securities & Exchange Commission (“SEC”) requires the use of estimates and assumptions, based on complex judgments considered reasonable, which affect the reported amounts of assets and liabilities and disclosure of contingent assets and contingent liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. The most significant judgments are employed in estimates used in determining values of tangible and intangible assets, contingent consideration, legal contingencies, tax assets and tax liabilities, fair value of share-based compensation related to equity incentive awards issued to employees and directors, and estimates used in applying the Company’s revenue recognition policy, including those related to accrued chargebacks, rebates, product returns, Medicare, Medicaid, and other government rebate programs, shelf-stock adjustments, and the timing and amount of deferred and recognized revenue and deferred and amortized product manufacturing costs related to alliance and collaboration agreements. Actual results may differ from estimated results.
Reclassifications
Certain prior year amounts have been reclassified to conform to the presentation for the year ended December 31, 2017.
Revenue Recognition
The Company recognizes revenue when the earnings process is complete, which under SEC Staff Accounting Bulletin No. 104, Topic No. 13, “Revenue Recognition” (“SAB 104”), is when revenue is realized or realizable and earned, there is persuasive evidence a revenue arrangement exists, delivery of goods or services has occurred, the sales price is fixed or determinable, and collectability is reasonably assured.
The Company accounts for material revenue arrangements which contain multiple deliverables in accordance with FASB ASC Topic 605-25, Revenue Recognition—Multiple Element Arrangements (“ASC 605-25”), which addresses the determination of whether an arrangement involving multiple deliverables contains more than one unit of accounting. A delivered item within an arrangement is considered a separate unit of accounting only if both of the following criteria are met:
 
 	•	 	the delivered item has value to the customer on a stand-alone basis; and	
 
 	•	 	if the arrangement includes a general right of return relative to the delivered item, delivery or performance of the undelivered item is considered probable and substantially in the control of the vendor.	
Under ASC Topic 605-25, if both of the criteria above are not met, then separate accounting for the individual deliverables is not appropriate. Revenue recognition for arrangements with multiple deliverables constituting a single unit of accounting is recognized generally over the greater of the term of the arrangement or the expected period of performance, either on a straight-line basis or on a modified proportional performance method.
The Company accounts for milestones related to research and development activities in accordance with FASB ASC Topic 605-28, Revenue Recognition—Milestone Method (“ASC 605-28”). ASC Topic 605-28 allows for the recognition of consideration, which is contingent on the achievement of a substantive milestone, in its
 
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entirety in the period the milestone is achieved. A milestone is considered to be substantive if all of the following criteria are met:
 
 	•	 	the milestone is commensurate with either: (1) the performance required to achieve the milestone, or (2) the enhancement of the value of the delivered items resulting from the performance required to achieve the milestone;	
 
 	•	 	the milestone relates solely to past performance; and	
 
 	•	 	the milestone payment is reasonable relative to all of the deliverables and payment terms within the agreement.	
Impax Generics revenues, net, and Impax Specialty Pharma revenues, net
The Impax Generics revenues, net and Impax Specialty Pharma revenues, net include revenue recognized related to shipments of generic and branded pharmaceutical products to the Company’s customers, primarily drug wholesalers and retail chains. Gross sales revenue is recognized at the time title and risk of loss passes to the customer, which is generally when product is received by the customer. Net revenues may include deductions from the gross sales price related to estimates for chargebacks, rebates and administrative fees, distribution service fees, returns, shelf-stock adjustments, and other pricing adjustments. The Company records an estimate for these deductions in the same period when revenue is recognized. A description of each of these gross-to-net deductions follows.
 
•	 	Chargebacks	
The Company has agreements establishing contract prices for certain products with certain indirect customers, such as retail pharmacy chains, group purchasing organizations, managed care organizations, hospitals and government agencies who purchase products from drug wholesalers. The contract prices are lower than the prices the customer would otherwise pay to the wholesaler, and the price difference is referred to as a chargeback, which generally takes the form of a credit memo issued by the Company to reduce the invoiced gross selling price charged to the wholesaler. An estimated accrued provision for chargeback deductions is recognized at the time of product shipment. The primary factors considered when estimating the provision for chargebacks are the average historical chargeback credits given, the mix of products shipped, and the amount of inventory on hand at the major drug wholesalers with whom the Company does business. The Company also monitors actual chargebacks granted and compares them to the estimated provision for chargebacks to assess the reasonableness of the chargeback reserve at each quarterly balance sheet date.
 
•	 	Rebates and Administrative Fees	
The Company maintains various rebate and administrative fee programs with its customers in an effort to maintain a competitive position in the marketplace and to promote sales and customer loyalty. The rebates generally take the form of a credit memo to reduce the invoiced gross selling price charged to a customer for products shipped. An estimated accrued provision for rebate deductions is recognized at the time of product shipment. The primary factors the Company considers when estimating the provision for rebates are the average historical experience of aggregate credits issued, the mix of products shipped and the historical relationship of rebates as a percentage of total gross product sales, the contract terms and conditions of the various rebate programs in effect at the time of shipment, and the amount of inventory on hand at the major drug wholesalers with whom the Company does business. The Company also monitors actual rebates granted and compares them to the estimated provision for rebates to assess the reasonableness of the rebate reserve at each quarterly balance sheet date.
 
•	 	Distribution Service Fees	
The Company pays distribution service fees to several of its wholesaler customers related to sales of its Impax Products. The wholesalers are generally obligated to provide the Company with periodic outbound sales
 
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information as well as inventory levels of the Company’s Impax Products held in their warehouses. Additionally, the wholesalers have agreed to manage the variability of their purchases and inventory levels within specified days on hand limits. An accrued provision for distribution service fees is recognized at the time products are shipped to wholesalers.
 
•	 	Returns	
The Company allows its customers to return product if approved by authorized personnel in writing or by telephone with the lot number and expiration date accompanying any request and if such products are returned within six months prior to or until twelve months following, the product’s expiration date. The Company estimates and recognizes an accrued provision for product returns as a percentage of gross sales based upon historical experience. The product return reserve is estimated using a historical lag period, which is the time between when the product is sold and when it is ultimately returned, and estimated return rates which may be adjusted based on various assumptions including: changes to internal policies and procedures, business practices, commercial terms with customers, and the competitive position of each product; the amount of inventory in the wholesale and retail supply chain; the introduction of new products; and changes in market sales information. The Company also considers other factors, including significant market changes which may impact future expected returns, and actual product returns. The Company monitors actual returns on a quarterly basis and may record specific provisions for returns it believes are not covered by historical percentages.
 
•	 	Shelf-Stock Adjustments	
Based upon competitive market conditions, the Company may reduce the selling price of certain Impax Generics division products. The Company may issue a credit against the sales amount to a customer based upon their remaining inventory of the product in question, provided the customer agrees to continue to make future purchases of product from the Company. This type of customer credit is referred to as a shelf-stock adjustment, which is the difference between the initial sales price and the revised lower sales price, multiplied by an estimate of the number of product units on hand at a given date. Decreases in selling prices are discretionary decisions made by the Company in response to market conditions, including estimated launch dates of competing products and declines in market price. The Company records an estimate for shelf-stock adjustments in the period it agrees to grant such a credit memo to a customer.
 
•	 	Cash Discounts	
The Company offers cash discounts to its customers, generally 2% to 3% of the gross selling price, as an incentive for paying within invoice terms, which generally range from 30 to 90 days. An estimate of cash discounts is recorded in the same period when revenue is recognized.
 
•	 	Medicaid and Other U.S. Government Pricing Programs	
As required by law, the Company provides a rebate on drugs dispensed under the Medicaid program, Medicare Part D, TRICARE, and other U.S. government pricing programs. The Company determines its estimated government rebate accrual primarily based on historical experience of claims submitted by the various states and other jurisdictions and any new information regarding changes in the various programs which may impact the Company’s estimate of government rebates. In determining the appropriate accrual amount, the Company considers historical payment rates and processing lag for outstanding claims and payments. The Company records estimates for government rebates as a deduction from gross sales, with a corresponding adjustment to accrued liabilities.
 
•	 	Rx Partner and OTC Partner	
The Rx Partner and OTC Partner contracts include revenue recognized under alliance and collaboration agreements between the Company and unrelated third-party pharmaceutical companies. The Company has
 
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entered into these alliance agreements to develop marketing and/or distribution relationships with its partners to fully leverage its technology platform.
The Rx Partners and OTC Partners alliance agreements obligate the Company to deliver multiple goods and/or services over extended periods. Such deliverables include manufactured pharmaceutical products, exclusive and semi-exclusive marketing rights, distribution licenses, and research and development services. In exchange for these deliverables the Company receives payments from its agreement partners for product shipments and research and development services, and may also receive other payments including royalties, profit sharing payments, and upfront and periodic milestone payments. Revenue received from the alliance agreement partners for product shipments under these agreements is not subject to deductions for chargebacks, rebates, product returns, and other pricing adjustments. Royalty and profit sharing amounts the Company receives under these agreements are calculated by the respective agreement partner, with such royalty and profit share amounts generally based upon estimates of net product sales or gross profit which include estimates of deductions for chargebacks, rebates, product returns, and other adjustments the alliance agreement partners may negotiate with their respective customers. The Company records the agreement partner’s adjustments to such estimated amounts in the period the agreement partner reports the amounts to the Company.
The Company applies the updated guidance of FASB ASC Topic 605-25 to the Strategic Alliance Agreement, as amended with Teva Pharmaceuticals USA, Inc., an affiliate of Teva Pharmaceutical Industries Limited (the “Teva Agreement”). The Company looks to the underlying delivery of goods and/or services which give rise to the payment of consideration under the Teva Agreement to determine the appropriate revenue recognition. The Company initially defers consideration received as a result of research and development-related activities performed under the Teva Agreement. The Company recognizes deferred revenue on a straight-line basis over the expected period of performance for such services. Consideration received as a result of the manufacture and delivery of products under the Teva Agreement is recognized at the time title and risk of loss passes to the customer, which is generally when product is received by Teva. The Company recognizes profit share revenue in the period earned.
OTC Partner revenue was previously, related to agreements with Pfizer, Inc., formerly Wyeth LLC (“Pfizer”) and L. Perrigo Company (“Perrigo”) with respect to the supply of the Company’s over-the-counter pharmaceutical product Loratadine and Pseudoephedrine Sulfate 5 mg/120 mg 12-hour Extended Release Tablets (the “D12 Product”). Following the expiration of the Company’s obligation to supply the D12 Product to Pfizer and Perrigo as described below, the company does not currently sell any over-the-counter pharmaceutical products. The Company previously recognized profit share revenue in the period earned. During the quarter ended September 30, 2016, the Company sold the ANDAs for both the D12 Product and the Loratadine and Pseudoephedrine Sulfate 10 mg/240 mg 24-hour Extended Release Tablets, in addition to other specified assets, to Perrigo pursuant to an asset purchase agreement with Perrigo dated as of March 31, 2016 (the “Perrigo APA”). Under the terms of the Perrigo APA, the Company was required to continue to supply the D-12 Product to Pfizer and Perrigo until the date that was the earliest of (i) the date Perrigo’s manufacturing facility is approved to manufacture the D-12 Product and (ii) December 31, 2017. On November 30, 2017, the Company assigned and transferred its supply agreement with Pfizer in its entirety to Perrigo in accordance with the Perrigo APA.
 
•	 	Research Partner	
The Research Partner contract revenue results from development agreements the Company enters into with unrelated third-party pharmaceutical companies. The development agreements generally obligate the Company to provide research and development services over multiple periods. In exchange for this service, the Company generally receives upfront payments upon signing of each development agreement and is eligible to receive contingent milestone payments, payment of which is based upon the achievement of contractually specified events. Additionally, the Company may also receive royalty payments from the sale, if any, of a successfully developed and commercialized product under one of these development agreements. The Company recognizes revenue received from the achievement of contingent research and development milestones in the period such payment is earned. Royalty revenue, if any, will be recognized as current period revenue when earned.
 
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Cash and Cash Equivalents
The Company considers all short-term investments with a maturity of three months or less at the date of purchase to be cash equivalents. Cash and cash equivalents are stated at cost, which, for cash equivalents, approximates fair value due to the short-term nature. The Company is potentially subject to financial instrument concentration of credit risk through its cash and cash equivalents.
Concentration of Credit Risk
Financial instruments that potentially subject the Company to concentrations of credit risk are cash, cash equivalents and accounts receivable. Cash is held on deposit in demand accounts at large financial institutions in amounts in excess of the Federal Deposit Insurance Corporation (FDIC) insurance coverage limit of $250,000 per depositor, per FDIC-insured bank, per ownership category. Cash equivalents are comprised of highly-rated money market funds. The Company limits its credit risk with respect to accounts receivable by performing credit evaluations of customers when deemed necessary. The Company does not require collateral to secure amounts due from its customers.
The following tables present the percentage of total accounts receivable and gross revenues represented by the Company’s three largest customers as of and for the years ended December 31, 2017, 2016 and 2015:

Percent of Total Accounts Receivable	  	2017	 	 	2016	 	 	2015	 	
Customer #1	  	 	44.7	% 	 	 	36.2	% 	 	 	52.4	% 	
Customer #2	  	 	23.6	% 	 	 	35.6	% 	 	 	24.8	% 	
Customer #3	  	 	23.4	% 	 	 	20.5	% 	 	 	14.4	% 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Top three largest customers	  	 	91.7	% 	 	 	92.3	% 	 	 	91.6	% 	

													
Percent of Gross Revenues	  	2017	 	 	2016	 	 	2015	 	
Customer #1	  	 	32.9	% 	 	 	40.1	% 	 	 	45.6	% 	
Customer #2	  	 	30.0	% 	 	 	28.4	% 	 	 	21.7	% 	
Customer #3	  	 	25.0	% 	 	 	20.1	% 	 	 	18.8	% 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Top three largest customers	  	 	87.9	% 	 	 	88.6	% 	 	 	86.1	% 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Allowance for Doubtful Accounts
The Company maintains allowances for doubtful accounts for estimated losses resulting from amounts deemed to be uncollectible from its customers; these allowances are for specific amounts on certain accounts based on facts and circumstances determined on a case-by-case basis.
Inventory
Inventory is stated at the lower of cost or net realizable value. Cost is determined using a standard cost method, and the cost flow assumption is first in, first out (“FIFO”) flow of goods. Standard costs are revised annually, and significant variances between actual costs and standard costs are apportioned to inventory and cost of goods sold based upon inventory turnover. Costs include materials, labor, quality control, and production overhead. Inventory is adjusted for short-dated, unmarketable inventory equal to the difference between the cost of inventory and the estimated value based upon assumptions about future demand and market conditions. If actual market conditions are less favorable than those projected by the Company, additional inventory write-downs may be required. Consistent with industry practice, the Company may build pre-launch inventories of certain products which are pending required approval from the FDA and/or resolution of patent infringement litigation, when, in the Company’s assessment, such action is appropriate to prepare for the anticipated commercial launch and FDA approval is expected in the near term and /or the related litigation will be resolved in the Company’s favor. The Company accounts for all costs of idle facilities, excess freight and handling costs, and wasted materials (spoilage) as a current period charge in accordance with U.S. GAAP.
 
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Assets Held for Sale
The Company classifies its long-lived assets to be sold as held for sale in the period (i) it has approved and committed to a plan to sell the asset, (ii) the asset is available for immediate sale in its present condition, (iii) an active program to locate a buyer and other actions required to sell the asset have been initiated, (iv) the sale of the asset is probable, (v) the asset is being actively marketed for sale at a price that is reasonable in relation to its current fair value, and (vi) it is unlikely that significant changes to the plan will be made or that the plan will be withdrawn. The Company initially measures a long-lived asset that is classified as held for sale at the lower of its carrying value or fair value less any costs to sell. Any loss resulting from this measurement is recognized in the period in which the held for sale criteria are met. Conversely, gains are not recognized on the sale of a long-lived asset until the date of sale. Upon designation as an asset held for sale, the Company stops recording depreciation expense on the asset. The Company assesses the fair value of a long-lived asset less any costs to sell at each reporting period and until the asset is no longer classified as held for sale.
Property, Plant and Equipment
Property, plant and equipment are recorded at cost. Maintenance and repairs are charged to expense as incurred and costs of improvements and renewals are capitalized. Costs incurred in connection with the construction or major renovation of facilities, including interest directly related to such projects, are capitalized as construction in progress. Depreciation is recognized using the straight-line method based on the estimated useful lives of the related assets, which are generally 40 years for buildings, 10 to 15 years for building improvements, eight to 10 years for equipment, and four to 10 years for office furniture and equipment. Land and construction-in-progress are not depreciated.
Intangible Assets
The Company’s intangible assets include both finite lived and indefinite-lived assets. Finite lived intangible assets, consisting of marketed product rights and royalties received from product sales by the Company’s third party partners, are amortized over the estimated useful life of the asset based on the pattern in which the economic benefits are expected to be consumed or otherwise used up or, if that pattern is not readily determinable, on a straight-line basis. Indefinite-lived intangible assets consist of acquired in process research and development (“IPR&D”) product rights and acquired future royalty rights to be paid based on other companies’ net sales of products not yet approved. IPR&D assets acquired in a business combination are considered indefinite-lived until the completion or abandonment of the associated research and development efforts. Amortization over the estimated useful life will commence at the time of the respective product’s launch. If FDA approval to market the product is not obtained, the Company will immediately expense the related capitalized cost.
Finite lived intangible assets are tested for impairment when events or changes in circumstances indicate that the carrying value of the asset may not be recoverable. All of the Company’s indefinite-lived intangible assets are tested for impairment at least annually during the fourth quarter of the fiscal year, or more often if indicators of impairment are present. Impairment testing requires management to estimate the future undiscounted cash flows of an intangible asset using assumptions believed to be reasonable, but which are unpredictable and inherently uncertain. Actual future cash flows may differ from the estimates used in the impairment testing. The Company recognizes an impairment loss when and to the extent that the estimated fair value of an intangible asset is less than its carrying value.
Goodwill
In accordance with FASB ASC Topic 350, “ Goodwill and Other Intangibles ,” rather than recording periodic amortization, goodwill is subject to an annual assessment for impairment by applying a fair value based test. If the fair value of the reporting unit exceeds the reporting unit’s carrying value, including goodwill, then goodwill
 
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is considered not impaired, making further analysis not required. The Company considers the Impax Generics division and the Impax Specialty Pharma division operating segments to each be a reporting unit. The Company attributes $59.7 million of goodwill to the Impax Specialty Pharma division and $147.6 million of goodwill to the Impax Generics division.
The Company concluded the carrying value of goodwill was not impaired as of December 31, 2017 and 2016 as the fair value of the Impax Specialty Pharma division and the Impax Generics division exceeded their carrying value at each date. The Company performs its annual impairment test in the fourth quarter of each year. In the fourth quarter of 2017, the Company determined that it was not more likely than not that the fair value of goodwill was less than its carrying value. As a result, the Company did not perform a quantitative analysis. In the fourth quarter of 2016, the Company performed a quantitative analysis and estimated the fair value of the Impax Specialty Pharma division and the Impax Generics division using a discounted cash flow model for both the reporting unit and the enterprise, as well as earnings and revenue multiples per common share outstanding for enterprise fair value. In addition, on a quarterly basis, the Company performs a review of its business operations to determine whether events or changes in circumstances have occurred that could have a material adverse effect on the estimated fair value of each reporting unit, and thus indicate a potential impairment of the goodwill carrying value. If such events or changes in circumstances were deemed to have occurred, the Company would perform an interim impairment analysis, which may include the preparation of a discounted cash flow model, or consultation with one or more valuation specialists, to analyze the impact, if any, on our assessment of the reporting unit’s fair value.
Derivatives
The Company generally does not use derivative instruments or engage in hedging activities in its ordinary course of business. Prior to June 30, 2015, the Company had no derivative assets or liabilities and did not engage in any hedging activities. As a result of the Company’s June 30, 2015 issuance of the convertible senior notes described in “Note 10. Debt”, the conversion option of the notes temporarily met the criteria for an embedded derivative liability which required bifurcation and separate accounting. Concurrently with the issuance of the notes, the Company entered into a series of convertible note hedge and warrant transactions which in combination are designed to reduce the potential dilution to the Company’s stockholders and/or offset the cash payments the Company is required to make in excess of the principal amount upon conversion of the notes. See “Note 11. Stockholders’ Equity” for additional information regarding the note hedge transactions and warrant transactions. While the warrants sold were classified as equity and recorded in additional paid-in capital, the call options purchased were temporarily classified as a bond hedge derivative asset on the Company’s consolidated balance sheet. The Company engaged a third-party valuation firm with expertise in valuing financial instruments to determine the fair value of the bond hedge derivative asset and conversion option derivative liability at each reporting period. The Company’s consolidated balance sheets reflected the fair value of the derivative asset and liability as of the reporting date, and changes in the fair value were reflected in current period earnings, as appropriate. As result of the amendment to the Company’s Restated Certificate of Incorporation to increase the number of authorized shares of the Company’s common stock discussed in “Note 11. Stockholders’ Equity,” both the derivative asset and liability were reclassified to additional paid-in capital. The Company had no derivative assets or liabilities and did not engage in any hedging activities during the years ended December 31, 2017 or 2016.
Contingencies
In the normal course of business, the Company is subject to loss contingencies, such as legal proceedings and claims arising out of its business, covering a wide range of matters, including, among others, patent litigation, stockholder lawsuits, and product and clinical trial liability. The Company records accruals for such loss contingencies when it is probable a liability will have been incurred and the amount of loss can be reasonably estimated. The Company does not recognize gain contingencies until realized. The Company records an accrual for legal costs in the period incurred. A discussion of contingencies is included in “Note 18. Commitments and Contingencies” and “Note 19. Legal and Regulatory Matters”.
 
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Deferred Financing Costs
The Company capitalizes direct costs incurred to obtain debt financing and amortizes these costs to interest expense using the effective interest method over the term of the debt. These costs are recorded as a debt discount and the unamortized costs are netted against the related debt on the Company’s consolidated balance sheets. For line-of-credit arrangements with no outstanding borrowing, the costs incurred to obtain the credit facility are amortized to interest expense using the straight-line method over the term of the line-of-credit arrangement. The unamortized balance is included in other assets on the Company’s consolidated balance sheets.
Shipping and Handling Fees and Costs
Shipping and handling fees related to sales transactions are recorded as selling expense. Shipping costs were $7.0 million, $3.7 million and $2.3 million for the years ended December 31, 2017, 2016 and 2015, respectively.
Research and Development Expenses
Research and development activities are expensed as incurred and consist of self-funded research and development costs and costs associated with work performed by other participants under collaborative research and development agreements.
Share-Based Compensation
The Company accounts for stock-based employee compensation arrangements in accordance with provisions of FASB ASC Topic 718 “ Stock Compensation. ” Under FASB ASC Topic 718, the Company recognizes the grant date fair value of stock-based employee compensation as expense on a straight-line basis over the vesting period of the grant. The Company uses the Black Scholes option pricing model to determine the grant date fair value of employee stock options. The fair value of restricted stock awards is equal to the closing price of the Company’s stock on the date such award was granted.
Effective January 1, 2017, the Company adopted Accounting Standards Update (“ASU”) 2016-09 “Compensation—Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting” and elected to eliminate the use of a forfeiture rate estimate in the determination of share-based compensation expense for restricted stock awards using the modified retrospective transition method. Adoption of the new guidance using this method resulted in a $1.4 million charge to opening retained earnings for 2017.
Income Taxes
The Company provides for income taxes using the asset and liability method as required by FASB ASC Topic 740, “ Income Taxes .” This approach recognizes the amount of federal, state, local and foreign taxes payable or refundable for the current year, as well as deferred tax assets and liabilities for the future tax consequences of events recognized in the consolidated financial statements and income tax returns. Deferred income tax assets and liabilities are adjusted to recognize the effects of changes in tax laws or enacted tax rates in the period during which they are signed into law. FASB ASC Topic 740 requires an assessment of whether valuation allowances are needed against deferred tax assets based upon consideration of all available evidence using a more likely than not standard. See “Note 16. Income Taxes” for further discussion of the Company’s valuation allowances.
FASB ASC Topic 740, Sub-topic 10 “ Tax Positions ,” defines the criterion an individual tax position must meet for any part of the benefit of the tax position to be recognized in financial statements prepared in conformity with generally accepted accounting principles. Under FASB ASC Topic 740, Sub-topic 10, the Company may recognize the tax benefit from an uncertain tax position only if it is more likely than not the tax position will be sustained on examination by the taxing authorities, based solely on the technical merits of the tax
 
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position. The tax benefits recognized in the financial statements from such a tax position should be measured based on the largest benefit having a greater than 50% likelihood of being realized upon ultimate settlement with the tax authority. Additionally, FASB ASC Topic 740, Sub-topic 10 provides guidance on measurement, de-recognition, classification, interest and penalties, accounting in interim periods, disclosure, and transition. In accordance with the disclosure requirements of FASB ASC Topic 740, Sub-topic 10, the Company’s policy on income statement classification of interest and penalties related to income tax obligations is to include such items as part of total interest expense and other expense, respectively.
Other Comprehensive Income
The Company follows the provisions of FASB ASC Topic 220, “ Comprehensive Income, ” which establishes standards for the reporting and display of comprehensive income and its components. Comprehensive income is defined to include all changes in equity during a period except those resulting from investments by owners and distributions to owners. The Company recorded foreign currency translation gains and losses, which are reported as comprehensive income. Foreign currency translation gains (losses) for the years ended December 31, 2017, 2016 and 2015 were $9.3 million, $2.6 million and $(4.5) million, respectively.
Foreign Currency Translation
The Company translates the assets and liabilities of the Taiwan dollar functional currency of Prohealth and its wholly-owned subsidiary Impax Laboratories (Taiwan), Inc. into the U.S. dollar reporting currency using exchange rates in effect at the end of each reporting period. The revenues and expenses of these entities are translated using an average of the rates in effect during the reporting period. Gains and losses from these translations are recorded as currency translation adjustments included in the consolidated statements of comprehensive (loss) income and the consolidated statements of changes in stockholders’ equity.
Recent Accounting Pronouncements
Accounting Guidance Issued Not Yet Adopted
In May 2014, the FASB issued ASU 2014-09, “ Revenue from Contracts with Customers ” (Topic 606) regarding the accounting for and disclosures of revenue recognition, with an effective date for annual and interim periods beginning after December 15, 2016. This update provided a single comprehensive model for accounting for revenue from contracts with customers. The model requires that revenue recognized reflect the actual consideration to which the entity expects to be entitled in exchange for the goods or services defined in the contract, including in situations with multiple performance obligations. In July 2015, the FASB issued ASU 2015-14, “ Revenue from Contracts with Customers (Topic 606): Deferral of the Effective Date ,” which deferred the effective date of the previously issued revenue recognition guidance by one year. The guidance is effective for annual and interim periods beginning after December 15, 2017. In April 2016 and May 2016, the FASB issued ASU 2016-10, “ Revenue from Contracts with Customers (Topic 606): Identifying Performance Obligations and Licensing ” and ASU 2016-12, “ Revenue from Contracts with Customers (Topic 606): Narrow-Scope Improvements and Practical Expedients ,” respectively. Both of these updates provide improvements and clarification to the previously issued revenue recognition guidance. The new standard can be adopted using one of two methods: the full retrospective method, which requires the standard to be applied to each prior period presented, or the modified retrospective method, which requires the cumulative effect of adoption to be recognized as an adjustment to opening retained earnings in the period of adoption. The Company adopted the new revenue recognition standard as of January 1, 2018 using the modified retrospective method. The Company has substantially completed its analysis of the impact that adoption will have on its consolidated financial statements. The majority of the Company’s revenue relates to the sale of finished products to various customers, and the adoption will not have an impact on revenue recognized from these transactions. The Company has also evaluated the impact on certain less significant transactions involving third-party collaborations and other arrangements, whereby the Company will recognize revenue earlier under the new standard. The Company has
 
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estimated that a cumulative effect adjustment of approximately $0.5 million will be recognized as of January 1, 2018 to reflect the recognition of revenue related to the Company’ profit sharing agreements. During fiscal year 2018, the Company will disclose the amount by which revenue was affected for each period presented. In addition, the new standard will require changes to the Company’s processes and controls and the Company has identified and designed changes to processes and controls to ensure readiness.
In February 2016, the FASB issued ASU 2016-02, “Leases” (Topic 842), with guidance regarding the accounting for and disclosure of leases. The update requires lessees to recognize all leases, including operating leases, with a term greater than 12 months on the balance sheet. This update also requires lessees and lessors to disclose key information about their leasing transactions. The guidance will be effective for annual and interim periods beginning after December 15, 2018. The Company is currently evaluating the effect that this guidance will have on its consolidated financial statements and related disclosures. The Company’s expects the implementation of this standard to have an impact on its consolidated financial statements and related disclosures as it has aggregate future minimum lease payments of $28.1 million as of December 31, 2017 under the current portfolio of non-cancelable leases for land, office space, and manufacturing, warehouse and research and development facilities with various expiration dates between January 2018 and December 2027. The Company anticipates recognition of additional assets and corresponding liabilities related to these leases on its consolidated balance sheet.
In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): “ Classification of Certain Cash Receipts and Cash Payments, ” with guidance intended to reduce the diversity in practice regarding how certain cash receipts and cash payments are presented and classified within the statement of cash flows. The update addresses eight specific cash flow issues including debt prepayment or debt extinguishment costs, the settlement of zero-coupon debt instruments or other debt instruments with coupon interest rates that are insignificant in relation to the effective interest rate of the borrowing, contingent consideration payments made after a business combination, proceeds from the settlement of insurance claims, proceeds from the settlement of corporate-owned life insurance policies (COLIs) (including bank-owned life insurance policies (BOLIs)), distributions received from equity method investees, beneficial interests in securitization transactions, and separately identifiable cash flows and application of the predominance principle. The guidance is effective for annual and interim periods beginning after December 15, 2017. The adoption of this guidance will not have any impact on the Company’s consolidated financial statements.
In October 2016, the FASB issued ASU-2016-16, Income Taxes (Topic 740): “ Intra-Entity Transfers of Assets Other Than Inventory, ” with guidance intended to more faithfully represent the economics of intra-entity asset transfers. The update clarifies that entities must recognize the income tax consequences of intra-entity asset transfers, other than inventory, when the transfer occurs. The guidance is effective for annual and interim periods beginning after December 15, 2017. The adoption of this guidance will not have any impact on the Company’s consolidated financial statements.
In January 2017, the FASB issued ASU-2017-01, Business Combinations (Topic 805): “Clarifying the Definition of a Business,” with guidance intended to assist entities in evaluating whether transactions should be accounted for as acquisitions (or disposals) of businesses. The update provides a screen to determine whether an integrated set of assets and activities constitute a business. If the screen is not met, the guidance (1) requires that to be considered a business, a set must include, at a minimum, an input and a substantive process that together significantly contribute to the ability to create output and (2) removes the evaluation of whether a market participant could replace the missing elements. The guidance is effective for annual and interim periods beginning after December 15, 2017 and will be applied prospectively. The Company adopted this guidance as of January 1, 2018 and the guidance will not have any impact on the Company’s consolidated financial statements.
In May 2017, the FASB issued ASU 2017-09, Compensation—Stock Compensation (Topic 718): “Scope of Modification Accounting,” which provides guidance about which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting in Topic 718. The guidance is effective
 
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for annual and interim periods beginning after December 15, 2017, with early adoption permitted. The amendments in this ASU are applied prospectively to an award modified on or after the adoption date. The Company adopted this guidance as of January 1, 2018 and the guidance will not have any impact on the Company’s consolidated financial statements.
Recently Adopted Accounting Guidance
In July 2015, the FASB issued ASU 2015-11, Inventory (Topic 330): “ Simplifying the Measurement of Inventory ,” with guidance regarding the accounting for and measurement of inventory. The update requires that inventory measured using first-in, first-out (“FIFO”) shall be measured at the lower of cost and net realizable value. When there is evidence that the net realizable value of inventory is lower than its cost, the difference shall be recognized as a loss in earnings in the period in which it occurs. The guidance is effective for annual and interim periods beginning after December 15, 2016. The Company adopted this guidance during the first quarter of 2017, and it did not have a material effect on the Company’s consolidated financial statements.
In March 2016, the FASB issued ASU 2016-06, Derivatives and Hedging (Topic 915): “ Contingent Put and Call Options in Debt Instruments ,” with guidance regarding the accounting for embedded derivatives related to debt contracts. The update clarifies that determining whether the economic characteristics of a put or call are clearly and closely related to its debt host requires only an assessment of the four-step decision sequence outlined in FASB ASC paragraph 815-15-25-24. The update also indicates that entities are not required to separately assess whether the contingency itself is clearly and closely related. The guidance will be effective for annual and interim periods beginning after December 15, 2016. The Company adopted this guidance during the first quarter of 2017, and it did not have an effect on the Company’s consolidated financial statements.
In March 2016, the FASB issued ASU 2016-09, Compensation—Stock Compensation (Topic 718): “ Improvements to Employee Share-Based Payment Accounting ,” with guidance regarding the simplification of accounting for share-based payment award transactions. The update changes the accounting for such areas as the accounting and cash flow classification for excess tax benefits and deficiencies; forfeitures; and tax withholding requirements and cash flow classification. The guidance is effective for annual and interim periods beginning after December 15, 2016. The Company adopted the new guidance effective January 1, 2017 and elected to eliminate the use of a forfeiture rate estimate in the determination of share-based compensation expense for restricted stock awards using the modified retrospective transition method, which resulted in a $1.4 million charge to opening retained earnings for 2017. In addition, the Company is now presenting the cash paid for tax withholdings on stock options exercised and restricted stock awards vested retrospectively in cash flows from financing activities as opposed to the historical presentation in cash flows from operating activities. The adoption resulted in an increase to net cash from operations and decrease net cash provided by financing of $9.3 million and $20.5 million for the years ended December 31, 2016 and 2015, respectively. Excess tax benefits or deficiencies, historically recorded to additional paid-in capital, are recorded to income tax expense as they occur on a prospective basis.
In January 2017, the FASB issued ASU 2017-03, “Accounting Changes and Error Corrections” (Topic 250) and Investments—Equity Method and Joint Ventures (Topic 323), which add to and amend SEC paragraphs pursuant to the SEC Staff Announcements at the September 22, 2016 and November 17, 2016 Emerging Issues Task Force (EITF) meetings. The guidance provides additional disclosure requirements regarding the impact of recently issued accounting standards on the financial statements of a registrant when such standards are adopted in a future period. The Company adopted this guidance during the first quarter of 2017, and it did not have an effect on the Company’s consolidated financial statements.
In January 2017, the FASB issued ASU-2017-04, “Intangibles—Goodwill and Other” (Topic 350): “Simplifying the Test for Goodwill Impairment,” which removes the second step of the two-step goodwill impairment test. In order to reduce the cost and complexity of testing goodwill for impairment, entities are now only required to perform a one-step quantitative impairment test and to record the amount of goodwill
 
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impairment as the excess of a reporting unit’s carrying amount over its fair value, not to exceed the total amount of goodwill allocated to the reporting unit. The new guidance does not amend the optional qualitative assessment of a reporting unit to determine if the quantitative impairment test is necessary. Entities should apply the guidance on a prospective basis and disclose the nature of and reason for the change in accounting principle upon transition. The guidance will be effective for annual and interim periods beginning after December 15, 2019, with early adoption permitted for interim or annual goodwill impairment tests performed after January 1, 2017. The Company adopted this guidance during the first quarter of 2017, and it did not have an effect on the Company’s consolidated financial statements.
3. BUSINESS ACQUISITIONS
Teva Transaction
On August 3, 2016, the Company completed its previously announced acquisition of (A) certain assets related to (i) 15 then currently marketed generic pharmaceutical products, (ii) one then approved generic product and two then tentatively approved strengths of a then currently marketed product, which at the time of the closing had not yet launched, (iii) one pipeline generic product and one pipeline strength of a then currently marketed product, which at the time of the closing were pending approval by the FDA and (iv) one generic product then under development, and (B) the return to the Company of its full commercial rights to its then pending ANDA for the generic equivalent to Concerta ® (methylphenidate hydrochloride), a product the Company previously partnered with Teva Pharmaceuticals USA, Inc. (“Teva USA”) (collectively, the products and pipeline products and the assets related thereto in (A) and (B), the “Acquired Product Lines” and the transactions related thereto the “Teva Transaction”), pursuant to (x) an Asset Purchase Agreement, dated as of June 20, 2016, as amended on June 30, 2016, with Teva Pharmaceutical Industries Ltd. (“Teva”), acting directly or through its affiliates (the “Teva APA”), (y) an Asset Purchase Agreement, dated as of June 20, 2016, as amended on June 30, 2016, with affiliates of Allergan plc (“Allergan”), (the “Allergan APA” and collectively with the Teva APA, the “APAs”), and (z) a Termination Agreement, dated as of June 20, 2016, between the Company and Teva USA, terminating each party’s rights and obligations with respect to methylphenidate hydrochloride under the Strategic Alliance Agreement, dated June 27, 2001, as amended between the Company and Teva USA. The aggregate purchase price for the Acquired Product Lines pursuant to the terms of the Teva APA and the Allergan APA, including the upfront payment to Teva in accordance with the Termination Agreement, was $585.8 million in cash at closing. The Company is also obligated to make future payments to Teva of up to $40.0 million under the terms of the Termination Agreement, payable upon the achievement of specified commercialization events related to methylphenidate hydrochloride.
The Company financed the Teva Transaction utilizing cash on hand and $400.0 million, the full amount of borrowing available, from its Term Loan Facility with Royal Bank of Canada, as discussed in “Note 11. Debt.” The Company incurred acquisition-related costs for the Teva Transaction of $3.1 million and $0.6 million during for the years ended December 31, 2016, and 2015, respectively, which are included in selling, general, and administrative expenses in the Company’s consolidated statements of operations.
The acquisition of the foregoing currently marketed and pipeline products fits with the Company’s strategic priorities of maximizing its Generics Division’s platform and optimizing research and development opportunities. Through the Teva Transaction, the Company expanded its portfolio of difficult-to-manufacture or limited-competition products and maximized utilization of its existing manufacturing facilities.
As part of the closing of the Teva Transaction, the Company, Teva and Allergan agreed to certain transition related services pursuant to which the Company agreed to manage the payment process for certain commercial chargebacks and rebates on behalf of Teva and Allergan related to products each of Teva and Allergan sold into the channel prior to the closing date. On August 18, 2016, the Company received a payment totaling $42.4 million from Teva and Allergan, which represented their combined estimate of the amount of commercial chargebacks and rebates to be paid by the Company on their behalf to wholesalers who purchased products from
 
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Teva and Allergan prior to the closing. Pursuant to the agreed upon transition services, Teva and Allergan are obligated to reimburse the Company for additional payments related to chargebacks and rebates made on their behalf in excess of the $42.4 million. If the total payments made by the Company on behalf of Teva and Allergan are less than $42.4 million, the Company is obligated to refund the difference to Teva and/or Allergan. As of December 31, 2017, the Company had paid $29.1 million on behalf of Teva and Allergan related to chargebacks and rebates as described above and $13.3 million remained in accrued expenses on the consolidated balance sheet.
Purchase Accounting and Consideration
FASB ASC Topic 805, Business Combinations (“ASC 805”) defines a business as consisting of inputs and processes applied to those inputs that have the ability to create outputs. The Company has determined that the Acquired Product Lines meet the definition of a business and, accordingly, has accounted for the Teva Transaction as a business combination under the acquisition method of accounting.
The following is an estimate of the purchase price for the Teva Transaction as of the closing date of August 3, 2016 (in thousands):

 	  	Estimated
Fair Value	 	
Purchase price per the APAs	  	$	575,800	 	
Upfront payment pursuant to Termination Agreement	  	 	10,000	 	
	  	 	 	 	
Total cash consideration	  	 	585,800	 	
Fair value of contingent consideration pursuant to Termination Agreement (1)	  	 	30,100	 	
	  	 	 	 	
Total consideration transferred	  	$	615,900	 	
	  	 	 	 	
(1)	The contingent consideration arrangement pursuant to the Termination Agreement potentially requires the Company to pay up to $40.0 million of additional consideration to Teva upon the achievement of specified commercialization events related to methylphenidate hydrochloride. The $30.1 million fair value of the potential contingent consideration payments recognized on the acquisition date was estimated by applying a probability-weighted expected return methodology. The Company conducted a review of the underlying inputs and assumptions at December 31, 2017, and based on timing and probability of the product launch, and corresponding number of competitors expected to be in the market at both launch and the one-year anniversary of launch, the Company concluded that the fair value of its contingent consideration was $0.	
Recognition and Measurement of Assets Acquired at Fair Value
The Company has allocated the purchase price for the Teva Transaction based upon the estimated fair value of the assets acquired at the date of acquisition.
The following is an estimate of the fair value of the intangible and tangible assets acquired in connection with the Teva Transaction on the closing date of August 3, 2016 (in thousands):

 	  	Estimated
Fair Value	 	  	Weighted-Average
Estimated Useful Life	 	
Marketed product rights	  	$	455,529	 	  	 	19 years	 	
Acquired IPR&D product rights (1)	  	 	157,503	 	  	 	n/a	 	
	  	 	 	 	  				
Total intangible assets	  	 	613,032	 	  				
Inventory—raw materials	  	 	2,868	 	  				
	  	 	 	 	  				
Total assets acquired	  	$	615,900	 	  				
	  	 	 	 	  				
(1)	IPR&D refers to the Company’s in-process research and development product rights. Pursuant to the Termination Agreement, Teva returned to the Company its full commercial rights to its then pending ANDA	
 
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 	for the generic equivalent to Concerta ® (methylphenidate hydrochloride), a product the Company previously partnered with Teva USA under a Strategic Alliance Agreement dated June 27, 2001, as amended. As a result, the Company recognized an intangible asset of $78.9 million related to the reacquired IPR&D. The Company engaged a third-party valuation specialist to measure the value of the reacquired product right using a discounted cash flow analysis. The asset was determined to be indefinite-lived based on the market participant methodology prescribed in ASC 805.	
The estimated fair value of the IPR&D and identifiable intangible assets was determined using the “income approach,” which is a valuation technique that provides an estimate of the fair value of an asset based on market participant expectations of the cash flows an asset would generate over its remaining useful life. The assumptions, including the expected projected cash flows, utilized in the purchase price allocation and in determining the purchase price were based on management’s best estimates as of the closing date of the Teva Transaction on August 3, 2016. Some of the more significant assumptions inherent in the development of those asset valuations include the estimated net cash flows for each year for each asset or product (including net revenues, cost of sales, research and development costs, selling and marketing costs and working capital / contributory asset charges), the appropriate discount rate to select in order to measure the risk inherent in each future cash flow stream, the assessment of each asset’s life cycle, the potential regulatory and commercial success risks, competitive trends impacting the asset and each cash flow stream, as well as other factors. The discount rate used to arrive at the present value at the closing date of the intangible assets was 6.7%. No assurances can be given that the underlying assumptions used to prepare the discounted cash flow analysis will not change. For these and other reasons, actual results may vary significantly from estimated results. During the year ended December 31, 2017 and 2016, the Company recognized impairment charges of $213.9 million and $308.4 million, respectively, related to the intangible assets from the Teva Transaction as described in “Note 8. Intangible Assets and Goodwill.”
Revenues and Earnings for Acquired Product Lines
Included in the Company’s consolidated statement of operations for the year ended December 31, 2016 were revenues of $44.8 million and a net loss of $244.7 million (including $308.4 million of impairment charges—See “Note 8. Intangible Assets and Goodwill”), representing the results of operations for the Acquired Product Lines from the Teva Transaction from the August 3, 2016 closing date through December 31, 2016.
Unaudited Pro Forma Results of Operations
The unaudited pro forma combined results of operations for the years ended December 31, 2016 and 2015 (assuming the closing of the Teva Transaction occurred on January 1, 2015) are as follows (in thousands):

 	  	Years Ended December 31,	 	
 	  	2016	 	  	2015	 	
Total revenues	  	$	927,593	 	  	$	1,025,598	 	
Net (loss) income	  	 	(450,190	) 	  	 	70,057	 	
The pro forma adjustments reflected herein include only those adjustments that are directly attributable to the Teva Transaction, factually supportable and expected to have a continuing impact on the Company. The pro forma results have been prepared for comparative purposes only and are not necessarily indicative of the actual results of operations had the closing of the Teva Transaction taken place on January 1, 2015. Furthermore, the pro forma results do not purport to project the future results of operations of the Company.
The unaudited pro forma information reflects primarily the following adjustments:
 
 	•	 	Adjustments to amortization expense related to identifiable intangible assets acquired;	
 
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 	•	 	Adjustments to interest expense to reflect the Company’s Term Loan Facility (described in “Note 10. Debt”); and	
 
 	•	 	Adjustments to selling, general and administrative expense related to transaction costs directly attributable to the transaction include the elimination of $3.1 million of charges in the pro forms results for the year ended December 31, 2016 which have been included in the pro forma results for the year ended December 31, 2015.	
All of the items above were adjusted for the applicable tax impact.
Tower Acquisition
On March 9, 2015, the Company completed the Tower Acquisition for a purchase price of $691.3 million, net of $41.5 million of cash acquired and including the repayment of indebtedness of Tower and Lineage and post-closing working capital adjustments. The privately-held companies specialized in the development, manufacture and commercialization of complex generic and branded pharmaceutical products. The Tower Acquisition included the Company’s acquisition of all of the outstanding shares of common stock of Tower and Lineage, pursuant to the Stock Purchase Agreement dated as of October 8, 2014, by and among the Company, Tower, Lineage, Roundtable Healthcare Partners II, L.P., Roundtable Healthcare Investors II, L.P., and the other parties thereto, including holders of certain options and warrants to acquire the common stock of Tower or Lineage. In connection with the Tower Acquisition, the options and warrants of Tower and Lineage that were outstanding at the time of the acquisition were cancelled. The Company incurred acquisition-related costs of $10.9 million, of which $6.7 million were incurred during the year ended December 31, 2015 and were included in selling, general and administrative expenses in the Company’s consolidated statement of operations for that period. In connection with the Tower Acquisition, the Company recorded an accrual for severance and related termination costs of $2.4 million during 2015 related to the elimination of approximately 10 positions at the acquired companies. The Company paid all severance and related termination costs related to the Tower Acquisition as of the end of the second quarter of 2016.
The Tower Acquisition allowed the Company to expand its commercialized generic and branded product portfolios. The Company has also leveraged its sales and marketing organization to promote the marketed products acquired.
Purchase Accounting and Consideration
The Company has accounted for the Tower Acquisition as a business combination under the acquisition method of accounting. The Company allocated the purchase price for the transaction based upon the fair value of net assets acquired and liabilities assumed at the date of acquisition.
 
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Recognition and Measurement of Assets Acquired and Liabilities Assumed at Fair Value
The following tables summarize the final fair values of the tangible and identifiable intangible assets acquired and liabilities assumed in the Tower Acquisition at the closing date, net of cash acquired of $41.5 million (in thousands):

Accounts receivable (1)	  	$	56,851	 	
Inventory	  	 	31,259	 	
Income tax receivable and other prepaid expenses	  	 	2,407	 	
Property, plant and equipment	  	 	27,540	 	
Intangible assets	  	 	632,600	 	
Intangible assets held for sale	  	 	4,000	 	
Goodwill	  	 	179,755	 	
Deferred income taxes	  	 	37,041	 	
Other non-current assets	  	 	3,844	 	
	  	 	 	 	
Total assets acquired	  	 	975,297	 	
	  	 	 	 	
Current liabilities	  	 	67,584	 	
Deferred tax liabilities	  	 	210,005	 	
Other non-current liabilities	  	 	6,360	 	
	  	 	 	 	
Total liabilities assumed	  	 	283,949	 	
	  	 	 	 	
Cash paid, net of cash acquired	  	$	691,348	 	

(1)	The accounts receivable acquired in the Tower Acquisition had a fair value of $56.9 million, including an allowance for doubtful accounts of $9.0 million, which represented the Company’s best estimate on March 9, 2015 (the closing date of the transaction) of the contractual cash flows not expected to be collected by the acquired companies.	
Intangible Assets
The following table identifies the Company’s allocations, by category, of the Tower Acquisition purchase price to the intangible assets acquired as of the closing date (in thousands):

 	  	Estimated
Fair
Value	 	  	Weighted-Average
Estimated Useful
Life (years)	 	
Marketed product rights	  	$	381,100	 	  	 	13	 	
Royalty rights	  	 	80,800	 	  	 	12	 	
Acquired IPR&D product rights	  	 	170,700	 	  	 	n/a	 	
	  	 	 	 	  				
Total intangible assets	  	$	632,600	 	  				
	  	 	 	 	  				
The estimated fair value of the IPR&D and identifiable intangible assets was determined using the “income approach,” which is a valuation technique that provides an estimate of the fair value of an asset based on market participant expectations of the cash flows an asset would generate over its remaining useful life. Some of the more significant assumptions inherent in the development of those asset valuations include the estimated net cash flows for each year for each asset or product (including net revenues, cost of sales, research and development costs, selling and marketing costs and working capital / contributory asset charges), the appropriate discount rate to select in order to measure the risk inherent in each future cash flow stream, the assessment of each asset’s life cycle, the potential regulatory and commercial success risks, competitive trends impacting the asset and each cash flow stream as well as other factors. The discount rates used to arrive at the present value at the acquisition date of currently marketed products was 15%. For in-process research and development, the discount rate used was 16% to reflect the internal rate of return and incremental commercial uncertainty in the cash flow
 
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projections. No assurances can be given that the underlying assumptions used to prepare the discounted cash flow analysis will not change. For these and other reasons, actual results may vary significantly from estimated results.
Goodwill
The Company recorded approximately $179.8 million of goodwill in connection with the Tower Acquisition, some of which will not be tax-deductible. Goodwill of $59.7 million was assigned to the Impax Specialty Pharma segment and $120.1 million was assigned to the Impax Generics segment. Factors that contributed to the Company’s recognition of goodwill include the Company’s intent to expand its generic and branded pharmaceutical product portfolios and to acquire certain benefits from the Tower and Lineage product pipelines, in addition to the anticipated synergies that the Company expects to generate from the acquisition.
Unaudited Pro Forma Results of Operations
The unaudited pro forma combined results of operations for the year ended December 31, 2015 (assuming the closing of the Tower Acquisition occurred on January 1, 2014) are as follows (in thousands):

 	  	Year Ended
December 31, 2015	 	
Total revenues	  	$	892,906	 	
Net income	  	$	54,285	 	
The pro forma adjustments reflected herein include only those adjustments that are directly attributable to the Tower Acquisition, factually supportable and expected to have a continuing impact on the Company. The pro forma results have been prepared for comparative purposes only and are not necessarily indicative of the actual results of operations had the closing of the Tower Acquisition taken place on January 1, 2014. Furthermore, the pro forma results do not purport to project the future results of operations of the Company.
The unaudited pro forma information reflects primarily the following adjustments:
 
 	•	 	Adjustments to amortization expense related to identifiable intangible assets acquired;	
 
 	•	 	Adjustments to depreciation expense related to property, plant and equipment acquired;	
 
 	•	 	Adjustments to interest expense to reflect the long-term debt held by Tower and Lineage paid out and eliminated at the closing and the Company’s Senior Secured Credit Facilities (described in “Note 10. Debt”);	
 
 	•	 	Adjustments to cost of revenues related to the fair value adjustments in inventory sold, including elimination of $6.1 million for the year ended December 31, 2015;	
 
 	•	 	Adjustments to selling, general and administrative expense related to the elimination of severance and retention costs of $3.4 million incurred as part of the transaction;	
 
 	•	 	Adjustments to selling, general and administrative expense related to transaction costs directly attributable to the transaction include the elimination of $12.2 million of charges in the pro forma results for the year ended December 31, 2015; and	
 
 	•	 	Adjustments to reflect the elimination of $2.3 million in commitment fees related to the Company’s $435.0 million term loan with Barclays Bank PLC (described in “Note 10. Debt”) that were incurred during the year ended December 31, 2015.	
All of the items above were adjusted for the applicable tax impact.
4. FAIR VALUE MEASUREMENT AND FINANCIAL INSTRUMENTS
The carrying values of cash equivalents, accounts receivable, prepaid expenses and other current assets, and accounts payable in the Company’s consolidated balance sheets approximated their fair values as of December 31, 2017 and 2016 due to their short-term nature.
 
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Certain of the Company’s financial instruments are measured at fair value using a three-level hierarchy that prioritizes the inputs used to measure fair value. This hierarchy maximizes the use of observable inputs and minimizes the use of unobservable inputs. The three levels of inputs used to measure fair value are as follows:
 
 	•	 	Level  1 —Inputs are quoted prices for identical instruments in active markets.	
 
 	•	 	Level  2 —Inputs are quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in markets that are not active; or model-derived valuations whose inputs are observable or whose significant value drivers are observable.	
 
 	•	 	Level  3 —Inputs are unobservable and reflect the Company’s own assumptions, based on the best information available, including the Company’s own data.	
The carrying amounts and fair values of the Company’s financial instruments as of December 31, 2017 and 2016 are indicated below (in thousands):

 	  	As of December 31, 2017	 	
 	  	 	 	  	 	 	  	Fair Value Measurement Based on	 	
 	  	Carrying
Amount	 	  	Fair Value	 	  	Quoted
Prices in
Active
Markets
(Level 1)	 	  	Significant
Other
Observable
Inputs
(Level 2)	 	  	Significant
Unobservable
Inputs
(Level 3)	 	
Assets	  				  				  				  				  				
Deferred Compensation Plan assets (1)	  	$	43,023	 	  	$	43,023	 	  	$	—  	 	  	$	43,023	 	  	$	—  	 	
Liabilities	  				  				  				  				  				
Term Loan Facility due August 2021, current portion (2)	  	$	20,000	 	  	$	20,000	 	  	$	—  	 	  	$	20,000	 	  	$	—  	 	
Term Loan Facility due August 2021, long-term portion (2)	  	$	305,000	 	  	$	305,000	 	  	$	—  	 	  	$	305,000	 	  	$	—  	 	
2% Convertible Senior Notes due June 2022 (3)	  	$	600,000	 	  	$	579,378	 	  	$	579,378	 	  	$	—  	 	  	$	—  	 	
Deferred Compensation Plan liabilities (1)	  	$	33,413	 	  	$	33,413	 	  	$	—  	 	  	$	33,413	 	  	$	—  	 	
Contingent consideration, long-term portion (4)	  	$	—  	 	  	$	—  	 	  	$	—  	 	  	$	—  	 	  	$	—  	 	

 	  	As of December 31, 2016	 	
 	  	 	 	  	 	 	  	Fair Value Measurement Based on	 	
 	  	Carrying
Amount	 	  	Fair Value	 	  	Quoted
Prices in
Active
Markets
(Level 1)	 	  	Significant
Other
Observable
Inputs
(Level 2)	 	  	Significant
Unobservable
Inputs
(Level 3)	 	
Assets	  				  				  				  				  				
Deferred Compensation Plan assets (1)	  	$	37,382	 	  	$	37,382	 	  	$	—  	 	  	$	37,382	 	  	$	—  	 	
Liabilities	  				  				  				  				  				
Term Loan Facility due August 2021, current portion (2)	  	$	20,000	 	  	$	20,000	 	  	$	—  	 	  	$	20,000	 	  	$	—  	 	
Term Loan Facility due August 2021, long-term portion (2)	  	$	375,000	 	  	$	375,000	 	  	$	—  	 	  	$	375,000	 	  	$	—  	 	
2% Convertible Senior Notes due June 2022 (3)	  	$	600,000	 	  	$	469,800	 	  	$	469,800	 	  	$	—  	 	  	$	—  	 	
Deferred Compensation Plan liabilities (1)	  	$	28,582	 	  	$	28,582	 	  	$	—  	 	  	$	28,582	 	  	$	—  	 	
Contingent consideration, long-term portion (4)	  	$	31,048	 	  	$	31,048	 	  	$	—  	 	  	$	—  	 	  	$	31,048	 	
 
(1)	The Deferred Compensation Plan liabilities are non-current liabilities recorded at the value of the amount owed to the plan participants, with changes in value recognized as compensation expense in the Company’s consolidated statements of operations. The calculation of the Deferred Compensation Plan obligation is derived from observable market data by reference to hypothetical investments selected by the participants and is included in the line item captioned “Other non-current liabilities” on the Company’s consolidated	
 
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 	balance sheets. The Company invests participant contributions in corporate-owned life insurance (“COLI”) policies, for which the cash surrender value is included in the line item captioned “Other non-current assets” on the Company’s consolidated balance sheets.	
(2)	The difference between the amount shown as the carrying value in the above tables and the amount shown on the Company’s consolidated balance sheets as of December 31, 2017 and 2016 represents the unaccreted discount related to deferred debt issuance costs.	
(3)	The difference between the amount shown as the carrying value in the above tables and the amount shown on the Company’s consolidated balance sheets at December 31, 2017 and 2016 represents the unaccreted discounts related to deferred debt issuance costs and bifurcation of the conversion feature of the notes.	
(4)	Under the terms of the Termination Agreement related to the Teva Transaction as described in “Note 3. Business Acquisitions.”, the Company could be contractually obligated to make payments up to $40.0 million based on the achievement of certain commercial and time-based milestones associated with its methylphenidate hydrochloride product. A discounted cash flow valuation model was used to value the contingent consideration using significant unobservable inputs, including the probability and timing of successful product launch, the expected number of product competitors in the market at the time of launch (as defined in the Termination Agreement) and the expected number of such competitors in the market on the one-year launch anniversary date. The Company conducted a review of the underlying inputs and assumptions at December 31, 2017, and based on timing and probability of the product launch, and corresponding number of competitors expected to be in the market at both launch and the one-year anniversary of launch, the Company concluded that the fair value of its contingent consideration is $0.	
The following table presents the changes in Level 3 instruments measured on a recurring basis for the years ended December 31, 2017 and 2016 (in thousands):

 	  	Years Ended December 31,	 	
Contingent consideration	  	2017	 	  	2016	 	
Beginning balance	  	$	31,048	 	  	$	—  	 	
Completion of Teva Transaction August 3, 2016	  	 	—  	 	  	 	30,100	 	
Change in fair value included in earnings	  	 	(31,048	) 	  	 	948	 	
	  	 	 	 	  	 	 	 	
Ending balance	  	$	—  	 	  	$	31,048	 	
	  	 	 	 	  	 	 	 	
5. ACCOUNTS RECEIVABLE
The composition of accounts receivable, net is as follows (in thousands):

 	  	December 31, 2017	 	  	December 31, 2016	 	
Gross accounts receivable (1)	  	$	634,059	 	  	$	794,173	 	
Less: Rebate reserve	  	 	(181,611	) 	  	 	(293,816	) 	
Less: Chargeback reserve	  	 	(136,891	) 	  	 	(151,978	) 	
Less: Distribution services reserve	  	 	(11,037	) 	  	 	(18,318	) 	
Less: Discount reserve	  	 	(14,344	) 	  	 	(17,957	) 	
Less: Uncollectible accounts reserve (2)	  	 	(49,423	) 	  	 	(54,736	) 	
	  	 	 	 	  	 	 	 	
Accounts receivable, net	  	$	240,753	 	  	$	257,368	 	
	  	 	 	 	  	 	 	 	
(1)	Includes estimated $44.3 million and $40.3 million as of December 31, 2017 and 2016, respectively, receivable due from Turing Pharmaceuticals AG (“Turing”) for reimbursement of Daraprim ® chargebacks and Medicaid rebate liabilities pursuant to an Asset Purchase Agreement between the Company and Turing dated August 7, 2015 (the “Turing APA”). In accordance with the terms of the Turing APA and in accordance with federal laws and regulations, the Company receives, and is initially responsible for processing and paying (subject to reimbursement by Turing), all chargebacks and rebates resulting from	
 
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 	utilization by Medicaid, Medicare and other federal, state and local government programs, health plans and other health care providers for products sold under the Company’s labeler code. Under the terms of the Turing APA, Turing is responsible for liabilities related to chargebacks and rebates that arise as a result of Turing’s marketing or selling related activities in connection with Daraprim ® . Refer to “Note 19. Legal and Regulatory Matters” for a description of the Company’s suit against Turing related to, among other matters, Turing’s failure to reimburse the Company for chargebacks and Medicaid rebate liabilities when due.	
(2)	As a result of the uncertainty of collection from Turing that developed during the first quarter of 2016, the Company recorded a reserve of $48.0 million as of March 31, 2016, which represented the full amount of the estimated receivable due from Turing. During the fourth quarter of 2016, the Company received a $7.7 million payment from Turing. During the year ended December 31, 2017, the Company increased the reserve balance by a net $4.0 million, consisting of a $5.0 million increase in the reserve resulting from additional Medicaid rebate claims received during the period and a $1.0 million reduction in the reserve balance resulting from payments received from Turing during the period. As of December 31, 2017, the $44.3 million estimated receivable due from Turing was fully reserved.	
A roll-forward of the rebate and chargeback reserves activity for the years ended December 31, 2017, 2016 and 2015 is as follows (in thousands):

 	  	Years Ended December 31,	 	
Rebate reserve	  	2017	 	  	2016	 	  	2015	 	
Beginning balance	  	$	293,816	 	  	$	265,229	 	  	$	88,812	 	
Acquired balances	  	 	—  	 	  	 	—  	 	  	 	75,447	 	
Provision recorded during the period for Impax Generics rebates	  	 	642,447	 	  	 	756,774	 	  	 	571,642	 	
Credits issued during the period for Impax Generics rebates	  	 	(754,652	) 	  	 	(728,187	) 	  	 	(470,672	) 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Ending balance	  	$	181,611	 	  	$	293,816	 	  	$	265,229	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
The payment mechanisms for rebates in the Impax Generics and Impax Specialty Pharma divisions are different, which impacts the location on the Company’s consolidated balance sheets. Impax Generics rebates are classified as “Accounts receivable, net” on the Company’s consolidated balance sheets. Impax Specialty Pharma rebates are classified as “Accrued expenses” on the Company’s consolidated balance sheets.

 	  	Years Ended December 31,	 	
 	  	2017	 	  	2016	 	  	2015	 	
Chargeback reserve	  				  				  				
Beginning balance	  	$	151,978	 	  	$	102,630	 	  	$	43,125	 	
Acquired balances	  	 	—  	 	  	 	—  	 	  	 	24,532	 	
Provision recorded during the period	  	 	1,212,039	 	  	 	1,011,400	 	  	 	833,157	 	
Credits issued during the period	  	 	(1,227,126	) 	  	 	(962,052	) 	  	 	(798,184	) 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Ending balance	  	$	136,891	 	  	$	151,978	 	  	$	102,630	 	

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6. INVENTORY
Inventory, net of carrying value reserves, as of December 31, 2017 and 2016 consisted of the following (in thousands):

 	  	December 31, 2017	 	  	December 31, 2016	 	
Raw materials	  	$	63,732	 	  	$	53,808	 	
Work in-process	  	 	3,046	 	  	 	3,280	 	
Finished goods	  	 	104,187	 	  	 	130,879	 	
	  	 	 	 	  	 	 	 	
Total inventory	  	 	170,965	 	  	 	187,967	 	
Less: Non-current inventory	  	 	12,494	 	  	 	12,737	 	
	  	 	 	 	  	 	 	 	
Total inventory-current, net	  	$	158,471	 	  	$	175,230	 	
	  	 	 	 	  	 	 	 	
Inventory carrying value reserves were $71.6 million and $38.0 million as of December 31, 2017 and 2016, respectively. Included in the $71.6 million of inventory reserves at December 31, 2017 was a pre-launch product inventory reserve of $20.5 million, primarily related to colesevelam, recognized during the third quarter of 2017.
The Company recognizes pre-launch inventories at the lower of its cost or the expected net selling price. Cost is determined using a standard cost method, which approximates actual cost, and assumes a FIFO flow of goods. Costs of unapproved products are the same as approved products and include materials, labor, quality control, and production overhead. When the Company concludes FDA approval is expected within approximately six months, the Company will generally begin to schedule manufacturing process validation studies as required by the FDA to demonstrate the production process can be scaled up to manufacture commercial batches. Consistent with industry practice, the Company may build quantities of pre-launch inventories of certain products pending required final FDA approval and/or resolution of patent infringement litigation, when, in the Company’s assessment, such action is appropriate to prepare for the anticipated commercial launch, FDA approval is expected in the near term, and/or the related litigation will be resolved in the Company’s favor. The capitalization of unapproved pre-launch inventory involves risks, including, among other items, FDA approval of product may not occur; approvals may require additional or different testing and/or specifications than used for unapproved inventory; and, in cases where the unapproved inventory is for a product subject to litigation, the litigation may not be resolved or settled in favor of the Company. If any of these risks were to materialize and the launch of the unapproved product delayed or prevented, then the net carrying value of unapproved inventory may be partially or fully reserved. Generally, the selling price of a generic pharmaceutical product is at discount from the corresponding brand product selling price. Typically, a generic drug is easily substituted for the corresponding branded product, and once a generic product is approved, the pre-launch inventory is typically sold within the subsequent three months. If the market prices become lower than the product inventory carrying costs, then the pre-launch inventory value is reduced to such lower market value. If the inventory produced exceeds the estimated market acceptance of the generic product and becomes short-dated, a carrying value reserve will be recorded. In all cases, the carrying value of the Company’s pre-launch product inventory is lower than the respective estimated net selling prices. The carrying value of unapproved inventory less reserves was $19.3 million and $29.2 million at December 31, 2017 and 2016, respectively.
To the extent inventory is not scheduled to be utilized in the manufacturing process and/or sold within twelve months of the balance sheet date, it is included as a component of other non-current assets. Amounts classified as non-current inventory consist of raw materials, net of valuation reserves. Raw materials generally have a shelf life of approximately three to five years, while finished goods generally have a shelf life of approximately two years.
 
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7. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment, net of accumulated depreciation, consisted of the following (in thousands):

 	  	December 31, 2017	 	  	December 31, 2016	 	
Land	  	$	3,500	 	  	$	5,603	 	
Buildings and improvements	  	 	96,775	 	  	 	174,303	 	
Equipment	  	 	82,442	 	  	 	143,818	 	
Office furniture and equipment	  	 	11,082	 	  	 	15,767	 	
Construction-in-progress	  	 	46,622	 	  	 	50,191	 	
	  	 	 	 	  	 	 	 	
Property, plant and equipment, gross	  	 	240,421	 	  	 	389,682	 	
Less: Accumulated depreciation	  	 	(115,608	) 	  	 	(156,310	) 	
	  	 	 	 	  	 	 	 	
Property, plant and equipment, net	  	$	124,813	 	  	$	233,372	 	
	  	 	 	 	  	 	 	 	
Depreciation expense was $38.3 million, $29.1 million and $25.5 million for the years ended December 31, 2017, 2016 and 2015, respectively.
Unpaid vendor invoices relating to purchases of property, plant and equipment of $3.1 million, $4.0 million and $4.5 million, which were accrued as of December 31, 2017, 2016 and 2015, respectively, have been excluded from the purchase of property, plant, and equipment and the change in accounts payable and accrued expenses in the Company’s consolidated statements of cash flows.
During the third quarter of 2017, the Company sold a storage warehouse in Hayward, California for $8.8 million in cash proceeds, representing the gross proceeds of $9.4 million less fees and costs related to the sale of approximately $0.6 million. Prior to the sale, the net book value of the storage warehouse was $4.1 million and was included in the Impax Generics segment. The gain of $4.7 million is included in gain on sale of assets in the Company’s consolidated statement of operations.
During 2017, the Company closed its Middlesex, New Jersey manufacturing facility and in early 2018, the Company sold CorePharma, LLC, its wholly owned subsidiary that held the leases to the site. The Company additionally announced during 2017 that it had entered into a stock and asset purchase agreement with Bora Pharmaceuticals Co., Ltd., pursuant to which the Company agreed to sell Impax Laboratories (Taiwan), Inc., its wholly owned subsidiary which owns the manufacturing facility in Taiwan, R.O.C. The sale of Impax Taiwan subsequently closed in February 2018. Refer to “Note 15. Restructurings” for disclosures relating to these assets.
8. INTANGIBLE ASSETS AND GOODWILL
Intangible Assets
The Company’s intangible assets include both finite lived and indefinite-lived assets. Finite lived intangible assets, consisting of marketed product rights and royalties received from product sales by the Company’s third party partners, are amortized over the estimated useful life of the asset based on the pattern in which the economic benefits are expected to be consumed or otherwise used up or, if that pattern is not readily determinable, on a straight-line basis. The remaining weighted-average amortization period for the Company’s finite lived intangible assets not yet fully amortized is 6.6 years as of December 31, 2017. Indefinite-lived intangible assets consist of acquired IPR&D product rights and acquired future royalty rights to be paid based on other companies’ net sales of products not yet approved. IPR&D assets acquired in a business combination are considered indefinite-lived until the completion or abandonment of the associated research and development efforts. Amortization over the estimated useful life will commence at the time of the respective product’s launch. If FDA approval to market the product is not obtained, the Company will immediately expense the related capitalized cost.
 
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Finite lived intangible assets are tested for impairment when events or changes in circumstances indicate that the carrying value of the asset may not be recoverable. All of the Company’s indefinite-lived intangible assets are tested for impairment at least annually during the fourth quarter of the fiscal year, or more often if indicators of impairment are present. Impairment testing requires management to estimate the future undiscounted cash flows of an intangible asset using assumptions believed to be reasonable, but which are unpredictable and inherently uncertain. Actual future cash flows may differ from the estimates used in the impairment testing. The Company recognizes an impairment loss when and to the extent that the estimated fair value of an intangible asset is less than its carrying value.
The following tables show the gross carrying values and accumulated amortization, where applicable, of the Company’s intangible assets by type for the consolidated balance sheets presented (in thousands):

 	  	Marketed Product Rights	 	 	IPR&D and
Royalties	 	 	Total
Company	 	
 	  	Gross Carrying
Value	 	 	Accumulated
Amortization	 	 	Intangible
Assets, Net	 	 	Non-amortized
Value	 	 	Intangible
Assets, Net	 	
Balance as of December 31, 2015	  	$	460,875	 	 	$	(83,095	) 	 	$	377,780	 	 	$	224,240	 	 	$	602,020	 	
Additions (1)	  	 	455,529	 	 	 	—  	 	 	 	455,529	 	 	 	161,003	 	 	 	616,532	 	
Amortization	  	 	—  	 	 	 	(56,489	) 	 	 	(56,489	) 	 	 	—  	 	 	 	(56,489	) 	
Commercial Launch (2)	  	 	97,300	 	 	 	—  	 	 	 	97,300	 	 	 	(97,300	) 	 	 	—  	 	
Impairment Charge (3)	  	 	(488,632	) 	 	 	—  	 	 	 	(488,632	) 	 	 	(52,965	) 	 	 	(541,597	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance as of December 31, 2016	  	 	525,072	 	 	 	(139,584	) 	 	 	385,488	 	 	 	234,978	 	 	 	620,466	 	
Additions	  				 				 	 	—  	 	 	 	50	 	 	 	50	 	
Amortization	  	 	—  	 	 	 	(68,375	) 	 	 	(68,375	) 	 	 	—  	 	 	 	(68,375	) 	
Commercial Launch (2)	  	 	4,216	 	 	 	—  	 	 	 	4,216	 	 	 	(4,216	) 	 	 	—  	 	
Divestiture (4)	  	 	(2,414	) 	 	 	2,414	 	 	 	—  	 	 	 	—  	 	 	 	—  	 	
Impairment Charge (3)	  	 	(96,865	) 	 	 	—  	 	 	 	(96,865	) 	 	 	(192,809	) 	 	 	(289,674	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance as of December 31, 2017	  	$	430,009	 	 	$	(205,545	) 	 	$	224,464	 	 	$	38,003	 	 	$	262,467	 	

(1)	During the first quarter of 2016, the Company capitalized $3.5 million of milestone payments due to an affiliate of Teva under the terms of the Mebendazole Product Agreement related to the FDA’s approval and the Company’s subsequent commercial launch of Emverm ® (mebendazole) 100 mg chewable tablets. See “Note 17. Alliance and Collaboration Agreements” for additional information related to the Mebendazole Product Agreement.	
During the third quarter of 2016, the Company recorded $613.0 million of intangible asset additions as a result of the Teva Transaction, of which $455.5 million were amortized, finite-lived marketed product rights and $157.5 million were non-amortized, indefinite-lived acquired IPR&D product rights. Refer to “Note 3. Business Acquisitions” for additional information on the Teva Transaction.
Pursuant to the Termination Agreement related to the Teva Transaction, the Company reacquired its full commercial rights to its then pending ANDA for the generic equivalent to Concerta ® (methylphenidate hydrochloride), a product candidate the Company had acquired in the Tower Acquisition that the Company had previously partnered with Teva USA, by terminating each party’s rights and obligations with respect to such product under the Strategic Alliance Agreement between the Company and Teva, as amended. Pursuant to the terms of the Strategic Alliance Agreement, each party would retain 50% of the gross profit realized upon sales of the product following approval. As such the Company’s 50% interest in the product was previously considered a non-amortized, indefinite-lived acquired future royalty right owing to the fact that Teva would sell the product upon receiving FDA approval and pay the Company 50% of the gross profit realized. Upon the Company’s reacquisition of the full rights in this product pursuant to the Termination Agreement, the $70.8 million asset value of the Company’s 50% interest, determined at the time of the Tower Acquisition, was transferred to non-amortized, indefinite-lived acquired IPR&D products rights, as reflected in the tables above.
 
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(2)	During the year ended December 31, 2017, the Company commercially launched two products acquired as IPR&D as part of the Teva Transaction and Tower Acquisition and, as a result, transferred the $4.2 million asset value from non-amortized, indefinite-lived acquired IPR&D product rights to amortized, finite lived marketed product rights. These assets will be amortized over an estimated useful life ranging from seven to eight years based on the pattern of economic benefit expected to be realized through 2025.	
As of December 31, 2015, the Emverm ® acquired IPR&D product right had a carrying value of $82.8 million, which was the fair value assigned by the Company during the purchase price allocation accounting for the Tower Acquisition. As a result of the Company’s commercial launch of the product during the first quarter of 2016, the Company transferred the total $86.3 million of asset value from non-amortized, indefinite-lived acquired IPR&D product rights to amortized, finite-lived marketed product rights and began amortization of the asset. The Emverm ® marketed product right intangible asset will be amortized over an estimated useful life of nine years based on the pattern of economic benefit expected to be realized through 2024.
In addition to the intangible asset additions resulting from the Teva Transaction as described above, during the third quarter of 2016, the Company also commercially launched two products, resulting in the transfer of $11.0 million of asset value from non-amortized, indefinite-lived acquired IPR&D product rights to amortized, finite-lived marketed products rights.
 
(3)	For the year ended December 31, 2017 the Company recognized a total of $289.7 million of intangible asset impairment charges, of which $96.9 million were recognized in cost of revenues impairment charges and $192.8 million were recognized in in-process research and development impairment charges on the Company’s consolidated statement of operations.	
The $192.8 million in-process research and development impairment charge was attributable to four products, most of which were acquired in the Teva Transaction. The Company incurred a full impairment charge of $149.7 million during the fourth quarter of 2017 related to the Company’s AB-rated methylphenidate hydrochloride (generic equivalent to Concerta) product. The validation efforts for the product, produced by the Company’s third party manufacturer, were not immediately successful and will require additional time and effort which is anticipated to result in a delay in the launch of up to 12-15 months. The delayed launch is currently expected to result in reduced volume and lower pricing than originally anticipated due to increased competition, resulting in significantly lower expected future cash flows. The Company also reduced the forecasted market share for another IPR&D product due to the introduction of a similar product by a competitor which administers the same active drug ingredient but with a different mode of delivery resulting in a $37.0 million impairment charge incurred during the fourth quarter of 2017. The remainder of the impairment charges were primarily related to the delayed launch of two products which are currently expected to result in reduced volume after launch due to increased competition.
The $96.9 million cost of revenue impairment charge for currently marketed products was attributable to eight currently marketed products. The Company experienced even further price and volume erosion throughout the year without an offsetting increase in customer demand, resulting in significantly lower expected future cash flows. The impairment charge was related to six of the products acquired as part of the Teva Transaction and two products acquired as part of the Tower Acquisition.
During the second quarter of 2016, the Company recognized a total of $1.5 million of charges within cost of revenues impairment charges on the Company’s consolidated statement of operations related to two currently marketed products, which were acquired as part of the Tower Acquisition, primarily due to active pharmaceutical ingredient (“API”) supply issues and minimal sales activity, resulting in immediate discontinuation of one product and rapid phase-out of the other. Additionally, one of the Company’s IPR&D generic products, also acquired as part of the Tower Acquisition, was determined to be impaired as a result of the commercial launch of a competitor’s generic product, resulting in a $1.0 million charge to in-process research and development impairment charges on the Company’s consolidated statement of operations.
 
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Upon closing the Teva Transaction on August 3, 2016, the Company initiated the process of transferring and securing Teva’s and Allergan’s customers for the acquired products to its account. The Company assumed certain price concessions would occur following the closing, however, the Company elected to take additional price reductions on certain of the acquired products in order to retain key customers. These reductions produced significantly lower than expected operating cash flows from the Acquired Product Lines and triggered an impairment analysis. The Company’s impairment analysis for the third quarter of 2016 resulted in the recognition of a total $251.0 million non-cash impairment charge to earnings. Of the total $251.0 million impairment charge, $248.0 million was recorded in cost of revenues impairment charges and $3.0 million was recorded in in-process research and development impairment charges, each in the Company’s consolidated statement of operations for the third quarter of 2016.
Certain other non-cash impairment charges unrelated to the Teva Transaction were also recorded in the third quarter of 2016. During the third quarter of 2016, the Company also recognized a total of $34.2 million of intangible asset impairment charges, of which $8.5 million was recognized in cost of revenues impairment charges on the Company’s consolidated statement of operations and attributable to the full impairment of three marketed products and one third-party partnered product where the Company received royalties from the sale of such product. The affected products were manufactured in the Company’s Middlesex, New Jersey facility, which the Company is in the process of closing as discussed in “Note 15. Restructurings.” The products were discontinued for several reasons, including the inability to efficiently transfer technology to another manufacturing site, the inability to continue to secure API from third parties on a timely basis, and/or minimal current and projected sales activity. The remaining $25.7 million of impairment charges recognized by the Company during the third quarter of 2016 were recognized in in-process research and development impairment charges and related to two of the Company’s IPR&D product rights acquired in the Tower Acquisition due to delays in expected start of commercialization and lower pricing amid highly competitive market conditions, resulting in lower expected future cash flows.
During the fourth quarter of 2016, the Company recognized a total of $253.9 million of intangible asset impairment charges, of which $230.6 million were recognized in cost of revenues impairment charges and $23.3 million were recognized in in-process research and development impairment charges on the Company’s consolidated statement of operations. More than half of the total impairment charges incurred during the fourth quarter of 2016 was attributable to the Company’s epinephrine auto-injector product, which was acquired as part of the Tower Acquisition. The impairment charge on the epinephrine auto-injector product was triggered by current and projected price degradation as a result of changes in the pricing environment and additional competition. The Company also experienced even further price reductions on certain of the products acquired as part of the Teva Transaction during the fourth quarter of 2016, resulting in $57.4 million of additional intangible asset impairment charges, of which $53.7 million was recorded to cost of revenues impairment charges and $3.7 million was recorded to in-process research and development impairment charges. In addition, the Company recognized $36.3 million of intangible asset impairment related to its anthelmintic product franchise, of which $24.3 million was recorded to cost of revenues impairment charges and $12.0 million was recorded to in-process research and development impairment charges. The $24.3 million charge was attributable to lower than expected script volume for Emverm ® . The $12.0 million charge recorded to in-process research and development during the fourth quarter of 2016 was attributable to a decision by the Company’s management during the fourth quarter of 2016 to cease development on a next-generation version of Albenza ® as a result of continued difficulties sourcing the API. The remainder of the fourth quarter of 2016 impairment charges were primarily attributable to the products acquired as part of the Tower Acquisition and resulted from lower current and/or forecasted pricing amid highly competitive market conditions, resulting in lower forecasted future cash flows.
 
(4)	During the second quarter of 2017, the Company divested 29 ANDAs and one NDA for non-strategic approved generic products, the vast majority of which were not marketed, and all acquired as part of the Tower Acquisition, for gross proceeds of $12.0 million. These intangible assets had a fully amortized gross carrying value of $2.4 million at the time of the sale. The Company incurred $0.1 million of legal expense in	
 
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 	connection with the divestiture, resulting in a net gain on sale of $11.9 million recognized as gain on sale of assets on the Company’s consolidated statement of operations.	
Amortization
The Company recognized amortization expense of $68.4 million, $56.5 million and $40.2 million for the years ended December 31, 2017, 2016 and 2015, respectively, in cost of revenues in the consolidated statements of operations presented.
The following table shows the expected future amortization of the Company’s finite lived intangible assets as of December 31, 2017 (in thousands):

For the years ending December 31,	  	Amortization
Expense	 	
2018	  	$	56,431	 	
2019	  	 	46,771	 	
2020	  	 	36,140	 	
2021	  	 	23,778	 	
2022	  	 	19,701	 	
Thereafter	  	 	41,643	 	
	  	 	 	 	
Total	  	$	224,464	 	
	  	 	 	 	
Sale of Daraprim ® to Turing
In July 2015, the Company received an unsolicited offer from Turing to purchase the U.S. rights to Daraprim ® , one of the marketed products acquired in the Tower Acquisition, as well as the active pharmaceutical ingredient for the product and the finished goods inventory on hand. The sale closed on August 7, 2015, and the Company received proceeds of $55.5 million at closing. The net book value of the Daraprim ® product rights at the time of sale was $9.3 million, and the Company recognized a gain on the sale of the intangible asset of $45.6 million, net of expenses. Pursuant to the terms of the Asset Purchase Agreement between the Company and Turing dated August 7, 2015 (the “Turing APA”), the Company also granted a limited license to sell the existing Daraprim ® product under the Company’s labeler code with the Company’s trade dress.
In accordance with the terms of the Turing APA and in accordance with federal laws and regulations, the Company received and was initially responsible for processing and paying (subject to reimbursement by Turing), all chargebacks and rebates resulting from utilization by Medicaid, Medicare and other federal, state and local governmental programs, health plans and other health care providers for product sold under the Company’s labeler code. Under the terms of the Turing APA, Turing is responsible for liabilities related to chargebacks and rebates that arise as a result of Turing’s marketing or selling related activities in connection with Daraprim ® .
Goodwill
Goodwill had a carrying value on the Company’s consolidated balance sheets of $207.3 million and $207.3 million as of December 31, 2017 and 2016, respectively. As of December 31, 2017, the Company attributed $147.6 million and $59.7 million to the Impax Generics division and the Impax Specialty Pharma division, respectively. The Company concluded based on the results of the annual testing performed that the carrying value of goodwill was not impaired as of December 31, 2017 or 2016.
 
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9. ACCRUED EXPENSES
The following table sets forth the Company’s accrued expenses (in thousands):

 	  	December 31,
2017	 	  	December 31,
2016	 	
Payroll-related expenses	  	$	38,415	 	  	$	37,986	 	
Product returns	  	 	76,293	 	  	 	72,888	 	
Accrued shelf stock	  	 	7,525	 	  	 	7,032	 	
Government rebates	  	 	73,970	 	  	 	72,063	 	
Legal and professional fees	  	 	14,005	 	  	 	8,395	 	
Estimated Teva and Allergan chargebacks and rebates (1)	  	 	13,277	 	  	 	14,813	 	
Accrued profit sharing and royalty expenses	  	 	8,373	 	  	 	13,642	 	
Other	  	 	16,269	 	  	 	17,834	 	
	  	 	 	 	  	 	 	 	
Total accrued expenses	  	$	248,127	 	  	$	244,653	 	

(1)	As discussed in “Note 3. Business Acquisitions,” in connection with the Teva Transaction, the Company, Teva and Allergan agreed to certain transition related services pursuant to which the Company agreed to manage the payment process for certain commercial chargebacks and rebates on behalf of Teva and Allergan related to products each of Teva and Allergan sold into the channel prior to the Company’s acquisition of the products. On August 18, 2016, the Company received a payment totaling $42.4 million from Teva and Allergan, which represented their combined estimate of the amount of commercial chargebacks and rebates to be paid by the Company on their behalf to wholesalers who purchased products from Teva and Allergan prior to the closing. Pursuant to the agreed upon transition services, Teva and Allergan are obligated to reimburse the Company for additional payments related to chargebacks and rebates for products they sold into the channel prior to the closing and made on their behalf in excess of the $42.4 million. If the total payments made by the Company on behalf of Teva and Allergan are less than $42.4 million, the Company is obligated to refund the difference to Teva and/or Allergan. As of December 31, 2017, the Company had paid $29.1 million related to chargebacks and rebates as described above and $13.3 million remained in accrued expenses on the Company’s consolidated balance sheet.	
Product Returns
The Company maintains a return policy to allow customers to return product within specified guidelines. The Company estimates a provision for product returns as a percentage of gross sales based upon historical experience for sales made through its Impax Generics and Impax Specialty Pharma sales channels. Sales of product under the Private Label, Rx Partner and OTC Partner alliance, collaboration and supply agreements are not subject to returns.
A rollforward of the return reserve activity for the years ended December 31, 2017, 2016 and 2015 is as follows (in thousands):

 	  	Years Ended December 31,	 	
 	  	2017	 	  	2016	 	  	2015	 	
Returns reserve	  				  				  				
Beginning balance	  	$	72,888	 	  	$	48,950	 	  	$	27,174	 	
Acquired balances	  	 	—  	 	  	 	—  	 	  	 	11,364	 	
Provision related to sales recorded in the period	  	 	47,709	 	  	 	52,383	 	  	 	43,967	 	
Credits issued during the period	  	 	(44,304	) 	  	 	(28,445	) 	  	 	(33,555	) 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Ending balance	  	$	76,293	 	  	$	72,888	 	  	$	48,950	 	

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10. DEBT
Royal Bank of Canada Credit Facilities
On August 3, 2016, the Company entered into a restatement agreement with Royal Bank of Canada, as administrative agent, and the lenders and guarantors party thereto (the “Restatement Agreement”). The Restatement Agreement amends and restates the Company’s existing Revolving Credit Facility Agreement (as amended and restated and amended to date, the “Amended and Restated Credit Agreement”) to, among other things, (i) add a term loan feature to allow for the borrowing of up to $400.0 million of term loans (the “Term Loan Facility”) by the Company in accordance with the terms of the Amended and Restated Credit Agreement, (ii) increase the aggregate principal amount of revolving loans permitted under the Amended and Restated Credit Agreement (the “Revolving Credit Facility,” and, together with the Term Loan Facility, the “RBC Credit Facilities”), from $100.0 million to $200.0 million; and (iii) extend the maturity date of the Revolving Credit Facility from August 4, 2020 to August 3, 2021. On March 27, 2017, the Company entered into Amendment No. 1 by and among the Company, Royal Bank of Canada, as administrative agent, and the lenders party thereto (the “Amendment”) to the Amended and Restated Credit Agreement.
Borrowings under the Amended and Restated Credit Agreement will accrue interest at a rate equal to LIBOR or the base rate, plus an applicable margin. The applicable margin may be increased or reduced by 0.25% based on the Company’s total net leverage ratio. Up to $12.5 million of the Revolving Credit Facility is available for issuance of letters of credit and any such letters of credit will reduce the amount available under the Revolving Credit Facility on a dollar-for-dollar basis. The Company is required to pay a commitment fee to the lenders on the average daily unused portion of the Revolving Credit Facility at 0.50% or 0.375% per annum, depending on the Company’s total net leverage ratio.
The Amended and Restated Credit Agreement contains certain negative covenants (subject to exceptions, materiality thresholds and other allowances) including, without limitation, negative covenants that limit the Company’s and its restricted subsidiaries’ ability to incur additional debt, guarantee other obligations, grant liens on assets, make loans, acquisitions or other investments, dispose of assets, make optional payments in connection with or modify certain debt instruments, pay dividends or make other payments on capital stock, engage in mergers or consolidations, enter into arrangements that restrict the Company’s and its restricted subsidiaries’ ability to pay dividends or grant liens, engage in transactions with affiliates, or change its fiscal year. Prior to the effective date of the Amendment on March 27, 2017, the Amended and Restated Credit Agreement also included a financial maintenance covenant whereby the Company must not permit its total net leverage ratio in any 12-month period to exceed 5.00:1.00, as tested at the end of each fiscal quarter. Effective as of March 27, 2017 and pursuant to the Amendment, the total net leverage ratio financial covenant was replaced with a new senior secured net leverage ratio financial covenant. Pursuant to the Amendment, the Company must not permit its senior secured net leverage ratio to exceed 2.50:1.00 and the interest coverage ratio to be less than 3.00:1.00, in each case in any 12-month period, as tested at the end of each fiscal quarter. The Company was in compliance with all of its covenants under the Amended and Restated Credit Agreement as of December 31, 2017.
The Amended and Restated Credit Agreement contains events of default, including, without limitation (subject to customary grace periods and materiality thresholds), events of default upon (i) the failure to make payments pursuant to the terms of the Amended and Restated Credit Agreement, (ii) violation of covenants, (iii) incorrectness of representations and warranties, (iv) cross-default and cross-acceleration to other material indebtedness, (v) bankruptcy events, (vi) material monetary judgments (to the extent not covered by insurance), (vii) certain matters arising under the Employee Retirement Income Security Act of 1974, as amended, that could reasonably be expected to result in a material adverse effect, (viii) the actual or asserted invalidity of the documents governing the RBC Credit Facilities, any material guarantees or the security interests (including priority thereof) required under the Amended and Restated Credit Agreement and (ix) the occurrence of a change of control (as defined therein). Upon the occurrence of certain events of default, the obligations under the Amended and Restated Credit Agreement may be accelerated and any remaining commitments thereunder may be terminated.
 
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The full amount of proceeds from the Term Loan Facility of $400.0 million, along with $196.4 million of cash were used to finance the Teva Transaction (including transaction costs) at closing on August 3, 2016. As of December 31, 2017, $199.7 million Revolving Credit Facility remains available to the Company for working capital and other general corporate purposes.
In connection with the Term Loan Facility, the Company incurred $11.0 million of debt issuance costs for banking, legal and accounting fees and other expenses during the third quarter of 2016. In connection with the Amendment, the Company incurred $0.8 million of debt issuance costs for banking fees during the first quarter of 2017. These debt issuance costs were recorded on the Company’s consolidated balance sheet as a reduction to the current and long-term portions of debt related to the Term Loan Facility. These deferred debt issuance costs will be accreted to interest expense over the term of the debt using the effective interest method. In connection with the increase in the aggregate principal amount of revolving loans permitted under the Revolving Credit Facility, the Company incurred $0.8 million of debt issuance costs for banking fees which were recorded as an asset with current and long-term portions on the Company’s consolidated balance sheet. These deferred debt issuance costs, in addition to the $0.3 million balance remaining from the initial $100.0 million revolving credit facility, will be amortized to interest expense over the term of the Revolving Credit Facility using the straight-line method.
For the year ended December 31, 2017, the Company recognized $17.7 million of interest expense related to the Term Loan Facility, of which $15.5 million was cash and $2.2 million was non-cash accretion of the debt discount recorded for deferred debt issuance costs. For the period of August 3, 2016 through December 31, 2016, the Company recognized $6.9 million of interest expense related to the Term Loan Facility, of which $6.0 million was cash and $0.9 million was non-cash accretion of the debt discount recorded for deferred debt issuance costs. As of December 31, 2017, the Term Loan Facility had a carrying value of $317.5 million, of which $17.8 million is classified as current debt and $299.7 million is classified as long-term debt on the Company’s consolidated balance sheets. The Term Loan Facility requires the Company to make quarterly principal payments of $5.0 million beginning from December 2016 through June 2021, and the remaining principal balance is payable in August 2021. As of December 31, 2017, the outstanding principal amount for the Term Loan Facility was $325.0 million.
Loss on Early Extinguishment of Debt—Voluntary Prepayment of $50.0 Million of Principal—RBC Term Loan Facility
On February 28, 2017, the Company made a voluntary prepayment in the amount of $50.3 million under its Term Loan Facility, representing $50.0 million of principal amount and $0.3 million of accrued interest thereon. As a result of this voluntary prepayment, for the quarter ended March 31, 2017, the Company recorded a loss on early extinguishment of debt of $1.2 million to write-off a pro rated portion of the related unaccreted debt issuance costs.
2% Convertible Senior Notes due June 2022
On June 30, 2015, the Company issued an aggregate principal amount of $600.0 million of 2.00% Convertible Senior Notes due June 2022 (the “Notes”) in a private placement offering, which are the Company’s senior unsecured obligations. The Notes were issued pursuant to an Indenture dated June 30, 2015 (the “Indenture”) between the Company and Wilmington Trust, N.A., as trustee. The Indenture includes customary covenants and sets forth certain events of default after which the Notes may be due and payable immediately. The Notes will mature on June 15, 2022, unless earlier redeemed, repurchased or converted. The Notes bear interest at a rate of 2.00% per year, and interest is payable semiannually in arrears on June 15 and December 15 of each year, beginning on December 15, 2015.
The conversion rate for the Notes is initially set at 15.7858 shares per $1,000 of principal amount, which is equivalent to an initial conversion price of $63.35 per share of the Company’s common stock. If a Make-Whole
 
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Fundamental Change (as defined in the Indenture) occurs or becomes effective prior to the maturity date and a holder elects to convert its Notes in connection with the Make-Whole Fundamental Change, the Company is obligated to increase the conversion rate for the Notes so surrendered by a number of additional shares of the Company’s common stock as prescribed in the Indenture. Additionally, the conversion rate is subject to adjustment in the event of an equity restructuring transaction such as a stock dividend, stock split, spinoff, rights offering, or recapitalization through a large, nonrecurring cash dividend (“standard antidilution provisions,” per FASB ASC 815-40).
Contracts in Entity’s Own Equity (“ASC 815-40”)).
The Notes are convertible at the option of the holders at any time prior to the close of business on the business day immediately preceding December 15, 2021 only under the following circumstances:
 
 	(i)	If during any calendar quarter commencing after the quarter ending September 30, 2015 (and only during such calendar quarter) the last reported sale price of the Company’s common stock for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is greater than 130% of the conversion price on each applicable trading day; or	
 
 	(ii)	If during the five business day period after any 10 consecutive trading day period (the “measurement period”) in which the trading price per $1,000 of principal amount of Notes for each trading day of the measurement period was less than 98% of the product of the last report sale price of the Company’s common stock and the conversion rate on each such trading day; or	
 
 	(iii)	Upon the occurrence of corporate events specified in the Indenture.	
On or after December 15, 2021 until the close of business on the second scheduled trading day immediately preceding the maturity date, the holders may convert their Notes at any time, regardless of the foregoing circumstances. The Company may satisfy its conversion obligation by paying or delivering, as the case may be, cash, shares of the Company’s common stock, or a combination of cash and shares of the Company’s common stock, at the Company’s election and in the manner and subject to the terms and conditions provided in the Indenture.
Concurrently with the offering of the Notes and using a portion of the proceeds from the sale of the Notes, the Company entered into a series of convertible note hedge and warrant transactions (the “Note Hedge Transactions” and “Warrant Transactions”) which are designed to reduce the potential dilution to the Company’s stockholders and/or offset the cash payments the Company is required to make in excess of the principal amount upon conversion of the Notes. The Note Hedge Transactions and Warrant Transactions are separate transactions, in each case, entered into by the Company with a financial institution and are not part of the terms of the Notes. These transactions will not affect any holder’s rights under the Notes, and the holders of the Notes have no rights with respect to the Note Hedge Transactions and Warrant Transactions. See “Note 11. Stockholders’ Equity” for additional information.
At the June 30, 2015 issuance date of the Notes, the Company did not have the necessary number of authorized but unissued shares of its common available to share-settle the conversion option of the Notes. Therefore, in accordance with guidance found in FASB ASC 470-20, Debt with Conversion and Other Options, and FASB Topic ASC 815-15, Embedded Derivatives , the conversion option of the Notes was deemed an embedded derivative requiring bifurcation from the Notes (host contract) and separate accounting as a derivative liability. The fair value of the conversion option derivative liability at June 30, 2015 was $167.0 million, which was recorded as a reduction to the carrying value of the debt and will be accreted to interest expense over the term of the debt using the effective interest method. Although the Company subsequently amended the Company’s Restated Certificate of Incorporation to increase the authorized number of shares of the Company’s common stock in December 2015, the debt discount remained and continues to be accreted to interest expense. See “Note 11. Stockholders’ Equity” for additional information.
 
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In connection with the issuance of the Notes, the Company incurred $18.7 million of debt issuance costs for banking, legal and accounting fees and other expenses. This amount was also recorded on the Company’s balance sheet as a reduction to the carrying value of the debt and is being accreted to interest expense over the term of the debt using the effective interest method.
For the years ended December 31, 2017 and 2016, the Company recognized $35.5 million and $33.8 million, respectively, of interest expense related to the Notes, of which $12.0 million and $12.0 million, respectively, was cash and $23.5 million and $21.8 million, respectively, was non-cash accretion of the debt discounts recorded. As the Notes mature in 2022, they have been classified as long-term debt on the Company’s consolidated balance sheets, with a carrying value of $469.9 million and $446.4 million as of December 31, 2017 and 2016, respectively.
Loss on Early Extinguishment of Debt—Barclays $435.0 million Term Loan
In connection with the Tower Acquisition during the first quarter of 2015, the Company entered into a $435.0 million senior secured term loan facility (the “Barclays Term Loan”) and a $50.0 million senior secured revolving credit facility (the “Barclays Revolver” and collectively with the Barclays Term Loan, the “Barclays Senior Secured Credit Facilities”), pursuant to a credit agreement, dated as of March 9, 2015, by and among the Company, the lenders party thereto from time to time and Barclays Bank PLC (“Barclays”), as administrative and collateral agent (the “Barclays Credit Agreement”). In connection with the Barclays Senior Secured Credit Facilities, the Company incurred debt issuance costs for banking, legal and accounting fees and other expenses of $17.8 million, which were previously reflected as a discount to the carrying value of the debt on the Company’s consolidated balance sheet in accordance with ASU 2015-03. Prior to repayment of the Barclays Term Loan on June 30, 2015, this debt discount was accreted to interest expense over the term of the loan using the effective interest rate method.
On June 30, 2015, the Company used $436.4 million of the proceeds from the sale of the Notes to repay the $435.0 million of principal and $1.4 million of accrued interest due on its Barclays Term Loan under the Barclays Credit Agreement. In connection with this repayment of the loan, for the quarter ended June 30, 2015, the Company recorded a loss on early extinguishment of debt of $16.9 million related to the unaccreted portion of the debt discount.
For the six months ended June 30, 2015, the Company incurred total interest expense related to the Barclays Term Loan of $10.7 million, of which $9.8 million was cash and $0.9 million was non-cash accretion of the debt discount recorded. In addition, included in interest expense for 2015 is a $2.3 million ticking fee paid to Barclays during the first quarter of 2015, prior to the funding of the Barclays Senior Secured Credit Facilities on March 9, 2015, to lock in the financing terms from the lenders’ commitment of the Barclays Term Loan until the actual allocation of the loan occurred at the closing of the Tower Acquisition.
Future principal maturities of December 31, 2017 are as follows (in thousands):

Years ending December 31,	  	 	 	
2018	  	$	20,000	 	
2019	  	 	20,000	 	
2020	  	 	20,000	 	
2021	  	 	265,000	 	
2022	  	 	600,000	 	
	  	 	 	 	
Total	  	$	925,000	 	

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11. STOCKHOLDERS’ EQUITY
Preferred Stock
Pursuant to its Restated Certificate of Incorporation (the “Certificate of Incorporation”), the Company is authorized to issue 2,000,000 shares of “blank check” preferred stock, $0.01 par value per share, which enables the Board of Directors, from time to time, to create one or more new series of preferred stock. Each series of preferred stock issued can have the rights, preferences, privileges and restrictions designated by the Board of Directors. The issuance of any new series of preferred stock could affect, among other things, the dividend, voting, and liquidation rights of the Company’s common stock. The Company had no preferred stock issued or outstanding as of December 31, 2017 or 2016.
Common Stock
Pursuant to its Certificate of Incorporation, the Company is authorized to issue 150,000,000 shares of common stock, $0.01 par value per share, of which 74,234,076 shares have been issued and 73,990,347 shares were outstanding as of December 31, 2017. In addition, the Company had reserved for issuance the following amounts of shares of its common stock for the purposes described below as of December 31, 2017 (in thousands):

Shares issued	  	 	74,234	 	
Stock options outstanding (1)	  	 	3,175	 	
Conversion of Notes payable (2)	  	 	9,471	 	
Warrants outstanding (see below)	  	 	9,471	 	
	  	 	 	 	
Total shares of common stock issued and reserved for issuance	  	 	96,351	 	
	  	 	 	 	
(1)	See “Note 13. Share-Based Compensation”	
(2)	See “Note 10. Debt”	
Warrants
As discussed in “Note 10. Debt”, on June 30, 2015, the Company entered into a series of Note Hedge Transactions and Warrant Transactions with a financial institution which are designed to reduce the potential dilution to the Company’s stockholders and/or offset the cash payments the Company is required to make in excess of the principal amount upon conversion of the Notes. Pursuant to the Warrant Transactions, the Company sold to a financial institution 9.47 million warrants to purchase the Company’s common stock, for which it received proceeds of $88.3 million. The warrants have an exercise price of $81.277 per share (subject to adjustment), are immediately exercisable, and have an expiration date of September 15, 2022.
Additional Paid-In Capital
Pursuant to the Note Hedge Transactions, the Company purchased from a financial institution 0.6 million call options on the Company’s common stock, for which it paid consideration of $147.0 million. Each call option entitles the Company to purchase 15.7858 shares of the Company’s common stock at an exercise price of $63.35 per share, is immediately exercisable, and has an expiration date of June 15, 2022, subject to earlier exercise. At the time of the Note Hedge Transactions, because of an insufficient number of authorized but unissued shares of the Company’s common stock, these call options did not meet the criteria for equity classification under FASB ASC Topic 815-40, Derivatives and Hedging and were accounted for as a derivative asset.
As of December 8, 2015, pursuant to the Company’s amendment to its Certificate of Incorporation to increase the number of authorized shares of common stock, the call options purchased pursuant to the Note Hedge Transactions (formerly a derivative asset) and the conversion option of the Notes (formerly an embedded
 
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derivative liability) were reclassified to equity in additional paid-in capital. The net effect of the reclassification of these derivatives was a $21.0 million, net of tax, increase in additional paid-in capital reflected on the Company’s December 31, 2015 consolidated balance sheet.
During the year ended December 31, 2015, the Company recognized in its consolidated statement of operations $13.0 million of net expense related to the change in the fair value of the former derivative asset and liability. There was no comparable expense recognized in 2016 or 2017.
12. EARNINGS PER SHARE
The Company’s basic earnings per common share (“EPS”) is computed by dividing net (loss) income available to the Company’s common stockholders (as presented on the consolidated statements of operations) by the weighted-average number of shares of the Company’s common stock outstanding during the period. The Company’s restricted stock awards (non-vested shares) are issued and outstanding at the time of grant but are excluded from the Company’s computation of weighted-average shares outstanding in the determination of basic EPS until vesting occurs.
For purposes of calculating diluted EPS, the denominator includes both the weighted-average number of shares of common stock outstanding and the number of common stock equivalents if the inclusion of such common stock equivalents would be dilutive. Dilutive common stock equivalents potentially include warrants, stock options and non-vested restricted stock awards using the treasury stock method and the number of shares of common stock issuable upon conversion of the Company’s outstanding convertible notes payable. In the case of the Company’s outstanding convertible notes payable, the diluted EPS calculation is further affected by an add-back of interest expense, net of tax, to the numerator under the assumption that the interest would not have been incurred if the convertible notes had been converted into common stock.
The following is a reconciliation of basic and diluted net (loss) income per share of common stock for the three years ended December 31, 2017, 2016 and 2015 (in thousands, except per share amounts):

 	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	
Basic (Loss) Earnings Per Common Share:	  				 				 				
Net (loss) income	  	$	(469,287	) 	 	$	(472,031	) 	 	$	38,997	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Weighted-average common shares outstanding	  	 	71,857	 	 	 	71,147	 	 	 	69,640	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Basic (loss) earnings per share	  	$	(6.53	) 	 	$	(6.63	) 	 	$	0.56	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Diluted (Loss) Earnings Per Common Share:	  				 				 				
Net (loss) income	  	$	(469,287	) 	 	$	(472,031	) 	 	$	38,997	 	
Add-back of interest expense on outstanding convertible notes payable, net of tax	  	 	—  	(1)  	 	 	—  	(1)  	 	 	—  	(2)  	
	  	 	 	 	 	 	 	 	 	 	 	 	
Adjusted net (loss) income	  	$	(469,287	) 	 	$	(472,031	) 	 	$	38,997	 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Weighted-average common shares outstanding	  	 	71,857	 	 	 	71,147	 	 	 	69,640	 	
Weighted-average incremental shares related to assumed exercise of warrants, stock options, vesting of non-vested shares and ESPP share issuance	  	 	—  	(3)  	 	 	—  	(4)  	 	 	2,387	(5)  	
Weighted-average incremental shares assuming conversion of outstanding notes payable	  	 	—  	(1)  	 	 	—  	(1)  	 	 	—  	(2)  	
	  	 	 	 	 	 	 	 	 	 	 	 	
Diluted weighted-average common shares outstanding	  	 	71,857	(3)  	 	 	71,147	(4)  	 	 	72,027	(6)  	
	  	 	 	 	 	 	 	 	 	 	 	 	
Diluted net (loss) income per share	  	$	(6.53	) 	 	$	(6.63	) 	 	$	0.54	 	

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(1)	For the years ended December 31, 2017 and 2016, the Company incurred a net loss, which cannot be diluted, so basic and diluted loss per common share were the same. Accordingly, there were no numerator or denominator adjustments related to the Company’s outstanding Notes.	
(2)	The numerator and denominator adjustments related to the Company’s convertible notes payable were excluded from the computation because the add-back of interest expense, net of tax, to the numerator had a greater effect on the quotient than the inclusion of the incremental shares assuming conversion of the convertible notes payable in the denominator, resulting in anti-dilution.	
(3)	For the year ended December 31, 2017, the Company incurred a net loss, which cannot be diluted, so basic and diluted loss per common share were the same. As of December 31, 2017, shares issuable but not included in the Company’s calculation of diluted EPS, which could potentially dilute future earnings, included 9.47 million warrants outstanding, 9.47 million shares for conversion of outstanding Notes payable, 3.2 million stock options outstanding and 1.9 million non-vested restricted stock awards.	
(4)	For the year ended December 31, 2016, the Company incurred a net loss, which cannot be diluted, so basic and diluted loss per common share were the same. As of December 31, 2016, shares issuable but not included in the Company’s calculation of diluted EPS, which could potentially dilute future earnings, included 9.47 million warrants outstanding, 9.47 million shares for conversion of outstanding Notes payable, 2.2 million stock options outstanding and 2.2 million non-vested restricted stock awards.	
(5)	As of December 31, 2015, the approximately 9.47 million warrants outstanding have been excluded from the denominator of the diluted EPS computation under the treasury stock method because the exercise price of the warrants exceeds the average market price of the Company’s common stock for the period, so inclusion in the calculation would be anti-dilutive.	
(6)	As of December 31, 2015, shares issuable but not included in the Company’s calculation of diluted EPS, which could potentially dilute future earnings, included 9.47 million for warrants outstanding, 9.47 million shares for conversion of outstanding Notes payable, 1.7 million stock options outstanding and 1.5 million non-vested restricted stock awards.	
13. SHARE-BASED COMPENSATION
The Company recognizes the grant date fair value of each option and share of restricted stock over its vesting period. Stock options and restricted stock awards are granted under the Company’s Fourth Amended and Restated 2002 Equity Incentive Plan and generally vest over a four year period and, in the case of stock options, have a term of 10 years.
Impax Laboratories, Inc. Fourth Amended and Restated 2002 Equity Incentive Plan (“2002 Plan”)
The aggregate number of shares of common stock authorized for issuance pursuant to the Company’s 2002 Plan is 18,050,000 shares. There were 2,324,997, 2,233,393 and 2,394,433 stock options outstanding as of December 31, 2017, 2016 and 2015, respectively, and 1,861,489, 2,160,127 and 2,146,498 non-vested restricted stock awards outstanding as of December 31, 2017, 2016 and 2015, respectively, under the 2002 Plan.
Impax Laboratories, Inc. 1999 Equity Incentive Plan (“1999 Plan”)
The aggregate number of shares of common stock authorized for issuance pursuant to the Company’s 1999 Plan is 5,000,000 shares. There were 0, 938 and 10,938 stock options outstanding as of December 31, 2017, 2016 and 2015, respectively, under the 1999 Plan. The Company has ceased granting equity awards under the 1999 Plan.
Awards Granted Out of Plan—CEO Inducement
On March 27, 2017, the Company granted Paul M. Bisaro, its new President and Chief Executive Officer, an option to purchase 850,000 shares of the Company’s common stock pursuant to the terms of his Employment Agreement dated as of March 24, 2017 with the Company. The grant was made in accordance with NASDAQ’s
 
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employment inducement grant exemption and therefore was not granted under a stockholder approved plan. The grant is subject to the terms of an option agreement with Mr. Bisaro to evidence the award. There were 850,000 stock options outstanding related to this grant as of December 31, 2017.
The following table summarizes all of the Company’s stock option activity for the years ended December 31, 2017, 2016, and 2015:

Stock Options	  	Number of
Shares
Under
Option	 	  	Weighted-
Average
Exercise
Price
per Share	 	
Outstanding at December 31, 2014	  	 	3,042,180	 	  	$	14.78	 	
Options granted	  	 	406,950	 	  	 	41.27	 	
Options exercised	  	 	(1,042,198	) 	  	 	9.87	 	
Options forfeited	  	 	(1,561	) 	  	 	16.70	 	
	  	 	 	 	  				
Outstanding at December 31, 2015	  	 	2,405,371	 	  	 	21.39	 	
Options granted	  	 	572,625	 	  	 	12.27	 	
Options exercised	  	 	(477,910	) 	  	 	19.09	 	
Options forfeited	  	 	(265,755	) 	  	 	35.88	 	
	  	 	 	 	  				
Outstanding at December 31, 2016	  	 	2,234,331	 	  	 	22.67	 	
Options granted	  	 	1,198,726	 	  	 	12.21	 	
Options exercised	  	 	(74,643	) 	  	 	10.22	 	
Options forfeited	  	 	(183,417	) 	  	 	33.07	 	
	  	 	 	 	  				
Outstanding at December 31, 2017	  	 	3,174,997	 	  	 	18.36	 	
	  	 	 	 	  				
Options exercisable at December 31, 2017	  	 	1,634,133	 	  	$	19.63	 	
	  	 	 	 	  				
In May 2016, a retiring member of the Company’s Board of Directors exercised vested stock options on a cashless basis, whereby the Company withheld 19,022 shares to cover the $0.6 million of proceeds due to the Company, representing the aggregate exercise price of the options.
As of December 31, 2017, stock options outstanding and exercisable had average remaining contractual lives of 6.70 years and 5.20 years, respectively. Also, as of December 31, 2017, stock options outstanding and exercisable each had aggregate intrinsic values of $9.9 million and $4.6 million, respectively, and restricted stock awards outstanding had an aggregate intrinsic value of $31.0 million.
 
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The Company grants restricted stock to certain eligible employees as a component of its long-term incentive compensation program. The restricted stock award grants are made in accordance with the Company’s 2002 Plan and are issued and outstanding at the time of grant but are subject to forfeiture if the vesting conditions are not met. A summary of the non-vested restricted stock awards is as follows:

Restricted Stock Awards	  	Non-Vested
Restricted
Stock
Awards	 	  	Weighted-
Average
Grant Date
Fair Value	 	
Non-vested at December 31, 2014	  	 	2,327,176	 	  	$	23.61	 	
Granted	  	 	973,742	 	  	 	45.40	 	
Vested	  	 	(930,159	) 	  	 	22.64	 	
Forfeited	  	 	(224,261	) 	  	 	29.01	 	
	  	 	 	 	  				
Non-vested at December 31, 2015	  	 	2,146,498	 	  	 	33.20	 	
Granted	  	 	1,245,184	 	  	 	31.77	 	
Vested	  	 	(893,190	) 	  	 	28.97	 	
Forfeited	  	 	(338,365	) 	  	 	33.87	 	
	  	 	 	 	  				
Non-vested at December 31, 2016	  	 	2,160,127	 	  	 	34.02	 	
Granted	  	 	980,419	 	  	 	13.89	 	
Vested	  	 	(730,160	) 	  	 	31.99	 	
Forfeited	  	 	(548,897	) 	  	 	30.27	 	
	  	 	 	 	  				
Non-vested at December 31, 2017	  	 	1,861,489	 	  	$	25.36	 	
	  	 	 	 	  				
Included in the 730,160 shares of restricted stock vested during the year ended December 31, 2017 are 268,512 shares with a weighted-average fair value of $15.77 per share that were withheld for tax withholding obligations upon vesting of such awards from stockholders who elected to net share settle such tax withholding obligation. Included in the 893,190 shares of restricted stock vested during the year ended December 31, 2016 are 335,423 shares with a weighted-average fair value of $27.69 per share that were withheld for tax withholding purposes upon vesting of such awards from stockholders who elected to net share settle such tax withholding obligation. Included in the 930,159 shares of restricted stock vested during the year ended December 31, 2015 are 370,449 shares with a weighted-average fair value of $40.48 per share that were withheld for tax withholding purposes upon vesting of such awards from stockholders who elected to net share settle such tax withholding obligation.
As of December 31, 2017, the Company had 1,932,375 shares available for issuance for either stock options or restricted stock awards under the 2002 Plan. Although there were also 296,921 shares available for issuance under the 1999 Plan, the Company has ceased granting equity awards under this plan. Additionally, the Company had 1,501,351 shares available for issuance under its 2001 Non-Qualified Employee Stock Purchase Plan, as amended (“ESPP”). The Company’s Board of Directors has determined that the final purchase period prior to December 31, 2017 would be the final purchase period under the ESPP, and the ESPP was terminated thereafter.
As of December 31, 2017, the Company had total unrecognized share-based compensation expense of $41.8 million related to all of its share-based awards, which is expected to be recognized over a weighted average period of 1.75 years. The intrinsic value of options exercised during the years ended December 31, 2017, 2016 and 2015 was $0.5 million, $5.8 million and $33.0 million, respectively. The total fair value of restricted stock which vested during the years ended December 31, 2017, 2016 and 2015 was $23.4 million, $25.9 million and $21.1 million, respectively.
 
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The Company estimated the fair value of each stock option award on the grant date using the Black-Scholes option pricing model with the following assumptions:

 	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	
Volatility (range)	  	 	46.5	% 	 	 	—  	 	 	 	49.2	% 	 	 	38.1	% 	 	 	—  	 	 	 	40.3	% 	 	 	39.9	% 	 	 	—  	 	 	 	40.1	% 	
Volatility (weighted average)	  				 	 	48.1	% 	 				 				 	 	38.3	% 	 				 				 	 	40.0	% 	 				
Risk-free interest rate (range)	  	 	1.9	% 	 	 	—  	 	 	 	2.2	% 	 	 	1.2	% 	 	 	—  	 	 	 	1.9	% 	 	 	0.8	% 	 	 	—  	 	 	 	1.8	% 	
Risk-free interest rate (weighted average)	  				 	 	2.1	% 	 				 				 	 	1.4	% 	 				 				 	 	1.7	% 	 				
Dividend yield	  				 	 	—  	% 	 				 				 	 	—  	% 	 				 				 	 	—  	% 	 				
Weighted-average expected life (years)	  				 	 	6.18	 	 				 				 	 	6.14	 	 				 				 	 	6.18	 	 				
Weighted average grant date fair value	  				 	$	5.93	 	 				 				 	$	12.27	 	 				 				 	$	17.08	 	 				
The Company estimated the fair value of each stock option award on the grant date using the Black-Scholes option pricing model, wherein expected volatility is based on historical volatility of the Company’s common stock. The expected term calculation is based on the “simplified” method described in SAB No. 107, Share-Based Payments and SAB No. 110, Share-Based Payment, as the result of the simplified method provides a reasonable estimate in comparison to actual experience. The risk-free interest rate is based on the U.S. Treasury yield at the date of grant for an instrument with a maturity that is commensurate with the expected term of the stock options. The dividend yield of zero is based on the fact that the Company has never paid cash dividends on its common stock and has no present intention to pay cash dividends. Options granted under each of the above plans generally vest over four years and have a term of 10 years.
The amount of share-based compensation expense recognized by the Company is as follows (in thousands):

 	  	Years Ended December 31,	 	
 	  	2017	 	  	2016	 	  	2015	 	
Manufacturing expenses	  	$	4,975	 	  	$	6,364	 	  	$	4,479	 	
Research and development	  	 	16,174	 	  	 	5,697	 	  	 	5,996	 	
Selling, general and administrative	  	 	5,109	 	  	 	20,119	 	  	 	18,138	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Total	  	$	26,258	 	  	$	32,180	 	  	$	28,613	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
The after tax impact of recognizing the share-based compensation expense related to FASB ASC Topic 718 on basic earnings per common share was $0.30, $0.31 and $0.20 for the years ended December 31, 2017, 2016 and 2015, respectively, and diluted earnings per common share was $0.30, $0.31 and $0.20 for the years ended December 31, 2017, 2016 and 2015, respectively. The Company recognized a deferred tax benefit, before consideration of tax valuation allowances, of $4.8 million, $9.6 million and $9.2 million in the years ended December 31, 2017, 2016 and 2015, respectively, related to share-based compensation expense recorded for non-qualified employee stock options and restricted stock awards.
The Company’s policy is to issue new shares to satisfy stock option exercises and to grant restricted stock awards.
Share based Compensation Expense related to Former Executives
In December 2016, the Company announced that G. Frederick Wilkinson and the Company mutually agreed that Mr. Wilkinson would separate from his positions as President and Chief Executive Officer of Impax and resign as a member of the Board of Directors of the Company, effective December 19, 2016. In connection with his separation from the Company, Mr. Wilkinson and the Company entered into a General Release and Waiver dated as of December 19, 2016 (the “General Release and Waiver”). The General Release and Waiver provided for 12 month accelerated vesting of certain of Mr. Wilkinson’s stock options and shares of restricted stock in
 
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accordance with the terms therein. As a result, during the year ended December 31, 2016, the Company recorded $0.5 million of accelerated expense related to the accelerated vesting of certain of Mr. Wilkinson’s outstanding stock options and restricted stock.
The Company appointed Mr. Wilkinson as its President and Chief Executive Officer effective as of April 29, 2014. In accordance with Mr. Wilkinson’s appointment and pursuant to Mr. Wilkinson’s employment agreement with the Company, the Company granted to Mr. Wilkinson 150,000 shares of the Company’s restricted stock with a grant date fair value of $3.9 million, which vested as to one-third of the underlying shares on each of the six, 12 and 18 month anniversaries of April 29, 2014. Mr. Wilkinson also received pursuant to his employment agreement with the Company an award of 375,000 shares of restricted stock. The performance goals were achieved during fiscal year 2015 and pursuant to the terms of the employment agreement, 50% of Mr. Wilkinson’s performance-based restricted stock vested in 2015 and 50% vested in 2016. The Company valued these restricted stock awards subject to performance-based vesting using a Monte Carlo simulation and recognized the $7.6 million value of these awards over the longer of the derived or explicit service period, which was two years.
14. EMPLOYEE BENEFIT PLANS
401(k) Defined Contribution Plan
The Company sponsors a 401(k) defined contribution plan covering all employees. Participants are permitted to contribute up to 25% of their eligible annual pre-tax compensation up to established federal limits on aggregate participant contributions. The Company matches 100% of the employee contributions up to a maximum of 5% of employee compensation. Discretionary profit-sharing contributions made by the Company, if any, are determined annually by the Board of Directors. Participants are 100% vested in discretionary profit-sharing and matching contributions made by the Company after three years of service, and are 25% and 50% vested after one and two years of service, respectively. There were $6.1 million, $7.4 million and $3.7 million in matching contributions and no discretionary profit-sharing contributions made under this plan for the years ended December 31, 2017, 2016 and 2015, respectively.
Employee Stock Purchase Plan
In February 2001, the Board of Directors approved the 2001 Non-Qualified Employee Stock Purchase Plan (“ESPP”), with a 500,000 share reservation. The purpose of the ESPP was to enhance employee interest in the success and progress of the Company by encouraging employee ownership of common stock of the Company. The ESPP provided the opportunity to purchase the Company’s common stock at a 15% discount to the market price through payroll deductions or lump sum cash investments. Under the ESPP plan, for the years ended December 31, 2017, 2016 and 2015, the Company sold shares of its common stock to its employees in the amount of 50,185, 29,612 and 35,275, respectively, for net proceeds of $0.6 million, $0.7 million and $1.2 million, respectively. The Company’s Board of Directors determined that the final purchase period prior to December 31, 2017 would be the final purchase period under the ESPP, and the ESPP was terminated thereafter.
Deferred Compensation Plan
In February 2002, the Board of Directors approved the Executive Non-Qualified Deferred Compensation Plan (“ENQDCP”) effective August 15, 2002 covering executive level employees of the Company as designated by the Board of Directors. Participants can defer up to 75% of their base salary and quarterly sales bonus and up to 100% of their annual performance based bonus. The Company matches 50% of employee deferrals up to 10% of base salary and bonus compensation. The maximum total match by the Company cannot exceed 5% of total base and bonus compensation. Participants are vested in the employer match contribution at 20% each year, with 100% vesting after five years of employment. Participants can earn a return on their deferred compensation based on hypothetical investments in investment funds. Changes in the market value of the participant deferrals and
 
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earnings thereon are reflected as an adjustment to the liability for deferred compensation with an offset to compensation expense. There were $1.0 million, $1.0 million and $1.1 million in matching contributions under the ENQDCP for the years ended December 31, 2017, 2016 and 2015, respectively.
The deferred compensation liability is a non-current liability recorded at the value of the amount owed to the ENQDCP participants, with changes in the value of such amounts recognized as compensation expense in the consolidated statements of operations. The calculation of the deferred compensation obligation is derived from observable market data by references to hypothetical investments selected by the participants and is included in the line item captioned “Other liabilities” on the consolidated balance sheets. The Company invests in corporate owned life insurance (“COLI”) policies, of which the cash surrender value is included in the line item captioned “Other assets” on the consolidated balance sheets. As of December 31, 2017 and 2016, the Company had a cash surrender value asset of $43.0 million and $37.4 million, respectively, and a deferred compensation liability of $33.4 million and $28.6 million, respectively, which approximated fair value. The asset representing the cash surrender value of the corporate owned life insurance and the deferred compensation liability are both Level 2 fair value measurements.
15. RESTRUCTURINGS
Consolidation and Improvement Plan
On May 10, 2017, the Company announced that it initiated a series of actions designed to improve manufacturing and research and development (“R&D”) efficiencies, capitalize on growth opportunities, improve profitability and mitigate current challenges. The actions include:
 
 	•	 	Consolidating all of Generic R&D and U.S. manufacturing and packing operations to the Company’s Hayward, California facility;	
 
 	•	 	Continuing the previously announced closure of the Middlesex, New Jersey manufacturing site, which will now include the closure of the Middlesex Generic R&D site as further discussed below under “Middlesex, New Jersey Manufacturing and Packaging Operations” and “Middlesex, New Jersey Generic R&D”;	
 
 	•	 	Reorganizing certain functions including quality, engineering and supply chain operations as further described below under “Technical Operations Reduction-in-Force”;	
 
 	•	 	Reviewing strategic alternatives for the Company’s Taiwan facility, including a sale of the facility as further described below under “Sale of Impax Laboratories (Taiwan), Inc.” and	
 
 	•	 	Rationalizing the generic portfolio to eliminate low-value products and streamline operations such as the Company’s divestment during the second quarter of 2017 of 29 ANDAs and one NDA for approved non-strategic generic products, the vast majority of which were not marketed, and all acquired as part of the Tower Acquisition, as described in “Note 8. Intangible Assets and Goodwill.”	
By consolidating activities as outlined above, the Company expects to achieve cost savings and operating efficiency benefits while maintaining the infrastructure and expertise needed to capitalize on product and pipeline strengths. The Company currently expects to incur estimated charges for each initiative as described below. There are no charges currently expected to be incurred related to the rationalization of the generic product portfolio.
Middlesex, New Jersey Manufacturing and Packaging Operations
In March 2016, the Company’s Board of Directors approved a plan of restructuring designed to reduce costs, improve operating efficiencies and enhance the Company’s long-term competitive position by closing the Company’s Middlesex, New Jersey manufacturing and packaging site and transferring the products and the functions performed there to the Company’s other facilities or to third-party manufacturers. This restructuring was expected to take up to two years to complete. As a result of the restructuring, 215 positions were eliminated.
 
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The Company incurred aggregate pre-tax charges of $43.4 million in connection with this plan through the year ended 2017 and does not anticipate any significant future charges. The following is a summary of the cumulative charges incurred by major type of cost (in thousands):

Type of Cost	  	Cumulative
Amount Incurred	 	
Employee retention and severance payments	  	$	12,725	 	
Technical transfer of products	  	 	9,544	 	
Asset impairment and accelerated depreciation charges	  	 	20,900	 	
Facilities lease terminations and asset retirement obligations	  	 	209	 	
Legal and professional fees	  	 	12	 	
	  	 	 	 	
Total estimated restructuring charges	  	$	43,390	 	
	  	 	 	 	
Employee retention and severance payments are being accrued over the estimated service period. For the years ended December 31, 2017 and 2016, the Company recorded expense of $16.3 million and $27.1 million, respectively, to general and administrative expense in the Corporate and Other segment on the consolidated statements of operations.
A rollforward of the charges incurred to general and administrative expense for the year ended December 31, 2016 is as follows (in thousands):

 	  	Balance as of
December 31,
2015	 	  	Expensed
/Accrued
Expense	 	  	Cash
Payments	 	 	Non-Cash
Items	 	 	Balance as of
December 31,
2016	 	
Employee retention and severance payments	  	$	—  	 	  	$	6,636	 	  	$	(691	) 	 	$	—  	 	 	$	5,945	 	
Technical transfer of products	  	 	—  	 	  	 	6,573	 	  	 	(6,573	) 	 	 	—  	 	 	 	—  	 	
Asset impairment and accelerated depreciation charges	  	 	—  	 	  	 	13,678	 	  	 	—  	 	 	 	(13,678	) 	 	 	—  	 	
Facilities lease terminations and asset retirement obligations	  	 	—  	 	  	 	209	 	  	 	—  	 	 	 	—  	 	 	 	209	 	
Legal and professional fees	  	 	—  	 	  	 	12	 	  	 	(12	) 	 	 	—  	 	 	 	—  	 	
	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	
Total	  	$	—  	 	  	$	27,108	 	  	$	(7,276	) 	 	$	(13,678	) 	 	$	6,154	 	
	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	
A rollforward of the charges incurred to general and administrative expense for the year ended December 31, 2017 is as follows (in thousands):

 	  	Balance as of
December 31,
2016	 	  	Expensed
/Accrued
Expense	 	  	Cash
Payments	 	 	Non-Cash
Items	 	 	Balance as of
December 31,
2017	 	
Employee retention and severance payments	  	$	5,945	 	  	$	6,089	 	  	$	(4,648	) 	 	$	—  	 	 	$	7,386	 	
Technical transfer of products	  	 	—  	 	  	 	2,671	 	  	 	(2,671	) 	 	 	—  	 	 	 	—  	 	
Asset impairment and accelerated depreciation charges	  	 	—  	 	  	 	7,525	 	  	 	—  	 	 	 	(7,525	) 	 	 	—  	 	
Facilities lease terminations and asset retirement obligations	  	 	209	 	  	 	—  	 	  	 	—  	 	 	 	—  	 	 	 	209	 	
	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	
Total	  	$	6,154	 	  	$	16,285	 	  	$	(7,319	) 	 	$	(7,525	) 	 	$	7,595	 	
	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	
For the years ended December 31, 2017 and 2016, the Company recognized a liability of $7.6 and $6.2 million, respectively, in accrued expenses on the Company’s consolidated balance sheet and anticipates remaining payments to be made through early 2018.
 
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Middlesex, New Jersey Generic R&D
In May 2017, as part of its Consolidation and Improvement Plan, the Company announced its plan to close its Middlesex, New Jersey Generic R&D site and consolidate all Generic R&D activities to its Hayward, California facility. As a result, the Company eliminated a total of 31 positions in Middlesex. In connection with this Generic R&D consolidation, the Company incurred aggregate pre-tax charges for employee termination benefits, program termination costs and accelerated depreciation charges of $3.4 million through the end of 2017. For the year ended December 31, 2017, the Company recorded $3.0 million of employee termination benefits and program termination costs and $0.4 million for accelerated depreciation charges, all to research and development on the consolidated statement of operations. As of December 31, 2017, $3.0 million of employee termination benefits and program termination costs had been paid.
Sale of Middlesex, New Jersey Assets
In the fourth quarter of 2017, management completed an evaluation of the assets located at the Company’s Middlesex, New Jersey facilities in accordance with ASC 360—Property, Plant and Equipment (“ASC 360”) to determine whether all of the “held for sale” criteria under subsection 360-10-45-9 had been met. Based upon management’s evaluation of the criteria under ASC 360, the Middlesex, New Jersey assets were determined to meet all of the “held for sale” criteria. As a result, the Company completed an impairment assessment related to the net book value of the assets of $5.6 million and based upon the estimated fair value less estimated costs to sell the assets the Company recorded a fixed asset impairment charges of $3.3 million in the Generic segment of its consolidated statement of operations for the year ended December 31, 2017.
On January 16, 2018, the Company sold all of its outstanding membership interests in CorePharma LLC, its wholly owned subsidiary, including certain specified assets within the entity, to a third party for a purchase price of $2.2 million.
Technical Operations Reduction-in-Force
In March 2017, the Company’s management determined that a reduction-in-force was necessary in the Company’s technical operations group in order to achieve greater operational efficiencies and to further streamline the organization. The Company identified 48 positions for elimination as of December 31, 2017. In connection with this reduction-in-force, the Company incurred aggregate pre-tax charges for employee termination benefits and other associated costs of $3.7 million through the end of 2017. For the year ended December 31, 2017, the Company recorded $3.7 million of employee termination benefits and other associated costs to cost of revenues in the Impax Generics segment on the consolidated statement of operations. As of December 31, 2017, $2.0 million had been paid and $1.7 million of employee termination benefits were included in accrued expenses on the Company’s consolidated balance sheet and the Company estimates that all payments will be made by early 2018.
Sale of Impax Laboratories (Taiwan), Inc.
In May 2017, as part of its Consolidation and Improvement Plan, the Company announced that it was reviewing strategic alternatives for its Taiwan facility, including a sale of the facility to a qualified buyer capable of reliably producing Rytary ® in accordance with FDA requirements as the Company’s third party contract manufacturer (“CMO”) or, in the alternative, a closure of the facility following the completion of the technology transfer process to allow Rytary ® to be manufactured either in the Company’s Hayward, California facility or at a CMO. Following this announcement, management completed an evaluation of the Taiwan facility in accordance with ASC 360 to determine whether all of the “held for sale” criteria under subsection 360-10-45-9 had been met. Based upon the evaluation of the criteria, including management’s assessment of whether it was probable that a sale to a qualified buyer could be completed within one year, the Taiwan facility was determined to be “held and used” as of May 31, 2017.
 
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Following the “held and used” determination, management next evaluated the Taiwan facility for recoverability. Recoverability of property is evaluated by a comparison of the carrying amount of an asset or asset group to the future net undiscounted cash flows expected to be generated by the asset or asset group. As the activities at the Taiwan facility were primarily focused on manufacturing Rytary ® , which product represented the majority of the unit volume produced and cash flows generated, the Taiwan facility was included in the Impax Specialty Pharma asset group. Based upon the cash flows expected to be generated by the Impax Specialty Pharma asset group, management determined that there was no impairment of the asset group which included the Taiwan facility as of May 31, 2017.
As of May 31, 2017, the remaining useful life of the Taiwan facility was estimated to be two years, which was based on the estimated time required to complete the technology transfer process for Rytary ® and reflected the new pattern of consumption of the expected benefits of the facility. The Company will recognize accelerated depreciation expense on a straight-line basis through May 31, 2019 to write the building and equipment associated with the Taiwan facility down to their estimated salvage values. For the year ended December 31, 2017 the Company recorded accelerated depreciation of $9.1 million.
After May 31, 2017 the Company continued to assess whether the Taiwan facility met the ASC 360 criteria. In the fourth quarter of 2017 based upon management’s valuation of the criteria the Taiwan facility was determined to meet all of the “held for sale” criteria. As a result, excluding assets and liabilities subject to customary working capital adjustment, the Company completed an impairment assessment of the net book value of $91.7 million related to the net assets to be sold, and based upon an estimated fair value less estimated costs to sell for the net assets, the Company recorded an asset impairment charge of $74.1 million in the Company’s consolidated statement of operations, of which $73.6 million related to property, plant and equipment. The remaining assets and liabilities associated with the Taiwan entity, which were part of the Impax Specialty Pharma segment, were reclassified as held for sale.
The following table provides the components of assets and liabilities of the Taiwan operations held for sale as of December 31, 2017 (in thousands):

 	  	December 31, 2017	 	
Current assets	  	$	11,527	 	
Property, plant and equipment	  	 	18,500	 	
	  	 	 	 	
Assets held for sale	  	$	30,027	 	
	  	 	 	 	
Current liabilities	  	$	7,170	 	
	  	 	 	 	
Liabilities held for sale	  	$	7,170	 	
	  	 	 	 	
On December 19, 2017, the Company entered into a stock and asset purchase agreement with Bora Pharmaceuticals Co., Ltd. (“Bora”) pursuant to which Bora agreed to acquire the outstanding shares of Impax Laboratories (Taiwan), Inc. for $18.5 million in cash plus reimbursement for the closing working capital, subject to adjustment as defined in the agreement. The closing of the sale was completed on February 6, 2018.
Hayward, California Technical Operations and R&D
In November 2015, the Company’s management assessed the headcount in the technical operations and research and development groups in Hayward, California, primarily as a result of the resolution of the warning letter at the Hayward facility, and determined that a reduction-in-force was necessary to adjust the headcount to the operating conditions of the post-warning letter resolution environment. The Company eliminated 27 positions and recorded an accrual in the Impax Generics segment for severance and related employee termination benefits of $2.5 million during the quarter ended December 31, 2015. As of December 31, 2017, $2.3 million has been paid, and the Company currently expects the remainder of this balance to be paid by early 2018.
 
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Philadelphia, Pennsylvania Packaging and Distribution Operations
On June 30, 2015, the Company committed to a plan of restructuring of its packaging and distribution operations and as a result of this plan, the Company closed its Philadelphia packaging site and all Company-wide distribution operations were outsourced to United Parcel Services during the fiscal year ended December 31, 2015. The Company eliminated 93 positions and recorded an accrual for severance and related employee termination benefits of $2.6 million during the quarter ended June 30, 2015. As of June 30, 2016, the full $2.6 million had been paid.
16. INCOME TAXES
The Company is subject to federal, state and local income taxes in the United States, and income taxes in Taiwan, R.O.C., the Republic of Ireland and the Netherlands. The provision for (benefit from) income taxes is comprised of the following (in thousands):

 	  	Years Ended December 31,	 	
 	  	2017	 	  	2016	 	  	2015	 	
Current:	  				  				  				
Federal taxes	  	$	(55,844	) 	  	$	21,386	 	  	$	48,078	 	
State taxes	  	 	(372	) 	  	 	266	 	  	 	2,286	 	
Foreign taxes	  	 	639	 	  	 	1,377	 	  	 	(442	) 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Total current tax (benefit) expense	  	 	(55,577	) 	  	 	23,029	 	  	 	49,922	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Deferred:	  				  				  				
Federal taxes	  	$	73,357	 	  	$	(133,387	) 	  	$	(23,605	) 	
State taxes	  	 	(371	) 	  	 	5,502	 	  	 	(5,733	) 	
Foreign taxes	  	 	917	 	  	 	562	 	  	 	(213	) 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Total deferred tax expense (benefit)	  	 	73,903	 	  	 	(127,323	) 	  	 	(29,551	) 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Provision for (benefit from) income taxes	  	$	18,326	 	  	$	(104,294	) 	  	$	20,371	 	

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A reconciliation of the difference between the tax provision (benefit) at the federal statutory rate and actual income taxes on income before income taxes, which includes federal, state, and other income taxes, is as follows (in thousands):

 	  	Years Ended December 31,	 	
 	  	2017	 	 	2016	 	 	2015	 	
(Loss) income before income taxes	  	$	(450,961	) 	 				 	$	(576,325	) 	 				 	$	59,368	 	 				
	  	 	 	 	 				 	 	 	 	 				 	 	 	 	 				
Tax (benefit) provision at the federal statutory rate	  	 	(157,836	) 	 	 	35.0	% 	 	 	(201,714	) 	 	 	35.0	% 	 	 	20,779	 	 	 	35.0	% 	
Increase (decrease) in tax rate resulting from:	  				 				 				 				 				 				
Tax rate differential and permanent items on foreign income	  	 	662	 	 	 	(0.2	)% 	 	 	186	 	 	 	—  	% 	 	 	412	 	 	 	0.7	% 	
State income taxes, net of federal benefit	  	 	(8,291	) 	 	 	1.8	% 	 	 	(7,394	) 	 	 	1.3	% 	 	 	365	 	 	 	0.6	% 	
State research and development credits	  	 	(1,324	) 	 	 	0.3	% 	 	 	(1,767	) 	 	 	0.3	% 	 	 	(2,357	) 	 	 	(4.0	)% 	
Federal research and development credits	  	 	(1,243	) 	 	 	0.3	% 	 	 	(2,213	) 	 	 	0.4	% 	 	 	(2,672	) 	 	 	(4.5	)% 	
Share-based compensation	  	 	5,471	 	 	 	(1.2	)% 	 	 	1,768	 	 	 	(0.3	)% 	 	 	968	 	 	 	1.6	% 	
Executive compensation	  	 	543	 	 	 	(0.1	)% 	 	 	(761	) 	 	 	0.1	% 	 	 	3,140	 	 	 	5.3	% 	
Domestic manufacturing deduction	  	 	—  	 	 	 	—  	% 	 	 	(1,286	) 	 	 	0.2	% 	 	 	(1,422	) 	 	 	(2.4	)% 	
Other permanent book/tax differences	  	 	(1,846	) 	 	 	0.4	% 	 	 	(258	) 	 	 	—  	% 	 	 	2,003	 	 	 	3.4	% 	
Provision for uncertain tax positions	  	 	(807	) 	 	 	0.2	% 	 	 	337	 	 	 	—  	% 	 	 	184	 	 	 	0.3	% 	
Revision of prior years’ estimates	  	 	1,371	 	 	 	(0.3	)% 	 	 	(792	) 	 	 	0.1	% 	 	 	859	 	 	 	1.5	% 	
Taiwan rural area investment tax credit	  	 	—  	 	 	 	—  	% 	 	 	—  	 	 	 	—  	% 	 	 	(2,134	) 	 	 	(3.6	)% 	
Impact on gross deferred net assets from 2017 Tax Reform Act	  	 	100,065	 	 	 	(22.2	)% 	 	 	—  	 	 	 	—  	% 	 	 	—  	 	 	 	—  	% 	
Foreign withholding tax	  	 	1,534	 	 	 	(0.3	)% 	 	 	—  	 	 	 	—  	% 	 	 	—  	 	 	 	—  	% 	
Other, net	  	 	2,888	 	 	 	(0.7	)% 	 	 	842	 	 	 	(0.1	)% 	 	 	246	 	 	 	0.4	% 	
Valuation allowance	  	 	77,139	 	 	 	(17.1	)% 	 	 	108,758	 	 	 	(18.9	)% 	 	 	—  	 	 	 	—  	% 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Provision for (benefit from) income taxes	  	$	18,326	 	 	 	(4.1	)% 	 	$	(104,294	) 	 	 	18.1	% 	 	$	20,371	 	 	 	34.3	% 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Deferred income taxes result from temporary differences between the financial statement carrying values and the tax bases of the Company’s assets and liabilities. Deferred tax assets principally result from certain accruals and reserves currently not deductible for tax purposes, acquired product rights and intangibles, capitalized legal and share based compensation expense. Deferred tax liabilities principally result from acquired product rights and intangibles and the use of accelerated depreciation methods for income tax purposes.
A valuation allowance, if needed, reduces deferred tax assets to the amount expected to be realized. When determining the amount of net deferred tax assets that are more likely than not to be realized, the Company assesses all available positive and negative evidence. This evidence includes, but is not limited to, scheduled reversal of deferred tax liabilities, prior earnings history, projected future earnings, carry-back and carry-forward periods and the feasibility of ongoing tax strategies that could potentially enhance the likelihood of the realization of a deferred tax asset. The weight given to the positive and negative evidence is commensurate with the extent the evidence may be objectively verified. As such, it is generally difficult for positive evidence regarding projected future taxable income (exclusive of reversing taxable temporary differences and carryforwards) to outweigh objective negative evidence of recent financial reporting losses for the years ended December 31, 2017 and 2016.
Based on an evaluation of both the positive and negative evidence available, the Company determined that it was necessary to establish a valuation allowance against all of the net deferred tax assets for the year ended December 31, 2017 and against a significant portion of the net deferred tax assets for the year ended December 31, 2016. Given the objectively verifiable negative evidence of a three-year cumulative loss which, under the provisions of FASB ASC Topic 740 is a significant element of negative evidence that is difficult to overcome, and the weighting of all available positive evidence, the Company excluded projected taxable income
 
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from the assessment of income that could be used as a source of taxable income to realize the deferred tax assets. The valuation allowance recorded against the consolidated net deferred tax asset in 2017 and 2016 were $185.9 million and $108.8 million, respectively.
The components of the Company’s deferred tax assets and liabilities are as follows (in thousands):

 	  	December 31,	 	
 	  	2017	 	  	2016	 	
Deferred tax assets:	  				  				
Accrued expenses	  	$	60,069	 	  	$	114,825	 	
Inventory reserves	  	 	17,602	 	  	 	15,873	 	
Net operating loss carryforwards	  	 	2,518	 	  	 	2,302	 	
Depreciation and amortization	  	 	2,657	 	  	 	651	 	
Acquired product rights and intangibles	  	 	118,168	 	  	 	128,401	 	
Capitalized legal fees	  	 	6,695	 	  	 	10,231	 	
Credit carryforwards	  	 	11,205	 	  	 	8,453	 	
Share based compensation expense	  	 	3,535	 	  	 	6,371	 	
Sale of subsidiary	  	 	7,794	 	  	 	—  	 	
Other	  	 	495	 	  	 	525	 	
	  	 	 	 	  	 	 	 	
Deferred tax assets	  	 	230,738	 	  	 	287,632	 	
	  	 	 	 	  	 	 	 	
Deferred tax liabilities:	  				  				
Tax depreciation and amortization in excess of book amounts	  	 	3,808	 	  	 	5,428	 	
Acquired product rights and intangibles	  	 	35,698	 	  	 	95,517	 	
Derivative	  	 	3,411	 	  	 	6,192	 	
Foreign withholding tax	  	 	1,824	 	  	 	—  	 	
Other	  	 	3,326	 	  	 	1,871	 	
	  	 	 	 	  	 	 	 	
Deferred tax liabilities	  	 	48,067	 	  	 	109,008	 	
	  	 	 	 	  	 	 	 	
Deferred tax assets (liabilities), net	  	 	182,671	 	  	 	178,624	 	
Valuation allowance	  	 	(185,897	) 	  	 	(108,758	) 	
	  	 	 	 	  	 	 	 	
Deferred tax assets (liabilities), net after valuation allowance	  	$	(3,226	) 	  	$	69,866	 	
	  	 	 	 	  	 	 	 	
A rollforward of unrecognized tax benefits for the years ended December 31, 2017, 2016 and 2015 is as follows (in thousands):

 	  	Years Ended December 31,	 	
 	  	2017	 	  	2016	 	  	2015	 	
Unrecognized tax benefits beginning of year	  	$	6,425	 	  	$	5,680	 	  	$	6,517	 	
Gross change for current year positions	  	 	328	 	  	 	549	 	  	 	1,079	 	
Gross change for prior period positions	  	 	(105	) 	  	 	1,318	 	  	 	(673	) 	
Gross change due to Tower Acquisition	  	 	—  	 	  	 	—  	 	  	 	1,037	 	
Decrease due to expiration of statutes of limitations	  	 	(972	) 	  	 	—  	 	  	 	—  	 	
Decrease due to settlements and payments	  	 	—  	 	  	 	(1,122	) 	  	 	(2,280	) 	
	  	 	 	 	  	 	 	 	  	 	 	 	
Unrecognized tax benefits end of year	  	$	5,676	 	  	$	6,425	 	  	$	5,680	 	
	  	 	 	 	  	 	 	 	  	 	 	 	
The amount of unrecognized tax benefits at December 31, 2017, 2016 and 2015 was $5.7 million, $6.4 million and $5.7 million, respectively, of which $5.0 million, $5.3 million and $4.3 million would impact the Company’s effective tax rate, respectively, if recognized. The Company currently does not believe that the total amount of unrecognized tax benefits will increase or decrease significantly over the next 12 months. Interest
 
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expense related to income taxes is included in “Interest expense, net” on the consolidated statements of operations. Net interest expense related to unrecognized tax benefits for the year ended December 31, 2017 was $(24,000), compared to $125,000 in 2016. Accrued interest expense as of December 31, 2017 and 2016 was $0.3 million and $0.4 million, respectively. Income tax penalties are included in “Other income (expense)” on the consolidated statements of operations. Accrued tax penalties of $0.6 million were booked in 2015 related to the 2010-2011 California audit and were paid in 2016.
Tower Holdings, Inc. (“Tower”) is currently under audit for federal income tax by the U.S. Internal Revenue Service (“IRS”) for the tax year ended March 9, 2015, which pre-dates the Company’s acquisition of Tower. The Company and the former stockholders of Tower are currently cooperating with the IRS in connection with the audit. Under the terms of the Stock Purchase Agreement related to the Tower Acquisition, the Company is not responsible for pre-acquisition income tax liabilities. Neither the Company nor any of its other affiliates is currently under audit for federal income tax.
Through March 31, 2017, no provision had been made for U.S. federal deferred income taxes on the excess of the amount for financial reporting over the tax basis of investments in foreign subsidiary since it had been the current intention of management to indefinitely reinvest the undistributed earnings in the foreign subsidiary.
As of June 30, 2017, following management’s announcement in May 2017 that it was reviewing potential options to either sell or close the Taiwan manufacturing facility and dissolve operations at Impax Taiwan, the Company changed its assertion related to the accumulated unremitted foreign earnings of its Taiwan subsidiary. The Company was no longer able to assert under ASC 740-30-25 that the unremitted foreign earnings are indefinitely reinvested outside the United States. Accordingly, the Company has recorded a deferred tax liability associated with remitting these earnings back to the United States.
Effect of 2017 Tax Reform Act
On December 22, 2017, the 2017 Tax Reform Act was signed into law. Among other things, the 2017 Tax Reform Act permanently lowers the corporate tax rate to 21% from the existing maximum rate of 35%, effective for tax years including or commencing January 1, 2018. As a result of the reduction of the corporate tax rate to 21%, U.S. GAAP require companies to re-value their deferred tax assets and liabilities as of the date of enactment, with resulting tax effects accounted for in the reporting period of enactment.
In connection with the Company’s initial analysis of the impact of the 2017 Tax Reform Act, the Company recorded a discrete net tax benefit of $0.4 million in the period ending December 31, 2017. This net tax benefit primarily consisted of the corporate rate reduction of $0.5 million and a net expense for the Transition Tax (as described below) of $0.1 million.
Although the Company is able to make a reasonable estimate of the impact of the reduction in its corporate tax rate, due to the 2017 Tax Reform Act, the Company’s estimate may be affected by other analyses related to the 2017 Tax Reform Act, including, but not limited to, the Company’s calculation of deemed repatriation of deferred foreign income and the state tax effect of adjustments made to federal temporary differences. The deemed repatriation transition tax, also referred to as the “Transition Tax”, is a tax on previously untaxed accumulated and current earnings and profits (“E&P”) of a company’s foreign subsidiaries. To determine the amount of the Transition Tax, the Company determined, in addition to other factors, the amount of post-1986 E&P of the Company’s relevant subsidiaries—including Impax Laboratories (Netherlands) CV, Impax (Netherlands) BV, Impax Laboratories Ireland Limited, and Impax Taiwan Inc,—as well as the amount of non-U.S. income taxes paid on such earnings. As such, the Company has made a reasonable estimate of the Transition Tax and recorded a Transition Tax obligation of $0.1 million, however, the Company continues to gather additional information to more precisely compute the amount of the Transition Tax. The Company continues to evaluate legislative changes, regulations, and notices regarding the applicable mechanics of the relevant rules impacting the estimate of the Transition Tax, and, the Company continues to evaluate cash versus non-cash earnings and profits, as the rates differ for the two different categories of earnings and profits.
 
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17. ALLIANCE AND COLLABORATION AGREEMENTS
The Company has entered into several alliance, collaboration, license and distribution agreements, and similar agreements with respect to certain of its products and services, with unrelated third-party pharmaceutical companies. The consolidated statements of operations include revenue recognized under agreements the Company has entered into to develop marketing and/or distribution relationships with its partners to fully leverage the technology platform and revenue recognized under development agreements which generally obligate the Company to provide research and development services over multiple periods.
The Company’s alliance and collaboration agreements often include milestones and provide for milestone payments upon achievement of these milestones. Generally, the milestone events contained in the Company’s alliance and collaboration agreements coincide with the progression of the Company’s products and technologies from pre-commercialization to commercialization.
The Company groups pre-commercialization milestones in its alliance and collaboration agreements into clinical and regulatory categories, each of which may include the following types of events:
Clinical Milestone Events:
 
 	•	 	Designation of a development candidate . Following the designation of a development candidate, generally, IND-enabling animal studies for a new development candidate take 12 to 18 months to complete.	
 
 	•	 	Initiation of a Phase I clinical trial . Generally, Phase I clinical trials take one to two years to complete.	
 
 	•	 	Initiation or completion of a Phase II clinical trial . Generally, Phase II clinical trials take one to three years to complete.	
 
 	•	 	Initiation or completion of a Phase III clinical trial . Generally, Phase III clinical trials take two to four years to complete.	
 
 	•	 	Completion of a bioequivalence study . Generally, bioequivalence studies take three months to one year to complete.	
Regulatory Milestone Events:
 
 	•	 	Filing or acceptance of regulatory applications for marketing approval such as a New Drug Application in the United States or Marketing Authorization Application in Europe . Generally, it takes six to 12 months to prepare and submit regulatory filings and two months for a regulatory filing to be accepted for substantive review.	
 
 	•	 	Marketing approval in a major market, such as the United States or Europe . Generally it takes one to three years after an application is submitted to obtain approval from the applicable regulatory agency.	
 
 	•	 	Marketing approval in a major market, such as the United States or Europe for a new indication of an already-approved product . Generally it takes one to three years after an application for a new indication is submitted to obtain approval from the applicable regulatory agency.	
Commercialization Milestone Events:
 
 	•	 	First commercial sale in a particular market , such as in the United States or Europe .	
 
 	•	 	Product sales in excess of a pre-specified threshold , such as annual sales exceeding $100  million . The amount of time to achieve this type of milestone depends on several factors including but not limited to the dollar amount of the threshold, the pricing of the product and the pace at which customers begin using the product.	
 
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License and Distribution Agreement with Shire
In January 2006, the Company entered into a License and Distribution Agreement with an affiliate of Shire Laboratories, Inc., which was subsequently amended (“Prior Shire Agreement”), under which the Company received a non-exclusive license to market and sell an authorized generic of Shire’s Adderall XR ® product (“AG Product”) subject to certain conditions, but in any event by no later than January 1, 2010. The Company commenced sales of the AG Product in October 2009. On February 7, 2013, the Company entered into an Amended and Restated License and Distribution Agreement with Shire (the “Amended and Restated Shire Agreement”), which amended and restated the Prior Shire Agreement. Pursuant to the terms of the Amended and Restated Shire Agreement, the Company is required to pay to Shire a specified profit share based on sales of the AG Product and a specified profit share based on sales of our generic Adderall XR ® product. The Company began selling our generic Adderall XR ® product during the second quarter of 2016. The Company accrued a profit share payable to Shire of $2.2 million during the year ended December 31, 2017, based on sales of its generic Adderall XR ® product and reflecting adjustments for returns and government rebates from its previous sales of the AG Product and of $7.5 million and $19.5 million during the years ended December 31, 2016 and 2015, respectively, based on sales of the AG Product and the Company’s generic Adderall XR ® product, in each case with a corresponding charge included in the cost of revenues line in the consolidated statements of operations.
Development, Supply and Distribution Agreement with Tolmar, Inc.
In June 2012, the Company entered into the Tolmar Agreement with Tolmar. Under the terms of the Tolmar Agreement, Tolmar granted to the Company an exclusive license to commercialize up to 11 generic topical prescription drug products, including 10 currently approved products in the United States and its territories; the parties agreed in 2015 to terminate development efforts of one product under the Tolmar Agreement that had been pending approval at the FDA. Under the terms of the Tolmar Agreement, Tolmar is responsible for developing and manufacturing the products, and the Company is responsible for marketing and sale of the products. As of December 31, 2017, the Company was currently marketing and selling four approved products. The Company is required to pay a profit share to Tolmar on sales of each product commercialized pursuant to the terms of the Tolmar Agreement.
The Company paid Tolmar a $21.0 million upfront payment upon signing of the agreement and, pursuant to the terms of the agreement, is also required to make payments to Tolmar up to an aggregate amount of $25.0 million upon the achievement of certain specified milestone events. As of December 31, 2017, the Company had paid a total of $20.0 million to Tolmar upon the achievement of certain specified milestone events, including $12.0 million upon the achievement of a regulatory milestone event and $5.0 million upon the achievement of a commercialization event, and does not currently expect to make any additional milestone payments under the agreement. The Company is required to pay a profit share to Tolmar on sales of the topical products, of which it accrued a profit share payable to Tolmar of $10.0 million, $36.4 million and $77.7 million during the years ended December 31, 2017, 2016 and 2015, respectively, with a corresponding charge included in the cost of revenues line in the Company’s consolidated statement of operations.
The Company entered into a Loan and Security Agreement with Tolmar in March 2012 (the “Tolmar Loan Agreement”), under which the Company agreed to lend to Tolmar one or more loans through December 31, 2014, in an aggregate amount not to exceed $15.0 million. The outstanding principal amount of, including any accrued and unpaid interest on, the loans under the Tolmar Loan Agreement are payable by Tolmar beginning from March 31, 2017 through March 31, 2020 or the maturity date, in accordance with the terms therein. Pursuant to the Tolmar Loan Agreement, Tolmar could prepay all or any portion of the outstanding balance of the loans prior to the maturity date without penalty or premium. In May 2016, Tolmar repaid in full the $15.0 million due to the Company under the Tolmar Loan Agreement.
 
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Strategic Alliance Agreement with Teva
The Company is a party to a Strategic Alliance Agreement dated as of June 27, 2001 with Teva Pharmaceuticals USA, Inc. (“Teva USA”), an affiliate of Teva, which was subsequently amended (“Teva Agreement”). The Teva Agreement commits the Company to develop and manufacture, and Teva to distribute, a specified number of controlled release generic pharmaceutical products (“generic products”), each for a 10-year period. As of December 31, 2017, the Company was supplying Teva with oxybutynin extended release tablets (Ditropan XL ® 5 mg, 10 mg and 15 mg extended release tablets); the other products under the Teva Agreement have either been returned to the Company, are being manufactured by Teva at its election, were voluntarily withdrawn from the market or the Company’s obligations to supply such product had expired or were terminated in accordance with the Teva Agreement.
Distribution, License, Development and Supply Agreement with AstraZeneca UK Limited
In January 2012, the Company entered into the AZ Agreement with AstraZeneca and the parties subsequently entered into a First Amendment to the AZ Agreement dated May 31, 2016 (as amended, the “AZ Amendment”). Under the terms of the AZ Agreement, AstraZeneca granted to the Company an exclusive license to commercialize the tablet, orally disintegrating tablet and nasal spray formulations of Zomig ® (zolmitriptan) products for the treatment of migraine headaches in the United States and in certain U.S. territories, except during an initial transition period when AstraZeneca fulfilled all orders of Zomig ® products on the Company’s behalf and AstraZeneca paid to the Company the gross profit on such Zomig ® products. Under the terms of the AZ Amendment, under certain conditions and depending on the nature and terms of the study agreed to with the FDA, the Company agreed to conduct, at its own expense, the juvenile toxicity study and pediatric study required by the FDA under the Pediatric Research Equity Act (“PREA”) for approval of the nasal formulation of Zomig ®  for the acute treatment of migraine in pediatric patients ages six through eleven years old, as further described in the study protocol mutually agreed to by the parties (the “PREA Study”). In consideration for the Company conducting the PREA Study at its own expense, the AZ Amendment provides for the total royalty payments payable by the Company to AstraZeneca on net sales of Zomig ®  products under the AZ Agreement to be reduced by certain specified amounts beginning from the quarter ended June 30, 2016 and through the quarter ended December 31, 2020, with such reduced royalty amounts totaling an aggregate amount of $30.0 million. In the event the royalty reduction amounts exceed the royalty payments payable by the Company to AstraZeneca pursuant to the AZ Agreement in any given quarter, AstraZeneca will be required to pay the Company an amount equal to the difference between the royalty reduction amount and the royalty payment payable by the Company to AstraZeneca. The Company’s commitment to perform the PREA Study may be terminated, without penalty, under certain circumstances as set forth in the AZ Amendment.
In May 2013, the Company’s exclusivity period for branded Zomig ® tablets and orally disintegrating tablets expired and the Company launched authorized generic versions of those products in the United States. As discussed above, pursuant to the AZ Amendment, the total royalty payments payable by the Company to AstraZeneca on net sales of Zomig ®  products under the AZ Agreement is reduced by certain specified amounts beginning from the quarter ended June 30, 2016 and through the quarter ended December 31, 2020, with such reduced royalty amounts totaling an aggregate amount of $30.0 million. The Company accrued a royalty payable to AstraZeneca of $17.8 million, $17.2 million and $16.8 million for the years ended December 31, 2017, 2016 and 2015, respectively, with a corresponding charge included in the cost of revenues line on the consolidated statements of operations.
Mebendazole Product Acquisition Agreement with Teva Pharmaceuticals USA, Inc.
In August 2013, the Company, through its Amedra Pharmaceuticals subsidiary, entered into a product acquisition agreement (the “Mebendazole Product Acquisition Agreement”) with Teva pursuant to which the Company acquired the assets (including the ANDA and other regulatory materials) and related liabilities related to Teva’s mebendazole tablet product in all dosage forms. Pursuant to the Mebendazole Product Acquisition
 
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Agreement, the Company was required to pay certain milestone payments up to an aggregate amount of $3.5 million upon the approval and launch of the mebendazole tablet product; the Company paid the $3.5 million to Teva during the quarter ended March 31, 2016 upon the FDA’s approval and the Company’s subsequent launch of Emverm ® (mebendazole) 100 mg chewable tablets. The Company is also obligated to pay Teva a royalty payment based on net sales of Emverm ® , including a specified annual minimum royalty payment, subject to customary reductions and the other terms and conditions set forth in the Mebendazole Product Acquisition Agreement.
18. COMMITMENTS AND CONTINGENCIES
Executive Employment Agreements
The Company is a party to employment and separation agreements with certain members of its executive management team that provide for severance and other payments following termination of their employment for various reasons.
Lease Agreements
The Company leases land, office space, manufacturing, warehouse and research and development facilities, and equipment under non-cancelable operating leases expiring between January 2018 and December 2027. Rent expense for the years ended December 31, 2017, 2016 and 2015 was $5.2 million, $4.9 million and $4.1 million, respectively. The Company recognizes rent expense on a straight-line basis over the lease period. The Company also leases certain equipment under various non-cancelable operating leases with various expiration dates between April 2018 and July 2022. Future minimum lease payments under the non-cancelable operating leases are as follows (in thousands):

Years ending December 31,	  	 	 	
2018	  	$	5,575	 	
2019	  	 	3,740	 	
2020	  	 	2,578	 	
2021	  	 	2,551	 	
2022	  	 	2,585	 	
Thereafter	  	 	11,113	 	
	  	 	 	 	
Total minimum lease payments	  	$	28,142	 	
	  	 	 	 	
Purchase Order Commitments
As of December 31, 2017, the Company had $108.1 million of open purchase order commitments, primarily for raw materials. The terms of these purchase order commitments are generally less than one year in duration.
19. LEGAL AND REGULATORY MATTERS
Patent Litigation
There is substantial litigation in the pharmaceutical, biological, and biotechnology industries with respect to the manufacture, use, and sale of new products which are the subject of conflicting patent and intellectual property claims. One or more patents often cover the brand name products for which the Company is developing generic versions and the Company typically has patent rights covering the Company’s branded products.
Under federal law, when a drug developer files an ANDA for a generic drug seeking approval before expiration of a patent, which has been listed with the FDA as covering the brand name product, the developer must certify its product will not infringe the listed patent(s) and/or the listed patent is invalid or unenforceable
 
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(commonly referred to as a “Paragraph IV” certification). Notices of such certification must be provided to the patent holder, who may file a suit for patent infringement within 45 days of the patent holder’s receipt of such notice. If the patent holder files suit within the 45 day period, the FDA can review and approve the ANDA, but is prevented from granting final marketing approval of the product until a final judgment in the action has been rendered in favor of the generic drug developer, or 30 months from the date the notice was received, whichever is sooner. The Company’s generic products division is typically subject to patent infringement litigation brought by branded pharmaceutical manufacturers in connection with the Company’s Paragraph IV certifications seeking an order delaying the approval of the Company’s ANDA until expiration of the patent(s) at issue in the litigation. Likewise, the Company’s branded products division is currently involved in patent infringement litigation against generic drug manufacturers who have filed Paragraph IV certifications to market their generic drugs prior to expiration of the Company’s patents at issue in the litigation.
The uncertainties inherent in patent litigation make the outcome of such litigation difficult to predict. For the Company’s generic products division, the potential consequences in the event of an unfavorable outcome in such litigation include delaying launch of its generic products until patent expiration. If the Company were to launch its generic product prior to successful resolution of a patent litigation, the Company could be liable for potential damages measured by the profits lost by the branded product manufacturer rather than the profits earned by the Company if we are found to infringe a valid, enforceable patent. For the Company’s branded products division, an unfavorable outcome may significantly accelerate generic competition ahead of expiration of the patents covering the Company’s branded products. All such litigation typically involves significant expense.
The Company is generally responsible for all of the patent litigation fees and costs associated with current and future products not covered by its alliance and collaboration agreements. The Company has agreed to share legal expenses with respect to third-party and Company products under the terms of certain of the alliance and collaboration agreements. The Company records the costs of patent litigation as expense in the period when incurred for products it has developed, as well as for products which are the subject of an alliance or collaboration agreement with a third-party.
Although the outcome and costs of the asserted and unasserted claims is difficult to predict, based on the information presently known to management, the Company does not currently expect the ultimate liability, if any, for such matters to have a material adverse effect on its business, financial condition, results of operations, or cash flows.
Patent Infringement Litigation
Endo Pharmaceuticals Inc. and Grunenthal GmbH v. Impax Laboratories, Inc. and ThoRx Laboratories, Inc. (Oxymorphone hydrochloride); Endo Pharmaceuticals Inc. and Grunenthal GmbH v. Impax Laboratories, Inc. (Oxymorphone hydrochloride)
In November 2012, Endo Pharmaceuticals, Inc. and Grunenthal GmbH filed suit against ThoRx Laboratories, Inc., a wholly owned subsidiary of the Company (“ThoRx”), and the Company in the U.S. District Court for the Southern District of New York alleging patent infringement based on the filing of ThoRx’s ANDA relating to Oxymorphone hydrochloride, Extended Release tablets, 5 mg, 7.5 mg, 10 mg, 15 mg, 20 mg, 30 mg and 40 mg, generic to Opana ER ® . In January 2013, Endo filed a separate suit against the Company in the U.S. District Court for the Southern District of New York alleging patent infringement based on the filing of the Company’s ANDA relating to the same products. ThoRx and the Company filed an answer and counterclaims to the November 2012 suit and the Company filed an answer and counterclaims with respect to the January 2013 suit. A bench trial was completed in April 2015. In June 2016, the Court entered an amended judgment in both cases that the products described in the Company’s and ThoRx’s ANDAs would, if marketed, infringe certain claims of the patents asserted by Endo and Grunenthal. The Court also found that the asserted claims of patents owned by Endo were not invalid, but that the asserted claims of patents owned by Grunenthal were invalid. As a result, the Court enjoined the Company and ThoRx from marketing their products until expiration of the Endo patents in 2023. The Company and ThoRx are appealing the Court’s judgment.
 
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In November 2014, Endo Pharmaceuticals Inc. and Mallinckrodt LLC filed suit against the Company in the U.S. District Court for the District of Delaware making additional allegations of patent infringement based on the filing of the Company’s Oxymorphone hydrochloride ANDA described above. Also in November 2014, Endo and Mallinckrodt filed a separate suit in the U.S. District Court for the District of Delaware making additional allegations of patent infringement based on the filing of ThoRx’s Oxymorphone hydrochloride ANDA described above. ThoRx and the Company filed an answer and counterclaim to those suits in which they are named as a defendant. The cases are currently stayed.
Impax Laboratories Inc., et al. v. Lannett Holdings, Inc. and Lannett Company (Zomig ® )
In July 2014, the Company filed suit against Lannett Holdings, Inc. and Lannett Company (collectively, “Lannett”) in the United States District Court for the District of Delaware, alleging patent infringement based on the filing of the Lannett ANDA relating to Zolmitriptan Nasal Spray, 5mg, generic to Zomig ® Nasal Spray. The case went to trial in September 2016. On March 29, 2017, the District Court issued a Trial Opinion finding the asserted patents valid and infringed. On April 17, 2017, the District Court entered a Final Judgment and Injunction that, inter alia, bars FDA approval of Lannett’s proposed generic product prior to May 29, 2021. On May 12, 2017, Lannett filed a Notice of Appeal with the United States Court of Appeals for the Federal Circuit. Briefing of Lannett’s appeal has been completed and oral argument is scheduled for April 5, 2018.
Impax Laboratories Inc., et al. v. Par Pharmaceutical, Inc. (Zomig ® )
On September 23, 2016, the Company filed suit against Par Pharmaceutical, Inc. (“Par”) in the United States District Court for the District of Delaware, alleging patent infringement based on the filing of the Par ANDA relating to Zolmitriptan Nasal Spray, 2.5 mg and 5 mg, generic to Zomig ® Nasal Spray. On October 12, 2016, the parties stipulated to stay the case pending the outcome of the related case, Impax Laboratories Inc., et al. v. Lannett matter described above. On April 24, 2017, the parties stipulated that the stay shall remain in effect until the Impax Laboratories Inc., et al. v. Lannett matter is fully resolved. As such, Par has not yet filed an answer or counterclaims to the Company’s complaint. The 30-month stay of approval for applicable to the Par ANDA has been tolled pending resumption of this case.
Impax Laboratories Inc., et al. v. Actavis Laboratories, Inc. and Actavis Pharma Inc. (Rytary ® )
In September 2015, the Company filed suit against Actavis Laboratories, Inc. and Actavis Pharma Inc. (collectively, “Actavis”) in the United States District Court for the District of New Jersey, alleging patent infringement of U.S. Patent Nos. 7,094,427; 8,377,474; 8,454,998; 8,557,283; 9,089,607; 9,089,608, based on the filing of the Actavis ANDA relating to carbidopa and levodopa extended release capsules, generic to Rytary ® . The Company filed related actions alleging infringement of later-issued U.S. Patent No. 9,463,246 in December 2016 and of later-issued U.S. Patent No. 9,533,046 in May 2017. Both related actions were consolidated with the lead action. On December 15, 2017, the Patent and Trademark Office issued an Ex Parte Reexamination Certificate canceling all claims of the ‘427 patent; the parties subsequently stipulated to dismiss with prejudice all claims and counterclaims relating to the ‘427 patent. Fact discovery and claim construction briefing have concluded and a claim construction hearing was held on April 26, 2017. On May 9, 2017, the District Court issued a decision interpreting certain claim terms in dispute in the litigation. Subject to reservation of all rights to appeal the Court’s May 9, 2017 decision, the parties stipulated to dismiss without prejudice all claims and counterclaims relating to the ‘474, ‘998, and ‘607 patents, and the Court entered an order recognizing this stipulation on June 8, 2017. The parties have completed expert discovery and Actavis filed a summary judgment motion on October 23, 2017. Briefing on the summary judgment motion is complete and an oral hearing is scheduled for February 27, 2018. On February 20, 2018, the Court issued an order setting trial for March 6, 2018. On February 23, 2018, the parties filed a joint letter requesting a trial date in the first two weeks of May 2018. The Court has not yet responded to the parties’ letter.
 
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Impax Laboratories, Inc. v. Sandoz Inc. (Rytary ® )
On March 31, 2017, the Company filed suit against Sandoz Inc. in the United States District Court for the District of New Jersey, alleging infringement of U.S. Patent Nos. 7,094,427; 8,377,474; 8,454,998; 8,557,283; 9,089,607; 9,089,608; 9,463,246; and 9,533,046, based on the filing of Sandoz’s ANDA relating to carbidopa and levodopa extended release capsules, generic to Rytary ® . Sandoz has not yet answered or otherwise responded to the Complaint.
Impax Laboratories, Inc. v. Zydus Pharmaceuticals USA, Inc. and Cadila Healthcare Ltd. (Rytary ® )
On December 21, 2017, the Company filed suit against Zydus Pharmaceuticals USA, Inc. and Cadila Healthcare Ltd. (collectively, “Zydus”) in the United States District Court for the District of New Jersey, alleging infringement of U.S. Patent No. 9,089,608, based on the filing of Zydus’s ANDA relating to carbidopa and levodopa extended release capsules, generic to Rytary ® . Zydus has not yet answered or otherwise responded to the Complaint.
Bristol-Myers Squibb Company, et al. v. Impax Laboratories, Inc. (Apixiban)
On April 10, 2017, Bristol-Myers Squibb Company and Pfizer Inc. filed suit against the Company in the United States District Court for the District of Delaware alleging patent infringement based on the filing of the Company’s ANDA related to Apixaban Tablets, 2.5 mg and 5 mg, generic to Eliquis ® . The Company responded to the complaint on June 2, 2017 and Plaintiffs further responded on June 22, 2017. On September 22, 2017, the parties jointly filed a proposed schedule with the Court, proposing that the Company’s case and a number of related cases be consolidated. On November 3, 2017, the Court consolidated the related cases and set the case schedule. Trial is scheduled for October 15, 2019.
Biogen MA Inc. v. Impax Laboratories, Inc. (Dimethyl Fumarate)
On June 26, 2017, Biogen MA Inc. filed suit against the Company in the U.S. District Court for the District of Delaware alleging patent infringement based on the filing of the Company’s ANDA relating to Dimethyl Fumarate 120 and 240 mg capsules, generic to Tecfidera ® . The Company answered the complaint on October 16, 2017. On February 2, 2017, the Court consolidated the related cases and set the case schedule. Trial is scheduled for December 9, 2019.
Other Litigation Related to the Company’s Business
Solodyn ®  Antitrust Class  Actions
From July 2013 to January 2016, 18 complaints were filed as class actions on behalf of direct and indirect purchasers, as well as by certain direct purchasers, against manufacturers of the brand drug Solodyn ® and its generic equivalents, including the Company.
On July 22, 2013, Plaintiff United Food and Commercial Workers Local 1776 & Participating Employers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On July 23, 2013, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 1, 2013, Plaintiff International Union of Operating Engineers Local 132 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern
 
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District of California on behalf of itself and others similarly situated. On August 29, 2013, this Plaintiff withdrew its complaint from the United States District Court for the Northern District of California, and on August 30, 2013, re-filed the same complaint in the United States Court for the Eastern District of Pennsylvania, on behalf of itself and others similarly situated.
On August 9, 2013, Plaintiff Local 274 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 12, 2013, Plaintiff Sheet Metal Workers Local No. 25 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 27, 2013, Plaintiff Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 29, 2013, Plaintiff Heather Morgan, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 30, 2013, Plaintiff Plumbers & Pipefitters Local 178 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On September 9, 2013, Plaintiff Ahold USA, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated.
On September 24, 2013, Plaintiff City of Providence, Rhode Island, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Arizona on behalf of itself and others similarly situated.
On October 2, 2013, Plaintiff International Union of Operating Engineers Stationary Engineers Local 39 Health & Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated.
On October 7, 2013, Painters District Council No. 30 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated.
On October 25, 2013, Plaintiff Man-U Service Contract Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On March 13, 2014, Plaintiff Allied Services Division Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated.
On March 19, 2014, Plaintiff NECA-IBEW Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated.
 
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On February 25, 2014, the United States Judicial Panel on Multidistrict Litigation ordered the pending actions transferred to the District of Massachusetts for coordinated pretrial proceedings, as In Re Solodyn (Minocycline Hydrochloride) Antitrust Litigation.
On March 26, 2015, Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson’s LLC, direct purchasers, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On April 8, 2015, the Judicial Panel on Multi-District Litigation ordered the action be transferred to the District of Massachusetts, to be coordinated or consolidated with the coordinated proceedings. The original complaint filed by the plaintiffs asserted claims only against defendant Medicis. On October 5, 2015, the plaintiffs filed an amended complaint asserting claims against the Company and the other generic defendants.
On April 16, 2015, Rite Aid Corporation and Rite Aid Hdqtrs. Corp, direct purchasers, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On May 1, 2015, the Judicial Panel on Multi-District Litigation ordered the action be transferred to the District of Massachusetts, to be coordinated or consolidated with the coordinated proceedings. The original complaint filed by the plaintiffs asserted claims only against defendant Medicis. On October 5, 2015, the plaintiffs filed an amended complaint asserting claims against the Company and the other generic defendants.
On January 25, 2016, CVS Pharmacy, Inc., a direct purchaser, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On February 11, 2016, the Judicial Panel on Multi-District Litigation ordered the action to be transferred to the District of Massachusetts to be coordinated or consolidated with the coordinated proceedings.
The consolidated amended complaints allege that Medicis engaged in anticompetitive schemes by, among other things, filing frivolous patent litigation lawsuits, submitting frivolous Citizen Petitions, and entering into anticompetitive settlement agreements with several generic manufacturers, including the Company, to delay generic competition of Solodyn ® and in violation of state and federal antitrust laws. Plaintiffs seek, among other things, unspecified monetary damages and equitable relief, including disgorgement and restitution. On August 14, 2015, the District Court granted in part and denied in part defendants’ motion to dismiss the consolidated amended complaints. On October 16, 2017, the Court certified the Direct Purchaser Plaintiffs’ and End-Payor Plaintiffs’ classes. On October 30, 2017, the Company filed a petition for interlocutor appeal challenging the Court’s certification of the End-Payor Plantiffs’ class. On January 25, 2018, the Court denied Plaintiffs’ and the Company’s summary judgment motions. Trial is currently set for March 12, 2018.
Opana ER ® FTC Antitrust Suit
On February 25, 2014, the Company received a Civil Investigative Demand (“CID”) from the FTC concerning its investigation into the drug Opana ® ER and its generic equivalents. On March 30, 2016, the FTC filed a complaint against the Company, Endo, and others in the United States District Court for the Eastern District of Pennsylvania, alleging that the Company and Endo violated antitrust laws when they entered into a June 2010 co-promotion and development agreement and a June 2010 settlement agreement that resolved patent litigation in connection with the submission of the Company’s ANDA for generic original Opana ® ER. In July 2016, the defendants filed a motion to dismiss the complaint, and a motion to sever the claims regarding Opana ® ER from claims with respect to a separate settlement agreement that was challenged by the FTC. On October 20, 2016, the Court granted the motion to sever, formally terminating the suit against the Company, with an order that the FTC re-file no later than November 3, 2016 and dismissed the motion to dismiss as moot. On October 25, 2016, the FTC filed a notice of voluntary dismissal. On January 19, 2017, the FTC filed a Part 3 Administrative complaint against the Company with similar allegations regarding the Company’s June 2010 settlement agreement with Endo that resolved patent litigation in connection with the submission of the Company’s ANDA for generic original Opana ® ER. The Company filed its answer to the Administrative Complaint on February 7, 2017. Trial concluded on November 15, 2017. Post-trial briefing is complete and closing arguments were held February 15, 2018. A decision is pending.
 
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Opana ER ® Antitrust Class Actions
From June 2014 to April 2015, 14 complaints were filed as class actions on behalf of direct and end-payor (indirect) purchasers, as well as by certain direct purchasers, against the manufacturer of the brand drug Opana ER ® and the Company.
On June 4, 2014, Plaintiff Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 4, 2014, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 6, 2014, Plaintiff Value Drug Company, a direct purchaser, filed a class action complaint in the United States District Court for the Northern District of California on behalf of itself and others similarly situated. On June 26, 2014, this Plaintiff withdrew its complaint from the United States District Court for the Northern District of California, and on July 16, 2014, re-filed the same complaint in the United States District Court for the Northern District of Illinois, on behalf of itself and others similarly situated.
On June 19, 2014, Plaintiff Wisconsin Masons’ Health Care Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated.
On July 17, 2014, Plaintiff Massachusetts Bricklayers, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On August 11, 2014, Plaintiff Pennsylvania Employees Benefit Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated.
On September 19, 2014, Plaintiff Meijer Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated.
On October 3, 2014, Plaintiff International Union of Operating Engineers, Local 138 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated.
On November 17, 2014, Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana, an indirect purchaser, filed a class action complaint in the United States District Court for the Middle District of Louisiana on behalf of itself and others similarly situated.
On December 12, 2014, the United States Judicial Panel on Multidistrict Litigation ordered the pending actions transferred to the Northern District of Illinois for coordinated pretrial proceedings, as In Re Opana ER Antitrust Litigation.
On December 19, 2014, Plaintiff Kim Mahaffay, an indirect purchaser, filed a class action complaint in the Superior Court of the State of California, Alameda County, on behalf of herself and others similarly situated. On January 27, 2015, the Defendants removed the action to the United States District Court for the Northern District of California.
 
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On January 12, 2015, Plaintiff Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated.
On March 26, 2015 Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson’s LLC, direct purchasers, filed a separate complaint in the United States District Court for the Northern District of Illinois.
On April 23, 2015, Rite Aid Corporation and Rite Aid Hdqtrs. Corp, direct purchasers, filed a separate complaint in the United States District Court for the Northern District of Illinois.
In each case, the complaints allege that Endo engaged in an anticompetitive scheme by, among other things, entering into an anticompetitive settlement agreement with the Company to delay generic competition of Opana ER ® and in violation of state and federal antitrust laws. Plaintiffs seek, among other things, unspecified monetary damages and equitable relief, including disgorgement and restitution. Consolidated amended complaints were filed on May 4, 2015 by direct purchaser plaintiffs and end-payor (indirect) purchaser plaintiffs.
On July 3, 2015, defendants filed motions to dismiss the consolidated amended complaints, as well as the complaints of the “Opt-Out Plaintiffs” (Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson’s LLC, Rite Aid Corporation and Rite Aid Hdqtrs. Corp.).
On February 1, 2016, CVS Pharmacy, Inc. filed a complaint in the United States District Court for the Northern District of Illinois. The parties agreed that CVS Pharmacy, Inc. would be bound by the court’s ruling on the defendants’ motion to dismiss the Opt-Out Plaintiffs’ complaints.
On February 10, 2016, the court granted in part and denied in part defendants’ motion to dismiss the end-payor purchaser plaintiffs’ consolidated amended complaint, and denied defendants’ motion to dismiss the direct purchaser plaintiffs’ consolidated amended complaint. The end-payor purchaser plaintiffs have filed a second consolidated amended complaint and the Company has moved to dismiss certain state law claims.
On February 25, 2016, the court granted defendants’ motion to dismiss the Opt-Out Plaintiffs’ complaints, with leave to amend. The Opt-Out Plaintiffs and CVS Pharmacy, Inc. have filed amended complaints and the Company has filed its answer.
Discovery is ongoing. No trial date has been scheduled.
United States Department of Justice Investigations
Previously on November 6, 2014, the Company disclosed that one of its sales representatives received a grand jury subpoena from the Antitrust Division of the United States Justice Department (the “Justice Department”). In connection with this same investigation, on March 13, 2015, the Company received a grand jury subpoena from the Justice Department requesting the production of information and documents regarding the sales, marketing, and pricing of certain generic prescription medications. In particular, the Justice Department’s investigation currently focuses on four generic medications: digoxin tablets, terbutaline sulfate tablets, prilocaine/lidocaine cream, and calcipotriene topical solution. The Company has been cooperating and intends to continue cooperating with the investigation. However, no assurance can be given as to the timing or outcome of the investigation.
Attorney General of the State of Connecticut Interrogatories and Subpoena Duces Tecum
On July 14, 2014, the Company received a subpoena and interrogatories (the “Subpoena”) from the State of Connecticut Attorney General (“Connecticut AG”) concerning its investigation into sales of the Company’s
 
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generic product, digoxin. According to the Connecticut AG, the investigation is to determine whether anyone engaged in a contract, combination or conspiracy in restraint of trade or commerce which has the effect of (i) fixing, controlling or maintaining prices or (ii) allocating or dividing customers or territories relating to the sale of digoxin in violation of Connecticut state antitrust law. The Company intends to cooperate with the Connecticut AG in producing documents and information in response to the Subpoena. To the knowledge of the Company, no proceedings by the Connecticut AG have been initiated against the Company at this time; however no assurance can be given as to the timing or outcome of this investigation.
In re Generic Pharmaceuticals Pricing Antitrust Litigation
From March 2016 to April 2017, 22 complaints were filed as class actions on behalf of direct and indirect purchasers against manufacturers of generic digoxin and doxycycline and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of these generic products. From January 2017 to April 2017, three complaints were filed on behalf of indirect purchasers against manufacturers of generic lidocaine/prilocaine and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of these generic products.
On March 2, 2016, Plaintiff International Union of Operating Engineers Local 30 Benefits Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. The plaintiff filed an amended complaint on June 9, 2016.
On March 25, 2016, Plaintiff Tulsa Firefighters Health and Welfare Trust, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On March 25, 2016, Plaintiff NECA-IBEW Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On April 4, 2016, Plaintiff Pipe Trade Services MN, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On April 25, 2016, Plaintiff Edward Carpinelli, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On April 27, 2016, Plaintiff Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On May 2, 2016, Plaintiff Nina Diamond, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On May 5, 2016, Plaintiff UFCW Local 1500 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On May 6, 2016, Plaintiff Minnesota Laborers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
 
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On May 12, 2016, Plaintiff the City of Providence, Rhode Island, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Rhode Island on behalf of itself and others similarly situated.
On May 18, 2016, Plaintiff KPH Healthcare Services, Inc. a/k/a Kinney Drugs, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On May 19, 2016, Plaintiff Philadelphia Federation of Teachers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 8, 2016, Plaintiff United Food & Commercial Workers and Employers Arizona Health and Welfare Trust, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 17, 2016, Plaintiff Ottis McCrary, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 20, 2016, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 27, 2016, Plaintiff César Castillo Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On June 29, 2016, Plaintiff Plumbers & Pipefitters Local 33 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On July 1, 2016, Plaintiff Plumbers & Pipefitters Local 178 Health and Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On July 15, 2016, Plaintiff Ahold USA, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On September 7, 2016, Plaintiff United Here Health, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On September 20, 2016, Plaintiff Valerie Velardi, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated.
On January 13, 2017, Plaintiff International Union of Operating Engineers Local 30 Benefits Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated against manufacturers of generic lidocaine/prilocaine and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of this generic drug.
 
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On April 17, 2017, Plaintiff UFCW Local 1500 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated against manufacturers of generic lidocaine/prilocaine and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of this generic drug.
On April 25, 2017, Plaintiff Louisiana Health Service Indemnity Company, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated against manufacturers of generic lidocaine/prilocaine and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of this generic drug.
On May 19, 2016, several indirect purchaser plaintiffs filed a motion with the Judicial Panel on Multidistrict Litigation to transfer and consolidate the actions in the United States District Court for the Eastern District of Pennsylvania. The Judicial Panel ordered the actions consolidated in the Eastern District of Pennsylvania and ordered that the actions be renamed “ In re Generic Digoxin and Doxycycline Antitrust Litigation ” . On January 27, 2017, plaintiffs filed two consolidated class action complaints. With respect to doxycycline, the plaintiffs dropped their allegations against the Company. On March 28, 2017, the Company, separately and along with other defendants, filed motions to dismiss the digoxin class action complaint. On April 6, 2017, the Judicial Panel on Multidistrict Litigation ordered the consolidation of all civil actions involving allegations of antitrust conspiracies in the generic pharmaceutical industry regarding 18 generic drugs to the Eastern District of Pennsylvania. The consolidated actions have been renamed In re Generic Pharmaceuticals Pricing Antitrust Litigation . On October 6, 2017, the Company filed a motion to dismiss the digoxin complaint. Briefing on the motion to dismiss is complete and a decision is pending.
On January 19, 2018, Plaintiffs The Kroger Co., Albertsons Companies, LLC, and H.E. Butt Grocery Company L.P., opt-outs, filed a complaint in the United States District Court for the Eastern District of Pennsylvania against 35 companies, including the Company, alleging a conspiracy to fix, maintain and/or stabilize prices of thirty drugs and specifically digoxin and lidocaine/prilocaine with respect to the Company. No schedule has been set.
AWP Litigation
On December 30, 2015, Plumbers’ Local Union No. 690 Health Plan and others similarly situated filed a class action against several generic drug manufacturers, including the Company, in the Court of Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, Civil Trial Division, alleging that the Company and others violated the law, including the Pennsylvania Unfair Trade Practices and Consumer Protection law, by inflating the Average Wholesale Price (“AWP”) of certain generic drugs. The case has since been removed to federal court in the United States District Court for the Eastern District of Pennsylvania. By virtue of an amended complaint filed on March 29, 2016, the suit has been amended to comprise a nationwide class of third party payors that allegedly reimbursed or purchased certain generic drugs based on AWP and to assert causes of action under the laws of other states in addition to Pennsylvania. On May 17, 2016, this case was stayed. On January 18, 2017, the Company, along with the other defendants, filed a joint motion to dismiss the complaint. On September 15, 2017, the Court dismissed the complaint with prejudice. The time period to file an appeal has elapsed.
On February 5, 2016, Delaware Valley Health Care Coalition filed a lawsuit based on substantially similar allegations in the Court of Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, Civil Trial Division that seeks declaratory judgment. On May 20, 2016, this case was stayed pending resolution of the federal court action described above.
Impax Laboratories, Inc. v. Turing Pharmaceuticals AG
On May 2, 2016, the Company filed suit against Turing Pharmaceuticals AG (“Turing”) in the United States District Court for the Southern District of New York alleging breach of the terms of the contract by which Turing
 
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purchased from the Company the right to sell the drug Daraprim ® , as well as the right to sell certain Daraprim ® inventory (the “Purchase Agreement”). Specifically, the Company seeks (i) a declaratory judgment that the Company may revoke Turing’s right to sell Daraprim ® under the Company’s labeler code and national drug codes; (ii) specific performance to require Turing to comply with its obligations under the Purchase Agreement for past due reports and for reports going forward; and (iii) money damages to remedy Turing’s failure to reimburse the Company for chargebacks and Medicaid rebate liability when due, currently in excess of $40.9 million, and for future amounts that may be due. Turing has filed its answer and a counterclaim against the Company alleging breach of contract and breach of the duty of good faith and fair dealing. Discovery is closed. On October 14, 2016, the Company filed a motion for summary judgment. The District Court issued its order on September 29, 2017. The Court found that Turing breached the Purchase Agreement by failing to reimburse the Company for Medicaid rebate liability, however, the Court also found that the Company breached the Purchase Agreement by not filing a restatement with the Centers for Medicare and Medicaid Services at Turing’s request. Therefore, the Company was not entitled to damages. On October 13, 2017, the Company filed a Motion for Clarification / Reconsideration of the Summary Judgment Order. Briefing on the motion is complete and a decision is pending.
Telephone Consumer Protection Act Cases
On January 31, 2017, Plaintiff Family Medicine Pharmacy LLC filed a class action complaint in the United States District Court for the Southern District of Alabama on behalf of itself and others similarly situated against the Company alleging violation of the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act of 2005 (the “Telephone Consumer Protection Act”). On March 27, 2017, the Company filed a motion to dismiss the complaint and plaintiff filed an amended complaint on April 10, 2017. On July 18, 2017, the parties reached an agreement in principle regarding the class settlement. On September 29, 2017, the District Court preliminarily approved the proposed class settlement. The Court is scheduled to hold a hearing on March 6, 2018 regarding the final approval of the proposed class settlement.
On February 14, 2017, Plaintiff Medicine To Go Pharmacies, Inc. filed a class action complaint in the United States District Court for the District of New Jersey on behalf of itself and others similarly situated against the Company alleging violation of the Telephone Consumer Protection Act. On April 17, 2017, the Company filed a motion to dismiss, transfer, or stay this case in light of the first-filed case described above. This case was transferred to the Southern District of Alabama. On September 15, 2017, the Court stayed this matter pending the final approval of the class settlement described above.
Securities Class Action
On April 17, 2017, Lead Plaintiff New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund filed an amended class action complaint in the United States District Court for the Northern District of California on behalf of itself and others similarly situated against the Company alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. The Company filed its motion to dismiss the amended complaint on June 1, 2017 and briefing has been completed.
Shareholder Derivative Action
On February 22, 2017, Plaintiff Ed Lippman filed a shareholder derivative complaint in the Superior Court for the State of California in the County of Alameda on behalf of the Company against former executives, a current executive, and certain current members of the board of directors alleging breach of fiduciary duty, unjust enrichment, abuse of control, gross mismanagement, and corporate waste. This matter has been stayed pending the securities class action referenced above.
Teva v. Impax Laboratories, Inc.
On February 15, 2017, Plaintiffs Teva Pharmaceuticals USA, Inc. and Teva Pharmaceuticals Curacao N.V. (“Teva”) filed a Praecipe to Issue Writ of Summons and Writ of Summons (precursor to a complaint) in the
 
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Philadelphia County Court of Common Pleas against the Company alleging that the Company breached the Strategic Alliance Agreement between the parties by not indemnifying Teva in its two litigations with GlaxoSmithKline LLC regarding Wellbutrin ® XL. The Company filed a Motion to Disqualify Teva’s counsel related to the matter, and on August 23, 2017, the Court denied the Company’s motion. Following the Court’s order, Teva filed its complaint. The Company has filed its appeal regarding the disqualification order, and oral argument will be held on April 10, 2018. The matter is currently stayed.
California Wage and Hour Class Action
On August 3, 2017, Plaintiff Emielou Williams filed a class action complaint in the Superior Court for the State of California in the County of Alameda on behalf of herself and others similarly situated against the Company alleging violation of California Business and Professions Code section 17200 by violating various California wage and hour laws. On October 10, 2017, the Company filed a Demurrer and Motion to Strike Class Allegations. On December 12, 2017, the Court overruled the Company’s Demurrer to Plaintiff’s individual claims, however, it struck all of Plaintiff’s class allegations. Discovery is ongoing.
Securities Class Actions
On December 12, 2017 and December 14, 2017, Plaintiffs Susan Vana and David Stone, respectively, filed class action complaints in the United States District Court for the Northern District of California on behalf of themselves and others similarly situated against the Company alleging violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 generally alleging that the Registration Statement on Form S-4 related to the proposed business combination with Amneal Pharmaceuticals, LLC (“Amneal”) contains false and misleading statements and/or omissions concerning the financial projections of the Company, Amneal, and New Amneal; Morgan Stanley & Co. LLC’s valuation analyses and Fairness Opinions relating to the Company and Amneal; potential conflicts of interest associated with one of the Company’s financial advisors and the proposed business combination with Amneal; and background information of the proposed business combination, including confidentiality agreements entered into by the Company in connection with the proposed business combination. No schedule has been set.
20. SEGMENT INFORMATION
The Company has two reportable segments, Impax Generics and Impax Specialty Pharma. Impax Generics develops, manufactures, sells, and distributes generic pharmaceutical products, primarily through the following sales channels: the Impax Generics sales channel for sales of generic prescription products directly to wholesalers, large retail drug chains, and others; the Private Label Product sales channel for generic over-the-counter and prescription products sold to unrelated third-party customers who, in turn, sell the products under their own label; the Rx Partner sales channel for generic prescription products sold through unrelated third-party pharmaceutical entities under their own label pursuant to alliance agreements; and the OTC Partner sales channel for over-the-counter products sold through unrelated third-party pharmaceutical entities under their own labels pursuant to alliance and supply agreements. Revenues from generic products are reported under the caption “Impax Generics, net.”
Impax Specialty Pharma is engaged in the development, sale and distribution of proprietary brand pharmaceutical products that the Company believes represent improvements to already-approved pharmaceutical products addressing central nervous system (“CNS”) disorders and other select specialty segments. Impax Specialty Pharma currently has one internally developed branded pharmaceutical product, Rytary ® (IPX066), an extended release oral capsule formulation of carbidopa-levodopa for the treatment of Parkinson’s disease, post-encephalitic parkinsonism, and parkinsonism that may follow carbon monoxide intoxication and/or manganese intoxication, which was approved by the FDA on January 7, 2015 and which the Company launched in April 2015. In November 2015, the European Commission granted marketing authorization for Numient ® (IPX066) (referred to as Rytary ® in the United States). The review of the Numient ® application was conducted under the
 
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centralized licensing procedure as a therapeutic innovation, and authorization is applicable in all 28 member states of the European Union, as well as Iceland, Liechtenstein and Norway. Impax Specialty Pharma is also engaged in the sale and distribution of four other branded products including Zomig ® (zolmitriptan) products, indicated for the treatment of migraine headaches, under the terms of the AZ Agreement with AstraZeneca in the United States and in certain U.S. territories, and Emverm ® (mebendazole) 100 mg chewable tablets, indicated for the treatment of pinworm, whipworm, common roundworm, common hookworm, and American hookworm in single or mixed infections.
Revenues from branded products are reported under the cation “Impax Specialty Pharma, net.” Impax Specialty Pharma also has a number of product candidates that are in varying stages of development.
The Company’s chief operating decision maker evaluates the financial performance of the Company’s segments based upon segment income (loss) before income taxes. Items below income (loss) from operations are not reported by segment, since they are excluded from the measure of segment profitability reviewed by the Company’s chief operating decision maker. Additionally, general and administrative expenses, certain selling expenses, certain litigation settlements, and non-operating income and expenses are included in “Corporate and Other.” The Company does not report balance sheet information by segment since it is not reviewed by the Company’s chief operating decision maker. The accounting policies for the Company’s segments are the same as those described above in the discussion of “Revenue Recognition” and in “Note 2. Summary of Significant Accounting Policies.” The Company has no inter-segment revenue.
The tables below present segment information reconciled to total Company financial results, with segment operating income or loss including gross profit less direct research and development expenses and direct selling expenses as well as any litigation settlements, to the extent specifically identified by segment (in thousands):

Year Ended December 31, 2017	  	Impax
Generics	 	 	Impax
Specialty
Pharma	 	 	Corporate
and Other	 	 	Total
Company	 	
Revenues, net	  	$	549,077	 	 	$	226,710	 	 	$	—  	 	 	$	775,787	 	
Cost of revenues	  	 	454,911	 	 	 	80,212	 	 	 	—  	 	 	 	535,123	 	
Cost of revenues impairment charges	  	 	96,865	 	 	 	—  	 	 	 	—  	 	 	 	96,865	 	
Selling, general and administrative	  	 	28,294	 	 	 	67,949	 	 	 	120,027	 	 	 	216,270	 	
Research and development	  	 	63,245	 	 	 	17,602	 	 	 	—  	 	 	 	80,847	 	
In-process research and development impairment charges	  	 	192,809	 	 	 	—  	 	 	 	—  	 	 	 	192,809	 	
Fixed assets impairment charges	  	 	8,380	 	 	 	74,128	 	 	 	—  	 	 	 	82,508	 	
Change in fair value of contingent consideration	  	 	(31,048	) 	 	 	—  	 	 	 	—  	 	 	 	(31,048	) 	
Patent litigation	  	 	827	 	 	 	4,278	 	 	 	—  	 	 	 	5,105	 	
(Loss) before income taxes	  	 	(265,206	) 	 	 	(17,459	) 	 	 	(168,296	) 	 	 	(450,961	) 	

Year Ended December 31, 2016	  	Impax
Generics	 	 	Impax
Specialty
Pharma	 	  	Corporate
and Other	 	 	Total
Company	 	
Revenues, net	  	$	606,320	 	 	$	218,109	 	  	$	—  	 	 	$	824,429	 	
Cost of revenues	  	 	417,316	 	 	 	69,583	 	  	 	—  	 	 	 	486,899	 	
Cost of revenues impairment charges	  	 	464,319	 	 	 	24,313	 	  	 	—  	 	 	 	488,632	 	
Selling, general and administrative	  	 	20,508	 	 	 	61,448	 	  	 	119,874	 	 	 	201,830	 	
Research and development	  	 	61,980	 	 	 	18,486	 	  	 	—  	 	 	 	80,466	 	
In-process research and development impairment charges	  	 	27,765	 	 	 	25,200	 	  	 	—  	 	 	 	52,965	 	
Patent litigation	  	 	829	 	 	 	6,990	 	  	 	—  	 	 	 	7,819	 	
(Loss) income before income taxes	  	 	(386,397	) 	 	 	12,089	 	  	 	(202,017	) 	 	 	(576,325	) 	
 
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Year Ended December 31, 2015	  	Impax
Generics	 	  	Impax
Specialty
Pharma	 	  	Corporate
and Other	 	 	Total
Company	 	
Revenues, net	  	$	710,932	 	  	$	149,537	 	  	$	—  	 	 	$	860,469	 	
Cost of revenues	  	 	442,742	 	  	 	58,020	 	  	 	—  	 	 	 	500,762	 	
Cost of revenues impairment charges	  	 	7,303	 	  	 	—  	 	  	 	—  	 	 	 	7,303	 	
Selling, general and administrative	  	 	29,641	 	  	 	52,427	 	  	 	119,219	 	 	 	201,287	 	
Research and development	  	 	52,478	 	  	 	18,144	 	  	 	—  	 	 	 	70,622	 	
In-process research and development impairment charges	  	 	6,360	 	  	 	—  	 	  	 	—  	 	 	 	6,360	 	
Patent litigation	  	 	2,942	 	  	 	1,625	 	  	 	—  	 	 	 	4,567	 	
Income (loss) before income taxes	  	 	169,466	 	  	 	19,321	 	  	 	(129,419	) 	 	 	59,368	 	
Significant Products
The Company generally consolidates net revenue by “product family,” meaning that it consolidates net revenue from products containing the same active ingredient(s) irrespective of dosage strength, delivery method or packaging size. The Company’s significant product families, as determined based on net revenue, and their percentage of the Company’s consolidated net revenue for each of the years ended December 31, 2017, 2016 and 2015 are set forth in the tables below (in thousands):

Segment	  	Product Family	  	2017	 	
 	  	 	  	$	 	  	%	 	
Impax Generics	  	Epinephrine Auto-Injector family (generic Adrenaclick ® )	  	$	113,931	 	  	 	15% (1)	 	
Impax Specialty Pharma	  	Rytary ® family	  	$	91,637	 	  	 	12% (2)	 	
Impax Generics	  	Oxymorphone HCI ER family	  	$	68,587	 	  	 	9% (3)	 	
Impax Generics	  	Budesonide family	  	$	51,548	 	  	 	7% (4)	 	
Impax Generics	  	Zomig family	  	$	51,115	 	  	 	7% (5)	 	

Segment	  	Product Family	  	2016	 	
 	  	 	  	$	 	  	%	 	
Impax Generics	  	Epinephrine Auto-Injector family (generic Adrenaclick ® )	  	$	91,572	 	  	 	11% (1)	 	
Impax Specialty Pharma	  	Rytary ® family	  	$	73,833	 	  	 	9% (2)	 	
Impax Generics	  	Oxymorphone HCI ER family	  	$	72,661	 	  	 	9% (3)	 	
Impax Generics	  	Diclofenac Sodium Gel family (generic Solaraze ® )	  	$	69,035	 	  	 	8% (6)	 	
Impax Generics	  	Fenofibrate family	  	$	64,001	 	  	 	8% (7)	 	

Segment	  	Product Family	  	2015	 	
 	  	 	  	$	 	  	%	 	
Impax Generics	  	Diclofenac Sodium Gel family (generic Solaraze ® )	  	$	148,610	 	  	 	17% (6)	 	
Impax Generics	  	Amphetamine Salts ER (CII) family (generic Adderall ® )	  	$	106,252	 	  	 	12% (8)	 	
Impax Generics	  	Fenofibrate family	  	$	93,458	 	  	 	11% (7)	 	
Impax Generics	  	Metaxalone family (generic Skelaxin)	  	$	69,876	 	  	 	8% (9)	 	
Impax Generics	  	Oxymorphone HCI ER family	  	$	59,175	 	  	 	7% (3)	 	
 
(1)	Epinephrine Auto-Injector (generic Adrenaclick ® ) product family consists of the injector product in two different strengths and is indicated in the emergency treatment of allergic reactions (Type 1) including anaphylaxis.	
(2)	Rytary ® product family consists of the capsules product in four different strengths and is indicated for the treatment of Parkinson’s disease, post-encephalitic parkinsonism, and parkinsonism that may follow carbon monoxide intoxication or manganese intoxication.	
(3)	Oxymorphone Hydrochloride Extended Release product family consists of the oxymorphone hydrochloride extended release tablet formulation of the product in seven different strengths and is indicated for the	
 
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 	management of pain severe enough to require daily, around-the-clock, long-term opioid treatment and for which alternative treatment options are inadequate.	
(4)	Budesonide Inhalation Suspension (generic Pulmicort Respules ® ) product family consists of two products strengths and is indicated for the maintenance treatment of asthma.	
(5)	Zomig ® product family consists of products in tablet, orally disintegrating tablet, and nasal spray dosage forms in six different strengths and is indicated for the acute treatment of migraine with or without aura in adults and pediatric patients 12 years of age or older.	
(6)	Diclofenac Sodium Gel (generic Solaraze ® ) product family consists of one product strength and is indicated for the topical treatment of actinic keratosis.	
(7)	Fenofibrate product family consists of products in both capsule and tablet dosage forms in seven different strengths and is indicated as adjunctive therapy to diet to reduce elevated LDL-C, Total-C, Triglycerides and Apo B, and to increase HDL-C in adult patients with primary hypercholesterolemia or mixed dyslipidemia (Fredrickson Types IIa and IIb); and also indicated as adjunctive therapy to diet for treatment of adult patients with hypertriglyceridemia (Fredrickson Types IV and V hyperlipidemia).	
(8)	Amphetamine Salts extended release capsules, CII (generic Adderall XR ® ) product family consists of the capsules product in six different strengths and is indicated for the treatment of attention deficit hyperactivity disorder.	
(9)	Metaxalone (generic Skelaxin ® ) product family consists of the tablet product in two different strengths and is indicated as an adjunct to rest, physical therapy, and other measures for the relief of discomforts associated with acute, painful musculoskeletal conditions.	
Foreign Operations
The Company’s wholly-owned subsidiary, Impax Laboratories (Taiwan), Inc., constructed a manufacturing facility in Taiwan which was utilized for manufacturing, warehouse, and administrative functions, as well as some limited research and development activities. On the Company’s consolidated balance sheet as of December 31, 2017, Impax Laboratories (Taiwan), Inc. represented $22.9 million of net carrying value of assets, which are included in assets and liabilities held for sale. See “Note 15. Restructurings” for additional information related to the sale of the Taiwan operations in the first quarter of 2018.
 
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21. SUPPLEMENTARY FINANCIAL INFORMATION (Unaudited)
Selected financial information for the quarterly periods noted is as follows:

 	  	2017 Quarters Ended	 	
(in thousands, except share and per share amounts)	  	March 31	 	 	June 30	 	 	September 30	 	 	December 31	 	
Revenue:	  				 				 				 				
Impax Generics sales, gross	  	$	635,897	 	 	$	663,167	 	 	$	622,252	 	 	$	584,374	 	
Less:	  				 				 				 				
Chargebacks	  	 	298,744	 	 	 	286,092	 	 	 	281,835	 	 	 	302,394	 	
Rebates	  	 	164,792	 	 	 	170,398	 	 	 	162,914	 	 	 	144,344	 	
Product returns	  	 	9,733	 	 	 	15,210	 	 	 	7,003	 	 	 	4,657	 	
Other credits	  	 	28,481	 	 	 	40,578	 	 	 	19,402	 	 	 	20,036	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Impax Generics sales, net	  	 	134,147	 	 	 	150,889	 	 	 	151,098	 	 	 	112,943	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Impax Specialty Pharma sales, gross	  	 	84,133	 	 	 	84,238	 	 	 	107,407	 	 	 	111,918	 	
Less:	  				 				 				 				
Chargebacks	  	 	9,828	 	 	 	8,967	 	 	 	14,121	 	 	 	10,058	 	
Rebates	  	 	4,483	 	 	 	4,682	 	 	 	5,914	 	 	 	6,198	 	
Product returns	  	 	1,844	 	 	 	1,416	 	 	 	3,614	 	 	 	4,234	 	
Other credits	  	 	17,722	 	 	 	17,980	 	 	 	28,464	 	 	 	21,461	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Impax Specialty Pharma revenues, net	  	 	50,256	 	 	 	51,193	 	 	 	55,294	 	 	 	69,967	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total revenues	  	 	184,403	 	 	 	202,082	 	 	 	206,392	 	 	 	182,910	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Gross profit	  	 	24,891	 	 	 	72,406	 	 	 	34,033	 	 	 	12,469	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net loss	  	$	(98,431	) 	 	$	(20,417	) 	 	$	(49,369	) 	 	$	(301,070	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net loss per common share:	  				 				 				 				
Basic	  	$	(1.37	) 	 	$	(0.28	) 	 	$	(0.69	) 	 	$	(4.18	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Diluted	  	$	(1.37	) 	 	$	(0.28	) 	 	$	(0.69	) 	 	$	(4.18	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Weighted-average common shares outstanding:	  				 				 				 				
Basic	  	 	71,594,472	 	 	 	71,803,920	 	 	 	71,924,592	 	 	 	72,098,533	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Diluted	  	 	71,594,472	 	 	 	71,803,920	 	 	 	71,924,592	 	 	 	72,098,533	 	

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Quarterly computations of net loss per share amounts are made independently for each quarterly reporting period, and the sum of the per share amounts for the quarterly reporting periods may not equal the per share amounts for the year-to-date reporting period.

 	  	2016 Quarters Ended	 	
(in thousands, except share and per share amounts)	  	March 31	 	 	June 30	 	 	September 30	 	 	December 31	 	
Revenue:	  				 				 				 				
Impax Generics sales, gross	  	$	614,176	 	 	$	532,968	 	 	$	658,099	 	 	$	690,674	 	
Less:	  				 				 				 				
Chargebacks	  	 	217,354	 	 	 	197,864	 	 	 	252,303	 	 	 	308,253	 	
Rebates	  	 	185,476	 	 	 	178,097	 	 	 	183,347	 	 	 	211,359	 	
Product returns	  	 	11,913	 	 	 	10,237	 	 	 	16,151	 	 	 	7,920	 	
Other credits	  	 	29,354	 	 	 	25,075	 	 	 	30,978	 	 	 	23,916	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Impax Generics revenues, net	  	 	170,079	 	 	 	121,695	 	 	 	175,320	 	 	 	139,226	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Impax Specialty Pharma sales, gross	  	 	82,073	 	 	 	81,254	 	 	 	77,841	 	 	 	108,121	 	
Less:	  				 				 				 				
Chargebacks	  	 	6,111	 	 	 	8,826	 	 	 	5,439	 	 	 	15,253	 	
Rebates	  	 	2,853	 	 	 	2,430	 	 	 	3,556	 	 	 	3,016	 	
Product returns	  	 	1,508	 	 	 	1,279	 	 	 	574	 	 	 	2,802	 	
Other credits	  	 	16,172	 	 	 	17,824	 	 	 	15,683	 	 	 	27,854	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Impax Specialty Pharma revenues, net	  	 	55,429	 	 	 	50,895	 	 	 	52,589	 	 	 	59,196	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total revenues	  	 	225,508	 	 	 	172,590	 	 	 	227,909	 	 	 	198,422	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Gross profit (loss)	  	 	102,590	 	 	 	72,984	 	 	 	(165,426	) 	 	 	(161,250	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net loss	  	$	(10,408	) 	 	$	(2,701	) 	 	$	(179,337	) 	 	$	(279,585	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net loss per common share:	  				 				 				 				
Basic	  	$	(0.15	) 	 	$	(0.04	) 	 	$	(2.51	) 	 	$	(3.91	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Diluted	  	$	(0.15	) 	 	$	(0.04	) 	 	$	(2.51	) 	 	$	(3.91	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Weighted-average common shares outstanding:	  				 				 				 				
Basic	  	 	70,665,394	 	 	 	71,100,123	 	 	 	71,331,247	 	 	 	71,487,071	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Diluted	  	 	70,665,394	 	 	 	71,100,123	 	 	 	71,331,247	 	 	 	71,487,071	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Quarterly computations of net loss per share amounts are made independently for each quarterly reporting period, and the sum of the per share amounts for the quarterly reporting periods may not equal the per share amounts for the year-to-date reporting period.
 
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 SCHEDULE II, VALUATION AND QUALIFYING ACCOUNTS
(In thousands)

Column A	  	Column B	 	  	Column C	 	 	Column D	 	 	Column E	 	
Description	  	Balance at
Beginning of
Period	 	  	Charge to
Costs and
Expenses	 	  	Charge to
Other
Accounts	 	 	Deductions	 	 	Balance at
End of
Period	 	
For the Year Ended December 31, 2015:	  				  				  				 				 				
Reserve for bad debts	  	$	515	 	  	 	5,122	 	  	 	9,550	* 	 	 	—  	 	 	$	15,187	 	
For the Year Ended December 31, 2016:	  				  				  				 				 				
Reserve for bad debts	  	$	15,187	 	  	 	41,213	 	  	 	—  	 	 	 	(1,664	) 	 	$	54,736	 	
For the Year Ended December 31, 2017:	  				  				  				 				 				
Reserve for bad debts	  	$	54,736	 	  	 	3,804	 	  	 	—  	 	 	 	(9,117	) 	 	$	49,423	 	
* Represents reserve for bad debts acquired.
 
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224,996,163 Shares
Amneal Pharmaceuticals, Inc.
Class A Common Stock

 

 
            , 2018

 

Table of Contents
Part II
Information Not Required in Prospectus
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than the underwriting discounts and commissions, payable by the registrant in connection with the sale of Class A common stock being registered. All amounts are estimates except for the Securities and Exchange Commission, or SEC, registration fee and the FINRA filing fee.

Item	  	Amount to
be paid	 	
SEC registration fee	  	$	509,259	 	
FINRA filing fee	  	 	*	 	
Printing expenses	  	 	25,000	 	
Legal fees and expenses	  	 	200,000	 	
Accounting fees and expenses	  	 	25,000	 	
Transfer agent fees and expenses	  	 	20,000	 	
Miscellaneous expenses	  	 	50,000	 	
	  	 	 	 	
Total	  	$	829,259	 	

*	These fees are calculated based on the amount of securities offered and accordingly cannot be estimated at this time. To the extent required, any applicable prospectus supplement will set forth the estimated aggregate amount of expenses payable in respect of any offering of securities.	
Item 14. Indemnification of Directors and Officers
Section 145(a) of the Delaware General Corporation Law provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), because he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or other adjudicating court shall deem proper.
 
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Section 145(g) of the Delaware General Corporation Law provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify the person against such liability under Section 145 of the Delaware General Corporation Law.
The New Amneal Charter provides for the mandatory indemnification, to the fullest extent permitted by applicable law, of any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or officer of New Amneal or is or was serving at the request of New Amneal as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person.
However, New Amneal will not be required to indemnify any director or officer in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against New Amneal or its directors, officers, employees or other agents unless (i) such indemnification is expressly required to be made by applicable law, (ii) the proceeding was authorized by the New Amneal Board, (iii) such indemnification is provided by New Amneal, in its sole discretion, or (iv) such indemnification is required to be made under the New Amneal Charter, pursuant to the powers vested in New Amneal under the DGCL or any other applicable law.
The New Amneal Charter provides for mandatory advancement of expenses incurred by any indemnified person; provided the person to whom expenses are advanced undertakes to repay such amounts if it is ultimately determined that he or she is not entitled to be indemnified by New Amneal under its Charter or otherwise.
However, no advance will be made by New Amneal to an executive officer of New Amneal (except when such executive officer is or was a director of New Amneal) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, if a determination is reasonably and promptly made (i) by a majority vote of directors who were not parties to the proceeding, even if not a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or such directors so direct, by independent legal counsel in a written opinion, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of New Amneal.
In any underwriting agreement we enter into in connection with the sale of Class A common stock being registered hereby, the underwriters will agree to indemnify, under certain conditions, us, our directors, our officers and persons who control us within the meaning of the Securities Act of 1933, as amended, against certain liabilities.
Item 15. Recent Sales of Unregistered Securities
In the three years preceding the filing of this registration statement, we have issued the following securities that were not registered under the Securities Act:
In connection with the Combination and the PIPE Investment, members of the Amneal Group entered into the PIPE Purchase Agreement with the PIPE Investors. Pursuant to the PIPE Purchase Agreement, upon the Closing of the Combination, members of the Amneal Group exercised their right to the Redemption. Following
 
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the Redemption, the members of the Amneal Group sold such shares of Class A common stock and Class B-1 common stock to the PIPE Investors at a per share purchase price of $18.25 for gross proceeds of approximately $855,000,000. Following the PIPE Investment, the PIPE Investors own collectively approximately 15% of the New Amneal Shares on a fully diluted and as converted basis, with TPG owning all outstanding shares of Class B-1 common stock. See “ The Combination and the PIPE Investment .”
Item 16. Exhibits and Financial Statement Schedules
 
 	(a)	Exhibits	
See the Exhibit Index attached to this Registration Statement, which is incorporated by reference herein.
 
 	(b)	Financial statement schedules	
Schedules not listed above have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or notes thereto.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned hereby undertakes:
 
(1)	To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:	
 
 	(i)	to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;	
 
 	(ii)	to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “ Calculation of Registration Fee ” table in the effective registration statement; and	
 
 	(iii)	to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;	
 
(2)	that for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.	
 
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(3)	to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.	
 
(4)	that, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:	
 
 	(i)	if the registrant is relying on Rule 430B:	
 
 	(A)	each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and	
 
 	(B)	each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial  bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or	
 
 	(ii)	If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use;	
 
(5)	to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information;	
 
(6)	that for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and	
 
(7)	that for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the	
 
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 	registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.	
 
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EXHIBIT INDEX

Exhibit
Number	  	Description of Exhibit	
  2.1*	  	Business Combination Agreement, dated as of October 17, 2017, among Impax Laboratories, Inc., Amneal Pharmaceuticals LLC, Atlas Holdings, Inc. and K2 Merger Sub Corporation.	
		
  2.2*	  	Amendment No. 1, dated as of November 21, 2017, to the Business Combination Agreement, dated as of October  17, 2017, by and among Impax Laboratories, Inc., Atlas Holdings, Inc., K2 Merger Sub Corporation and Amneal Pharmaceuticals LLC.	
		
  2.3*	  	Amendment No. 2, dated as of December 16, 2017, to the Business Combination Agreement, dated as of October  17, 2017, by and among Impax Laboratories, Inc., Atlas Holdings, Inc., K2 Merger Sub Corporation and Amneal Pharmaceuticals LLC.	
		
  2.4*	  	PIPE Side Letter, dated November 21, 2017, by and among Amneal Holdings, LLC, Atlas Holdings, Inc., and TPG Improv Holdings, L.P.	
		
  3.1*	  	Form of Restated Certificate of Incorporation of Atlas Holdings, Inc.	
		
  3.2*	  	Form of Bylaws of Atlas Holdings, Inc.	
		
  3.3*	  	Form of Third Amended and Restated Limited Liability Company Agreement of Amneal Pharmaceuticals LLC.	
		
  4.1*	  	Indenture, dated as of June 30, 2015, between Impax Laboratories, Inc. and Wilmington Trust, National Association, as trustee.	
		
  4.2*	  	Supplemental Indenture, dated as of November 6, 2017, between the Company and Wilmington Trust, National Association, as trustee.	
		
  4.3*	  	Second Supplemental Indenture, dated as of May 4, 2018, between the Company and WilmingtonvTrust, National Association, as trustee.	
		
  5.1*	  	Opinion of Latham & Watkins LLP.	
		
10.1*	  	Commitment Letter, dated as of October 17, 2017, among JPMorgan Chase Bank, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Amneal Pharmaceuticals LLC.	
		
10.2*	  	Revolving Credit Agreement, dated as of the Closing Date, among Amneal Pharmaceuticals, LLC, the subsidiary loan parties thereto, JPMorgan Chase Bank, N.A., Bank of America, N.A., RBC Capital Markets, and the other lenders party thereto.	
		
10.3*	  	Term Loan Credit Agreement, dated as of the Closing Date, among Amneal Pharmaceuticals, LLC, the subsidiary loan parties thereto, JPMorgan Chase Bank, N.A., Bank of America, N.A., RBC Capital Markets, and the other lenders party thereto.	
		
10.4*	  	Second Amended and Restated Stockholders Agreement, dated as of December 16, 2017, among Atlas Holdings, Inc., Amneal Pharmaceuticals Holdings Company LLC, AP Class D Member, LLC, AP Class  E Member, LLC and AH PPU Management, LLC.	
		
10.5*	  	Tax Receivable Agreement, among Amneal Pharmaceuticals, Inc., Amneal Pharmaceuticals LLC and the Members of Amneal Pharmaceuticals LLC from time to time party thereto.	
		
10.6*†	  	Form of Atlas Holdings, Inc. 2018 Incentive Award Plan.	
		
10.7*†	  	Employment Agreement, dated December 16, 2017, by and among Amneal Pharmaceuticals LLC, Atlas Holdings, Inc. and Robert A. Stewart.	
		
10.8*†	  	Memorandum of Understanding, dated December 16, 2017, by and among Amneal Pharmaceuticals LLC, Paul M. Bisaro, Impax Laboratories, Inc., Amneal Holdings, LLC and Atlas Holdings, Inc.	
		
10.9*†	  	Employment Agreement, dated March 24, 2017, by and between Impax Laboratories, Inc. and Paul M. Bisaro.	

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Exhibit
Number	  	Description of Exhibit	
		
10.10*†	  	Employment Agreement, dated January 24, 2018, by and among Amneal Pharmaceuticals LLC, Amneal Holdings, LLC and Andrew Boyer.	
		
10.11*†	  	Employment Agreement, dated December 12, 2012, by and among Impax Laboratories, Inc. and Bryan M. Reasons	
		
10.12*†	  	Amendment to Employment Agreement, dated April 1, 2014, by and between Impax Laboratories, Inc. and Bryan M. Reasons	
		
10.13*†	  	Impax Laboratories, Inc. Executive Non-Qualified Deferred Compensation Plan, amended and restated effective January 1, 2008.	
		
10.14*†	  	Amendment to Impax Laboratories, Inc. Executive Non-Qualified Deferred Compensation Plan, effective as of January 1, 2009.	
		
10.15*	  	Letter Agreement, dated as of June 25, 2015, between RBC Capital Markets LLC and Impax regarding the Base Warrants.	
		
10.16*	  	Letter Agreement, dated as of June 25, 2015, between RBC Capital Markets LLC and Impax regarding the Base Call Option Transaction.	
		
10.17*	  	Letter Agreement, dated as of June 26, 2015, between RBC Capital Markets LLC and Impax regarding the Additional Warrants.	
		
10.18*	  	Letter Agreement, dated as of June 26, 2015, between RBC Capital Markets LLC and Impax regarding the Additional Call Option Transaction.	
		
10.19*	  	Termination Agreement, dated as of May 7, 2018, between RBC Capital Markets LLC and Impax.	
		
21.1*	  	Subsidiaries of Registrant.	
		
23.1*	  	Consent of Latham & Watkins LLP (included in Exhibit 5.1).	
		
23.2*	  	Consent of KPMG LLP.	
		
23.3*	  	Consent of Ernst & Young LLP.	
		
24.1*	  	Power of Attorney (included on signature page).	

*	Filed herewith.	
†	Indicates management contracts or compensatory plans or arrangements in which our executive officers or directors participate.	

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 SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Bridgewater, State of New Jersey on May 7, 2018.

AMNEAL PHARMACEUTICALS, INC.	
		
By:	 	/s/ Bryan M. Reasons	
Name:	 	Bryan M. Reasons	
Title:	 	Chief Financial Officer (Principal Financial and Accounting Officer)	

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 SIGNATURES
Each person whose signature appears below constitutes and appoints each of Paul M. Bisaro and Bryan M. Reasons, acting alone or together with another attorney-in-fact, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any or all further amendments (including post-effective amendments) to this registration statement (and any additional registration statement related hereto permitted by Rule 462(b) promulgated under the Securities Act of 1933 (and all further amendments, including post-effective amendments, thereto)), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on May 7, 2018.

Signature	 	Title	
		
 	 	Director	
Paul M. Bisaro	 		
		
/s/ Robert L. Burr	 	Lead Independent Director	
Robert L. Burr	 		
		
 	 	Co-Chairman	
Chirag Patel	 		
		
 	 	Co-Chairman	
Chintu Patel	 		
		
 	 	Director and Chief Executive Officer (Principal Executive Officer)	
Robert A. Stewart	 		
		
/s/ Kevin Buchi	 	Director	
Kevin Buchi	 		
		
/s/ Peter R. Terreri	 	Director	
Peter R. Terreri	 		
		
/s/ Janet Vergis	 	Director	
Janet Vergis	 		
		
/s/ Gautam Patel	 	Director	
Gautam Patel	 		
		
/s/ Ted Nark	 	Director	
Ted Nark	 		
		
/s/ Emily Peterson Alva	 	Director	
Emily Peterson Alva	 		
		
/s/ Jean Selden Greene	 	Director	
Jean Selden Greene	 		
		
/s/ Dharmendra J. Rama	 	Director	
Dharmendra J. Rama	 		

Exhibit 2.1

 
EXECUTION VERSION

 
BUSINESS COMBINATION AGREEMENT
Dated as of October 17, 2017
By and Among
IMPAX LABORATORIES, INC.,
ATLAS HOLDINGS, INC.,
K2 MERGER SUB CORPORATION
and
AMNEAL PHARMACEUTICALS LLC

 

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 	  	 	  	Page	 	
ARTICLE I THE TRANSACTIONS	  	 	2	 	
			
Section 1.01	  	The Holdco Charter Amendment and the Impax Merger; The LLC Conversion; The Contribution and Unit Issuance; The Class B Common Stock Issuance	  	 	2	 	
Section 1.02	  	Transaction Structure	  	 	4	 	
Section 1.03	  	Closing	  	 	4	 	
Section 1.04	  	Organizational Documents of the Surviving Company	  	 	4	 	
Section 1.05	  	Holdco Governance	  	 	5	 	
Section 1.06	  	Directors and Officers of the Surviving Company	  	 	5	 	
		
ARTICLE II CONVERSION OF SECURITIES	  	 	5	 	
			
Section 2.01	  	Effect on Capital Stock of Impax and Merger Sub	  	 	5	 	
Section 2.02	  	Effect on Holdco Common Stock	  	 	5	 	
Section 2.03	  	Exchange of Impax Certificates and Impax Book-Entry Shares	  	 	5	 	
Section 2.04	  	Treatment of Impax Equity Awards; Impax ESPP	  	 	7	 	
Section 2.05	  	Certain Adjustments	  	 	8	 	
		
ARTICLE III REPRESENTATIONS AND WARRANTIES OF IMPAX	  	 	8	 	
			
Section 3.01	  	Organization, Standing and Corporate Power	  	 	8	 	
Section 3.02	  	Subsidiaries	  	 	8	 	
Section 3.03	  	Capital Structure	  	 	9	 	
Section 3.04	  	Authority; Noncontravention	  	 	9	 	
Section 3.05	  	Valid Issuance	  	 	10	 	
Section 3.06	  	Governmental Approvals	  	 	10	 	
Section 3.07	  	Impax SEC Documents; No Undisclosed Liabilities	  	 	11	 	
Section 3.08	  	Information Supplied	  	 	12	 	
Section 3.09	  	Absence of Certain Changes or Events	  	 	12	 	
Section 3.10	  	Litigation	  	 	12	 	
Section 3.11	  	Contracts	  	 	12	 	
Section 3.12	  	Compliance with Laws	  	 	14	 	
Section 3.13	  	FDA Regulatory Matters	  	 	16	 	
Section 3.14	  	Employee Benefit Plans	  	 	18	 	
Section 3.15	  	Taxes	  	 	20	 	
Section 3.16	  	Intellectual Property	  	 	21	 	
Section 3.17	  	Real Property	  	 	24	 	
Section 3.18	  	Environmental Matters	  	 	25	 	
Section 3.19	  	Labor Matters	  	 	25	 	
Section 3.20	  	Insurance	  	 	26	 	
Section 3.21	  	Prohibited Persons	  	 	26	 	
Section 3.22	  	Transactions with Related Parties	  	 	27	 	
Section 3.23	  	Brokers and Other Advisors	  	 	27	 	
Section 3.24	  	Opinion of Financial Advisor	  	 	27	 	
Section 3.25	  	State Takeover Statutes	  	 	27	 	
Section 3.26	  	No Rights Agreement	  	 	27	 	
Section 3.27	  	Requisite Stockholder Approval	  	 	27	 	
Section 3.28	  	Holdco	  	 	27	 	
Section 3.29	  	Exclusivity of Representations; No Limitation of Other Representations	  	 	28	 	
		
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF AMNEAL	  	 	28	 	
			
Section 4.01	  	Organization, Standing and Corporate Power	  	 	28	 	
 
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Section 4.02	  	Subsidiaries	  	 	28	 	
Section 4.03	  	Capital Structure	  	 	29	 	
Section 4.04	  	Authority; Noncontravention	  	 	29	 	
Section 4.05	  	Valid Issuance of Amneal Units	  	 	30	 	
Section 4.06	  	Governmental Approvals	  	 	30	 	
Section 4.07	  	Amneal Financial Statements; No Undisclosed Liabilities	  	 	30	 	
Section 4.08	  	Information Supplied	  	 	31	 	
Section 4.09	  	Absence of Certain Changes or Events	  	 	31	 	
Section 4.10	  	Litigation	  	 	31	 	
Section 4.11	  	Contracts	  	 	31	 	
Section 4.12	  	Compliance with Laws	  	 	33	 	
Section 4.13	  	FDA Regulatory Matters	  	 	34	 	
Section 4.14	  	Amneal Benefit Plans	  	 	36	 	
Section 4.15	  	Taxes	  	 	38	 	
Section 4.16	  	Intellectual Property	  	 	39	 	
Section 4.17	  	Real Property	  	 	42	 	
Section 4.18	  	Environmental Matters	  	 	43	 	
Section 4.19	  	Labor Matters	  	 	44	 	
Section 4.20	  	Insurance	  	 	44	 	
Section 4.21	  	Prohibited Persons	  	 	44	 	
Section 4.22	  	Transactions with Related Parties	  	 	45	 	
Section 4.23	  	Brokers and Other Advisors	  	 	45	 	
Section 4.24	  	Requisite Amneal Written Consent	  	 	45	 	
Section 4.25	  	Financing	  	 	45	 	
Section 4.26	  	Exclusivity of Representations; No Limitation of Other Representations	  	 	46	 	
		
ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS	  	 	47	 	
			
Section 5.01	  	Conduct of Business	  	 	47	 	
Section 5.02	  	Solicitation by Impax; Competing Proposals; Change of Recommendation	  	 	53	 	
		
ARTICLE VI ADDITIONAL AGREEMENTS	  	 	56	 	
			
Section 6.01	  	Registration Statement; Proxy Statement/Prospectus	  	 	56	 	
Section 6.02	  	Impax Stockholder Meeting	  	 	57	 	
Section 6.03	  	Access to Information; Confidentiality	  	 	57	 	
Section 6.04	  	Regulatory Approvals; Efforts	  	 	57	 	
Section 6.05	  	Indemnification; Insurance	  	 	59	 	
Section 6.06	  	Fees and Expenses	  	 	60	 	
Section 6.07	  	Public Announcements	  	 	60	 	
Section 6.08	  	Stockholder Litigation	  	 	60	 	
Section 6.09	  	Employee Matters	  	 	60	 	
Section 6.10	  	Cooperation	  	 	61	 	
Section 6.11	  	Financing	  	 	61	 	
Section 6.12	  	Stock Exchange Delisting and Deregistration	  	 	65	 	
Section 6.13	  	New York Stock Exchange Listing	  	 	65	 	
Section 6.14	  	Section 16 Matters	  	 	65	 	
Section 6.15	  	ISRA Compliance	  	 	66	 	
Section 6.16	  	Certain Pre-Closing Actions	  	 	66	 	
Section 6.17	  	Impax Director and Officer Resignations	  	 	66	 	
Section 6.18	  	Certain Tax Matters	  	 	66	 	
Section 6.19	  	Treatment of Impax Convertible Notes; Convertible Note Hedge Transactions	  	 	67	 	
 
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ARTICLE VII CONDITIONS PRECEDENT	  	 	70	 	
			
Section 7.01	  	Conditions to Each Party’s Obligation to Effect the Transactions	  	 	70	 	
Section 7.02	  	Conditions to Obligation of Amneal	  	 	70	 	
Section 7.03	  	Conditions to Obligation of Impax and Holdco	  	 	71	 	
Section 7.04	  	Frustration of Closing Conditions	  	 	71	 	
		
ARTICLE VIII TERMINATION	  	 	71	 	
			
Section 8.01	  	Termination	  	 	71	 	
Section 8.02	  	Termination Fees	  	 	73	 	
Section 8.03	  	Effect of Termination	  	 	74	 	
Section 8.04	  	Procedure for Termination	  	 	74	 	
		
ARTICLE IX GENERAL PROVISIONS	  	 	74	 	
			
Section 9.01	  	Nonsurvival of Representations and Warranties	  	 	74	 	
Section 9.02	  	Notices	  	 	75	 	
Section 9.03	  	Definitions	  	 	75	 	
Section 9.04	  	Interpretation	  	 	87	 	
Section 9.05	  	Counterparts	  	 	87	 	
Section 9.06	  	Entire Agreement; No Third-Party Beneficiaries	  	 	87	 	
Section 9.07	  	Governing Law	  	 	87	 	
Section 9.08	  	Assignment	  	 	87	 	
Section 9.09	  	Specific Enforcement; Consent to Jurisdiction	  	 	88	 	
Section 9.10	  	WAIVER OF JURY TRIAL	  	 	88	 	
Section 9.11	  	Severability	  	 	89	 	
Section 9.12	  	Amendment	  	 	89	 	
Section 9.13	  	Further Assurances	  	 	89	 	
Section 9.14	  	Extension; Waiver	  	 	89	 	
Section 9.15	  	Disclosure Letters	  	 	89	 	
Section 9.16	  	Limitation on Claims	  	 	90	 	
Section 9.17	  	No Recourse	  	 	90	 	
EXHIBITS

Exhibit A	  	Amended and Restated Holdco Charter	
Exhibit B	  	Amended and Restated Holdco Bylaws	
Exhibit C	  	Limited Liability Company Agreement of the Surviving Company (after LLC Conversion)	
Exhibit D	  	Certificate of Formation of the Surviving Company (after LLC Conversion)	
Exhibit E	  	Contribution Agreement	
Exhibit F	  	Certificate Incorporation of the Surviving Company (before LLC Conversion)	
Exhibit G	  	Bylaws of the Surviving Company (before LLC Conversion)	
Exhibit H	  	Restated Amneal LLC Operating Agreement	
Exhibit I	  	Stockholders Agreement	
Exhibit J	  	Tax Receivable Agreement	
 
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BUSINESS COMBINATION AGREEMENT
This BUSINESS COMBINATION AGREEMENT (this “ Agreement ”), dated as of October 17, 2017, is by and among Impax Laboratories, Inc., a Delaware corporation (“ Impax ”), Atlas Holdings, Inc., a Delaware corporation and a wholly-owned Subsidiary of Impax (“ Holdco ”), K2 Merger Sub Corporation, a Delaware corporation and a wholly-owned Subsidiary of Holdco (“ Merger Sub ”) and Amneal Pharmaceuticals LLC, a Delaware limited liability company (“ Amneal ”).
W I T N E S S E T H:
WHEREAS, the parties desire to enter into a business combination transaction upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, in furtherance of their business combination, the parties intend to establish a new holding company structure by merging Merger Sub with and into Impax (the “ Impax Merger ”), with Impax surviving the merger and continuing as a subsidiary of Holdco;
WHEREAS, prior to the Impax Merger, Amneal and Impax intend to effect certain transactions prior to the Closing as set forth in Section 6.16 herein;
WHEREAS, the parties also intend that, following the Impax Merger, Impax will convert to a Delaware limited liability company and Holdco will contribute to Amneal all of Holdco’s limited liability company interest (or, if the conversion is not effected pursuant to Section 1.01(b)(iv) , all of Holdco’s shares of capital stock) in Impax in exchange for the issuance of certain limited liability company interests in Amneal to Holdco pursuant to the Restated Amneal LLC Operating Agreement, whereupon Holdco will be admitted as the managing member of Amneal;
WHEREAS, following such contribution, pursuant to the Restated Amneal LLC Operating Agreement, Amneal intends to consummate a recapitalization pursuant to which the existing members of Amneal will receive limited liability company interests in Amneal (which may be exchanged for either cash or shares of Holdco) and non-economic voting shares of Holdco;
WHEREAS, the board of directors of Impax (the “ Impax Board ”) unanimously (i) determined that it is in the best interests of Impax and its stockholders to enter into this Agreement and declared advisable this Agreement and (ii) approved the execution, delivery and performance by Impax of this Agreement and the consummation of the transactions contemplated hereby (the “ Transactions ”);
WHEREAS, the Impax Board has resolved to recommend the adoption of this Agreement to the Impax stockholders;
WHEREAS, the board of managers of Amneal (the “ Amneal Board ”) approved (i) this Agreement and the Transactions (including the Restated Amneal LLC Operating Agreement) and (ii) the execution, delivery and performance of this Agreement by Amneal and the consummation of the Transactions;
WHEREAS, in its capacity as the Class A member of Amneal, Amneal Pharmaceuticals Holding Company, LLC (“ APHC ”) has (i) approved this Agreement and the Transactions, (ii) approved the execution, delivery and performance of this Agreement by Amneal and the consummation of the Transactions (including the amendment of the Amneal LLC Operating Agreement to be restated in the form of the Restated Amneal LLC Operating Agreement), and (iii) waived any pre-emptive or other similar rights that it has under the Amneal LLC Operating Agreement or any other agreement in connection with the Transactions;
 
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WHEREAS, for U.S. federal income tax purposes, it is intended that (i) the Impax Merger and the LLC Conversion, taken together, will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder, and this Agreement is intended to be and is adopted as a separate “plan of reorganization” within the meaning of Treasury Regulation Section 1.368-2(g) for purposes of Sections 354 and 361 of the Code and (ii) the Contribution will qualify as an exchange to which Section 721(a) of the Code applies;
WHEREAS, the respective board of directors of each of Holdco and Merger Sub have unanimously approved and declared advisable (i) this Agreement and the Transactions and (ii) the execution, delivery and, with respect to Merger Sub, subject to adoption of this Agreement by Holdco in its capacity as sole stockholder of Merger Sub, performance of this Agreement by Holdco and Merger Sub, respectively, and the consummation of the Transactions; and
WHEREAS, the parties hereto desire to make certain representations, warranties, covenants and agreements in connection with the Transactions and also to prescribe various conditions to the Transactions.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, the parties hereto agree as follows:
 ARTICLE I
THE TRANSACTIONS
 Section 1.01 The Holdco Charter Amendment and the Impax Merger; The LLC Conversion; The Contribution and Unit Issuance; The Class B Common Stock Issuance .
(a) The Holdco Charter Amendment and the Impax Merger .
(i) On the Closing Date, at the Closing, Holdco shall file with the Secretary of State of the State of Delaware the amended and restated certificate of incorporation of Holdco in its entirety as set forth on Exhibit A (the “ Amended and Restated Holdco Charter ”), which shall be the certificate of incorporation of Holdco immediately following the Closing until thereafter changed or amended as provided therein or by applicable Law (the “ Holdco Charter Amendment ”). Prior to the Impax Merger Effective Time, Holdco shall take all actions necessary to amend and restate the bylaws of Holdco (as in effect immediately prior to the Impax Merger Effective Time) in their entirety as set forth on Exhibit B (the “ Amended and Restated Holdco Bylaws ”), effective as of immediately prior to the Impax Merger Effective Time, which shall be the bylaws of Holdco immediately following the Closing until thereafter changed or amended as provided therein or by applicable Law. As set forth in the Amended and Restated Holdco Charter, the name of Holdco shall be “Amneal Pharmaceuticals, Inc.”
(ii) On the Closing Date, following the Holdco Charter Amendment, Impax and Merger Sub shall file with the Secretary of State of the State of Delaware a certificate of merger (the “ Certificate of Merger ”), executed in accordance with, and containing such information as is required by, the relevant provisions of the General Corporation Law of the State of Delaware (the “ DGCL ”) in order to effect the Impax Merger. The Impax Merger shall become effective at such time as the Certificate of Merger has been filed with the Secretary of State of the State of Delaware or at such later time on the Closing Date as is agreed among the parties and specified in the Certificate of Merger in accordance with the relevant provisions of the DGCL (such date and time is referred to herein as the “ Impax Merger Effective Time ”).
(iii) At the Impax Merger Effective Time, upon the terms and subject to the conditions set forth in this Agreement and in accordance with Section 251 of the DGCL, Merger Sub will be merged with and into Impax, whereupon the separate existence of Merger Sub shall cease, and Impax will continue its existence as the surviving corporation in the Impax Merger and a wholly-owned Subsidiary of Holdco (the “ Surviving Company ”).
 
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(iv) The Impax Merger shall have the effects set forth in this Agreement, the Certificate of Merger and the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Impax Merger Effective Time, the separate existence of Merger Sub shall cease and all of the assets, property, rights, privileges, powers and franchises of Merger Sub shall vest in the Surviving Company, and all debts, liabilities and duties of Merger Sub shall become the debts, liabilities and duties of the Surviving Company, in each case as provided under the DGCL.
(b) LLC Conversion .
(i) Subject to Section 1.01(b)(iv) , on the Closing Date, following the Impax Merger Effective Time and prior to the Contribution, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL and the Delaware Limited Liability Company Act (the “ DLLCA ”), the Surviving Company shall be converted from a Delaware corporation to a Delaware limited liability company (the “ LLC Conversion ”).
(ii) Subject to Section 1.01(b)(iv) , on the Closing Date, Impax shall file with the Secretary of State of the State of Delaware a certificate of conversion (a “ Certificate of Conversion ”) and a certificate of formation (a “ Certificate of Formation ”), executed in accordance with, and containing such information as is required by, the relevant provisions of the DGCL and the DLLCA to effect the LLC Conversion. The LLC Conversion shall become effective at such time as the Certificate of Conversion and Certificate of Formation has been filed with the Secretary of State of the State of Delaware or at such other, later time on the Closing Date as is agreed among the parties and specified in the Certificate of Conversion and Certificate of Formation in accordance with the relevant provisions of the DGCL and the DLLCA; provided , that such time must be after the Impax Merger Effective Time and prior to the effective time of the Contribution (such date and time is referred to herein as the “ Conversion Effective Time ”).
(iii) At the Conversion Effective Time (if it occurs), (i) the certificate of incorporation and bylaws of the Surviving Company, each in effect at the Conversion Effective Time, will be replaced and superseded in their entirety by the Certificate of Formation and the Limited Liability Company Agreement of the Surviving Company, in the forms set forth on Exhibit C and Exhibit D , respectively, (ii) Holdco, as the sole stockholder of the Surviving Company immediately prior to the LLC Conversion, will execute the Limited Liability Company Agreement of the Surviving Company and be admitted to the Surviving Company as the sole member of the Surviving Company, and (iii) all of the shares of stock of the Surviving Company issued and outstanding immediately prior to the LLC Conversion will be converted to all of the limited liability company interests in the Surviving Company.
(iv) Notwithstanding this Section 1.01(b) or any other provision of this Agreement, the LLC Conversion shall not be effected and Sections 1.01(b)(i)-(iii)  and Section 1.04(b) shall be disregarded if Amneal provides written notice to Impax prior to the Closing Date that the LLC Conversion shall be eliminated as a Transaction, such that the Contribution (as defined herein) and the Unit Issuance shall occur immediately following the Impax Merger.
(c) The Contribution and Unit Issuance .
(i) On the Closing Date, following the Conversion Effective Time and simultaneously with the execution of the Restated Amneal LLC Operating Agreement, subject to Section 1.01(b)(iv) , Holdco will contribute all of the outstanding equity interests of the Surviving Company to Amneal (the “ Contribution ”) in exchange for the issuance (the “ Unit Issuance ”) by Amneal to Holdco of a number of newly issued Amneal Units equal to the aggregate number of shares of Class A common stock of Holdco, par value $0.01 (“ Class A Common Stock ”), issuable pursuant to Section 2.01(c) .
(ii) The parties hereto shall cause the Contribution and the Unit Issuance to be consummated on the Closing Date after the Conversion Effective Time and simultaneously with the execution of the Restated Amneal LLC Operating Agreement (subject to Section 1.01(b)(iv) ) by executing the Contribution Agreement (in substantially the form attached hereto as Exhibit E ). The Contribution and the Unit Issuance
 
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shall become effective at such time on the Closing Date as specified in the Contribution Agreement; provided , that such date and time must be after the Conversion Effective Time, subject to Section 1.01(b)(iv) (such date and time is referred to herein as the “ Contribution Effective Time ”).
(iii) In connection with the Contribution and the Unit Issuance, each of Holdco and the Existing Amneal Members will execute the Restated Amneal LLC Operating Agreement, the Recapitalization (as defined in the Restated Amneal LLC Operating Agreement) will be completed and Holdco will be admitted as the managing member of Amneal. The aggregate number of Amneal Units to be issued to the Existing Amneal Members in connection with the Recapitalization shall equal three times the Fully Diluted Impax Share Number. Such Amneal Units shall be allocated among the Existing Amneal Members in accordance with the terms of the Amneal LLC Operating Agreement as in effect as of immediately prior to the Closing (as determined by the Amneal Group Representative in its sole discretion); provided , that immediately following the Recapitalization, each Existing Amneal Member shall transfer such Amneal Units to the Amneal Group Representative (and the schedule of members to the Restated Amneal LLC Operating Agreement shall be updated accordingly).
(d) The Class B Common Stock Issuance . On the Closing Date, following the Contribution Effective Time and in consideration of the Recapitalization, Holdco will issue to each Existing Amneal Member an aggregate number of shares of Class B common stock of Holdco, par value $0.01 per share (“ Class B Common Stock ” and together with the Class A Common Stock, “ Holdco Common Stock ”), equal to the number of Amneal Units held by such Existing Amneal Member immediately following the Recapitalization.
 Section 1.02 Transaction Structure . Each party hereto shall, if requested by any other party hereto to implement any reorganization transactions or implement any changes to the structure of the Transactions, consider such reorganization transactions or transaction structure changes in good faith and cooperate with the other party to the extent it determines in good faith that such reorganization transactions or transaction structure changes are advisable and will not (a) have an adverse impact on such party or its equity holders, (b) alter or change the amount or kind of the consideration to be received by any of its or any of its equity holders in connection with the Transactions, (c) have an adverse effect on the Tax consequences of the Transactions to it or its equity holders or (d) materially impede or delay consummation of the Transactions. Any such changes to the structure of the Transactions that are agreed upon by the parties shall be set forth in writing in an amendment to this Agreement pursuant to the terms hereof.
 Section 1.03 Closing . The closing of the Transactions (the “ Closing ”) will take place at the offices of Latham & Watkins LLP, located at 885 Third Avenue, New York, New York 10022-4834, on the fifth (5 th ) Business Day following the satisfaction or waiver (to the extent permitted by Law) of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed in writing by Impax and Amneal. The date on which the Closing actually occurs is referred to as the “ Closing Date .”
 Section 1.04 Organizational Documents of the Surviving Company .
(a) At the Impax Merger Effective Time, the certificate of incorporation of Impax, as in effect immediately prior to the Impax Merger Effective Time, shall be amended and restated to read in its entirety as set forth in Exhibit F hereto and shall be the certificate of incorporation of the Surviving Company until thereafter changed or amended as provided therein or by applicable Law. Impax shall take all actions necessary to amend and restate the bylaws of Impax (as in effect immediately prior to the Impax Merger Effective Time) in their entirety as set forth on Exhibit G , effective as of the Impax Merger Effective Time, which shall be the bylaws of the Surviving Company until thereafter changed or amended as provided therein or by applicable Law.
(b) At the Conversion Effective Time (subject to Section 1.01(b)(iv) ), the Certificate of Formation and the Limited Liability Company Agreement of the Surviving Company shall be as set forth in Exhibit C and Exhibit D , respectively, until thereafter amended in accordance with the provisions thereof and applicable Law.
 
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 Section 1.05 Holdco Governance . Prior to the Closing, the parties hereto shall take all necessary action to cause the board of directors of Holdco (the “ Holdco Board ”) and the committees thereof to be constituted, effective immediately following the Contribution and Unit Issuance, as set forth in the Stockholders Agreement.
 Section 1.06 Directors and Officers of the Surviving Company .
(a) The directors of Merger Sub immediately prior to the Impax Merger Effective Time shall be, as of the Impax Merger Effective Time, the directors of the Surviving Company until the earlier of their resignation or removal or until their respective successors are duly appointed, elected and qualified, as the case may be.
(b) The officers of Merger Sub immediately prior to the Impax Merger Effective Time shall be, as of the Impax Merger Effective Time, the officers of the Surviving Company until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be.
 ARTICLE II
CONVERSION OF SECURITIES
 Section 2.01 Effect on Capital Stock of Impax and Merger Sub . At the Impax Merger Effective Time, by virtue of the Impax Merger and without any action on the part of Impax, Holdco, Merger Sub or the holder of any shares of Impax Common Stock:
(a) Conversion of Merger Sub Common Stock . Each share of common stock of Merger Sub, par value $0.01 per share, issued and outstanding immediately prior to the Impax Merger Effective Time shall be converted into one fully paid and nonassessable share of common stock of the Surviving Company, par value $0.01 per share.
(b) Cancellation of Certain Impax Common Stock . Each share of Impax Common Stock issued and outstanding immediately prior to the Impax Merger Effective Time that is owned or held by Impax in treasury, by Amneal or by any of their respective Subsidiaries shall no longer be outstanding and shall be automatically canceled and shall cease to exist (the “ Cancelled Shares ”), and no consideration shall be delivered in exchange therefor.
(c) Conversion of All Other Impax Common Stock . Each share of Impax Common Stock issued and outstanding immediately prior to the Impax Merger Effective Time, other than any Cancelled Shares, shall be converted into the right to receive one fully paid and nonassessable share of Class A Common Stock (the “ Merger Consideration ”).
 Section 2.02 Effect on Holdco Common Stock . At the Impax Merger Effective Time, each share of Holdco Common Stock issued and outstanding immediately prior to the Impax Merger Effective Time shall be cancelled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor.
 Section 2.03 Exchange of Impax Certificates and Impax Book-Entry Shares .
(a) Exchange Agent . Prior to the Impax Merger Effective Time, Holdco shall appoint a bank or trust company reasonably acceptable to Amneal to act as exchange agent (the “ Exchange Agent ”) for the payment and delivery of the aggregate Merger Consideration in accordance with this Section 2.03 . At or immediately following the Impax Merger Effective Time, Holdco shall deposit (or cause to be deposited) with the Exchange Agent the aggregate Merger Consideration in respect of (i) certificates that immediately prior to the Impax Merger Effective Time represented shares of Impax Common Stock (“ Impax Certificates ”) and (ii) non-certificated outstanding shares of Impax Common Stock represented by book entry (“ Impax Book-Entry Shares ”), in each case other than Cancelled Shares, for exchange in accordance with this Section 2.03 through the Exchange Agent (collectively, the “ Exchange Fund ”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver the aggregate Merger Consideration contemplated to be issued pursuant to Section 2.01(c) out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose.
 
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(b) Exchange Procedures . Promptly following the Impax Merger Effective Time, Holdco shall send, or shall cause the Exchange Agent to send, to each record holder of an Impax Certificate or Impax Book-Entry Share, in each case which shares were converted into the right to receive Merger Consideration in respect thereof at the Impax Merger Effective Time pursuant to this Agreement: (i) a letter of transmittal, which shall specify that delivery shall be effected, and risk of loss and title to the Impax Certificates shall pass, only upon delivery of the Impax Certificates to the Exchange Agent, and shall otherwise be in such form and have such other provisions as Impax, Amneal and the Exchange Agent may reasonably specify, and (ii) instructions for effecting the surrender of the Impax Certificates or Impax Book-Entry Shares in exchange for the aggregate Merger Consideration in respect thereof, as applicable. Upon surrender of Impax Certificates and Impax Book-Entry Shares for cancellation to the Exchange Agent and upon delivery of a letter of transmittal, duly executed and in proper form with all required enclosures and attachments, with respect to such Impax Certificates or Impax Book-Entry Shares, the holder of such Impax Certificates or Impax Book-Entry Shares shall be entitled to receive the Merger Consideration for each share of Impax Common Stock formerly represented by such Impax Certificates or such Impax Book-Entry Shares. Any Impax Certificates and Impax Book-Entry Shares so surrendered shall forthwith be cancelled. If payment of any Merger Consideration is to be made to a person other than the person in whose name any surrendered Impax Certificate is registered, it shall be a condition precedent to payment that the Impax Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer, and the person requesting such payment shall have paid any transfer and other similar Taxes required by reason of the delivery of the aggregate Merger Consideration in respect thereof, as applicable, to a person other than the registered holder of the Impax Certificate so surrendered and shall have established to the satisfaction of Holdco that such Taxes either have been paid or are not required to be paid. Delivery of the aggregate Merger Consideration, as applicable, with respect to Impax Book-Entry Shares shall only be made to the person in whose name such Impax Book-Entry Shares are registered. Until surrendered as contemplated hereby, each Impax Certificate or Impax Book-Entry Share shall be deemed at any time after the Impax Merger Effective Time to represent only the right to receive the aggregate Merger Consideration in respect thereof.
(c) Transfer Books . At the Impax Merger Effective Time, the stock transfer books of Impax shall be closed and thereafter there shall be no further registration of transfers of shares of Impax Common Stock outstanding immediately prior to the Impax Merger Effective Time on the records of Impax. From and after the Impax Merger Effective Time, the holders of Impax Certificates and Impax Book-Entry Shares representing shares of Impax Common Stock outstanding immediately prior to the Impax Merger Effective Time shall cease to have any rights with respect to such shares except as otherwise provided for herein or by applicable Law. If, after the Impax Merger Effective Time, Impax Certificates representing shares of Impax Common Stock are presented to the Surviving Company for any reason, they shall be cancelled and exchanged for the aggregate Merger Consideration in respect thereof as provided in this Agreement.
(d) Termination of Exchange Fund; Abandoned Property . At any time following one (1) year after the Closing Date, Holdco shall be entitled to require the Exchange Agent to deliver to it any shares of Holdco Common Stock remaining in the Exchange Fund made available to the Exchange Agent and not delivered to holders of Impax Certificates or Impax Book-Entry Shares, and thereafter such holders shall be entitled to look only to Holdco (subject to abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the aggregate Merger Consideration payable upon due surrender of their Impax Certificates or Impax Book-Entry Shares and compliance with the procedures in this Section 2.03 . Notwithstanding the foregoing, neither Holdco nor the Exchange Agent shall be liable to any holder of an Impax Certificate or Impax Book-Entry Shares for any Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(e) Lost, Stolen or Destroyed Certificates . In the event that any Impax Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Impax Certificates, upon the making of an affidavit of that fact by the holder thereof, the aggregate Merger Consideration payable in respect thereof pursuant to Section 2.01(c) ; provided , however , that Holdco or the Exchange Agent may, in its reasonable discretion and as a condition precedent to the payment of such aggregate
 
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Merger Consideration, require the owners of such lost, stolen or destroyed Impax Certificates to deliver a customary indemnity against any claim that may be made against Holdco, the Surviving Company or the Exchange Agent with respect to the Impax Certificates alleged to have been lost, stolen or destroyed.
(f) Distributions with Respect to Unexchanged Shares . No dividends or other distributions declared or made after the Impax Merger Effective Time with respect to Class A Common Stock with a record date after the Impax Merger Effective Time shall be paid to the holder of any unsurrendered Impax Certificate or Impax Book-Entry Share with respect to the shares of Class A Common Stock issuable in respect thereof unless and until the holder of such Impax Certificate or Impax Book-Entry Share shall surrender such Impax Certificate or Impax Book-Entry Share. Subject to the effect of escheat, Tax or other applicable Laws, following surrender of any such Impax Certificate or Impax Book-Entry Share, there shall be paid by Holdco to the holder of whole shares of Class A Common Stock issued in exchange therefor, without interest, (i) promptly, the amount of dividends or other distributions with a record date after the Impax Merger Effective Time theretofore paid with respect to such whole shares of Class A Common Stock and (ii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Impax Merger Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of Class  A Common Stock.
 Section 2.04 Treatment of Impax Equity Awards; Impax ESPP .
(a) No later than immediately before the Impax Merger Effective Time, Impax and Holdco shall take such actions as may be required to provide that each Impax Option that is outstanding immediately prior to the Impax Merger Effective Time shall, at the Impax Merger Effective Time, fully vest (to the extent unvested) and shall be exchanged for an option to acquire a number of shares of Class A Common Stock equal to the number of shares of Impax Common Stock subject to such Impax Option immediately before the Impax Merger Effective Time at a price per share equal to the exercise price per share of Impax Common Stock otherwise purchasable pursuant to such Impax Option (each Impax Option as so adjusted, an “ Exchanged Impax Option ”); provided , however , that such conversion shall be effected in accordance with Section 424(a) of the Code; provided , further , that, except as otherwise provided in this Section 2.04(a) , each such Exchanged Impax Option exchanged pursuant to this Section 2.04(a) shall continue to have, and shall be subject to, the same terms and conditions as applied to the corresponding Impax Option immediately prior to the Impax Merger Effective Time; provided , further , that such Exchanged Impax Options shall remain exercisable following the Impax Merger Effective Time until such Exchanged Impax Option expires in accordance with its terms.
(b) No later than immediately before the Impax Merger Effective Time, Impax and Holdco shall take such actions as may be required to provide that each Impax Restricted Share that is outstanding immediately prior to the Impax Merger Effective Time shall, at the Impax Merger Effective Time, fully vest and shall be exchanged, subject to any required Tax withholding with respect to such vesting (each Impax Restricted Share as so adjusted, an “ Exchanged Impax Restricted Share ”), for one share of Class A Common Stock in accordance with Section 2.01(c) .
(c) Promptly following the date of this Agreement, the Impax Board (or, if appropriate, any committee thereof) shall adopt such resolutions or take such other necessary actions such that (A) all Purchase Periods (as such term is defined in the Impax ESPP) shall terminate and each participant shall be deemed to have elected to purchase the number of shares of Impax Common Stock calculated in accordance with the terms of the Impax ESPP upon the earliest to occur of (x) December 31, 2017, (y) the day that is four (4) complete trading days prior to the Impax Merger Effective Time or (z) the date on which such Purchase Period(s) would otherwise end, (B) no individual participating in the Impax ESPP shall be permitted to, except to the extent required by applicable Law, make separate non-payroll contributions to the Impax ESPP on or following the date of this Agreement, and (C) the Impax ESPP will terminate no later than immediately prior to the earliest to occur of (i) December 31, 2017 and (ii) the Impax Merger Effective Time.
(d) At the Impax Merger Effective Time, Holdco shall assume all the obligations of Impax under the Impax Stock Plans and each Exchanged Impax Option and the agreements evidencing the grants thereof.
 
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 Section 2.05 Certain Adjustments . Notwithstanding anything in this Agreement to the contrary, if, from the date of this Agreement until the Impax Merger Effective Time, the outstanding shares of Impax Common Stock shall have been changed into a different number of shares or a different class by reason of any reclassification, stock split (including a reverse stock split), recapitalization, split-up, combination, exchange of shares, readjustment, or other similar transaction, or a stock dividend or stock distribution thereon shall be declared with a record date within said period, the number of Amneal Units to be received by the Existing Amneal Members in connection with the Recapitalization (as reflected in the Restated Amneal LLC Operating Agreement) and any other similarly dependent items, as the case may be, shall be equitably adjusted to provide the Existing Amneal Members the same economic effect as contemplated by this Agreement prior to such event.
 ARTICLE III
REPRESENTATIONS AND WARRANTIES OF Impax
Except (a) as disclosed in the Impax SEC Documents (as defined herein) filed prior to the date hereof and publicly available on the SEC’s Electronic Data Gathering Analysis and Retrieval system (but (i) without giving effect to any amendment thereof filed with, or furnished to the SEC (as defined herein) on or after the date of this Agreement, (ii) excluding any disclosure contained in such Impax SEC Documents under the heading “Risk Factors” or “Cautionary Statement About Forward-Looking Statements” or similar heading and any other disclosures contained or referenced therein of factors or risks that are predictive, cautionary or forward-looking in nature and (iii) not with respect to Sections 3.01 , 3.02 , 3.03 , 3.04 , 3.05 , 3.23 , 3.24 , 3.25 , 3.26 , 3.27 , 3.28 , and 3.29 ), or (b) as set forth in the disclosure letter delivered by Impax to Amneal prior to the execution of this Agreement (the “ Impax Disclosure Letter ”), Impax represents and warrants to Amneal as follows:
 Section 3.01 Organization, Standing and Corporate Power . Each of Impax and the Impax Material Subsidiaries is an entity duly organized, validly existing and in good standing (except to the extent the “good standing” concept is not applicable in any relevant jurisdiction) under the Laws of the jurisdiction in which it is formed and has all requisite corporate, limited liability company or other entity power and authority to carry on its business as now being conducted. Each other Subsidiary of Impax is an entity duly organized, validly existing and in good standing (except to the extent the “good standing” concept is not applicable in any relevant jurisdiction) under the Laws of the jurisdiction in which it is formed and has all requisite corporate, limited liability company or other entity power and authority to carry on its business as now being conducted, except to the extent that any failure to be so organized, validly existing and in good standing has not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. Impax and each of its Subsidiaries is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed has not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. Impax has, prior to the date hereof, made available to Amneal true and complete copies of its existing Restated Certificate of Incorporation, as amended (the “ Impax Charter ”), and its existing Amended and Restated Bylaws, as amended (the “ Impax Bylaws ”), and the charter and bylaws (or comparable organizational documents) of the Impax Material Subsidiaries, in each case as amended to the date of this Agreement. There has been no breach by Impax of the Impax Charter or the Impax Bylaws, each as in effect from time to time.
 Section 3.02 Subsidiaries . Section 3.02 of the Impax Disclosure Letter lists all the Subsidiaries of Impax and, for each such Subsidiary, the state of formation and each jurisdiction in which such Subsidiary is qualified or licensed to do business. Except for Permitted Liens, all the outstanding shares of capital stock of, or other equity interests in, each such Subsidiary have been validly issued and are fully paid and nonassessable and are owned directly or indirectly by Impax free and clear of any Liens other than Permitted Liens and Liens pursuant to existing financing arrangements. Except for the capital stock or other equity or voting interests of its Subsidiaries, Impax does not own, directly or indirectly, any capital stock or other equity or voting interests in any person.
 
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 Section 3.03 Capital Structure .
(a) The authorized capital stock of Impax consists of (i) 150,000,000 shares of common stock, par value $0.01 per share (the “ Impax Common Stock ”), and (ii) 2,000,000 shares of preferred stock, par value $0.01 per share (the “ Impax Preferred Stock ”). As of October 13, 2017 (the “ Capitalization Date ”), (A) 74,413,801 shares of Impax Common Stock were issued and 74,170,072 shares of Impax Common Stock were outstanding (including 2,242,423 shares of Impax Common Stock issued with respect to restricted stock awards issued under the Impax 2002 Stock Plan (“ Impax Restricted Shares ”), (B) no shares of Impax Preferred Stock were issued and outstanding, (C) 243,729 shares of Impax Common Stock were issued and held in the treasury of Impax or otherwise owned by Impax or any of its Subsidiaries, (D) 1,719,444 shares of Impax Common Stock were reserved for issuance in connection with future grants of awards under Impax’s 2002 Equity Incentive Plan, as amended (the “ Impax 2002 Stock Plan ” and together with inducement grants of Impax Options, the “ Impax Stock Plans ”), (E) 3,368,198 shares of Impax Common Stock were reserved for issuance with respect to outstanding stock options issued under the Impax 2002 Stock Plan or as inducement grants (“ Impax Options ”), and (F) 1,507,789 shares of Impax Common Stock were reserved for issuance under Impax’s 2001 Non-Qualified Employee Stock Purchase Plan, as amended (the “ Impax ESPP ”).
(b) Impax has delivered to Amneal a true and complete list, as of the Capitalization Date, of all outstanding Impax Options, Impax Restricted Shares which remain subject to a right of repurchase and other rights to purchase or receive shares of Impax Common Stock granted under the Impax 2002 Stock Plan, the number of shares of Impax Common Stock subject thereto (with respect to Impax Options) (assuming target performance, if applicable), the vesting period, the type of grant, grant dates, expiration dates and exercise prices thereof, in each case broken down as to each individual holder. Except as set forth above in this Section 3.03 and except for changes since the close of business on the Capitalization Date resulting from the exercise of Impax Options, as of the date of this Agreement, no shares of capital stock or other voting securities of Impax were issued, reserved for issuance or outstanding. Except as set forth above in this Section 3.03 , there are no outstanding stock appreciation rights, rights to receive shares of Impax Common Stock on a deferred basis or other rights that are linked to the value of Impax Common Stock granted under the Impax 2002 Stock Plan or otherwise. All outstanding shares of capital stock of Impax are, and all shares which may be issued pursuant to the Impax 2002 Stock Plan or the Impax ESPP will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.
(c) Except as set forth above in this Section 3.03 , there are no bonds, debentures, notes or other Indebtedness of Impax having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which Impax Stockholders may vote. Except as set forth above in this Section 3.03 , (i) there are not issued, reserved for issuance or outstanding (A) any securities of Impax or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or voting securities of Impax or any of its Subsidiaries or (B) any warrants, calls, options or other rights to acquire from Impax or any of its Subsidiaries, or any obligation of Impax or any of its Subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or voting securities of Impax or any of its Subsidiaries and (ii) there are not any outstanding obligations of Impax or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, any such securities. Neither Impax nor any of its Subsidiaries is a party to any voting agreement with respect to the voting of any such securities.
 Section 3.04 Authority; Noncontravention .
(a) Impax has all necessary corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party, to perform its obligations under this Agreement and the Ancillary Agreements to which it is a party and to consummate the Transactions and the Ancillary Transactions. The execution, delivery and performance by Impax of this Agreement and the Ancillary Agreements to which it is a party and the consummation by it of the Transactions and the Ancillary Transactions, have been duly and validly
 
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authorized by the Impax Board and, except for the Impax Stockholder Approval and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate action on the part of Impax, pursuant to the DGCL, the applicable listing standards of the NASDAQ Global Select Market or otherwise, is necessary to authorize the execution and delivery by Impax of this Agreement and the Ancillary Agreements to which it is a party, and the consummation by it of the Transactions and the Ancillary Transactions, subject to the adoption of this Agreement by the Impax Stockholder Approval. This Agreement has been duly executed and delivered by Impax and, assuming due authorization, execution and delivery hereof by the other parties hereto, is a legal, valid and binding obligation of Impax enforceable against Impax in accordance with its terms (subject to applicable bankruptcy, solvency, fraudulent transfer, reorganization, moratorium and other Laws affecting creditors’ rights generally from time to time in effect and by general principles of equity). The Impax Board has unanimously (A) approved and declared advisable this Agreement and the Ancillary Agreements to which Impax is a party and the Transactions and the Ancillary Transactions and declared it advisable for Impax to enter into this Agreement and the Ancillary Agreements to which Impax is a party, (B) determined that the Transactions, including the Impax Merger, are in the best interests of and advisable to the Impax Stockholders, (C) directed that this Agreement be submitted to the Impax Stockholders for their consideration, approval and adoption and (D) resolved to recommend that Impax Stockholders adopt this Agreement and thereby approve the Transactions, including the Impax Merger (the “ Impax Board Recommendation ”).
(b) The execution, delivery and performance of this Agreement and the Ancillary Agreements to which Impax is a party, and the consummation of the Transactions and the Ancillary Transactions, do not and will not, conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a benefit under, or result in the creation of any Lien in or upon any of the properties or other assets of Impax or any of its Subsidiaries under, (i) the Impax Charter or the Impax Bylaws or the comparable organizational documents of the Impax Material Subsidiaries, (ii) any Contract to which Impax or any of its Subsidiaries is a party or any of their respective properties or other assets is subject or (iii) subject to the governmental filings and other matters referred to in Section 3.06 , any Law applicable to Impax or any of its Subsidiaries or their respective properties or other assets, other than, in the case of clauses (ii) and (iii), any such conflicts, violations, breaches, defaults, rights, losses or Liens that have not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
 Section 3.05 Valid Issuance .
(a) The shares of Holdco Common Stock, including the shares of Class A Common Stock issuable upon exchange of the Amneal Units pursuant to the Restated Amneal LLC Operating Agreement (such shares of Class A Common Stock, the “ Conversion Shares ”), when issued, sold and delivered pursuant to the Amended and Restated Holdco Charter as well as in accordance with the terms of this Agreement, will be duly authorized and validly issued, fully paid and nonassessable and will be issued free and clear of any Liens (other than such Liens created by the Restated Amneal LLC Operating Agreement, the Amended and Restated Holdco Charter or applicable securities Laws) or any preemptive rights.
(b) Holdco has not offered any shares of Holdco Common Stock, or substantially similar securities of Holdco, for sale to, or solicited any offers to buy from, or otherwise approached or negotiated in respect of any such offer to sell or buy with, any persons other than Amneal and the Existing Amneal Members. Holdco has not taken any action that will, in and of itself, cause the issuance, sale and delivery of the shares of Class B Common Stock and any Conversion Shares to constitute a violation of the Securities Act or any applicable state securities Laws.
 Section 3.06 Governmental Approvals . No consent, approval, order or authorization of, action by or in respect of, or registration, declaration or filing with, any Governmental Authority is required by or with respect to Impax or any of its Subsidiaries in connection with the execution, delivery and performance of this Agreement and the Ancillary Agreements to which Impax is a party by Impax or the consummation by Impax of the
 
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Transactions and the Ancillary Transactions, except (a) the premerger notification and report form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), (b) the filing with the SEC of such reports under, and other compliance with, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “ Securities Act ”), (c) the filing with the SEC of such reports under, and other compliance with, the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “ Exchange Act ”), (d) the Certificate of Merger, Certificate of Conversion and Certificate of Formation to be filed with the Secretary of State of the State of Delaware, (e) the governmental approvals, consents and authorizations that are applicable to Impax and its Subsidiaries as set forth on Section 3.06(e) of the Impax Disclosure Letter, pursuant to applicable Laws for consummation of the Transactions and the Ancillary Transactions, (f) such filings with, and approvals of, the NASDAQ Global Select Market as are required to permit the consummation of the Transactions, (g) such filings and approvals as may be required by any applicable state securities or “blue sky” Laws, (h) the filing of all material applications, consents, approvals, authorizations and notices, as required by the FDA, the DEA and any other federal, state, local or foreign Governmental Authority that is concerned with or regulates the marketing, sale, use, handling and control, safety, efficacy, reliability or manufacturing of drug or biological products or medical devices or is concerned with or regulates public health care programs (each, a “ Healthcare Regulatory Authority ”) each of which is set forth on Section 3.06(e) of the Impax Disclosure Letter and (i) such other consents, approvals, orders, authorizations, registrations, declarations and filings where the failure to make any such filing, give any such notice or obtain any such consent or approval would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
 Section 3.07 Impax SEC Documents; No Undisclosed Liabilities .
(a) Impax has timely filed or furnished all reports, schedules, forms, statements and other documents (including exhibits and other information incorporated therein) with the Securities and Exchange Commission (the “ SEC ”) required to be filed or furnished by Impax since January 1, 2014 (such documents, the “ Impax SEC Documents ”). No Subsidiary of Impax is required to file or furnish, or files or furnishes, any form, report or other document with the SEC. As of their respective dates, the Impax SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, applicable to such Impax SEC Documents, and as of their respective dates, none of the Impax SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such information contained in any Impax SEC Document has been amended or superseded by a later-filed Impax SEC Document that was filed prior to the date hereof. The financial statements of Impax included in the Impax SEC Documents comply as of their respective dates as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles in the United States (“ GAAP ”) (except, in the case of unaudited statements, for normal and recurring year-end adjustments not material in amount and as permitted by Form 10-Q of the SEC or other rules and regulations of the SEC) applied by Impax on a consistent basis during the periods and at the dates involved (except as may be indicated therein or in the notes thereto) and fairly present in all material respects the financial position of Impax and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to the absence of footnote disclosure and to normal and recurring year-end audit adjustments not material in amount).
(b) Neither Impax nor any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required under GAAP to be reflected on a consolidated balance sheet of Impax and its Subsidiaries (including the notes thereto), except for any such liabilities or obligations (i) accrued, disclosed, reflected or reserved against in the most recent financial statements (including any related notes) contained in the Impax SEC Documents filed prior to the date of this Agreement, (ii) incurred in the ordinary course of business since the date of latest balance sheet included in such financial statements, (iii) incurred in connection with this Agreement, the Ancillary Agreements, the Transactions and the Ancillary
 
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Transactions or (iv) that have not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
 Section 3.08 Information Supplied . The information supplied by Impax in writing expressly for inclusion in the Registration Statement and the Proxy Statement/Prospectus will not (a) in the case of the Registration Statement, at the time the Registration Statement is declared effective under the Securities Act, and (b) in the case of the Proxy Statement/Prospectus, as of the date the Proxy Statement/Prospectus is first mailed to the stockholders of Impax or at the time of any meeting of Impax’s stockholders to be held in connection with the Transactions, including the Impax Stockholder Meeting, contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not false or misleading. Notwithstanding the foregoing sentence, Impax makes no representation or warranty with respect to statements made in any of the foregoing documents based on information supplied by Amneal or any of its Representatives for inclusion therein.
 Section 3.09 Absence of Certain Changes or Events . Since January 1, 2017 until the date of this Agreement, except as expressly required by this Agreement or any Ancillary Agreement, (a) Impax and its Subsidiaries have conducted their respective businesses in all material respects in accordance with the ordinary course of such businesses and (b) there has not been any change, effect, event, circumstance, occurrence or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
 Section 3.10 Litigation . There is no lawsuit, court action or other court proceeding (a “ Litigation Proceeding ”) or internal investigation pending or, to the Knowledge of Impax, threatened, and Impax has no Knowledge of any external investigation pending or threatened with respect to Impax or its Subsidiaries, nor is there any material judgment, decree, injunction, rule or order of any Governmental Authority or arbitrator outstanding with respect to Impax or any of its Subsidiaries, except in each case for any Litigation Proceedings, investigations, judgments, decrees, injunctions, rules, orders and claims that have not been or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
 Section 3.11 Contracts .
(a) Section 3.11(a) of the Impax Disclosure Letter sets forth a true and complete list as of the date of this Agreement, and Impax has, prior to the date of this Agreement, made available to Amneal true and complete copies (including all material amendments, modifications, extensions, renewals or guaranties) of the following, other than any Impax Plans (all such Contracts set forth on Section 3.11(a) of the Impax Disclosure Letter, or which are required to be so disclosed, “ Impax Material Contracts ”):
(i) all “material contracts” (as such term is defined in Item 601(b)(10) of SEC Regulation S-K) with respect to Impax or any of its Subsidiaries (whether or not filed by Impax with the SEC);
(ii) all Contracts of Impax or any of its Subsidiaries involving payments by or to Impax or any of its Subsidiaries of more than $2,500,000 on an annual basis;
(iii) all Contracts with third party manufacturers and suppliers for the manufacture and supply of products providing for minimum order quantities, minimum purchase requirements or exclusive supply, manufacturing or purchase requirements with a total annual payment or financial commitment exceeding $2,500,000;
(iv) all Contracts having a remaining term of three (3) years or more as of the date hereof wherein Impax or any of its Subsidiaries is obligated to manufacture or supply products to any third party with a total annual payment or financial commitment exceeding $2,500,000;
(v) all Contracts to which Impax or any of its Subsidiaries is a party, or by which Impax or any of its Subsidiaries is bound, that contain any covenant materially limiting or prohibiting the right of Impax or any of its Subsidiaries (A) to engage in any line of business or conduct business in any geographic area, (B) to
 
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distribute or offer any products or services or (C) to compete with any other person in any line of business or in any geographic area or levying a fine, charge or other payment for doing any of the foregoing, in each case other than (x) non-compete or non-solicitation Contracts with non-executive employees of Impax or any of its Subsidiaries or (y) confidentiality agreements including non-solicitation, “no raid” or no-hire provisions;
(vi) all Contracts of Impax or any of its Subsidiaries with any Affiliate of Impax (other than any of its Subsidiaries) (A) whereby Impax or any of its Subsidiaries agrees to indemnify such Affiliate; or (B) in which the amount involved exceeds $500,000 on an annual basis, except for Contracts in respect of employment or consulting services entered into in the ordinary course of business;
(vii) all Contracts of Impax or any of its Subsidiaries granting or obtaining any license to Intellectual Property involving payments of more than $1,000,000 in any calendar year;
(viii) all Contracts of Impax or any of its Subsidiaries involving payments to a single vendor by or to Impax or any of its Subsidiaries of more than $2,500,000 on an annual basis that require consent of or notice to a third party in the event of or with respect to the Transactions or the Ancillary Transactions, including in order to avoid a breach or termination of, or loss of benefit under, any such Contract;
(ix) all joint venture, partnership or other similar agreements involving co-investment with a third party to which Impax or any of its Subsidiaries is a party;
(x) all Contracts with any Governmental Authority or any Healthcare Regulatory Authority under which Impax provides products or services involving aggregate consideration in excess of $2,500,000;
(xi) settlement agreements with, or agreements entered into in connection with settlement agreements with, Governmental Authorities or any Healthcare Regulatory Authorities that have existing or contingent material performance obligations;
(xii) all Contracts pursuant to which any Indebtedness of Impax or any of its Subsidiaries is outstanding or may be incurred (except for Contracts relating to Indebtedness (A) the aggregate principal amount of which does not exceed $5,000,000 or (B) solely among Impax and/or its Subsidiaries);
(xiii) all Contracts of Impax or any of its Subsidiaries which grant to any third party any exclusive rights, right of first refusal, right of first offer or similar right or ownership interest, in each case, with respect to any material Intellectual Property, drug master files, dossiers, regulatory filings or approvals with any Healthcare Regulatory Authority or other material assets, rights or properties of Impax or any of its Subsidiaries;
(xiv) all Contracts relating to the voting or registration of any securities or providing Impax or any of its Subsidiaries with any right of first refusal with respect to, or right to repurchase or redeem, any assets or securities;
(xv) all Contracts of Impax or any of its Subsidiaries that relate to an acquisition, divestiture, merger or similar transaction that contain material representations, covenants, indemnities or other obligations (including material payment, indemnification or other contingent obligations) or any “earn-out” obligations of Impax or any of its Subsidiaries, that are in effect (other than any indemnification provisions which relate to representations and warranties in respect of organization, power and authority, due authorization, capitalization, non-contravention, Taxes, brokers fees or other similar representations and warranties which are contained in the applicable acquisition agreement);
(xvi) all Contracts of Impax or any of its Subsidiaries relating to the settlement of any Litigation Proceeding that provide for any continuing material obligations on the part of Impax or any of its Subsidiaries;
(xvii) all Contracts obligating Impax or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from any person or sell any material product or service exclusively to any person;
 
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(xviii) all Contracts relating to a material research and development collaboration or any joint development, in each case, for any products currently marketed by Impax or any of its Subsidiaries;
(xix) all Contracts of Impax or any of its Subsidiaries that prohibit, limit or restrict the payment of dividends or distributions in respect of the capital stock of Impax or any of its Subsidiaries or otherwise prohibit, limit or restrict the pledging of capital stock of Impax or any of its Subsidiaries or prohibit, limit or restrict the issuance of guarantees by Impax or any of its Subsidiaries;
(xx) all Contracts that are collective bargaining agreements and all Contracts with any trade union, works council or other employee representative or other labor organization; and
(xxi) all Contracts that obligate Impax or any of its Subsidiaries to make any capital contribution or other investment (including pursuant to any joint venture) in a person in excess of $1,000,000 on an annual basis.
For purposes of this Section 3.11(a) , amounts calculated on an “annual basis” or similar terms reflect annualized expenses or payments based on payments made during the period from (A)(1) January 1, 2016 through December 31, 2016 or (2) January 1, 2017 through June 30, 2017 and (B) accruals for the applicable calendar year.
(b) (i) none of Impax or any of its Subsidiaries (A) is, or has received written notice that any other party to any Impax Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Impax Material Contract to which it is a party or any of its properties or other assets is subject, (ii) there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Impax Material Contract and (iii) each such Impax Material Contract is in full force and effect and is a legal, valid and binding agreement of, and enforceable against, Impax or its Subsidiary, and, to the Knowledge of Impax, each other party thereto, except for violations, breaches, defaults, waivers or failures to enforce rights or benefits, or failures to be in full force and effect or to be legal, valid, binding or enforceable, covered by clauses (i), (ii) or (iii) above that have not had and would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. No party to any of the Impax Material Contracts filed as an exhibit to Impax’s report on Form 10-K for the period ended December 31, 2016 (as filed with the SEC on March 1, 2017) or set forth on Section 3.11(a) of the Impax Disclosure Letter has provided written notice exercising any termination rights with respect thereto.
 Section 3.12 Compliance with Laws .
(a) Impax and each of its Subsidiaries are and have been since January 1, 2014 in compliance with all Laws applicable to them, their properties or other assets or their business or operations, except for such violations or noncompliance that have not been and would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. Impax and its Subsidiaries have in effect all material permits, licenses, certificates of need, registrations, accreditations, Government Program provider agreements, variances, exemptions, authorizations, operating certificates, franchises, orders, approvals, and similar rights issued by or obtained from all Governmental Authorities (collectively, “ Impax Permits ”) necessary to carry on their businesses as currently conducted, and there has occurred no violation of, default (with or without notice or lapse of time or both) under, or event giving to others any right of termination, amendment or cancellation of, with or without notice or lapse of time or both, any Impax Permit, except for such violation, defaults, terminations, amendments or cancellations that, individually or in the aggregate, have not had and would not reasonably be expected to have an Impax Material Adverse Effect. There is no event which has occurred that would reasonably be expected to result in the termination, revocation, cancellation, non-renewal or adverse modification of any such Impax Permit that is material to Impax and its Subsidiaries, taken as a whole. Assuming all notices or consents listed on Section 3.06(e) of the Impax Disclosure Letter are made or obtained, the execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation of the Transactions and
 
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the Ancillary Transactions do not and will not conflict with or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a benefit under, or result in the creation of any Lien in or upon any properties or other assets of Impax or any of its Subsidiaries under, any such Impax Permit, except for any such conflicts, violations, breaches or defaults which have not had and would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. This Section 3.12 does not relate to Tax matters, which are the subject of Section 3.15 .
(b) Since January 1, 2014, (i) neither Impax nor any of its Subsidiaries has received any written notice from any Governmental Authority that alleges or relates to (A) any violation or noncompliance (or reflects that Impax or any of its Subsidiaries is under investigation or the subject of an inquiry by any such Governmental Authority for such alleged noncompliance) with any applicable Law or (B) any fine, assessment or cease and desist order, or the suspension, revocation or limitation or restriction of any Impax Permit and (ii) neither Impax nor any of its Subsidiaries has entered into any agreement or settlement with any Governmental Authority with respect to its alleged noncompliance with, or violation of, any applicable Law, except in each case in clauses (i) and (ii) above to the extent any such violation, noncompliance, fine, assessment, order, suspension, revocation, limitation or restriction has not had and would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
(c) Since January 1, 2014, Impax and each of its Subsidiaries have timely filed all regulatory reports, schedules, statements, documents, filings, submissions, forms, registrations and other documents, together with any amendments required to be made with respect thereto, that each was required to file with any Governmental Authority, including state health and regulatory authorities and any applicable federal regulatory authorities, and have timely paid all fees and assessments due and payable in connection therewith, except where the failure to make such filings or payments has not had and would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
(d) Impax and each of its officers and directors are in material compliance with, and have complied in all material respects with (i) the applicable provisions of the Sarbanes-Oxley Act of 2002 and the related rules and regulations promulgated under such act (“ Sarbanes-Oxley ”) or the Exchange Act and (ii) the applicable listing and corporate governance rules and regulations of the NASDAQ Global Select Market. Impax has previously disclosed to Amneal all of the information required to be disclosed by Impax and its officers and employees, including Impax’s Chief Executive Officer and Chief Financial Officer, to the Impax Board or any committee thereof pursuant to the certification requirements relating to annual reports on Form 10-K and quarterly reports on Form 10-Q.
(e) Impax has established and maintains a system of internal controls over financial reporting (as defined in Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Such internal controls provide reasonable assurance regarding the reliability of Impax’s financial reporting and the preparation of Impax’s financial statements for external purposes in accordance with GAAP. Since January 1, 2014, Impax’s principal executive officer and its principal financial officer have disclosed to Impax’s auditors and the audit committee of the Impax Board (A) all known significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect Impax’s ability to record, process, summarize and report financial information, and (B) any known fraud, whether or not material, that involves management or other employees who have a significant role in Impax’s internal controls and Impax has made available to Amneal copies of any such disclosure. Impax has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 of the Exchange Act) as required by Rule 13a-15 under the Exchange Act that are designed to ensure that material information relating to Impax and its consolidated Subsidiaries required to be included in reports filed under the Exchange Act is made known to Impax’s principal executive officer and its principal financial officer by others within those entities.
 
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 Section 3.13 FDA Regulatory Matters .
(a) Impax and each of its Subsidiaries is and has been since January 1, 2014, in compliance in all material respects with (i) all Healthcare Laws and (ii) all Healthcare Regulatory Authorizations, including all requirements of the FDA, DEA, and all other Healthcare Regulatory Authorities, that are applicable to Impax or its Subsidiaries, as applicable. The “ Healthcare Laws ” include: (i) the Federal Food, Drug, and Cosmetic Act and the regulations promulgated thereunder; (ii) the Controlled Substances Act and the regulations promulgated thereunder (the “ FFDCA ”); (iii) the U.S. Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, and the regulations promulgated thereunder and any state or non-U.S. counterpart thereof or other law or regulation the purpose of which is to protect the privacy of individuals; and (iv) all federal, state, local, and all foreign health care related fraud and abuse and physician sunshine act laws, including the U.S. Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et seq.), Sections 1320a-7, 1320a-7a, 1320a-7b and 1320a-7h of Title 42 of the United States Code and the regulations promulgated pursuant to such statutes; and (v) any other state or federal law, regulation, guidance document, manual provision, program memorandum, opinion letter, or other public issuance which regulates kickbacks, recordkeeping, claims process, documentation requirements, referrals, the hiring of employees or acquisition of services or supplies from those who have been excluded from government health care programs, quality, safety, privacy, security, licensure, or any other aspect of manufacturing and distributing drugs, biologics, or medical devices. As of the date hereof, neither Impax nor any of its Subsidiaries, nor their respective officers, directors or employees, or agents authorized to appear before any Healthcare Regulatory Authority for or on behalf of Impax or any of its Subsidiaries, is subject to, or has received written, or, to Impax’s Knowledge, oral notice or other communication of any pending or threatened claim, suit, proceeding, hearing, enforcement, audit, investigation, arbitration or other action alleging that any operation or activity of Impax or its Subsidiaries is in violation of any Healthcare Laws or otherwise related to the business of Impax or its Subsidiaries by or before any Healthcare Regulatory Authority, including any action (i) to suspend, revoke or withdraw a material Healthcare Regulatory Authorization or (ii) contesting the approval of, the uses of, or the labeling or promotion of, or otherwise alleging, in each case, any material violation of Law with respect to, any product or product candidate manufactured, distributed or marketed by or on behalf of Impax or its Subsidiaries.
(b) Impax and each of its Subsidiaries, as applicable, has held, or has held contractual rights to, all material Healthcare Regulatory Authorizations required for the marketing and approval of all products marketed by or on behalf of Impax or any of its Subsidiaries, and all such Healthcare Regulatory Authorizations are in full force and effect. As of the date hereof, neither Impax nor any of its Subsidiaries, nor their respective officers, directors or employees, or agents authorized to appear before any Healthcare Regulatory Authority for or on behalf of Impax or any of its Subsidiaries, as applicable, has received written or, to Impax’s Knowledge, oral notice or other communication of any material inaccuracy or material insufficiency of, or of any termination, suspension, rejection or denial of, any filing or application for any material Healthcare Regulatory Authorization that was not corrected or otherwise addressed in a subsequent filing. To Impax’s Knowledge, no event has occurred which allows, or after notice or lapse of time would allow, or would reasonably be expect to lead to, the revocation, withdrawal, termination, suspension, rejection or denial of any material Healthcare Regulatory Authorization (or any filing or application therefor) or result in any other impairment of the rights of the holder of any material Healthcare Regulatory Authorization (or any filing or application therefor).
(c) All material reports, documents, registrations, authorizations, claims and notices required to be filed, maintained, or furnished to any Healthcare Regulatory Authority, including all registrations and reports required to be filed with clinicaltrials.gov; clinical investigator financial disclosure obligations; registration and listing requirements set forth in 21 U.S.C. Section 360 and 21 C.F.R. Part 207; reporting requirements under the Physician Payments Sunshine Act (42 U.S.C. 1320a-7h, et seq.), and all similar state transparency requirements; drug price reporting; and adverse event reports, by Impax or any of its Subsidiaries have been so filed, maintained or furnished and were complete and correct in all material respects on the date filed (or were corrected in or supplemented by a subsequent filing).
 
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(d) The development, manufacture, labeling and storage, as applicable, of any drugs or products by Impax and each of its Subsidiaries has been since January 1, 2014, and is being conducted, in compliance in all material respects with all applicable Laws of the FDA, U.S. Customs and Border Protection (“ U.S. Customs ”), DEA and other Healthcare Regulatory Authorities, including the FDA’s current Good Laboratory Practices, Good Manufacturing Practices and Good Clinical Practices. For the purposes of this Agreement, (i) “ Good Laboratory Practices ” means the FDA’s standards for conducting non-clinical laboratory studies contained in 21 C.F.R. Part 58, (ii) “ Good Manufacturing Practices ” means the current good manufacturing practices for drugs and medical devices, including the regulations for drugs and finished pharmaceutical products contained in 21 C.F.R. Parts 210 and 211, respectively, and medical devices contained in 21 C.F.R. 820, and (iii) “ Good Clinical Practices ” means the FDA’s standards for the design, conduct, performance, monitoring, auditing, recording, analysis and reporting of clinical trials contained in 21 C.F.R. Parts 50, 54, 56 and 312, as applicable.
(e) Since January 1, 2014, neither Impax nor any of its Subsidiaries has (i) voluntarily or involuntarily initiated, conducted or issued, or caused to be initiated, conducted or issued, or (ii) received any notices, information request letters, correspondence, orders or other communication from any Healthcare Regulatory Authority issuing, requiring or causing any recalls, seizures, detentions, field notifications, field corrections, market withdrawals or replacements, warnings, “dear doctor” letters, investigator notices, safety alerts or other notice of action relating to an alleged lack of safety, efficacy, or regulatory compliance of, or enjoining manufacture or distribution of, any product or product candidate manufactured, distributed or marketed by or on behalf of Impax or any of its Subsidiaries and to Impax’s Knowledge no Healthcare Regulatory Authority and neither Impax nor any of its Subsidiaries is considering such action. Since January 1, 2014 until the date hereof, neither Impax nor any of its Subsidiaries has received any written or, to Impax’s Knowledge, oral notices, information request letters, correspondence, orders or other communications from any Healthcare Regulatory Authority regarding new safety information, postmarketing clinical trials or studies or risk evaluation and mitigation strategies asserting that labeling changes, postmarketing trials, studies, or other action will be required in order to ensure the safety of any products or product candidates.
(f) All studies, tests and clinical and pre-clinical trials conducted by or, the Knowledge of the Impax, on behalf of Impax or any of its Subsidiaries, or in which Impax or any of its Subsidiaries or their products or product candidates have participated were and, if still pending, have been and are being conducted in material compliance with all applicable Laws, including the applicable requirements of Good Laboratory Practices and Good Clinical Practices. Neither Impax nor any of its Subsidiaries has received any written or, to Impax’s Knowledge, oral notices, correspondence or other communication from any Healthcare Regulatory Authority requiring the termination or suspension of any ongoing or planned clinical trials conducted by, or, to Impax’s Knowledge, on behalf of, Impax or any of its Subsidiaries or the business currently conducted by any of them, or in which Impax or any of its Subsidiaries or their products or product candidates have participated.
(g) Since January 1, 2014, neither Impax nor any of its Subsidiaries has received any FDA Form 483, notice of adverse finding, warning letters, letters of admonition, untitled letters or other written or, to Impax’s Knowledge, oral correspondence from any Healthcare Regulatory Authority alleging or asserting material noncompliance with any Laws applicable to, or a lack of safety regarding, Impax’s or any of its Subsidiaries’ manufacturing practices any product or product candidate manufactured, distributed or marketed by or on behalf of Impax or any of its Subsidiaries. Neither Impax nor any of its Subsidiaries is subject to any material order of, obligation or commitment to, or settlement with, any Healthcare Regulatory Authority. To Impax’s Knowledge, no event has occurred which would reasonably be expect to lead to any material claim, suit, proceeding, hearing, enforcement, audit, investigation, inspection by any Healthcare Regulatory Authority or any FDA warning letter, untitled letter, or request or requirement to make changes to the products or procedures of Impax or its Subsidiaries that, if not complied with, would reasonably be expected to have an Impax Material Adverse Effect.
(h) Neither Impax nor any of its Subsidiaries, nor any of their respective officers, directors, employees, nor, to Impax’s Knowledge, any of their respective contractors, suppliers, agents, or other company or individual performing research or product-related work on behalf of Impax or any of its Subsidiaries, nor any other person
 
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described in 42 C.F.R. § 1001.1001(a)(1)(ii) is a party to, or bound by, any order, individual integrity agreement, monitoring agreement, deferred prosecution agreement, consent decree, settlement order, corporate integrity agreement or other similar form agreement with any Governmental Authority resulting from a failure, or alleged failure, to comply with any applicable Laws of the FDA, U.S. Customs, DEA, Centers for Medicare and Medicaid Services and other Healthcare Regulatory Authorities.
(i) Neither Impax nor any of its Subsidiaries or their products or product candidates are the subject of any pending or, to Impax’s Knowledge, threatened investigation by the FDA pursuant to its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” Final Policy set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto, or otherwise. Neither Impax nor any of its Subsidiaries, nor to Impax’s Knowledge, any of their respective officers, directors, employees, nor, to Impax’s Knowledge, any of their respective contractors, suppliers, agents, or other company or individual performing research or product-related work on behalf of Impax or any of its Subsidiaries, nor any other person described in 42 C.F.R. § 1001.1001(a)(1)(ii), (i) has committed any act, made any untrue statement of material fact or failed to make any statement that, at the time such act, statement or disclosure was made, would reasonably be expected to provide a basis for the FDA to invoke its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” Final Policy (ii) has been charged with any conduct for which debarment is mandated by 21 U.S.C. § 335a or any criminal offense relating to the delivery of an item or service under any federal health care program (iii) has been charged with or been convicted of any crime for which exclusion is mandated or permitted from the federal health care programs under Section 1128 of the Social Security Act of 1935, or any similar Law; (iv) is or has been debarred, excluded or suspended from participation in any federal health care program; (v) has had a civil monetary penalty assessed against it under Section 1128A of the Social Security Act; (vi) is or has been listed on the General Services Administration published list of parties excluded from federal procurement programs and non-procurement programs; or (vii) has been debarred by any federal or international agency.
 Section 3.14 Employee Benefit Plans .
(a) Section 3.14(a) of the Impax Disclosure Letter sets forth a true and complete list of all material “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”)), and all other material employee benefit plans, programs, agreements, policies, arrangements or payroll practices, including with respect to bonus, employment, consulting or other compensation, collective bargaining, company stock, incentive and other equity or equity-based compensation, or deferred compensation, retirement, pension, change in control, termination or severance plans or arrangements, stock purchase, severance pay, sick leave, vacation pay, salary continuation for disability, hospitalization, medical insurance, life insurance and scholarship, in each case, (i) that are sponsored or maintained by Impax or any of its Subsidiaries, (ii) to which Impax or any of its Subsidiaries contributes or is obligated to contribute to, or in respect of which any potential liability is borne by Impax or any of its Subsidiaries, (iii) under which for current or former employees of Impax or any of its Subsidiaries (the “ Impax Employees ”) or directors or former directors thereof are eligible to participate or receive benefits or (iv) to which Impax or any of its Subsidiaries is a party (collectively, the “ Impax Plans ”).
(b) True and complete copies of the following documents, with respect to each of the Impax Plans have, prior to the date of this Agreement, been delivered to Amneal by Impax, to the extent applicable: (i) the plan document (or a written summary if the Impax Plan is not reduced to writing), any material amendments thereto and related trust documents, insurance contracts or other funding arrangements, in each case, as currently in effect; (ii) the most recent Form 5500 and all schedules attached thereto filed with respect to such Impax Plan, and the most recent actuarial report and financial statements, if any, prepared with respect to such Impax Plan; and (iii) all material communications received from any Governmental Authority relating to Impax Plans in the last three (3) years.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect, the Impax Plans have been maintained in accordance with their terms and with all provisions of
 
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ERISA, the Code and other applicable Law, and neither Impax (or any of its Subsidiaries) nor, to the Knowledge of Impax, any “party in interest” or “disqualified person” with respect to the Impax Plans has engaged in a non-exempt “prohibited transaction” within the meaning of Section 4975 of the Code or Section 406 of ERISA. Neither Impax nor any of its Subsidiaries has any material liability for breach of fiduciary duty or any other failure to act or comply with applicable Law in connection with the administration or investment of the assets of any Impax Plan.
(d) Each of the Impax Plans that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be qualified under Section 401(a) of the Code. To the Knowledge of Impax, nothing has occurred that would reasonably be expected to adversely affect the qualified status of any such Impax Plan or the Tax exemption of any trust related thereto.
(e) None of Impax, its Subsidiaries or, except as would not reasonably be expected to result in material liability to Impax, any trade or business (whether or not incorporated) that is treated as a single employer with any of them under Sections 414(b), (c), (m) or (o) of the Code (a “ Impax ERISA Affiliate ”) (or that was so treated at any time during the six (6) years immediately prior to the date of this Agreement) has ever had (or, in the case of any former Impax ERISA Affiliate during the last six (6) years, had at the time it was an Impax ERISA Affiliate) any current or contingent liability with respect to (i) a plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code or (ii) any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) (a “ Multiemployer Plan ”).
(f) All contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Impax Plans (including workers compensation) or by Law (without regard to any waivers granted under Section 412 of the Code), to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension), except where the failure to do so has not had and would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
(g) There are no pending actions, claims or lawsuits that have been asserted or instituted against the Impax Plans, the assets of any of the trusts under the Impax Plans or the sponsor or administrator of any of the Impax Plans, or, to the Knowledge of Impax, against any fiduciary of the Impax Plans with respect to the operation of any of the Impax Plans (other than routine benefit claims), nor does Impax have any Knowledge of any threatened action, claim or lawsuit, other than such actions, claims or lawsuits that have not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
(h) None of the Impax Plans provides for post-employment life or health insurance, benefits or coverage for any participant or any beneficiary of a participant, except as may be required under applicable Law, including Section 4980B of the Code (“ COBRA ”) and which are provided at the sole expense of the participant or the participant’s beneficiary.
(i) Except as otherwise specifically contemplated by the terms of this Agreement, neither the execution and delivery of this Agreement nor the consummation of the Transactions (either by themselves or when combined with any other event), will (i) result in any payment becoming due to any Impax Employee, (ii) increase any benefits otherwise payable under any Impax Plan, (iii) result in the acceleration of the time of payment or vesting of any such benefits under any Impax Plan, (iv) result in any obligation to fund any trust or other arrangement with respect to compensation or benefits under an Impax Plan, (v) result in any “excess parachute payment” (within the meaning of Section 280G of the Code) becoming due to any current or former employee or other individual service provider of Impax or any of its Subsidiaries or (vi) result in any breach or violation of or default under or limit Holdco’s, Amneal’s or Impax’s right to amend, modify or terminate any Impax Plan.
(j) Except as would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect, each Impax Plan, and any award thereunder, that is or forms part of a “nonqualified deferred
 
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compensation plan” within the meaning of Section 409A of the Code is in documentary compliance with, and Impax and its Subsidiaries have, since January 1, 2014, complied in practice and operation with, all applicable requirements of Section 409A of the Code. Neither Impax nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any Impax Employee for any Tax incurred by such Impax Employee, including under Section 409A or 4999 of the Code, or any interest or penalty related thereto.
(k) As of the date hereof, no Impax Employee who is an officer for purposes of Section 16 of the Exchange Act has given notice of intent to terminate his or her employment with Impax or any of its Subsidiaries.
(l) Except as would not, individually or in the aggregate, reasonably be expected to result in any material liability to Impax, (i) each Impax Plan which is maintained primarily for the benefit of employees working outside of the United States (each, a “ Non-U.S. Impax Plan ”) has been established, administered, operated, funded, invested and maintained in compliance with the applicable Laws relating to such plans in the jurisdictions in which such Impax Plan is present or operates and, to the extent relevant, the United States, (ii) all required contributions and premiums to be made under each Non-U.S. Impax Plan have been made with respect thereto (whether pursuant to the terms of such Non-U.S. Impax Plan or by applicable Law) and (iii) as of the date of this Agreement, there is no pending or, to the knowledge of Impax, threatened litigation relating to any Non-U.S. Impax Plan.
 Section 3.15 Taxes .
(a) Impax and each of its Subsidiaries have timely filed with the appropriate taxing authorities, or has caused to be timely filed on their behalf (taking into account any valid extension of time within which to file), all income, franchise and other Tax Returns required to be filed by them, and all such filed Tax Returns are true, correct and complete in all material respects. All Taxes (regardless of having been shown as due on any Tax Return) have been timely paid in full, or an adequate reserve has been established therefor in the financial statements of Impax and its Subsidiaries (in accordance with GAAP) for all periods covered by such financial statements.
(b) Neither Impax nor any of its Subsidiaries is a party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement, or any other Contract, obligation, understanding or agreement to pay the Taxes of another person or to pay the Taxes with respect to transactions relating to any other person (other than Impax and its Subsidiaries) other than commercial agreements entered into in the ordinary course of business no principal purpose of which is related to Taxes.
(c) Neither Impax nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify under Section 355 of the Code for any years open under the relevant statute of limitations.
(d) Neither Impax nor any of its Subsidiaries (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Impax or a wholly owned Subsidiary of Impax) or (ii) has any liability for the Taxes of any person (other than Impax or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise.
(e) To the Knowledge of Impax, no audits, investigations or other administrative or court proceedings, that could have, individually or in the aggregate, an Impax Material Adverse Effect, are pending with any taxing authority or court with respect to any material Taxes of Impax or any of its Subsidiaries, and no written notice thereof has been received by Impax or any of its Subsidiaries. Neither Impax nor any of its Subsidiaries has any outstanding agreements, waivers or arrangements extending the statutory period of limitations applicable to any claim for, or the period for the collection or assessment of, any federal, state, local or foreign income, franchise or other material Taxes.
 
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(f) No written claim that could give rise to material Taxes has been made within the previous three (3) years by a taxing authority in a jurisdiction where Impax or any of its Subsidiaries does not file Tax Returns that Impax or any of its Subsidiaries is or may be subject to taxation in that jurisdiction.
(g) No Liens for Taxes exist with respect to any properties or other assets of Impax or any of its Subsidiaries, except for statutory Liens for current Taxes not yet delinquent.
(h) All material Taxes required to be withheld by Impax or any of its Subsidiaries (including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446 and 3402 of the Code or similar provision under any foreign Laws) have been withheld, have been or will be duly and timely paid to the proper taxing authority, and have been or will be reported pursuant to applicable Tax information reporting Laws.
(i) Neither Impax nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Law) executed on or prior to the Closing Date; (iii) installment sale or open transaction disposition made on or prior to the Closing Date; (iv) prepaid amount received on or prior to the Closing Date; or (v) cancellation of indebtedness income deferred pursuant to Section 108(i) of the Code.
(j) There is no power of attorney given by or binding upon Impax or any of its Subsidiaries with respect to Taxes for any period for which the applicable statute of limitations (including any waivers and extensions) has not expired as of the date of this Agreement.
(k) Neither Impax nor any of its Subsidiaries has been a party to any “listed transaction” as defined in Treasury Regulation Section 1.6011-4(b)(2).
(l) Neither Impax nor any of its Subsidiaries is aware of any fact, or has taken or agreed to take any action that would reasonably be expected to prevent or impede (i) the Impax Merger and the LLC Conversion, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code and (ii) the Contribution from qualifying as an exchange to which Section 721(a) of the Code applies.
 Section 3.16 Intellectual Property .
(a) Impax, or one of its Subsidiaries, owns or possesses all licenses or other legal rights to use, sell or license all material Intellectual Property held for use or used in the business of Impax or its Subsidiaries as presently conducted (“ Impax Intellectual Property ”) except for any failures to own or possess as have not had and would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect and except with respect to any Intellectual Property which is the subject of a Paragraph IV Proceeding; provided , that the representation and warranty in this Section 3.16(a) shall not be construed to be a representation or warranty with respect to non-infringement.
(b) Section 3.16(b) of the Impax Disclosure Letter identifies as of the date hereof: (i) each item of Impax Intellectual Property that is registered, filed, or issued under the authority of any Governmental Authority and in which Impax or any of its Subsidiaries has or purports to have an exclusive license or an ownership interest of any nature (whether exclusively, jointly with another person or otherwise) (“ Registered Impax Intellectual Property ”); (ii) the jurisdiction in which such item of Registered Impax Intellectual Property has been registered or filed and the applicable registration or application serial number; and (iii) any other person that, to the Knowledge of Impax, has an ownership interest in such item of Registered Impax Intellectual Property and the nature of such ownership interest.
(c) As of the date of this Agreement, the title in each item of Registered Impax Intellectual Property in which Impax or any of its Subsidiaries has an ownership interest is properly recorded in the name of Impax and/
 
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or its Subsidiaries. Each named inventor on each item of Registered Impax Intellectual Property constituting a patent or a patent application has duly executed a valid assignment of all applicable right, title and interest in and to such patent or patent application to Impax or one of its Subsidiaries (in each case where such assignment is required by applicable law to perfect Impax or its Subsidiaries rights in such patent or patent application). All such assignments have been duly recorded with the United States Patent and Trademark Office and all relevant foreign patent offices.
(d) Within the past three (3) years of the date hereof, neither Impax nor any of its Subsidiaries has received any written notice of any claim against any of them challenging the ownership, validity or enforceability of any of the Registered Impax Intellectual Property, other than any notice from the applicable examiner of any pending application therefor, received in the ordinary course of prosecution.
(e) With respect to each item of Registered Impax Intellectual Property owned by Impax or any of its Subsidiaries: (i) to Impax’s Knowledge, all such Registered Impax Intellectual Property is valid and enforceable; (ii) all such Registered Impax Intellectual Property is subsisting (or, in the case of applications, applied for), which shall include being currently in compliance with applicable Laws as to the payment of all necessary registration, maintenance, annuities, renewal, filing, examination, and other related fees and proofs of working or use, and, in the case of trademarks, the post-registration filing of affidavits of use and incontestability and renewal applications; and (iii) all necessary documents, recordations and certificates in connection with such Registered Impax Intellectual Property previously or currently required to be filed have been filed with the relevant patent, copyright, trademark or other authorities in all jurisdictions where such fees are previously or currently due, for the purposes of prosecuting and maintaining and perfecting such Registered Impax Intellectual Property except, in each case, to the extent that failure to do so can be cured or otherwise would not result in permanent abandonment (i.e., without the possibility of revival or reinstatement).
(f) Certain Intellectual Property Proceedings .
(i) To the Knowledge of Impax, no claims or threat of claims within the three (3) years prior to the date of this Agreement, have been asserted in writing by any third party against Impax or any of its Subsidiaries (A) related to the use in the conduct of the businesses of Impax and its Subsidiaries of the Impax Intellectual Property or (B) alleging that the conduct of the business of Impax and its Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property rights of any third party but excluding any infringement of any Intellectual Property alleged pursuant to a Paragraph IV Proceeding or otherwise in connection with filing a Paragraph IV Certification Notice.
(ii) To the Knowledge of Impax, the conduct of the businesses of Impax and its Subsidiaries does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party, but excluding any (A) infringement of any Intellectual Property under 35 U.S.C. § 271(e)(2) caused by or in connection with the filing of any abbreviated new drug application for a product filed with the FDA pursuant to §505(j) of the FFDCA or by the filing of any new drug application for a product filed with the FDA pursuant to §505(b)(2) of the FFDCA and (B) any infringement of any Intellectual Property alleged pursuant to a Paragraph IV Proceeding or otherwise in connection with filing a Paragraph IV Certification Notice. The representations set forth in this Section 3.16(f) are the only representations given by Amneal with respect to non-infringement of Intellectual Property.
(iii) Section 3.16(f)(iii) of the Impax Disclosure Letter identifies as of the date hereof all (A) pending Paragraph IV Proceedings to which Impax or any of its Subsidiaries is a party, (B) Paragraph IV Certification Notices dated within the three (3) year period ending on the date hereof made by or on behalf of the Impax or any of its Subsidiaries and (C) pending petitions for inter partes review under 35 U.S.C. § 311, et, seq., in which Impax or any of its Subsidiaries is identified as a real party in interest.
(iv) To the Knowledge of Impax, no third party is infringing, misappropriating or otherwise violating any Impax Intellectual Property.
 
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(v) No unresolved claims or threat of claims within the three (3) years prior to the date of this Agreement, have been asserted in writing by Impax or any of its Subsidiaries against any third party with respect to the infringement or the alleged infringement of any Impax Intellectual Property.
(g) Neither Impax nor any of its Subsidiaries is bound by, and none of the material Intellectual Property purported to be owned or to its Knowledge which is exclusively licensed by Impax or any of its Subsidiaries, is subject to, any Contract containing any covenant or other provision that materially limits or restricts the ability of Impax or any of its Subsidiaries to use, exploit, assert, enforce, transfer or license any rights in any such Intellectual Property anywhere in the world (excluding in the case of any Intellectual Property exclusively licensed to Impax or any of its Subsidiaries, such license).
(h) Upon the termination of any Contract wherein Impax and/or any of its Subsidiaries has agreed to manufacture or supply a product or active pharmaceutical ingredient for a third party, Impax and/or its Subsidiaries shall retain and continue to have the right to use all Intellectual Property, data, bioavailability studies, drug master files, dossiers and regulatory approvals granted by any Healthcare Regulatory Authority which are required or necessary to manufacture said product or active pharmaceutical ingredient either for itself or another person without restriction or obligation to the third party of such terminated Contract.
(i) The consummation of the Transactions will not result in the loss or impairment of Impax’s or its Subsidiaries’ rights to own or use any of the Impax Intellectual Property or obligate them to pay any royalties or other amounts to any third party in excess of the amounts payable by them prior to the Closing, nor will such consummation require the consent of any third party in respect of any Impax Intellectual Property, except as have not had and would not reasonably be expected to have, individually or in the aggregate, material direct or indirect costs or liabilities to, or other material direct or indirect negative impact on, Impax and its Subsidiaries, taken as a whole.
(j) Neither Impax nor any of its Subsidiaries has entered into any Contract which, upon the consummation of the Transactions will, to the Knowledge of Impax, result in the loss or impairment of Holdco’s or any of its Subsidiaries’ ability (A) to engage in any line of business or conduct business in any geographic area, (B) to distribute or offer any products or services or (C) to compete with any other person in any line of business or in any geographic area or levying a fine, charge or other payment for doing any of the foregoing, in each case of (A)-(C), with respect to any products or services currently marketed by Amneal or any of its Subsidiaries as of the date of this Agreement.
(k) Impax and its Subsidiaries have taken reasonable measures to protect the confidentiality of their Trade Secrets.
(l) During the three (3) years prior to the date of this Agreement, (i) to the Knowledge of Impax, there have been no material security breaches in Impax’s or its Subsidiaries’ information technology systems wherein any third party has gained unauthorized access to any of Impax’s or of any of its Subsidiaries’ confidential and/or proprietary information and (ii) there have been no disruptions in any of Impax’s or its Subsidiaries’ information technology systems that materially adversely affected Impax’s or its Subsidiaries’ business or operations. Impax and its Subsidiaries have evaluated their security, disaster recovery and backup needs and have implemented plans and systems designed to reasonably address their assessment of risk.
(m) Impax and each of its Subsidiaries is and has been during the past three (3) years in compliance with its applicable privacy policies and obligations to third parties relating to any processing of personal information except for any failure in compliance has not had and would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. To Impax’s Knowledge, there has not been any audit, investigation or other Litigation Proceeding initiated by any Governmental Authority, regarding the processing of personal information by Impax or any of its Subsidiaries.
 
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 Section 3.17 Real Property .
(a) Section 3.17(a)(i) of the Impax Disclosure Letter contains a complete and accurate list by property, city, state and country of all interests in real property currently owned in fee by Impax and any of its Subsidiaries (the “ Impax Owned Real Property ”). Section 3.17(a)(ii) of the Impax Disclosure Letter contains (i) a complete and accurate list, by property, city, state and country, of all real property currently leased (as lessee), licensed (as licensee) or subleased (as sublessee) by Impax or any of its Subsidiaries (the “ Impax Leased Real Property ” and, together with the Impax Owned Real Property, collectively, the “ Impax Real Property ”), and (ii) a description of each Impax Lease and all amendments, modifications and supplements thereto.
(b) The Impax Owned Real Property, together with the Impax Leased Real Property, is sufficient in all material respects for the operation of the business currently conducted by Impax and its Subsidiaries in the ordinary course of business, and Impax and each of its Subsidiaries, as applicable, enjoys peaceful and undisturbed possession of the Impax Owned Real Property and the Impax Leased Real Property sufficient for current business and operational use requirements.
(c) Impax and/or its Subsidiaries, as applicable, has good and valid fee simple title to all Impax Owned Real Property, free and clear of any Liens other than Permitted Liens. Impax has made available to Amneal accurate and complete copies of all title insurance policies, title reports and surveys for the Impax Real Property in possession or control of Impax or any of its Subsidiaries. To the Knowledge of Impax, all buildings, plants, structures and other improvements that form a part of the Impax Real Property lie wholly within the boundaries of the land owned or leased by Impax or its Subsidiaries, as applicable, and do not materially encroach upon the property of, or otherwise materially conflict with the property rights of, any other person.
(d) None of the Impax Owned Real Property is subject to any lease, license, or sublease or any material use or occupancy agreement entered into outside of the ordinary course of business pursuant to which Impax or any of its Subsidiaries has granted any third party or third parties the right to use or occupancy of such Impax Owned Real Property (other than Permitted Liens or to Impax or any of its Subsidiaries).
(e) To Impax’s Knowledge, (i) all improvements on the Impax Real Property are structurally sound and in working order sufficient for their normal operation in the manner currently being operated, normal wear and tear excepted and (ii) the utilities servicing the Impax Real Property are adequate for the operation of each facility as it is currently being operated.
(f) The Impax Owned Real Property, and the current use and occupancy thereof, is in material compliance with (i) all applicable building, zoning, subdivision, health and safety and other Laws pertaining to the ownership, construction, use or occupancy of real property, including the Americans with Disabilities Act of 1990, as amended, (ii) all easements, covenants, conditions, restrictions or similar provision in any instrument of record or other unrecorded agreement affecting such property and (iii) any requirements of any Governmental Authority in connection with (A) such Governmental Authority’s consents and/or (B) any entitlements or benefits extended by such Governmental Authority, in both cases, in relation to the use and development of the real property and operation of the facilities thereon. To Impax’s Knowledge, each Impax Lease that requires registration with any Governmental Authority has been duly registered.
(g) To Impax’s Knowledge, no eminent domain, condemnation or other similar proceeding is pending or threatened affecting any of the Impax Owned Real Property, Impax Leased Real Property or any part thereof.
(h) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Impax Owned Real Property or any portion thereof or interest therein.
(i) Each contract, agreement or arrangement (including any option to purchase contained therein) pursuant to which Impax or any of its Subsidiaries leases, licenses or subleases any Impax Leased Real Property (each, an “ Impax Lease ” and, collectively, the “ Impax Leases ”) is a written agreement in full force and effect, and is valid, binding and enforceable, subject to proper authorization and execution of each Impax Lease by the other parties
 
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thereto and except to the extent that enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditors’ right generally and by general equity principles. Impax has made available to Amneal (in each case, together with all material amendments, assignments, modifications, supplements, waivers or other changes thereto) true and complete copies of all Impax Leases and, in the case of any oral Impax Lease, a written summary of the material terms of such Impax Lease, to which Impax or any of its Subsidiaries is a party. None of Impax or any of its Subsidiaries subleases (as sublessor), licenses (as licensor) or grants the use or occupancy of, to any other person (other than business invitees in the ordinary course of business), any portion of the Impax Leased Real Property. Except for Permitted Liens, none of Impax or any of its Subsidiaries has collaterally assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in any Impax Lease.
(j) There exists no default or event of default on the part of Impax or any of its Subsidiaries under any Impax Leases or, to Impax’s Knowledge, any other party thereto, in each case that has not been cured and to Impax’s Knowledge, no condition exists that with notice or lapse of time would constitute a default by Impax or any of its Subsidiaries or any other party thereunder, in each case that has not been cured or that has not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. None of Impax or any of its Subsidiaries has received written notice of any default or event of default under any Impax Lease, other than any default or event of default that has been cured or that has not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
(k) The current use and operation of the Impax Leased Real Property in the ordinary course of business of Impax and its Subsidiaries does not violate any Law in any material respect.
(l) None of Impax or any of its Subsidiaries is a party to any contract, agreement or arrangement relating to the future acquisition or development of any Impax Real Property by any third party or the acquisition of any other real property by Impax or any of its Subsidiaries.
 Section 3.18 Environmental Matters . Except as has not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect, (a) no written notice, notification, demand, request for information, citation, summons, complaint or order has been received by, and no action, claim, suit, proceeding or review or investigation is pending or, to the Knowledge of Impax, threatened by any person against, Impax, any of its Subsidiaries or, to the Knowledge of Impax, any person whose liability Impax or any of its Subsidiaries has or may have retained or assumed either contractually or by operation of Law with respect to any matters relating to or arising out of any Environmental Law, (b) Impax and its Subsidiaries have at all times been and are presently in compliance with all Environmental Laws, including possessing all permits, authorizations, licenses, exemptions and other governmental authorizations required under applicable Environmental Laws for its operations as conducted at such time, (c) Impax and its Subsidiaries do not have any Environmental Liabilities and, to the Knowledge of Impax, there are no facts, circumstances or conditions relating to, arising from, associated with or attributable to either (i) any real property currently or formerly owned, operated or leased by Impax or its Subsidiaries or operations thereon, (ii) Impax or its Subsidiaries current or former conduct of its business or operations, including any Releases of Hazardous Materials or arrangement for disposal or Release at any location, or (iii) any person whose liability Impax or any of its Subsidiaries has or may have retained or assumed either contractually or by operation of Law that would, in any such case, reasonably be expected to result in Environmental Liabilities and (d) with respect to any real property currently owned or leased by Impax or its Subsidiaries or, to the Knowledge of Impax, formerly owned or leased by Impax or its Subsidiaries, there have been no Releases by Impax or any of its Subsidiaries, or to the Knowledge of Impax, by any other person, of Hazardous Materials that have resulted or are reasonably likely to result in a claim against Impax or its Subsidiaries.
 Section 3.19 Labor Matters . No labor strike, work slowdown, work stoppage, lockout or other concerted labor action or dispute involving the employees of Impax or any of its Subsidiaries is pending, or to the Knowledge of Impax, threatened against or affecting Impax or any of its Subsidiaries and, since January 1, 2014,
 
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there has not been any such action. Neither Impax nor any of its Subsidiaries is party to or bound by any collective bargaining or similar agreement with any labor organization or any work rules or practices agreed to with any labor organization applicable to employees of Impax or any of its Subsidiaries, and no collective bargaining or similar agreement is currently being negotiated by Impax or any of its Subsidiaries. Except as has not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect, each of Impax and its Subsidiaries is, and has been since January 1, 2014, in compliance with all applicable Laws respecting labor, employment and employment practices, terms and conditions of employment, health and safety and wages and hours. Neither Impax nor any of its Subsidiaries has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder (the “WARN Act”) or any similar state or local Law that remains unsatisfied.
 Section 3.20 Insurance . Section 3.20(a) of the Impax Disclosure Letter sets forth each insurance policy (including policies providing casualty, liability, medical and workers compensation coverage) to which Impax or any Subsidiary is currently a party (the “ Impax Policies ”). All Impax Policies are in full force and effect, and all premiums that are due and payable with respect thereto covering all periods up to and including the Closing Date have been paid, except as have not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. Since January 1, 2014, no notice of cancellation or termination has been received with respect to any Impax Policies, except for such cancellations or terminations which have not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. Since January 1, 2014, each of Impax and its Subsidiaries has been continuously insured with recognized insurers or has self-insured, in each case in such amounts and with respect to such risks and losses as are required by Law and any Contract to which it is a party and as are customary for companies in the United States conducting the businesses conducted by Impax and its Subsidiaries, except where such failure has not had and would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. Section 3.20(b) of the Impax Disclosure Letter sets forth the premium paid by Impax and its Subsidiaries for directors and officers liability insurance for its last full policy year.
 Section 3.21 Prohibited Persons .
(a) Neither Impax nor any of its Subsidiaries nor, to the Knowledge of Impax, any of its brokers or agents acting or benefiting in any capacity in connection with the Transactions or Ancillary Transactions is a Prohibited Person.
(b) Neither Impax nor any of its Subsidiaries nor, to the Knowledge of Impax, any of its brokers or agents acting or benefiting in any capacity in connection with the Transactions or Ancillary Transactions (i) has conducted or will conduct any business or has engaged or will engage in any transaction or dealing with any Prohibited Person, including making or receiving any contribution of funds, goods or services to or for the benefit of a Prohibited Person; (ii) has dealt or will deal in, or has otherwise engaged or will engage in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order; or (iii) has engaged or will engage in or has conspired or will conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the requirements or prohibitions set forth in the Executive Order or the USA PATRIOT Act.
(c) Neither Impax nor any of its Subsidiaries nor, to the Knowledge of Impax, any of its brokers or agents has in the three (3) years prior to the date of this Agreement, in connection with the business of Impax or any of its Subsidiaries, taken any action in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “ FCPA ”), the United Kingdom Bribery Act 2010, the Organization for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related implementing legislation, or any anti-bribery or anti-corruption related provisions in criminal and anti-competition Laws and/or anti-bribery, anti-corruption and/or anti-money laundering Laws of any jurisdiction in which such person operates (collectively, “ Anti-Corruption Laws ”).
 
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(d) Neither Impax nor any of its Subsidiaries nor, to the Knowledge of Impax, any of its brokers or agents, is, or in the three (3) years prior to the date of this Agreement has been, subject to any actual, pending, or threatened civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Authority, involving Impax or any of its Subsidiaries in any way relating to any applicable Anti-Corruption Laws, including the FCPA.
 Section 3.22 Transactions with Related Parties . Except with respect to the Impax Plans, since January 1, 2014, there has been no transaction, or series of similar transactions, agreements, arrangements or understandings, nor are there any currently proposed transactions, or series of similar transactions, agreements, arrangements or understandings to which Impax or any of its Subsidiaries was or is to be a party, that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act that have not been so disclosed in the Impax SEC Documents.
 Section 3.23 Brokers and Other Advisors . No broker, investment banker, financial advisor or other person, other than Morgan Stanley & Co. LLC (“ Morgan Stanley ”), the fees and expenses of which will be paid by Impax in accordance with Impax’s agreements with such firms (true and complete copies of which have heretofore been made available to Amneal), is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses, in connection with the Transactions based upon arrangements made by or on behalf of Impax or its Subsidiaries.
 Section 3.24 Opinion of Financial Advisor . The Impax Board has received the opinion of Morgan Stanley to the effect that, as of the date of such opinion and based on and subject to the various assumptions, procedures, matters, qualifications and limitations on the scope of the review undertaken by Morgan Stanley as set forth therein, the consideration to be received by the holders of Impax Common Stock (other than Cancelled Shares) pursuant to this Agreement is fair from a financial point of view to such holders of Impax Common Stock, and a complete copy of such written opinion will be made available to Amneal, solely for informational purposes, as soon as practicable after the date of this Agreement.
 Section 3.25 State Takeover Statutes . Assuming the accuracy of the representations and warranties of Amneal contained in this Agreement and the Ancillary Agreements, no “business combination,” “fair price,” “moratorium,” “control share acquisition” or similar anti-takeover statute or regulation (other than Section 203 of the DGCL) is applicable to Impax, the shares of Impax Common Stock or the Transactions. The Impax Board has taken all necessary actions so that the restrictions on business combinations set forth in Section 203 of the DGCL are not applicable to this Agreement, the Ancillary Agreements, the Transactions or the Ancillary Transactions.
 Section 3.26 No Rights Agreement . There is no stockholder rights plan, “poison pill,” anti-takeover plan or other similar device in effect to which Impax is a party or by which it is otherwise bound.
 Section 3.27 Requisite Stockholder Approval . The only vote of holders of any class or series of Impax Common Stock or other equity interest of Impax necessary to approve the Transactions is the adoption of this Agreement by the holders of a majority of the Impax Common Stock outstanding and entitled to vote thereon (the “ Impax Stockholder Approval ”). No other vote of the holders of Impax Common Stock or any other equity interests of Impax is necessary to consummate the Transactions.
 Section 3.28 Holdco . Holdco has been formed solely for the purpose of engaging in the Transactions and the Ancillary Transactions contemplated hereby and, prior to the Closing, Holdco will not have engaged in any other business activities other than incidental to the Transactions and the Ancillary Transactions contemplated hereby and will have incurred no liabilities or obligations other than in relation to the Transactions and the Ancillary Transactions contemplated by this Agreement.
 
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 Section 3.29 Exclusivity of Representations; No Limitation of Other Representations . The representations and warranties made by Impax in this Article III are the exclusive representations and warranties made by Impax and its Subsidiaries. Impax hereby acknowledges that neither Impax nor any of its Subsidiaries, nor any of their respective equityholders or Representatives, nor any other person, has made or is making any other express or implied representation or warranty with respect to Impax and its Subsidiaries or any of their respective businesses, operations, assets or liabilities, including with respect to any information provided or made available to Amneal or any of its Representatives, including in certain “data rooms,” management presentations or other information provided or made available to Amneal or its Representatives in anticipation or contemplation of any of the Transactions contemplated hereby. Furthermore, in connection with the due diligence investigation of Impax, its Subsidiaries and their business and operations by and on behalf of Amneal and its Representatives, such persons have received and may continue to receive certain estimates, projections, forecasts and other forward-looking information, as well as certain business plan information, regarding Impax, its Subsidiaries and their business and operations. Amneal hereby acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, forecasts and other forward-looking statements, as well as in such business plans, that Amneal is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts and other forward-looking information, as well as such business plans, so furnished to it (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, forward-looking information or business plans), and that no representation or warranty is being made with respect thereto. Nothing in any representation or warranty in this Agreement shall in any way limit or restrict the scope, applicability or meaning of any other representation or warranty made by Impax in this Agreement.
 ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AMNEAL
Except as set forth in the disclosure letter delivered by Amneal to Impax prior to the execution of this Agreement (the “ Amneal Disclosure Letter ”), Amneal represents and warrants to Impax as follows:
 Section 4.01 Organization, Standing and Corporate Power . Each of Amneal and the Amneal Material Subsidiaries is an entity duly organized, validly existing and in good standing (except to the extent the “good standing” concept is not applicable in any relevant jurisdiction) under the Laws of the jurisdiction in which it is formed and has all requisite corporate, limited liability company or other entity power and authority to carry on its business as now being conducted. Each other Subsidiary of Amneal is an entity duly organized, validly existing and in good standing (except to the extent the “good standing” concept is not applicable in any relevant jurisdiction) under the Laws of the jurisdiction in which it is formed and has all requisite limited liability company or other entity power and authority to carry on its business as now being conducted, except to the extent that any failure to be so organized, validly existing and in good standing has not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. Amneal and each of its Subsidiaries is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed has not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. Amneal has, prior to the date hereof, made available to Impax a true and complete copy of the certificate of formation of Amneal, the Amneal LLC Operating Agreement and the charter and bylaws (or comparable organizational documents) of the Amneal Material Subsidiaries, in each case as amended to the date of this Agreement. There has been no breach by Amneal of the Amneal LLC Operating Agreement or the Amended and Restated Limited Liability Company Agreement for Amneal Pharmaceuticals LLC, dated as of July 1, 2011. Since May 1, 2015, no provision of the Amneal LLC Operating Agreement has been amended, modified or waived.
 Section 4.02 Subsidiaries . Section 4.02 of the Amneal Disclosure Letter lists all the Subsidiaries of Amneal and, for each such Subsidiary, the state of formation and each jurisdiction in which such Subsidiary is qualified or licensed to do business. Except for Permitted Liens, all the outstanding shares of capital stock of, or other
 
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equity interests in, each such Subsidiary have been validly issued and are fully paid and nonassessable and are owned directly or indirectly by Amneal free and clear of any Liens other than Permitted Liens and Liens pursuant to existing financing arrangements. Except for the capital stock or other equity or voting interests of its Subsidiaries, Amneal does not own, directly or indirectly, any capital stock or other equity or voting interests in any person.
 Section 4.03 Capital Structure .
(a) Section 4.03(a) of the Amneal Disclosure Letter sets forth, as of the date of this Agreement, each of the Existing Amneal Members and lists the Amneal LLC Interests owned by each such Existing Amneal Member. Except the Amneal LLC Interests owned by the Existing Amneal Members, as of the date of this Agreement, there are no issued or outstanding limited liability company interests or other equity interests in Amneal.
(b) There are no outstanding stock appreciation rights, rights to receive Amneal LLC Interests on a deferred basis or other rights that are linked to the value of Amneal LLC Interests granted under the Amneal Plans. All outstanding Amneal LLC Interests are, and all Amneal LLC Interests which may be issued pursuant to the Amneal Plans will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.
(c) Except as set forth above in Section 4.03(a) , there are no bonds, debentures, notes or other indebtedness of Amneal having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which the Existing Amneal Members may vote. Except as set forth above in Section 4.03(a) , (i) there are not issued, reserved for issuance or outstanding (A) any securities of Amneal or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or voting securities of Amneal or any of its Subsidiaries or (B) any warrants, calls, options or other rights to acquire from Amneal or any of its Subsidiaries, or any obligation of Amneal or any of its Subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or voting securities of Amneal or any of its Subsidiaries and (ii) there are not any outstanding obligations of Amneal or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, any such securities. Neither Amneal nor any of its Subsidiaries is a party to any voting agreement with respect to the voting of any such securities.
 Section 4.04 Authority; Noncontravention .
(a) Amneal has all requisite limited liability company power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party, to perform its obligations under this Agreement and the Ancillary Agreements to which it is a party and to consummate the Transactions and the Ancillary Transactions. The execution, delivery and performance by Amneal of this Agreement and the Ancillary Agreements to which it is a party, and the consummation by it of the Transactions and the Ancillary Transactions, have been duly and validly authorized by all necessary limited liability company action on the part of Amneal, and no other limited liability company proceedings on the part of Amneal are necessary to authorize the execution and delivery by Amneal of this Agreement, the Ancillary Agreements to which it is a party and the consummation by it of the Transactions and the Ancillary Transactions. This Agreement has been duly executed and delivered by Amneal and, assuming due authorization, execution and delivery hereof by Impax, is a legal, valid and binding obligation of Amneal, enforceable against Amneal in accordance with its terms (subject to applicable bankruptcy, solvency, fraudulent transfer, reorganization, moratorium and other Laws affecting creditors’ rights generally from time to time in effect and by general principles of equity). The Amneal Board has unanimously adopted resolutions approving this Agreement, the Ancillary Agreements to which Amneal is a party and the Transactions and the Ancillary Transactions, and authorizing and approving the execution, delivery and performance of this Agreement and the Ancillary Agreements to which Amneal is a party in accordance with their terms and the consummation of the Transactions and the Ancillary Transactions.
 
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(b) The execution, delivery and performance of this Agreement and the Ancillary Agreements to which Amneal is a party, and the consummation of the Transactions and the Ancillary Transactions, do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a benefit under, or result in the creation of any Lien in or upon any of the properties or other assets of Amneal or any of its Subsidiaries under, (i) the certificate of formation of Amneal, the Amneal LLC Operating Agreement or the charter and bylaws (or comparable organizational documents) of the Amneal Material Subsidiaries, (ii) any Contract to which Amneal or any of its Subsidiaries is a party or any of their respective properties or other assets is subject or (iii) subject to the governmental filings and other matters referred to in Section 4.06 , any Law applicable to Amneal or any of its Subsidiaries or their respective properties or other assets, other than, in the case of clauses (ii) and (iii), any such conflicts, violations, breaches, defaults, rights, losses or Liens that have not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect.
 Section 4.05 Valid Issuance of Amneal Units .
(a) The Amneal Units, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration set forth in this Agreement will be duly authorized and validly issued, fully paid and nonassessable and will be issued free and clear of any Liens (other than such Liens created by the Restated Amneal LLC Operating Agreement or applicable securities Laws) or any preemptive rights.
(b) Amneal has not offered any Amneal Units for sale to, or solicited any offers to buy from, or otherwise approached or negotiated in respect of any such offer to sell or buy with, any persons other than Holdco. Amneal has not taken any action that will, in and of itself, cause the issuance, sale and delivery of the Amneal Units to constitute a violation of the Securities Act or any applicable state securities Laws.
 Section 4.06 Governmental Approvals . No consent, approval, order or authorization of, action by or in respect of, or registration, declaration or filing with, any Governmental Authority is required by or with respect to Amneal or any of its Subsidiaries in connection with the execution, delivery and performance of this Agreement and the Ancillary Agreements to which Amneal is a party by Amneal and the Existing Amneal Members or the consummation by Amneal and the Existing Amneal Members of the Transactions and the Ancillary Transactions, except (a) the premerger notification and report form under the HSR Act, (b) the governmental approvals, consents and authorizations that are applicable to Amneal and its Subsidiaries as set forth on Section 4.06(b) of the Amneal Disclosure Letter, pursuant to applicable Laws, for consummation of the Transactions and the Ancillary Transactions, (c) such filings and approvals as may be required by any applicable state securities or “blue sky” Laws, (d) the filing of all material applications, consents, approvals, authorizations and notices, as required by any Healthcare Regulatory Authority, each of which is set forth on Section 4.06(d) of the Amneal Disclosure Letter and (e) such other consents, approvals, orders, authorizations, registrations, declarations and filings where the failure to make any such filing, give any such notice or obtain any such consent or approval would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect.
 Section 4.07 Amneal Financial Statements; No Undisclosed Liabilities .
(a) The audited consolidated balance sheets of APHC, as at December 31, 2016, December 31, 2015 and December 31, 2014, and the related audited consolidated income and cash flow statements of Amneal for the fiscal years then ended, and the unaudited consolidated balance sheet and the related unaudited income and cash flow statements of APHC, each as at and for the six (6) month period ending June 30, 2017 (collectively, the “ Amneal Financial Statements ”), were prepared in accordance with GAAP consistently applied throughout the periods and the dates involved, except as otherwise noted therein. Prior to the date of this Agreement, true, complete and correct copies of the Amneal Financial Statements, and the accompanying independent auditors’ reports, as applicable, have been made available to Impax. As of the dates of such financial statements, the
 
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Amneal Financial Statements fairly present in all material respects the financial position, the results of operations and cash flow of Amneal and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to the absence of footnote disclosure and to normal and recurring year-end audit adjustments not material in amount).
(b) Neither Amneal nor any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required under GAAP to be reflected on a consolidated balance sheet of Amneal and its Subsidiaries (including the notes thereto), except for any such liabilities or obligations (i) accrued, disclosed, reflected or reserved against in the most recent Amneal Financial Statements (including any related notes), (ii) incurred in the ordinary course of business since the date of the latest balance sheet included in the most recent Amneal Financial Statements, (iii) incurred in connection with this Agreement, the Ancillary Agreements to which Amneal is a party, the Transactions and the Ancillary Transactions or (iv) that have not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect.
 Section 4.08 Information Supplied . The information supplied in writing by Amneal expressly for inclusion in the Registration Statement and the Proxy Statement/Prospectus will not (a) in the case of the Registration Statement, at the time the Registration Statement is declared effective under the Securities Act, and (b) in the case of the Proxy Statement/Prospectus, as of the date the Proxy Statement/Prospectus is first mailed to the stockholders of Impax and at the time of any meeting of Impax’s stockholders to be held in connection with the Transactions, including the Impax Stockholder Meeting, contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not false or misleading. Notwithstanding the foregoing sentence, Amneal make no representation or warranty with respect to statements made in any of the foregoing documents based on information supplied by Impax for inclusion therein.
 Section 4.09 Absence of Certain Changes or Events . Since January 1, 2017 until the date of this Agreement, except as expressly required by this Agreement or any Ancillary Agreement, (a) Amneal and its Subsidiaries have conducted their respective businesses in all material respects in accordance with the ordinary course of such businesses and (b) there has not been any change, effect, event, circumstance, occurrence or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect.
 Section 4.10 Litigation . There is no Litigation Proceeding or internal investigation pending or, to the Knowledge of Amneal, threatened, and Amneal has no Knowledge of any external investigation pending or threatened with respect to Amneal or its Subsidiaries, nor is there any material judgment, decree, injunction, rule or order of any Governmental Authority or arbitrator outstanding with respect to Amneal or any of its Subsidiaries, except in each case for any Litigation Proceedings, investigations, judgments, decrees, injunctions, rules, orders or claims that have not been and would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect.
 Section 4.11 Contracts .
(a) Section 4.11(a) of the Amneal Disclosure Letter sets forth a true and complete list as of the date of this Agreement, and Amneal has, prior to the date of this Agreement, made available to Impax true and complete copies (including all material amendments, modifications, extensions, renewals or guaranties) of the following, other than any Amneal Plans (all such Contracts set forth on Section 4.11(a) of the Amneal Disclosure Letter, or which are required to be so disclosed, “ Amneal Material Contracts ”):
(i) all Contracts of Amneal or any of its Subsidiaries involving payments by or to Amneal or any of its Subsidiaries of more than $2,500,000 on an annual basis;
 
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(ii) all Contracts with third party manufacturers and suppliers for the manufacture and supply of products providing for minimum order quantities, minimum purchase requirements or exclusive supply, manufacturing or purchase requirements with a total annual payment or financial commitment exceeding $2,500,000;
(iii) all Contracts having a remaining term of three (3) years or more as of the date hereof wherein Amneal or any of its Subsidiaries is obligated to manufacture or supply products to any third party with a total annual payment or financial commitment exceeding $2,500,000;
(iv) all Contracts to which Amneal or any of its Subsidiaries is a party, or by which Amneal, any of its Subsidiaries is bound, that contain any covenant materially limiting or prohibiting the right of Amneal or any of its Subsidiaries (A) to engage in any line of business or conduct business in any geographic area, (B) to distribute or offer any products or services or (C) to compete with any other person in any line of business or in any geographic area or levying a fine, charge or other payment for doing any of the foregoing, in each case other than (x) non-compete or non-solicitation Contracts with non-executive employees of Amneal or any of its Subsidiaries or (y) confidentiality agreements including non-solicitation, “no raid” or no-hire provisions;
(v) all Contracts of Amneal or any of its Subsidiaries with any Affiliate of Amneal (other than any of its Subsidiaries) (A) whereby Amneal or any of its Subsidiaries agrees to indemnify such Affiliate; or (B) in which the amount involved exceeds $500,000 on an annual basis, except for Contracts in respect of employment or consulting services entered into in the ordinary course of business;
(vi) all Contracts of Amneal or any of its Subsidiaries granting or obtaining any license to Intellectual Property involving payments of more than $1,000,000 in any calendar year;
(vii) all Contracts of Amneal or any of its Subsidiaries involving payments to a single vendor by or to Amneal or any of its Subsidiaries of more than $2,500,000 on an annual basis that require consent of or notice to a third party in the event of or with respect to the Transactions or the Ancillary Transactions, including in order to avoid a breach or termination of, or loss of benefit under, any such Contract;
(viii) all joint venture, partnership or other similar agreements involving co-investment with a third party to which Amneal or any of its Subsidiaries is a party;
(ix) all Contracts with any Governmental Authority or any Healthcare Regulatory Authority under which Amneal provides products or services involving aggregate consideration in excess of $2,500,000;
(x) settlement agreements with, or agreements entered into in connection with settlement agreements with, Governmental Authorities or any Healthcare Regulatory Authority that have existing or contingent material performance obligations;
(xi) all Contracts pursuant to which any Indebtedness of Amneal or any of its Subsidiaries is outstanding or may be incurred (except for Contracts relating to Indebtedness (A) the aggregate principal amount of which does not exceed $5,000,000 or (B) solely among Amneal and/or its Subsidiaries);
(xii) all Contracts of Amneal or any of its Subsidiaries which grant to any third party any exclusive rights, right of first refusal, right of first offer or similar right or ownership interest, in each case, with respect to any material Intellectual Property, drug master files, dossiers, regulatory filings or approvals with any Healthcare Regulatory Authority or other material assets, rights or properties of Amneal or any of its Subsidiaries;
(xiii) all Contracts relating to the voting or registration of any securities or providing Amneal or any of its Subsidiaries with any right of first refusal with respect to, or right to repurchase or redeem, any assets or securities;
(xiv) all Contracts of Amneal or any of its Subsidiaries that relate to an acquisition, divestiture, merger or similar transaction that contain material representations, covenants, indemnities or other obligations (including material payment, indemnification or other contingent obligations) or any “earn-out” obligations
 
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of Amneal or any of its Subsidiaries, that are in effect (other than any indemnification provisions which relate to representations and warranties in respect of organization, power and authority, due authorization, capitalization, non-contravention, Taxes, brokers fees or other similar representations and warranties which are contained in the applicable acquisition agreement);
(xv) all Contracts of Amneal or any of its Subsidiaries relating to the settlement of any Litigation Proceeding that provide for any continuing material obligations on the part of Amneal or any of its Subsidiaries;
(xvi) all Contracts obligating Amneal or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from any person or sell any material product or service exclusively to any person;
(xvii) all Contracts relating to a material research and development collaboration or any joint development, in each case, for any products currently marketed by Amneal or any of its Subsidiaries;
(xviii) all Contracts that are collective bargaining agreements and all Contracts with any trade union, works council or other employee representative or other labor organization;
(xix) all Contracts of Amneal or any of its Subsidiaries that prohibit, limit or restrict the payment of dividends or distributions in respect of the capital stock of Amneal or any of its Subsidiaries or otherwise, prohibit, limit or restrict the pledging of capital stock of Amneal or any of its Subsidiaries or prohibit, limit or restrict the issuance of guarantees by Amneal or any of its Subsidiaries; and
(xx) Contracts that obligate Amneal or any of its Subsidiaries to make any capital contribution or other investment (including pursuant to any joint venture) in a person in excess of $1,000,000 on an annual basis.
For purposes of this Section 4.11(a) , amounts calculated on an “annual basis” or similar terms reflect annualized expenses or payments based on payments made during the period from (A)(1) January 1, 2016 through December 31, 2016 or (2) January 1, 2017 through June 30, 2017 and (B) accruals for the applicable calendar year.
(b) (i) none of Amneal or any of its Subsidiaries (A) is, or has received written notice that any other party to any Amneal Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Amneal Material Contract to which it is a party or any of its properties or other assets is subject, (ii) there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Amneal Material Contract and (iii) each such Amneal Material Contract is in full force and effect and is a legal, valid and binding agreement of, and enforceable against, Amneal or its Subsidiary, and, to the Knowledge of Amneal, each other party thereto, except for violations, breaches, defaults, waivers or failures to enforce rights or benefits, or failures to be in full force and effect or to be legal, valid, binding or enforceable, covered by clauses (i), (ii) or (iii) above that have not had and would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. No party to any of the Contracts set forth on Section 4.11(a) of the Amneal Disclosure Letter has provided written notice exercising any termination rights with respect thereto.
 Section 4.12 Compliance with Laws .
(a) Amneal and each of its Subsidiaries are and have been since January 1, 2014 in compliance with all Laws applicable to them, their properties or other assets or their business or operations, except for such violations or noncompliance that have not been and would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. Amneal and its Subsidiaries have in effect all material permits, licenses, certificates of need, registrations, accreditations, Government Program provider agreements, variances, exemptions, authorizations, operating certificates, franchises, orders, approvals, and similar rights issued by or
 
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obtained from all Governmental Authorities (collectively, “ Amneal Permits ”) necessary to carry on their businesses as currently conducted, and there has occurred no violation of, default (with or without notice or lapse of time or both) under, or event giving to others any right of termination, amendment or cancellation of, with or without notice or lapse of time or both, any Amneal Permit, except for such violation, defaults, terminations, amendments or cancellations that, individually or in the aggregate, have not had and would not reasonably be expected to have an Amneal Material Adverse Effect. There is no event which has occurred that would reasonably be expected to result in the termination, revocation, cancellation, non-renewal or adverse modification of any such Amneal Permit that is material to Amneal and its Subsidiaries, taken as a whole. Assuming all notices or consents listed on Section 4.06(b) of the Amneal Disclosure Letter are made or obtained, the execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation of the Transactions and the Ancillary Transactions do not and will not conflict with or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a benefit under, or result in the creation of any Lien in or upon any properties or other assets of Amneal or any of its Subsidiaries under, any such Amneal Permit, except for any such conflicts, violations, breaches or defaults which has not had and would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. This Section 4.12 does not apply to Tax matters which are the subject of Section 4.15 .
(b) Since January 1, 2012, (i) neither Amneal nor any of its Subsidiaries has received any written notice from any Governmental Authority that alleges or relates to (A) any violation or noncompliance (or reflects that Amneal or any of its Subsidiaries is under investigation or the subject of an inquiry by any such Governmental Authority for such alleged noncompliance) with any applicable Law or (B) any fine, assessment or cease and desist order, or the suspension, revocation or limitation or restriction of any Amneal Permit and (ii) neither Amneal nor any of its Subsidiaries has entered into any agreement or settlement with any Governmental Authority with respect to its alleged noncompliance with, or violation of, any applicable Law, except in each case in clauses (i) and (ii) above to the extent any such violation, noncompliance, fine, assessment, order, suspension, revocation, limitation or restriction has not had and would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect.
(c) Since January 1, 2012, Amneal and each of its Subsidiaries have timely filed all regulatory reports, schedules, statements, documents, filings, submissions, forms, registrations and other documents, together with any amendments required to be made with respect thereto, that each was required to file with any Governmental Authority, including state health and regulatory authorities and any applicable federal regulatory authorities, and have timely paid all fees and assessments due and payable in connection therewith, except where the failure to make such filings or payments has not had and would not reasonably be expected to have individually or in the aggregate, an Amneal Material Adverse Effect.
 Section 4.13 FDA Regulatory Matters .
(a) Amneal and each of its Subsidiaries is and has been since January 1, 2014, in compliance in all material respects with (i) all Healthcare Laws and (ii) all Healthcare Regulatory Authorizations, including all requirements of the FDA, DEA, and all other Healthcare Regulatory Authorities, that are applicable to Amneal or its Subsidiaries, as applicable. As of the date hereof, neither Amneal nor any of its Subsidiaries, nor their respective officers, directors or employees, or agents authorized to appear before any Healthcare Regulatory Authority for or on behalf of Amneal or any of its Subsidiaries, is subject to, or has received written, or, to Amneal’s Knowledge, oral notice or other communication of any pending or threatened claim, suit, proceeding, hearing, enforcement, audit, investigation, arbitration or other action alleging that any operation or activity of Amneal or its Subsidiaries is in violation of any Healthcare Laws or otherwise related to the business of Amneal or its Subsidiaries by or before any Healthcare Regulatory Authority, including any action (i) to suspend, revoke or withdraw a material Healthcare Regulatory Authorization or (ii) contesting the approval of, the uses of, or the labeling or promotion of, or otherwise alleging, in each case, any material violation of Law with respect to, any product or product candidate manufactured, distributed or marketed by or on behalf of Amneal or its Subsidiaries.
 
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(b) Amneal and each of its Subsidiaries, as applicable, has held, or has held contractual rights to, all material Healthcare Regulatory Authorizations required for the marketing and approval of all products marketed by or on behalf of Amneal or any of its Subsidiaries, and all such Healthcare Regulatory Authorizations are in full force and effect. As of the date hereof, neither Amneal nor any of its Subsidiaries, nor their respective officers, directors or employees, or agents authorized to appear before any Healthcare Regulatory Authority for or on behalf of Amneal or any of its Subsidiaries, as applicable, has received written or, to Amneal’s Knowledge, oral notice or other communication of any material inaccuracy or material insufficiency of, or of any termination, suspension, rejection or denial of, any filing or application for any material Healthcare Regulatory Authorization that was not corrected or otherwise addressed in a subsequent filing. To Amneal’s Knowledge, no event has occurred which allows, or after notice or lapse of time would allow, or would reasonably be expect to lead to, the revocation, withdrawal, termination, suspension, rejection or denial of any material Healthcare Regulatory Authorization (or any filing or application therefor) or result in any other impairment of the rights of the holder of any material Healthcare Regulatory Authorization (or any filing or application therefor).
(c) All material reports, documents, registrations, authorizations, claims and notices required to be filed, maintained, or furnished to any Healthcare Regulatory Authority, including all registrations and reports required to be filed with clinicaltrials.gov; clinical investigator financial disclosure obligations; registration and listing requirements set forth in 21 U.S.C. Section 360 and 21 C.F.R. Part 207; reporting requirements under the Physician Payments Sunshine Act (42 U.S.C. 1320a-7h, et seq.), and all similar state transparency requirements; drug price reporting; and adverse event reports, by Amneal or any of its Subsidiaries have been so filed, maintained or furnished and were complete and correct in all material respects on the date filed (or were corrected in or supplemented by a subsequent filing).
(d) The development, manufacture, labeling and storage, as applicable, of any drugs or products by Amneal and each of its Subsidiaries has been since January 1, 2014, and is being conducted, in compliance in all material respects with all applicable Laws of the FDA, U.S. Customs, DEA and other Healthcare Regulatory Authorities, including the FDA’s current Good Laboratory Practices, Good Manufacturing Practices and Good Clinical Practices.
(e) Since January 1, 2014, neither Amneal nor any of its Subsidiaries has (i) voluntarily or involuntarily initiated, conducted or issued, or caused to be initiated, conducted or issued, or (ii) received any notices, information request letters, correspondence, orders or other communication from any Healthcare Regulatory Authority issuing, requiring or causing any recalls, seizures, detentions, field notifications, field corrections, market withdrawals or replacements, warnings, “dear doctor” letters, investigator notices, safety alerts or other notice of action relating to an alleged lack of safety, efficacy, or regulatory compliance of, or enjoining manufacture or distribution of, any product or product candidate manufactured, distributed or marketed by or on behalf of Amneal or any of its Subsidiaries and to Amneal’s Knowledge no Healthcare Regulatory Authority and neither Amneal nor any of its Subsidiaries is considering such action. Since January 1, 2014 until the date hereof, neither Amneal nor any of its Subsidiaries has received any written or, to Amneal’s Knowledge, oral notices, information request letters, correspondence, orders or other communications from any Healthcare Regulatory Authority regarding new safety information, postmarketing clinical trials or studies or risk evaluation and mitigation strategies asserting that labeling changes, postmarketing trials, studies, or other action will be required in order to ensure the safety of any products or product candidates.
(f) All studies, tests and clinical and pre-clinical trials conducted by or, the Knowledge of Amneal, on behalf of Amneal or any of its Subsidiaries, or in which Amneal or any of its Subsidiaries or their products or product candidates have participated were and, if still pending, have been and are being conducted in material compliance with all applicable Laws, including the applicable requirements of Good Laboratory Practices and Good Clinical Practices. Neither Amneal nor any of its Subsidiaries has received any written or, to Amneal’s Knowledge, oral notices, correspondence or other communication from any Healthcare Regulatory Authority requiring the termination or suspension of any ongoing or planned clinical trials conducted by, or, to Amneal’s Knowledge, on behalf of, Amneal or any of its Subsidiaries or the business currently conducted by any of them, or in which Amneal or any of its Subsidiaries or their products or product candidates have participated.
 
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(g) Since January 1, 2014, neither Amneal nor any of its Subsidiaries has received any FDA Form 483, notice of adverse finding, warning letters, letters of admonition, untitled letters or other written or, to Amneal’s Knowledge, oral correspondence from any Healthcare Regulatory Authority alleging or asserting material noncompliance with any Laws applicable to, or a lack of safety regarding, Amneal’s or any of its Subsidiaries’ manufacturing practices any product or product candidate manufactured, distributed or marketed by or on behalf of Amneal or any of its Subsidiaries. Neither Amneal nor any of its Subsidiaries is subject to any material order of, obligation or commitment to, or settlement with, any Healthcare Regulatory Authority. To Amneal’s Knowledge, no event has occurred which would reasonably be expect to lead to any material claim, suit, proceeding, hearing, enforcement, audit, investigation, inspection by any Healthcare Regulatory Authority or any FDA warning letter, untitled letter, or request or requirement to make changes to the products or procedures of Amneal or its Subsidiaries that, if not complied with, would reasonably be expected to have an Amneal Material Adverse Effect.
(h) Neither Amneal nor any of its Subsidiaries, nor any of their respective officers, directors, employees, nor, to Amneal’s Knowledge, any of their respective contractors, suppliers, agents, or other company or individual performing research or product-related work on behalf of Amneal or any of its Subsidiaries, nor any other person described in 42 C.F.R. § 1001.1001(a)(1)(ii) is a party to, or bound by, any order, individual integrity agreement, monitoring agreement, deferred prosecution agreement, consent decree, settlement order, corporate integrity agreement or other similar form agreement with any Governmental Authority resulting from a failure, or alleged failure, to comply with any applicable Laws of the FDA, U.S. Customs, DEA, Centers for Medicare and Medicaid Services and other Healthcare Regulatory Authorities.
(i) Neither Amneal nor any of its Subsidiaries or their products or product candidates are the subject of any pending or, to Amneal’s Knowledge, threatened investigation by the FDA pursuant to its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” Final Policy set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto, or otherwise. Neither Amneal nor any of its Subsidiaries, nor to Amneal’s Knowledge, any of their respective officers, directors, employees, nor, to Amneal’s Knowledge, any of their respective contractors, suppliers, agents, or other company or individual performing research or product-related work on behalf of Amneal or any of its Subsidiaries, nor any other person described in 42 C.F.R. § 1001.1001(a)(1)(ii), (i) has committed any act, made any untrue statement of material fact or failed to make any statement that, at the time such act, statement or disclosure was made, would reasonably be expected to provide a basis for the FDA to invoke its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” Final Policy (ii) has been charged with any conduct for which debarment is mandated by 21 U.S.C. § 335a or any criminal offense relating to the delivery of an item or service under any federal health care program (iii) has been charged with or been convicted of any crime for which exclusion is mandated or permitted from the federal health care programs under Section 1128 of the Social Security Act of 1935, or any similar Law; (iv) is or has been debarred, excluded or suspended from participation in any federal health care program; (v) has had a civil monetary penalty assessed against it under Section 1128A of the Social Security Act; (vi) is or has been listed on the General Services Administration published list of parties excluded from federal procurement programs and non-procurement programs; or (vii) has been debarred by any federal or international agency.
 Section 4.14 Amneal Benefit Plans .
(a) Section 4.14(a) of the Amneal Disclosure Letter sets forth a true and complete list of all material “employee benefit plans” (as defined in Section 3(3) of ERISA), and all other material employee benefit plans, programs, agreements, policies, arrangements or payroll practices, including with respect to bonus, employment, consulting or other compensation, collective bargaining, company stock, incentive and other equity or equity-based compensation, deferred compensation, retirement, pension, change in control, termination or severance, stock purchase, severance pay, sick leave, vacation pay, salary continuation for disability, hospitalization, medical insurance, life insurance and scholarship, in each case, (i) that are sponsored or maintained by Amneal or any of its Subsidiaries, (ii) to which Amneal or any of its Subsidiaries contributes or is obligated to contribute to,
 
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or in respect of which any potential liability is borne by Amneal or any of its Subsidiaries, (iii) under which current or former employees of Amneal or any of its Subsidiaries (the “ Amneal Employees ”) or directors or former directors thereof are eligible to participate or receive benefits or (iv) to which Amneal or any of its Subsidiaries is a party (collectively, the “ Amneal Plans ”).
(b) True and complete copies of the following documents, with respect to each of the Amneal Plans have, prior to the date of this Agreement, been delivered to Impax by Amneal, to the extent applicable: (i) the plan document (or a written summary if the Amneal Plan is not reduced to writing), any material amendments thereto and related trust documents, insurance contracts or other funding arrangements, in each case, as currently in effect; (ii) the most recent Form 5500 and all schedules attached thereto filed with respect to such Amneal Plan, and the most recent actuarial report and financial statements, if any, prepared with respect to such Amneal Plan; and (iii) all material communications received from any Governmental Authority relating to Amneal Plans in the last three (3) years.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect, the Amneal Plans have been maintained in accordance with their terms and with all provisions of ERISA, the Code and other applicable Law, and neither Amneal (or any of its Subsidiaries) nor, to the Knowledge of Amneal, any “party in interest” or “disqualified person” with respect to the Amneal Plans has engaged in a non-exempt “prohibited transaction” within the meaning of Section 4975 of the Code or Section 406 of ERISA. Neither Amneal nor any of its Subsidiaries has any material liability for breach of fiduciary duty or any other failure to act or comply with applicable Law in connection with the administration or investment of the assets of any Amneal Plan.
(d) Each of the Amneal Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter as to its qualified status under the Code, has been determined by the IRS to be qualified under Section 401(a) of the Code. To the Knowledge of Amneal, nothing has occurred since the date of any such letter that would reasonably be expected to adversely affect the qualified status of any such Amneal Plan or the Tax exemption of any trust related thereto.
(e) None of Amneal, its Subsidiaries or, except as would not reasonably be expected to result in material liability to Amneal, any trade or business (whether or not incorporated) that is treated as a single employer with any of them under Sections 414(b), (c), (m) or (o) of the Code (a “ Amneal ERISA Affiliate ”) (or that was so treated at any time during the six (6) years immediately prior to the date of this Agreement) has ever had (or, in the case of any former Amneal ERISA Affiliate during the last six (6) years, had at the time it was an Amneal ERISA Affiliate) any current or contingent liability with respect to (i) a plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code or (ii) any Multiemployer Plan.
(f) All contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Amneal Plans (including workers compensation) or by Law (without regard to any waivers granted under Section 412 of the Code), to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension), except where the failure to do so has not had and would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect.
(g) There are no pending actions, claims or lawsuits that have been asserted or instituted against the Amneal Plans, the assets of any of the trusts under the Amneal Plans or the sponsor or administrator of any of the Amneal Plans, or, to the Knowledge of Amneal, against any fiduciary of the Amneal Plans with respect to the operation of any of the Amneal Plans (other than routine benefit claims), nor does Amneal have any Knowledge of any threatened action, claim or lawsuit, other than such actions, claims or lawsuits that have not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect.
 
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(h) None of the Amneal Plans provides for post-employment life or health insurance, benefits or coverage for any participant or any beneficiary of a participant, except as may be required under applicable Law, including COBRA, and which are provided at the sole expense of the participant or the participant’s beneficiary.
(i) Except as otherwise specifically contemplated by the terms of this Agreement, neither the execution and delivery of this Agreement nor the consummation of the Transactions (either by themselves or when combined with any other event), will (i) result in any payment becoming due to any Amneal Employee, (ii) increase any benefits otherwise payable under any Amneal Plan, (iii) result in the acceleration of the time of payment or vesting of any such benefits under any Amneal Plan, (iv) result in any obligation to fund any trust or other arrangement with respect to compensation or benefits under an Amneal Plan, (v) result in any “excess parachute payment” (within the meaning of Section 280G of the Code) becoming due to any current or former employee or other individual service provider of Amneal or any of its Subsidiaries or (vi) result in any breach or violation of or default under or limit Holdco’s, Amneal’s or Impax’s right to amend, modify or terminate any Amneal Plan.
(j) Except as would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect, each Amneal Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code is in documentary compliance with, and Amneal and its Subsidiaries have, since January 1, 2014, complied in practice and operation with, all applicable requirements of Section 409A of the Code. Neither Amneal nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any Amneal Employee for any Tax incurred by such Amneal Employee, including under Section 409A or 4999 of the Code, or any interest or penalty related thereto.
(k) Except as would not, individually or in the aggregate, reasonably be expected to result in any material liability to Amneal, (i) each Amneal Plan which is maintained primarily for the benefit of employees working outside of the United States (each, a “ Non-U.S. Amneal Plan ”) has been established, administered, operated, funded, invested and maintained in compliance with the applicable Laws relating to such plans in the jurisdictions in which such Amneal Plan is present or operates and, to the extent relevant, the United States, (ii) all required contributions and premiums to be made under each Non-U.S. Amneal Plan have been made with respect thereto (whether pursuant to the terms of such Non-U.S. Amneal Plan or by applicable Law) and (iii) as of the date of this Agreement, there is no pending or, to the knowledge of Amneal, threatened litigation relating to any Non-U.S. Amneal Plan.
 Section 4.15 Taxes .
(a) Amneal and each of its Subsidiaries have timely filed with the appropriate taxing authorities, or has caused to be timely filed on their behalf (taking into account any valid extension of time within which to file), all income, franchise and other Tax Returns required to be filed by them, and all such filed Tax Returns are true, correct and complete in all material respects. All Taxes (regardless of having been shown as due on any Tax Return) have been timely paid in full, or an adequate reserve has been established therefor in the financial statements of Amneal and its Subsidiaries (in accordance with GAAP) for all periods covered by such financial statements.
(b) Neither Amneal nor any of its Subsidiaries is a party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement, or any other Contract, obligation, understanding or agreement to pay the Taxes of another person or to pay the Taxes with respect to transactions relating to any other person (other than Amneal and its Subsidiaries) other than commercial agreements entered into in the ordinary course of business no principal purpose of which is related to Taxes.
(c) None of the Subsidiaries of Amneal has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify under Section 355 of the Code for any years open under the relevant statute of limitations.
 
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(d) None of the Subsidiaries of Amneal (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was a wholly owned Subsidiary of Amneal) or (ii) has any liability for the Taxes of any person (other than Amneal or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise.
(e) To the Knowledge of Amneal, no audits, investigations or other administrative or court proceedings, that could have, individually or in the aggregate, an Amneal Material Adverse Effect, are pending with any taxing authority or court with respect to any material Taxes of Amneal or any of its Subsidiaries, and no written notice thereof has been received by Amneal or any of its Subsidiaries. Neither Amneal nor any of its Subsidiaries has any outstanding agreements, waivers or arrangements extending the statutory period of limitations applicable to any claim for, or the period for the collection or assessment of, any federal, state, local or foreign income, franchise or other material Taxes.
(f) No written claim that could give rise to material Taxes has been made within the previous three (3) years by a taxing authority in a jurisdiction where Amneal or any of its Subsidiaries does not file Tax Returns that Amneal or any of its Subsidiaries is or may be subject to taxation in that jurisdiction.
(g) No Liens for Taxes exist with respect to any properties or other assets of Amneal or any of its Subsidiaries, except for statutory Liens for current Taxes not yet delinquent.
(h) All material Taxes required to be withheld by Amneal or any of its Subsidiaries (including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446 and 3402 of the Code or similar provision under any foreign Laws) have been withheld, have been or will be duly and timely paid to the proper taxing authority, and have been or will be reported pursuant to applicable Tax information reporting Laws.
(i) Neither Amneal nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Law) executed on or prior to the Closing Date; (iii) installment sale or open transaction disposition made on or prior to the Closing Date; (iv) prepaid amount received on or prior to the Closing Date; or (v) cancellation of indebtedness income deferred pursuant to Section 108(i) of the Code.
(j) There is no power of attorney given by or binding upon Amneal or any of its Subsidiaries with respect to Taxes for any period for which the applicable statute of limitations (including any waivers and extensions) has not expired as of the date of this Agreement.
(k) Neither Amneal nor any of its Subsidiaries has been a party to any “listed transaction” as defined in Treasury Regulation Section 1.6011-4(b)(2).
(l) Neither Amneal nor any of its Subsidiaries is aware of any fact, or has taken or agreed to take any action that would reasonably be expected to prevent or impede (i) the Impax Merger and the LLC Conversion, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code and (ii) the Contribution from qualifying as an exchange to which Section 721(a) of the Code applies.
 Section 4.16 Intellectual Property .
(a) Amneal, or one of its Subsidiaries, owns or possesses all licenses or other legal rights to use, sell or license all material Intellectual Property held for use or used in the business of Amneal or its Subsidiaries as presently conducted (“ Amneal Intellectual Property ”) except for any failures to own or possess as have not had and would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse
 
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Effect and except with respect to any Intellectual Property which is the subject of a Paragraph IV Proceeding; provided , that the representation and warranty in this Section 4.16(a) shall not be construed to be a representation or warranty with respect to non-infringement.
(b) Section 4.16(b) of the Amneal Disclosure Letter identifies as of the date hereof: (i) each item of Amneal Intellectual Property that is registered, filed, or issued under the authority of any Governmental Authority and in which Amneal or any of its Subsidiaries has or purports to have an exclusive license or an ownership interest of any nature (whether exclusively, jointly with another person or otherwise) (“ Registered Amneal Intellectual Property ”); (ii) the jurisdiction in which such item of Registered Amneal Intellectual Property has been registered or filed and the applicable registration or application serial number; and (iii) any other person that, to the Knowledge of Amneal, has an ownership interest in such item of Registered Amneal Intellectual Property and the nature of such ownership interest.
(c) As of the date of this Agreement, the title in each item of Registered Amneal Intellectual Property in which Amneal or any of its Subsidiaries has an ownership interest is properly recorded in the name of Amneal and/or its Subsidiaries. Each named inventor on each item of Registered Amneal Intellectual Property constituting a patent or a patent application has duly executed a valid assignment of all applicable right, title and interest in and to such patent or patent application to Amneal or one of its Subsidiaries (in each case where such assignment is required by applicable law to perfect Amneal or its Subsidiaries rights in such patent or patent application). All such assignments have been duly recorded with the United States Patent and Trademark Office and all relevant foreign patent offices.
(d) Within the past three (3) years of the date hereof, neither Amneal nor any of its Subsidiaries has received any written notice of any claim against any of them challenging the ownership, validity or enforceability of any of the Registered Amneal Intellectual Property, other than any notice from the applicable examiner of any pending application therefor, received in the ordinary course of prosecution.
(e) With respect to each item of Registered Amneal Intellectual Property owned by Amneal or any of its Subsidiaries: (i) to Amneal’s Knowledge, all such Registered Amneal Intellectual Property is valid and enforceable; (ii) all such Registered Amneal Intellectual Property is subsisting (or, in the case of applications, applied for), which shall include being currently in compliance with applicable Laws as to the payment of all necessary registration, maintenance, annuities, renewal, filing, examination, and other related fees and proofs of working or use, and, in the case of trademarks, the post-registration filing of affidavits of use and incontestability and renewal applications; and (iii) all necessary documents, recordations and certificates in connection with such Registered Amneal Intellectual Property previously or currently required to be filed have been filed with the relevant patent, copyright, trademark or other authorities in all jurisdictions where such fees are previously or currently due, for the purposes of prosecuting and maintaining and perfecting such Registered Amneal Intellectual Property except, in each case, to the extent that failure to do so can be cured or otherwise would not result in permanent abandonment (i.e., without the possibility of revival or reinstatement).
(f) Certain Intellectual Property Proceedings .
(i) To the Knowledge of Amneal, no claims or threat of claims within the three (3) years prior to the date of this Agreement, have been asserted in writing by any third party against Amneal or any of its Subsidiaries (A) related to the use in the conduct of the businesses of Amneal and its Subsidiaries of the Amneal Intellectual Property or (B) alleging that the conduct of the business of Amneal and its Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property rights of any third party but excluding any infringement of any Intellectual Property alleged pursuant to a Paragraph IV Proceeding or otherwise in connection with filing a Paragraph IV Certification Notice.
(ii) To the Knowledge of Amneal, the conduct of the businesses of Amneal and its Subsidiaries does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party but excluding any (A) infringement of any Intellectual Property under 35 U.S.C. § 271(e)(2) caused by or in
 
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connection with the filing of any abbreviated new drug application for a product filed with the FDA pursuant to §505(j) of the FFDCA or by the filing of any new drug application for a product filed with the FDA pursuant to §505(b)(2) of the FFDCA and (B) any infringement of any Intellectual Property alleged pursuant to a Paragraph IV Proceeding or otherwise in connection with filing a Paragraph IV Certification Notice. The representations set forth in this Section 4.16(f)(ii) are the only representations given by Amneal and its Subsidiaries with respect to non-infringement of Intellectual Property.
(iii) Section 4.16(f)(iii) of the Amneal Disclosure Letter identifies as of the date hereof all (A) pending Paragraph IV Proceedings to which Amneal or any of its Subsidiaries is a party, (B) Paragraph IV Certification Notices dated within the three (3) year period ending on the date hereof made by or on behalf of the Amneal or any of its Subsidiaries and (C) pending petitions for Inter Partes Review under 35 U.S.C. § 311, et, seq., in which Amneal or any of its Subsidiaries is identified as a real party in interest.
(iv) To the Knowledge of Amneal, no third party is infringing, misappropriating or otherwise violating any Amneal Intellectual Property.
(v) No unresolved claims or threat of claims within the three (3) years prior to the date of this Agreement, have been asserted in writing by Amneal or any of its Subsidiaries against any third party with respect to the infringement or the alleged infringement of any Amneal Intellectual Property.
(g) Neither Amneal nor any of its Subsidiaries is bound by, and none of the material Intellectual Property purported to be owned or to its Knowledge which is exclusively licensed by Amneal or any of its Subsidiaries, is subject to, any Contract containing any covenant or other provision that materially limits or restricts the ability of Amneal or any of its Subsidiaries to use, exploit, assert, enforce, transfer or license any rights in any such Intellectual Property anywhere in the world (excluding in the case of any Intellectual Property exclusively licensed to Amneal or any of its Subsidiaries, such license).
(h) Upon the termination of any Contract wherein Amneal and/or any of its Subsidiaries has agreed to manufacture or supply a product or active pharmaceutical ingredient for a third party, Amneal and/or its Subsidiaries shall retain and continue to have the right to use all Intellectual Property, data, bioavailability studies, drug master files, dossiers and regulatory approvals granted by any Healthcare Regulatory Authority which are required or necessary to manufacture said product or active pharmaceutical ingredient either for itself or another person without restriction or obligation to the third party of such terminated Contract.
(i) The consummation of the Transactions will not result in the loss or impairment of Amneal’s or its Subsidiaries’ rights to own or use any of the Amneal Intellectual Property or obligate them to pay any royalties or other amounts to any third party in excess of the amounts payable by them prior to the Closing, nor will such consummation require the consent of any third party in respect of any Amneal Intellectual Property, except as have not had and would not reasonably be expected to have, individually or in the aggregate, material direct or indirect costs or liabilities to, or other material direct or indirect negative impact on, Amneal and its Subsidiaries, taken as a whole.
(j) Neither Amneal nor any of its Subsidiaries has entered into any Contract which, upon the consummation of the Transactions will, to the Knowledge of Amneal, result in the loss or impairment of Holdco’s or any of its Subsidiaries’ ability (A) to engage in any line of business or conduct business in any geographic area, (B) to distribute or offer any products or services or (C) to compete with any other person in any line of business or in any geographic area or levying a fine, charge or other payment for doing any of the foregoing, in each case of (A)-(C), with respect to any products or services currently marketed by Impax or any of its Subsidiaries as of the date of this Agreement.
(k) Amneal and its Subsidiaries have taken reasonable measures to protect the confidentiality of their Trade Secrets.
(l) During the three (3) years prior to the date of this Agreement, (i) to the Knowledge of Amneal, there have been no material security breaches in Amneal’s or its Subsidiaries’ information technology systems wherein
 
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any third party has gained unauthorized access to any of Amneal’s or of any of its Subsidiaries’ confidential and/or proprietary information and (ii) there have been no disruptions in any of Amneal’s or its Subsidiaries’ information technology systems that materially adversely affected Amneal’s or its Subsidiaries’ business or operations. Amneal and its Subsidiaries have evaluated their security, disaster recovery and backup needs and have implemented plans and systems designed to reasonably address their assessment of risk.
(m) Amneal and each of its Subsidiaries is and has been during the past three (3) years in compliance with its applicable privacy policies and obligations to third parties relating to any processing of personal information except for any failure in compliance has not had and would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. To Amneal’s Knowledge, there has not been any audit, investigation or other Litigation Proceeding initiated by any Governmental Authority, regarding the processing of personal information by Amneal or any of its Subsidiaries.
 Section 4.17 Real Property .
(a) Section 4.17(a)(i) of the Amneal Disclosure Letter contains a complete and accurate list by property, city, state and country of all interests in real property currently owned in fee by Amneal and any of its Subsidiaries (the “ Amneal Owned Real Property ”). Section 4.17(a)(ii) of the Amneal Disclosure Letter contains (i) a complete and accurate list, by property, city, state and country, of all real property currently leased (as lessee), licensed (as licensee) or subleased (as sublessee) by Amneal or any of its Subsidiaries (the “ Amneal Leased Real Property ”; and, together with the Amneal Owned Real Property, collectively, the “ Amneal Real Property ”) and (ii) a description of each Amneal Lease and all amendments, modifications and supplements thereto.
(b) The Amneal Owned Real Property, together with the Amneal Leased Real Property, is sufficient in all material respects for the operation of the business currently conducted by Amneal and its Subsidiaries in the ordinary course of business, and Amneal and each of its Subsidiaries, as applicable, enjoys peaceful and undisturbed possession of the Amneal Owned Real Property and the Amneal Leased Real Property sufficient for current business and operational use requirements.
(c) Amneal and/or its Subsidiaries, as applicable, has good and valid fee simple title to all Amneal Owned Real Property, free and clear of any Liens other than Permitted Liens. Amneal has made available to Amneal accurate and complete copies of all title insurance policies, title reports and surveys for the Amneal Real Property in possession or control of Amneal or any of its Subsidiaries. To the Knowledge of Amneal, all buildings, plants, structures and other improvements that form a part of the Amneal Real Property lie wholly within the boundaries of the land owned or leased by Amneal or its Subsidiaries, as applicable, and do not materially encroach upon the property of, or otherwise materially conflict with the property rights of, any other person.
(d) None of the Amneal Owned Real Property is subject to any lease, license, or sublease or any material use or occupancy agreement entered into outside of the ordinary course of business pursuant to which Amneal or any of its Subsidiaries has granted any third party or third parties the right to use or occupancy of such Amneal Owned Real Property (other than Permitted Liens or to Amneal or any of its Subsidiaries).
(e) To Amneal’s Knowledge, (i) all improvements on the Amneal Real Property are structurally sound and in working order sufficient for their normal operation in the manner currently being operated, normal wear and tear excepted and (ii) the utilities servicing the Amneal Real Property are adequate for the operation of each facility as it is currently being operated.
(f) The Amneal Owned Real Property, and the current use and occupancy thereof, is in material compliance with (i) all applicable building, zoning, subdivision, health and safety and other Laws pertaining to the ownership, construction, use or occupancy of real property, including the Americans with Disabilities Act of 1990, as amended, (ii) all easements, covenants, conditions, restrictions or similar provision in any instrument of
 
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record or other unrecorded agreement affecting such property and (iii) any requirements of any Governmental Authority in connection with (A) such Governmental Authority’s consents and/or (B) any entitlements or benefits extended by such Governmental Authority, in both cases, in relation to the use and development of the real property and operation of the facilities thereon. To Amneal’s Knowledge, each lease that requires registration with any Governmental Authority has been duly registered.
(g) To Amneal’s Knowledge, no eminent domain, condemnation or other similar proceeding is pending or threatened affecting any of the Amneal Owned Real Property, Amneal Leased Real Property or any part thereof.
(h) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Amneal Owned Real Property or any portion thereof or interest therein.
(i) Each contract, agreement or arrangement (including any option to purchase contained therein) pursuant to which Amneal or any of its Subsidiaries leases, licenses or subleases any Amneal Leased Real Property (each, an “ Amneal Lease ” and, collectively, the “ Amneal Leases ”) is a written agreement in full force and effect, and is valid, binding and enforceable, subject to proper authorization and execution of each Amneal Lease by the other parties thereto and except to the extent that enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditors’ right generally and by general equity principles. Amneal has made available to Amneal (in each case, together with all material amendments, assignments, modifications, supplements, waiver or other changes thereto) true and complete copies of all Amneal Leases and, in the case of any oral Amneal Lease, a written summary of the material terms of such Amneal Lease, to which Amneal or any of its Subsidiaries is a party. None of Amneal or any of its Subsidiaries subleases (as sublessor), licenses (as licensor) or grants the use or occupancy of, to any other person (other than business invitees in the ordinary course of business), any portion of the Amneal Leased Real Property. Except for Permitted Liens, none of Amneal or any of its Subsidiaries has collaterally assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in any Amneal Lease.
(j) There exists no default or event of default on the part of Amneal or any of its Subsidiaries under any Amneal Leases or, to Amneal’s Knowledge, any other party thereto, in each case that has not been cured and to Amneal’s Knowledge, no condition exists that with notice or lapse of time would constitute a default by Amneal or any of its Subsidiaries or, any other party thereunder, in each case that has not been cured or that has not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. None of Amneal or any of its Subsidiaries has received written notice of any default or event of default under any Amneal Lease, other than any default or event of default that has been cured or that has not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect.
(k) The current use and operation of the Amneal Leased Real Property in the ordinary course of business of Amneal and its Subsidiaries does not violate any Law in any material respect.
(l) None of Amneal or any of its Subsidiaries is a party to any contract, agreement or arrangement relating to the future acquisition or development of any Amneal Real Property by any third party or the acquisition of any other real property by Amneal or any of its Subsidiaries.
 Section 4.18 Environmental Matters . Except as has not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect (a) no written notice, notification, demand, request for information, citation, summons, complaint or order has been received by, and no action, claim, suit, proceeding or review or investigation is pending or, to the Knowledge of Amneal, threatened by any person against, Amneal, any of its Subsidiaries or, to the Knowledge of Amneal, any person whose liability Amneal or any of its Subsidiaries has or may have retained or assumed either contractually or by operation of Law with respect to any matters relating to or arising out of any Environmental Law, (b) Amneal and its Subsidiaries have at all times been and are presently in compliance with all Environmental Laws, including possessing all permits, authorizations, licenses, exemptions and other governmental authorizations required under applicable
 
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Environmental Laws for its operations as conducted at such time, (c) Amneal and its Subsidiaries do not have any Environmental Liabilities and, to the Knowledge of Amneal, there are no facts, circumstances or conditions relating to, arising from, associated with or attributable to either (i) any real property currently or formerly owned, operated or leased by Amneal or its Subsidiaries or operations thereon, (ii) Amneal or its Subsidiaries current or former conduct of its business or operations, including any Releases of Hazardous Materials or arrangement for disposal or Release at any location, or (iii) any person whose liability Amneal or any of its Subsidiaries has or may have retained or assumed either contractually or by operation of Law that would, in any such case, reasonably be expected to result in Environmental Liabilities and (d) with respect to any real property currently owned or leased by Amneal or its Subsidiaries, or, to the Knowledge of Amneal, formerly owned or leased by Amneal or its Subsidiaries, there have been no Releases by Amneal or any of its Subsidiaries, or to the Knowledge of Amneal, by any other person, of Hazardous Materials that have resulted or are reasonably likely to result in a claim against Amneal or its Subsidiaries.
 Section 4.19 Labor Matters . No labor strike, work slowdown, work stoppage, lockout or other concerted labor action or dispute involving the employees of Amneal or any of its Subsidiaries is pending, or to the Knowledge of Amneal, threatened against or affecting Amneal or any of its Subsidiaries and, since January 1, 2014, there has not been any such action. Neither Amneal nor any of its Subsidiaries is party to or bound by any collective bargaining or similar agreement with any labor organization or any work rules or practices agreed to with any labor organization applicable to employees of Amneal or any of its Subsidiaries (each such agreement, an “ Amneal Labor Agreement ”), and no collective bargaining or similar agreement is currently being negotiated by Amneal or any of its Subsidiaries. The execution and delivery of this Agreement and the consummation of the Transactions, either alone or in combination with another event, will not entitle any third party (including any labor organization or Governmental Authority) to any payments under any of the Amneal Labor Agreements, and each of Amneal and its Subsidiaries are in compliance in all material respect with their obligations pursuant to all notification and bargaining obligations arising under any Amneal Labor Agreements. Except as has not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect, each of Amneal and its Subsidiaries is, and has been since January 1, 2014, in compliance with all applicable Laws respecting labor, employment and employment practices, terms and conditions of employment, health and safety and wages and hours. Neither Amneal, nor any of its Subsidiaries, has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder (the “WARN Act”) or any similar state or local Law that remains unsatisfied.
 Section 4.20 Insurance . Section 4.20(a) of the Amneal Disclosure Letter sets forth each insurance policy (including policies providing casualty, liability, medical and workers compensation coverage) to which Amneal or any Subsidiary is currently a party (the “ Amneal Policies ”). All Amneal Policies are in full force and effect, and all premiums that are due and payable with respect thereto covering all periods up to and including the Closing Date have been paid, except as have not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. Since January 1, 2012, no notice of cancellation or termination has been received with respect to any Amneal Policies, except for such cancellations or terminations which have not had or would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. Since January 1, 2012, each of Amneal and its Subsidiaries has been continuously insured with recognized insurers or has self-insured, in each case in such amounts and with respect to such risks and losses as are required by Law and any Contract to which it is a party and as are customary for companies in the United States conducting the businesses conducted by Amneal and its Subsidiaries, except where such failure has not had and would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. Section 4.20(b) of the Amneal Disclosure Letter sets forth the premium paid by Amneal and its Subsidiaries for directors and officers liability insurance for its last full policy year.
 Section 4.21 Prohibited Persons .
(a) Neither Amneal nor any of its Affiliates nor, to the Knowledge of Amneal, any of its brokers or agents acting or benefiting in any capacity in connection with the Transactions or Ancillary Transactions is a Prohibited Person.
 
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(b) Neither Amneal nor any of its Affiliates nor, to the Knowledge of Amneal, any of its brokers or agents acting or benefiting in any capacity in connection with the Transactions or Ancillary Transactions (i) has conducted or will conduct any business or has engaged or will engage in any transaction or dealing with any Prohibited Person, including making or receiving any contribution of funds, goods or services to or for the benefit of a Prohibited Person; (ii) has dealt or will deal in, or has otherwise engaged or will engage in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order; or (iii) has engaged or will engage in or has conspired or will conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the requirements or prohibitions set forth in the Executive Order or the USA PATRIOT Act.
(c) Neither Amneal nor any of its Affiliates nor, to the Knowledge of Amneal, any of its brokers or agents has in the three (3) years prior to the date of this Agreement, in connection with the business of Amneal or any of its Subsidiaries, taken any action in violation of the FCPA or any other Anti-Corruption Laws.
(d) Neither Amneal nor any of its Affiliates nor, to the Knowledge of Amneal, any of its brokers or agents is, or in the three (3) years prior to the date of this Agreement has been, subject to any actual, pending, or threatened civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements or enforcement actions, or made any voluntary disclosures to any Governmental Authority, involving Amneal or any of its Subsidiaries in any way relating to any applicable Anti-Corruption Laws, including the FCPA.
 Section 4.22 Transactions with Related Parties . Except with respect to the Amneal Plans, since January 1, 2014, there has been no transaction, or series of similar transactions, agreements, arrangements or understandings, nor are there any currently proposed transactions, or series of similar transactions, agreements, arrangements or understandings to which Amneal or any of its Subsidiaries was or is to be a party, that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act were Amneal to be subject to the same public reporting requirements that Impax is subject to.
 Section 4.23 Brokers and Other Advisors . No broker, investment banker, financial advisor or other person, other than J.P. Morgan Securities LLC, the fees and expenses of which will be paid by Amneal in accordance with Amneal’s agreements with such firms (true and complete copies of which have heretofore been made available to Impax), is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses, in connection with the Transactions based upon arrangements made by or on behalf of Amneal or its Subsidiaries.
 Section 4.24 Requisite Amneal Written Consent . Amneal has received the irrevocable written consent of APHC (A) approving this Agreement and the Transactions, (B) approving the execution, delivery and performance of this Agreement by Amneal and the consummation of the Transactions (including the amendment of the Amneal LLC Operating Agreement to be restated in the form of Restated Amneal LLC Operating Agreement), and (C) waiving any pre-emptive or other similar rights that it has under the Amneal LLC Operating Agreement or any other agreement in connection with the Transactions.
 Section 4.25 Financing .
(a) Amneal has delivered to Impax a true, correct and complete copy of (i) an executed commitment letter (including all exhibits and schedules thereto, the “ Debt Commitment Letter ”) pursuant to which the Debt Financing Sources party thereto have agreed (on the terms and subject to the conditions thereof), to lend the amounts set forth therein (the “ Debt Financing Commitments ”) and (ii) the fee letter(s) referenced in the Debt Commitment Letter (the “ Fee Letter ”). As of the date of this Agreement, there are no agreements, side letters or arrangements (other than the Debt Commitment Letter and the Fee Letter) to which Amneal is a party relating to any of the Debt Financing Commitments.
 
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(b) Except as expressly set forth in the Debt Commitment Letter and the Fee Letter, as of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 , there are no conditions precedent to the funding of the full amount of the Debt Financing. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 and the funding of the Debt Financing in accordance with the terms and conditions of the Debt Commitment Letter, the aggregate proceeds contemplated by the Debt Commitment Letter, together with other financial resources of Amneal will be sufficient for (i) the repayment in full of all amounts outstanding under the Existing Credit Facilities of Impax and its Subsidiaries pursuant to their terms, (ii) to the extent necessary, for the repurchase of the Impax Convertible Notes at par plus accrued but unpaid interest thereon and (iii) the satisfaction of Amneal’s obligations to pay any fees and expenses of or payable by Amneal in connection with this Agreement, the Transactions and the Ancillary Transactions (the “ Required Amount ”). As of the date of this Agreement, the Debt Commitment Letter and the Fee Letter are in full force and effect, and constitute the valid and binding obligation of Amneal and, to the Knowledge of Amneal, each of the other parties thereto (subject in each case to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity whether considered in a proceeding in equity or at law). As of the date of this Agreement, Amneal is not in breach of any of the terms or conditions set forth in the Debt Commitment Letter or the Fee Letter. As of the date of this Agreement, assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 and the accuracy of the representations and warranties of Impax set forth in this Agreement in all material respects, (i) no event has occurred that, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach on the part of Amneal under the terms of the Debt Commitment Letter or (ii) would reasonably be expected to result in any of the conditions within its control in the Debt Commitment Letter not being satisfied in a timely manner. Amneal has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Debt Commitment Letter or Fee Letter on or before the date of this Agreement. The Debt Commitment Letter has not been modified or amended as of the date of this Agreement, and as of the date of this Agreement none of the respective commitments under the Debt Commitment Letter have been reduced, withdrawn or rescinded by Amneal or, to Amneal’s Knowledge, the Debt Financing Sources party thereto. Notwithstanding anything to the contrary set forth in this Section 4.25(b) , to the extent that the representations and warranties contained in this Section 4.25(b) , are not true or correct in any respect, but all other conditions set forth in Section 7.01 and Section 7.02(a) are then satisfied and Amneal is otherwise is ready, willing and able to consummate the Transactions, then the representations and warranties set forth in this Section 4.25(b) shall be deemed to be true and correct in all respects in order to deem the condition set forth in Section 7.02(a) satisfied, so long as the Closing occurs.
(c) The obligations of Amneal under this Agreement are not subject to any conditions regarding Amneal’s, its Affiliates’ or any other person’s ability to obtain financing for the consummation of the Transactions contemplated hereby.
 Section 4.26 Exclusivity of Representations; No Limitation of Other Representations . The representations and warranties made by Amneal in this Article IV are the exclusive representations and warranties made by Amneal and its Subsidiaries. Amneal hereby acknowledges that neither Amneal nor any of its Subsidiaries, nor any of their respective equityholders or Representatives, nor any other person, has made or is making any other express or implied representation or warranty with respect to Amneal and its Subsidiaries or any of their respective businesses, operations, assets or liabilities, including with respect to any information provided or made available to Impax or any of its Subsidiaries or Representatives, including in certain “data rooms,” management presentations or other information provided or made available to Impax or its Subsidiaries or Representatives in anticipation or contemplation of any of the Transactions contemplated hereby. Furthermore, in connection with the due diligence investigation of Amneal, its Subsidiaries and their business and operations by and on behalf of Impax and its Subsidiaries and Representatives, such persons have received and may continue to receive certain estimates, projections, forecasts and other forward-looking information, as well as certain business plan information, regarding Amneal, its Subsidiaries and their business and operations. Impax hereby acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, forecasts and other forward-looking statements, as well as in such business plans, that Impax is taking full responsibility for making
 
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its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts and other forward-looking information, as well as such business plans, so furnished to it (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, forward-looking information or business plans), and that no representation or warranty is being made with respect thereto. Nothing in any representation or warranty in this Agreement shall in any way limit or restrict the scope, applicability or meaning of any other representation or warranty made by Amneal in this Agreement.
 ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
 Section 5.01 Conduct of Business .
(a) Conduct of Business by Impax . During the period from the date of this Agreement until the earlier of the Closing and the date, if any, on which this Agreement is terminated, Impax shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course of business and use its commercially reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers, employees and consultants and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it with the intention that its goodwill and ongoing business shall not be materially impaired at the Closing. Without limiting the generality of the foregoing, during the period from the date of this Agreement until the earlier of the Closing and the date, if any, on which this Agreement is terminated, except as provided on Section 5.01(a) of the Impax Disclosure Letter and except as expressly contemplated by this Agreement (including the Impax Pre-Closing Actions) or required by applicable Law or the requirements of any applicable securities exchanges, Impax shall not, and shall not permit any of its Subsidiaries to, without Amneal’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed):
(i) except for any dispositions of shares of capital stock in connection with any net-cash exercise of any Impax Option or to satisfy withholding Tax obligations in respect of any Impax Option or Impax Restricted Share, and any forfeitures or repurchases of unvested Impax Restricted Shares or other shares of capital stock as may have been issued pursuant to or granted as awards under the Impax Stock Plans: (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of Impax to its parent; (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; or (C) purchase, redeem or otherwise acquire any shares of its capital stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) except as otherwise permitted under Section 5.01(a)(xi) , issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units (other than the issuance of shares of Impax Common Stock upon the exercise of Impax Options outstanding on the date of this Agreement or granted in accordance with the terms of this Agreement, in each case in accordance with their terms on the date of this Agreement);
(iii) other than as contemplated by this Agreement in furtherance of the Transactions, amend the Impax Charter (including by merger, consolidation or otherwise) or the Impax Bylaws or the comparable charter or organizational documents of any of its Subsidiaries or adopt a shareholders’ rights plan or similar plan, or enter into any agreement with respect to the voting of its capital stock;
(iv) except for (A) inventory and supplies purchased in the ordinary course of business and (B) capital expenditures that are permitted to be made pursuant to clause (vi) below: (1) directly or indirectly acquire by merging or consolidating with, or by purchasing all of or a substantial equity interest in, or by any other
 
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manner, any division, business or equity interest of any person or (2) directly or indirectly acquire material assets (as distinguished from services) in an individual transaction, in the case of either (1) or (2), for an aggregate purchase price in excess of $25,000,000 (not including contingent or milestone consideration payable upon the occurrence of future events);
(v) except in the ordinary course of business, sell, lease, license, mortgage, sell and leaseback, abandon or otherwise encumber or subject to any Lien (other than Permitted Liens) or otherwise dispose of any material assets to a third party for a purchase price in an individual transaction in excess of $10,000,000 per calendar year;
(vi) except for any capital expenditures as may be incurred (A) with the proceeds (or in reasonable expectation of the proceeds) of any applicable insurance policy of Impax or any of its Subsidiaries or (B) in connection with the making of repairs, replacements of assets or for other similar purposes necessary to allow for the continued operation of the business of Impax and/or any of its Subsidiaries in the ordinary course of business: fund any capital expenditure in any calendar year which, when added to all other capital expenditures made by Impax and its Subsidiaries in such calendar year, would exceed by more than $8,000,000 the aggregate amount budgeted for capital expenditures in such calendar year (as set forth on Section 5.01(a)(vi) of the Impax Disclosure Letter);
(vii) except for (A) any loans, advances, capital contributions or investments that are required to be made by Impax or any of its Subsidiaries pursuant to the terms of any Contract to which Impax or any of its Subsidiaries is a party as of the date of this Agreement, (B) borrowings under Impax’s existing revolving credit facilities set forth on Section 5.01(a)(vii)(B) of the Impax Disclosure Letter in the ordinary course of business or to the extent required by any Contract to which Impax or any of its Subsidiaries is a party as of the date of this Agreement, (C) borrowings in connection with acquisitions permitted pursuant to clause (iv) above, and (D) any arrangements solely among Impax and/or its Subsidiaries: (1) repurchase, prepay or refinance any Indebtedness in an amount greater than $3,500,000 in the aggregate per calendar year, except as required by the terms of such Indebtedness; (2) incur any Indebtedness or issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Impax or any of its Subsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, in each case in an amount greater than $3,500,000 per calendar year; (3) make any loans, advances or capital contributions to, or investments in, any other person; or (4) enter into, amend or otherwise modify, renew or terminate any Contract in respect of any of the foregoing;
(viii) commence or re-commence the manufacture, marketing, promotion, sale, offer for sale or other commercialization, shipment, import, export or distribution (“ Commercialization ”) of any product that is the subject of any Litigation Proceeding involving an allegation that such product or the making, use, sale or offer for sale of such product infringes any third-party patent, until the earlier of (A) the dismissal of such Litigation Proceeding in connection with the settlement thereof, provided that such Commercialization of such product is permitted by the terms of such settlement, and provided that such settlement has been entered into in compliance with this Section 5.01(a) , or (B) the entering of a favorable, final court judgment from which no appeal has been or can be taken (other than a petition to the Supreme Court for a writ of certiorari) of the invalidity, unenforceability, or non-infringement of all asserted claims of such patent or of the failure to timely bring suit with respect to all such allegations of infringement (in each case, excluding patents relating to such product with respect to which a third party plaintiff failed to bring suit in such Litigation Proceeding);
(ix) settle or compromise any Litigation Proceeding, audit, or investigation against Impax or any of its Subsidiaries, other than settlements or compromises of any Litigation Proceeding, audit, or investigation (1) in the ordinary course of business (which, for the avoidance of doubt, includes any such settlements relating to patent litigation) or (2) where the amount paid in settlement or compromise does not exceed $250,000 individually (for any employment-related matters) or $2,000,000 individually (for any matters unrelated to employment) and does not require the imposition of equitable relief on, or the admission of wrongdoing by, Impax;
 
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(x) except in the ordinary course of business, enter into, terminate or affirmatively determine not to renew, or modify, waive or release any material provision, rights or claims under any Impax Material Contract or Impax Lease;
(xi) other than for purchases of goods or services which are entered into in the ordinary course of business on arms-length terms, enter into, modify, amend or terminate (including by exercising any buyout, termination or similar right under) any Contract with any Affiliate of Impax (other than any of its wholly owned Subsidiaries);
(xii) (A) make, grant or promise any bonus (including long-term cash incentive awards) or any wage, salary, or other compensation or benefits increase to any employee, officer or director or individual consultant, or make, grant or promise any other change in employment terms for any employee, officer or director (including increases to compensation and benefits in connection with promotions permitted under the terms of this Agreement), other than such grants or promises made in the ordinary course of business, which, in the aggregate, result in an increase of no greater than four percent (4%) of the aggregate compensation costs of Impax and its Subsidiaries as compared to 2017 budgeted compensation costs for such period (including, for the avoidance of doubt, bonus amounts in respect of Impax’s 2017 fiscal year irrespective of the year in which such bonuses are paid); (B) except in the ordinary course of business for employees or individual consultants whose base salary or, in the case of individual consultants, base compensation, is or will be after the following actions are taken, less than $200,000, enter into or amend any employment, change of control, retention, severance or similar agreement, or grant any severance or termination pay, modifications thereto or increases thereof; (C) except as may be required to implement the actions contemplated by this Agreement, accelerate the vesting or payment of any compensation or benefit under any Impax Plan; (D) hire or promote any individual consultant or employee except for hiring or promotion of any individual consultant or employee (i) in the ordinary course of business, (ii) whose annual base salary (or compensation, in case of consultant) is less than $200,000 or, if applicable, would be less than such amount upon their hiring or promotion, (iii) to fill any open position that is unfilled as of the date hereof or becomes unfilled following the date hereof as a result of an employee’s termination of employment or resignation or (iv) whose hiring or promotion was approved in writing by Amneal, which approval will not be unreasonably withheld, conditioned or delayed; (E) increase the funding obligation or contribution rate of any Impax Plan, other than in the ordinary course of business; (F) award or promise to award any equity or equity-based awards; or (G) establish, amend or terminate any Impax Plan, or materially change the level of health, dental and visions benefits as compared to health, dental and vision benefits provided on the date of this Agreement, except to the extent such changes (1) do not materially increase the total annualized cost of Impax Plans and (2) do not materially interfere with integration of the Impax Plans and Amneal Plans to occur after the Closing, in each case of (A) through (G), other than as required by applicable Law or pursuant to any Impax Plan as in effect on the date of this Agreement;
(xiii) modify in any material respect, adopt or enter into any collective bargaining agreement or other labor union contract applicable to the employees of Impax or any of its Subsidiaries;
(xiv) fail to use reasonable efforts to maintain existing material insurance policies or comparable replacement policies to the extent available for a reasonable cost;
(xv) change its fiscal year, revalue any of its material assets or make any material changes in financial, actuarial, reserving, statutory or Tax accounting methods, principles or practices, except in each case as required by GAAP or applicable Law;
(xvi) make, change or rescind any material Tax election;
(xvii) settle or compromise any material audit, claim examination or other proceeding with respect to Taxes;
(xviii) enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any material Tax, other than such agreements entered into in the ordinary course of business no principal purpose of which is related to Taxes;
 
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(xix) surrender any right to claim a material Tax refund;
(xx) consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(xxi) terminate, suspend, abrogate, amend or modify in any material respect any Impax Permits in a manner that would materially impair the operation of the business of Impax or any of its Subsidiaries; or
(xxii) authorize any of, or commit, propose or agree to take any of, the foregoing actions.
(b) Conduct of Business by Amneal . During the period from the date of this Agreement until the earlier of the Closing and the date, if any, on which this Agreement is terminated, Amneal shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course of business and use its commercially reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers, employees and consultants and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it with the intention that its goodwill and ongoing business shall not be materially impaired at the Closing. Without limiting the generality of the foregoing, during the period from the date of this Agreement until the earlier of the Closing and the date, if any, on which this Agreement is terminated, except as provided on Section 5.01(b) of the Amneal Disclosure Letter and except as expressly contemplated by this Agreement (including the Amneal Pre-Closing Actions) or required by applicable Law or the requirements of any applicable securities exchanges, Amneal shall not, and shall not permit any of its Subsidiaries to, without Impax’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed):
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any Amneal Equity Award or any of its capital stock, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of Amneal to its parent; (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (including its capital stock that is subject to any Amneal Equity Award); or (C) purchase, redeem or otherwise acquire any Amneal Equity Awards or any shares of its capital stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units (including, for the avoidance of doubt, any Amneal Equity Awards or interests or rights that would be Amneal Equity Awards if outstanding as of the date of this Agreement);
(iii) amend the Amneal LLC Operating Agreement or enter into any agreement with respect to the voting of its membership interests, in each case other than in connection with the Transactions and the Ancillary Transactions;
(iv) except for (A) inventory and supplies purchased in the ordinary course of business and (B) capital expenditures that are permitted to be made pursuant to clause (v) below: (1) directly or indirectly acquire by merging or consolidating with, or by purchasing all of or a substantial equity interest in, or by any other manner, any division, business or equity interest of any person or (2) directly or indirectly acquire material assets (as distinguished from services) in an individual transaction, in the case of either (1) or (2), for an aggregate purchase price in excess of $25,000,000 (not including contingent or milestone consideration payable upon the occurrence of future events);
(v) except in the ordinary course of business, sell, lease, license, mortgage, sell and leaseback, abandon or otherwise encumber or subject to any Lien (other than Permitted Liens) or otherwise dispose of any material assets to a third party for a purchase price in an individual transaction in excess of $25,000,000 per calendar year;
 
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(vi) except for any capital expenditures as may be incurred (A) with the proceeds (or in reasonable expectation of the proceeds) of any applicable insurance policy of Amneal or any of its Subsidiaries or (B) in connection with the making of repairs, replacements of assets or for other similar purposes necessary to allow for the continued operation of the business of Amneal and/or any of its Subsidiaries in the ordinary course of business: fund any capital expenditure in any calendar year which, when added to all other capital expenditures made by Amneal and its Subsidiaries in such calendar year, would exceed by more than $20,000,000 the aggregate amount budgeted for capital expenditures in such calendar year (as set forth on Section 5.01(b)(vi) of the Amneal Disclosure Letter);
(vii) except for (A) any loans, advances, capital contributions or investments that are required to be made by Amneal or any of its Subsidiaries pursuant to the terms of any Contract to which Amneal or any of its Subsidiaries is a party as of the date of this Agreement, (B) borrowings under Amneal’s existing revolving credit facilities set forth on Section 5.01(b)(vii)(B) of the Amneal Disclosure Letter in the ordinary course of business or to the extent required by any Contract to which Amneal or any of its Subsidiaries is a party as of the date of this Agreement, (C) borrowings in connection with acquisitions permitted pursuant to clause (iv) above and (D) any arrangements solely among Amneal and/or its Subsidiaries: (1) repurchase, prepay or refinance any Indebtedness in an amount greater than $5,000,000 in the aggregate per calendar year, except as required by the terms of such Indebtedness; (2) incur any Indebtedness or issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Amneal or any of its Subsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, in each case in an amount greater than $5,000,000 per calendar year; (3) make any loans, advances or capital contributions to, or investments in, any other person or (4) enter into, amend or otherwise modify, renew or terminate any Contract in respect of any of the foregoing;
(viii) commence or re-commence the Commercialization of any product that is the subject of any Litigation Proceeding involving an allegation that such product or the making, use, sale or offer for sale of such product infringes any third-party patent, until the earlier of (A) the dismissal of such Litigation Proceeding in connection with the settlement thereof, provided that such Commercialization of such product is permitted by the terms of such settlement, and provided that such settlement has been entered into in compliance with this Section 5.01(b) , or (B) the entering of a favorable, final court judgment from which no appeal has been or can be taken (other than a petition to the Supreme Court for a writ of certiorari) of the invalidity, unenforceability or non-infringement of all asserted claims of such patent or the failure to timely bring suit with respect to all such allegations of infringement (in each case, excluding patents relating to such product with respect to which a third party plaintiff failed to bring suit in such Litigation Proceeding);
(ix) settle or compromise any Litigation Proceeding, audit, or investigation against Amneal or any of its Subsidiaries, other than settlements or compromises of any Litigation Proceeding, audit, or investigation (1) in the ordinary course of business (which, for the avoidance of doubt, includes any such settlements relating to patent litigation) or (2) where the amount paid in settlement or compromise does not exceed $250,000 individually (for any employment-related matters) or $2,000,000 individually (for any matters unrelated to employment) and does not require the imposition of equitable relief on, or the admission of wrongdoing by, Amneal;
(x) except in the ordinary course of business, enter into, terminate or affirmatively determine not to renew, or modify, waive or release any material provision, rights or claims under any, Amneal Material Contract;
(xi) other than for purchases of goods or services which are entered into in the ordinary course of business on arms-length terms, enter into, modify, amend or terminate (including by exercising any buyout, termination or similar right under) any Contract with any Affiliate of Amneal (other than any of its wholly-owned Subsidiaries);
 
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(xii) (A) make, grant or promise any bonus (including long-term cash incentive awards) or any wage, salary, or other compensation or benefits increase to any employee, officer or director or individual consultant, or make, grant or promise any other change in employment terms for any employee, officer or director (including increases to compensation and benefits in connection with promotions permitted under the terms of this Agreement), other than such grants or promises made in the ordinary course of business (1) in connection with Amneal’s annual review process for service provider compensation and benefits or (2) which, in the aggregate, result in an increase of no greater than four percent (4%) of the aggregate compensation costs of Amneal and its Subsidiaries as compared to 2017 budgeted compensation costs for such period; (B) except in the ordinary course of business for employees or individual consultants whose base salary or, in the case of individual consultants, base compensation, is or will be after the following actions are taken, less than $200,000, enter into or amend any employment, change of control, retention, severance or similar agreement, or grant any severance or termination pay, modifications thereto or increases thereof; (C) except as may be required to implement the actions contemplated by this Agreement, accelerate the vesting or payment of any compensation or benefit under any Amneal Plan; (D) hire or promote any individual consultant or employee except for hiring or promotion of any individual consultant or employee (i) in the ordinary course of business, (ii) whose annual base salary (or compensation, in case of consultant) is less than $200,000 or, if applicable, would be less than such amount upon their hiring or promotion, (iii) to fill any open position that is unfilled as of the date hereof or becomes unfilled following the date hereof as a result of an employee’s termination of employment or resignation or (iv) whose hiring or promotion was approved in writing by Impax, which approval will not be unreasonably withheld, conditioned or delayed; (E) increase the funding obligation or contribution rate of any Amneal Plan, other than in the ordinary course of business; (F) award or promise to award any equity or equity-based awards; or (G) establish, amend or terminate any Amneal Plan, or materially change the level of health, dental and visions benefits as compared to health, dental and vision benefits provided on the date of this Agreement, other than changes that (1) arise in the ordinary course of business in connection with Amneal’s annual review process for service provider compensation and benefits or (2) (x) do not materially increase the total annualized cost of Amneal Plans and (y) do not materially interfere with integration of the Impax Plans and Amneal Plans to occur after the Closing, in each case of (A) through (G), other than as required by applicable Law or pursuant to any Amneal Plan as in effect on the date of this Agreement;
(xiii) modify in any material respect, adopt or enter into any collective bargaining agreement or other labor union contract applicable to the employees of Amneal or any of its Subsidiaries;
(xiv) fail to use reasonable efforts to maintain existing material insurance policies or comparable replacement policies to the extent available for a reasonable cost;
(xv) change its fiscal year, revalue any of its material assets or make any material changes in financial, actuarial, reserving, statutory or Tax accounting methods, principles or practices, except in each case as required by GAAP or applicable Law;
(xvi) make, change or rescind any material Tax election;
(xvii) settle or compromise any material audit, claim, examination or other proceeding with respect to Taxes;
(xviii) enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any material Tax, other than such agreements entered into in the ordinary course of business no principal purpose of which is related to Taxes;
(xix) surrender any right to claim a material Tax refund;
(xx) consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(xxi) terminate, suspend, abrogate, amend or modify in any material respect any Amneal Permits in a manner that would materially impair the operation of the business of Amneal or any of its Subsidiaries; or
 
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(xxii) authorize any of, or commit, propose or agree to take any of, the foregoing actions.
(c) No Control . Nothing contained in this Agreement shall give Amneal, directly or indirectly, the right to control or direct Impax’s or its Subsidiaries’ operations prior to the Closing, and nothing contained in this Agreement shall give Impax, directly or indirectly, the right to control or direct Amneal’s or its Subsidiaries’ operations prior to the Closing. Prior to the Closing, each of Impax and Amneal shall exercise, subject to the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
 Section 5.02 Solicitation by Impax; Competing Proposals; Change of Recommendation .
(a) No Solicitation by Impax . Impax shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease any discussions or negotiations with any persons that are ongoing with respect to any Competing Proposal, or any inquiry, proposal or offer that would reasonably be expected to lead to a Competing Proposal. Except as permitted by this Section 5.02 , until the earlier of the Impax Merger Effective Time and the termination of this Agreement in accordance with Article VIII , not (A) initiate, solicit or knowingly facilitate or encourage the submission of any inquiry, proposal or offer regarding a Competing Proposal, (B) furnish any information regarding Impax or any of its Subsidiaries to any person in connection with, for the purpose of encouraging or facilitating, or in response to, a Competing Proposal, (C) participate in any discussions or negotiations with respect to any Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Competing Proposal or (D) execute or enter into, or agree to enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Competing Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of this Agreement) (a “ Competing Proposal Agreement ”). Promptly, and in any event no later than one Business Day following the date of this Agreement, Impax shall, and shall cause its Subsidiaries and its and their respective Representatives to, request the prompt return or destruction of all confidential information previously furnished in connection with a potential Competing Proposal to any person with whom Impax or any of its Representatives has had discussions or negotiations with respect to a Competing Proposal in the last twelve (12) months and shall terminate all physical and electronic dataroom access previously granted to any such person or its Representatives.
(b) Provision of Information and Notice of a Competing Proposal . Notwithstanding anything to the contrary contained in this Section 5.02 , if at any time prior to (but not after) Impax obtaining the Impax Stockholder Approval, (i) Impax has received a bona fide written Competing Proposal that has not resulted from a material breach of this Section 5.02 , (ii) the Impax Board determines in good faith, after consultation with its outside financial advisor and outside counsel, that such Competing Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and (iii) the Impax Board determines in good faith, after consultation with its outside counsel, that failure to take such action would be inconsistent with its fiduciary duties to the stockholders of Impax under applicable Law, then Impax may, subject to compliance with this Section 5.02 , (A) furnish information with respect to Impax and any Subsidiaries of Impax to the person making such Competing Proposal and its Representatives and (B) participate in discussions or negotiations with the person making such Impax Competing Proposal and its Representatives regarding such Competing Proposal; provided , however , that Impax (1) will not, and will not permit or authorize its Subsidiaries or any Representative of Impax or its Subsidiaries to, disclose any information to such person without first entering into an Acceptable Confidentiality Agreement with such person and (2) will as promptly as practicable (and in any event within 24 hours thereafter) provide or make available to Amneal any material information concerning Impax or any Subsidiary of Impax provided or made available to such other person (or its Representatives) that was not previously provided or made available to Amneal. Subject to the undertakings of the Confidentiality Agreement, Impax will promptly (and in any event, within 24 hours) notify Amneal in the event Impax, any Subsidiary of Impax or any of its Representatives receives (x) notice by any person that such person intends to make a Competing Proposal, (y) any inquiry or request for information or for discussions or negotiations from which it is apparent that such inquiry or request is being made in contemplation of or in preparation for a Competing Proposal or (z) a Competing Proposal, and
 
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shall (I) indicate, in connection with such notice, the identity of the person making such inquiry or Competing Proposal, requesting such information or seeking to initiate such discussions or negotiations, together with a summary of the material terms and conditions of such Competing Proposal (including, if applicable, copies of any written inquiry, notice, request or Competing Proposal) or the nature of the request for information, as applicable, and (II) thereafter keep Amneal reasonably informed, on a reasonably current basis, of the status and terms of any such discussions or negotiations. Impax shall not, and shall cause its Subsidiaries not to, enter into any agreement with any person that prohibits Impax from providing to Amneal any of the information required to be provided to Amneal under this Section 5.02(b) within the time periods contemplated hereby. Notwithstanding anything to the contrary in this Section 5.02 , the Impax Board may correspond in writing with any person making a Competing Proposal solely to request clarification of the terms and conditions thereof so as to determine whether such Competing Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, provided that such written correspondence is delivered concurrently to Amneal. Impax shall not terminate, waive, amend or modify any provision of, grant permission under, any “standstill,” confidentiality or non-disclosure agreement to which Impax is a party, and Impax shall enforce the provisions of each such agreement; provided , that Impax shall be permitted to fail to enforce any provision of any “standstill,” confidentiality or non-disclosure agreement if the Impax Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties to Impax’s stockholders under applicable Law; provided , however , that Impax promptly advises Amneal that it is taking such action and the identity of the party or parties with respect to which it is taking such action.
(c) Board Recommendation . Except as set forth in Section 5.02(d) and Section 5.02(f) , neither the Impax Board nor any committee thereof shall (i) authorize, approve, recommend or declare advisable, or publicly propose to authorize, approve, recommend or declare advisable, any Competing Proposal, (ii) withhold, withdraw, amend, qualify or modify, or publicly propose to withhold, withdraw, amend, qualify or modify, the Impax Board Recommendation or any other approval, recommendation or declaration of advisability by the Impax Board or any such committee of this Agreement or any of the Transactions, (iii) fail to include the Impax Board Recommendation in the Proxy Statement/Prospectus, (iv) adopt, approve or recommend or otherwise declare advisable a Competing Proposal, (v) submit any Competing Proposal or any matter related thereto to the vote of the stockholders of Impax or (vi) announce its intention, authorize, commit, resolve or agree to take any of the foregoing actions (each action set forth in clauses (i) through (v) of this Section 5.02(c) , a “ Change of Recommendation ”).
(d) Entry Into a Competing Proposal . Notwithstanding anything to the contrary contained in this Agreement, at any time prior to (but not after) obtaining the Impax Stockholder Approval and subject to compliance with Section 8.02(a)(iii) and this Section 5.02(d) , the Impax Board may: (i) make a Change of Recommendation in connection with a Superior Proposal or (ii) cause Impax to enter into a Competing Proposal Agreement with respect to a Superior Proposal and terminate this Agreement pursuant to Section 8.01(d)(ii) , if (A) there has been no material breach of this Section 5.02 , (B) a bona fide, written Competing Proposal is made to Impax and/or its stockholders by a third person, (C) the Impax Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, and after complying with Section 5.02(e) , that such Competing Proposal constitutes a Superior Proposal and (D) the Impax Board determines in good faith after consultation with Impax’s outside legal counsel that the failure to take any of the actions referred to in either of clause (i) or (ii) above would violate the fiduciary duties owed by the Impax Board to the stockholders of Impax under applicable Law.
(e) Matching Rights With Respect to Superior Proposal . Neither Impax nor the Impax Board shall take any of the actions described in Section 5.02(d)(i) or Section 5.02(d)(ii) unless Impax provides Amneal ninety six (96) hours’ prior written notice of its intention to take such action (a “ Notice of Superior Proposal Action ”), which notice shall include the identity of the person making such Superior Proposal and the material terms and conditions of such Superior Proposal and, if applicable, shall attach the proposed Competing Proposal Agreement providing for such Superior Proposal (it being agreed that, in each case, neither the delivery of such notice by Impax nor any public announcement thereof that the Impax Board determines in good faith, after consultation
 
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with outside counsel, is required to be made under applicable Law shall constitute a Change of Recommendation), (y) to the extent requested by Amneal, Impax negotiates in good faith with Amneal with respect to any changes to the terms of this Agreement proposed by Amneal for at least ninety six (96) hours following delivery by Impax of such Notice of Superior Proposal Action (it being understood and agreed that any amendment to any material term of any Competing Proposal will be deemed a new Competing Proposal for purposes of this Section 5.02(e) , including with respect to the notice period referenced in this Section 5.02(e) , except that the ninety six (96)-hour period shall be reduced to seventy two (72) hours for such purposes) and (z) taking into account any binding changes to the terms of this Agreement definitively and irrevocably agreed to by Amneal in writing, the Impax Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Competing Proposal would continue to constitute a Superior Proposal if such changes definitively and irrevocably agreed to by Amneal in writing were to be given effect. For the avoidance of doubt, the preceding sentences of this Section 5.02(e) shall apply to each Competing Proposal that triggers a Notice of Superior Proposal Action.
(f) Intervening Event Unrelated to Superior Proposal . Notwithstanding anything to the contrary contained in this Agreement, at any time prior to (but not after) the time the Impax Stockholder Approval is obtained, solely in respect of an Intervening Event, the Impax Board may make a Change of Recommendation other than in connection with a Competing Proposal (it being understood and agreed that any Change of Recommendation proposed to be made in connection with a Competing Proposal may only be made pursuant to and in accordance with Section 5.02(d) ) only if (i) Impax has provided Amneal ninety six (96) hours prior written notice of the occurrence of an Intervening Event and its intention to consider making a Change of Recommendation (a “ Notice of Change of Recommendation ”), which notice shall include a description of such Intervening Event in reasonable detail (it being agreed that neither the delivery of such Notice of Change of Recommendation by Impax nor any public announcement thereof that the board of directors of Impax determines in good faith, after consultation with outside counsel, is required to be made under applicable Law shall constitute a Change of Recommendation), (ii) Impax has negotiated in good faith with Amneal with respect to any changes to the terms of this Agreement proposed by Amneal for at least ninety six (96) hours following delivery by Impax of such Notice of Change of Recommendation and (iii) taking into account any binding changes to the terms of this Agreement definitively and irrevocably agreed to by Amneal in writing, the Impax Board determines in good faith after consultation with outside legal counsel that the failure to effect a Change of Recommendation would be inconsistent with the fiduciary duties of the members of the Impax Board under applicable Law. Notwithstanding any such Change of Recommendation made pursuant to this Section 5.02(f) , unless this Agreement is otherwise terminated in accordance with its terms, consistent with Section 146 of the DGCL, Impax shall submit this Agreement to the stockholders of Impax for their consideration at the Impax Stockholder Meeting.
(g) No Effect on Duty to Disclose . Nothing contained in this Section 5.02 or elsewhere in this Agreement shall prohibit Impax or the Impax Board from (i) complying with its disclosure obligations under applicable United States federal or state Law with respect to a Competing Proposal, including taking and disclosing to the stockholders of Impax a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to stockholders) or (ii) making any disclosure to the stockholders of Impax if the Impax Board determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties to the stockholders of Impax under applicable Law; provided , however , that this Section 5.02(g) shall not be deemed to permit the Impax Board to make a Change of Recommendation except to the extent permitted by Section 5.02(d) or Section 5.02(f) (for the avoidance of doubt, it being agreed that the issuance by Impax or the Impax Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to stockholders) shall not constitute a Change of Recommendation).
 
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(h) Breach . Impax agrees that any breach or violation of, or non-compliance with, this Section 5.02 by any Representative of Impax or any of its Subsidiaries, whether or not such person is purporting to act on behalf of Impax or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Impax.
 ARTICLE VI
ADDITIONAL AGREEMENTS
 Section 6.01 Registration Statement; Proxy Statement/Prospectus .
(a) As promptly as practicable after the date of this Agreement, Amneal and Impax shall jointly prepare, and shall cause Holdco to file with the SEC the Registration Statement, which will include the Proxy Statement/Prospectus constituting a part thereof, and each of Amneal and Impax shall promptly furnish all information concerning itself and its Affiliates as may be reasonably requested by the other party and shall otherwise reasonably assist and cooperate with the other in connection with the preparation, filing and distribution of the Registration Statement. Each of Amneal and Impax will use their respective reasonable best efforts to (i) cause the Registration Statement and the Proxy Statement/Prospectus, when filed, to comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC or its staff concerning the Registration Statement and the Proxy Statement/Prospectus, (iii) have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and (iv) keep the Registration Statement effective for so long as necessary to complete the Transactions.
(b) No filing of, or amendment or supplement to, the Registration Statement or the Proxy Statement/Prospectus, or response to SEC comments with respect thereto, will be made by Amneal or Impax, as applicable, without the other’s prior consent (which shall not be unreasonably withheld, conditioned or delayed) and without providing the other party a reasonable opportunity to review and comment thereon. Impax will cause the Proxy Statement/Prospectus to be mailed to its stockholders as promptly as reasonably practicable after the Registration Statement is declared effective under the Securities Act (but in no event earlier than the record date set by Impax for the Impax Stockholder Meeting).
(c) Amneal or Impax, as applicable, will promptly notify the other upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Registration Statement or the Proxy Statement/Prospectus, and will, as promptly as practicable after receipt thereof, provide the other with copies of all material correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand, and all written comments with respect to the Registration Statement or the Proxy Statement/Prospectus received from the SEC and advise the other on any oral comments with respect to the Registration Statement or the Proxy Statement/Prospectus received from the SEC. Impax will advise Amneal, promptly after Holdco receives notice thereof, of the time of effectiveness of the Registration Statement and the issuance of any stop order relating thereto or the suspension of the qualification of the shares of Class A Common Stock issuable in connection with the Impax Merger for offering or sale in any jurisdiction, and Amneal and Impax will use their respective reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated.
(d) Impax and Amneal will also use their respective reasonable best efforts to take any other action required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or “blue sky” Laws and the rules and regulations thereunder in connection with the Transactions. If at any time prior to the Impax Merger Effective Time any information relating to Amneal or Impax, or any of their respective Affiliates, officers or directors, is discovered by Amneal or Impax which should be set forth in an amendment or supplement to the Registration Statement or the Proxy Statement/Prospectus, so that any of such documents would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party hereto and each of Amneal and Impax shall use
 
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its reasonable best efforts to cause an appropriate amendment or supplement describing such information to be promptly filed with the SEC and, to the extent required by law, disseminated to Impax Stockholders.
 Section 6.02 Impax Stockholder Meeting . Impax shall take all action necessary under applicable Law to call, give notice of and hold a meeting of its stockholders (the “ Impax Stockholder Meeting ”) for purposes of adopting this Agreement and thereby approving the Transactions, including the Impax Merger, which shall be held as promptly as practicable after the Registration Statement is declared effective under the Securities Act. Impax shall not, without the consent of Amneal (which shall not be unreasonably withheld, conditioned or delayed), adjourn or postpone, cancel, recess or reschedule, the Impax Stockholder Meeting; provided , that Impax may, without the consent of (but after consultation with) Amneal, adjourn or postpone the Impax Stockholder Meeting (i) if, as of the time for which the Impax Stockholder Meeting is originally scheduled (as set forth in the Proxy Statement/Prospectus), there are insufficient shares of Impax Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Impax Stockholder Meeting, (ii) if the failure to adjourn or postpone the Impax Stockholder Meeting would reasonably be expected to be a violation of applicable Law or for the distribution of any required supplement or amendment to the Proxy Statement/Prospectus or (iii) to solicit additional proxies if Impax reasonably determines that it is advisable or necessary to do so in order to obtain the Impax Stockholder Approval. Except to the extent that the Impax Board shall have effected a Change of Recommendation, Impax shall include in the Proxy Statement/Prospectus the Impax Board Recommendation. Promptly following the execution and delivery of this Agreement, Impax shall (i) cause Holdco, in its capacity as sole stockholder of Merger Sub, to approve the Impax Merger and (ii) approve, in its capacity as the sole stockholder of Holdco, the Contribution, in each case in accordance with applicable requirements of the DGCL and Impax shall deliver evidence of such approvals to Amneal promptly following the date of this Agreement.
 Section 6.03 Access to Information; Confidentiality . Each of Impax and Amneal shall afford to the other and its Representatives reasonable access during normal business hours during the period from the date of this Agreement until the earlier of the Closing and the date, if any, on which this Agreement is terminated to all of its and its Subsidiaries’ properties, books, Contracts, commitments, personnel and records and, during such period, and each of Impax and Amneal shall furnish promptly to the other (a) a copy of each report, schedule, registration statement and other document filed by such party during such period and not publicly available pursuant to the requirements of federal or state securities Laws and (b) consistent with its legal obligations, all other information concerning the party and its Subsidiaries’ business, properties and personnel as the other party or any of its Representatives may reasonably request; provided , however , that such party may restrict the foregoing access to the extent that any applicable Law or any Contract to which it is a party, requires it to restrict access to any properties or information or in order to maintain attorney-client or other privilege; provided , further , that in any such case, the parties shall cooperate to seek to provide for access in a manner that does not violate any such Law or Contract or attorney-client or other privilege. Except for disclosures expressly permitted by the terms of the Confidential Disclosure Agreement, dated April 12, 2017, between APHC and Impax (as it may be amended from time to time, the “ Confidentiality Agreement ”), each of Impax and Amneal shall hold, and shall cause its Representatives to hold, all information received from the other party, directly or indirectly, in confidence in accordance with and otherwise subject to the Confidentiality Agreement. No investigation pursuant to this Section 6.03 or information provided, made available or delivered pursuant to this Agreement will affect or be deemed to modify any of the representations or warranties of Impax or Amneal contained in this Agreement or the conditions hereunder to the obligations of the parties hereto.
 Section 6.04 Regulatory Approvals; Efforts .
(a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Transactions, subject to the express provisions of this Agreement (including the provisions of Section 5.02 ), including using reasonable best efforts to accomplish the
 
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following: (i) the taking of all acts necessary to cause the conditions to Closing to be satisfied as promptly as practicable, (ii) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Authorities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an adverse action or proceeding by, any Governmental Authority (including in connection with the HSR Act and any other applicable Competition Laws), (iii) the obtaining of all necessary consents, approvals or waivers from third parties and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In furtherance of the foregoing, the party subject to the applicable requirement of a Governmental Authority or party to the applicable agreement requiring a consent or waiver shall be primarily responsible for communications with the applicable Governmental Authority or other third party and the other party hereto shall reasonably cooperate in such efforts. In connection with and without limiting the first sentence of this Section 6.04(a) , each of Impax and the Impax Board, Holdco and the Holdco Board, and Amneal and the Amneal Board shall (A) take no action to cause any state takeover statute or similar statute or regulation to become applicable to this Agreement or the Transactions and (B) if any state takeover statute or similar statute is or becomes applicable to this Agreement or the Transactions, take all action reasonably necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement and the Transactions.
(b) In connection with and without limiting the foregoing, each party hereto shall make or cause to be made any appropriate filings, if necessary or advisable, pursuant to the HSR Act or other applicable Competition Laws with respect to the Transactions as promptly as practicable (and in any event no later than ten (10) Business Days after the date of this Agreement with respect to filings under the HSR Act, unless otherwise mutually agreed between the parties). Each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Authority and to any requests for additional information at the earliest practicable date, including promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority and supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. Such information can be shared on an outside counsel basis or subject to other restrictions to the extent deemed necessary or advisable by counsel for the disclosing party. To the extent practicable and as permitted by a Governmental Authority, each party hereto shall permit Representatives of the other party to participate in material substantive meetings (whether by telephone or in person) with such Governmental Authority. Each party shall use its reasonable best efforts and closely collaborate on the timing, strategy and approach to (x) obtain any consents, approvals, authorizations or orders required to be obtained by Amneal or Impax or any of their respective Subsidiaries under the HSR Act or other applicable Competition Laws, (y) avoid the entry of any judgment in any claim asserted in court by any Governmental Authority under any Competition Laws that would restrain, prevent or delay the Closing or (z) contest or avoid any action, proceeding or litigation by any Governmental Authority under the HSR Act or other applicable Competition Laws.
(c) Notwithstanding anything to the contrary in Section 6.04(a) or Section 6.04(b) , nothing contained in this Agreement shall be construed to require either party to agree to, or take any action if such efforts or action, individually or in the aggregate, would reasonably be expected to result in a material adverse effect on the business, financial condition or results of operations of Amneal, Impax or the combined company (immediately following the Closing) (each of such actions, a “ Burdensome Condition ”). None of the parties nor any of its respective Subsidiaries shall take any action that has the effect of, or agree with any Governmental Authority to, any Burdensome Condition without the prior written consent of the other parties hereto.
 
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 Section 6.05 Indemnification; Insurance .
(a) From and after the Closing, Impax and Amneal shall, jointly and severally, indemnify, defend and hold harmless, and provide advancement of expenses to, the current and former directors and officers of Impax, Holdco and their respective Subsidiaries (the “ Impax Indemnified Parties ”) and the current and former members of the Amneal Board and officers of Amneal and its Subsidiaries (the “ Amneal Indemnified Parties ”), in each case to the fullest extent permitted by Law, including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL or the DLLCA adopted after the date of this Agreement that increase the extent to which a corporation or limited liability company may indemnify its officers and directors or any Impax Indemnified Party or Amneal Indemnified Party, from and against any and all costs or expenses (including attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur at or prior to the Closing (including for acts or omissions occurring in connection with the approval of this Agreement, the performance of Impax’s, Holdco’s and Amneal’s obligations under this Agreement and the consummation of the Transactions or arising out of or pertaining to the Transactions) whether asserted or claimed prior to, at or after the Closing.
(b) It is understood and agreed that all rights to indemnification, expense advancement and exculpation existing in favor of each present and former director, officer and employee of Impax, Holdco, Amneal or any of their respective Subsidiaries as provided in the Impax Charter, Impax Bylaws, the Amended and Restated Holdco Charter, the Amended and Restated Holdco Bylaws, Amneal LLC Operating Agreement or the charter or organizational documents of the Subsidiaries of Impax, Holdco or Amneal, in each case as in effect on the date of this Agreement, or under any other agreements in effect on the date of this Agreement (true, correct and complete copies of which have been delivered, as applicable, by Impax and Amneal to Amneal and Impax, respectively), will survive the Transactions and Impax, Holdco and Amneal will (i) continue in full force and effect for a period of at least six (6) years from the Closing Date (or, if any relevant claim is asserted or made within such six (6) year period, until final disposition of such claim) such rights to indemnification and expense advancement and (ii) perform, in a timely manner, Impax’s, Holdco’s or Amneal’s or their respective Subsidiaries’ obligations with respect thereto. Any claims for indemnification and expense advancement pursuant to such agreements and organizational documents as to which Impax, Holdco or Amneal has received written notice before the sixth (6th) anniversary of the Closing Date will survive, whether or not those claims will have been finally adjudicated or settled, and no action taken during such period may be deemed to diminish the obligations set forth in this Section 6.05(b) .
(c) For at least six (6) years after the Closing, Impax shall maintain (and Holdco shall cause Impax to maintain) in effect Impax’s current directors’ and officers’ liability insurance in respect of acts or omissions occurring at or prior to the Closing (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Transactions) covering the Impax Indemnified Parties currently covered by Impax’s directors’ and officers’ liability insurance policy (a true and complete copy of which has been heretofore made available to Amneal), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date of this Agreement; provided , however , that Impax may substitute therefor a tail policy or policies of Impax containing terms with respect to coverage and amount no less favorable to such Impax Indemnified Parties. The covenants contained in this Section 6.05(c) are intended to be for the benefit of, and shall be enforceable by, each of the Impax Indemnified Parties and their respective heirs and legal Representatives, and shall not be deemed exclusive of any other rights to which an Impax Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise.
(d) For at least six (6) years after the Closing, Amneal shall maintain (and Holdco shall cause Amneal to maintain) in effect Amneal’s current directors’ and officers’ liability insurance in respect of acts or omissions occurring at or prior to the Closing (including for acts or omissions occurring in connection with the approval of
 
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this Agreement and the consummation of the Transactions) covering the Amneal Indemnified Parties currently covered by Amneal’s directors’ and officers’ liability insurance policy (a true and complete copy of which has been heretofore made available to Impax), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date of this Agreement; provided , however , that Impax may substitute therefor a tail policy or policies of Amneal containing terms with respect to coverage and amount no less favorable to such Amneal Indemnified Parties. The covenants contained in this Section 6.05(d) are intended to be for the benefit of, and shall be enforceable by, each of the Amneal Indemnified Parties and their respective heirs and legal Representatives, and shall not be deemed exclusive of any other rights to which an Amneal Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise.
 Section 6.06 Fees and Expenses . Except as otherwise expressly set forth in this Agreement, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such fees or expenses, whether or not the Transactions are consummated.
 Section 6.07 Public Announcements . Prior to the Closing, Amneal and Impax shall consult with each other before issuing, and give each other the opportunity to review and comment upon, any press release or other public statements with respect to the Transactions, and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any securities exchange or securities quotation system. The parties hereto agree that the initial press release to be issued with respect to the Transactions shall be in the form heretofore agreed. Notwithstanding the foregoing, Amneal and Impax may, without the prior consent of the other party, reasonably disseminate information with respect to the Transactions to the extent such information was previously included in a press release or other public statement made pursuant to this Section 6.07 .
 Section 6.08 Stockholder Litigation . In the event that any stockholder litigation related to this Agreement or the Transactions is brought, or, to the Knowledge of Impax or Amneal, threatened in writing, against Impax or the members of the Impax Board prior to the Closing, each party shall promptly notify the other party of any such stockholder litigation brought, or, to the Knowledge of such party, threatened against Impax and/or members of the Impax Board and shall keep the other party reasonably informed with respect to the status thereof. Neither Impax nor any Subsidiary or Representative of Impax shall settle or agree to settle any such stockholder litigation or consent to the same unless Amneal shall have consented in writing (such consent not to be unreasonably withheld, conditional or delayed).
 Section 6.09 Employee Matters .
(a) For purposes of eligibility, vesting and benefit accrual, level and entitlement, with respect to any benefit plan, program or arrangement (other than any defined benefit pension plan, retiree medical program or other retiree welfare benefit program), Impax and Amneal shall, and, from and after the Closing, Holdco shall cause Impax and Amneal to, recognize (or with respect to any insured arrangement, use commercially reasonable efforts to recognize) the service of individuals who are employed by Impax and its Subsidiaries, or Amneal and its Subsidiaries, immediately prior to the Closing and who remain employed thereafter by Impax, Amneal or any of their Subsidiaries (the “ Affected Employees ”) to the same extent as such service was taken into account under the corresponding Impax Plan or Amneal Plan for those purposes; provided , however , that such recognition shall not result in a duplication of benefits.
(b) With respect to any welfare plan in which Affected Employees are eligible to participate after the Closing, Holdco shall, and shall cause Impax and Amneal to, use commercially reasonable efforts to (i) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such employees to the extent such conditions were satisfied (or not applicable) under the applicable welfare plans prior to the Closing and (ii) provide each such employee with credit for any co-payments, deductibles and out-of-pocket expenses paid prior to the Closing and in the applicable plan year in which the Closing occurs in satisfying any analogous co-payment deductible or out-of-pocket requirements.
 
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(c) The parties acknowledge that the consummation of the Transactions shall, to the extent applicable, constitute a “change in control” or “change of control” (or a term of similar import) for purposes of each Impax Plan set forth on Section 6.09(c) of the Impax Disclosure Letter. Following the Closing, Holdco shall assume each Impax Plan set forth on Section 6.09(c) of the Impax Disclosure Letter.
(d) During the period beginning on the date hereof and ending on the Closing Date, Amneal and Impax shall cooperate in good faith to take any reasonable actions determined necessary and appropriate with respect to the Amneal Plans and the Impax Plans that are each intended to constitute a tax-qualified defined contribution plan under Section 401(k) of the Code (a “ 401(k) Plan ”) (including, without limitation, termination of any such 401(k) Plan or merger of such 401(k) Plans on or prior to the Closing Date). To the extent that Amneal and Impax cannot in good faith agree on any such actions, whether to take any or all such actions shall be determined by a committee made up of those certain individuals that are expected to constitute the Compensation Committee of the Holdco Board on or prior to the Closing Date. For the avoidance of doubt, it is expected that such committee shall be comprised of two members appointed by Amneal and two members appointed by Impax.
(e) Nothing in this Section 6.09 shall be treated as an establishment of, amendment of, or undertaking to amend, any benefit plan or shall limit the right of Holdco and its Affiliates to amend, terminate or otherwise modify any Impax Plan or Amneal Plan following the Closing Date. The provisions of this Section 6.09 are solely for the benefit of the parties to this Agreement and nothing in this Section 6.09 , express or implied, shall confer upon any Affected Employee or legal representative or beneficiary thereof or any other person, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement or a right in any employee or beneficiary of such employee or other person under an Impax Plan or Amneal Plan that such employee or beneficiary or other person would not otherwise have under the terms of that Impax Plan or Amneal Plan.
 Section 6.10 Cooperation . Each party and its Subsidiaries will, and will cause each of its Representatives to, use its commercially reasonable efforts, subject to applicable Law, to cooperate with and assist the other party in connection with planning the post-Closing integration of the parties and their respective Subsidiaries and employees.
 Section 6.11 Financing .
(a) (i) Subject to the other provisions of this Agreement, Amneal shall use reasonable best efforts (and shall use reasonable best efforts to cause its Affiliates and Subsidiaries) to take, or cause to be taken, all actions necessary or advisable to obtain, or cause to be obtained, the Debt Financing on the terms and conditions, described in the Debt Commitment Letter (including as such terms may be modified or adjusted in accordance with the terms of the “flex” provisions contained in the Fee Letter), including using reasonable best efforts to (A) maintain in effect the Debt Commitment Letter until the funding of the Debt Financing at or prior to Closing, (B) negotiate definitive agreements with respect to the Debt Financing (the “ Definitive Agreements ”) consistent in all material respects with the terms and conditions contained in the Debt Commitment Letter (including any related “flex” provisions) or on other terms not less favorable, in the aggregate, to Amneal than the terms and conditions (including the “flex” provisions) contemplated by the Debt Commitment Letter but only to the extent that any such other terms would not reasonably be expected to adversely impact or delay in any material respect the ability of Amneal to consummate the Transactions and the Ancillary Transactions in accordance with this Agreement or obtain the Debt Financing (it being agreed that, notwithstanding the foregoing, Amneal may modify, supplement, amend or amend and restate the Debt Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (and make incidental or conforming amendments or modifications to reflect the addition of any such lenders, lead arrangers, bookrunners, syndication agents and similar entities), (C) satisfy (or obtain a waiver of) all conditions within its control to obtaining the Debt Financing and (D) upon satisfaction of all of the conditions in this Agreement to Amneal’s and Impax’s obligations to effect the Closing, and satisfaction of all of the conditions set forth in the Debt Commitment Letter, enforcing its rights against the other parties to the Debt Commitment Letter, if any, including to require such parties to provide the Debt Financing.
 
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(ii) Amneal shall not, without the prior written consent of Impax, (A) permit any amendment or modification to, or any waiver of, any provision or remedy under, or replace (except as expressly set forth under Section 6.11(a)(iii) ), the Debt Commitment Letter if such amendment, modification, waiver or replacement (1) would add any new (or expand any existing) condition to the Debt Financing Commitments, (2) reduces the aggregate amount of the Debt Financing contemplated by the Debt Commitment Letter, (3) would reasonably be expected to adversely impair the ability of Amneal to enforce its rights against other parties to the Debt Commitment Letter, or (4) would reasonably be expected to prevent or in any material respect impede or delay the consummation of the Debt Financing (the items described in the preceding clauses (A)(1) through (4) (and subject to exclusions set forth below), collectively, the “ Restricted Debt Commitment Amendments ”), or (B) terminate the Debt Commitment Letter unless such Debt Commitment Letter is replaced with another commitment letter or comparable financing commitment that would not reasonably be expected to result in a Restricted Debt Commitment Amendment; provided , that the existence or exercise of the “flex” provisions contained in the Fee Letter shall not constitute a Restricted Debt Commitment Amendment; and provided , further , that Amneal may modify, supplement, amend or amend and restate, or waive any provision or remedy under, the Debt Commitment Letter if such amendment, modification or waiver is not a Restricted Debt Commitment Amendment, it being understood that any modification, supplement, amendment or amendment and restatement solely to add lenders, lead arrangers, bookrunners, syndication agents and similar entities (and make incidental or conforming amendments or modifications to reflect the addition of any such lenders, lead arrangers, bookrunners, syndication agents and similar entities) shall not be a Restricted Debt Commitment Amendment. Upon any such amendment, modification, waiver or replacement of the Debt Commitment Letter or the Debt Financing Commitments in accordance with this Section 6.11(a)(ii) , the terms “Debt Commitment Letter”, “Debt Financing” and “Debt Financing Commitments” shall mean, other than for purposes of the representations and warranties made as of the date of this Agreement in Section 4.25 , the Debt Commitment Letter and Debt Financing Commitments, respectively, as so amended, modified, waived or replaced. Any material consent, approval, agreement or determination required or contemplated to be made by Amneal under the Debt Commitment Letter shall be made in reasonable consultation with Impax. Amneal shall promptly furnish Impax with copies of any marketing materials, rating agency presentations, information memoranda or any other documents or communications prepared or received by Amneal or any of its Affiliates in connection with the Debt Financing Commitments, including any material drafts or final versions of definitive documentation with respect thereto (other than any internal documents prepared by Amneal or any of its Subsidiaries and not distributed to lenders or their counsel or any other third party). In addition, (i) Amneal shall provide Impax and its outside counsel a reasonable opportunity to review and comment on any material drafts of any documents related to the Debt Financing Commitments prior to the dissemination of such documents to any third parties (it being understood that any such comments will be considered in good faith by Amneal, subject to its reasonable discretion) and (ii) keep Impax fully informed at all times of its efforts to arrange, and the status of, the Debt Financing.
(iii) In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitments (as such terms may be modified or adjusted in accordance with the terms of, and within the limits of, the “flex” provisions contained in the Fee Letter), regardless of the reason therefor, Amneal shall (A) promptly notify Impax of such unavailability and (B) use reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative financing (“ Alternative Financing ”) in an amount sufficient, when added to the portion of the Debt Financing that is available, to pay the Required Amount from the same or other sources (1) on terms not less favorable, in any material respect, when taken as a whole, to Amneal and Impax than those contained in the Debt Commitment Letter and with lenders reasonably satisfactory to Amneal and (2) that does not contain any other terms that would reasonably be expected to prevent or in any material respect impede or delay the consummation of the Transactions and the Ancillary Transactions or otherwise constitute a Restricted Debt Commitment Amendment. For the purposes of this Agreement, other than for purposes of the representations and warranties made as of the date hereof in Section 4.25 , the terms “Debt Commitment Letter”, “Debt Financing” and “Debt Financing Commitments” shall be deemed to include any
 
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commitment letter (or similar agreement), debt financing or commitment with respect to any Alternative Financing arranged in compliance herewith (and the Debt Commitment Letter, Debt Financing and Debt Financing Commitment remaining in effect at the time in question), and all references to the Debt Financing Sources shall include the persons providing or arranging such alternative debt financing.
(iv) Amneal shall provide Impax with prompt written notice of (A) any breach or default by any party to the Debt Commitment Letter or the Definitive Agreements, if any, of which Amneal has Knowledge or any termination of the Debt Commitment Letter of which Amneal has Knowledge, (B) the receipt of any notice or other communication from any Debt Financing Source with respect to (1) any actual or threatened breach, default, termination or repudiation by any party to the Debt Commitment Letter or the Definitive Agreements, if any, or any provision thereof, and (2) any dispute or disagreement between or among any parties to the Debt Commitment Letter or the Definitive Agreements that would reasonably be expected to result in the unavailability of the Debt Financing on the Closing Date or reasonably be likely to delay or impede the Closing, or (C) any change or event that, individually or in the aggregate, would reasonably be expected to cause any condition precedent of the Debt Financing (or any Alternative Financing obtained in accordance with this Section 6.11 ) to not be satisfied or waived on or prior to the Closing Date and result in the unavailability of the Debt Financing in the amounts contemplated by the Debt Commitment Letter (it being understood that in no event will Amneal be obligated to disclose any information the disclosure of which would result in the loss of attorney-client privilege).
(v) Nothing in this Section 6.11 or any other provisions of this Agreement shall require, and in no event shall the “reasonable best efforts” of Amneal be deemed or construed to require, Amneal to (A) except as expressly set forth in Section 6.11(a)(iii) with respect to alternative financing, seek or accept Debt Financing on terms less favorable in the aggregate than those set forth in the Debt Commitment Letter (including the “flex” provisions thereof) provided on the date of this Agreement, (B) waive any term or condition of this Agreement or (C) pay any fees in excess of those contemplated by the Debt Financing Commitments (whether to secure waiver of any conditions contained therein or otherwise). For the avoidance of doubt, Amneal’s obligations and responsibilities under this Section 6.11(a) shall only apply to the Debt Financing and shall not apply to any debt financing arrangements to be negotiated by Amneal in the event it desires to propose changes to the terms of this Agreement in connection with the procedures contemplated by Sections 5.02(e) or 5.02(f) .
(b) (i) Impax shall use reasonable best efforts to, and shall use reasonable best efforts to cause each of its Subsidiaries and their respective Representatives to, provide (A) the cooperation listed below in clauses (A), (B), (D) and (E) with respect to any Amneal Equity Secondary and (B) customary cooperation as reasonably requested by Amneal in connection with the Debt Financing, including by using reasonable best efforts to:
(A) upon reasonable prior notice, and after reasonable consultation, make available Impax’s senior officers for participation in a reasonable number of meetings, presentations (including lender presentations), road shows, due diligence sessions, drafting sessions and sessions with rating agencies, in relation to the marketing of the Debt Financing or any Amneal Equity Secondary,
(B) to cause its independent auditors to cooperate with due diligence matters in connection with the Debt Financing or any Amneal Equity Secondary,
(C) upon reasonable request, identify any material non-public information relating to Impax (but in no event shall Impax be required to disclose any non-public information to the extent it would result in the public disclosure of such information) and provide customary authorization letters in connection with any marketing materials related to the Debt Financing,
(D) deliver such due diligence materials as are reasonably available to it and as are reasonably requested by Amneal and customarily delivered in connection with marketing materials in connection with the Debt Financing or any Amneal Equity Secondary,
 
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(E) assist in the preparation and negotiation and execution and delivery as of the Closing any definitive documents related to the Debt Financing or any Amneal Equity Secondary (including any schedules and exhibits thereto) as may be reasonably requested,
(F) assist with Amneal’s preparation of pro forma and projected financial statements and financial information necessary to satisfy a condition to the Debt Financing set forth in the Debt Commitment Letter or customarily included in marketing material (but Impax shall have no obligation to prepare or provide the pro forma or projected financial statements and financial information),
(G) furnish Amneal and the Debt Financing Sources no later than three (3) Business Days prior to the Closing Date all documentation and other information with respect to Impax and its Subsidiaries as shall have been reasonably requested in writing by Amneal at least ten (10) Business Days prior to the Closing Date that is required in connection with the Debt Financing by U.S. regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2001, or that are required by Section 6 of Exhibit D of the Debt Commitment Letter,
(H) facilitate the pledging of collateral in connection with the Debt Financing, and
(I) obtain and deliver executed Payoff Letters and instruments of termination and discharge reasonably requested by Amneal.
(ii) Notwithstanding the foregoing: (A) such requested cooperation shall not unreasonably interfere with the ongoing operations of Impax or any of its Subsidiaries; (B) neither Impax nor any of its Subsidiaries shall (1) be required to pay any commitment or other similar fee in connection with the Debt Financing prior to the Closing; (2) have any liability or obligation under any agreement or any document related to the Debt Financing until the Closing occurs; (3) be required to incur any liability that is not expressly provided for in this Section 6.11 in connection with the Debt Financing and not otherwise indemnified hereunder; (4) otherwise be required to take any action in violation or conflict with any of Impax or its Subsidiaries’ respective organizational documents or applicable Law; (5) be required to deliver opinions of external or internal counsel; (6) be required to provide access to or disclose information that would reasonably be expected to jeopardize attorney-client privilege or contravene Law or violate any Contract; (7) be required to waive or amend any terms of this Agreement or any other Contract to which Impax or its Subsidiaries is a party; (8) be required to provide any cooperation to the extent it would (x) cause any condition to Closing set forth in Article VII not to be satisfied or cause (y) a breach of this Agreement; (9) be required to execute (except authorization letters in connection with any marketing materials contemplated above), prior to the Closing Date, any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates or documents in connection with the Debt Financing, and no obligation of Impax or its Subsidiaries under any document, agreement or any other contract relating to the Debt Financing shall be operative prior to the Closing; and (C) notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of Impax and its Subsidiaries or other governing body of Impax and its Subsidiaries as constituted after giving effect to the Closing.
(iii) Amneal shall indemnify and hold harmless Impax and its Subsidiaries, and their respective officers, employees and Representatives, from and against any and all liabilities or losses suffered or incurred by them in connection with the Debt Financing and any information utilized in connection therewith, except in the event such liabilities or losses arose out of or result from (i) the willful misconduct, gross negligence or bad faith of Impax and its Subsidiaries or (ii) historical information furnished in writing by or on behalf of Impax and its Subsidiaries expressly for inclusion in any marketing materials. If this Agreement is terminated pursuant to Article VIII , Amneal shall, promptly upon request by Impax, reimburse Impax and its Subsidiaries for all reasonable and documents out-of-pocket costs incurred by Impax and its Subsidiaries (including those of its Affiliates and Representatives) in connection with taking action required or requested by Amneal pursuant to this Section 6.11 .
 
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(iv) Impax hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm or disparage Impax and its Subsidiaries or the reputation or goodwill of Impax and its Subsidiaries.
(v) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 6.11 represent the sole obligation of Impax, its Subsidiaries and Affiliates and their respective Representatives with respect to cooperation in connection with the arrangement of the Debt Financing and no other provision of this Agreement (including the Exhibits and Disclosure Letters hereto) shall be deemed to expand or modify such obligations.
(c) All non-public or otherwise confidential information regarding Impax or its Subsidiaries obtained by Amneal or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the terms of the Confidentiality Agreement; provided , that notwithstanding the terms of the Confidentiality Agreement, Amneal and its Representatives may provide such information to their financing sources (including the Debt Financing Sources), potential sources of capital, and to rating agencies and prospective lenders and investors during marketing of the Debt Financing, subject to customary confidentiality arrangements with such persons regarding such information.
 Section 6.12 Stock Exchange Delisting and Deregistration . Impax and Amneal will cooperate and use their respective reasonable best efforts to cause the delisting of the shares of Impax Common Stock from the NASDAQ Global Select Market and the deregistration of such shares under the Exchange Act as promptly as practicable following the Closing in compliance with applicable Law.
 Section 6.13 New York Stock Exchange Listing . Prior to the Closing, Impax and Amneal shall use reasonable best efforts to cause the shares of Class A Common Stock to be issued in connection with the Holdco Share Issuances to be approved for listing on the NYSE under the ticker symbol AMRX (or if such ticker symbol becomes unavailable, such other ticker symbol as may be agreed upon in writing by the parties), including by submitting prior to the Closing an initial listing application with the NYSE (the “ NYSE Listing Application ”) with respect to such shares, subject to official notice of issuance. Each of Amneal and Impax shall promptly furnish all information concerning itself and its Affiliates as may be reasonably requested by the other party and shall otherwise reasonably assist and cooperate with the other in connection with the preparation, filing and distribution of the NYSE Listing Application. Each of Amneal and Impax will use their respective reasonable best efforts to (i) cause the NYSE Listing Application, when filed, to comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as reasonably practicable to and resolve all comments received from the NYSE or its staff concerning the NYSE Listing Application and (iii) have the NYSE Listing Application approved by the NYSE as promptly as practicable after such filing. No submission of, or amendment or supplement to, the NYSE Listing Application, or response to NYSE comments with respect thereto, will be made by Amneal or Impax, as applicable, without the other’s prior consent (which shall not be unreasonably withheld, conditioned or delayed) and without providing the other party a reasonable opportunity to review and comment thereon. Amneal or Impax, as applicable, will promptly notify the other upon the receipt of any comments from the NYSE or any request from the NYSE for amendments or supplements to the NYSE Listing Application and will, as promptly as practicable after receipt thereof, provide the other with copies of all material correspondence between it and its Representatives, on the one hand, and the NYSE, on the other hand, and all written comments with respect to the NYSE Listing Application received from the NYSE and advise the other on any oral comments with respect to the NYSE Listing Application received from the NYSE. Impax will advise Amneal, promptly after Holdco receives notice thereof, of the time of the approval of the NYSE Listing Application and the approval of the shares of Class A Common Stock to be issued in connection with the Holdco Share Issuances for listing on the NYSE, subject only to official notice of issuance.
 Section 6.14 Section 16 Matters . Prior to the Closing, Impax and Holdco shall take all such steps as may be reasonably necessary or appropriate to cause any dispositions of Impax Common Stock (including derivative
 
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securities with respect to Impax Common Stock) or acquisitions of Holdco Common Stock (including derivative securities with respect to Holdco Common Stock) resulting from the Transactions by each individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Impax or Holdco, to be exempt under Rule 16b-3 promulgated under the Exchange Act.
 Section 6.15 ISRA Compliance . Amneal and Impax acknowledge that the Transactions, including additional actions that may be contemplated to occur after the Closing, may require the parties thereto or their subsidiaries to comply with ISRA. If it is determined that ISRA compliance is required for the Transactions contemplated under this Agreement, each of Impax and Amneal shall provide to the other party documentation reasonably acceptable to the other that is sufficient to establish that the Closing complies with the requirements of ISRA, which may include, for any of the subject facilities, either (i) a Response Action Outcome (as defined by ISRA) letter, (ii) a NJDEP-approved de minimis quantity exemption under N.J. Admin Code §7.26B-5-9, (iii) an NJDEP-approved Remediation in Progress Waiver (as defined by ISRA), or (iv) a remediation certification, with a Remediation Funding Source (as defined by ISRA). If a remediation certification has been filed for any ISRA subject facilities, the Subsidiary that is the owner, lessee or operator of the facility (or appropriate Amneal entity, as mutually agreed to by the parties) shall be designated as the responsible party for all future actions necessary to comply with ISRA. Amneal and Impax shall reasonably cooperate with all actions taken by the other party or its Subsidiaries in furtherance of their ISRA obligations under this Section 6.15 , including but not limited to signing any required certifications or submissions to NJDEP. If it is determined that ISRA compliance will be required for any post-closing actions, each of Impax and Amneal shall cooperate and cause its Subsidiaries to cooperate with the designated responsible party with regard to any actions required to comply with ISRA, including providing access to its facilities and record necessary for completion of site investigations, execution of required certifications, and completion and submission to NJDEP of such notices and applications as are reasonably necessary for the expeditious completion of the parties’ ISRA compliance obligations. It is understood that each party shall be responsible for its own ISRA compliance costs and expenses and that liability for site investigation or remediation, if any is required, shall remain the responsibility of the entity that is the owner, lessee or operator of the ISRA-subject property.
 Section 6.16 Certain Pre-Closing Actions .
(a) Amneal Pre-Closing Actions . Prior to the Closing, Amneal shall take all actions set forth on Section 6.16 of the Amneal Disclosure Letter (such actions, the “ Amneal Pre-Closing Actions ”); provided , that Section 6.16 of the Amneal Disclosure Letter may be amended or modified by Amneal with the prior written consent of Impax (such consent not to be unreasonably withheld, conditioned or delayed). Immediately following the Recapitalization, Amneal shall cause each Existing Amneal Member to contribute its Amneal Units to Amneal Holdings, LLC in exchange for additional interests in Amneal Holdings, LLC (and shall cause the schedule of members to the Restated Amneal LLC Operating Agreement to be updated accordingly).
(b) Impax Pre-Closing Actions . Prior to the Closing, Impax shall take all actions set forth on Section 6.16 of the Impax Disclosure Letter (such actions, the “ Impax Pre-Closing Actions ”); provided , that Section 6.16 of the Impax Disclosure Letter may be amended or modified by Impax with the prior written consent of Amneal (such consent not to be unreasonably withheld, conditioned or delayed).
 Section 6.17 Impax Director and Officer Resignations . At the Closing, Impax shall deliver to Amneal evidence reasonably satisfactory to Amneal of the resignation, effective at the Contribution Effective Time, of each director and officer of Impax in office as of immediately prior to the Impax Merger Effective Time.
 Section 6.18 Certain Tax Matters . None of Impax nor Amneal nor any of their respective Affiliates shall knowingly take any action or fail to take any reasonable action if such action or failure to act would be reasonably likely to prevent or impede (i) the Impax Merger and the LLC Conversion, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code and (ii) the Contribution from qualifying as an exchange to which Section 721(a) of the Code applies. The parties will report the transactions
 
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described in the preceding sentence in the manner set forth therein except to the extent otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code.
 Section 6.19 Treatment of Impax Convertible Notes; Convertible Note Hedge Transactions .
(a) Upon at least five (5) Business Days’ prior written notice from Amneal made not later than thirty (30) days prior to the anticipated Closing Date, Impax shall use its reasonable best efforts to if requested by Amneal, commence a stand-alone consent solicitation with respect to one or more covenants in the Impax Indenture, the primary purpose of which would be to facilitate the Transactions and the Ancillary Transactions contemplated by this Agreement, and which would include a covenant by Impax to tender for any and all outstanding Impax Convertible Notes promptly following the Closing Date (the “ Impax Liability Management Transaction ”). The Impax Liability Management Transaction will contain such customary terms and conditions as are reasonably requested by Amneal ( provided , that the consideration to be paid in connection therewith shall be determined by Amneal in its reasonable discretion) and an expiration date not later than one Business Day prior to the consummation of the offer to purchase the Impax Convertible Notes; provided , that (i) this Agreement shall have not been terminated in accordance with Article VIII and (ii) Impax shall have received from Amneal within such period all necessary and appropriate documentation in connection with the Impax Liability Management Transaction, including the consent solicitation statement and consent forms and other related documents (collectively, the “ Liability Management Documents ”), which shall be in form and substance reasonably satisfactory to Impax. Impax shall use its commercially reasonable efforts to promptly make any change to the terms and conditions of the Impax Liability Management Transaction reasonably requested by Amneal; provided that no extension of the expiration date shall occur without the prior written consent of Impax (which shall not be unreasonably withheld, conditioned or delayed to the extent that such extension would not reasonably be expected to cause a delay in or prevent the Closing). Notwithstanding the foregoing, the effectiveness of any proposed amendments to the Impax Indenture contemplated by the Impax Liability Management Transactions hall be conditioned upon the occurrence of the Closing and any proposed amendments to the Impax Indenture contemplated by the Impax Liability Management Transaction shall revert to the form in effect prior to the effectiveness of any proposed amendments and be of no further effect if this Agreement is terminated pursuant to Article VIII . Amneal shall only request Impax and its Subsidiaries to conduct the Impax Liability Management Transaction in compliance with the applicable rules and regulations of the SEC, including Rule 14e-1 under the Exchange Act and the indenture relating to the Impax Convertible Notes. Amneal shall ensure that the Surviving Company shall have all funds necessary to pay any consideration required to be paid in connection with the Impax Liability Management Transaction.
(b) In the event that Impax commences the Impax Liability Management Transaction, Impax agrees that, promptly following any consent expiration date, assuming the requisite consents are received and the conditions set forth in the Impax Indenture have been satisfied, Impax shall execute a supplemental indenture to the Impax Indenture, which supplemental indenture shall implement the amendments set forth in the Liability Management Documents and shall become operative upon the Closing. Amneal shall provide, or cause to be provided, the requisite amount of funds to Impax for all payments to holders of Impax Convertible Notes in respect of any consents validly delivered and not revoked in accordance with the Impax Liability Management Transaction and, all other fees and expenses relating to the Impax Liability Management Transaction.
(c) Any Liability Management Documents (including all amendments or supplements thereto) and all mailings to the holders of the Impax Convertible Notes in connection with any Impax Liability Management Transaction shall be subject to the prior review of, and comment (which review and comment shall be made as promptly as reasonably practical) by, Impax and Amneal and shall be reasonably acceptable in form and substance to each of them. If, at any time prior to the completion of the Impax Liability Management Transaction, any information in the Liability Management Documents should be discovered by Impax, on the one hand, or Amneal, on the other, which should be set forth in an amendment or supplement thereto, so that they shall not contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made,
 
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not misleading, the party that discovers such information shall promptly notify the other party in writing, and an appropriate amendment or supplement describing such information shall be disseminated by or on behalf of Impax to the holders of the Impax Convertible Notes. Notwithstanding anything to the contrary in this Section 6.19 , Impax shall comply in all material respects with all Laws in connection with the Impax Liability Management Transaction. To the extent that the provisions of the Impax Indenture, the Impax Convertible Notes or of any Law conflict with this Section 6.19 , Impax shall comply with the Impax Indenture, the Impax Convertible Notes and applicable Law and in all material respects shall not be deemed to have breached its obligations hereunder by such compliance.
(d) Notwithstanding the foregoing: (A) neither Impax nor any of its Subsidiaries shall (1) be required to pay any fees in connection with the Impax Liability Management Transaction prior to the Closing; (2) have any liability or obligation under any agreement or any document related to the Impax Liability Management Transaction until the Closing occurs; (3) be required to incur any liability that is not expressly provided for herein in connection with the Impax Liability Management Transaction and not otherwise indemnified hereunder; (4) otherwise be required to take any action in violation or conflict with any of Impax or its Subsidiaries’ respective organizational documents or applicable Law; (5) be required to deliver opinions of external or internal counsel; (6) be required to provide access to or disclose information that would reasonably be expected to jeopardize attorney-client privilege or contravene Law or violate any Contract; (7) be required to waive or amend any terms of this Agreement or any other Contract to which Impax or its Subsidiaries is a party; (8) be required to provide any cooperation to the extent it would (x) cause any condition to Closing set forth in Article VII not to be satisfied or cause (y) a breach of this Agreement; (9) no material obligation of Impax or its Subsidiaries under any document, agreement or any other contract relating to the Impax Liability Management Transaction shall be operative prior to the Closing; and (B) notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs, and shall only be taken by, the board of directors of Impax and its Subsidiaries or other governing body of Impax and its Subsidiaries as constituted after giving effect to the Closing.
(e) Amneal shall indemnify and hold harmless Impax and its Subsidiaries, and their respective officers, employees and Representatives, from and against any and all liabilities or losses suffered or incurred by them in connection with the Impax Liability Management Transaction and any information utilized in connection therewith, except in the event such liabilities or losses arose out of or result from (i) the willful misconduct, gross negligence or bad faith of Impax and its Subsidiaries or (ii) historical information furnished in writing by or on behalf of Impax and its Subsidiaries expressly for inclusion in any marketing materials. If this Agreement is terminated pursuant to Article VIII , Amneal shall, promptly upon request by Impax, reimburse Impax and its Subsidiaries for all reasonable and documents out-of-pocket costs incurred by the Company and its Subsidiaries (including those of its Affiliates and Representatives) in connection with taking action required or requested by Amneal pursuant to this Section 6.19 .
(f) Notwithstanding anything to the contrary herein, it is expressly agreed by the parties hereto that the failure to obtain the consent of the holders of the Impax Convertible Notes in connection with any Impax Liability Management Transaction or the inability to redeem any of the Impax Convertible Notes on the Closing Date shall not be deemed to be a breach by Impax under this Agreement or otherwise delay the Closing; provided , that the foregoing is not intended to limit any rights or remedies that Amneal may have under this Agreement in the event of any applicable breach by Impax of any of its obligations set forth in this Section 6.19 . Furthermore, Impax shall have been deemed to perform all of its obligations under this Section 6.19 unless it materially breaches this Section 6.19 and such breach is a substantial cause of the Impax Liability Management Transaction not being consummated.
(g) Impax, Amneal and Holdco shall take all necessary action to execute and deliver to the Trustee (as defined in Impax Indenture) a supplemental indenture to the Impax Indenture, in form reasonably satisfactory to the Trustee and Amneal, pursuant to the terms of the Impax Indenture, to provide that on and after the Closing, each holder of the Impax Convertible Notes shall have the right to convert such Impax Convertible Notes into the
 
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conversion consideration determined by reference to the consideration receivable upon consummation of the Impax Merger in respect of each share of Impax Common Stock in accordance with, and subject to, the provisions of the Impax Indenture (including any applicable increase in the “Conversion Rate” or decrease in the “Conversion Price” (each as defined in the Impax Indenture) thereunder in connection with the Impax Merger) in each case in accordance with, and subject to the Impax Indenture (including without limitation the time periods specified therein), as a result of the execution and delivery of this Agreement and the Transactions. Impax shall provide Amneal and its Representatives reasonable opportunity to review and comment on any material written notice or material communication to or with holders of the Impax Convertible Notes or with the Trustee under the Impax Indenture at least two (2) Business Days prior to the dispatch or making thereof, and Impax shall give reasonable and good faith consideration to any comments made by Amneal or its Representatives.
(h) Impax will use commercially reasonable efforts to cooperate with Amneal to obtain the consent of Royal Bank of Canada (the “ Call Spread Dealer ”) to terminate the Convertible Note Hedge Transaction at or as promptly as practicable following the Closing. Impax will use commercially reasonable efforts to involve Amneal in connection with any discussions, negotiations or communications, and Impax will involve Amneal in connection with any agreements, with the Call Spread Dealer or any of its Affiliates (including each other counterparty to the Convertible Note Hedge Transactions) with respect to any determination, adjustment, cancellation, termination, exercise, settlement or computation in connection with the Convertible Note Hedge Transactions, including with respect to any cash amounts and/or shares of Impax Common Stock that may be receivable, issuable, deliverable or payable by Impax pursuant to the Convertible Note Hedge Transactions or any adjustments of the terms thereof, and Impax will give prior notice to Amneal of any such discussions, negotiations, communications or agreements; provided that if such prior notice is not reasonably practicable, Impax shall give Amneal notice of any such discussions, negotiations, communications or agreements promptly after such discussions, negotiations, communications or agreements, with a description in reasonable detail thereof. Impax (i) prior to the Closing, will not, and will cause its Representatives not to, without Amneal’s prior written consent, such consent not to be unreasonably withheld, delayed or conditioned (x) make any amendments, modifications or other changes to the terms of, or agree to any adjustment under or amounts due upon termination, cancellation or early settlement of, the Convertible Note Hedge Transactions, or (y) exercise any right it may have to terminate, or cause the early settlement or cancellation of, any of the Convertible Note Hedge Transactions and (ii) will keep Amneal fully informed of all discussions and negotiations relating to the foregoing. Impax will use commercially reasonable efforts to timely take all such other actions as may be required in accordance with, and subject to, the terms of the Convertible Note Hedge Transactions, including delivery of any notices or other documents or instruments required to give effect to the foregoing or in connection with the consummation of the Transactions, each of which will be so delivered substantially in the form previously provided to Amneal for Amneal’s review other than to address comments provided by Amneal or its Representatives. In addition, Impax will promptly (and, in any event, within one Business Day) provide to Amneal a copy of any written notice received from the Call Spread Dealer in connection with the Convertible Note Hedge Transactions (including any written notice with respect to any determination, adjustment, cancellation, termination, exercise, settlement or computation in connection with the Convertible Note Hedge Transactions). For the avoidance of doubt, nothing contained herein this Agreement shall prohibit Impax from settling upon conversion of the Impax Convertible Notes in accordance with the terms of the Impax Indenture and complying with the terms of the Convertible Note Hedge Transactions in connection therewith and nothing herein shall require Impax to effect a termination or settlement of the Convertible Note Hedge Transactions prior to the Closing.
 
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 ARTICLE VII
CONDITIONS PRECEDENT
 Section 7.01 Conditions to Each Party’s Obligation to Effect the Transactions . The respective obligation of each party to effect the Transactions is subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:
(a) Impax Stockholder Approval . The Impax Stockholder Approval shall have been obtained.
(b) Antitrust . (i) The waiting period (and any extension thereof) applicable to the consummation of the Transactions under the HSR Act shall have expired or been terminated and (ii) any waiting period or approval or authorization required to be obtained from any Governmental Authority under any other applicable Competition Law for the consummation of the Transactions shall have been expired or been obtained, as applicable.
(c) N o Injunctions or Restraints . (i) No Law shall have been enacted or promulgated by any Governmental Authority of competent jurisdiction which prohibits or makes illegal the consummation of the Transactions and (ii) no Governmental Authority shall have issued an order or injunction or taken any other action enjoining or otherwise prohibiting the consummation of the Transactions which remains pending (collectively, “ Restraints ”).
(d) Registration Statement . The Registration Statement shall have been declared effective under the Securities Act. No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for purposes of suspending the effectiveness of the Registration Statement shall have been initiated or be threatened by the SEC.
(e) Listing . The shares of Class A Common Stock to be issued in connection with the Holdco Share Issuances shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(f) Ancillary Agreements . Each of the Ancillary Agreements shall have been duly executed and delivered by each party thereto.
 Section 7.02 Conditions to Obligation of Amneal . The obligation of Amneal to effect the Transactions is further subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:
(a) Representations and Warranties . Each of (i) the representations and warranties of Impax set forth in the first and fourth sentences of Section 3.01 , and in Section 3.02 , Section 3.03 , Section 3.05(b) , and Section 3.23 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date (except that such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct in all respects as of such date), (ii) the representations and warranties of Impax set forth in Section 3.04(a) , Section 3.05(a) , Section 3.25 , Section 3.26 , Section 3.27 and Section 3.28 shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date (except that such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct in all respects as of such date) and (iii) the other representations and warranties of Impax set forth in this Agreement shall be true and correct (without giving effect to any qualification as to materiality or Impax Material Adverse Effect contained in Article III ) as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing (except that such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct as of such date), except where any failures of any such representations and warranties covered by clause (iii) to be true and correct would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect, and Amneal shall have received a certificate signed on behalf of Impax by the Chief Executive Officer or the Chief Financial Officer of Impax to the foregoing effect.
(b) Performance of Obligations of Impax . Impax shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and Amneal shall have received a certificate signed on behalf of Impax by the Chief Executive Officer or the Chief Financial Officer of Impax to the foregoing effect.
 
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(c) No Impax Material Adverse Effect . Since the date of this Agreement, there shall not have been any change, effect, event, circumstance, occurrence or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
 Section 7.03 Conditions to Obligation of Impax and Holdco . The obligation of Impax to effect the Transactions is further subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:
(a) Representations and Warranties . Each of (i) the representations and warranties of Amneal set forth in the first and fourth sentences of Section 4.01 , and in Section 4.02 , Section 4.03 , Section 4.05(b) and Section 4.23 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date (except that such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct in all material respects as of such date), (ii) the representations and warranties of Amneal set forth in Section 4.04(a) , Section 4.05(a) and Section 4.24 shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date (except that such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct in all material respects as of such date) and (iii) the other representations and warranties of Amneal set forth in this Agreement shall be true and correct (without giving effect to any qualification as to materiality or Amneal Material Adverse Effect contained in Article IV ) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing (except that such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct as of such date), except where any failures of any such representations and warranties covered by clause (iii) to be true and correct would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect, and Impax shall have received a certificate signed on behalf of Amneal by the Chief Executive Officer or the Chief Financial Officer of Amneal to the foregoing effect.
(b) Performance of Obligations of Amneal . Amneal shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and Impax shall have received a certificate signed on behalf of Amneal by the Chief Executive Officer or the Chief Financial Officer of Amneal to the foregoing effect.
(c) No Amneal Material Adverse Effect . Since the date of this Agreement, there shall not have been any change, effect, event, circumstance, occurrence or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect.
(d) Amneal Debt . As of the Closing, the aggregate indebtedness for borrowed money under the Existing Credit Facilities of Amneal and its Subsidiaries on a consolidated basis shall not exceed $1,600,000,000.
(e) Amneal Pre-Closing Actions . All Amneal Pre-Closing Actions shall have been consummated prior to the Closing.
 Section 7.04 Frustration of Closing Conditions . None of Impax or Amneal may rely on the failure of any condition set forth in Section 7.01 , Section 7.02 or Section 7.03 , as the case may be, to be satisfied if such failure was caused by such party’s failure to use its reasonable best efforts to consummate the Transactions, as required by and subject to Section 6.04 .
 ARTICLE VIII
TERMINATION
 Section 8.01 Termination . This Agreement may be terminated at any time prior to the Closing, whether before or after receipt of the Impax Stockholder Approval (unless otherwise specified below):
 
 	(a)	by mutual written consent of Amneal and Impax;	
 
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 	(b)	by either Amneal or Impax if:	
(i) the Transactions shall not have been consummated on or before midnight New York City time on the later of (A) July 17, 2018 and (B) the seventy-fifth (75th) day following the date on which the Registration Statement shall have been declared effective under the Securities Act (the “ Outside Date ”); provided , that the Outside Date shall not be later than October 17, 2018; provided , further , that the right to terminate this Agreement under this Section 8.01(b)(i) shall not be available to any party whose action or failure to act has been the primary cause of or resulted in the failure of the Transactions to be consummated on or before such date;
(ii) any Restraint having the effect of permanently restraining, enjoining or otherwise prohibiting the Transactions shall be in effect and shall have become final and non-appealable; provided , however , that the right to terminate this Agreement under this Section 8.01(b)(ii) shall not be available to any party if such party (and in the case of Impax, if Holdco or Merger Sub) has not complied in all material respects with its obligations under Section 6.04 ; or
(iii) if the Impax Stockholder Approval shall not have been obtained at the Impax Stockholder Meeting duly convened therefor or at any adjournment or postponement thereof;
 
 	(c)	by Amneal if:	
(i) Impax shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than those set forth in Section 5.02 ), which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 7.02(a) or Section 7.02(b) and (B) is incapable of being cured or is not cured by Impax by the earlier of (1) thirty (30) days following receipt of written notice from Amneal of such breach or failure to perform and (2) the Outside Date;
(ii) prior to the time the Impax Stockholder Approval is obtained, the Impax Board shall have effected a Change of Recommendation.
(iii) Impax shall have materially breached any of its covenants set forth in Section 5.02 ;
(iv) following the public announcement of a Competing Proposal (other than by the commencement by a third party of a tender offer or exchange offer for equity securities of Impax subject to Regulation 14D under the Exchange Act), the Impax Board shall have failed to publicly reaffirm the Impax Board Recommendation and publicly recommend the rejection of such Competing Proposal within ten (10) Business Days after receipt of a written request by Amneal for such public reaffirmation and recommendation (the “ Reaffirmation Date ”) (it being understood and agreed that if Impax shall have furnished a Notice of Superior Proposal Action on or prior to such tenth (10 th ) Business Day, then the Reaffirmation Date shall be the later of (A) such tenth (10 th ) Business Day and (B) the first Business Day following the lapse of the later of (I) the ninety-six (96) hour period following delivery of such Notice of Superior Proposal Action and (II) such later period, if any, mandated by the last parenthetical phrase in Section 5.02(e)(y) ); or
(v) following the commencement by a third party of a tender offer or exchange offer for equity securities of Impax subject to Regulation 14D under the Exchange Act, the Impax Board shall have failed to recommend in a Solicitation/Recommendation Statement on Schedule 14D-9, against acceptance by Impax’s stockholders of such tender offer or exchange offer on or prior to the tenth (10 th ) Business Day following such commencement;
 
 	(d)	by Impax:	
(i) if Amneal shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 7.03(a) or Section 7.03(b) and (B) is incapable of being cured or is not cured by Amneal by the earlier of (1) thirty (30) days following receipt of written notice from Impax of such breach or failure to perform and (2) the Outside Date; or
 
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(ii) pursuant to Section 5.02(d) ; provided , that Impax pays the Termination Fee to Amneal in accordance with Section 8.02 .
Any proper termination of this Agreement pursuant to this Section 8.01 shall be effective immediately upon the delivery of written notice of such termination by the terminating party to the other party.
 Section 8.02 Termination Fees .
 
 	(a)	In the event that:	
(i) (A) this Agreement is terminated by Amneal or Impax pursuant to Section 8.01(b)(i) or Section 8.01(b)(iii) , (B) at any time after the date of this Agreement and prior to the date of such termination (in the case of a termination pursuant to Section 8.01(b)(i) ) or the Impax Stockholder Meeting (in the case of a termination pursuant to Section 8.01(b)(iii) ) a Competing Proposal has been publicly announced or otherwise made publicly known by any person (other than by Amneal) and, in either case, not publicly withdrawn (and in the case of a termination pursuant to Section 8.01(b)(iii) , not publicly withdrawn prior to the Business Day prior to the date of the Impax Stockholder Meeting) and (C) Impax enters into a definitive agreement providing for a Competing Proposal (and subsequently consummates such Competing Proposal), or consummates a Competing Proposal, in each case, within twelve (12) months of such termination ( provided , that for purposes of this Section 8.02(a)(i) , the reference to “20%” in the definition of Competing Proposal shall be deemed to be “50%”), then within two (2) Business Days of such consummation, Impax shall pay to Amneal the Termination Fee by wire transfer in immediately available funds to an account specified in writing by Amneal;
(ii) this Agreement is terminated by Impax pursuant to Section 8.01(d)(ii) , then prior to or simultaneously with such termination, Impax shall pay to Amneal the Termination Fee by wire transfer in immediately available funds to an account specified in writing by Amneal; or
(iii) this Agreement is terminated by Amneal pursuant to Section 8.01(c)(ii) , Section 8.01(c)(iii) , Section 8.01(c)(iv) or Section 8.01(c)(v) , then within two (2) Business Days of such termination, Impax shall pay to Amneal the Termination Fee by wire transfer in immediately available funds to an account specified in writing by Amneal.
(b) (i) if this Agreement is terminated by Impax or Amneal pursuant to Section 8.01(b)(iii) , then Impax shall reimburse Amneal for all reasonable out-of-pocket fees and expenses incurred by Amneal in connection with this Agreement and the Transactions (such expenses, collectively, the “ Third Party Expenses ”), up to a maximum of $15,000,000, by wire transfer of same-day funds within two (2) Business Days following the date on which Amneal submits to Impax true and correct copies of reasonable documentation supporting such Third Party Expenses.
(c) The parties hereto expressly acknowledge and agree that (i) the agreements contained in this Section 8.02 are an integral part of the Transactions, (ii) without these agreements, the parties would not enter into this Agreement, (iii) the payments required pursuant to this Section 8.02 are not penalties, but rather are liquidated damages in a reasonable amount that will compensate Amneal in the circumstances in which such payments are payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision and (iv) the amount of the Termination Fee, if and as applicable, is fair, after taking into account the value of the Transactions and all the costs and expenses already incurred by the parties before entering into this Agreement. In no event shall Impax be required to pay Amneal more than one Termination Fee, if and as applicable, pursuant to this Section 8.02 .
(d) The parties hereto expressly acknowledge and agree that: (i) upon any valid termination of this Agreement where the Termination Fee becomes due and payable, the payment of the Termination Fee pursuant
 
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to Section 8.02(a) shall be in full and complete satisfaction of any and all monetary damages of Amneal and its Affiliates, and their respective directors, officers and other Representatives, arising out of or related to this Agreement or the Transactions, including as a result of any breach of this Agreement, the termination of this Agreement, the failure to consummate the Transactions, and any claims or actions under applicable Law arising out of such breach, termination or failure; and (ii) in no event shall Amneal or its Affiliates, or any of their respective directors, officers or other Representatives, be entitled to seek or obtain any recovery or judgment in excess of the Termination Fee (plus, in the case the Termination Fee is not timely paid, the amounts described in Section 8.02(e) ) against Impax, its Subsidiaries and any of its or their respective directors, officers and other Representatives; provided , that, notwithstanding anything to the contrary in this Section 8.02(d) , payment by Impax of the Termination Fee pursuant to Section 8.02(a) shall not relieve Impax from any liability or damage resulting from fraud or any willful and material breach of this Agreement; provided , however , that such Termination Fee shall be credited towards any future award of damages awarded to Amneal pursuant to any claim based on fraud or any willful and material breach of this Agreement.
(e) If Impax fails promptly to pay any amount due pursuant to this Section 8.02 and, in order to obtain such payment, Amneal commences a suit that results in a judgment against Impax for any such amount, Impax shall pay to Amneal its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on such amount from the date such amount was required to be paid until the date of payment at the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid.
 Section 8.03 Effect of Termination . In the event of termination of this Agreement by either Impax or Amneal as provided in Section 8.01 , this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of Amneal or Impax, other than the provisions of the penultimate sentence of Section 6.03 , Section 6.06 , Section 6.11(b)(ii) , Section 6.19(e) , Section 6.19(f) , Section 8.02 , this Section 8.03 and Article IX , which provisions shall survive such termination; provided , however , that nothing herein shall relieve any party from any liability for fraud or any willful and material breach of this Agreement.
 Section 8.04 Procedure for Termination . A termination of this Agreement pursuant to Section 8.01 shall, in order to be effective, require, in the case of Amneal or Impax, action by the Amneal Board or the Impax Board, as applicable.
 ARTICLE IX
GENERAL PROVISIONS
 Section 9.01 Nonsurvival of Representations and Warranties . None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing. This Section 9.01 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Closing.
 
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 Section 9.02 Notices . Except for notices that are specifically required by the terms of this Agreement to be delivered orally, all notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given, delivered and/or provided (a) when delivered personally, by facsimile (which is confirmed by a printed confirmation produced by the sending machine) or by e-mail of a .pdf attachment (for which a confirmation email is obtained), or (b) on the next Business Day when dispatched for overnight delivery by Federal Express or a similar courier, in either case, to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
if to Amneal, to:
Amneal Pharmaceuticals LLC
400 Crossing Boulevard, Third Floor
Bridgewater, New Jersey 08807
Facsimile No.: (908) 947-3144
Attn: Sheldon Hirt, Senior Vice President, General Counsel
Email: shirt@amneal.com
with copies to:
Latham & Watkins LLP
885 3rd Ave.
New York, NY 10022
Facsimile No.: (212) 751-4864
Attention: Charles K. Ruck; R. Scott Shean
Email: charles.ruck@lw.com; scott.shean@lw.com
if to Impax, to:
Impax Laboratories, Inc.
31047 Genstar Road
Hayward, CA 94544
Facsimile No.: (510) 240-6096
Attention: General Counsel
Email: MSchlossberg@impaxlabs.com
with a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Facsimile No.: (212) 291-9004; (212) 291-9076
Attention: Francis J. Aquila; Matthew G. Hurd
Email: aquilaf@sullcrom.com; hurdm@sullcrom.com
 Section 9.03 Definitions . For purposes of this Agreement:
“ Acceptable Confidentiality Agreement ” means a confidentiality agreement that contains confidentiality provisions applicable to the relevant person that has made a Competing Proposal that are no less favorable in the aggregate to Impax than those contained in the Confidentiality Agreement, it being understood that such confidentiality agreement need not prohibit the making or amendment of a Competing Proposal.
“ Affiliate ”, with respect to any person, means another person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person.
“ Amneal Equity Award ” means any interests or rights that are linked to the value of Amneal LLC Interests or membership interests in Amneal Holdings, LLC or any of its Subsidiaries granted under the Amneal Plans.
 
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“ Amneal Equity Secondary ” means a privately negotiated sale (to one or more purchasers in transactions exempt from the registration requirements of the Securities Act) of up to 60,000,000 Amneal Units (or shares of Class A Common Stock issuable upon the exchange thereof) in the aggregate pursuant to commitments negotiated and executed between the Amneal Group Representative and such purchasers prior to the Closing.
“ Amneal Group Representative ” means Amneal Holdings, LLC, a Delaware limited liability company, and its successors and assigns.
“ Amneal LLC Interest ” means a limited liability company interest of Amneal.
“ Amneal LLC Operating Agreement ” means the Second Amended and Restated Limited Liability Company Agreement of Amneal, dated as of May 1, 2015, as amended to date.
“ Amneal Material Adverse Effect ” means any change, effect, event, circumstance, occurrence or state of facts that (a) is materially adverse to the business, condition (financial or otherwise), assets or results of operations of Amneal and its Subsidiaries (taken as a whole), or (b) prevents or materially impairs or materially delays the ability of Amneal and its Subsidiaries, as applicable, to consummate the Transactions, other than in the case of clause (a), any change, effect, event, circumstance, occurrence or state of facts to the extent relating to (i) changes in general economic conditions or the credit, financial or capital markets, including changes in interest or exchange rates; (ii) changes in general conditions in any industry in which Amneal or any of its Subsidiaries operates or participates; (iii) the announcement, pendency or anticipated consummation of the Transactions; (iv) any failure, in and of itself, by Amneal to meet any analyst projections or any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics before, on or after the date of this Agreement ( provided , that the underlying factors contributing to such failure shall not be deemed excluded unless such underlying factors would otherwise be excepted from this definition); (v) changes in general regulatory or political conditions after the date of this Agreement; (vi) changes in GAAP or applicable Law or the interpretation thereof after the date of this Agreement; (vii) actions taken by Amneal and its Subsidiaries, as applicable, as expressly required by this Agreement; (viii) any natural or man-made disaster; (ix) any pandemic, act of terrorism, sabotage, military action or war, or any escalation or worsening thereof or (x) solely for purposes of the condition set forth in Section 7.03(c) , any matter expressly disclosed in the Amneal Disclosure Letter; provided that with respect to clauses (i), (ii), (v), (vi), (viii) and (ix), such change, effect, event, circumstance, occurrence or state of facts does not disproportionately adversely affect Amneal compared to other companies operating in the industry in which Amneal operates.
“ Amneal Material Subsidiaries ” means each Subsidiary of Amneal set forth on Section 9.03(a) of the Amneal Disclosure Letter.
“ Amneal Member ” means a holder of limited liability company interests in Amneal, who has been admitted to Amneal as a member thereof pursuant to the terms of the Restated Amneal LLC Operating Agreement.
“ Amneal Units ” means Common Units (as defined in the Restated Amneal LLC Operating Agreement).
“ Ancillary Agreements ” means the Stockholders Agreement, the Tax Receivable Agreement, the Restated Amneal LLC Operating Agreement, and the Contribution Agreement.
“ Ancillary Transactions ” means the transactions contemplated by each of the Ancillary Agreements.
“ Black Scholes Value ” means, with respect to any Impax Option, the value of the unexercised portion of such Impax Option based on the Black and Scholes Option Pricing Model obtained from the “OV” function of Bloomberg using (A) a risk-free interest rate corresponding to the rate on U.S. Treasury securities with a maturity date corresponding to the number of years remaining in the term of such Impax Option as of the Closing Date, (B) an expected volatility equal to the 180-day volatility obtained from the HVT function on Bloomberg as
 
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of the Impax Measurement Date, (C) an underlying price per share equal to the Impax Measurement Price and (D) a remaining term of such Impax Option equal to the time between the Closing Date and the expiration date of such Impax Option (for the avoidance of doubt, for purposes of (A) and (D), without taking into account any shortened exercise period of such Impax Option due to termination of employment at or following the Closing).
“ Bloomberg ” means Bloomberg Financial Markets.
“ Business Day ” means a day, other than a Saturday, a Sunday or other day on which commercial banks in New York, New York are authorized or required by Law to close.
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Competing Proposal ” means any inquiry, proposal or offer made by any person (other than Amneal or any of its Affiliates) or “group,” within the meaning of Section 13(d) of the Exchange Act (other than one including Amneal or any of its Affiliates), for, in a single transaction or series of related transactions, any (i) acquisition of assets of Impax and its Subsidiaries equal to twenty percent (20%) or more (based on the fair market value thereof) of Impax’s consolidated assets (including capital stock of the Subsidiaries of Impax), taken as a whole, or to which twenty percent (20%) or more of Impax’s revenues on a consolidated basis are attributable, (ii) acquisition of twenty percent (20%) or more of the outstanding Impax Common Stock, (iii) tender offer or exchange offer that if consummated would result in any person or “group” beneficially owning, directly or indirectly, twenty percent (20%) or more of the outstanding Impax Common Stock or (iv) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution, equity investment, joint venture or similar transaction involving Impax or any of its Subsidiaries pursuant to which any person or “group” would own, directly or indirectly, (x) twenty percent (20%) or more of the outstanding Impax Common Stock or the surviving entity in a merger or the resulting direct or indirect parent of Impax or such surviving entity or (y) businesses or assets (including capital stock of the Subsidiaries of Impax) that constitute twenty percent (20%) or more of the consolidated revenues, net income or total assets of Impax and its Subsidiaries.
“ Competition Law ” means any domestic or foreign antitrust, competition and merger control Law that is applicable to the Transactions.
“ Contract ” means any binding written or oral agreement, deed, mortgage, lease, license, instrument, note, license, commitment, permit (other than a permit with a Governmental Authority) undertaking, arrangement or contract, including all amendments thereto.
“ Convertible Note Hedge Transactions ” means, collectively, (a) the base call option transaction confirmation and base call option side letter, each dated June 25, 2015, (b) the additional call option transaction confirmation and additional call option side letter, each dated June 26, 2015, (c) the base warrant transaction confirmation and base warrant side letter, each dated June 25, 2015, and (d) the additional warrant transaction confirmation and additional warrant side letter, each dated June 26, 2015, in each case, between Impax and Royal Bank of Canada.
“ DEA ” means the United States Drug Enforcement Administration.
“ Debt Financing ” means the debt financing incurred or intended to be incurred pursuant to the Debt Commitment Letter.
“ Debt Financing Parties ” means (a) the Debt Financing Sources and their respective Affiliates and (b) the former, current or future general or limited partners, shareholders, managers, members, directors, officers, employees, agents and representatives of the persons identified in clause (a), in each case, in their respective capacities as such.
 
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“ Debt Financing Sources ” means the persons, including the lenders that have committed to provide or arrange any Debt Financing or alternative debt financing in connection with the transactions contemplated hereby, including the parties named in the Debt Commitment Letter and any joinder agreements, note purchase agreements, indentures or credit agreements entered into pursuant thereto or relating thereto and, in each case, their respective successors and assigns.
“ Environmental Laws ” means all federal, state, local and foreign statutes, Laws, judicial decisions, regulations, ordinances, rules, judgments, orders, codes, injunctions, permits and governmental agreements relating to the protection of the environment, or human health and safety solely as it relates to occupational exposure to Hazardous Materials, including Laws relating to Releases or threatened Releases of Hazardous Materials into the indoor or outdoor environment (including ambient air, surface water, groundwater, land, surface and subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, Release, transport or handling of Hazardous Materials but excluding for the avoidance of doubt Laws concerning products liability or FDA regulatory matters.
“ Environmental Liabilities ” means, with respect to any person, any and all liabilities of or relating to such person or any of its Subsidiaries (including any entity which is, in whole or in part, a predecessor of such person or any of such Subsidiaries), whether vested or unvested, contingent or fixed, including contractual, which arise under applicable Environmental Laws or with respect to Hazardous Materials exposure.
“ Executive Order ” means Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism.
“ Existing Amneal Member ” means the persons set forth on Section 9.03(b) of the Amneal Disclosure Letter.
“ Existing Credit Facilities ” means the Indebtedness set forth on Section 9.03(c) of the Amneal Disclosure Letter (with respect to Amneal and its Subsidiaries) or Section 9.03(c) of the Impax Disclosure Letter (with respect to Impax and its Subsidiaries).
“ FDA ” means the United States Food and Drug Administration.
“ Fully Diluted Impax Share Number ” means, as of immediately prior to the Impax Merger Effective Time, the sum of (a) the number of shares of Impax Common Stock (excluding Impax Restricted Shares) outstanding, (b) the Net Settlement Impax Restricted Shares Number; (c) the quotient (rounded up to the nearest whole share) obtained by dividing (i) the aggregate Black Scholes Value of all outstanding Impax Options (whether or not such Impax Options are then exercisable and regardless of the exercise price of any such Impax Options) by (ii) the Impax Measurement Price, (d) if the conversion price of the Impax Convertible Notes is less than or equal to the Impax Measurement Price, the number of shares of Impax Common Stock into which the Impax Convertible Notes may be converted and (e) the number of shares of Impax Common Stock into which any outstanding convertible or exchangeable securities (other than Impax Options and the Impax Convertible Notes) may be converted or exchanged ( provided , that any applicable conversion or exchange price in connection with the conversion or exchange of such securities is less than or equal to the Impax Measurement Price).
“ Government Programs ” means Title XVIII (“ Medicare ”) and Title XIX (“ Medicaid ”) of the Social Security Act, CHAMPUS, TRICARE and any other federal health care program, as defined in 42 U.S.C. § 1320a-7b(f) or State health care program, as defined in 42 U.S.C. § 1320a-7(h), or successor programs to any of the above.
“ Governmental Authority ” means any government, court, regulatory or administrative agency, commission or authority or other governmental instrumentality, federal, state or local, domestic, foreign or multinational, including any contractor acting on behalf of such agency, commission, authority or governmental instrumentality.
 
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“ Hazardous Material ” means all substances or materials regulated or designated as hazardous, toxic, explosive, dangerous, flammable, radioactive, solid or hazardous waste, or a pollutant or contaminant under any Environmental Law, including petroleum, petroleum products, or petroleum waste, asbestos, polychlorinated biphenyls, mold, radon and any other substance regulated under Environmental Laws due to a potential for causing harm.
“ Healthcare Regulatory Authorizations ” means all approvals, clearances, authorizations, registrations, certifications, licenses and permits granted by any Healthcare Regulatory Authority, including all investigational new drug applications and new drug applications.
“ Holdco Share Issuances ” means (a) the issuance of shares of Class B Common Stock pursuant to Section 1.01(d) to each Existing Amneal Member and (b) the future issuances of Conversion Shares in accordance with the Restated Amneal LLC Operating Agreement.
“ Impax Convertible Notes ” means those certain 2.00% Convertible Senior Notes due 2022, issued pursuant to the Impax Indenture.
“ Impax Indenture ” means the Indenture, dated as of June 30, 2015, between Impax and Wilmington Trust, National Association, as Trustee.
“ Impax Material Adverse Effect ” means any change, effect, event, circumstance, occurrence or state of facts that (a) is materially adverse to the business, condition (financial or otherwise), assets or results of operations of Impax and its Subsidiaries (taken as a whole), or (b) prevents or materially impairs or materially delays the ability of Impax and its Subsidiaries, as applicable, to consummate the Transactions, other than in the case of clause (a), any change, effect, event, circumstance, occurrence or state of facts to the extent relating to (i) changes in general economic conditions or the credit, financial or capital markets, including changes in interest or exchange rates; (ii) changes in general conditions in any industry in which Impax or any of its Subsidiaries operates or participates; (iii) the announcement, pendency or anticipated consummation of the Transactions; (iv) any failure, in and of itself, by Impax to meet any analyst projections or any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics before, on or after the date of this Agreement ( provided , that the underlying factors contributing to such failure shall not be deemed excluded unless such underlying factors would otherwise be excepted from this definition); (v) changes in general regulatory or political conditions after the date of this Agreement; (vi) changes in GAAP or applicable Law or the interpretation thereof after the date of this Agreement; (vii) changes in the trading price or volume of the Impax Common Stock ( provided , that the underlying factors contributing to such change shall not be excluded unless such underlying factors would otherwise be excepted from this definition); (viii) actions taken by Impax and its Subsidiaries, as applicable, as expressly required by this Agreement; (ix) any natural or man-made disaster; (x) any pandemic, act of terrorism, sabotage, military action or war, or any escalation or worsening thereof or (xi) solely for purposes of the condition set forth in Section 7.02(c) , any matter expressly disclosed in the Impax Disclosure Letter or the Impax SEC Documents filed prior to the date hereof (and publicly available on the SEC’s Electronic Data Gathering Analysis and Retrieval system (but (A) without giving effect to any amendment thereof filed with, or furnished to the SEC on or after the date of this Agreement and (B) excluding any disclosure contained in such Impax SEC Documents under the heading “Risk Factors” or “Cautionary Statement About Forward-Looking Statements” or similar heading and any other disclosures contained or referenced therein of factors or risks that are predictive, cautionary or forward-looking in nature); provided that with respect to clauses (i), (ii), (v), (vi), (ix) and (x), such change, effect, event, circumstance, occurrence or state of facts does not disproportionately adversely affect Impax compared to other companies operating in the industry in which Impax operates.
“ Impax Material Subsidiaries ” means each Subsidiary of Impax set forth on Section 9.03(b) of the Impax Disclosure Letter.
“ Impax Measurement Date ” means the third complete trading day prior to (and excluding) the Closing Date.
 
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“ Impax Measurement Price ” means the closing price per share of Impax Common Stock on NASDAQ on the Impax Measurement Date (as reported by Bloomberg).
“ Impax Stockholders ” mean the holders of Impax Common Stock.
“ Indebtedness ” of any person means, without duplication, (i) all obligations of such person for borrowed money, (ii) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such person under conditional sale or other title retention agreements relating to property acquired by such person, (iv) all obligations of such person in respect of the deferred purchase price of property or services (excluding (A) current accounts payable incurred in the ordinary course of business and (B) accruals for payroll and other liabilities accrued in the ordinary course of business), (v) the Existing Credit Facilities (including any accrued and unpaid interest thereon and any premiums, fees and expenses related to the repayment thereof) and all Indebtedness secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such person, whether or not the Indebtedness secured thereby has been assumed, (vi) all guarantees or collateral security by such person of Indebtedness of others (excluding guarantees or collateral security, as applicable, of Indebtedness in favor of Impax or any of its Subsidiaries), (vii) all capital lease obligations of such person, (viii) all obligations, contingent or otherwise, of such person as an account party in respect of letters of credit and letters of guaranty, (ix) all obligations, contingent or otherwise, of such person in respect of bankers’ acceptances, (x) all obligations under derivative financial instruments, including interest rate caps, swaps, collars or similar transactions or currency hedging transaction of such person (valued at the termination value thereof) and (xi) all accrued and unpaid interest, if any, on and all make-whole amounts, prepayment penalties, breakage fees and other exit fees paid or payable in the event that any of the foregoing is to be repaid or otherwise discharged and any similar costs and expenses. The Indebtedness of any person shall include the Indebtedness of any other entity (including any partnership in which such person is a general partner) to the extent such person is liable therefor as a result of such person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such person is not liable therefor.
“ Intellectual Property ” means any and all of the following in any and all jurisdictions throughout the world: (i) patents, patent applications and all reissues, divisions, renewals, extensions, provisionals, disclosures, continuations, substitutions, continuations-in-part additions, confirmations, registrations, patent rights under any post-grant proceedings, any confirmation patent or registration patent or patent of addition based on any such patent, patent term adjustments, patent term extensions, and supplemental protection certificates or requests for continued examinations, foreign counterparts, and the like of any of the foregoing; (ii) trademarks, service marks, trade dress, corporate names, logos and slogans, corporate common law trademarks and services marks other identifiers of source of goodwill, whether or not registered (and all translations, adaptations, derivations and combinations of the foregoing), and Internet domain names and domain name registrations, together with all goodwill associated with each of the foregoing; (iii) copyrights and copyrightable works, whether registered or unregistered; (iv) technology, models and methodologies, all technical information, know-how and data, including inventions (whether or not patentable), invention disclosures, improvements, drug candidates, trade secrets and other confidential information, specifications, instructions, processes, formulae and other technology applicable to formulations, compositions or products or to their manufacture, development, registration, use or marketing or to methods of assaying or testing them or processes for their manufacture, formulations containing them or compositions incorporating or comprising them, and including all biological, chemical, pharmacological, biochemical, toxicological, pharmaceutical, physical and analytical, safety, quality control, manufacturing, nonclinical and clinical data, regulatory data and filings, instructions, processes, formulae and information, relevant to the research, development, manufacture, use, importation, offering for sale or sale of, and/or which may be useful in studying, testing, developing, producing or formulating, products, or intermediates for the synthesis thereof, and in each case all documentation relating to any of the foregoing (“ Trade Secrets ”); and (v) computer software (including source code, executable code, data, databases, and documentation).
“ Intervening Event ” means an event, fact, circumstance, development or occurrence materially affecting the business, assets or operations of Amneal or Impax (other than any matter that relates to a Superior Proposal or
 
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one resulting from a material breach of this Agreement by Amneal or Impax) that is unknown to, and not reasonably foreseeable by, the Impax Board as of the date of this Agreement (or if known, the magnitude or material consequences of which were not known, understood or reasonably foreseeable by the Impax Board as of the date of this Agreement), which event, fact, circumstance, development, occurrence, magnitude or material consequence becomes known to or by the Impax Board prior to the date of the Impax Stockholder Meeting.
“ IRS ” means the Internal Revenue Service.
“ ISRA ” means the New Jersey Industrial Site Recovery Act, N.J. Stat. Ann.§ 13.1-et seq. and any regulations promulgated thereunder.
“ Knowledge ” of any person that is not an individual means, (i) with respect to Impax or Holdco regarding any matter in question, the actual (but not constructive or imputed) knowledge (after due inquiry of the officers of Impax with oversight responsibilities for the matter in question) of the individuals listed on Section 9.03(d) of the Impax Disclosure Letter and (ii) with respect to Amneal regarding any matter in question, the actual (but not constructive or imputed) knowledge (after due inquiry of the officers of Amneal with oversight responsibilities for the matter in question) of the individuals listed on Section 9.03(d) of the Amneal Disclosure Letter.
“ Laws ” means any laws (statutory, common or otherwise), constitutions, treaties, conventions, ordinances, codes, rules, regulations, orders, injunctions, judgments, decisions, decrees, rulings, assessments, orders, legally enforceable policies or other similar requirements enacted, adopted, promulgated or applied by a Governmental Authority.
“ Lien ” means any lien, security interest, deed of trust, mortgage, pledge, encumbrance, restriction on transfer, proxy, voting trust or agreement, hypothecation, assignment, claim, right of way, defect in title, encroachment, easement, restrictive covenant, charge, deposit arrangement, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever including any conditional sale or other title retention agreement, the interest of a lessor under a capital lease and any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable Law of any jurisdiction naming the owner of the asset to which such lien relates as debtor, or any restriction on the creation of any of the foregoing.
“ NASDAQ ” means the NASDAQ Stock Market LLC.
“ Net Settlement Impax Restricted Shares Number ” means the number of Exchanged Impax Restricted Shares to be issued in exchange for the Impax Restricted Shares pursuant to Section 2.04(b) , assuming that Tax withholding with respect to vesting of the Impax Restricted Shares (at the statutory minimum withholding rate) is effectuated by net cashless settlement.
“ NJDEP ” means the New Jersey Department of Environmental Protection.
“ NYSE ” means the New York Stock Exchange.
“ Paragraph IV Certification Notice ” means the notice of certification required by 21 U.S.C. § 355(b)(3) or 21 U.S.C. § 355(j)(2)(B).
“ Paragraph IV Proceeding ” means an infringement Litigation Proceeding filed pursuant to 35 U.S.C. § 271(e)(2) with respect to a product.
“ Payoff Letters ” means one or more customary payoff letters relating to the Existing Credit Facilities is owed setting forth the amount of, or the formula for the determination of, the amount required to discharge in full all of such Indebtedness as of the Closing Date and the instructions for the payment of such Indebtedness and
 
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evidencing that upon payment of the amount set forth in such letter at Closing, such payment would result in the full repayment, satisfaction, release and discharge of all current and future obligations in respect of such Indebtedness owed to such person and all current and future Liens relating to such Indebtedness (subject to customary requirements including debt reinstatement).
“ Permitted Liens ” means (i) any liens for taxes not yet delinquent or which are being contested in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP; (ii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar liens arising or incurred in the ordinary course of business securing amounts that are not overdue for a period of more than sixty (60) days or the amount or validity of which is being contested in good faith by appropriate proceedings; (iii) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation; (iv) easements, rights-of-way, restrictions and other similar non-monetary encumbrances that, in the aggregate, do not materially detract from the current use of the property subject thereto; (v) zoning, building or other restrictions, variances, restrictive covenants or declarations that are not materially violated by the current use or operation of the property subject thereto; (vi) licenses of Intellectual Property in the ordinary course of business; (vii) Liens securing any Indebtedness set forth in Section 9.03(e) of the Impax Disclosure Letter or Section 9.03(e) of the Amneal Disclosure Letter, as applicable; (viii) Liens described in, set forth in or securing the Amneal Leases or the Impax Leases, as applicable; (ix) non-monetary Liens or imperfections of title that have arisen in the ordinary course of business, which Liens or imperfections of title do not materially detract from the value, or otherwise materially interfere with the present use, of Impax Real Property, or Amneal Real Property, as applicable; (x) Liens or imperfections of title relating to liabilities reflected, or adequately reserved against, in the Amneal Financial Statements or the financial statements (including any related notes) contained in the Impax SEC Documents; (xi) Liens securing the Existing Credit Facilities, but solely to the extent such Liens are released at Closing; and (xii) such other non-monetary Liens as do not materially detract from the value, or otherwise materially interfere with the present use, of any of Impax’s, Amneal’s or any of their respective Subsidiaries’ fee or leasehold interest in Impax Real Property or Amneal Real Property, as applicable, or otherwise materially impair Impax’s, Amneal’s or any of their respective Subsidiaries’ business operations.
“ person ” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.
“ Prohibited Person ” means any person:
(i) listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order;
(ii) that is owned or controlled by, or acting for or on behalf of, any person or entity that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order;
(iii) with whom either party hereto is prohibited from dealing or otherwise engaging in any transaction by any terrorism or money laundering legal requirements, including the USA PATRIOT Act and the Executive Order;
(iv) that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order;
(v) that is named as a “specifically designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or at any replacement website or other replacement official publication of such list or is named on any other U.S. or foreign government or regulatory list issued post-September 11, 2001;
(vi) that is covered by the International Emergency Economic Power Act, 50 U.S.C. §1701 et. seq., the U.S. Department of Treasury’s Office of Foreign Asset Control, or any other Law relating to the imposition of economic sanctions against any country, region or individual pursuant to United States law or United Nations resolution; or
 
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(vii) that is an affiliate (including any principal, officer, immediate family member or close associate) of a person described in one or more of clauses (i)—(vi) of this definition of Prohibited Person.
“ Proxy Statement/Prospectus ” means the definitive proxy statement/prospectus (including any amendment or supplement thereto) included in the Registration Statement relating to the matters to be submitted to Impax Stockholders for approval at the Impax Stockholder Meeting, which will also be used as a prospectus of Holdco with respect to the issuance of shares of Holdco Common Stock in connection with the Transactions (including the Conversion Shares).
“ Registration Statement ” means the registration statement on Form S-4 to be filed with the SEC (including any pre-effective or post-effective amendments or supplements thereto) registering the public offering and sale of shares of Holdco Common Stock to be issued in connection with the Transactions (including the Conversion Shares).
“ Release ” means any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the indoor or outdoor environment (including ambient air, surface water, groundwater and surface or subsurface strata) or into or out of any property.
“ Representatives ” means, with respect to any person, such person’s officers, directors, managers, employees, financing sources, consultants, agents, financial advisors, attorneys, accountants, other advisors, Affiliates and other representatives.
“ Restated Amneal LLC Operating Agreement ” means the Third Amended and Restated Limited Liability Company Agreement of Amneal attached as Exhibit H to this Agreement.
“ Stockholders Agreement ” means that certain Stockholders Agreement, in the form attached hereto as Exhibit I .
“ Subsidiary ”, with respect to any person, means (i) another person, an amount of the voting securities, other voting rights or voting partnership interests of which is sufficient to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% of the equity interests of which) is owned directly or indirectly by such first person or (ii) another person of which such first person or any of its Subsidiaries is a general partner, manager, managing member or the equivalent.
“ Superior Proposal ” a written Competing Proposal that the Impax Board has determined, after consultation with its outside legal counsel and financial advisor, in its good faith judgment, taking into account the conditionality, expected timing and likelihood of consummation of the proposal, this Agreement (including any changes or modifications to this Agreement or the Ancillary Agreements or the Transactions or the Ancillary Transactions offered by Amneal and capable of acceptance) and all other factors the Impax Board determines in good faith to be relevant, (i) is reasonably likely to be consummated, (iii) for which financing, if a cash transaction (in whole or in part), is then fully committed or is, in the judgment of the Impax Board, reasonably obtainable and (iii) if consummated, would result in a transaction more favorable to Impax Stockholders from a financial point of view than the Transactions; provided that for purposes of this definition of “ Superior Proposal ,” the references to “twenty percent (20%)” in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%).”
“ Tax ” or “ Taxes ” means all taxes, however denominated, including any interest, penalties, fines, fees, duties, charges, levies, assessments, reassessments or additions to taxes of any kind whatsoever that may become payable in respect thereof, imposed by any taxing authority under any Law, which taxes shall include, but not be limited to, all income, gross receipts, ad valorem, payroll, employee, withholding, employment, unemployment, social security, disability, profit, custom, duty, transfer duties, impact, hospital, health, profits, paid up capital, transfer, severance, environmental (including taxes under Section 59A of the Code), greenmail, licenses, value-
 
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added goods and services, sales, harmonized sales, anti-dumping, import, capital, insurance, social security, sales and use, capital gains, transfer, disability, leasing, occupation, excise, franchise, add-on minimum, alternative, net worth, service, real and personal property, stamp, registration, premium and workers’ compensation and any obligation with respect to any Law regarding escheat or unclaimed property, and shall include any liability for any such amounts as a result of (i) being a member of a combined, consolidated, unitary, affiliated or similar group, (ii) being a transferee of or successor to any person or (iii) a contractual obligation to indemnify any person.
“ Tax Receivable Agreement ” means that certain Tax Receivable Agreement, in the form attached hereto as Exhibit J .
“ Tax Return ” means any return, report, declaration, remittance, notice, schedule, form, election, estimate, information statement, claim for refund and return or other document (including any related or supporting information and any amendment to any of the foregoing and any sales and use and resale certificates) filed or required to be filed with any taxing authority with respect to Taxes.
“ Termination Fee ” means a cash amount in immediately available funds equal to $45,000,000.
“ Treasury Regulation ” means one or more Treasury regulations promulgated under the Code, whether such regulations are in proposed, temporary or final form, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
TABLE OF DEFINED TERMS

401(k) Plan	  	 	Section 6.09(d)	 	
Affected Employees	  	 	Section 6.09(a)	 	
Agreement	  	 	Preamble	 	
Alternative Financing	  	 	Section 6.11(a)(iii)	 	
Amended and Restated Holdco Bylaws	  	 	Section 1.01(a)(i)	 	
Amended and Restated Holdco Charter	  	 	Section 1.01(a)(i)	 	
Anti-Corruption Laws	  	 	Section 3.21(c)	 	
APHC	  	 	Recitals	 	
Amneal	  	 	Preamble	 	
Amneal Board	  	 	Recitals	 	
Amneal Disclosure Letter	  	 	Article IV	 	
Amneal Employees	  	 	Section 4.14(a)	 	
Amneal ERISA Affiliate	  	 	Section 4.14(e)	 	
Amneal Financial Statements	  	 	Section 4.07(a)	 	
Amneal Indemnified Parties	  	 	Section 6.05(a)	 	
Amneal Intellectual Property	  	 	Section 4.16(a)	 	
Amneal Labor Agreement	  	 	Section 4.19	 	
Amneal Lease	  	 	Section 4.17(i)	 	
Amneal Leased Real Property	  	 	Section 4.17(a)	 	
Amneal Material Contracts	  	 	Section 4.11(a)	 	
Amneal Owned Real Property	  	 	Section 4.17(a)	 	
Amneal Permits	  	 	Section 4.12(a)	 	
Amneal Plans	  	 	Section 4.14(a)	 	
Amneal Policies	  	 	Section 4.20	 	
Amneal Pre-Closing Actions	  	 	Section 6.16(a)	 	
Amneal Real Property	  	 	Section 4.17(a)	 	
Burdensome Condition	  	 	Section 6.04(c)	 	
Call Spread Dealer	  	 	Section 6.19(h)	 	
 
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Cancelled Shares	  	 	Section 2.01(b)	 	
Capitalization Date	  	 	Section 3.03(a)	 	
Certificate of Conversion	  	 	Section 1.01(b)(ii)	 	
Certificate of Formation	  	 	Section 1.01(b)(ii)	 	
Certificate of Merger	  	 	Section 1.01(a)(ii)	 	
Change of Recommendation	  	 	Section 5.02(c)	 	
Chosen Courts	  	 	Section 9.09(a)	 	
Class A Common Stock	  	 	Section 1.01(c)(i)	 	
Class B Common Stock	  	 	Section 1.01(d)	 	
Closing	  	 	Section 1.03	 	
Closing Date	  	 	Section 1.03	 	
COBRA	  	 	Section 3.14(h)	 	
Commercialization	  	 	Section 5.01(a)(viii)	 	
Competing Proposal Agreement	  	 	Section 5.02(a)	 	
Confidentiality Agreement	  	 	Section 6.03	 	
Contribution	  	 	Section 1.01(c)(i)	 	
Contribution Effective Time	  	 	Section 1.01(c)(ii)	 	
Conversion Effective Time	  	 	Section 1.01(b)(ii)	 	
Conversion Shares	  	 	Section 3.05(a)	 	
Debt Commitment Letter	  	 	Section 4.25(a)	 	
Debt Financing Commitments	  	 	Section 4.25(a)	 	
Definitive Agreements	  	 	Section 6.11(a)	 	
DGCL	  	 	Section 1.01(a)(ii)	 	
Disclosure Letters	  	 	Section 9.15	 	
DLLCA	  	 	Section 1.01(b)(i)	 	
ERISA	  	 	Section 3.14(a)	 	
Exchange Act	  	 	Section 3.06	 	
Exchange Agent	  	 	Section 2.03(a)	 	
Exchange Fund	  	 	Section 2.03(a)	 	
Exchanged Impax Option	  	 	Section 2.04(a)	 	
Exchanged Impax Restricted Share	  	 	Section 2.04(b)	 	
FCPA	  	 	Section 3.21(c)	 	
Fee Letter	  	 	Section 4.25(a)	 	
FFDCA	  	 	Section 3.13(a)	 	
GAAP	  	 	Section 3.07(a)	 	
Good Clinical Practices	  	 	Section 3.13(d)	 	
Good Laboratory Practices	  	 	Section 3.13(d)	 	
Good Manufacturing Practices	  	 	Section 3.13(d)	 	
Healthcare Laws	  	 	Section 3.13(a)	 	
Healthcare Regulatory Authority	  	 	Section 3.06	 	
Holdco	  	 	Preamble	 	
Holdco Board	  	 	Section 1.05	 	
Holdco Charter Amendment	  	 	Section 1.01(a)(i)	 	
Holdco Common Stock	  	 	Section 1.01(d)	 	
HSR Act	  	 	Section 3.06	 	
Impax	  	 	Preamble	 	
Impax 2002 Stock Plan	  	 	Section 3.03(a)	 	
Impax Board	  	 	Recitals	 	
Impax Board Recommendation	  	 	Section 3.04(a)	 	
Impax Book-Entry Shares	  	 	Section 2.03(a)	 	
Impax Bylaws	  	 	Section 3.01	 	
Impax Certificates	  	 	Section 2.03(a)	 	
Impax Charter	  	 	Section 3.01	 	
 
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Impax Common Stock	  	 	Section 3.03(a)	 	
Impax Disclosure Letter	  	 	Article III	 	
Impax Employees	  	 	Section 3.14(a)	 	
Impax ERISA Affiliate	  	 	Section 3.14(e)	 	
Impax ESPP	  	 	Section 3.03(a)	 	
Impax Indemnified Parties	  	 	Section 6.05(a)	 	
Impax Intellectual Property	  	 	Section 3.16(a)	 	
Impax Lease	  	 	Section 3.17(i)	 	
Impax Leased Real Property	  	 	Section 3.17(a)	 	
Impax Liability Management Transaction	  	 	Section 6.19(a)	 	
Impax Material Contracts	  	 	Section 3.11(a)	 	
Impax Merger	  	 	Recitals	 	
Impax Merger Effective Time	  	 	Section 1.01(a)(ii)	 	
Impax Options	  	 	Section 3.03(a)	 	
Impax Owned Real Property	  	 	Section 3.17(a)	 	
Impax Permits	  	 	Section 3.12(a)	 	
Impax Plans	  	 	Section 3.14(a)	 	
Impax Policies	  	 	Section 3.20	 	
Impax Pre-Closing Actions	  	 	Section 6.16(b)	 	
Impax Preferred Stock	  	 	Section 3.03(a)	 	
Impax Real Property	  	 	Section 3.17(a)	 	
Impax Restricted Shares	  	 	Section 3.03(a)	 	
Impax SEC Documents	  	 	Section 3.07(a)	 	
Impax Stock Plans	  	 	Section 3.03(a)	 	
Impax Stockholder Approval	  	 	Section 3.27	 	
Impax Stockholder Meeting	  	 	Section 6.02	 	
Liability Management Documents	  	 	Section 6.19(a)	 	
Litigation Proceeding	  	 	Section 3.10	 	
LLC Conversion	  	 	Section 1.01(b)(i)	 	
Merger Consideration	  	 	Section 2.01(c)	 	
Merger Sub	  	 	Preamble	 	
Multiemployer Plan	  	 	Section 3.14(e)	 	
Morgan Stanley	  	 	Section 3.23	 	
Non-U.S. Amneal Plan	  	 	Section 4.14(k)	 	
Non-U.S. Impax Plan	  	 	Section 3.14(l)	 	
Notice of Change of Recommendation	  	 	Section 5.02(f)	 	
Notice of Superior Proposal Action	  	 	Section 5.02(e)	 	
NYSE Listing Application	  	 	Section 6.13	 	
Outside Date	  	 	Section 8.01(b)(i)	 	
Reaffirmation Date	  	 	Section 8.01(c)(iv)	 	
Registered Amneal Intellectual Property	  	 	Section 4.16(b)	 	
Registered Impax Intellectual Property	  	 	Section 3.16(b)	 	
Required Amount	  	 	Section 4.25(b)	 	
Restraints	  	 	Section 7.01(c)	 	
Restricted Debt Commitment Amendments	  	 	Section 6.11(a)(ii)	 	
Sarbanes-Oxley	  	 	Section 3.12(d)	 	
SEC	  	 	Section 3.07(a)	 	
Securities Act	  	 	Section 3.06	 	
Surviving Company	  	 	Section 1.01(a)(iii)	 	
Third Party Expenses	  	 	Section 8.02(b)	 	
Transactions	  	 	Recitals	 	
Unit Issuance	  	 	Section 1.01(c)(i)	 	
U.S. Customs	  	 	Section 3.13(d)	 	
WARN Act	  	 	Section 3.19	 	
 
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 Section 9.04 Interpretation . When a reference is made in this Agreement to an Article, a Section, Exhibit or Schedule, such reference shall be to an Article of, a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “ordinary course of business” shall be deemed to be followed by “consistent with past practice.” The phrase “made available,” when used in reference to anything made available to Amneal, Impax or their Representatives shall be deemed to mean uploaded to and made available to Amneal, Impax and their Representatives in the on-line data room or otherwise being in the possession of Amneal, Impax or their Representatives (and in such case accessible without limitation to Amneal and Impax). All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns. The parties have participated jointly in the negotiating and drafting of this Agreement. In the event of an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
 Section 9.05 Counterparts . This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. Facsimile signatures or signatures received as a .pdf attachment to electronic mail shall be treated as original signatures for all purposes of this Agreement.
 Section 9.06 Entire Agreement; No Third-Party Beneficiaries . This Agreement, including the Impax Disclosure Letter, the Amneal Disclosure Letter, the Ancillary Agreements and the Exhibits hereto, and the Confidentiality Agreement constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement, the Ancillary Agreements and the Confidentiality Agreement and, except with respect to the Impax Indemnified Parties and the Amneal Indemnified Parties, who are intended third party beneficiaries of the provisions of Section 6.05 , and any Debt Financing Source and any Debt Financing Party, who are intended third party beneficiaries of the provisions of Section 9.07 , 9.09(b) , 9.10 , 9.12 , 9.17 and this 9.06 , are not intended to confer upon any person other than the parties any rights, benefits or remedies.
 Section 9.07 Governing Law . This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws thereof. Notwithstanding the foregoing, actions that may be based upon, arise out of or relate to the Debt Financing, the Debt Commitment Letter or the definitive documentation thereof, or the negotiation, execution or performance of any documentation related thereto, shall be governed by and construed in accordance with the laws of the State of New York regardless of the laws that might otherwise govern under applicable principles of conflicts thereof.
 Section 9.08 Assignment . Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise by any party without the prior written consent of the other party, and any attempt to make any such assignment without such consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
 
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 Section 9.09 Specific Enforcement; Consent to Jurisdiction .
(a) The parties hereto agree that irreparable damage would occur and that they would not have any adequate remedy at Law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement without proof of actual damages, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto hereby submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or in the event, but only in the event, that such court does not have subject matter jurisdiction over such action or proceeding, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware) (such courts, the “ Chosen Courts ”)). In addition, each of the parties irrevocably (a) submits itself to the exclusive jurisdiction of the Chosen Courts for the purpose of any litigation directly or indirectly based upon, relating to or arising out of this Agreement or any of the Transactions or the negotiation, execution or performance hereof or thereof, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Chosen Courts and (c) agrees that it will not bring any action relating to this Agreement or the Transactions in any court other than the Chosen Courts. Each of the parties hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any litigation with respect to this Agreement, (x) any claim that it is not personally subject to the jurisdiction of the Chosen Courts for any reason other than the failure to serve in accordance with this Section 9.09 , (y) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in Chosen Courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (z) to the fullest extent permitted by the applicable Law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter of this Agreement, may not be enforced in or by such courts. Each of the parties hereby irrevocably consents to service being made through the notice procedures set forth in Section 9.02 and agrees that service of any process, summons, notice or document by personal delivery to the respective addresses set forth in Section 9.02 shall be effective service of process for any litigation in connection with this Agreement or the Transactions. Nothing in this Section 9.09 shall affect the right of any party to serve legal process in any other manner permitted by Law.
(b) Notwithstanding anything in the preceding clause (a) to the contrary, and without limiting anything set forth in Section 9.17 , each of the parties hereto (on behalf of itself and its controlled Affiliates) agrees that it will not bring or support any suit, action or other proceeding (whether at law, in equity, in contract, in tort or otherwise) against any Debt Financing Source or Debt Financing Party in any way relating to this Agreement or any of the transactions contemplated by this Agreement (including the Transactions and any related financing), including any dispute arising out of or relating in any way to the Debt Financing or the performance thereof, in any forum other than any New York State court or federal court sitting in the county of New York and the Borough of Manhattan (and appellate courts thereof), except to the extent such courts do not have jurisdiction over any Debt Financing Source or Debt Financing Party. The parties hereto further agree that all of the provisions of Section 9.10 relating to waiver of jury trial shall apply to any suit, action or other proceeding referenced in this Section 9.09 .
 Section 9.10 WAIVER OF JURY TRIAL . EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS (INCLUDING ANY LEGAL ACTION AGAINST ANY DEBT FINANCING SOURCES OR DEBT FINANCING PARTIES ARISING OUT OF THIS AGREEMENT OR THE DEBT FINANCING). EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT
 
88

(A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED AND UNDERSTANDS THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 9.10 .
 Section 9.11 Severability . Except as expressly set forth in this Agreement, if any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the Transactions are fulfilled to the extent possible.
 Section 9.12 Amendment . This Agreement may be amended by the parties at any time before or after receipt of the Impax Stockholder Approval; provided , however , that after the Impax Stockholder Approval has been obtained, there shall be made no amendment that by Law requires further stockholder approval without such approval having been obtained. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties. Notwithstanding anything herein to the contrary, Sections 9.06 , 9.07 , 9.09(b) , 9.10 , 9.17 and this Section 9.12 (and any provision of this Agreement to the extent a modification, waiver or termination of such provision would modify the substance of any of the foregoing provisions) may not be modified, waived or terminated in a manner that impacts or is adverse in any respect to a Debt Financing Source or Debt Financing Party without the prior written consent of such Debt Financing Source or Debt Financing Party.
 Section 9.13 Further Assurances . The parties agree to execute and deliver to each other such other documents and to do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement.
 Section 9.14 Extension; Waiver .
(a) At any time prior to the Closing, each party hereto may (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (ii) to the extent permitted by Law, waive any inaccuracies in the representations and warranties contained herein by any other party or in any document, certificate or writing delivered pursuant hereto by any other applicable party or (iii) subject to the provision to the first sentence of Section 9.12 and to the extent permitted by Law, waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of any party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.
(b) The failure of any party to this Agreement to exercise any of its rights under this Agreement or otherwise shall not constitute a waiver by such party of such right.
 Section 9.15 Disclosure Letters . All capitalized terms not defined in the Impax Disclosure Letter or the Amneal Disclosure Letter, as applicable (together, the “ Disclosure Letters ”) shall have the meanings ascribed to them in this Agreement. The representations, warranties, covenants and agreements of Impax and Amneal, as applicable, set forth in this Agreement are made and given subject to, and are qualified by, the Impax Disclosure Letter or Amneal Disclosure Letter, as applicable. Unless the context shall otherwise require, any disclosure set forth in one section or subsection of the Disclosure Letters shall be deemed to apply to and qualify the section or subsection of this Agreement to which it corresponds in number and each other section or subsection of Article III or Article IV , as applicable, of this Agreement to the extent that it is reasonably apparent on its face
 
89

that such information is relevant to such other section or subsection of Article III or Article IV , as applicable. The Disclosure Letters may include brief descriptions or summaries of certain agreements and instruments. The descriptions or summaries do not purport to be comprehensive and are qualified in their entirety by reference to the text of the documents described. No disclosure set forth in the Disclosure Letters relating to any possible breach or violation of any Contract or Law shall be construed as an admission or indication that any such breach or violation exists or has actually occurred. The inclusion of any information in the Disclosure Letters shall not be deemed to be an admission or acknowledgment that such information (a) is required by the terms of this Agreement to be disclosed, (b) is material to Impax or Amneal, as applicable, their respective Subsidiaries or any other party, (c) has resulted in or would result in an Impax Material Adverse Effect or Amneal Material Adverse Effect, as applicable, or (d) is outside the ordinary course of business. Matters reflected in the Disclosure Letters are not necessarily limited to matters required by this Agreement to be reflected in the Disclosure Letters. Such additional matters are set forth for informational purposes and do not necessarily include other matters of a similar nature.
 Section 9.16 Limitation on Claims . Except with respect to claims of, or causes of action arising from, fraud, any claim or cause of action based upon, arising out of, or related to this Agreement may only be brought against persons that are expressly named as parties hereto, and then only with respect to the specific obligations set forth herein. Except with respect to claims of, or causes of action arising from, fraud, no former, current or future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, members, managers, agents, trustees, Affiliates, general or limited partners or assignees of Impax, Holdco, Amneal or of any former, current or future direct or indirect equity holder, controlling person, stockholder, director, officer, employee, member, manager, trustee, general or limited partner, Affiliate, agent or assignee of any of the foregoing shall have any liability or obligation for any of the representations, warranties, covenants, agreements, obligations or liabilities of Impax, Holdco or Amneal under this Agreement or of or for any action, suit, arbitration, claim, litigation, investigation or proceeding based on, in respect of, or by reason of, the Transactions (including the breach, termination or failure to consummate such Transactions), in each case whether based on contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law or otherwise and whether by or through attempted piercing of the corporate or partnership veil, by or through a claim by or on behalf of a party hereto or another person or otherwise.
 Section 9.17 No Recourse . Notwithstanding anything to the contrary in this Agreement, this Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, may only be made against the parties hereto, and no Debt Financing Source or Debt Financing Party shall have any liability for any obligations or liabilities of the parties hereto or for any claim (whether in contract, tort or otherwise), based on, in respect of, or by reason of, the Transactions contemplated hereby or in respect of any oral representations made or alleged to be made in connection herewith. In no event shall Impax or any of its Affiliates, and Impax agrees not to and to cause its Affiliates not to, (a) seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Debt Financing Source or Debt Financing Party or (b) seek to enforce the commitments against, make any claims for breach of the Debt Financing commitments against, or seek to recover monetary damages from, or otherwise sue, the Debt Financing Sources or the Debt Financing Parties for any reason, including in connection with the Debt Financing commitments or the obligations of the Debt Financing Sources or the Debt Financing Parties thereunder.
[ Signature page follows ]
 
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IN WITNESS WHEREOF, Amneal, Impax, Merger Sub and Holdco have caused this Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above.

AMNEAL PHARMACEUTICALS LLC	
		
By:	 	/s/ Chintu Patel	
	 	Name:	 	Chintu Patel	
	 	Title:	 	Manager	
		
By:	 	/s/ Chirag Patel	
	 	Name:	 	Chirag Patel	
	 	Title:	 	Manager	
		
By:	 	/s/ Tushar Patel	
	 	Name:	 	Tushar Patel	
	 	Title:	 	Manager	
		
By:	 	/s/ Gautam Patel	
	 	Name:	 	Gautam Patel	
	 	Title:	 	Manager	

IMPAX LABORATORIES, INC.	
		
By:	 	/s/ Paul M. Bisaro	
	 	Name:	 	Paul M. Bisaro	
	 	Title:	 	Chief Executive Officer and President	

K2 MERGER SUB CORPORATION	
		
By:	 	/s/ Paul M. Bisaro	
	 	Name:	 	Paul M. Bisaro	
	 	Title:	 	Chief Executive Officer and President	

ATLAS HOLDINGS, INC.	
		
By:	 	/s/ Paul M. Bisaro	
	 	Name:	 	Paul M. Bisaro	
	 	Title:	 	Chief Executive Officer and President	
 
91

EXHIBIT C
LIMITED LIABILITY COMPANY AGREEMENT
OF
IMPAX LABORATORIES, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) of Impax Laboratories, LLC (the “ Company ”), effective as of the Conversion Effective Time (as defined below), is entered into by Atlas Holdings, Inc., as the sole member of the Company.
WHEREAS , on the date hereof, Impax Laboratories, Inc., a Delaware corporation (the “ Corporation ”), was converted to a limited liability company (the “ LLC Conversion ”) pursuant to Section 18-214 of the Delaware Limited Liability Company Act (as amended from time to time, the “ Act ”), and Section 266 of the General Corporation Law of the State of Delaware (as amended from time to time, the “ DGCL ”), by causing the filing with the Secretary of State of the State of Delaware of a certificate of conversion to limited liability company (the “ Certificate of Conversion ”) and a certificate of formation of the Company (the “ Certificate of Formation ”); and
WHEREAS , the LLC Conversion became effective at such time as the Certificate of Conversion and Certificate of Formation were filed with the Secretary of State of the State of Delaware or at such other later time as was specified in the Certificate of Conversion and Certificate of Formation in accordance with the relevant provisions of the DGCL and the Act (such date and time is referred to herein as the “ Conversion Effective Time ”).
NOW, THEREFORE , the Member hereby agrees as follows:
1. Formation of Limited Liability Company . Atlas Holdings, Inc. (the “ Member ”), hereby continues the Company as a limited liability company pursuant to the provisions of the Act. The rights and obligations of the Member and the administration and termination of the Company shall be governed by this Agreement and the Act. This Agreement shall be considered the “ Limited Liability Company Agreement ” of the Company within the meaning of the Act. To the extent this Agreement is inconsistent in any respect with the Act, to the extent permitted by law, this Agreement shall control. At the Conversion Effective Time, (i) the amended and restated certificate of incorporation and the by-laws of the Corporation, each in effect at the Conversion Effective Time, were replaced and superseded in their entirety by the Certificate of Formation and this Agreement, (ii) Atlas Holdings, Inc., as the sole stockholder of the Corporation, executed this Agreement and was admitted to the Company as the sole member of the Company, and (iii) all of the shares of stock of the Corporation issued and outstanding immediately prior to the LLC Conversion were converted to all of the limited liability company interests in the Company.
2. Member . The Member is the sole and managing member of the Company.
3. Purpose . The purpose of the Company is to engage in any and all other lawful businesses or activities in which a limited liability company may be engaged under applicable law (including, without limitation, the Act).
4. Name . The name of the Company shall be “Impax Laboratories, LLC”.
5. Registered Agent and Principal Office . The address of the Company’s registered office in the State of Delaware is 251 Little Falls Drive, Wilmington, Delaware, County of New Castle, 19808. The name of its registered agent at that address is Corporation Service Company. The Company may have such other offices as the Member may designate from time to time. The mailing address of the Company shall be as the Member may designate from time to time. The initial mailing address of the Company is [●].
6. Term of Company . The term of the Company shall continue in perpetuity until the dissolution of the Company in accordance with this Agreement and the Act. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.
 
92

EXHIBIT C
 
7. Authorized Person . [●] was designated as an authorized person within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company (which filing is hereby ratified and approved) with the Secretary of State of the State of Delaware. Upon the filing of the Certificate of Formation his powers as authorized person shall cease, and the Member thereupon shall become the designated authorized person and shall continue as the designated authorized person within the meaning of the Act. The execution, delivery and filing of the Certificate of Conversion and the LLC Conversion are hereby ratified and approved.
8. Management of Company . All decisions relating to the business, affairs and properties of the Company shall be made by the Member in its capacity as the managing member. Notwithstanding any other provisions of this Agreement, the Member, acting alone, is authorized to execute and deliver any document on behalf of the Company without any vote or consent of any other person.
9. Officers . The Member may, from time to time as it deems necessary and advisable, designate natural persons as officers of the Company to manage the day-to-day business affairs thereof (the “ Officers ”). The Officers shall serve at the pleasure of the Member and the Member may assign to the Officers such titles as it deems appropriate. To the extent delegated by the Member, the Officers shall have the authority to act on behalf of, bind and execute and deliver documents in the name and on behalf of the Company. No such delegation shall cause the Member to cease to be the sole Member. The initial Officers are set forth on Exhibit A . An Officer may be removed with or without cause at any time by the Member.
10. Distributions . Each distribution of cash or other property by the Company shall be made 100% to the Member. Each item of income, gain, loss, deduction and credit of the Company shall be allocated 100% to the Member.
11. Certificates . Upon the determination of the Member, a certificate, or certificates, may be issued to represent the percentage limited liability company interest of the Member in the Company (“ Membership Interest ”). Each such certificate shall bear the following legend:
MEMBERSHIP INTERESTS IN IMPAX LABORATORIES, LLC, A DELAWARE LIMITED LIABILITY COMPANY (THE “COMPANY”), HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). IN ADDITION, THE INTERESTS HAVE NOT BEEN QUALIFIED UNDER THE DELAWARE SECURITIES ACT OR THE CALIFORNIA CORPORATE SECURITIES LAW OF 1968, OR ANY OTHER STATE SECURITIES LAW, AS AMENDED FROM TIME TO TIME (COLLECTIVELY, THE “STATE ACTS”). ANY TRANSFER OF SUCH INTERESTS WILL BE INVALID UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES ACT IS IN EFFECT AS TO SUCH TRANSFER OR IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE SECURITIES ACT OR SUCH STATE ACTS.
12. Limited Liability . The Member shall not have any liability for the debts, obligations or liabilities of the Company except to the extent provided by the Act.
13. Indemnification . To the fullest extent permitted by applicable law, the Member, representatives or agents of the Member; any employee or agent of the Company or its affiliates; or an officer of the Company that is not an employee (each, a “ Covered Person ”) shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person provided that: (a) any such action was undertaken in good faith on behalf of the Company and in a manner reasonably believed to be in, or not opposed to, the best interests of the Company, (b) any such action was reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, and (c) with respect to any criminal action or proceeding, such Covered Person had no
 
93

EXHIBIT C
 
reasonable cause to believe his, her or its action or omission was unlawful, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section shall be provided out of and to the extent of the Company assets only (including the proceeds or any insurance policy obtained pursuant to Section 15 hereof), and no Covered Person shall have any personal liability on account thereof.
14. Expenses . To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in Section 13 hereof.
15. Insurance . The Company shall purchase and maintain insurance, to the extent and in such amounts as the Member shall, in its sole discretion, deem reasonable, on behalf of Covered Persons and such other persons as the Member shall determine, against any liability that may be asserted against or expenses that may be incurred by any such person in connection with the activities of the Company or such indemnities, regardless of whether the Company would have the power to indemnify such person against such liability under the provisions of this Agreement. The Member and the Company may enter into indemnity contracts with Covered Persons and such other persons as the Board shall determine and adopt written procedures pursuant to which arrangements are made for the advancement of expenses and the funding of obligations under Section 14 hereof and containing such other procedures regarding indemnification as are appropriate.
16. Attorneys’ Fees . All of the indemnities provided in this Agreement shall include reasonable attorneys’ fees, including appellate attorneys’ fees, and court costs.
17. Survival of Indemnity Provisions . Except as otherwise specifically provided herein, all of the indemnity provisions contained in this Agreement shall survive the Member’s ceasing to be a member.
18. Dissolution and Winding Up . The Company shall dissolve and its business and affairs shall be wound up upon the first to occur of the following: (i) a written instrument executed by the Member to dissolve the Company, (ii) at any time there are no members of the Company unless the Company is continued without dissolution in accordance with the Act, or (iii) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act. The bankruptcy (as defined at Sections 18-101(1) and 18-304 of the Act) of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.
19. Amendments . This Agreement may be amended or modified from time to time only by a written instrument executed by the Member.
20. Governing Law . The validity and enforceability of this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to otherwise governing principles of conflicts of law.
21. Severability of Provisions . Each provision of this Agreement shall be considered severable, and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement that are valid, enforceable and legal.
[Signature page follows]
 
94

IN WITNESS WHEREOF, the Member hereto has duly executed this Agreement as of the date first written above.

MEMBER	
ATLAS HOLDINGS, INC.	
		
By:	 	 	
Title: [●]	
Name: [●]	
[ Signature Page to Impax Laboratories, LLC Limited Liability Company Agreement ]
 
95

EXHIBIT A
Initial Officers of the Company

Title	  	Name	
[●]	  	[●]	
 
96

EXHIBIT D
CERTIFICATE OF FORMATION
OF
IMPAX LABORATORIES, LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to herein as the “ Delaware Limited Liability Company Act ”), hereby certifies that:
 
 	1.	The name of the limited liability company (hereinafter called the “ Limited Liability Company ”) is Impax Laboratories, LLC.	
 
 	2.	The address of the registered office and the name and the address of the registered agent of the Limited Liability Company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are the Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware, County of New Castle, 19808.	
IN WITNESS WHEREOF , the undersigned, as an authorized person of the Limited Liability Company, has duly executed this Certificate of Formation as of the date set forth below.
Effective Date:                     , 201[    ].

By:	 	/s/ [●]	
	
(Authorized Signatory for the Company)	
 
97

EXHIBIT E
CONTRIBUTION AGREEMENT
by and between
ATLAS HOLDINGS, INC.
and
AMNEAL PHARMACEUTICALS LLC
Dated as of [ ● ]
 
98

CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this “ Agreement ”), dated as of the [●] day of [●], 201[●], is by and between ATLAS HOLDINGS, INC., a Delaware corporation (“ Holdco ”) and AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (“ Amneal ”).
RECITALS
WHEREAS , Holdco and Amneal have entered into a Business Combination Agreement, dated as of [●], 2017 (the “ Business Combination Agreement ”) with K2 Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of Holdco (“ Merger Sub ”) and Impax Laboratories, Inc., a Delaware corporation and the sole stockholder of Holdco (“ Impax ”), pursuant to which, among other things, as of the date hereof (i) Merger Sub has been merged with and into Impax, with Impax surviving the merger and continuing as a wholly owned subsidiary of Holdco (the “ Impax Merger ”) and (ii) following the Impax Merger, Impax has been converted to a Delaware limited liability company (the “ Conversion ”); and
WHEREAS , simultaneously with the execution of the Third Amended and Restated Limited Liability Company Agreement of Amneal (the “ Restated Amneal LLC Operating Agreement ”) and in exchange for Common Units (as defined in the Related Amneal LLC Operating Agreement), Holdco wishes to contribute to Amneal, and Amneal wishes to accept, all of the outstanding equity interests of Impax (the “ Contributed Equity ”) and, in connection therewith, to be admitted as the managing member of Amneal.
NOW, THEREFORE , in consideration of the premises and the mutual agreements herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound by the terms hereof applicable to each of them, hereby agree as follows:
ARTICLE I.
CONTRIBUTION AND UNIT ISSUANCE
Section 1.01 Contribution of Contributed Equity . On the terms and subject to the conditions set forth in the Business Combination Agreement, effective upon the execution and delivery of this Agreement by the parties hereto, Holdco hereby contributes, transfers, assigns and delivers to Amneal, and Amneal hereby acquires and accepts from Holdco, the Contributed Equity (the “ Contribution ”). Notwithstanding any provision of the limited liability company agreement of Impax (the “ Impax LLC Agreement ”), simultaneously with the Contribution, Amneal is hereby admitted to Impax as a member of Impax, and Amneal agrees that it is bound by the terms and conditions of the Impax LLC Agreement. The parties hereto agree that (i) the Contribution, (ii) the transfer of the Contributed Equity, (iii) the admission of Amneal as a member of Impax, and (iv) the cessation of Holdco as a member of Impax shall not dissolve Impax, and Impax shall continue without dissolution. Immediately following the admission of Amneal as a member of Impax as a result of the Contribution, Holdco shall hereupon cease to be a member of Impax and shall thereupon cease to have or exercise any right or power as a member of Impax. The Impax LLC Agreement is hereby amended to reflect the Contribution, and all references in any such agreement to Holdco are hereby amended to refer to Amneal. This Agreement shall govern notwithstanding any provision to the contrary in the Impax LLC Agreement.
Section 1.02 Unit Issuance . Simultaneously with, and in exchange for, the Contribution, the Restated Amneal LLC Operating Agreement shall be executed and delivered by the parties thereto, Amneal will issue [●] Common Units to Holdco in accordance with Section 1.01(c)(i) of the Business Combination Agreement and Holdco will be admitted as the managing member of Amneal.
 
99

ARTICLE II.
MISCELLANEOUS
Section 2.01 Interpretation . Capitalized terms not defined herein shall have the meanings ascribed thereto in the Business Combination Agreement. When a reference is made in this Agreement to an Article, a Section, Exhibit or Schedule, such reference shall be to an Article of, a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns. The parties have participated jointly in the negotiating and drafting of this Agreement. In the event of an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
Section 2.02 Notices . All notices, requests, claims, demands and other communications hereunder shall be delivered in the manner prescribed in Section 9.02 of the Business Combination Agreement, with any notices to Holdco being delivered prior to the Closing, to Impax.
Section 2.03 Amendment; Waiver . This Agreement may be amended by the parties at any time before or after receipt of the Impax Stockholder Approval; provided, however, that after the Impax Stockholder Approval has been obtained, there shall be made no amendment that by Law requires further stockholder approval without such approval having been obtained. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties.
Section 2.04 Entire Agreement . This Agreement, the Business Combination Agreement (including the Impax Disclosure Letter, the Amneal Disclosure Letter, the Ancillary Agreements and the Exhibits thereto), and the Confidentiality Agreement constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement and are not intended to confer upon any person other than the parties thereto any rights, benefits or remedies.
Section 2.05 Assignments, Successors and No Third Party Rights . Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise by any party without the prior written consent of the other party, and any attempt to make any such assignment without such consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
Section 2.06 Severability . Except as expressly set forth in this Agreement, if any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the Transactions are fulfilled to the extent possible.
 
100

Section 2.07 Applicable Law; Specific Enforcement; Consent to Jurisdiction .
(a) This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws thereof.
(b) The parties hereto agree that irreparable damage would occur and that they would not have any adequate remedy at Law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement without proof of actual damages, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto hereby submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or in the event, but only in the event, that such court does not have subject matter jurisdiction over such action or proceeding, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware) (such courts, the “ Chosen Courts ”)). In addition, each of the parties irrevocably (i) submits itself to the exclusive jurisdiction of the Chosen Courts for the purpose of any litigation directly or indirectly based upon, relating to or arising out of this Agreement or any of the Transactions or the negotiation, execution or performance hereof or thereof, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Chosen Courts and (iii) agrees that it will not bring any action relating to this Agreement or the Transactions in any court other than the Chosen Courts. Each of the parties hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any litigation with respect to this Agreement, (x) any claim that it is not personally subject to the jurisdiction of the Chosen Courts for any reason other than the failure to serve in accordance with this Section  2.07(b) , (y) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in Chosen Courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (z) to the fullest extent permitted by the applicable Law, any claim that (1) the suit, action or proceeding in such court is brought in an inconvenient forum, (2) the venue of such suit, action or proceeding is improper or (3) this Agreement, or the subject matter of this Agreement, may not be enforced in or by such courts. Each of the parties, to the fullest extent permitted by law, hereby irrevocably consents to service being made through the notice procedures set forth in Section 9.02 of the Business Combination Agreement and agrees that service of any process, summons, notice or document by personal delivery to the respective addresses set forth in Section 9.02 of the Business Combination Agreement shall be effective service of process for any litigation in connection with this Agreement or the Transactions. Nothing in this Section  2.07 shall affect the right of any party to serve legal process in any other manner permitted by Law.
Section 2.08 WAIVER OF JURY TRIAL . EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED AND UNDERSTANDS THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION  2.08 .
 
101

Section 2.09 Further Assurances . The parties agree to execute and deliver to each other such other documents and to do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement.
Section 2.10 Counterparts . This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. Facsimile signatures or signatures received as a .pdf attachment to electronic mail shall be treated as original signatures for all purposes of this Agreement.
[ Signature page immediately follows ]
 
102

IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed as of the date first written above.

ATLAS HOLDINGS, INC.	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
AMNEAL PHARMACEUTICALS LLC	
		
By:	 	 	
	 	Name:	
	 	Title:	
[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT]
 
103

EXHIBIT F
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IMPAX LABORATORIES, INC.
ARTICLE I
The name of the corporation (the “ Corporation ”) is Impax Laboratories, Inc.
ARTICLE II
The registered address of the Corporation in the State of Delaware is c/o the Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware, County of New Castle, 19808. The name of the Corporation’s registered agent at that address is the Corporation Service Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (“ DGCL ”) or any successor statute.
ARTICLE IV
The total number of shares of all classes of stock that the Corporation shall have authority to issue is One Thousand (1,000) shares, all of which are Common Stock with a par value of $0.01.
ARTICLE V
In furtherance of and not in limitation of powers conferred by statute, it is further provided:
1. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
2. The Board of Directors is expressly authorized to adopt, amend, alter or repeal the bylaws of the Corporation.
ARTICLE VI
Election of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.
ARTICLE VII
A director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that exculpation from liability is not permitted under DGCL as in effect at the time such liability is determined. No amendment or repeal of this Article VII shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.
 
104

ARTICLE VIII
Subject to such limitations as may be from time to time imposed by other provisions of this Restated Certificate, by the bylaws of the Corporation, by the DGCL or other applicable law, or by any contract or agreement to which the Corporation is or may become a party, the Corporation reserves the right to amend or repeal any provision contained in this Restated Certificate, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this express reservation.
 
105

EXHIBIT G
BYLAWS
OF
IMPAX LABORATORIES, INC.
(a Delaware corporation)
Adopted as of [                ], 201[    ]

106

TABLE OF CONTENTS

 	 	 	  	Page	 	
ARTICLE I. IDENTIFICATION; OFFICES	  	 	110	 	
			
SECTION 1.	 	NAME	  	 	110	 	
SECTION 2.	 	PRINCIPAL AND BUSINESS OFFICES	  	 	110	 	
SECTION 3.	 	REGISTERED AGENT AND OFFICE	  	 	110	 	
SECTION 4.	 	PLACE OF KEEPING CORPORATE RECORDS	  	 	110	 	
		
ARTICLE II. STOCKHOLDERS	  	 	110	 	
			
SECTION 1.	 	ANNUAL MEETING	  	 	110	 	
SECTION 2.	 	SPECIAL MEETING	  	 	110	 	
SECTION 3.	 	PLACE OF STOCKHOLDER MEETINGS	  	 	110	 	
SECTION 4.	 	NOTICE OF MEETINGS	  	 	110	 	
SECTION 5.	 	QUORUM	  	 	111	 	
SECTION 6.	 	ADJOURNED MEETINGS	  	 	111	 	
SECTION 7.	 	FIXING OF RECORD DATE	  	 	111	 	
SECTION 8.	 	VOTING LIST	  	 	112	 	
SECTION 9.	 	VOTING	  	 	112	 	
SECTION 10.	 	PROXIES	  	 	112	 	
SECTION 11.	 	RATIFICATION OF ACTS OF DIRECTORS AND OFFICERS	  	 	113	 	
SECTION 12.	 	CONDUCT OF MEETINGS	  	 	113	 	
SECTION 13.	 	ACTION WITHOUT MEETING	  	 	113	 	
		
ARTICLE III. DIRECTORS	  	 	114	 	
			
SECTION 1.	 	GENERAL POWERS	  	 	114	 	
SECTION 2.	 	NUMBER AND TENURE OF DIRECTORS	  	 	114	 	
SECTION 3.	 	ELECTION OF DIRECTORS	  	 	114	 	
SECTION 4.	 	CHAIRMAN OF THE BOARD; VICE CHAIRMAN OF THE BOARD	  	 	114	 	
SECTION 5.	 	QUORUM	  	 	114	 	
SECTION 6.	 	VOTING	  	 	114	 	
SECTION 7.	 	VACANCIES	  	 	114	 	
SECTION 8.	 	REMOVAL OF DIRECTORS	  	 	115	 	
SECTION 9.	 	RESIGNATION	  	 	115	 	
SECTION 10.	 	REGULAR MEETINGS	  	 	115	 	
SECTION 11.	 	SPECIAL MEETINGS	  	 	115	 	
SECTION 12.	 	NOTICE OF SPECIAL MEETINGS OF THE BOARD OF DIRECTORS	  	 	115	 	
SECTION 13.	 	WRITTEN ACTION BY DIRECTORS	  	 	115	 	
SECTION 14.	 	PARTICIPATION BY CONFERENCE TELEPHONE	  	 	115	 	
SECTION 15.	 	COMMITTEES	  	 	115	 	
SECTION 16.	 	COMPENSATION OF DIRECTORS	  	 	116	 	
		
ARTICLE IV. OFFICERS	  	 	116	 	
			
SECTION 1.	 	GENERAL PROVISIONS	  	 	116	 	
SECTION 2.	 	ELECTION AND TERM OF OFFICE	  	 	116	 	
SECTION 3.	 	RESIGNATION AND REMOVAL OF OFFICERS	  	 	116	 	
SECTION 4.	 	VACANCIES	  	 	117	 	
SECTION 5.	 	THE CHIEF EXECUTIVE OFFICER	  	 	117	 	
SECTION 6.	 	THE PRESIDENT	  	 	117	 	
SECTION 7.	 	THE VICE PRESIDENT	  	 	117	 	
SECTION 8.	 	THE SECRETARY	  	 	117	 	
SECTION 9.	 	THE ASSISTANT SECRETARY	  	 	118	 	
 
107

							
 	 	 	  	Page	 	
SECTION 10.	 	THE TREASURER	  	 	118	 	
SECTION 11.	 	THE ASSISTANT TREASURER	  	 	118	 	
SECTION 12.	 	OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS	  	 	118	 	
SECTION 13.	 	ABSENCE OF OFFICERS	  	 	118	 	
SECTION 14.	 	COMPENSATION	  	 	118	 	
		
ARTICLE V. CAPITAL STOCK	  	 	119	 	
			
SECTION 1.	 	ISSUANCE OF STOCK	  	 	119	 	
SECTION 2.	 	CERTIFICATES OF SHARES; UNCERTIFICATED SHARES	  	 	119	 	
SECTION 3.	 	SIGNATURES OF FORMER OFFICER, TRANSFER AGENT OR REGISTRAR	  	 	119	 	
SECTION 4.	 	TRANSFER OF SHARES	  	 	119	 	
SECTION 5.	 	LOST, DESTROYED OR STOLEN CERTIFICATES	  	 	120	 	
SECTION 6.	 	REGULATIONS	  	 	120	 	
		
ARTICLE VI. INDEMNIFICATION	  	 	120	 	
			
SECTION 1.	 	RIGHT TO INDEMNIFICATION OF DIRECTORS AND OFFICERS	  	 	120	 	
SECTION 2.	 	PREPAYMENT OF EXPENSES OF DIRECTORS AND OFFICERS	  	 	120	 	
SECTION 3.	 	CLAIMS BY DIRECTORS AND OFFICERS	  	 	120	 	
SECTION 4.	 	INDEMNIFICATION OF EMPLOYEES AND AGENTS	  	 	121	 	
SECTION 5.	 	ADVANCEMENT OF EXPENSES OF EMPLOYEES AND AGENTS	  	 	121	 	
SECTION 6.	 	NON-EXCLUSIVITY OF RIGHTS	  	 	121	 	
SECTION 7.	 	OTHER INDEMNIFICATION	  	 	121	 	
SECTION 8.	 	INSURANCE	  	 	121	 	
SECTION 9.	 	AMENDMENT OR REPEAL	  	 	121	 	
		
ARTICLE VII. DIVIDENDS	  	 	121	 	
			
SECTION 1.	 	DECLARATIONS OF DIVIDENDS	  	 	121	 	
SECTION 2.	 	SPECIAL PURPOSES RESERVES	  	 	122	 	
		
ARTICLE VIII. NOTICE BY ELECTRONIC TRANSMISSION	  	 	122	 	
			
SECTION 1.	 	NOTICE BY ELECTRONIC TRANSMISSION	  	 	122	 	
SECTION 2.	 	DEFINITION OF ELECTRONIC TRANSMISSION	  	 	122	 	
SECTION 3.	 	INAPPLICABILITY	  	 	122	 	
		
ARTICLE IX. GENERAL PROVISIONS	  	 	123	 	
			
SECTION 1.	 	FISCAL YEAR	  	 	123	 	
SECTION 2.	 	SEAL	  	 	123	 	
SECTION 3.	 	WRITTEN WAIVER OF NOTICE	  	 	123	 	
SECTION 4.	 	ATTENDANCE AS WAIVER OF NOTICE	  	 	123	 	
SECTION 5.	 	CONTRACTS	  	 	123	 	
SECTION 6.	 	LOANS	  	 	123	 	
SECTION 7.	 	CHECKS, DRAFTS, ETC.	  	 	123	 	
SECTION 8.	 	DEPOSITS	  	 	123	 	
SECTION 9.	 	ANNUAL STATEMENT	  	 	123	 	
SECTION 10.	 	VOTING OF SECURITIES	  	 	123	 	
SECTION 11.	 	EVIDENCE OF AUTHORITY	  	 	123	 	
SECTION 12.	 	CERTIFICATE OF INCORPORATION	  	 	124	 	
SECTION 13.	 	SEVERABILITY	  	 	124	 	
SECTION 14.	 	PRONOUNS	  	 	124	 	
 
108

							
 	 	 	  	Page	 	
ARTICLE X. AMENDMENTS	  	 	124	 	
			
SECTION 1.	 	BY THE BOARD OF DIRECTORS	  	 	124	 	
SECTION 2.	 	BY THE STOCKHOLDERS	  	 	124	 	
 
109

 ARTICLE I.
IDENTIFICATION; OFFICES
 SECTION  1. NAME. The name of the corporation is Impax Laboratories, Inc. (the “ Corporation ”).
 SECTION 2. PRINCIPAL AND BUSINESS OFFICES. The Corporation may have such principal and other business offices, either within or outside of the state of Delaware, as the Board of Directors may designate or as the Corporation’s business may require from time to time.
 SECTION 3. REGISTERED AGENT AND OFFICE. The address of the Corporation’s registered office in the State of Delaware is 251 Little Falls Drive, Wilmington, Delaware, County of New Castle, 19808. The name of its registered agent at that address is Corporation Service Company.
 SECTION 4. PLACE OF KEEPING CORPORATE RECORDS. The records and documents required by law to be kept by the Corporation permanently shall be kept at the Corporation’s principal office or as the Board of Directors may designate.
 ARTICLE II.
STOCKHOLDERS
 SECTION 1. ANNUAL MEETING. An annual meeting of the stockholders shall be held on such date and time as may be designated by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President. At each annual meeting, the stockholders shall elect directors to hold office for the term provided in Section 2 of Article III of these Bylaws and transact such other business as may properly be brought before the meeting. The Board of Directors may postpone, cancel or reschedule any previously scheduled annual meeting of stockholders.
 SECTION 2. SPECIAL MEETING. A special meeting of the stockholders for any purpose or purposes may be called at any time only by the President, the Board of Directors, the Chairman of the Board, the Chief Executive Officer or any other person designated by the Board of Directors. The Board of Directors may postpone, cancel or reschedule any previously scheduled special meeting of stockholders. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
 SECTION 3. PLACE OF STOCKHOLDER MEETINGS. The Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President may designate any place, either within or without the State of Delaware, as the place of meeting for any annual meeting or for any special meeting. If no such place is designated by the Board of Directors, the place of meeting will be the principal business office of the Corporation or the Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but will instead be held solely by means of remote communication as provided under Section 211 of the Delaware General Corporation Law.
 SECTION 4. NOTICE OF MEETINGS. Except as otherwise provided by law or waived as herein provided, whenever stockholders are required or permitted to take any action at a meeting, whether annual or special, written notice of the meeting shall be given stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders may be deemed to be present in person and vote at such meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by law, such written notice shall be given not less than 10 days nor more than 60 days before the date of the meeting to each stockholder entitled to vote at the meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at the stockholder’s address as it appears on the records of the Corporation. If electronically transmitted (in a manner consistent with Section 232
 
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of the Delaware General Corporation Law), then notice is deemed given when transmitted and directed to a facsimile number or electronic mail address at which the stockholder has consented to receive notice. An affidavit of the secretary or of the transfer agent or other agent of the Corporation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
When a meeting is adjourned to reconvene at the same or another place, if any, or by means of remote communications, if any, in accordance with Section 6 of Article II of these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken.
 SECTION 5. QUORUM. Unless otherwise provided by law, the Corporation’s Certificate of Incorporation or these Bylaws, the holders of a majority in voting power of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person, present by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion, or represented by proxy, shall constitute a quorum for the transaction of business; provided , however , that where a separate vote by a class or classes or series of capital stock is required by law or the Certificate of Incorporation, the holders of a majority in voting power of the shares of such class or classes or series of the capital stock of the Corporation issued and outstanding and entitled to vote on such matter, present in person, present by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion, or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on such matter. If a quorum is present in person or represented by proxy at such meeting, such stockholders may continue to transact business until adjournment, notwithstanding the withdrawal of such number of stockholders as may leave less than a quorum.
 SECTION 6. ADJOURNED MEETINGS. Any meeting of stockholders may be adjourned from time to time to any other time and date and to any other place (or by means of remote communications, if any) at which a meeting of stockholders may be held under these Bylaws by the chairman of the meeting or by a majority of the stockholders present or represented at the meeting and entitled to vote, although less than a quorum. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place, if any, of the adjourned meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting.
 SECTION 7. FIXING OF RECORD DATE.
(a) The Board of Directors may fix in advance a date as a record date for the determination of the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof. Such record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 days nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided , however , that the Board of Directors may fix a new record date for the adjourned meeting.
(b) For the purpose of determining stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is established by the Board of Directors, and which date shall not be more than 10 days after the date on which the resolution fixing the record date is adopted by the Board of
 
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Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal office, or an officer or agent of the Corporation having custody of the book in which the proceedings of meetings of stockholders are recorded. Delivery to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders’ consent to corporate action in writing without a meeting shall be the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
(c) For the purpose of determining the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect to any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix the record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining the stockholders for any such purpose shall be the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
 SECTION 8. VOTING LIST. Corporation shall prepare, at least 10 days before every meeting of stockholders, a complete list of stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting, (i) by a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to the stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, such list shall be the only evidence as to the identity of stockholders entitled to examine the list of stockholders required by this Section 8 or to vote in person or by proxy at any meeting of the stockholders. The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list.
 SECTION 9. VOTING. Unless otherwise provided by the Certificate of Incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by each stockholder. When a quorum is present at any meeting, in all matters other than the election of directors, the affirmative vote of the majority in voting power of the outstanding shares of stock present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, except when a different vote is required by law, the Certificate of Incorporation or these Bylaws. When a quorum is present at any meeting, directors shall be elected by plurality of the votes of the shares present in person or represented by a proxy at the meeting entitled to vote on the election of directors.
 SECTION 10. PROXIES. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting (including by means of remote communications, if any, by which stockholders may be deemed to be present in person and vote at such meeting) may authorize another person or persons to act for him by proxy (executed or transmitted in a manner permitted by the Delaware General Corporation Law), but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that
 
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it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may remain irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally.
 SECTION 11. RATIFICATION OF ACTS OF DIRECTORS AND OFFICERS. Except as otherwise provided by law or by the Certificate of Incorporation of the Corporation, any transaction or contract or act of the Corporation or of the directors or the officers of the Corporation may be ratified by the affirmative vote of the holders of the number of shares which would have been necessary to approve such transaction, contract or act at a meeting of stockholders, or by the written consent of stockholders in lieu of a meeting.
 SECTION 12. CONDUCT OF MEETINGS.
(a) Chairman of Meeting . Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in the Chairman’s absence by the Vice Chairman of the Board, if any, or in the Vice Chairman’s absence by the Chief Executive Officer, or in the Chief Executive Officer’s absence, by the President, or in the President’s absence by a Vice President, or in the absence of all of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen by vote of the stockholders at the meeting. The Secretary shall act as secretary of the meeting, but in the Secretary’s absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
(b) Rules, Regulations and Procedures . The Board of Directors may adopt by resolution such rules, regulations and procedures for the conduct of any meeting of stockholders of the Corporation as it shall deem appropriate including, without limitation, such guidelines and procedures as it may deem appropriate regarding the participation by means of remote communication of stockholders and proxyholders not physically present at a meeting. Except to the extent inconsistent with such rules, regulations and procedures as adopted by the Board of Directors, the chairman of any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting and to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as shall be determined; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
 SECTION 13. ACTION WITHOUT MEETING.
(a) Any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be delivered to the Corporation signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
(b) Prompt notice of the taking of the corporate action without a meeting by less than unanimous consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation.
(c) A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxy holder, or by a person or persons authorized to act for a stockholder or
 
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proxy holder, shall be deemed to be written and signed for the purposes of this section, provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the Corporation can determine (i) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxy holder or by a person or persons authorized to act for the stockholder or proxy holder and (ii) the date on which such stockholder or proxy holder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or to an officer or agent of the Corporation having custody of the book in which the proceedings of meetings of stockholders are recorded. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.
 ARTICLE III.
DIRECTORS
 SECTION  1. GENERAL POWERS. The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the Corporation except as otherwise provided by law or the Certificate of Incorporation.
 SECTION 2. NUMBER AND TENURE OF DIRECTORS. The number of directors of the Corporation shall be determined from time to time by the stockholders or the Board of Directors in a resolution adopted by the Board of Directors. Each director shall hold office until the next annual meeting of stockholders and until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal.
 SECTION 3. ELECTION OF DIRECTORS. Except as otherwise provided in these Bylaws, directors shall be elected at the annual meeting of stockholders by such stockholders as have the right to vote on such election. Directors need not be residents of the State of Delaware. Directors need not be stockholders of the Corporation. Elections of directors need not be by written ballot.
 SECTION  4. CHAIRMAN OF THE BOARD; VICE CHAIRMAN OF THE BOARD. The Board of Directors may appoint from its members a Chairman of the Board and a Vice Chairman of the Board, neither of whom need be an employee or officer of the Corporation. If the Board of Directors appoints a Chairman of the Board, such Chairman shall perform such duties and possess such powers as are assigned by the Board of Directors. If the Board of Directors appoints a Vice Chairman of the Board, such Vice Chairman shall perform such duties and possess such powers as are assigned by the Board of Directors. Unless otherwise provided by the Board of Directors, the Chairman of the Board or, in the Chairman’s absence, the Vice Chairman of the Board, if any, shall preside at all meetings of the Board of Directors.
 SECTION 5. QUORUM. The greater of (a) a majority of the directors at any time in office and (b) one-third of the number of directors fixed pursuant to Section 2 of Article III of these Bylaws shall constitute a quorum of the Board of Directors. If less than a quorum are present at a meeting of the Board of Directors, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until such quorum shall be present.
 SECTION 6. VOTING. The vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the Delaware General Corporation Law or the Certificate of Incorporation requires a vote of a greater number.
 SECTION 7. VACANCIES. Any vacancy or newly-created directorship on the Board of Directors, however occurring, may be filled by vote of a majority of the directors then in office, although less than a quorum, or by a
 
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sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of such director’s predecessor in office, and a director chosen to fill a position resulting from a newly-created directorship shall hold office until the next annual meeting of stockholders and until a successor is elected and qualified, or until such director’s earlier death, resignation or removal.
 SECTION 8. REMOVAL OF DIRECTORS. Except as otherwise provided by the General Corporation Law of the State of Delaware, a director, or the entire Board of Directors, may be removed, with or without cause, by the holders of a majority in voting power of the outstanding shares of stock then entitled to vote at an election of directors.
 SECTION 9. RESIGNATION. Any director may resign by delivering a resignation in writing or by electronic transmission to the Corporation at its principal office or to the Chairman of the Board, the Chief Executive Officer, the President or the Secretary. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event.
 SECTION 10. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held without notice at such date, time, place and manner as shall be determined from time to time by the Board of Directors; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders.
 SECTION 11. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board, the Chief Executive Officer, the President, two or more directors or by one director in the event that there is only a single director in office. The person or persons authorized to call special meetings of the Board of Directors may fix any time, date or place, either within or without the State of Delaware, for holding any special meeting of the Board of Directors called by them.
 SECTION 12. NOTICE OF SPECIAL MEETINGS OF THE BOARD OF DIRECTORS. Notice of the date, place, if any, and time of any special meeting of the Board of Directors shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (a) in person, by telephone, fax or by electronic transmission at least 24 hours in advance of the meeting, (b) by sending written notice by reputable overnight courier or delivering written notice by hand, to such director’s last known business, home or facsimile address at least 48 hours in advance of the meeting, or (c) by sending written notice by first-class mail to such director’s last known business or home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting.
 SECTION 13. WRITTEN ACTION BY DIRECTORS. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
 SECTION 14. PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board of Directors, or any committee designated by such board, may participate in a meeting of the Board of Directors, or committee thereof, by means of conference telephone other communications equipment as long as all persons participating in the meeting can speak with and hear each other, and participation by a director pursuant to this section shall constitute presence in person at such meeting.
 SECTION  15. COMMITTEES. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation with such lawfully delegable powers and
 
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duties as the Board of Directors thereby confers, to serve at the pleasure of the Board of Directors. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member at any meeting of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors and to the extent permitted by law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it, but no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by law to be submitted to stockholders for approval or (ii) adopting, amending or repealing any bylaw of the Corporation. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board of Directors. Except as otherwise provided in the Certificate of Incorporation, these Bylaws, or the resolution of the Board of Directors designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
 SECTION 16. COMPENSATION OF DIRECTORS. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefore. Members of special or standing committees may be allowed like compensation for attending committee meetings.
 ARTICLE IV.
OFFICERS
 SECTION  1. GENERAL PROVISIONS. The officers of the Corporation shall consist of a Chief Executive Officer, a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate. No officer need be a stockholder. Any two or more offices may be held by the same person. The officers elected by the Board of Directors shall have such duties as are hereafter described and such additional duties as the Board of Directors may from time to time prescribe.
 SECTION 2. ELECTION AND TERM OF OFFICE. The Chief Executive Officer, President, Treasurer and Secretary shall be elected annually by the Board of Directors at the regular meeting of the Board of Directors held after each annual meeting of the stockholders. If the election of officers is not held at such meeting, such election shall be held as soon thereafter as may be convenient. Other officers may be appointed at any time by the Board of Directors. Except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws, each officer shall hold office until his successor has been duly elected and qualified, unless a different term is specified in the resolution electing or appointing such officer, or until his earlier death, resignation or removal. Election or appointment of an officer or agent shall not of itself create contract rights.
 SECTION 3. RESIGNATION AND REMOVAL OF OFFICERS. Any officer may resign by delivering a written resignation to the Corporation at its principal office or to the Chief Executive Officer, the President or the
 
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Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some later time or upon the happening of some later event. Any officer may be removed at any time, with or without cause, by vote of a majority of the directors then in office. Except as the Board of Directors may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following such officer’s resignation or removal, or any right to damages on account of such removal, whether such officer’s compensation be by the month or by the year or otherwise, unless such compensation is expressly provided for in a duly authorized written agreement with the Corporation.
 SECTION 4. VACANCIES. The Board of Directors may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of Chief Executive Officer, President, Treasurer and Secretary. Each such successor shall hold office for the unexpired term of such officer’s predecessor and until a successor is elected and qualified, or until such officer’s earlier death, resignation or removal.
 SECTION 5. THE CHIEF EXECUTIVE OFFICER. Unless the Board of Directors has designated another person as the Corporation’s Chief Executive Officer, the President shall be the Chief Executive Officer of the Corporation. The Chief Executive Officer shall have general charge and supervision of the business and affairs of the Corporation subject to the direction of the Board of Directors, and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to such officer by the Board of Directors. The Chief Executive Officer shall see that orders and resolutions of the Board of Directors are carried into effect. The Chief Executive Officer may sign bonds, mortgages, certificates for shares and all other contracts and documents whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation. The Chief Executive Officer shall have general powers of supervision and shall be the final arbiter of all differences between officers of the Corporation and his decision as to any matter affecting the Corporation shall be final and binding as between the officers of the Corporation subject only to the Board of Directors.
 SECTION 6. THE PRESIDENT. In the absence of the Chief Executive Officer or in the event of his inability or refusal to act, the President shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. At all other times the President shall have the active management of the business of the Corporation under the general supervision of the Chief Executive Officer or the Board of Directors. The President shall have concurrent power with the Chief Executive Officer to sign bonds, mortgages, certificates for shares and other contracts and documents, whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board of Directors, or by these Bylaws to some other officer or agent of the Corporation. In general, the President shall perform all duties incident to the office of president and such other duties as the Chief Executive Officer (if the President is not the Chief Executive Officer) or the Board of Directors may from time to time prescribe.
 SECTION 7. THE VICE PRESIDENT. In the absence of the President or in the event of his inability or refusal to act, the Vice President (or in the event there be more than one Vice President, the Executive Vice President and then the other Vice President or Vice Presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall perform such other duties and have such other powers as the Chief Executive Officer or the Board of Directors may from time to time prescribe.
 SECTION 8. THE SECRETARY. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to attend all meetings of the Board of Directors and all meetings of the
 
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stockholders and record all the proceedings in a book to be kept for that purpose and shall perform like duties for the standing committees when required and to maintain a stock ledger and prepare lists of stockholders and their addresses as required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the Chief Executive Officer, under whose supervision he shall be. The Secretary shall have custody of the corporate records and the corporate seal of the Corporation and the Secretary, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.
 SECTION 9. THE ASSISTANT SECRETARY. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the Secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Chief Executive Officer, the Board of Directors or the Secretary may from time to time prescribe. In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the chairman of the meeting shall designate a temporary secretary to keep a record of the meeting.
 SECTION 10. THE TREASURER. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned by the Board of Directors or the Chief Executive Officer. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation, the duty and power to have the custody of the corporate funds and securities and to keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, as required by the Board of Directors, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.
 SECTION 11. THE ASSISTANT TREASURER. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Chief Executive Officer, the Board of Directors or the Treasurer may from time to time prescribe.
 SECTION 12. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers, Assistant Officers and Agents, if any, other than those whose duties are provided for in these Bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the Board of Directors.
 SECTION 13. ABSENCE OF OFFICERS, DELEGATION OF AUTHORITY. In the absence of any officer of the Corporation, or for any other reason the Board of Directors may deem sufficient, the Board of Directors may from time to time delegate the powers or duties, or any of such powers or duties, of any officers or officer to any other officer or to any director.
 SECTION 14. COMPENSATION. The Board of Directors shall have the authority to establish reasonable salaries, compensation or reimbursement of all officers for services to the Corporation.
 
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 ARTICLE V.
CAPITAL STOCK
 SECTION  1. ISSUANCE OF STOCK. Subject to the provisions of the Certificate of Incorporation and applicable law, the whole or any part of any unissued balance of the authorized capital stock of the Corporation or the whole or any part of any shares of the authorized capital stock of the Corporation held in the Corporation’s treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such lawful consideration and on such terms as the Board of Directors may determine.
 SECTION 2. CERTIFICATES OF SHARES; UNCERTIFICATED SHARES.
(a) The shares of the Corporation shall be represented by certificates, provided that the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Every holder of stock represented by certificates shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board of Directors, signed in a manner that complies with Section 158 of the Delaware General Corporation Law, representing the number of shares held by such holder registered in certificate form. Any or all the signatures on the certificate may be a facsimile or pdf.
(b) Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these Bylaws, applicable securities laws or any agreement among any number of stockholders or among such holders and the Corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction.
(c) If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests a copy of the full text of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
(d) Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the General Corporation Law of the State of Delaware or, with respect to Section 151 of the General Corporation Law of the State of Delaware, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
 SECTION  3. SIGNATURES OF FORMER OFFICER, TRANSFER AGENT OR REGISTRAR. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person or entity were such officer, transfer agent or registrar at the date of issue.
 SECTION 4. TRANSFER OF SHARES. Transfers of shares of the Corporation shall be made only on the books of the Corporation, or by transfer agents designated to transfer shares of the Corporation. Subject to applicable law, shares of stock represented by certificates shall be transferred only on the books of the
 
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Corporation by the surrender to the Corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the Corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.
 SECTION 5. LOST, DESTROYED OR STOLEN CERTIFICATES. Whenever a certificate representing shares of the Corporation has been lost, destroyed or stolen, the holder thereof may file in the office of the Corporation an affidavit setting forth, to the best of his knowledge and belief, the time, place, and circumstance of such loss, destruction or theft together with a statement of indemnity and posting of such bond sufficient in the opinion of the Board of Directors to indemnify the Corporation against any claim that may be made against it on account of the alleged loss of any such certificate. Thereupon the Board may cause to be issued to such person or such person’s legal representative a new certificate or a duplicate of the certificate alleged to have been lost, destroyed or stolen. In the exercise of its discretion, the Board of Directors may waive the indemnification and bond requirements provided herein.
 SECTION 6. REGULATIONS. The issue, transfer, conversion and registration of shares of stock of the Corporation shall be governed by such other regulations as the Board of Directors may establish.
 ARTICLE VI.
INDEMNIFICATION
 SECTION  1. RIGHT TO INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an “ Indemnified Person ”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ Proceeding ”), by reason of the fact that such person, or a person for whom such person is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Indemnified Person in such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 3 of this Article VI, the Corporation shall be required to indemnify an Indemnified Person in connection with a Proceeding (or part thereof) commenced by such Indemnified Person only if the commencement of such Proceeding (or part thereof) by the Indemnified Person was authorized in advance by the Board of Directors.
 SECTION 2. PREPAYMENT OF EXPENSES OF DIRECTORS AND OFFICERS. The Corporation shall pay the expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any Proceeding in advance of its final disposition, provided , however , that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Indemnified Person to repay all amounts advanced if it should be ultimately determined that the Indemnified Person is not entitled to be indemnified under this Article VI or otherwise.
 SECTION 3. CLAIMS BY DIRECTORS AND OFFICERS. If a claim for indemnification or advancement of expenses under this Article VII is not paid in full within 30 days after a written claim therefor by the Indemnified Person has been received by the Corporation, the Indemnified Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of
 
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prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Indemnified Person is not entitled to the requested indemnification or advancement of expenses under applicable law.
 SECTION 4. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may indemnify and advance expenses to any person who was or is made or is threatened to be made or is otherwise involved in any Proceeding by reason of the fact that such person, or a person for whom such person is the legal representative, is or was an employee or agent of the Corporation or, while an employee or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person in connection with such Proceeding. The ultimate determination of entitlement to indemnification of persons who are non-director or officer employees or agents shall be made in such manner as is determined by the Board of Directors in its sole discretion. Notwithstanding the foregoing sentence, the Corporation shall not be required to indemnify a person in connection with a Proceeding initiated by such person if the Proceeding was not authorized in advance by the Board of Directors.
 SECTION 5. ADVANCEMENT OF EXPENSES OF EMPLOYEES AND AGENTS. The Corporation may pay the expenses (including attorneys’ fees) incurred by an employee or agent in defending any Proceeding in advance of its final disposition on such terms and conditions as may be determined by the Board of Directors.
 SECTION 6. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by this Article VI shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
 SECTION 7. OTHER INDEMNIFICATION. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer or employee of another corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise.
 SECTION 8. INSURANCE. The Board of Directors may, to the full extent permitted by applicable law as it presently exists, or may hereafter be amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation’s expense insurance: (a) to indemnify the Corporation for any obligation which it incurs as a result of the indemnification of directors, officers and employees under the provisions of this Article VII; and (b) to indemnify or insure directors, officers and employees against liability in instances in which they may not otherwise be indemnified by the Corporation under the provisions of this Article VII.
 SECTION 9. AMENDMENT OR REPEAL. Any repeal or modification of the foregoing provisions of this Article VII shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. The rights provided hereunder shall inure to the benefit of any Indemnified Person and such person’s heirs, executors and administrators.
 ARTICLE VII.
DIVIDENDS
 SECTION  1. DECLARATIONS OF DIVIDENDS. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors,
 
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pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.
 SECTION 2. SPECIAL PURPOSES RESERVES. The Board of Directors may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.
 ARTICLE VIII.
NOTICE BY ELECTRONIC TRANSMISSION
 SECTION 1. NOTICE BY ELECTRONIC TRANSMISSION. Without limiting the manner by which notice otherwise may be given effectively to stockholders pursuant to the Delaware General Corporation Law, the Certificate of Incorporation or these Bylaws, any notice to stockholders given by the Corporation under any provision of the Delaware General Corporation Law, the Certificate of Incorporation or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked if:
(a) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent; and
(b) such inability becomes known to the secretary or an assistant secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice.
However, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
Any notice given pursuant to the preceding paragraph shall be deemed given:
(c) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;
(d) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice;
(e) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and
(f) if by any other form of electronic transmission, when directed to the stockholder.
An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the Corporation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
 SECTION 2. DEFINITION OF ELECTRONIC TRANSMISSION. An “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
 SECTION 3. INAPPLICABILITY. Notice by a form of electronic transmission shall not apply to Sections 164, 296, 311, 312 or 324 of the Delaware General Corporation Law.
 
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 ARTICLE IX.
GENERAL PROVISIONS
 SECTION  1. FISCAL YEAR. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
 SECTION 2. SEAL. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware” or such other form as shall be approved by the Board of Directors. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
 SECTION 3. WRITTEN WAIVER OF NOTICE. A written waiver of any notice required to be given by law, the Certificate of Incorporation or by these Bylaws, signed by or electronically transmitted by the person entitled to notice, whether before, at or after the time of the event for which notice is to be given, shall be deemed equivalent to notice required to be given to such person. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of stockholders, directors or members of a committee of directors need be specified in any written waiver of notice.
 SECTION 4. ATTENDANCE AS WAIVER OF NOTICE. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, and objects, to the transaction of any business because the meeting is not lawfully called or convened.
 SECTION 5. CONTRACTS . The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
 SECTION 6. LOANS. No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
 SECTION 7. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by one or more officers or agents of the Corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors.
 SECTION 8. DEPOSITS. The funds of the Corporation may be deposited or invested in such bank account, in such investments or with such other depositaries as determined by the Board of Directors.
 SECTION 9. ANNUAL STATEMENT. The Board of Directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the Corporation.
 SECTION 10. VOTING OF SECURITIES. Except as the Board of Directors may otherwise designate, the Chief Executive Officer, the President or the Treasurer may waive notice of, vote, or appoint any person or persons to vote, on behalf of the Corporation at, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this Corporation (with or without power of substitution) at, any meeting of stockholders or securityholders of any other entity, the securities of which may be held by this Corporation.
 SECTION 11. EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the Corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
 
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 SECTION 12. CERTIFICATE OF INCORPORATION. All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and in effect from time to time.
 SECTION 13. SEVERABILITY. Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws.
 SECTION 14. PRONOUNS. All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.
 ARTICLE X.
AMENDMENTS
 SECTION  1. BY THE BOARD OF DIRECTORS. These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the Board of Directors, when such power is conferred upon the Board of Directors by the Certificate of Incorporation.
 SECTION 2. BY THE STOCKHOLDERS. These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted, by the affirmative vote of the holders of a majority in voting power of the outstanding shares of the capital stock of the Corporation issued and outstanding and entitled to vote. If the power to adopt, amend or repeal Bylaws is conferred upon the Board of Directors by the Certificate of Incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal Bylaws.
 
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Exhibit 2.2
AMENDMENT NO. 1 TO THE BUSINESS COMBINATION AGREEMENT
This AMENDMENT NO. 1 (this “ Amendment ”), dated as of November 21, 2017, to the Business Combination Agreement (the “ BCA ”), dated as of October 17, 2017, by and among Impax Laboratories, Inc., a Delaware corporation (“ Impax ”), Atlas Holdings, Inc., a Delaware corporation and a wholly-owned Subsidiary of Impax (“ Holdco ”), K2 Merger Sub Corporation, a Delaware corporation and a wholly-owned Subsidiary of Holdco (“ Merger Sub ”), and Amneal Pharmaceuticals LLC, a Delaware limited liability company (“ Amneal ”), is made and entered into by and among Impax, Holdco, Merger Sub and Amneal. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the BCA.
RECITALS
WHEREAS, Impax, Holdco, Merger Sub and Amneal entered into the BCA on October 17, 2017;
WHEREAS, Section 9.12 of the BCA provides that the parties may amend the BCA at any time before or after receipt of the Impax Stockholder Approval;
WHEREAS, each of Impax, Holdco, Merger Sub and Amneal desires to amend certain terms of the BCA as set forth this Amendment; and
WHEREAS, the respective boards of directors or other governing body of each of Impax, Holdco, Merger Sub and Amneal have approved the Transactions on the terms and subject to the conditions set forth in the BCA, as amended by this Amendment, and have approved and declared advisable the BCA, as amended by this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises contained herein, the parties hereto hereby agree as follows:
1. Exhibits . The following Exhibits to the BCA are hereby amended and replaced in their entirety as follows: (i) the form of the amended and restated certificate of incorporation of Holdco (the “ Amended and Restated Holdco Charter ”), which is Exhibit A to the BCA, is replaced in its entirety with the form attached hereto as Annex A ; (ii) the form of the amended and restated bylaws of Holdco (the “ Amended and Restated Holdco Bylaws ”), which is Exhibit B to the BCA, is replaced in its entirety with the form attached hereto as Annex B ; (iii) the form of the restated Amneal Pharmaceuticals LLC Operating Agreement (the “ Restated Amneal LLC Operating Agreement ”), which is Exhibit H to the BCA, is replaced in its entirety with the form attached hereto as Annex C , (iv) the form of the Stockholders Agreement entered into on October 17, 2017, by and among Holdco, Amneal Pharmaceuticals Holding Company, LLC, AP Class D Member, LLC, AP Class E Member, LLC, AH PPU Management, LLC (the “ Stockholders Agreement ”), which is Exhibit I to the BCA, is replaced in its entirety with the form of Amended and Restated Stockholders Agreement by and among Holdco, Amneal Pharmaceuticals Holding Company, LLC, AP Class D Member, LLC, AP Class E Member, LLC, and AH PPU Management, LLC attached hereto as Annex D , and (v) the form of the Tax Receivable Agreement to be entered into by Holdco, Amneal and the other members of Amneal from time to time (the “ Tax Receivable Agreement ”), which is Exhibit J to the BCA, is replaced in its entirety with the form attached hereto as Annex E .
 
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2. Existing Amneal Member Actions Following the Recapitalization . The proviso in Section 1.01(c)(iii) and the second sentence of Section 6.16(a) of the BCA are hereby amended to insert the bolded and underlined language below:
 
 	a.	Section 1.01(c)(iii) : “ provided , that immediately following the Recapitalization, each Existing Amneal Member shall transfer such Amneal Units and all shares of Class B Common Stock issued to it pursuant to Section 1.01(d) hereof to the Amneal Group Representative (and the schedule of members to the Restated Amneal LLC Operating Agreement shall be updated accordingly)”	
 
 	b.	Section 6.16(a) : “Immediately following the Recapitalization, Amneal shall cause each Existing Amneal Member to contribute its Amneal Units and all shares of Class B Common Stock issued to it pursuant to Section 1.01(d) hereof to Amneal Holdings, LLC in exchange for additional interests in Amneal Holdings, LLC (and shall cause the schedule of members to the Restated Amneal LLC Operating Agreement to be updated accordingly).”	
3. Interpretation; Construction . The fourth sentence of Section 9.04 of the BCA is hereby amended and replaced in its entirety with the following:
“The words ‘hereof’, ‘herein’ and ‘hereunder’ and words of similar import when used in this Agreement shall, from and after the date of this Amendment, refer to this Agreement, as amended by this Amendment, as a whole and not to any particular provision of this Agreement. Each reference herein to ‘the date of this Amendment’ shall refer to the date set forth above and each reference to the ‘date of this Agreement’, the ‘date hereof’, ‘concurrently with the execution and delivery of this Agreement’ and similar references shall refer to October 17, 2017.”
4. Confirmation of BCA . Other than as expressly modified pursuant to this Amendment, all of the terms, covenants and other provisions of the BCA are hereby ratified and confirmed and shall continue to be in full force and effect in accordance with their respective terms.
5. Counterparts . This Amendment may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement.
6. General Provisions . The provisions of Article IX of the BCA shall apply mutatis mutandis to this Amendment, and to the BCA as modified by this Amendment, taken together as a single agreement, reflecting the terms therein as modified by this Amendment.
[ Signature Page Follows ]
 
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.

IMPAX LABORATORIES, INC.	
		
By:	 	/s/ Paul M. Bisaro	
					
Name:	 	Paul M. Bisaro	
Title:	 	Chief Executive Officer and President	

K2 MERGER SUB CORPORATION	
		
By:	 	/s/ Paul M. Bisaro	
			
Name:	 	Paul M. Bisaro	
Title:	 	Chief Executive Officer and President	

ATLAS HOLDINGS, INC.	
		
By:	 	/s/ Paul M. Bisaro	
			
Name:	 	Paul M. Bisaro	
Title:	 	Chief Executive Officer and President	
[ Signature Page to Amendment No. 1 to BCA ]

			
AMNEAL PHARMACEUTICALS, LLC	
		
By:	 	/s/ Chintu Patel	
	 	Name: Chintu Patel	
	 	Title: Manager	

		
By:	 	/s/ Chirag Patel	
	 	Name: Chirag Patel	
	 	Title: Manager	

		
By:	 	/s/ Tushar Patel	
	 	Name: Tushar Patel	
	 	Title: Manager	

		
By:	 	/s/ Gautam Patel	
	 	Name: Gautam Patel	
	 	Title: Manager	
[ Signature Page to Amendment No. 1 to BCA ]

Annex A
AMENDED AND RESTATED HOLDCO CHARTER

Annex B
AMENDED AND RESTATED HOLDCO BYLAWS

Annex C
RESTATED AMNEAL LLC OPERATING AGREEMENT

Annex D
STOCKHOLDERS AGREEMENT

Annex E
TAX RECEIVABLE AGREEMENT

Exhibit 2.3
AMENDMENT NO. 2 TO THE BUSINESS COMBINATION AGREEMENT
This AMENDMENT NO. 2 (this “ Amendment ”), dated as of December 16, 2017, to the Business Combination Agreement, dated as of October 17, 2017 (the “ BCA ”), as amended by Amendment No. 1, dated as of November 21, 2017 (“ Amendment No.  1 ”), by and among Impax Laboratories, Inc., a Delaware corporation (“ Impax ”), Atlas Holdings, Inc., a Delaware corporation and a wholly-owned Subsidiary of Impax (“ Holdco ”), K2 Merger Sub Corporation, a Delaware corporation and a wholly-owned Subsidiary of Holdco (“ Merger Sub ”), and Amneal Pharmaceuticals LLC, a Delaware limited liability company (“ Amneal ”), is made and entered into by and among Impax, Holdco, Merger Sub and Amneal. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the BCA.
RECITALS
WHEREAS, Impax, Holdco, Merger Sub and Amneal entered into the BCA on October 17, 2017 and Amendment No. 1 thereto on November 21, 2017;
WHEREAS, Section 9.12 of the BCA, as amended by Amendment No. 1, provides that the parties may amend the BCA at any time before or after receipt of the Impax Stockholder Approval;
WHEREAS, each of Impax, Holdco, Merger Sub and Amneal desires to amend certain terms of the BCA, as amended by Amendment No. 1, as set forth in this Amendment; and
WHEREAS, the respective boards of directors or other governing body of each of Impax, Holdco, Merger Sub and Amneal have approved the transactions contemplated by the BCA on the terms and subject to the conditions set forth in the BCA, as amended by Amendment No. 1 and this Amendment, and have approved and declared advisable the BCA, as amended by Amendment No. 1 and this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises contained herein, the parties hereto hereby agree as follows:
1.  Stockholders Agreement . The form of the Amended and Restated Stockholders Agreement entered into on November 21, 2017, by and among Holdco, Amneal Pharmaceuticals Holding Company, LLC, AP Class D Member, LLC, AP Class E Member, LLC, AH PPU Management, LLC (the “ A&R Stockholders Agreement ”), which is Exhibit I to the BCA, as amended by Amendment No. 1, is replaced in its entirety with the form of the Second Amended and Restated Stockholders Agreement by and among Holdco, Amneal Pharmaceuticals Holding Company, LLC, AP Class D Member, LLC, AP Class E Member, LLC, and AH PPU Management, LLC attached hereto as Annex A .
2. Form of Amended and Restated Holdco Bylaws . The form of the amended and restated bylaws of Holdco (the “ Amended and Restated Holdco Bylaws ”), which is Exhibit B to the BCA, is replaced in its entirety with the form attached hereto as Annex B .
3. Interpretation; Construction . The fourth sentence of Section 9.04 of the BCA, as amended by Amendment No. 1, is hereby amended and replaced in its entirety with the following:
“The words ‘hereof’, ‘herein’ and ‘hereunder’ and words of similar import when used in this Agreement shall, from and after the date of this Amendment, refer to this Agreement, as amended by
 
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Amendment No. 1 and this Amendment, as a whole and not to any particular provision of this Agreement. Each reference herein to ‘the date of this Amendment’ shall refer to the date set forth above and each reference to the ‘date of this Agreement’, the ‘date hereof’, ‘concurrently with the execution and delivery of this Agreement’ and similar references shall refer to October 17, 2017.”
4. Confirmation of BCA . Other than as expressly modified pursuant to this Amendment, all of the terms, covenants and other provisions of the BCA, as amended by Amendment No. 1, are hereby ratified and confirmed and shall continue to be in full force and effect in accordance with their respective terms.
5.  Counterparts . This Amendment may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement.
6. General Provisions . The provisions of Article IX of the BCA shall apply mutatis mutandis to this Amendment, and to the BCA as modified by Amendment No. 1 and this Amendment, taken together as a single agreement, reflecting the terms therein as modified by Amendment No. 1 and this Amendment.
[ Signature Page Follows ]
 
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.

IMPAX LABORATORIES, INC.	
		
By:	 	  /s/ Paul M. Bisaro	
Name:	 	Paul M. Bisaro	
Title:	 	Chief Executive Officer and President	
	
K2 MERGER SUB CORPORATION	
		
By:	 	  /s/ Paul M. Bisaro	
Name:	 	Paul M. Bisaro	
Title:	 	Chief Executive Officer and President	
	
ATLAS HOLDINGS, INC.	
		
By:	 	  /s/ Paul M. Bisaro	
Name:	 	Paul M. Bisaro	
Title:	 	Chief Executive Officer and President	
 
3

			
AMNEAL PHARMACEUTICALS, LLC	
		
By:  	 	  /s/ Chintu Patel	
	 	Name: Chintu Patel	
	 	Title: Manager	
		
By:  	 	  /s/ Chirag Patel	
	 	Name: Chirag Patel	
	 	Title: Manager	
		
By:  	 	  /s/ Tushar Patel	
	 	Name: Tushar Patel	
	 	Title: Manager	
		
By:  	 	  /s/ Gautam Patel	
	 	Name: Gautam Patel	
	 	Title: Manager	
 
4

Annex A
A&R STOCKHOLDERS AGREEMENT

Annex B
AMENDED AND RESTATED HOLDCO BYLAWS

Exhibit 2.4
November 21, 2017
TPG Improv Holdings, L.P.
c/o TPG Partners VII, L.P.
301 Commerce Street
Suite 3300
Fort Worth, TX 76102
RE: Letter Agreement
Ladies and Gentlemen:
This letter agreement (this “ Agreement ”) is by and among Amneal Holdings, LLC, a Delaware limited liability company (the “ Seller ”), Atlas Holdings, Inc., a Delaware corporation (“ Newco ”), and TPG Improv Holdings, L.P., a Delaware limited partnership (the “ TPG Purchaser ”). Reference is made to (i) the Share Purchase Agreement, dated as of October 17, 2017, among the Seller, the TPG Purchaser and the other purchaser parties thereto (the “ Purchase Agreement ”), (ii) the Business Combination Agreement, and (iii) the Letter Agreement, dated as of October 17, 2017, between the Seller and the TPG Purchaser (the “ Existing Side Letter ”). Capitalized terms used herein without definitions shall have the meanings assigned to them in the Purchase Agreement, the Business Combination Agreement or the Existing Side Letter, as applicable.
In satisfaction of the Seller’s obligations under Sections 1 and 2 of the Existing Side Letter, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged and accepted, the Seller, Newco and the TPG Purchaser hereby agree as follows:
 
 	1.	Amendments to Various Transaction Documents to Add New Security . As contemplated in Section 1 of the Existing Side Letter, the parties (as applicable) agree to execute the following agreements, amended as described below to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: added double-underlined text ) to enable the TPG Purchaser to purchase Class B-1 Common Stock of Newco:	
(i) the Purchase Agreement, as set forth in Exhibit A hereto;
(ii) the Stockholders Agreement, as set forth in Exhibit B hereto;
(iii) the Form of Amended and Restated Holdco Charter, as set forth in Exhibit C hereto;
(iv) the Form of Tax Receivable Agreement, as set forth in Exhibit D hereto; and
(iv) the Form of Restated Amneal LLC Operating Agreement, as set forth in Exhibit E hereto.
 
 	2.	Registration Rights . As among the parties to this Agreement, the Form of Registration Rights Agreement is hereby amended as set forth below:	
 
 	a.	“ Common Stock ” as defined in the Form of Registration Rights Agreement referenced in the Purchase Agreement shall include the Class B-1 Common Stock, par value $0.01, of Newco.	
 
 	b.	The definition of “Registrable Securities” in the Form of Registration Rights Agreement shall include the Class A Common Stock (if any) and the Class B-1 Common Stock that the TPG Purchaser holds at Closing and the Class A Common Stock underlying such Class B-1 Common Stock. As among the parties to this Agreement and for purposes of each of the Stockholders Agreement and the Form of Registration Rights Agreement, Registrable Securities held by the TPG Purchaser or its Affiliates shall cease to be “Registrable Securities” upon the earliest of	
 
1

 	(A) the first anniversary of the TPG Purchaser or its Affiliates holding less than 2% of the outstanding shares of common stock of Newco, (B) the later of (i) four years after the Closing Date and (ii) such time as the TPG Purchaser can immediately sell such securities without restriction under Rule 144 or (C) their transfer to a non-Affiliate of the TPG Purchaser.	
 
 	c.	The TPG Purchaser shall be entitled to an aggregate total of two TPG Demands (as defined in the Existing Side Letter) in a manner consistent with Section 5.3 of the Stockholders Agreement (including that the TPG Purchaser shall be entitled to select the underwriters in connection with any TPG Demand), provided it does not count as a TPG Demand if the TPG Purchaser requests to sell $150,000,000 or more securities in Newco but is not permitted to sell at least $150,000,000 of securities in Newco. Notwithstanding the foregoing or anything to the contrary in Section 5.3 of the Stockholders Agreement, the rights of the TPG Purchaser shall not be subject to, or otherwise restricted by, the Lock-up Period (as defined in the Stockholders Agreement).	
 
 	d.	With respect to a TPG Demand, Newco’s cooperation obligations shall be substantially the same as its cooperation obligations for underwritten offerings as set forth in the Stockholders Agreement, including providing holdback agreements for Newco, and its directors, officers and other Affiliates, participation in a roadshow, providing comfort letters, etc.	
 
 	e.	The TPG Purchaser shall have the right to piggyback on any underwritten offering in a manner consistent with Section 5.4 of the Stockholders Agreement.	
 
 	f.	Underwriter cutbacks will be pro rata, provided that, if requested by the TPG Purchaser, the TPG Purchaser shall be permitted to sell at least the lesser of (A) 50% of the dollar value of the shares of Newco common stock to be sold in the applicable offering or (B) $150,000,000 of shares of Newco common stock (it being understood any such request when the TPG Purchaser would otherwise have been cut back will count as a TPG Demand).	
 
 	3.	Observer Rights .	
 
 	a.	Effective as of the Closing, until the earliest of (i) such time as the TPG Purchaser beneficially owns (as interpreted under Rule 13d-3 of the Exchange Act) 4% or less of the outstanding shares of common stock of Newco (the “ Ownership Threshold ”), (ii) such time as a Class B-1 Director (as defined in the Amended and Restated Holdco Charter) is elected or (iii) such time as a Director Election is made by the TPG Purchaser, the TPG Purchaser shall have the right to designate, and Newco shall permit, one individual (the “ Observer ”) to attend all Meetings of the board of directors of Newco (the “ Board ”) and (subject to applicable listing requirements) any committee thereof, in a non-voting, observer capacity, provided, however, that the Observer shall be reasonably acceptable to the Nominating Committee of the Board and shall satisfy the eligibility requirements of Amneal Directors (as defined in the Stockholders Agreement). The Observer shall be provided with notice of all Meetings in substantially the same manner and at substantially the same time as the members of the Board or its applicable committee. The term “ Meetings ” means all meetings of the Board and all meetings of each Board committee (whether regular, special or otherwise, and whether held in person, by telephone conference call or otherwise), including any actions taken by the Board or one of its committees by written consent.	
 
 	b.	The Observer shall have the right to receive, prior to each Meeting or, if no meeting is held, simultaneously with any distribution to the Board or its applicable committee true and complete copies of any and all information and materials distributed to the Board or such committee or discussed at a meeting of or resolved upon by the Board or such committee. Notwithstanding the foregoing, Newco may withhold certain information and may exclude the Observer from certain portions of Meetings to the extent that outside legal counsel has advised Newco that access to such information or attendance at such Meeting portion would impair attorney-client privilege or frustrate the Board’s intention to limit access to such information or attendance to “independent” or “disinterested” participants; provided that, in such instance, Newco will use reasonable best	
 
2

 	efforts to communicate such information to the Observer to the maximum extent possible so as not to impair such privilege or frustrate such intention.	
 
 	c.	The Observer will be reimbursed for its expenses in the same manner as the members of the Board.	
 
 	d.	Following the Closing, subject to Section 3(e) and Section 3(f), upon the resignation, retirement or cessation of serving (whether as a result of death, disability or otherwise) of the Observer or other removal by the TPG Purchaser of the Observer, the TPG Purchaser shall be entitled to designate a replacement individual to serve as the Observer, provided, however, that the replacement individual shall be reasonably acceptable to the Nominating Committee of the Board and shall satisfy the eligibility requirements of Amneal Directors (as defined in the Stockholders Agreement).	
 
 	e.	Notwithstanding anything to the contrary herein, if for any period greater than 20 consecutive days the TPG Purchaser shall beneficially own securities of Newco representing less than the Ownership Threshold, (A) the TPG Purchaser shall cease to have the right to designate an Observer under this Section 3 and (B) the TPG Purchaser’s rights under this Section 3 shall expire.	
 
 	f.	If (i) a Director Election shall have been made by the TPG Purchaser or (ii) a Class B-1 Director is elected, then the TPG Purchaser’s rights under this Section 3 shall immediately expire.	
 
 	4.	Director Designation Rights .	
 
 	a.	From the Closing until the earlier of (i) the first anniversary of the Closing Date and (ii) such time as a Class B-1 Director is elected, upon delivery by the TPG Purchaser to Seller of its written election pursuant to this Section 4 to change its Observer into a director on the Board (a “ Director Election ”), if the TPG Purchaser meets the Ownership Threshold, Newco and the Board shall take all necessary action (including by expanding the size of the Board and by filling vacancies) to cause the Observer to become a director on the Board. As used herein, the “ TPG Designee ” shall mean (x) the Observer who becomes a director on the Board as a result of a Director Election, (y) any Class B-1 Director after such time as no shares of Class B-1 Common Stock remain outstanding or (z) any person who succeeds a person described in (x) or (y) as a director on the Board as a result of the TPG Purchaser exercising its rights under Section 4(c) hereof.	
 
 	b.	Following the initial election or appointment of a TPG Designee, subject to Section 4(d) hereof, as long as such TPG Designee satisfies the governance guidelines of Newco, as in effect from time to time, that are applicable to Amneal Directors (as defined in the Stockholders Agreement) serving on the Board, upon the written request of the TPG Purchaser, (i) Newco shall cause the TPG Designee to be included in the slate of directors approved by the Board for election at each meeting of stockholders of Newco (and any action by written consent to elect directors, if any) at which directors are elected and (ii) Newco and the Board shall recommend the election of the TPG Designee to the Board, and shall use its reasonable best efforts to solicit proxies from the stockholders of Newco in favor of such election.	
 
 	c.	Upon the resignation, retirement or cessation of serving (whether as a result of death, disability or otherwise) of the TPG Designee or other removal by the TPG Purchaser of the TPG Designee, (A) the TPG Purchaser shall be entitled to designate a replacement TPG Designee who satisfies the requirements of the governance guidelines of Newco, as in effect from time to time, that are applicable to Amneal Directors (as defined in the Stockholders Agreement) serving on the Board and is reasonably acceptable to the Nominating Committee of the Board and (B) Newco shall promptly cause the appointment or election of such replacement designee as the TPG Designee and a director on the Board.	
 
 	d.	Notwithstanding the foregoing, if for any period greater than 20 consecutive days after Closing the TPG Purchaser shall beneficially own securities of Newco representing less than the Ownership	
 
3

 	Threshold, (A) the TPG Purchaser shall promptly cause the TPG Designee to offer his or her resignation to Newco and (B) the TPG Purchaser’s rights under this Section 4 shall expire.	
 
 	5.	Satisfaction of Obligations under Existing Side Letter . The TPG Purchaser acknowledges and agrees that the obligations of the Seller and Newco under the Existing Side Letter set forth in Sections 1 and 2 of the Existing Side Letter shall be satisfied in full upon the execution and delivery of this Agreement.	
 
 	6.	Miscellaneous .	
 
 	a.	In the event of any conflict between this Agreement and either of (i) the Existing Side Letter or (ii) the Purchase Agreement, this Agreement shall control. For the avoidance of doubt, this Agreement does not supersede Sections 3, 4, 5 or 6 of the Existing Side Letter and such provisions remain in full force and effect.	
 
 	b.	Sections 9.02 (Interpretation), 9.11 (Governing Law: Submission to Jurisdiction), 9.12 (Waiver of Jury Trial), 9.13 (Specific Performance), 9.15 (Assignment; No Third-Party Beneficiaries) and 9.16 (Execution in Counterparts) of the Purchase Agreement are all incorporated herein by reference, mutatis mutandis, as if set forth herein.	
[Signature Page Follows]
 
4

If the foregoing correctly reflects the agreement between us on the subject matter hereof, please sign and return a copy of this Agreement to the undersigned.

Very truly yours,	
	
AMNEAL HOLDINGS, LLC	
		
By	 	 	
Name:	 		
Title:	 		
	
ATLAS HOLDINGS, INC.	
		
By	 	/s/ Paul M. Bisaro	
Name:	 	Paul M. Bisaro	
Title:	 	Chief Executive Officer and President	
Acknowledged and Agreed to as
of the date first written above:
TPG IMPROV HOLDINGS, L.P.
By: TPG GenPar VII, L.P., its general partner
By: TPG GenPar VII Advisors, LLC, its general partner

By:	 	/s/ Michael LaGatta	
	 	Name:  Michael LaGatta	
	 	Title:   Vice President	
[ Signature Page to Second Side Letter ]
 
5

Exhibit A
SHARE PURCHASE AGREEMENT
among
AMNEAL HOLDINGS, LLC
and
THE PURCHASERS PARTY HERETO
October 17, 2017
 
6

TABLE OF CONTENTS

 	  	 	  	Page	 	
ARTICLE I DEFINITIONS	  	 	10	 	
			
Section 1.01	  	Definitions	  	 	10	 	
Section 1.02	  	Accounting Procedures and Interpretation	  	 	17	 	
		
ARTICLE II AGREEMENT TO SELL AND PURCHASE	  	 	18	 	
Section 2.01	  	Sale and Purchase	  	 	18	 	
Section 2.02	  	Closing	  	 	18	 	
Section 2.03	  	Mutual Conditions	  	 	18	 	
Section 2.04	  	Conditions to Each Purchaser’s Obligations	  	 	18	 	
Section 2.05	  	Conditions to the Seller’s Obligations	  	 	19	 	
Section 2.06	  	Deliverables at the Closing	  	 	20	 	
Section 2.07	  	Independent Nature of Purchasers’ Obligations and Rights	  	 	21	 	
Section 2.08	  	Further Assurances	  	 	21	 	
		
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER	  	 	21	 	
			
Section 3.01	  	Existence, Qualification and Power	  	 	21	 	
Section 3.02	  	Ownership of Securities	  	 	22	 	
Section 3.03	  	Approvals	  	 	22	 	
Section 3.04	  	No Registration Required	  	 	22	 	
Section 3.05	  	Litigation	  	 	22	 	
Section 3.06	  	No Conflicts	  	 	22	 	
Section 3.07	  	Authority; Enforceability	  	 	22	 	
Section 3.08	  	Certain Fees	  	 	23	 	
Section 3.09	  	No Side Agreements	  	 	23	 	
Section 3.10	  	Material Information	  	 	23	 	
Section 3.11	  	Absence of Manipulation	  	 	23	 	
		
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY	  	 	24	 	
			
Section 4.01	  	Existence, Qualification and Power	  	 	24	 	
Section 4.02	  	Capitalization and Valid Issuance of Securities	  	 	24	 	
Section 4.03	  	Ownership of the Material Subsidiaries	  	 	25	 	
Section 4.04	  	Company SEC Documents	  	 	25	 	
Section 4.05	  	Financial Statements	  	 	25	 	
Section 4.06	  	Independent Registered Public Accounting Firm	  	 	26	 	
Section 4.07	  	No Material Adverse Effect	  	 	26	 	
Section 4.08	  	No Registration Required	  	 	26	 	
Section 4.09	  	No Restrictions or Registration Rights	  	 	26	 	
Section 4.10	  	Litigation	  	 	26	 	
Section 4.11	  	Compliance	  	 	27	 	
Section 4.12	  	No Conflicts	  	 	27	 	
Section 4.13	  	Authority; Enforceability	  	 	27	 	
Section 4.14	  	Approvals	  	 	28	 	
Section 4.15	  	Distribution Restrictions	  	 	28	 	
Section 4.16	  	Investment Company Status	  	 	28	 	
Section 4.17	  	Certain Fees	  	 	28	 	
Section 4.18	  	Insurance	  	 	28	 	
Section 4.19	  	Internal Controls	  	 	28	 	
Section 4.20	  	Disclosure Controls and Procedures	  	 	29	 	
Section 4.21	  	Sarbanes-Oxley	  	 	29	 	
 
7

							
 	  	 	  	Page	 	
Section 4.22	  	Listing and Maintenance Requirements	  	 	29	 	
Section 4.23	  	ERISA Compliance	  	 	29	 	
Section 4.24	  	Labor Matters	  	 	30	 	
Section 4.25	  	Intellectual Property; Licenses, Etc.	  	 	30	 	
Section 4.26	  	Ownership of Property; Liens	  	 	31	 	
Section 4.27	  	Environmental Matters	  	 	31	 	
Section 4.28	  	Tax Returns; Taxes	  	 	31	 	
Section 4.29	  	Required Disclosures and Descriptions	  	 	31	 	
Section 4.30	  	Shell Company Status	  	 	31	 	
Section 4.31	  	USA PATRIOT Act, Anti-Corruption Laws and Sanctions	  	 	32	 	
Section 4.32	  	OFAC Representation	  	 	32	 	
Section 4.33	  	Money Laundering Laws	  	 	32	 	
Section 4.34	  	No Directed Selling Efforts or General Solicitation	  	 	32	 	
Section 4.35	  	No Integrated Offering	  	 	32	 	
Section 4.36	  	No Side Agreements	  	 	32	 	
Section 4.37	  	Absence of Manipulation	  	 	33	 	
		
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS	  	 	33	 	
			
Section 5.01	  	Existence	  	 	33	 	
Section 5.02	  	Authorization, Enforceability	  	 	33	 	
Section 5.03	  	No Breach	  	 	33	 	
Section 5.04	  	Certain Fees	  	 	33	 	
Section 5.05	  	Unregistered Securities	  	 	33	 	
Section 5.06	  	Sufficient Funds	  	 	35	 	
Section 5.07	  	No Prohibited Trading	  	 	35	 	
Section 5.08	  	No General Solicitation	  	 	36	 	
Section 5.09	  	No Reliance	  	 	36	 	
Section 5.10	  	No Side Agreements	  	 	36	 	
		
ARTICLE VI COVENANTS	  	 	36	 	
			
Section 6.01	  	Cooperation; Further Assurances	  	 	36	 	
Section 6.02	  	Pre-Closing Covenants	  	 	36	 	
Section 6.03	  	Integration	  	 	37	 	
Section 6.04	  	Company Joinder	  	 	37	 	
Section 6.05	  	Company Lock-Up	  	 	37	 	
		
ARTICLE VII INDEMNIFICATION, COSTS AND EXPENSES	  	 	37	 	
			
Section 7.01	  	Indemnification by the Seller and the Company	  	 	37	 	
Section 7.02	  	Indemnification Procedure	  	 	38	 	
Section 7.03	  	Tax Matters	  	 	39	 	
		
ARTICLE VIII TERMINATION	  	 	39	 	
			
Section 8.01	  	Termination	  	 	39	 	
Section 8.02	  	Certain Effects of Termination	  	 	39	 	
		
ARTICLE IX MISCELLANEOUS	  	 	39	 	
			
Section 9.01	  	Expenses	  	 	39	 	
Section 9.02	  	Interpretation	  	 	39	 	
Section 9.03	  	Massachusetts Business Trust	  	 	40	 	
Section 9.04	  	Survival of Provisions	  	 	40	 	
Section 9.05	  	No Waiver: Modifications in Writing	  	 	40	 	
 
8

							
 	  	 	  	Page	 	
Section 9.06	  	Binding Effect	  	 	41	 	
Section 9.07	  	Publicity	  	 	41	 	
Section 9.08	  	Communications	  	 	42	 	
Section 9.09	  	Removal of Legend	  	 	42	 	
Section 9.10	  	Entire Agreement	  	 	43	 	
Section 9.11	  	Governing Law: Submission to Jurisdiction	  	 	43	 	
Section 9.12	  	Waiver of Jury Trial	  	 	43	 	
Section 9.13	  	Specific Performance	  	 	44	 	
Section 9.14	  	No Recourse Against Others	  	 	44	 	
Section 9.15	  	Assignment; No Third-Party Beneficiaries	  	 	44	 	
Section 9.16	  	Execution in Counterparts	  	 	45	 	
Section 9.17	  	Certain Adjustments	  	 	45	 	

 
9

SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT , dated as of October 17, 2017 (this “ Agreement ”), is entered into by and among AMNEAL HOLDINGS, LLC , a Delaware limited liability company (the “ Seller ”), and the purchasers set forth in Schedule A hereto (the “ Purchasers ”).
WHEREAS , the Seller desires to sell to the Purchasers, and the Purchasers desire to purchase from the Seller, the Purchased Shares (as defined below), in accordance with the provisions of this Agreement;
WHEREAS , in connection with the sale of the Purchased Shares pursuant to this Agreement, the Company (as defined below) and the Purchasers will enter into the Registration Rights Agreement (as defined below), pursuant to which the Company will provide the Purchasers with certain registration rights with respect to the Purchased Shares; and
WHEREAS , the Company shall become a party to this Agreement upon the Closing by executing and delivering a Company Joinder (as defined below).
NOW THEREFORE , in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
 ARTICLE I
DEFINITIONS
 Section  1.01 Definitions . As used in this Agreement, the following terms have the meanings indicated:
“ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. For the avoidance of doubt, for purposes of this Agreement, (a) the Seller or the Company Entities, on the one hand, and any Purchaser, on the other, shall not be considered Affiliates of each other and (b) any fund or account managed, advised or subadvised, directly or indirectly, by a Purchaser or its Affiliates, shall be considered an Affiliate of such Purchaser.
“ Agent ” means J.P. Morgan Securities LLC.
“ Agreement ” has the meaning specified in the introductory paragraph of this Agreement.
“ Amneal Business ” means the business conducted by Amneal Pharmaceuticals LLC, a Delaware limited liability company, and its Subsidiaries.
“ Anti-Corruption Laws ” means all laws, rules and regulations of any jurisdiction applicable to the Seller, the Company or its Subsidiaries from time to time concerning or relating to bribery, money-laundering or corruption, including without limitation, the Foreign Corrupt Practices Act of 1997.
“ Business Combination Agreement ” means the Business Combination Agreement by and among (A) Impax; (B) Newco; (C) Impax Merger Sub Corporation; and (D) Amneal Pharmaceuticals LLC, dated October 17, 2017.
“ Business Day ” means any day other than a Saturday, Sunday, any federal legal holiday or day on which banking institutions in the State of New York are authorized or required by Law or other governmental action to close.
 
10

“ Capitalization Date ” has the meaning specified in Section 4.02(a).
“ Class  A Common Stock ” means the Class A common stock, par value $0.01 per share, of Newco.
“ Class B-1 Common Stock ” means the Class B-1 common stock, par value $0.01 per share, of Newco.
“ Closing ” has the meaning specified in Section 2.02.
“ Closing Date ” means the date on which the Closing occurs.
“ Code ” means the Internal Revenue Code of 1986.
“ Commission ” means the United States Securities and Exchange Commission.
“ Common Share ” means, prior to the consummation of the Merger, a share of the common stock, par value $0.01 per share, of the Company and, from and after the consummation of the Merger, and for the avoidance of doubt at the time of the Closing, the Class A Common Stock, which will be the same class of common stock as that issued to holders of common stock of Impax upon the consummation of the Merger , and/or the Class  B-1 Common Stock .
“ Common Share Offering Price ” means $18.25 per Common Share, as adjusted for any stock split, stock dividend or share contribution with respect to the Common Shares that occurs prior to the Closing.
“ Company ” means, prior to the consummation of the Merger, Impax and from and after the consummation of the Merger, Newco.
“ Company Entities ” means, collectively, the Company, the Company’s Subsidiaries and those Persons that will be Subsidiaries of the Company upon consummation of the Merger, including Amneal Pharmaceuticals LLC and its Subsidiaries.
“ Company Joinder ” has the meaning specified in Section 2.06(a)(i).
“ Company Lock-Up ” has the meaning specified in Section 2.06(a)(iv).
“ Company Product ” means any product developed, tested, manufactured, marketed, sold or distributed by or on behalf of the Company Entities.
“ Company SEC Documents ” means the Company’s forms, registration statements, reports, schedules and statements filed by it under the Exchange Act or the Securities Act, as applicable, including, for the avoidance of doubt, the Registration Statement.
“ Confidentiality Agreements ” means the confidentiality agreements entered into by the Seller and each of the Purchasers or their Affiliates, as applicable, as may be amended from time to time.
“ Consent ” has the meaning specified in Section 3.03.
“ Contract ” means any contract, agreement, indenture, note, bond, mortgage, deed of trust, loan, instrument, lease, license, commitment or other arrangement, understanding, undertaking, commitment or obligation, whether written or oral.
“ Debt Commitment Letter ” means an executed commitment letter (including all exhibits and schedules thereto) pursuant to which the Debt Financing Sources party thereto have agreed (on the terms and subject to the conditions thereof), to lend the amounts set forth therein and the fee letter(s) referenced in the Debt Commitment Letter.
 
11

“ Debt Financing Sources ” means the persons, including the lenders that have committed to provide or arrange any debt financing or alternative debt financing in connection with the transactions contemplated hereby, including the parties named in the Debt Commitment Letter and any joinder agreements, note purchase agreements, indentures or credit agreements entered into pursuant thereto or relating thereto and, in each case, their respective successors and assigns.
“ DGCL ” means the Delaware General Corporation Law, as may be amended or revised from time to time.
“ Drop-Dead Date ” means the date that is nine months after the date of this Agreement.
“ Environmental Claim ” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations by any Governmental Authority, or proceedings with respect to any Environmental Liability or pursuant to Environmental Law, including those (1) by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any Environmental Law and (2) by any Person seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief pursuant to any Environmental Law.
“ Environmental Laws ” means any and all Laws relating to pollution, the protection of the environment or natural resources or, to the extent relating to exposure to Hazardous Materials, human health and safety.
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Company Entity directly or indirectly resulting from or based upon:
(1) any actual or alleged violation of any Environmental Law,
(2) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,
(3) exposure to any Hazardous Materials,
(4) the release or threatened release of any Hazardous Materials into the indoor or outdoor environment or
(5) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ Environmental Permit ” means any permit, approval, identification number, license or other authorization required under or issued pursuant to any Environmental Law.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.
“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Company or the Seller, as applicable, within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Company, the Seller or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition
 
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which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company, the Seller or any ERISA Affiliate.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.
“ FDA ” shall mean the United States Food and Drug Administration and any successor thereto.
“ FDA Laws ” shall mean all applicable statutes, rules, regulations, standards, guidelines, policies and orders administered or issued by FDA.
“ Fidelity ” means Fidelity Management & Research Company.
“ Fidelity Purchaser ” means each Purchaser advised or subadvised by Fidelity or one of its Affiliates.
“ Foreign Government Scheme or Arrangement ” has the meaning specified in Section 4.23(e).
“ Foreign Plan ” has the meaning specified in Section 4.23(e).
“ Funding Obligation ” means, with respect to a particular Purchaser, an amount equal to the Common Share Offering Price multiplied by the number of Purchased Shares to be purchased by such Purchaser on the Closing Date pursuant to Section 2.01.
“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States.
“ Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank).
“ Hazardous Materials ” means any and all wastes, pollutants, contaminants and hazardous or deleterious chemicals, materials or substances, including all hazardous or toxic substances, defined, listed, classified or regulated as, or included in the definition of, “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “solid wastes,” “toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of similar import, under any Environmental Law, and petroleum or petroleum products (including gasoline, crude oil or any fraction thereof), asbestos or asbestos-containing materials, polychlorinated biphenyls, regulated medical or pharmaceutical waste, radon gas and urea formaldehyde, and any other material or substance that would reasonably be expected to result in liability under Environmental Law.
“ Health Care Laws ” means all applicable foreign, federal, state and local health care laws and the regulations promulgated pursuant to such laws, each as amended from time to time including but not limited to: (i) the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq., and any analogous laws of any applicable jurisdiction; (ii) all terms and conditions of any pending or approved Product Registration; (iii) any other
 
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applicable laws of any jurisdiction governing the research, development, testing, manufacturing, processing, handling, packaging, labeling, storage, advertising, promotion, marketing, sale and distribution of the Company Products; (iv) the federal Anti-Kickback Law, 42 U.S.C. § 1320a-7b(b); (v) the federal civil False Claims Act, 31 U.S.C. § 3729 et seq.; (vi) the federal Civil Monetary Penalties Law, 42 U.S.C. § 1320a-7a; (vii) the federal health care program exclusion law, 42 U.S.C. § 1320a-7a; (viii) the Physician Payments Sunshine Act, 42 U.S.C. § 1320a-7h; (ix) the health care fraud criminal provisions under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); (x) the Medicare and Medicaid coverage and reimbursement provisions (Titles XVIII and XIX of the Social Security Act); (xi) any state or local laws regulating interactions with health care professionals and reporting thereof; and (xii) and all similar state, local, and foreign laws of any jurisdiction applicable to the operations of the Seller or the Company Entities.
“ Impax ” means Impax Laboratories, Inc., a Delaware corporation.
“ Indemnified Party ” has the meaning specified in Section 7.02(b).
“ Indemnifying Party ” has the meaning specified in Section 7.02(b).
“ Intellectual Property ” means all intellectual property rights in any jurisdiction in the world, whether registered or unregistered, including (i) trademarks, service marks, trade dress, trade names, corporate names, Internet domain names, social and mobile media identifiers, logos and source identifiers, and all goodwill associated with any of the foregoing or represented thereby, and all applications or registrations therefor and extensions or renewals thereof, (ii) patents, patent applications and any provisionals, continuations, continuations-in-part, divisionals, reissues, extensions, or revisions thereof, (iii) inventions, methods, processes, trade secrets, know-how, models and algorithms, and (iv) works of authorship and copyrights (including copyrights in software) and any registrations therefor along with any extensions or renewals thereof.
“ Investor Presentation ” means that certain investor presentation dated October 2017 entitled “A Strategic Combination for Long-Term Growth” provided to the Purchasers pertaining to the proposed Merger.
“ Law ” means collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“ Lien ” means any mortgage, pledge, lien (statutory or otherwise), encumbrance, security interest, security agreement, conditional sale, trust receipt, charge or claim or a lease, license, consignment or bailment, preference or priority, assessment, deed of trust, easement, servitude or other encumbrance upon or with respect to any property of any kind.
“ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the business, operations, assets, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Company, its Subsidiaries and the Amneal Business, taken as a whole; (b) a material impairment of the ability of the Seller or the Company, as applicable, to perform its respective obligations under the Transaction Documents to which it is party or will at the Closing become party; or (c) a material adverse effect upon the legality, validity, binding effect, enforceability or rights and remedies of the Purchasers against the Seller or the Company, as applicable, under the Transaction Documents; provided , however , that a Material Adverse Effect shall not include any material and adverse effect on the foregoing to the extent such material and adverse effect result from, arises out of, or relates to (w) the announcement of the transactions contemplated by this Agreement or the Business Combination Agreement or the satisfaction of the obligations set forth herein or therein, (x) a general deterioration in the economy or changes in the general state of the industries in which the Company and
 
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the Amneal Business operate, except to the extent that the Company and the Amneal Business, taken as a whole, are adversely affected in a disproportionate manner as compared to other industry participants, (y) the outbreak or escalation of hostilities involving the United States, the declaration by the United States of a national emergency or war or the occurrence of any other calamity or crisis, including acts of terrorism, or (z) any change in accounting requirements or principles imposed upon any Company Entity or their respective businesses or any change in applicable Law, or the interpretation thereof.
“ Material Subsidiaries ” means the Subsidiaries of the Seller or the Company, as applicable, that are “significant subsidiaries” of the Seller or the Company, respectively, as defined in Rule 1-02(w) of Regulation S-X under the Exchange Act.
“ Merger ” means the consummation of the Transactions, as defined in the Business Combination Agreement, by the parties thereto.
“ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“ Multiple Employer Plan ” means a Plan which has two or more contributing sponsors (including the Company or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“ Newco ” means Amneal Holdings Pharmaceuticals , Inc., a Delaware corporation.
“ Newco Charter ” means the Restated Certificate of Incorporation of Newco in effect as of the Closing Date.
“ NYSE ” means the New York Stock Exchange.
“ Organizational Documents ” means, (a) (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (ii) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity, or (b) with respect to entities incorporated in any non-U.S. jurisdiction, equivalent or comparable constitutive documents.
“ PBGC ” means the Pension Benefit Guaranty Corporation.
“ Pension Funding Rules ” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“ Pension Plan ” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by, or, solely in the case of a plan described in Section 4064(a) of ERISA, has been contributed to at any time during the immediately preceding five plan years by, the Company or the Amneal Business, as applicable, or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
 
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“ Person ” means any individual, corporation, company, voluntary association, partnership, joint venture, trust, limited liability company, unincorporated organization, government or any agency, instrumentality or political subdivision thereof or any other form of entity.
“ Plan ” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Company or the Seller, as applicable, or any ERISA Affiliate or any such Plan to which the Company or the Seller, as applicable, or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“ Privacy Policy ” means published internal and external policies, procedures, agreements and notices relating to the Company’s and the Seller’s collection, use or disclosure of data and information, and the security thereof.
“ Product Registrations ” means authorizations, approvals, clearances, licenses, permits, certificates, or exemptions issued or recognized by any foreign, federal, state or local governmental entity, including competent authorities and notified bodies (including, but not limited to, premarket notifications or 510(k) clearances, pre-market approvals, investigational device exemptions, product recertifications, manufacturing approvals and authorizations, CE marks, pricing and reimbursement approvals, labeling approvals, distributor or wholesale licenses or permits, registration notifications or their foreign equivalents), that are required for the research, development, investigation, manufacture, distribution, marketing, storage, transportation, use or sale of the Company Products.
“ Purchased Shares ” has the meaning specified in Section 2.01(a).
“ Purchaser Related Parties ” has the meaning specified in Section 7.01.
“ Purchasers ” has the meaning specified in the introductory paragraph of this Agreement.
“ Registration Rights Agreement ” means the Registration Rights Agreement, to be entered into at the Closing, among the Company and the Purchasers, substantially in the form attached hereto as Exhibit A .
“ Registration Statement ” means the registration statement on Form S-4 to be filed with the Commission (including any pre-effective or post-effective amendments or supplements thereto) registering the public offering and sale of securities to be issued in connection with the Merger.
“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
“ Representatives ” means, with respect to a specified Person, the Purchasers, officers, directors, managers, partners, employees, agents, advisors, counsel, accountants, investment bankers and other representatives of such Person.
“ Sanctioned Country ” means at any time, a country or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“ Sanctioned Person ” means at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or by the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons.
“ Sanction(s) ” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets
 
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Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom, the Netherlands or any other European Union member state.
“ Securities Act ” means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.
“ Short Sales ” means, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act and forward sale contracts, options, puts, calls, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements.
“ Stockholders Agreement ” means the Stockholders Agreement, to be entered into on or around the date of this Agreement, among Newco and certain members party thereto , as amended .
“ Subsidiary ” means, as to any Person, any corporation or other entity of which: (a) at least a majority of the outstanding equity interest having by the terms thereof ordinary voting power to elect a majority of the board of directors or similar governing body of such corporation or other entity (irrespective of whether or not at the time any equity interest of any other class or classes of such corporation or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more of its Subsidiaries; (b) such Person or a Subsidiary of such Person is a general partner or, in the case of a limited liability company, the managing member or manager thereof; or (c) any corporation or other entity as to which such Person consolidates for accounting purposes. For the avoidance of doubt, upon the consummation of the Merger, Amneal Pharmaceuticals LLC and its Subsidiaries shall be Subsidiaries of the Company.
“ Tax Return ” means any return, report or similar filing (including the attached schedules) filed or required to be filed with respect to Taxes (and any amendments thereto), including any information return, claim for refund or declaration of estimated Taxes.
“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“ Third-Party Claim ” has the meaning specified in Section 7.02(b).
“ Total Funding Obligation ” means the aggregate amount of Funding Obligations of all of the Purchasers participating in the Closing.
“ Transaction Documents ” means, collectively, this Agreement, the Registration Rights Agreement and any and all other agreements or instruments executed and delivered to the Purchasers by the Seller or the Company hereunder or thereunder, as applicable.
“ USA PATRIOT Act ” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Public Law No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.
 Section  1.02 Accounting Procedures and Interpretation . Unless otherwise specified herein, all accounting terms used herein shall be interpreted, and all determinations with respect to accounting matters hereunder shall be made in accordance with GAAP.
 
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 ARTICLE II
AGREEMENT TO SELL AND PURCHASE
 Section 2.01 Sale and Purchase .
(a) Subject to the terms and conditions hereof, at the Closing, each Purchaser hereby agrees to purchase from the Seller the number of Common Shares set forth opposite such Purchaser’s name on Schedule A (collectively, the “ Purchased Shares ”).
(b) Subject to the terms and conditions hereof, at the Closing, the Seller hereby agrees to sell to each Purchaser the Purchased Shares (registered in the name of such Purchaser or its nominee in accordance with its delivery instructions) for a cash purchase price equal to the Common Share Offering Price per Common Share. .
(c) Subject to the terms and conditions hereof, at the Closing, each Purchaser, severally and not jointly, shall purchase its Purchased Shares for a cash purchase price equal to the Common Share Offering Price per Common Share. Notwithstanding anything to the contrary set forth herein, each Purchaser shall not be required to pay such Purchaser’s Funding Obligation to the Seller until it (or its designated custodian per its delivery instructions) has received (i) evidence from the Company’s transfer agent showing such Purchaser’s Purchased Shares credited to such Purchaser’s book-entry account maintained by the transfer agent on and as of the Closing Date, or (ii) if requested by such Purchaser, a stock certificate representing such Purchaser’s Purchased Shares.
 Section  2.02 Closing . Subject to the satisfaction or waiver of the conditions precedent set forth in Section 2.03, Section 2.04 and Section 2.05, the closing (the “ Closing ”) of the purchase and sale of the Purchased Shares hereunder shall take place on the date of the consummation of the Merger, which date shall be specified in a written notice that the Seller shall use its commercially reasonable efforts (to the extent reasonable and practical under the Business Combination Agreement) to deliver to the Purchasers ten (10) Business Days prior to the date of such closing (failing which such notice shall be delivered by the Seller to the Purchasers at least five (5) Business Days prior to the date of such closing), or such date as is mutually agreed upon in writing by the Seller and each of the Purchasers.
 Section  2.03 Mutual Conditions . The respective obligations of each party to consummate the purchase and sale of the Purchased Shares at the Closing shall be subject to the satisfaction, on or prior to (and continuing through) the Closing Date, of each of the following conditions (any or all of which may be waived by a party on behalf of itself in writing, in whole or in part, to the extent permitted by applicable Law):
(a) no statute, rule, order, decree or regulation shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Authority which temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the transactions contemplated hereby or makes the transactions contemplated hereby illegal; and
(b) there shall not be pending any suit, action or proceeding by any Governmental Authority seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement.
 Section  2.04 Conditions to Each Purchaser ’ s Obligations . The obligation of a Purchaser to consummate its purchase of Purchased Shares shall be subject to the satisfaction on or prior to (and continuing through) the Closing Date of each of the following conditions (any or all of which may be waived by the applicable Purchaser with respect to itself in writing, in whole or in part, to the extent permitted by applicable Law):
(a) the representations and warranties of the Seller contained in ARTICLE III shall be true and correct in all material respects (other than those representations and warranties contained in Section 3.01, Section 3.02, Section 3.07(a), Section 3.07(b), Section 3.07(c), Section 3.07(d) or Section 3.08 or other representations and warranties that are qualified by materiality or Material Adverse Effect, which, in each case, shall be true and correct in all respects) when made and as of the Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct as of such date only);
 
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(b) the representations and warranties contained in ARTICLE IV shall be true and correct in all material respects (other than those representations and warranties contained in Section 4.01, Section 4.02, Section 4.13(a), Section 4.13(b), Section 4.13(c) or Section 4.17 or other representations and warranties that are qualified by materiality or Material Adverse Effect, which, in each case, shall be true and correct in all respects) as of the Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct as of such date only);
(c) the Seller shall have performed and complied in all material respects with all of the covenants and agreements contained in this Agreement that are required to be performed or complied with by it on or prior to the Closing Date;
(d) the closing of the Merger shall have occurred, or shall occur substantially simultaneously with the Closing, in accordance with the Business Combination Agreement without any amendment, supplement, waiver or other modification (i) to the definition of “Impax Material Adverse Effect” (as defined in the Business Combination Agreement) or the definition of “Amneal Material Adverse Effect” (as defined in the Business Combination Agreement), (ii) to the amount or form of “Merger Consideration” (as defined in the Business Combination Agreement) or (iii) that would increase the aggregate number of “Amneal Units” to be issued to the “Existing Amneal Members” in the “Recapitalization” (each as defined in the Business Combination Agreement);
(e) the Purchased Shares shall have been validly issued;
(f) the Class A Common Stock (including the Purchased Shares , other than the Class  B-1 Common Stock ) shall have been duly listed, subject to notice of issuance, on the NYSE;
(g) no notice of delisting from the NYSE shall have been received by the Company with respect to the Class A Common Stock;
(h) the Seller shall have entered into a lock-up agreement, dated as of the date hereof, in substantially the form attached hereto as Exhibit D , and such lock-up agreement shall remain in full force and effect as of the Closing Date;
(i) certain of the directors and officers of Newco as of the Closing Date shall have entered into a lock-up agreement, dated as of the Closing Date, in substantially the form attached hereto as Exhibit E ;
(j) the Seller shall have delivered, or caused to be delivered, to the Purchaser the closing deliverables described in Section 2.06(a); and
(k) with respect to the Fidelity Purchasers only, the purchase of Purchased Shares by the Fidelity Purchasers shall not cause the Fidelity Purchasers to collectively own Common Shares which would represent more than 14.99% of the shares of Class A Common Stock outstanding at such time.
 Section  2.05 Conditions to the Seller ’ s Obligations . The obligation of the Seller to consummate the sale of the Purchased Shares to each Purchaser shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by the Seller in writing, in whole or in part, to the extent permitted by applicable Law):
(a) the representations and warranties of such Purchaser contained in this Agreement shall be true and correct in all material respects (other than those representations and warranties that are qualified by materiality, which, in each case, shall be true and correct in all respects) when made and as of the Closing Date (except that representations and warranties made as of a specific date or for a specific period shall be required to be true and correct as of such date or for such specific period only);
 
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(b) such Purchaser shall have performed and complied in all material respects with all of the covenants and agreements contained in this Agreement that are required to be performed or complied with by it on or prior to the Closing Date;
(c) such Purchaser shall have delivered, or caused to be delivered, to the Seller the Purchaser’s closing deliverables described in Section 2.06(b); and
(d) the closing of the Merger shall have occurred, or shall occur substantially concurrently with the Closing.
 Section  2.06 Deliverables at the Closing .
(a) Deliverables of the Seller . At the Closing, the Seller shall deliver, or cause to be delivered, to the Purchasers:
(i) a joinder to this Agreement, executed by the Company, substantially in the form attached hereto as Exhibit B and dated the Closing Date (the “ Company Joinder ”);
(ii) an opinion from Latham & Watkins LLP, counsel for the Seller, form and substance reasonably satisfactory to the Agent, which shall be addressed to the Purchasers and dated the Closing Date;
(iii) a counterpart of the Registration Rights Agreement, which shall have been duly executed by Newco;
(iv) a lock-up agreement substantially in the form attached hereto as Exhibit C and dated as of the Closing Date (the “ Company Lock-Up ”), which shall have been duly executed by the Company;
(v) a fully executed “Application for Listing” approving the Class A Common Stock (including the Purchased Shares , other than the Class  B-1 Common Stock ) for listing by the NYSE;
(vi) either (A) evidence of crediting of the Purchased Shares to book-entry accounts maintained by the transfer agent of the Company, bearing a restrictive notation meeting the requirements of the Securities Act, free and clear of any Liens, other than transfer restrictions under this Agreement and applicable federal and state securities Laws and those created by the Purchasers or (B) if requested by such Purchaser, a stock certificate representing such Purchaser’s Purchased Shares, bearing a restrictive notation meeting the requirements of the Securities Act, free and clear of any Liens, other than transfer restrictions under this Agreement and applicable federal and state securities Laws and those created by the Purchasers;
(vii) a certificate of the Secretary or Assistant Secretary of the Company, on behalf of the Company, dated the Closing Date, certifying as to and attaching (A) the certificate of incorporation of the Company Newco Charter , (B) the bylaws of the Company, (C) board resolutions authorizing the execution and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby, including the issuance of the Purchased Shares, and (D) the incumbency of the officers authorized to execute the Transaction Documents on behalf of the Company setting forth the name and title and bearing the signatures of such officers;
(viii) a certificate of the Secretary of State of each applicable state, dated within ten (10) Business Days prior to the Closing Date, to the effect that each of the Seller and the Company is in good standing in its jurisdiction of formation;
(ix) a certificate of the Chief Financial Officer and the Treasurer of (A) the Seller, on behalf of the Seller, dated the Closing Date, certifying, in their applicable capacities, to the effect that the conditions set forth in Section 2.04(a), Section 2.04(c) and Section 2.04(d), and (B) the Company, on behalf of the Company, dated the Closing Date, certifying, in their applicable capacities, to the effect that the conditions set forth in Section 2.04(b), have been satisfied;
(x) a certification substantially in the form attached hereto as Exhibit F, conforming to the requirements of Treasury Regulations Section 1.1445-2(b), certifying that the Seller is not a foreign person; and
(xi) such other documents relating to the transactions contemplated by this Agreement as the Purchasers or their respective counsel may reasonably request.
 
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(b) Deliverables of Each Purchaser . At the Closing, each Purchaser shall deliver or cause to be delivered to the Seller:
(i) A counterpart of the Registration Rights Agreement, which shall have been duly executed by such Purchaser;
(ii) Payment of such Purchaser’s Funding Obligation payable by wire transfer of immediately available funds to an account designated in advance of the Closing Date by the Seller; and
(iii) Such other documents relating to the transactions contemplated by this Agreement as the Seller or its counsel may reasonably request.
 Section  2.07 Independent Nature of Purchasers ’ Obligations and Rights . The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under any Transaction Document. The decision of each Purchaser to purchase Purchased Shares pursuant to this Agreement has been made by such Purchaser independently of any other Purchaser and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company Entities which may have been made or given by any other Purchaser or by any agent or employee of any other Purchaser, and no Purchaser and none of its agents or employees shall have any liability to any other Purchaser (or any other Person) relating to or arising from any such information, materials, statements or opinions. The failure of any Purchaser to perform, or waiver by the Seller or Company, as applicable, of such performance, under any Transaction Document shall not excuse performance by any other Purchaser, the Seller or the Company, and the waiver by any Purchaser of performance of the Seller or the Company, as applicable, under any Transaction Document shall not excuse performance by the Seller or the Company, as applicable, with respect to any other Purchaser. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser acknowledges that no other Purchaser has acted as agent for such Purchaser in connection with making its investment hereunder and that no Purchaser will be acting as agent of such Purchaser in connection with monitoring its investment in the Purchased Shares or enforcing its rights under this Agreement or any other Transaction Document. Each Purchaser shall be entitled to independently protect and enforce its rights, including the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. It is expressly understood and agreed that each provision contained in this Agreement and any other Transaction Document is between the Seller or the Company, as applicable, and a Purchaser, solely, and not between the Company or the Seller, as applicable, and the Purchasers collectively and not between and among the Purchasers.
 Section  2.08 Further Assurances . From time to time after the date hereof, without further consideration, the Seller shall use its commercially reasonable efforts to take, or cause to be taken, all actions necessary or appropriate to consummate the transactions contemplated by this Agreement.
 ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLER
The Seller represents and warrants to each Purchaser as follows:
 Section  3.01 Existence, Qualification and Power . The Seller is (a) duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and (b) duly qualified or licensed to do business and is in good standing (to the extent such concept is applicable) in each jurisdiction where the character
 
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of the properties owned, leased or licensed by it or the nature of its business makes such qualification, licensing or good standing necessary, except where the failure to be so qualified or licensed or in good standing has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Seller.
 Section  3.02 Ownership of Securities . As of the Closing Date and immediately prior to the Closing, the Seller will be the sole record and beneficial owner of the Purchased Shares. On the Closing Date and immediately prior to the Closing, the Purchased Shares shall be free and clear of all Liens and restrictions on transfer, except for restrictions on transfer set forth in the Transaction Documents , the Newco Charter or imposed by applicable securities laws. Upon the Closing, the Seller will convey the Purchased Shares to the Purchasers, and Purchasers shall acquire good and marketable title to such Purchased Shares, free and clear of all Liens and restrictions on transfer, except for restrictions on transfer set forth in the Transaction Documents , the Newco Charter or imposed by applicable securities laws and those created by the Purchasers.
 Section  3.03 Approvals . No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person (each, a “ Consent ”), is necessary or required in connection with the sale of the Purchased Shares by the Seller, the execution, delivery and performance of this Agreement and the other Transaction Documents by the Seller and the consummation by the Seller of the transactions contemplated hereby or thereby, other than Consents (a) required by the Commission in connection with the Seller’s obligations under the Registration Rights Agreement, (b) required under the state securities or “blue sky” Laws, (c) that have been, or prior to the Closing Date will have been, duly obtained, taken, given or made and are in full force and effect, and (d) Consents, the failure of which to obtain or make would not reasonably be expected to have a Material Adverse Effect on the Seller.
 Section  3.04 No Registration Required . Assuming the accuracy of the representations and warranties of the applicable Purchaser contained in ARTICLE V, the sale of the Purchased Shares to such Purchaser pursuant to this Agreement is exempt from registration requirements of the Securities Act, and neither the Seller, the Company nor, to the Seller’s or Company’s respective knowledge, any Person acting on its behalf, has taken nor will take any action hereafter that would cause the loss of such exemption.
 Section  3.05 Litigation . There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Seller, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Seller or against any of its properties, assets, rights or revenues, or before or by any self-regulatory organization or other non-government regulatory authority, that would reasonably be expected to have a material adverse effect on the ability of the Seller to consummate the transactions contemplated hereby.
 Section  3.06 No Conflicts . The sale by the Seller of the Purchased Shares, the application of the proceeds thereof, the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby by the Seller do not and will not (a) contravene the terms of any of the Seller’s Organizational Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any provision of any security sold by the Seller or of any agreement, instrument or other undertaking to which the Seller is a party or by which it or any of its property is bound or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Seller or its property is subject; or (c) violate any Law or any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority, except in the case of clauses (b) and (c) for such violations which would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the ability of the Seller to consummate the transactions contemplated hereby.
 Section  3.07 Authority; Enforceability .
(a) The execution, delivery and performance by the Seller of each the Transaction Documents have been duly authorized by all necessary limited liability company action. The Seller has all requisite power and authority
 
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to sell and deliver the Purchased Shares, in accordance with and upon the terms and conditions set forth in this Agreement. On or prior to the Closing Date, all action required to be taken by the Seller for the sale and delivery of the Purchased Shares, the execution and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby shall have been validly taken.
(b) Each of the Transaction Documents has been or, when delivered hereunder, will have been, duly executed and delivered by the Seller. Each of the Transaction Documents constitutes, or will constitute, a legal, valid and binding obligation of the Seller, enforceable in accordance with its terms; provided that, with respect to each such agreement, the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws from time to time in effect affecting the enforcement of creditors’ rights and remedies generally and by general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at law).
(c) Subject to the accuracy of the representations and warranties of each Purchaser set forth in ARTICLE V hereof, the Seller has taken all action necessary to exempt from the registration requirements of the Securities Act the sale of the Purchased Shares.
(d) As of the date of this Agreement, the Business Combination Agreement and the Debt Commitment Letter are in full force and effect and constitute the legal, valid and binding obligation of the Seller, as applicable, enforceable in accordance with its terms; provided that, with respect to each such agreement, the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws from time to time in effect affecting the enforcement of creditors’ rights and remedies generally and by general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at law).
 Section  3.08 Certain Fees . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from the Purchasers with respect to the sale of any of the Purchased Shares or the consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. The Seller agrees that it will indemnify and hold harmless the Purchasers from and against any and all claims, demands, or liabilities for broker’s, finder’s, placement, or other similar fees or commissions incurred by the Seller, or alleged to have been incurred by the Seller in connection with the sale of the Purchased Shares or the consummation of the transactions contemplated by this Agreement.
 Section  3.09 No Side Agreements . Other than any agreements between Newco and TPG Improv Holdings, L.P., there are no binding agreements by, among or between the Seller or any of its Affiliates, on the one hand, and any Purchaser or any of its Affiliates, on the other hand, with respect to the transactions contemplated hereby other than the Transaction Documents.
 Section  3.10 Material Information . As of the date of this Agreement, the sale of the Purchased Shares by the Seller is not prompted by any material information concerning the Amneal Business or the Company which is not set forth in the information provided prior to the date of this Agreement by the Seller to the Purchasers.
 Section  3.11 Absence of Manipulation . The Seller has not, and to the Seller’s knowledge no one acting on its behalf has, taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Purchased Shares.
 
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 ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company, as of the Closing Date or as of such other date specified below, represents and warrants to the Purchasers as follows:
 Section  4.01 Existence , Qualification and Power . Each of the Company Entities (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under this Agreement to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
 Section  4.02 Capitalization and Valid Issuance of Securities .
(a) As of the date hereof, the authorized capital stock of the Company consists of (i) 150,000,000 shares of common stock, par value $0.01 per share, and (ii) 2,000,000 shares of preferred stock, par value $0.01 per share. As of October 13, 2017 (the “ Capitalization Date ”), (A) 74,413,801 Common Shares were issued and outstanding, (B) no shares of the Company’s preferred stock were issued and outstanding, (C) 243,729 Common Shares were issued and held in the Company’s treasury or otherwise owned by the Company or any of its Subsidiaries, (D) 1,719,444 Common Shares were reserved for issuance in connection with future grants of awards under the Company’s equity incentive plans (E) 3,368,198 Common Shares were reserved for issuance with respect to outstanding stock options issued under the Company’s equity incentive plans, and (F) 1,507,789 Common Shares were reserved for issuance under the Company’s stock purchase plan, as amended. Except as set forth in this Section 4.02(a) and except for changes since the close of business on the Capitalization Date resulting from the exercise of options to purchase Common Shares, as of the date of this Agreement, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. Except as set forth in this Section 4.02(a), as of the date hereof, there are no outstanding stock appreciation rights, rights to receive shares of Common Shares on a deferred basis or other rights that are linked to the value of Common Shares granted under the Company’s stock plans or otherwise. All outstanding shares of capital stock of the Company are, and all shares which may be issued pursuant to the Company’s stock plans or stock purchase plans will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except as set forth in this Section 4.02(a) and except for the Company’s $600,000,000 aggregate principal amount of 2.00% Convertible Senior Notes due 2022, as of the date hereof, there are no bonds, debentures, notes or other Indebtedness (as defined in the Business Combination Agreement) of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Common Shares may vote. Except as set forth in this Section 4.02(a) and except for the Company’s $600,000,000 aggregate principal amount of 2.00% Convertible Senior Notes due 2022, as of the date hereof (1) there are not issued, reserved for issuance or outstanding (A) any securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or voting securities of the Company or any of its Subsidiaries or (B) any warrants, calls, options or other rights to acquire from the Company or any of its Subsidiaries, or any obligation of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or voting securities of the Company or any of its Subsidiaries and (2) there are not any outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, any such securities. As of the date hereof, neither the Company nor any of its Subsidiaries is a party to any voting agreement with respect to the voting of any such securities.
 
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(b) As of the Closing Date, the Company has an authorized capitalization as set forth in the Registration Statement.
(c) The Purchased Shares have been, or prior to the Closing will be, duly and validly authorized and validly issued, fully paid and nonassessable, and shall be free and clear of all Liens and restrictions on transfer, except for restrictions on transfer set forth in the Transaction Documents , the Newco Charter or imposed by applicable securities laws.
(d) No Person is entitled to pre-emptive or similar statutory or contractual rights with respect to any securities of the Company Entities. There are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which any Company Entity is or may be obligated to issue any equity securities of any kind, other than options granted under the Company’s stock plans and prior stock plans. There are no voting agreements, buy-sell agreements, option or right of first purchase agreements or other agreements of any kind among the Company and any of the securityholders of the Company relating to the securities of the Company held by them. Other than the Registration Rights Agreement or the Stockholders Agreement, no Person has the right to require the Company to register any securities of the Company under the Securities Act, whether on a demand basis or in connection with the registration of securities of the Company for its own account or for the account of any other Person. The sale of the Purchased Shares hereunder will not obligate the Company to issue Common Shares or other securities to any other Person (other than the Purchasers) and will not result in the adjustment of the exercise, conversion, exchange or reset price of any outstanding security. The Company does not have outstanding stockholder purchase rights or “poison pill” or any similar arrangement in effect giving any Person the right to purchase any equity interest in the Company upon the occurrence of certain events.
 Section  4.03 Ownership of the Material Subsidiaries . All of the outstanding shares of capital stock or other equity interests of each Material Subsidiary owned directly or indirectly by the Company (a) have been validly issued and are fully paid and nonassessable, and (b) except as disclosed in the Company SEC Documents, are wholly-owned, directly or indirectly, by the Company, free and clear of all Liens, except for Liens under the Company’s existing debt arrangements and the debt arrangements contemplated by the Debt Commitment Letter and for restrictions on transferability in the Organizational Documents of such Material Subsidiary.
 Section  4.04 Company SEC Documents ; Information Provided to Purchasers . Since December 31, 2016, the Company’s forms, registration statements, reports, schedules and statements required to be filed by it under the Exchange Act have been filed with the Commission on a timely basis. The Company SEC Documents, at the time filed (or in the case of registration statements, solely on the dates of effectiveness), except (i) in the case of a Company SEC Document filed prior to the date hereof, to the extent corrected by a subsequent Company SEC Document filed prior to the date hereof, and (ii) in the case of a Company SEC Document filed on or after the date hereof, to the extent corrected by a subsequent Company SEC Document: (a) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made in the case of any such documents other than a registration statement, not misleading and (b) complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be. As of the date hereof, all disclosure (including any amendments, supplements and updates thereto) provided to the Purchasers regarding the Company and its Subsidiaries, their businesses and the transactions contemplated hereby furnished by or on behalf of the Company or any of its Subsidiaries (including the Company SEC Documents), taken as a whole, is true and correct in all material respects, in light of the circumstances in which they were made.
 Section  4.05 Financial Statements .
(a) The historical financial statements (including the related notes) contained or incorporated by reference in the Company SEC Documents (i) comply in all material respects with the applicable accounting requirements under the Securities Act and the Exchange Act (except that certain supporting schedules are omitted), (ii) fairly
 
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present the financial condition of the Company and its Subsidiaries as of the dates thereof and their results of operations for the respective periods and (iii) have been prepared in accordance with GAAP consistently applied throughout the periods involved, in each case except to the extent disclosed therein. The other financial information of the Company Entities, including non-GAAP financial measures, if any, contained or incorporated by reference in the Company SEC Documents has been derived from the accounting records of the Company Entities, and fairly presents in all material respects the information purported to be shown thereby. Nothing has come to the attention of the Company that has caused it to believe that the statistical and market-related data included in the Company SEC Documents is not based on or derived from sources that are reliable and accurate in all material respects as of the date on which the applicable Company SEC Documents were filed.
(b) Since the date of the most recent balance sheet of the Company audited by the Company’s auditor, (i) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Company SEC Documents fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto in all material respects and (ii) to the best knowledge of the Company, the Company is not aware of any material weakness in, or fraud that involves management or other employees who have a significant role in, the Company’s internal controls over financial reporting.
 Section  4.06 Independent Registered Public Accounting Firm . KPMG LLP, which has audited the financial statements contained or incorporated by reference in the Company SEC Documents, is an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States). KPMG LLP has not resigned or been dismissed as independent registered public accountants of the Company as a result of or in connection with any disagreement with the Company or any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
 Section  4.07 No Material Adverse Effect . Since December 31, 2016, except as described in the Company SEC Documents (excluding any disclosures that are forward-looking in nature; and, solely for the purpose of the condition in Section 2.04(b), only Company SEC Documents filed prior to the date hereof shall be considered for the purpose of this Section 4.07), there has been no event or circumstance, either individually or in the aggregate, that has had a Material Adverse Effect.
 Section  4.08 No Registration Required . Assuming the accuracy of the representations and warranties of the applicable Purchaser contained in ARTICLE V, the issuance and sale of the Purchased Shares by the Company to such Purchaser pursuant to this Agreement is exempt from registration requirements of the Securities Act, and neither the Company nor, to the Company’s knowledge, any Person acting on its behalf, has taken nor will take any action hereafter that would cause the loss of such exemption.
 Section  4.09 No Restrictions or Registration Rights . Except under the Stockholders Agreement , the Newco Charter and the Restated Amneal LLC Operating Agreement (as defined in the Business Combination Agreement), there are no restrictions upon the voting or transfer of, any Common Shares arising under the Company’s Organizational Documents or the DGCL. Neither the offering nor sale of the Purchased Shares as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Purchased Shares or other securities of the Company. The Company has not granted registration rights to any Person other than the Purchasers that would provide such Person priority over the Purchasers’ rights with respect to any piggyback registration.
 Section  4.10 Litigation . Except as described in the Company SEC Documents (excluding any disclosures that are forward-looking in nature; and, solely for the purpose of the condition in Section 2.04(b), only Company SEC Documents filed prior to the date hereof shall be considered for the purpose of this Section 4.10), there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Company or the Seller, as applicable, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by
 
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or against any of the Company Entities or against any of their properties or revenues, or before or by any self-regulatory organization or other non-government regulatory authority (including, without limitation, the NYSE), that would reasonably be expected to have a Material Adverse Effect.
 Section  4.11 Compliance . The Company, the Seller and each Subsidiary thereof is in compliance in all material respects with the requirements of all Laws (including without limitation, FDA Laws, Health Care Laws, privacy and data security Laws), organizational documents, Privacy Policies, government permits and government licenses, and any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NYSE), and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
 Section  4.12 No Conflicts . The issuance by the Company of the Purchased Shares, the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby by each Company Entity do not and will not (a) contravene the terms of any of such Person’s Organizational Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law or any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NYSE), except in the case of clauses (b) and (c) for such violations which would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
 Section  4.13 Authority; Enforceability .
(a) The execution, delivery and performance by the Company of each the Transaction Documents have been duly authorized by all necessary corporate action. The Company has all requisite power and authority to issue the Purchased Shares. On or prior to the Closing Date, all action required to be taken by the Company for the authorization and issuance of the Purchased Shares, the execution and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby shall have been validly taken. No approval from the holders of outstanding Common Shares is required under the Organizational Documents of the Company or the rules of the NYSE in connection with the Company’s issuance of the Purchased Shares to the Purchasers.
(b) Each of the Transaction Documents has been or, when delivered hereunder, will have been, duly executed and delivered by the Company. Each of the Transaction Documents constitutes, or will constitute, a legal, valid and binding obligation of the Company, enforceable in accordance with its terms; provided that, with respect to each such agreement, the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws from time to time in effect affecting the enforcement of creditors’ rights and remedies generally and by general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at law).
(c) The Company has taken, or prior to Closing will take, all action reasonably necessary to exempt the Purchasers from the provisions of any stockholder rights plan or other “poison pill” arrangement, any anti-takeover, business combination or control share law or statute binding on the Company or to which the Company or any of its assets and properties may be subject and any provision of the Company’s Organizational Documents that is or would reasonably be expected to become applicable to the Purchasers as a result of the transactions contemplated hereby, including without limitation, the issuance of the Purchased Shares and the ownership, disposition or voting of the Purchased Shares by the Purchasers or the exercise of any right granted to the Purchasers pursuant to this Agreement or the other Transaction Documents.
 
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(d) As of the date of this Agreement, the Business Combination Agreement and the Debt Commitment Letter are in full force and effect and constitute the legal, valid and binding obligation of the Company and its Subsidiaries, as applicable, enforceable in accordance with its terms; provided that, with respect to each such agreement, the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws from time to time in effect affecting the enforcement of creditors’ rights and remedies generally and by general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at law).
 Section  4.14 Approvals . No Consent is necessary or required in connection with the issuance of the Purchased Shares by the Company, the execution, delivery and performance of this Agreement and the other Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby or thereby, other than Consents (a) required by the Commission in connection with the Company’s obligations under the Registration Rights Agreement, (b) required under the state securities or “blue sky” Laws, (c) that have been, or prior to the Closing Date will have been, duly obtained, taken, given or made and are in full force and effect, and (d) Consents, the failure of which to obtain or make would not reasonably be expected to have a Material Adverse Effect.
 Section  4.15 Distribution Restrictions . No Company Entity is currently prohibited, or as a result of the transactions contemplated by this Agreement, will be prohibited, directly or indirectly, from making distributions with respect to its equity securities, from repaying to any other Company Entity any loans or advances or from transferring any property or assets to the Company or any other Company Entity, except as described in the Company’s most recent Annual Report on Form 10-K or as contemplated by the Debt Commitment Letter with respect to the debt facilities committed thereby.
 Section  4.16 Investment Company Status . None of the Company Entities is, and immediately after the issuance and sale of the Purchased Shares hereunder and the application of the net proceeds from such issuance and sale and the consummation of the Merger, none of the Company Entities will be, required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.
 Section  4.17 Certain Fees . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from the Purchasers with respect to the sale of any of the Purchased Shares or the consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any Company Entities. The Company agrees that it will indemnify and hold harmless the Purchasers from and against any and all claims, demands, or liabilities for broker’s, finder’s, placement, or other similar fees or commissions incurred by the Seller or the Company Entities, or alleged to have been incurred by the Seller or the Company Entities in connection with the sale of the Purchased Shares or the consummation of the transactions contemplated by this Agreement.
 Section  4.18 Insurance . The properties of the Company and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Company, in such amounts with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company or the applicable Subsidiary operates.
 Section  4.19 Internal Controls . Except as described in the Company SEC Documents, the Company Entities, taken as a whole, maintain a system of internal accounting controls sufficient to provide reasonable assurance that (a) transactions are executed in accordance with management’s general or specific authorization, (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (c) access to assets is permitted only in accordance with management’s general or specific authorization and (d) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (ii) internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and such internal control over financial reporting is effective.
 
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 Section  4.20 Disclosure Controls and Procedures . (a) To the extent required by Rule 13a-15 under the Exchange Act, each of the Company Entities has established and maintains disclosure controls and procedures (to the extent required by and as such term is defined in Rule 13a-15(e) under the Exchange Act), (b) such disclosure controls and procedures are designed to provide reasonable assurance that that the information required to be disclosed by the Company in the reports to be filed or submitted under the Exchange Act is accumulated and communicated to management of the Company, as appropriate, to allow timely decisions regarding required disclosure to be made and (c) to the extent required by Rule 13a-15 under the Exchange Act, such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established.
 Section  4.21 Sarbanes-Oxley . The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith.
 Section  4.22 Listing and Maintenance Requirements . As of the Closing Date, the Common Shares (other than the Class  B-1 Common Stock) will be listed on the NYSE, and the Company has not received any notice of, nor taken any action designed to, or likely to have the effect of, delisting; the Company is in compliance in all material respects with the listing and listing maintenance requirements of the NYSE applicable to it for the continued trading of its Common Shares (other than the Class  B-1 Common Stock) on the NYSE. The issuance of the Purchased Shares does not contravene NYSE rules and regulations.
 Section  4.23 ERISA Compliance .
(a) Each Plan of the Company Entities is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state Laws. Each Plan of the Company Entities that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue Service. To the best knowledge of the Seller and the Company, nothing has occurred that would prevent or cause the loss of, such tax-qualified status.
(b) There are no pending or, to the best knowledge of the Seller or the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan of the Amneal Business, the Company or any of their Subsidiaries, respectively, that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan of the Amneal Business, the Company or any of their Subsidiaries that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) Except as would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, (i) no ERISA Event has occurred, and none of the Amneal Business, the Company or any of their Subsidiaries nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan of the Amneal Business, the Company or any of their Subsidiaries; (ii) the Amneal Business, the Company or any of their Subsidiaries and each ERISA Affiliate have met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan of Amneal Business, the Company or any of their Subsidiaries, respectively, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan of the Amneal Business, the Company or any of their Subsidiaries, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and none of Amneal Business, the Company or any of their Subsidiaries nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) none of Amneal Business, the Company or any of their Subsidiaries nor any ERISA Affiliate has incurred any liability to the PBGC other than
 
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for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) none of Amneal Business, the Company or any of their Subsidiaries nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan of the Amneal Business, the Company or any of their Subsidiaries has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan of the Amneal Business, the Company or any of their Subsidiaries.
(d) None of the Amneal Business, the Company or any of their Subsidiaries or any ERISA Affiliate maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan.
(e) With respect to each scheme or arrangement mandated by a government other than the United States (a “ Foreign Government Scheme or Arrangement ”) and with respect to each employee benefit plan maintained or contributed to by the Amneal Business, the Company or any Subsidiary thereof that is not subject to United States Law (a “ Foreign Plan ”):
(i) any employer and employee contributions required by Law or by the terms of any Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and
(iii) each Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
 Section  4.24 Labor Matters . Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (1) there are no strikes or other labor disputes against any of the Amneal Business or the Company Entities pending or, to the knowledge of the Seller or the Company Entities, as applicable, threatened and (2) hours worked by and payment made based on hours worked to employees of each of the Amneal Business or the Company Entities have not been in violation of the Fair Labor Standards Act or any other applicable Laws dealing with wage and hour matters.
 Section  4.25 Intellectual Property; Licenses, Etc. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) the Amneal Business, the Company and their Subsidiaries exclusively own their material proprietary Intellectual Property that they own or purport to own, free and clear of all Liens, and own or have a valid right to use, all other Intellectual Property necessary for the operation of their respective businesses as currently conducted, (ii) each employee, contractor or consultant that has invented, created or reduced to practice any material Intellectual Property on behalf of the Company Entities, ownership of which does not vest in the Amneal Business, the Company or their Subsidiaries by operation of Law, has signed a written agreement assigning or granting valid rights to use such Intellectual Property to the Amneal Business, Company or their Subsidiaries, as applicable, (iii) the operation of the respective businesses of the Amneal Business, the Company and their Subsidiaries as currently conducted does not infringe upon, misuse, misappropriate or violate any Intellectual Property rights held by any Person and there is no written claim or written notice alleging same, received within the past three (3) years (including offers to take a license or cease and desist letters), (iv) no Person is infringing the Intellectual Property owned by the Amneal Business, the Company or any of their Subsidiaries, (v) the Amneal Business, the Company and their Subsidiaries have taken reasonable actions to protect the security, continuous operation and integrity of their
 
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systems, networks and software (and all data contained therein) used in the operation of their respective businesses, and (vi) there have been no material security breaches, unauthorized access to, outages or violations of any of the foregoing in part (iv).
 Section  4.26 Ownership of Property; Liens . Each of the Amneal Business, the Company and their Subsidiaries have good and valid record title in fee simple to, or valid leasehold interests in, or easements or other limited property interests in, all real property necessary in the ordinary conduct of its business, free and clear of all Liens except for (i) Liens that do not materially affect the value of such property and do not materially interfere with the use made or proposed to be made of such property by the Amneal Business or the Company Entities, (ii) Liens as are described in the Company SEC Documents, (iii) Liens under the Company’s existing debt arrangements and the debt arrangements contemplated by the Debt Commitment Letter, (iv) restrictions on transferability in the Organizational Documents of such Material Subsidiary and (v) except where the failure to have such title or other interest would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
 Section  4.27 Environmental Matters .
(a) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) the Amneal Business, the Company and their Subsidiaries are in compliance with all, and have not violated any, applicable Environmental Laws (including having obtained all Environmental Permits) and (b) none of the Company, the Amneal Business or any their Subsidiaries has received notice of or is subject to any pending, or to the knowledge of the Seller or the Company, as applicable, threatened Environmental Claim or any other Environmental Liability or is aware of any basis for any Environmental Liability.
(b) None of the Amneal Business, the Company or their Subsidiaries has used, released, treated, stored, transported or disposed of Hazardous Materials, at or from any currently or formerly owned or operated real estate or facility relating to its business, in a manner that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
 Section  4.28 Tax Returns; Taxes . The Amneal Business, the Company and their Subsidiaries have filed all Federal, state and other material Tax returns and reports required to be filed, and have paid all Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable and before they have become delinquent, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. As of the date hereof, no Tax Lien has been filed against the Amneal Business, the Company, any of their Subsidiaries, or any assets of the Amneal Business, the Company, any of their Subsidiaries that could reasonably be expected to have a Material Adverse Effect. There is no proposed tax assessment against the Amneal Business, the Company or any Subsidiary that would, if made, have a Material Adverse Effect on the Company. None of the Amneal Business, the Company nor any of their Subsidiaries is party to any tax sharing agreement. The charges, accruals and reserves on the books of the Amneal Business, the Company and any of their Subsidiaries in respect of Federal, state or other Taxes for all fiscal periods are adequate and in accordance with GAAP.
 Section  4.29 Required Disclosures and Descriptions . There are no legal or governmental actions, suits or proceedings (including an audit or examination by any taxing authority) pending or, to the knowledge of the Seller or the Company Entities, as applicable, threatened, against any of the Company Entities, or to which any of the Company Entities is a party, or to which any of their respective properties is subject, that are required to be described in the Company SEC Documents but are not described as required, and there are no Contracts that are required to be described in the Company SEC Documents or to be filed as an exhibit to the Company SEC Documents that are not described or filed as required by the Securities Act or the Exchange Act.
 Section  4.30 Shell Company Status . The Company is not, and has never been, an issuer identified in Rule 144(i)(1).
 
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 Section  4.31 USA PATRIOT Act, Anti-Corruption Laws and Sanctions . Each of the Amneal Business, the Company and each of their respective Subsidiaries, officers, directors, employees and agents has during the last five (5) years complied with (a) Sanctions, (b) the USA PATRIOT Act, and (c) Anti-Corruption Laws. Each of the Amneal Business and Company has implemented and maintains in effect policies and procedures designed to ensure compliance by the Amneal Business, the Company, their respective Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. None of (a) the Amneal Business, the Company, any of their respective Subsidiaries or any of their respective directors, officers or employees, or (b) to the knowledge of the Seller, any agent of the Amneal Business or any of its Subsidiaries that will act in any capacity in connection with or benefit from the transactions contemplated by this Agreement, is a Sanctioned Person. None of (a) the Company, any of its Subsidiaries or any of their respective directors, officers or employees, or (b) to the knowledge of the Company, any agent of the Company or any of its Subsidiaries that will act in any capacity in connection with or benefit from the transactions contemplated by this Agreement, is a Sanctioned Person. No use of proceeds or other transaction contemplated by this Agreement will be used (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (c) in any manner that would violate any Anti-Corruption Laws or Sanctions applicable to any party hereto.
 Section  4.32 OFAC Representation. Neither the Company nor any Subsidiary of the Company nor, to the knowledge of the Company, any director, officer, agent, employee, or person acting on behalf of the Company or any Subsidiary of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), and the Company will not directly or indirectly use the proceeds of the sale of the Purchased Shares, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, towards any sales or operations in Cuba, Iran, Syria, Sudan, Myanmar or any other country sanctioned by OFAC or for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
 Section  4.33 Money Laundering Laws The operation of each of the Company and any Subsidiary of the Company are and have been conducted at all times in compliance with the money laundering statues of applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any applicable governmental agency (collectively, the “Money Laundering Laws”), and no action suit or proceeding by or before any court of governmental agency, authority or body or any arbitrator involving the Company and/or any Subsidiary of the Company with respect to the Money Laundering Laws is pending, or to the Company’s knowledge, threatened.
 Section  4.34 No Directed Selling Efforts or General Solicitation . None of the Company, the Seller nor any Person acting on behalf of any of them has conducted any general solicitation or general advertising (as those terms are used in Regulation D of the Securities Act) in connection with the offer or sale of any of the Purchased Shares.
 Section  4.35 No Integrated Offering . None of the Company, the Seller or any of their respective Affiliates, nor any Person acting on behalf of any them has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security, under circumstances that would adversely affect reliance by the Company on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the Purchased Shares under the Securities Act.
 Section  4.36 No Side Agreements. Other than any agreements between or among Newco and any of TPG Improv Holdings, L.P. or its Affiliates, there are no binding agreements by, among or between the Company or any of its Affiliates, on the one hand, and any Purchaser or any of its Affiliates, on the other hand, with respect to the transactions contemplated hereby other than the Transaction Documents.
 
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 Section  4.37 Absence of Manipulation. The Company has not, and to the Company’s knowledge no one acting on its behalf has, taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Purchased Shares.
 ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS
Each of the Purchasers, severally as to itself but not jointly, represents and warrants to the Seller as follows:
 Section  5.01 Existence . Such Purchaser is duly organized and validly existing and in good standing under the Laws of its jurisdiction of organization or formation, with all necessary power and authority to own and operate its properties and to conduct its business as currently conducted.
 Section  5.02 Authorization, Enforceability . Such Purchaser has all necessary corporate, limited liability company, trust or partnership power and authority to execute, deliver and perform its obligations under the Transaction Documents to which it is a party. The execution, delivery and performance of such Transaction Documents by such Purchaser and the consummation by it of the transactions contemplated thereby have been duly and validly authorized by all necessary legal action, and no further consent or authorization of such Purchaser or any other Person is required. Each of the Transaction Documents to which such Purchaser is a party has been duly executed and delivered by such Purchaser, where applicable, and constitutes a legal, valid and binding obligation of such Purchaser; provided that, with respect to each such agreement, the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws from time to time in effect affecting the enforcement of creditors’ rights and remedies generally and by general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at law).
 Section  5.03 No Breach . The execution, delivery and performance of the Transaction Documents to which such Purchaser is a party by such Purchaser and the consummation by such Purchaser of the transactions contemplated thereby will not (a) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement to which such Purchaser is a party or by which such Purchaser is bound or to which any of the property or assets of such Purchaser is subject, (b) conflict with or result in any violation of the provisions of the Organizational Documents of such Purchaser, or (c) violate any Law of any Governmental Authority or body having jurisdiction over such Purchaser or the property or assets of such Purchaser, except in the case of clauses (a) and (c), for such conflicts, breaches, violations or defaults as would not prevent the consummation of the transactions contemplated by such Transaction Documents.
 Section  5.04 Certain Fees . No fees or commissions are or will be payable by such Purchaser to brokers, finders or investment bankers with respect to the purchase of any of the Purchased Shares or the consummation of the transactions contemplated by this Agreement, except for fees or commissions for which none of the Seller or the Company Entities is responsible.
 Section  5.05 Unregistered Securities .
(a) Accredited Purchaser Status; Sophisticated Purchaser . Such Purchaser is (A) an “accredited investor” within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act, as amended, or (B) (i) a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, as amended; (ii) an Institutional Account as defined in FINRA Rule 4512(c); and (iii) a sophisticated institutional investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including such
 
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Purchaser’s participation in the transactions contemplated hereby. Such Purchaser has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Purchased Shares and participation in the transactions contemplated hereby (1) are fully consistent with its financial needs, objectives and condition, (2) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to such Purchaser, (3) have been duly authorized and approved by all necessary action, (4) do not and will not violate or constitute a default under such Purchaser’s charter, by-laws or other constituent document or under any law, rule, regulation, agreement or other obligation by which it is bound and (5) are a fit, proper and suitable investment for such Purchaser, notwithstanding the substantial risks inherent in investing in or holding the Purchased Shares. Such Purchaser is able to bear the substantial risks associated with its purchase of the Purchased Shares, including but not limited to loss of its entire investment therein.
(b) Information . Such Purchaser and its Representatives have (i) received, reviewed and understood the offering materials made available to it in connection with the transactions contemplated hereby, (ii) had the opportunity to ask questions of and receive answers from the Seller and the Company directly, (iii) conducted and completed its own independent due diligence with respect to the transactions contemplated hereby and (iv) been furnished with all materials relating to the businesses, finances and operations of the Amneal Business and the Company that have been requested and materials relating to the offer and sale of the Purchased Shares that have been requested by such Purchaser. In connection with such Purchaser’s investigation of the Amneal Business, the Company and their businesses and operations, such Purchaser and its Representatives have received and, after the date hereof but prior to Closing, may receive, from the Seller or the Company certain projections and other forecasts for the Amneal Business, the Company or the Company Entities and certain estimates, plans and budget information, and other forward-looking information. Such Purchaser acknowledges and agrees that (a) there are uncertainties inherent in attempting to make such projections, forecasts, estimates, plans, budgets and other forward-looking statements, (b) such Purchaser is familiar with such uncertainties and (c) such Purchaser is taking full responsibility for making its own evaluations of the adequacy and accuracy of all estimates, projections, forecasts, plans, budgets and other forward-looking statements so furnished to it or its Representatives. Such Purchaser acknowledges that it has not received financial statements of the Amneal Business prepared or audited in accordance with the rules of the Public Company Accounting Oversight Board and that such Purchaser has not received pro forma financial information prepared in accordance with SEC rules relating to the Merger, including the related financing, and that audited financial statements of the Amneal Business prepared in accordance with the rules of the Public Company Accounting Oversight Board and pro forma financial information reflecting such transactions prepared in accordance with SEC rules, when prepared and filed with the SEC, could differ materially from the information regarding such business and such transactions that such Purchaser has received. Based on such information as such Purchaser has deemed appropriate and without reliance upon the Agent in and of itself, such Purchaser has independently made its own judgment concerning the Company and the Amneal Business and their businesses, operations and prospects and analysis and decision to enter into this Agreement and the transactions contemplated hereby. Except for the representations, warranties and agreements of the Seller and the Company expressly set forth in this Agreement, such Purchaser is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the transactions contemplated hereby, the Purchased Shares and the businesses, condition (financial and otherwise), management, operations, properties and prospects of the Amneal Business and the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Neither any inquiries nor any other due diligence investigations conducted at any time by such Purchasers and its Representatives shall modify, amend or affect such Purchasers’ right (i) to rely on the representations and warranties contained in the Agreement and other Transaction Documents or (ii) to indemnification or any other remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in any Transaction Document. Such Purchaser understands that its purchase of the Purchased Shares involves a high degree of risk. Such Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Purchased Shares.
 
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(c) Residency . Such Purchaser shall cooperate reasonably with the Seller to provide any information necessary for any applicable securities filings.
(d) Legends . Such Purchaser understands that, until such time a registration statement registering the Purchased Shares has become effective, or the Purchased Shares are eligible for resale pursuant to Rule 144 promulgated under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Purchased Shares will bear a restrictive legend substantially as follows: “The securities represented hereby have not been registered with the Securities and Exchange Commission or the securities commission of any state in reliance upon an exemption from registration under the Securities Act of 1933, as amended, and, accordingly, may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities are sold pursuant to Rule 144, or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933, as amended.” Additionally, if required by the authorities of any state in connection with the issuance or sale of the Purchased Shares, the Purchased Shares shall bear the legend required by such state authority.
(e) Purchase Representation . Such Purchaser is acquiring its entire beneficial ownership interest in the Purchased Shares for its own account for investment purposes only and not with a view to any distribution of the Purchased Shares in any manner that would violate the securities laws of the United States or any other jurisdiction. Such Purchaser has been advised and understands that the Purchased Shares have not been registered under the Securities Act, the “blue sky” laws of any jurisdiction or the laws of any other jurisdiction and may be resold only if registered pursuant to the provisions of the Securities Act (or if eligible, pursuant to the provisions of Rule 144 promulgated under the Securities Act or pursuant to another available exemption from the registration requirements of the Securities Act) and in compliance with the restrictions on transfer set forth in the Transaction Documents. Such Purchaser has been advised and understands that the Seller, in selling the Purchased Shares, is relying upon, among other things, the representations and warranties of such Purchaser contained in this ARTICLE V in concluding that such issuance is a “private offering” and is exempt from the registration provisions of the Securities Act.
(f) Rule 144 . Such Purchaser understands that the Purchased Shares must be held indefinitely unless and until the Purchased Shares are registered under the Securities Act or an exemption from registration is available. Such Purchaser has been advised of and is aware of the provisions of Rule 144 promulgated under the Securities Act.
(g) Reliance by the Seller . Such Purchaser understands that the Purchased Shares are being offered and sold in reliance on a transactional exemption from the registration requirements of federal and state securities Laws and that the Seller is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the applicability of such exemptions and the suitability of such Purchaser to acquire the Purchased Shares.
 Section  5.06 Sufficient Funds . Such Purchaser will have available to it at the Closing sufficient funds to enable such Purchaser to pay in full at the Closing the entire amount of such Purchaser’s Funding Obligation in immediately available cash funds.
 Section  5.07 No Prohibited Trading . From such time as such Purchaser was first contacted by the Company or any other Person acting on behalf of the Company regarding the transactions contemplated hereby until the first public announcement of the execution of this Agreement, such Purchaser has not (a) offered, sold, contracted to sell, sold any option or contract to purchase, purchased any option or contract to sell, granted any option, right or warrant to purchase, lent, or otherwise transferred or disposed of, directly or indirectly, any of the Purchased Shares or (b) directly or indirectly engaged in any Short Sales or other derivative or hedging transactions with respect to Common Shares, including by means of any swap or other transaction or arrangement that transfers or that is designed to, or that might reasonably be expected to, result in the transfer to
 
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another, in whole or in part, of any of the economic consequences of ownership of any Purchased Shares, regardless of whether any transaction described in this Section 5.07 is to be settled by delivery of Common Shares or other securities, in cash or otherwise. For the avoidance of doubt, nothing in this Section 5.07 shall preclude any actions described in clauses (a) or (b) above following the first public announcement of the execution of this Agreement. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Purchased Shares covered by this Agreement.
 Section  5.08 No General Solicitation . Such Purchaser did not learn of the investment in the Purchased Shares as a result of any general solicitation or general advertising.
 Section  5.09 No Reliance . Such Purchaser hereby acknowledges and agrees that (a) the Agent is acting solely as placement agent in connection with the transactions contemplated hereby and is not acting as underwriter or in any other capacity and is not and shall not be construed as a fiduciary for such Purchaser, the Seller, the Company or any other person or entity in connection with the transactions contemplated hereby, (b) the Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the transactions contemplated hereby, (c) the Agent will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the transactions contemplated hereby or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Seller, the Company or the transactions contemplated hereby, and (d) the Agent shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by such Purchaser, the Seller, the Company or any other person or entity), whether in contract, tort or otherwise, to such Purchaser, or to any person claiming through such Purchaser, in respect of the transactions contemplated hereby.
 Section  5.10 No Side Agreements . Other than any agreements between or among Newco and any of TPG Improv Holdings, L.P. or its Affiliates, there are no binding agreements by, among or between such Purchaser or any of its Affiliates, on the one hand, and the Seller or any of its Affiliates, on the other hand, with respect to the transactions contemplated hereby other than the Transaction Documents.
 ARTICLE VI
COVENANTS
 Section  6.01 Cooperation; Further Assurances . The Seller shall use its commercially reasonable efforts to obtain all approvals and consents required by or necessary to consummate the transactions contemplated by this Agreement and the other Transaction Documents. The Seller agrees to execute and deliver all such documents or instruments, to take all commercially reasonable action and to do all other commercially reasonable things it determines to be necessary, proper or advisable under applicable Laws and regulations or as otherwise reasonably requested by the Purchasers to consummate the transactions contemplated by this Agreement.
 Section  6.02 Pre-Closing Covenants .
(a) Prior to the Merger, the Seller shall comply, and cause the Amneal Business to comply, as applicable, with Sections 5.01(b)(i), (ii) and (vii) of the Business Combination Agreement.
 
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(b) Prior to the Merger, the Seller shall use its reasonable best efforts to enforce its rights under, Sections 5.01(a)(i), (ii), (iii) and (vii) of the Business Combination Agreement and Section 5.2 (and including registration of resale of the Purchased Shares) of the Stockholders Agreement.
 Section  6.03 Integration . The Seller and the Company shall not, and shall use their respective commercially reasonable efforts to ensure that no Affiliate of the Seller or the Company shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that will be integrated with the offer or sale of the Purchased Shares in a manner that would require the registration under the Securities Act of the sale of the Purchased Shares to the Purchasers, or that will be integrated with the offer or sale of the Purchased Shares for purposes of the rules and regulations of any trading market such that it would require stockholder approval prior to the closing of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction..
 Section  6.04 Company Joinder . The Seller shall, concurrently with and conditioned upon the Closing, cause the Company to execute a joinder to this Agreement substantially in the form attached hereto as Exhibit B whereby the Company shall be bound by the obligations, agreements and acknowledgements of the Company and of the Seller with respect to the Company, the Company Entities and the Company’s Subsidiaries hereunder and jointly bound by the Seller’s obligations, agreements and acknowledgments hereunder, mutatis mutandis ; provided that the Seller shall continue to be bound by such obligations, agreements and acknowledgements of the Seller.
 Section  6.05 Company Lock-Up . The Seller shall, concurrently with and conditioned upon the Closing, cause the Company to execute the Company Lock-Up.
 ARTICLE VII
INDEMNIFICATION, COSTS AND EXPENSES
 Section  7.01 Indemnification by the Seller and the Company . The Seller (solely with respect to its representations in Article III) and the Company (solely with respect to its representations in Article IV) each agrees to indemnify (with respect to Section 7.01(a)), the Seller agrees to indemnify (with respect to Section 7.01(b)) and the Company agrees to indemnify (with respect to Section 7.01(c)), each Purchaser and its Affiliates and Representatives (collectively, “ Purchaser Related Parties ”) from costs, losses, liabilities, damages or expenses of any kind or nature whatsoever, and hold each of them harmless against, any and all actions, suits, proceedings (including any investigations, litigation or inquiries), demands and causes of action, and, in connection therewith, promptly upon demand, pay or reimburse each of them for all costs, losses, liabilities, damages, or expenses of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them), whether or not involving a Third-Party Claim, as a result of, arising out of, or in any way related to (a) the failure of any of the representations or warranties made by the Seller (subject to the limitations set forth in the parentheticals above) or the Company (subject to the limitations set forth in the parentheticals above) contained herein to be true and correct in all material respects (other than those representations and warranties contained in Section 3.01, Section 3.02, Section 3.07(a), Section 3.07(b), Section 3.07(c), Section 3.07(d), Section 3.08, Section 3.09, Section 4.01, Section 4.02, Section 4.13(a), Section 4.13(b), Section 4.13(c) or Section 4.17 or other representations and warranties that are qualified by materiality or Material Adverse Effect, which, in each case, shall be true and correct in all respects) when made and as of the Closing Date (except for any representations and warranties made as of a specific date, which shall be required to be true and correct as of such date only), (b) the breach of any covenants of the Seller contained herein or (c) the breach of any of the covenants of the Company contained herein; provided that, in the case of the immediately preceding clause (a), such claim for indemnification is made prior to the expiration of the survival period of such representation or warranty; provided , further , that for purposes of determining when an indemnification claim has been made, the
 
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date upon which a Purchaser Related Party shall have given notice (stating in reasonable detail the basis of the claim for indemnification to the extent known) to the Seller and, as applicable, the Company shall constitute the date upon which such claim has been made; and provided , further , that the aggregate liability of the Seller and the Company to each Purchaser pursuant to this Section 7.01 shall not be greater in amount than such Purchaser’s Funding Obligation, and the aggregate liability of the Seller and the Company to all Purchasers pursuant to this Section 7.01 shall not exceed the Total Funding Obligation. No Purchaser Related Party shall be entitled to recover special, indirect, incidental, consequential, exemplary, lost profits, speculative or punitive damages under this Section 7.01; provided , however , that such limitation shall not prevent any Purchaser Related Party from recovering under this Section 7.01 for any such damages to the extent that such damages are in the form of diminution in value or are payable to a third party in connection with any Third Party Claims.
 Section 7.02 Indemnification Procedure .
(a) A claim for indemnification for any matter not involving a Third-Party Claim may be asserted by notice to the party from whom indemnification is sought; provided , however , that failure to so notify the indemnifying party shall not preclude the indemnified party from any indemnification which it may claim in accordance with this ARTICLE VII, except as otherwise provided in Section 7.01.
(b) Promptly after any Purchaser Related Party (hereinafter, the “ Indemnified Party ”) has received notice of any indemnifiable claim hereunder, or the commencement of any action, suit or proceeding by a third person, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement (each a “ Third-Party Claim ”), the Indemnified Party shall give the indemnitors hereunder (collectively, the “ Indemnifying Party ”) written notice of such Third-Party Claim, but failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it may have to such Indemnified Party hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure. Such notice shall state the nature and the basis of such Third-Party Claim to the extent then known. The Indemnifying Party shall have the right to defend and settle, at its own expense and by its own counsel who shall be reasonably acceptable to the Indemnified Party, any such matter as long as the Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party undertakes to defend or settle, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all commercially reasonable respects in the defense thereof and the settlement thereof. Such cooperation shall include, but shall not be limited to, furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control. Such cooperation of the Indemnified Party shall be at the cost of the Indemnifying Party. After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability; provided , however , that the Indemnified Party shall be entitled (i) at its expense, to participate in the defense of such asserted liability and the negotiations of the settlement thereof and (ii) if (A) the Indemnifying Party has failed to assume the defense or employ counsel reasonably acceptable to the Indemnified Party or (B) if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party or if the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of the Indemnifying Party, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Indemnifying Party as incurred. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not settle any indemnified claim without the consent of the Indemnified Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, and does not include any admission of wrongdoing or malfeasance by, the Indemnified Party.
 
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 Section  7.03 Tax Matters . All indemnification payments under this ARTICLE VII shall be treated as adjustments to the applicable Purchaser’s Funding Obligation for Tax purposes except as otherwise required by applicable Law.
 ARTICLE VIII
TERMINATION
 Section  8.01 Termination . This Agreement may be terminated at any time prior to the Closing:
(a) by mutual written consent of the Seller and a Purchaser, with respect to itself but not any other Purchaser;
(b) by written notice from either the Seller or a Purchaser, with respect to itself but not any other Purchaser, if any Governmental Authority with lawful jurisdiction shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the transactions contemplated by the Transaction Documents and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by written notice from either the Seller or a Purchaser, with respect to itself but not any other Purchaser, if the Business Combination Agreement is terminated for any reason or is amended in a manner which makes the conditions in Section 2.04(c) or Section 2.05(b) impossible to satisfy; or
(d) by written notice from a Purchaser, with respect to itself but not any other Purchaser, if the Closing does not occur by 11:59 p.m. New York time on the Drop-Dead Date; provided , however , that no party may terminate this Agreement pursuant to this Section 8.01(d) if such party is, at the time of providing such written notice, in breach of any of its obligations under this Agreement in a manner that would cause a condition set forth in Section 2.04(c) or Section 2.05(b) (as applicable) not to be satisfied.
 Section  8.02 Certain Effects of Termination . In the event that this Agreement is terminated pursuant to Section 8.01, this Agreement shall become null and void and have no further force or effect, but the parties shall not be released from any liability arising from or in connection with any breach hereof occurring prior to such termination.
 ARTICLE IX
MISCELLANEOUS
 Section  9.01 Expenses . All costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with the Transaction Documents and the transactions contemplated thereby shall be paid by the party incurring such costs and expenses.
 Section  9.02 Interpretation . Article, Section, Schedule and Exhibit references in this Agreement are references to the corresponding Article, Section, Schedule or Exhibit to this Agreement, unless otherwise specified. All Exhibits and Schedules to this Agreement are hereby incorporated and made a part hereof as if set forth in full herein and are an integral part of this Agreement. All references to instruments, documents, Contracts and agreements are references to such instruments, documents, Contracts and agreements as the same may be amended, supplemented and otherwise modified from time to time, unless otherwise specified. The word “including” shall mean “including but not limited to” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. Any reference in this Agreement to “$” shall mean U.S. dollars. Whenever any determination, consent or approval is to be made or given by any party to this Agreement, such action shall be in such party’s sole discretion, unless otherwise
 
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specified in this Agreement. If any provision in the Transaction Documents is held to be illegal, invalid, not binding or unenforceable, (a) such provision shall be fully severable and the Transaction Documents shall be construed and enforced as if such illegal, invalid, not binding or unenforceable provision had never comprised a part of the Transaction Documents, and the remaining provisions shall remain in full force and effect, and (b) the parties hereto shall negotiate in good faith to modify the Transaction Documents so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to the Transaction Documents, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day. Any words imparting the singular number only shall include the plural and vice versa. The words such as “herein,” “hereinafter,” “hereof” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. Except where context requires otherwise, the word “or” shall be inclusive. The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement.
 Section 9.03 Massachusetts Business Trust.
(a) A copy of the Agreement and Declaration of Trust of Janus Investment Fund is on file with the Secretary of State of the Commonwealth of Massachusetts and notice is hereby given that this Agreement is executed on behalf of the trustees of the Trust or any affiliate thereof as trustees and not individually and that the obligations of this Agreement are not binding on any of the trustees, officers or stockholders of the Trust or any affiliate thereof individually but are binding only upon such investor or any affiliate thereof and it assets and property.
(b) A copy of the Agreement and Declaration of Trust of each Fidelity Purchaser or any affiliate thereof is on file with the Secretary of State of the Commonwealth of Massachusetts and notice is hereby given that this Agreement is executed on behalf of the trustees of such Fidelity Purchaser or any affiliate thereof as trustees and not individually and that the obligations of this Agreement are not binding on any of the trustees, officers or stockholders of such Fidelity Purchaser or any affiliate thereof individually but are binding only upon such Fidelity Purchaser or any affiliate thereof and its assets and property.
 Section  9.04 Survival of Provisions . The representations and warranties set forth in Section 3.01, Section 3.02, Section 3.07(a), Section 3.07(b), Section 3.07(c), Section 3.07(d), Section 3.08, Section 4.01, Section 4.02, Section 4.13(a), Section 4.13(b), Section 4.13(c), Section 4.17, Section 5.01, Section 5.02, Section 5.04, Section 5.04, Section 5.05, Section 5.07, Section 5.08 and Section 5.09 hereunder shall survive the execution and delivery of this Agreement indefinitely and the other representations and warranties set forth herein shall survive for a period of six (6) months following the Closing Date, regardless of any investigation made by or on behalf of the Seller or the Purchasers. The covenants made in this Agreement or any other Transaction Document shall survive the Closing and remain operative and in full force and effect regardless of acceptance of any of the Purchased Shares and payment therefor and repayment, conversion or repurchase thereof. Regardless of any purported general termination of this Agreement, the provisions of ARTICLE VII and all indemnification rights and obligations of the Seller and the Purchasers thereunder, and this ARTICLE IX shall remain operative and in full force and effect as between the Seller (and, as applicable following the delivery of the Company Joinder, the Company) and each Purchaser, unless the Seller (and, as applicable following the delivery of the Company Joinder, the Company) and the applicable Purchaser execute a writing that expressly terminates such rights and obligations as between the Seller (and, as applicable following the delivery of the Company Joinder, the Company) and such Purchaser.
 Section 9.05 No Waiver: Modifications in Writing .
(a) Delay . No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy
 
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preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to a party at law or in equity or otherwise.
(b) Specific Waiver; Amendment . Except as otherwise provided herein or as specifically provided otherwise in any other Transaction Document with respect thereto, no amendment, waiver, consent, modification or termination of any provision of any Transaction Document shall be effective unless signed by (i) before Closing, each of the parties thereto affected by such amendment, waiver, consent, modification or termination and (ii) after Closing, the Seller (if affected by such amendment, waiver, consent, modification or termination), the Company (if affected by such amendment, waiver, consent, modification or termination) and the Purchasers holding a two-thirds majority of the Purchased Shares then held by the Purchasers; provided that (A) any amendment, waiver, consent, modification or termination pursuant to clause (ii) shall not apply with respect to any Purchaser without the written consent of such Purchaser unless such amendment or waiver applies to all Purchasers in the same fashion and (B) no consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents unless the same consideration is also offered to all of the parties to the Transaction Documents (for clarification purposes, this clause (B) constitutes a separate right granted to each Purchaser by the Seller and negotiated separately by each Purchaser, and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Purchased Shares or otherwise). Any amendment, supplement or modification of or to any provision of any Transaction Document, any waiver of any provision of any Transaction Document and any consent to any departure by the Seller, the Company or any Purchaser from the terms of any provision of any Transaction Document shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement, no notice to or demand on the Seller, the Company or any Purchaser in any case shall entitle the Seller, the Company or such Purchaser to any other or further notice or demand in similar or other circumstances. Any investigation by or on behalf of any party shall not be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant or agreement contained herein.
 Section  9.06 Binding Effect . This Agreement shall be binding upon the Seller, each of the Purchasers (and, following the delivery of the Company Joinder, the Company) and their respective successors and permitted assigns. Except as expressly provided in this Agreement, this Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors and permitted assigns.
 Section  9.07 Publicity . Except as set forth below, no public release or announcement concerning the transactions contemplated hereby shall be issued by the Seller or the Purchasers without the prior consent of the Seller (in the case of a release or announcement by the Purchasers) or the Purchasers (in the case of a release or announcement by the Seller) (which consents shall not be unreasonably withheld), except as such release or announcement may be required by law or the applicable rules or regulations of any securities exchange or securities market, in which case the Seller or the Purchasers, as the case may be, shall allow the Purchasers or the Seller, as applicable, to the extent reasonably practicable in the circumstances, reasonable time to comment on such release or announcement in advance of such issuance. The parties acknowledge that (i) except as may otherwise be agreed separately between the Seller and any Purchaser, as of 9:30 a.m. (New York time) on October 17, 2017, no Purchaser shall be in possession of any material, nonpublic information received from the Seller or the Company or any of their respective officers, directors, employees or agents (including the Agent), with respect to the transactions contemplated hereby (including, without limitation, information about the Merger and information contained in the Investor Presentation), and (ii) prior to such time the Seller or the Company shall issue a press release or make a filing with the SEC disclosing any material information required to comply with the preceding clause (i). The Seller shall not, and shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents, not to, provide any Purchaser with any such material, nonpublic information regarding the Company or any of the Company Entities from and after the filing of the press release without the express written consent of such Purchaser. Notwithstanding the foregoing, neither the
 
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Seller nor the Company shall publicly disclose the name of any Purchaser or any Affiliate or investment adviser of any Purchaser, or include the name of any Purchaser or any Affiliate or investment adviser of any Purchaser in any press release or in any filing with the SEC (other than a Registration Statement) or any regulatory agency or the NYSE, without the prior written consent of such Purchaser, except (i) as required by the federal securities law in connection with (A) any registration statement contemplated by the Registration Rights Agreement and (B) the filing of final Transaction Documents with the SEC and (ii) to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, by law, at the request of the staff of the Commission or regulatory agency or under NYSE regulations, in which case the Company shall (to the extent practical and legally permissible) provide the Purchasers with prior written notice of such disclosure permitted under this subclause (ii).
 Section  9.08 Communications . All notices and demands provided for hereunder shall be in writing and shall be given by registered or certified mail, return receipt requested, telecopy, electronic mail, air courier guaranteeing overnight delivery or personal delivery to the following addresses:
(a) If to the Purchasers, to the addresses set forth on Schedule A .
(b) If to the Seller, to:
Amneal Pharmaceuticals LLC
400 Crossing Boulevard Third Floor
Bridgewater, New Jersey 08807
Telephone: (908) 947-3137
Facsimile: (908) 947-3144
Attention: Sheldon Hirt, Senior Vice President, General Counsel
Email: shirt@amneal.com
and
Tarsadia Investments, LLC
620 Newport Center Drive, 14th Floor
Newport Beach, California 92660
Telephone: (949) 610-8022
Facsimile: (949) 610-8222
Attention: Edward Coss
Email: edc@tarsadia.com
with a copy to (which shall not constitute notice):
Latham & Watkins
885 Third Avenue
New York, New York 10022
Telephone: (212) 906-1200
Facsimile: (212) 751-4864
Attention: Wesley C. Holmes
Email: wesley.holmes@lw.com
or to such other address as the Seller or the Purchasers may designate in writing. All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; upon actual receipt if sent by certified or registered mail, return receipt requested, or regular mail, if mailed; upon actual receipt of the facsimile, if sent via facsimile; when sent, if sent by electronic mail prior to 5:00 pm New York time on a Business Day, or on the next succeeding Business Day, if not; and upon actual receipt when delivered to an air courier guaranteeing overnight delivery.
 Section  9.09 Removal of Legend . In connection with a sale of Purchased Shares by a Purchaser in reliance on Rule 144 promulgated under the Securities Act, the applicable Purchaser or its broker shall deliver to the
 
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Company a broker representation letter providing to the Company the information required under Rule 144 to determine that the sale of such Purchased Shares is made in compliance with Rule 144 promulgated under the Securities Act, including, as may be appropriate, a certification that the Purchaser is not an Affiliate of the Company (as defined in Rule 144 promulgated under the Securities Act) and a certification as to the length of time that such securities have been held. Upon receipt of such representation letter, the Company shall, and the Seller shall within two days cause the Company to, remove the notation of a restrictive legend in such Purchaser’s book-entry account maintained by the Company, including the legend referred to in Section 5.05(d), and the Company shall bear all costs associated with the removal of such legend in the Company’s books. At such time as a registration statement with respect to the Purchased Shares has become effective, or such Purchased Shares have been held by any Purchaser for more than one year where such Purchaser is not, and has not been in the preceding three months, an affiliate of the Company (as defined in Rule 144 promulgated under the Securities Act), if the book-entry account of such Purchaser still bears the notation of the restrictive legend referred to in Section 5.05, the Seller and the Company each agree, upon request of the Purchaser or its permitted assignee, to take all steps necessary to promptly effect the removal of the legend described in Section 5.05, and the Company shall bear all costs associated with the removal of such legend in the Company’s books, regardless of whether the request is made in connection with a sale or otherwise, so long as such Purchaser or its permitted assignee provides to the Company the information required under Rule 144 (or other applicable exemptions) to determine that the legend is no longer required under the Securities Act or applicable state Laws, including (if there is no such registration statement) a certification that the holder is not an Affiliate of the Company (as defined in Rule 144 promulgated under the Securities Act) and to consent to the notation of an appropriate restriction, and a certification as to the length of time such securities have been held. The Company shall cooperate with each Purchaser to effect the removal of the legend referred to in Section 5.05 at any time such legend is no longer appropriate.
 Section  9.10 Entire Agreement . This Agreement, the other Transaction Documents, the Confidentiality Agreements and the other agreements and documents referred to herein are intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to in this Agreement, the other Transaction Documents or the Confidentiality Agreements with respect to the rights granted by the Seller or any of its Affiliates or the Purchasers or any of their respective Affiliates. This Agreement, the other Transaction Documents or the Confidentiality Agreements and the other agreements and documents referred to herein or therein supersede all prior agreements and understandings among the parties with respect to such subject matter.
 Section  9.11 Governing Law: Submission to Jurisdiction . This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement), will be construed in accordance with and governed by the Laws of the State of New York without regard to principles of conflicts of laws that would result in the application of the law of any other jurisdiction. Any action against any party relating to the foregoing shall be brought in any federal or state court of competent jurisdiction located within the State of New York, and the parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of any federal or state court located within the State of New York over any such action. The parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
 Section  9.12 Waiver of Jury Trial . THE PARTIES TO THIS AGREEMENT EACH HEREBY WAIVES, AND AGREES TO CAUSE ITS AFFILIATES TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
 
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(A) ARISING UNDER THIS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
 Section  9.13 Specific Performance . Each party hereto hereby acknowledges and agrees that the rights of each party to consummate the transactions contemplated hereby are special, unique and of extraordinary character and that, if any party violates or fails or refuses to perform any covenant or agreement made by it herein, the non-breaching party may be without an adequate remedy at law. If any party violates or fails or refuses to perform any covenant or agreement made by such party herein, the non-breaching party subject to the terms hereof and in addition to any remedy at law for damages or other relief, may (at any time prior to the valid termination of this Agreement pursuant to ARTICLE VIII) institute and prosecute an action in any court of competent jurisdiction to enforce specific performance of such covenant or agreement or seek any other equitable relief.
 Section 9.14 No Recourse Against Others .
(a) All claims, obligations, liabilities or causes of action (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with or relate in any manner to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement), may be made only against (and are expressly limited to) the Seller and the Purchasers and, following execution and delivery of the Company Joinder, the Company. No Person other than the Seller or the Purchasers and, following execution and delivery of the Company Joinder, the Company, including no member, partner, stockholder, Affiliate or Representative thereof, nor the Agent, nor any member, partner, stockholder, Affiliate or Representative of any of the foregoing, shall have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations or liabilities arising under, out of, in connection with or related in any manner to this Agreement or based on, in respect of or by reason of this Agreement or its negotiation, execution, performance or breach; and, to the maximum extent permitted by Law, each of the Seller, the Company and the Purchasers hereby waives and releases all such liabilities, claims, causes of action and obligations against any such third Person.
(b) Without limiting the foregoing, to the maximum extent permitted by Law, (i) each of the Seller, the Company and the Purchasers hereby waives and releases any and all rights, claims, demands or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of the other or otherwise impose liability of the other on any third Person in respect of the transactions contemplated hereby, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization or otherwise; and (ii) each of the Seller, the Company and the Purchasers disclaims any reliance upon any third Person with respect to the performance of this Agreement or any representation or warranty made in, in connection with or as an inducement to this Agreement.
(c) Each Purchaser’s liability under this Agreement shall be capped at such Purchaser’s Funding Obligation.
 Section  9.15 Assignment; No Third-Party Beneficiaries . Each Purchaser may assign this Agreement and any or all of its rights and interests hereunder to one or more of its Affiliates or designate one or more of its Affiliates to perform its obligations hereunder, in each case, so long as (a) such Purchaser is not relieved of any
 
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liability or obligations hereunder, (b) each Purchaser may assign this Agreement and any or all of its rights and interest hereunder to any purchaser of all or substantially all its assets or designate such purchaser to perform its obligations hereunder and (c) any of the Indemnified Parties may collaterally assign any or all of its rights and obligations hereunder to any provider of debt financing to it or any of its Affiliates. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person, other than the Seller, the Purchasers and, following execution and delivery of the Company Joinder, the Company and, for purposes of Section 9.13 only, any member, partner, stockholder, Affiliate or Representative of the Seller, the Company or the Purchasers, or any member, partner, stockholder, Affiliate or Representative of any of the foregoing, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, the Agent is a third-party beneficiary of, and may rely on, the representations and warranties of each Purchaser contained in Section 5.05, Section 5.08 and Section 5.09.
 Section  9.16 Execution in Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.
 Section  9.17 Certain Adjustments . Notwithstanding anything to the contrary in this Agreement, the Common Share Offering Price shall be reduced by the per share amount of any dividend (other than a dividend payable solely in Common Shares) declared with respect to the Common Shares by the Company for which the record date occurs on or after the date hereof but before Closing. The Common Share Offering Price and number of Common Shares to be purchased by a Purchaser hereunder shall be adjusted to reflect any stock split, stock dividend, reverse stock split, or share combination for which the record date occurs after the date hereof and prior to Closing.
[ Signature Page Follows ]
 
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IN WITNESS WHEREOF, the parties hereto execute this Agreement, effective as of the date first above written.

AMNEAL HOLDINGS, LLC	
		
By:	 	 	
	 	Name:	
	 	Title:	

 
[Signature Page to Purchase Agreement]
 
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PURCHASERS:	
	
[ ● ]	
		
By:    	 	[●]	
			
	 	By:    	 	 	
	 		 	Name:	
	 		 	Title:	
	
[ ● ]	
		
By:	 	[ ● ]	
			
	 	By:	 	 	
	 		 	Name:	
	 		 	Title:	
[ ● ]	
		
By:	 	[ ● ]	
			
	 	By:	 	 	
	 		 	Name:	
	 		 	Title:	

[Signature Page to Purchase Agreement]
 
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Exhibit B
STOCKHOLDERS AGREEMENT

Exhibit C
AMENDED AND RESTATED HOLDCO CHARTER

Exhibit D
TAX RECEIVABLE AGREEMENT

Exhibit E
RESTATED AMNEAL LLC OPERATING AGREEMENT

Exhibit 3.1
 FORM OF RESTATED CERTIFICATE OF INCORPORATION
OF
AMNEAL PHARMACEUTICALS, INC.
It is hereby certified that:
1. The present name of the corporation (hereinafter called the “ Corporation ”) is ATLAS HOLDINGS, INC. The Certificate of Incorporation of the Corporation was originally filed under the name Atlas Holdings, Inc. with the Secretary of State of the State of Delaware on October 4, 2017.
2. This Restated Certificate of Incorporation, which integrates and restates and also further amends the provisions of the Corporation’s Certificate of Incorporation, has been duly adopted in accordance with the provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware.
3. The Certificate of Incorporation is hereby amended, integrated and restated to read in its entirety as follows:
FIRST: NAME
The name of the corporation is AMNEAL PHARMACEUTICALS, INC. (hereinafter called the “ Corporation ”).
SECOND: REGISTERED OFFICE AND AGENT
The registered office of the Corporation is to be located at 251 Little Falls Drive, Wilmington, Delaware, County of New Castle, 19808. The name of its registered agent at that address is the Corporation Service Company.
THIRD: PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity, without limitation, for which a corporation may be organized under the General Corporation Law of the State of Delaware (the “ DGCL ”).
FOURTH: CAPITAL STOCK
Section 1. Authorization.
(a) The total number of shares of all classes of stock which the Corporation shall have the authority to issue is One Billion Two Hundred and Twenty Million (1,220,000,000) shares, consisting of (i) One Billion Two Hundred Eighteen Million (1,218,000,000) shares of Common Stock, $.01 par value per share (the “ Common Stock ”), of which Nine Hundred Million (900,000,000) are designated as Class A Common Stock (“ Class A Common Stock ”), Three Hundred Million (300,000,000) are designated as Class B Common Stock (“ Class B Common Stock ”) and Eighteen Million (18,000,000) are designated as Class B-1 Common Stock (“ Class B-1 Common Stock ”) and (ii) Two Million (2,000,000) shares designated preferred stock, $.01 par value per share (the “ Preferred Stock ”).
(b) The Preferred Stock may be issued in any number of series by the Board of Directors of the Corporation (the “ Board ”) pursuant to this ARTICLE FOURTH and ARTICLE SIXTH.
 
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FIFTH: COMMON STOCK
Section 1. Common Stock; Identical Rights . Except as expressly provided otherwise in this ARTICLE FIFTH or as required by law, all shares of Common Stock shall be identical and shall entitle the holders thereof to the same rights and privileges.
Section 2. Ranking . The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by such rights of the holders of any series of Preferred Stock as may be designated by the Board upon any issuance of any series of Preferred Stock.
Section 3. Dividends . Subject to applicable law and any preferential or other rights of the holders of any outstanding shares of Preferred Stock, the Board at any time and from time to time may declare and pay dividends on the outstanding shares of Class A Common Stock and Class B-1 Common Stock, on a pari passu basis, out of funds legally available for the payment of dividends. When, as and if such dividends are declared by the Corporation’s Board , whether payable in cash, property, or securities of the Corporation, the holders of Class A Common Stock and Class B-1 Common Stock shall be entitled to share equally therein, on a pari passu basis, in accordance with the number of shares of Class A Common Stock and Class B-1 Common Stock held by each such holder. Dividends shall not be declared or paid on the Class B Common Stock.
Section 4. Liquidation Rights . Upon any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of the Corporation, after payment to all creditors of the Corporation of the full amounts to which they shall be entitled and subject to any preferential or other rights of the holders of any outstanding shares of Preferred Stock, the holders of Class A Common Stock and Class B-1 Common Stock shall be entitled to share equally therein, on a pari passu basis, in accordance with the number of shares of Class A Common Stock and Class B-1 Common Stock held by each such holder, in all remaining assets of the Corporation available for distribution among the stockholders of the Corporation, whether such assets are capital, surplus or earnings. The holders of shares of Class B Common Stock, as such, shall not be entitled to receive any assets of the Corporation in the event of any liquidation, dissolution or winding-up of the affairs of the Corporation.
For the purposes of this Section 4, neither the consolidation or merger of the Corporation with or into any other corporation or corporations, nor the sale, lease, exchange or transfer by the Corporation of all or any part of its assets, nor the reduction of the capital stock of the Corporation, shall be deemed to be a voluntary or involuntary liquidation, dissolution, or winding-up of the Corporation.
Section 5. Voting .
 
 	a)	Class A Common Stock and Class B Common Stock . Each holder of Class A Common Stock and Class B Common Stock shall be entitled to one vote for each share of Class A Common Stock or Class B Common Stock held of record by such holder. Except as required by law or as otherwise expressly provided for in this Restated Certificate of Incorporation, the holders of Class A Common Stock and Class B Common Stock shall vote together as a single class on all matters upon which such holders are entitled to vote.	
 
 	b)	Class B-1 Common Stock . Except as required by law or as otherwise expressly provided for in ARTICLE SEVENTH, Section 1, shares of Class B-1 Common Stock shall have no voting rights and no holder thereof shall be entitled to vote on any matter.	
Section 6. Restrictions on Transfer and Issuances .
 
 	a)	No shares of Class B Common Stock may be issued except to a holder of Common Units or its Affiliates (other than the Corporation or any subsidiary of the Corporation that is a holder of Common Units), such that after such issuance of Class B Common Stock such holder (together with its Affiliates) holds an identical number of Common Units and shares of Class B Common Stock unless otherwise provided in the LLC Agreement (as defined below).	
 
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 	b)	No shares of Class B Common Stock may be transferred by the holder thereof except (i) for no consideration to the Corporation, upon which transfer of such shares shall, to the full extent permitted by law, automatically be retired or (ii) in accordance with the terms of the Stockholders Agreement (as defined herein) and the Third Amended and Restated Limited Liability Company Agreement of Amneal Pharmaceuticals LLC, dated as of [●], as the same may be further amended and/or restated from time to time (the “ LLC Agreement ”), copies of which will be provided to any stockholder of the Corporation upon written request therefor. Any stock certificates representing shares of Class B Common Stock shall include a legend referencing the transfer restrictions set forth herein. As used in this Restated Certificate of Incorporation, “ Common Units ” has the meaning assigned to such term in the LLC Agreement.	
Section 7. Conversion of Class B-1 Common Stock .
 
 	a)	Voluntary Conversion. Subject to ARTICLE FIFTH, Section 7(g), each share of Class B-1 Common Stock may be automatically converted into one share of Class A Common Stock (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) if the holder of such share of Class B-1 Common Stock approves or consents to such conversion.	
 
 	b)	Mandatory Conversion by the Corporation . Following the earlier to occur of (i) the first anniversary of the effective date of this Restated Certificate of Incorporation and (ii) such time as TPG Improv Holdings, L.P., a Delaware limited partnership (“ TPG ”), or any of its Affiliates elects a Class B-1 Director or otherwise designates a director to serve on the Board, the Corporation shall have the right, upon notice to the holder thereof, to automatically convert all shares of Class B-1 Common Stock into an equal number of shares of Class A Common Stock (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like).	
 
 	c)	Mandatory Conversion upon Transfer . If, at any time on or after the effective date of this Restated Certificate of Incorporation, any share of Class B-1 Common Stock shall not be owned, beneficially or of record, by TPG or any of its Affiliates or Amneal or any of its Affiliates, such share of Class B-1 Common Stock shall be automatically converted into one share of Class A Common Stock (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like).	
 
 	d)	Mechanics of Conversion . Upon any conversion of shares of Class B-1 Common Stock into shares of Class A Common Stock pursuant to this Restated Certificate of Incorporation, the holder shall surrender any certificate or certificates representing the shares of Class B-1 Common Stock being converted, duly endorsed, at the office of the Corporation or of any transfer agent for such stock, and shall give written notice to the Corporation at its principal corporate office stating the name or names in which the certificate or certificates representing the shares of Class A Common Stock issued upon conversion of such holder’s shares of Class B-1 Common Stock are to be issued. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder, or to the nominee or nominees of such holder, a certificate or certificates representing the number of shares of Class A Common Stock to which such holder shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately upon the occurrence of any event described in ARTICLE FIFTH, Sections 7(a), 7(b) and 7(c), and the person or persons entitled to receive the shares of Class A Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Class A Common Stock as of such date.	
 
 	e)	Reservation of Shares upon Conversion . The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock, the number of shares of Class A Common Stock as shall from time to time be sufficient to effect a conversion of all outstanding shares of Class B-1 Common Stock (as adjusted for any stock splits, stock	
 
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 	dividends, combinations, subdivisions, recapitalizations or the like). The Corporation covenants that all shares of Class A Common Stock issued upon any such conversion will, upon issuance, be validly issued, fully paid and non-assessable.	
 
 	f)	Status of Converted Stock . In the event any shares of Class B-1 Common Stock shall be converted into shares of Class A Common Stock pursuant to this ARTICLE FIFTH, Section 7, the shares of Class B-1 Common Stock so converted shall be retired and shall not be reissued by the Corporation.	
 
 	g)	Maximum Percentage for Voluntary Conversion . The Corporation shall not effect a voluntary conversion of a holder’s shares of Class B-1 Common Stock into shares of Class A Common Stock pursuant to ARTICLE FIFTH, Section 7(a), and such holder shall not have the right to voluntarily convert their shares of Class B-1 Common Stock into shares of Class A Common Stock pursuant to such section, to the extent that after giving effect to such conversion, such person (together with such person’s Affiliates), would beneficially own in excess of 9.9% of the shares of Class A Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of shares of Class A Common Stock beneficially owned by such person and its Affiliates shall include the number of shares of Class A Common Stock issuable upon conversion of the Class B-1 Common Stock with respect to which the determination of such sentence is being made, but shall exclude shares of Class A Common Stock that would be issuable upon (x) exercise of the remaining, unconverted shares of Class B-1 Common Stock beneficially owned by such person and its Affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation beneficially owned by such person and its Affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this ARTICLE FIFTH, Section 6(g), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”).	
SIXTH: ADDITIONAL SERIES OF PREFERRED STOCK
Section 1. Designation of Additional Series of Preferred Stock . Shares of Preferred Stock may be issued from time to time in one or more series. The Board is hereby expressly authorized, by resolution or resolutions thereof, to provide for, designate and issue, out of the 2,000,000 authorized but undesignated and unissued shares of Preferred Stock, one or more series of Preferred Stock, subject to the terms and conditions set forth herein. Before any shares of any such series are issued, the Board shall fix, and hereby is expressly empowered to fix, by resolution or resolutions and by filing a certificate of designation pursuant to the DGCL with the Secretary of State of the State of Delaware setting forth such resolution or resolutions, the designations and the powers, preferences, privileges and rights and qualifications, limitation and restrictions of such series, including but not limited to, the following:
 
 	a)	the designation of such series, the number of shares to constitute such series and the stated value thereof, if any, if different from the par value thereof;	
 
 	b)	whether the shares of such series shall have voting rights or powers, in addition to any voting rights required by law, and, if so, the terms of such voting rights or powers, which may be full or limited;	
 
 	c)	the dividends, if any, payable on such series, whether any such dividends shall be cumulative, and, if so, from what dates, the conditions and dates upon which such dividends shall be payable, and the preference or relation which such dividends shall bear to the dividends payable on any shares of stock or any other class or any other series of this class;	
 
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 	d)	whether the shares of such series shall be subject to redemption by the Corporation and, if so, the times, prices and other conditions of such redemption;	
 
 	e)	the amount or amounts payable upon shares of such series upon, and the rights of the holders of such series in, the voluntary or involuntary liquidation, dissolution or winding up, or upon any distribution of the assets, of the Corporation;	
 
 	f)	whether the shares of such series shall be subject to the operation of a retirement or sinking fund and, if so, the extent to and manner in which any such retirement or sinking fund shall be applied to the purchase or redemption of the shares of such series for retirement or other corporate purposes and the terms and provisions relative to the operation thereof;	
 
 	g)	whether the shares of such series shall be convertible into, or exchangeable for, shares of capital stock of any other class or any other series of this class or any other securities and, if so, the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same, and any other terms and condition or exchange;	
 
 	h)	the limitations and restrictions, if any, to be effective while any shares of such series are outstanding upon the payment of dividends or the making of other distributions on, and upon the purchase, redemption or other acquisition by the Corporation of, the Common Stock or shares of capital stock of any other class or any other series of this class;	
 
 	i)	the conditions or restrictions, if any, to be effective while any shares of such series are outstanding upon the creation of indebtedness of the Corporation upon the issue of any additional stock, including additional shares of such series or of any other series of this class or of any other class; and	
 
 	j)	any other powers, designations, preferences and relative, participating, optional or other special rights, and any qualifications, limitations or restrictions thereof.	
The powers, designations, preferences and relative, participating, optional or other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.
The Board is hereby expressly authorized from time to time to increase (but not above the total number of authorized shares of Preferred Stock) or decrease (but not below the number of shares thereof then outstanding) the number of shares of capital stock of any series of Preferred Stock designated as any one or more Series of Preferred Stock pursuant to this ARTICLE SIXTH.
Notwithstanding the foregoing, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Restated Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Restated Certificate of Incorporation (including any Certificate of Designations relating to any series of Preferred Stock) or pursuant to the DGCL.
SEVENTH: ELECTION OF DIRECTORS
Section 1 . Class B-1 Director . Until the earlier of (i) such time as TPG, together with its Affiliates, beneficially owns (as interpreted under Rule 13d-3 of the Exchange Act) less than 4% of the outstanding shares of Common Stock or (ii) such time as no shares of Class B-1 Common Stock remain outstanding, the holders of Class B-1 Common Stock, acting as a separate class, shall be entitled to vote (or provide written consent) to elect one director to the Board (such director and any successor thereof elected or appointed by the holders of
 
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Class B-1 Common Stock, the “ Class B-1 Director ”); provided, that such Class B-1 Director must meet the general qualifications of a member of the Board and be approved by the Nominating Committee of the Board. Thereafter, subject to the final sentence of this ARTICLE SEVENTH, Section 1, the holders of Class B-1 Common Stock, acting as a separate class, shall be entitled to remove or replace the Class B-1 Director provided, that any successor Class B-1 Director must meet the general qualifications of a member of the Board as determined by the Nominating Committee of the Board. Notwithstanding the foregoing, if for any period greater than 20 consecutive days TPG, together with its Affiliates, beneficially owns less than 4% of the outstanding shares of Common Stock, (A) TPG shall promptly cause the then-serving Class B-1 Director, if any, to offer his or her resignation to the Corporation and (B) all rights of the holders of Class B-1 Common Stock under this ARTICLE SEVENTH, Section 1 shall expire.
Section 2 . Other Directors . Subject to (a) the rights of the holders of Class B-1 Common Stock to elect, remove or replace the Class B-1 Director and (b) any rights of holders of any series of Preferred Stock to elect directors pursuant to this Restated Certificate of Incorporation or any Certificate of Designations, the holders of Class A Common Stock and Class B Common Stock, voting together as a single class, shall be entitled to vote to elect, remove or replace all other directors to the Board.
Section 3 . Written Ballots . The election of directors need not be by written ballot unless the Bylaws so provide.
EIGHTH: AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Restated Certificate of Incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power. Subject to applicable law and to the Stockholders Agreement, and subject to the rights of the holders of any series of Preferred Stock, the affirmative vote of the holders of a majority of the voting power of the issued and outstanding shares of capital stock of the Corporation entitled to vote thereon shall be required to amend, alter, change or repeal any provision of this Restated Certificate of Incorporation, or to adopt any new provision of this Restated Certificate of Incorporation.
NINTH: AMENDMENT OF BYLAWS
Subject to the Stockholders Agreement, the Board is authorized and empowered from time to time in its discretion to make, alter, amend or repeal the Bylaws of the Corporation by the affirmative vote of not less than a majority of the Board, except as such power may be restricted or limited by the DGCL.
TENTH: FORUM
Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if such court does not have jurisdiction, the Superior Court of the State of Delaware, or, if such other court does not have jurisdiction, the United States District Court for the District of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, this Restated Certificate of Incorporation (as may be amended, altered, changed or repealed) or the Bylaws or (d) any action asserting a claim governed by the internal affairs doctrine. To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this ARTICLE TENTH.
 
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ELEVENTH: CORPORATE OPPORTUNITIES
Section 1. General . In recognition and anticipation (a) that the Corporation will not be a wholly owned subsidiary of Amneal and that Amneal will be a significant stockholder of the Corporation, (b) that directors, officers and/or employees of Amneal may serve as directors and/or officers of the Corporation, (c) that, subject to any contractual arrangements that may otherwise from time to time be agreed to between Amneal and the Corporation (including the Stockholders Agreement), Amneal engages or may engage in the same, similar or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, (d) that Amneal may have an interest in the same areas of corporate opportunity as the Corporation and Affiliated Companies thereof, and (e) that, as a consequence of the foregoing, it is in the best interests of the Corporation that the respective rights and duties of the Corporation and of Amneal, and the duties of any directors and/or officers of the Corporation who are also directors, officers and/or employees of Amneal, be determined and delineated in respect of any transactions between, or opportunities that may be suitable for both, the Corporation and Affiliated Companies thereof, on the one hand, and Amneal, on the other hand. The sections of this ARTICLE ELEVENTH shall to the fullest extent permitted by law regulate and define the conduct of certain of the business and affairs of the Corporation in relation to Amneal and the conduct of certain affairs of the Corporation as they may involve Amneal and its directors, officers and/or employees, and the power, rights, duties and liabilities of the Corporation and its officers, directors and stockholders in connection therewith. To the fullest extent permitted by law, any person purchasing or otherwise acquiring or holding any shares of capital stock of the Corporation, or any interest therein, shall be deemed to have notice of and to have consented to the provisions of this ARTICLE ELEVENTH.
Section 2. Certain Agreements and Transactions Permitted . The Corporation has entered into the Stockholders Agreement with Amneal, and, subject to the Stockholders Agreement, may from time to time enter into and perform, and cause or permit any Affiliated Company of the Corporation to enter into and perform, one or more agreements (or modifications or supplements to pre-existing agreements) with Amneal pursuant to which the Corporation or an Affiliated Company thereof, on the one hand, and Amneal, on the other hand, agree to engage in transactions of any kind or nature with each other and/or agree to compete, or to refrain from competing or to limit or restrict their competition, with each other, including to allocate and to cause their respective directors, officers and/or employees (including any who are directors, officers and/or employees of both) to allocate opportunities between or to refer opportunities to each other.
Section 3. Corporate Opportunities . Except as otherwise agreed in writing between the Corporation and Amneal, including in the Stockholders Agreement, Amneal shall to the fullest extent permitted by law have no duty to refrain from (a) engaging in the same or similar activities or lines of business as the Corporation or (b) doing business with any client, customer or vendor of the Corporation. Except as otherwise agreed in writing between the Corporation and Amneal, the Corporation to the fullest extent permitted by law renounces any interest or expectancy of the Corporation or any of its Affiliated Companies in, or in being offered an opportunity to participate in, any corporate opportunity presented to Amneal or any Dual Role Person pursuant to Section 122(17) of the DGCL and waives any claim that such business opportunity constituted a corporate opportunity that should have been presented to the Corporation or any Affiliated Company thereof, if, in the case of a corporate opportunity presented to Amneal, Amneal acts in a manner consistent with the following policy: if Amneal is presented with or acquires knowledge of a corporate opportunity, such corporate opportunity shall belong to Amneal unless such opportunity was expressly offered to Amneal in its capacity as a stockholder of the Corporation. In the case of any corporate opportunity in which the Corporation has renounced its interest and expectancy in the previous sentence, Amneal shall to the fullest extent permitted by law not be liable to the Corporation by reason of the fact that Amneal acquires or seeks such corporate opportunity for itself, directs such corporate opportunity to another person, or otherwise does not communicate information regarding such corporate opportunity to the Corporation.
Section 4. Dual Role Persons . To the fullest extent permitted by law, no Dual Role Person who is presented with or acquires knowledge of a corporate opportunity in any capacity (i) shall have any duty to communicate or
 
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offer to the Corporation or any of its Affiliated Companies any corporate opportunity, (ii) shall be prohibited from communicating or offering any corporate opportunity to Amneal or any other person or participating in such corporate opportunity and (iii) to the fullest extent permitted by law, shall have any liability to the Corporation or its stockholders for breach of any fiduciary duty as a stockholder, director or officer of the Corporation, as the case may be, related to such corporate opportunity.
Section 5. Certain Definitions . For purposes of this ARTICLE ELEVENTH, (a) “ Affiliated Company ” in respect of the Corporation shall mean any entity controlled by the Corporation, (b) “ corporate opportunities ” shall include, but not be limited to, business opportunities that the Corporation is financially able to undertake, which are, from their nature, in the line of the Corporation’s business, are of practical advantage to it and are opportunities in which the Corporation, but for Section 3 of this ARTICLE ELEVENTH would have an interest or a reasonable expectancy, and in which, by embracing the opportunities, the self-interest of Amneal or its directors, officers and/or employees will be brought into conflict with that of the Corporation, (c) “ Amneal ” shall mean Amneal Holdings LLC and its Affiliates (other than the Corporation and any entity that is controlled by the Corporation), and (d) “ Dual Role Person ” shall mean any individual who is a director, officer or employee of the Corporation and is also a director, officer or employee of Amneal.
TWELFTH: STOCKHOLDERS AGREEMENT
For so long as that certain Stockholders Agreement, dated as of October 17, 2017, by and among the Corporation and each of the Amneal Group Members (as defined therein), as amended from time to time, a copy of which will be provided to any stockholder of the Corporation upon written request therefor (the “ Stockholders Agreement ”), is in effect, the provisions of the Stockholders Agreement shall be incorporated by reference into the relevant provisions hereof, and such provisions shall be interpreted and applied in a manner consistent with the terms of the Stockholders Agreement.
THIRTEENTH: INDEMNIFICATION, ADVANCEMENT OF EXPENSES AND EXCULPATION
Section 1. Right to Indemnification . The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ proceeding ”) by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person; provided, however, that the Corporation shall not be required to indemnify any director or officer in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against the Corporation or its directors, officers, employees or other agents unless (i) such indemnification is expressly required to be made by applicable law, (ii) the proceeding was authorized by the Board, (iii) such indemnification is provided by the Corporation, in its sole discretion, or (iv) such indemnification is required to be made under Section 3 of this ARTICLE THIRTEENTH, pursuant to the powers vested in the Corporation under the DGCL or any other applicable law.
Section 2. Advancement of Expenses .
 
 	a)	The Corporation shall advance to any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or officer, of the Corporation, or is or was serving at the request of the Corporation as a director or officer of	
 
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 	another corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition of the proceeding, promptly following request therefor, all expenses incurred by any director or officer in defending any such proceeding, provided, however, that if the DGCL requires, an advancement of expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter, an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 2 of this ARTICLE THIRTEENTH or otherwise.	
 
 	b)	Notwithstanding the foregoing, unless otherwise determined pursuant to Section 2 of this ARTICLE THIRTEENTH, no advance shall be made by the Corporation to an executive officer of the Corporation (except by reason of the fact that such executive officer is or was a director of the Corporation in which event this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, if a determination is reasonably and promptly made (i) by a majority vote of directors who were not parties to the proceeding, even if not a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or such directors so direct, by independent legal counsel in a written opinion, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Corporation.	
Section 3. Enforcement . Without the necessity of entering into an express contract, all rights to indemnification and advances to directors and officers under this ARTICLE THIRTEENTH shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between the Corporation and the director or officer. Any right to indemnification or advances granted by this ARTICLE THIRTEENTH to a director or officer shall be enforceable by or on behalf of the person holding such right in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within sixty (60) days of request therefor. The claimant in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting the claim. In connection with any claim for indemnification, the Corporation shall be entitled to raise as a defense to any such action that the claimant has not met the standards of conduct that make it permissible under the DGCL or any other applicable law for the Corporation to indemnify the claimant for the amount claimed. In connection with any claim by an executive officer of the Corporation (except in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such executive officer is or was a director of the Corporation) for advances, the Corporation shall be entitled to raise a defense as to any such action clear and convincing evidence that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Corporation, or with respect to any criminal action or proceeding that such person acted without reasonable cause to believe that his conduct was lawful. Neither the failure of the Corporation (including the Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the DGCL or any other applicable law, nor an actual determination by the Corporation (including the Board, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct. In any suit brought by a director or officer to enforce a right to indemnification or to an advancement of expenses hereunder, the burden of proving that the director or officer is not entitled to be indemnified, or to such advancement of expenses, under this ARTICLE THIRTEENTH or otherwise shall be on the Corporation.
 
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Section 4. Good Faith .
 
 	a)	For purposes of any determination under this ARTICLE THIRTEENTH, a director or executive officer shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, to have had no reasonable cause to believe that his conduct was unlawful, if his action is based on information, opinions, reports and statements, including financial statements and other financial data, in each case prepared or presented by:	
 
 	i.	one or more officers or employees of the Corporation whom the director or executive officer believed to be reliable and competent in the matters presented;	
 
 	ii.	counsel, independent accountants or other persons as to matters which the director or executive officer believed to be within such person’s professional competence; and	
 
 	iii.	with respect to a Director, a committee of the Board upon which such director does not serve, as to matters within such Committee’s designated authority, which committee the director believes to merit confidence; so long as, in each case, the director or executive officer acts without knowledge that would cause such reliance to be unwarranted.	
 
 	b)	The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal proceeding, that he had reasonable cause to believe that his conduct was unlawful.	
 
 	c)	The provisions of this ARTICLE THIRTEENTH shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth by the DGCL.	
Section 5. Non-Exclusivity of Rights . The rights conferred on any person by this ARTICLE THIRTEENTH shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of this Restated Certificate of Incorporation, the Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advances, to the fullest extent not prohibited by the DGCL, or by any other applicable law.
Section 6. Other Indemnification . The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit enterprise.
Section 7. Insurance . The Board may authorize the Corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, member, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this ARTICLE THIRTEENTH or of the DGCL; and the Corporation may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or other similar arrangements) to the full extent authorized or permitted by the DGCL and other applicable law to ensure the payment of such amounts as may become necessary to effect the indemnification as provided in this ARTICLE THIRTEENTH or elsewhere.
 
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Section 8. Definitions . For the purposes of this ARTICLE THIRTEENTH, the following definition shall apply:
 
 	a)	The term “Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, member, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this ARTICLE THIRTEENTH with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued;	
 
 	b)	The term “other enterprises” shall include employee benefit plans;	
 
 	c)	The term “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan;	
 
 	d)	References to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and	
 
 	e)	A person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this ARTICLE THIRTEENTH.	
Section 9. Liability of Directors . No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this, limitation of liability shall not eliminate or limit the liabilities of the directors for any breach of the director’s duty of loyalty to the Corporation or its stockholders, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, under Section 174 of the DGCL, or for any transaction from which the director derived an improper personal benefit; provided, further, that this limitation of liability shall not eliminate or limit the liability of a director for any act or omission occurring prior to the filing of this Restated Certificate of Incorporation.
Section 10. Survival of Rights . The rights conferred on any person by this ARTICLE THIRTEENTH shall continue as to a person who has ceased to be a director, officer, officer, employee or other agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 11. Savings Clause . If this ARTICLE THIRTEENTH or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director and officer to the full extent not prohibited by any applicable portion of this ARTICLE THIRTEENTH that shall not have been invalidated, or by any other applicable law. If this ARTICLE THIRTEENTH shall be invalid due to the application of the indemnification provisions of another jurisdiction, then the Corporation shall indemnify each director and officer to the full extent under any other applicable law.
Section 12. Amendment or Repeal . Any repeal or modification of the provisions of this ARTICLE THIRTEENTH shall only be prospective and shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
 
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FOURTEENTH: CERTAIN DEFINITIONS
Section 1. Except as otherwise provided in this Restated Certificate of Incorporation, the following definitions shall apply to the following terms as used in this Restated Certificate of Incorporation:
 
 	a)	“ Affiliate ” shall mean (1) in respect of Amneal, any Person that, directly or indirectly, is controlled by Amneal, controls Amneal or is under common control with Amneal and shall include any principal, member, director, partner, stockholder, officer, employee or other representative of any of the foregoing (other than the Corporation and any entity that, directly or indirectly, is controlled by the Corporation); (2) in respect of the Corporation, any Person that, directly or indirectly, is controlled by the Corporation and (3) in respect of TPG, any Person that, directly or indirectly, is controlled by TPG or by any Person that controls TPG.	
 
 	b)	“ Amneal ” shall mean Amneal Holdings LLC.	
 
 	c)	“ Person ” shall mean an individual, a firm, a corporation, a partnership, a limited liability company, an association, a joint venture, a joint stock company, a trust, an unincorporated organization or similar company, or any other entity.	
 
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IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate of Incorporation to be executed by its undersigned officer this [    ] day of [            ], 20[    ].

ATLAS HOLDINGS, INC.	
		
By:	 	 	
	 	[        ]
[        ]	
 
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Exhibit 3.2
FORM OF BYLAWS
OF
AMNEAL PHARMACEUTICALS, INC.
(a Delaware corporation)
ARTICLE I
OFFICES
SECTION 1. OFFICES. Amneal Pharmaceuticals, Inc. (the “Corporation”) shall maintain its registered office in the State of Delaware at 251 Little Falls Drive, Wilmington, Delaware, County of New Castle, 19808, and its resident agent at such address is the Corporation Service Company. The Corporation may also have and maintain offices in such other places within or outside of the State of Delaware or elsewhere as the Board of Directors of the Corporation (the “ Board ”) may, from time to time, determine or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2. ANNUAL MEETINGS. Annual meetings of stockholders for the election of directors and for such other business as may properly come before such meeting in accordance with all applicable requirements of these Bylaws and the General Corporation Law of the State of Delaware, as amended from time to time (the “ DGCL ”), shall be held at such place, either within or without the State of Delaware, and at such time and date as shall from time to time be determined by the Board. Any previously scheduled annual meeting of the stockholders may be postponed by action of the Board taken prior to the time previously scheduled for such annual meeting of stockholders. The Board may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication as provided under the DGCL.
SECTION 3. SPECIAL MEETINGS. Special meetings of stockholders, unless otherwise prescribed by the DGCL or the Restated Certificate of Incorporation of the Corporation (as amended from time to time, the “ Certificate ”), may be called by a Co-Chairman of the Board, the Chief Executive Officer or by resolution adopted by a majority of the total number of authorized directors (whether or not there exists any vacancies in previously authorized directorships at the time any such resolution is presented to the Board for adoption). Only such business as is specified in the Corporation’s notice of any such special meeting of stockholders shall come before, and be conducted at, such meeting. A special meeting shall be held at such place, on such date and at such time as shall be fixed by the Board. Any previously scheduled special meeting of the stockholders may be postponed by action of the Board taken prior to the time previously scheduled for such special meeting of stockholders.
SECTION 4. NOTICE OF MEETINGS. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall, unless otherwise provided by law, the Certificate or these Bylaws, be given not less than ten (10) days nor more than sixty (60) days before the date of any such meeting to each stockholder entitled to vote at such meeting, such notice to specify the place, if any, date and hour and, in the case of special meetings, the purpose or purposes of the meeting, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at any such meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the
 
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stockholder at such stockholder’s address as it appears on the records of the corporation. Such notice may be waived in writing, signed by the person entitled to notice thereof or by electronic transmission by such person, either before or after such meeting, and will be waived by any stockholder by his attendance thereat in person, by remote communication, if applicable, or by proxy, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Any stockholder so waiving notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had been given.
SECTION 5. QUORUM. At all meetings of stockholders, except where otherwise provided by statute, by the Certificate, or by these Bylaws, the presence, in person, by remote communication, if applicable, or represented by proxy duly authorized, of the holders of a majority of the issued and outstanding shares of stock entitled to vote thereat shall constitute a quorum for the transaction of business. Where a separate vote by a class, classes or series is required, except where otherwise provided by statute, the Certificate or these Bylaws, a majority in voting power of the outstanding shares of such class, classes or series, present in person, by remote communication, if applicable, or represented by proxy duly authorized, shall constitute a quorum entitled to take action with respect to that vote on that matter. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to time, either by the chairman of the meeting or by vote of the holders of a majority of the shares represented thereat, but no other business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
SECTION 6. VOTING. Unless otherwise provided in the Certificate, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder. The Board, in its discretion, or the chairperson of the meeting of stockholders, in his or her discretion, may require that any votes cast at a meeting of stockholders shall be cast by written ballot. In all matters other than the election of directors, the affirmative vote of the majority in voting power of shares of stock present in person, by remote communication, if applicable, or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders unless a different or minimum vote is required by the Certificate, these Bylaws or the rules and regulations of any stock exchange applicable to the Corporation or its securities, in which case such different or minimum vote shall be the applicable vote on the matter. Each director shall be elected by the affirmative vote of the majority of the votes cast with respect to such director’s election (meaning the number of shares voted “for” a nominee must exceed the number of shares voted “against” such nominee) at any meeting for the election of directors at which a quorum is present; provided that each director shall be elected by a plurality of the votes cast (instead of by votes cast for or against a nominee) at any meeting at which a quorum in present for which the Board determines that the number of nominees exceeds the number of directors to be elected at such election and such determination has not been rescinded by the Board on or prior to the tenth day preceding the date the Corporation first mails its notice of meeting for such meeting to the stockholders (a “ Contested Election ”). In an election other than a Contested Election, stockholders will be given the choice to cast votes “for” or “against” the election of directors or to “abstain” from such vote (with abstentions and broker non-votes not counted as a vote cast “for” or “against” the election of such candidate), and stockholders shall not have the ability to cast any other vote with respect to such election of directors. In a Contested Election, stockholders will be given the choice to cast “for” or “withhold” votes for the election of directors (with abstentions and broker non-votes not counted as a vote cast) and shall not have the ability to cast any other vote with respect to such election of directors.
SECTION 7. INSPECTORS. The Board may, in advance of any meeting of stockholders, appoint one or more inspectors to act at such meeting or any adjournment thereof. If any of the inspectors so appointed shall fail to appear or act, the chairman of the meeting may, or if inspectors shall not have been appointed, the chairman of the meeting shall, appoint one or more inspectors. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. The inspectors shall (a) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of each, (b) ascertain the number of shares represented at the meeting, (c) ascertain the existence of a quorum, (d) ascertain the validity and effect of
 
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proxies, (e) count and tabulate all votes, ballots or consents, (f) determine and retain for a reasonable period a record of the disposition of all challenges made to any determination made by the inspectors, (g) certify the determination of the number of shares represented at the meeting and their count of all votes and ballots, and (h) do such other acts as are proper to conduct the election or vote in accordance with applicable law. On request of the chairman of the meeting, the inspectors shall make a report in writing of any challenge, request or matter determined by them and shall execute a certificate of any fact found by them. No director or candidate for the office of director shall act as an inspector of an election of directors. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors. In determining the validity and counting of all proxies and ballots, the inspectors shall act in accordance with applicable law.
SECTION 8. CONDUCT OF MEETINGS. A Co-Chairman of the Board shall preside at all stockholders’ meetings. In the absence of a Co-Chairman of the Board, the Chief Executive Officer shall preside or, in his or her absence, any officer designated by the Board shall preside. The Secretary, or, in the Secretary’s absence, an Assistant Secretary, or in the absence of both the Secretary and Assistant Secretaries, a person appointed by the chairman of the meeting shall serve as secretary of the meeting. In the event that the Secretary presides at a meeting of the stockholders, an Assistant Secretary shall record the minutes of the meeting. To the maximum extent permitted by law, the Board shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board, if any, the chairman of the meeting shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting and to prescribe such rules, regulations and procedures and take such action as, in the discretion of such chairman, are deemed necessary, appropriate or convenient for the proper conduct of the meeting. Such rules, regulations and procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) establishing an agenda for the meeting and the order for the consideration of the items of business on such agenda; (b) restricting admission to the time set for the commencement of the meeting; (c) limiting attendance at the meeting to stockholders of record of the Corporation entitled to vote at the meeting, their duly authorized proxies or other such persons as the chairman of the meeting may determine; (d) limiting participation at the meeting on any matter to stockholders of record of the Corporation entitled to vote on such matter, their duly authorized proxies or other such persons as the chairman of the meeting may determine to recognize and, as a condition to recognizing any such participant, requiring such participant to provide the chairman of the meeting with evidence of his or her name and affiliation, whether he or she is a stockholder or a proxy for a stockholder, and the class and series and number of shares of each class and series of capital stock of the Corporation which are owned beneficially and/or of record by such stockholder; (e) limiting the time allotted to questions or comments by participants; (f) determining when the polls should be opened and closed for voting; (g) taking such actions as are necessary or appropriate to maintain order, decorum, safety and security at the meeting; (h) removing any stockholder who refuses to comply with meeting procedures, rules or guidelines as established by the chairman of the meeting; and (i) complying with any state and local laws and regulations concerning safety and security. Unless otherwise determined by the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
SECTION 9. LISTS OF STOCKHOLDERS. The Corporation shall prepare, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, showing the address of each stockholder and the number and class of shares registered in the name of each stockholder. Nothing contained in this Section 9 shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a physical location, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any
 
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stockholder who is present. If the meeting is to be held solely by means of remote communications, then the list shall be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section 9 or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
SECTION 10. ACTION WITHOUT A MEETING. Unless otherwise provided by the Certificate, any action required by applicable law to be taken at any annual or special meeting of stockholders, or any action which may be taken at such meetings, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
SECTION 11. ADJOURNMENT. At any meeting of the stockholders of the Corporation, whether annual or special, the chairman of the meeting or the holders of a majority of the votes entitled to be cast by the stockholders who are present in person, by remote communication, if applicable, or represented by proxy may adjourn the meeting from time to time, without notice other than announcement at the meeting of the date, time and place of the adjourned meeting, whether or not a quorum is present. At any such adjourned meeting at which a quorum may be present, any business may be transacted which might have been transacted at the meeting as originally called. If the adjournment is for more than thirty (30) days or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
SECTION 12. NOTICE OF STOCKHOLDER PROPOSALS.
(a) At any annual meeting of the stockholders, only such business (other than nominations of persons for election to the Board which shall be made in accordance with the procedures set forth in Section 17 of these Bylaws) shall be conducted as shall have been properly brought before such meeting. To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise properly brought before the meeting by or at the direction of the Board, or (iii) otherwise properly and timely brought before the meeting by any stockholder of the Corporation in compliance with the notice procedures and other provisions of this Section 12.
(b) For business to be properly brought before an annual meeting by a stockholder, such business must be a proper subject for stockholder action under the DGCL and other applicable law, as determined by a Co-Chairman of the Board or such other person as is presiding over the meeting, and such stockholder (i) must be a stockholder of record on the date of the giving of the notice provided for in this Section 12 and on the record date for the determination of stockholders entitled to vote at such annual meeting, (ii) must be entitled to vote at such annual meeting, and (iii) must comply with the notice procedures set forth in this Section 12. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary.
(c) To be timely, a stockholder’s notice must be delivered to, or mailed and received by, the Secretary of the Corporation (the “ Secretary ”) at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) calendar day, and not later than the close of business on the ninetieth (90th) calendar day, prior to the first anniversary of the immediately preceding year’s annual meeting of stockholders; provided , however , that in the event that no annual meeting was held in the previous year or the annual meeting is called for a date that is more than thirty (30) calendar days earlier or more than sixty (60) calendar days later than such anniversary date, notice by the stockholder in order to be timely must be so
 
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delivered or received not earlier than the close of business on the one hundred twentieth (120 th ) calendar day prior to the date of such annual meeting and not later than the close of business on the later of the ninetieth (90 th ) calendar day prior to the date of such annual meeting or, if the first public disclosure of the date of such annual meeting is less than one hundred (100) calendar days prior to the date of such annual meeting, the tenth (10 th ) calendar day following the day on which public disclosure of the date of such annual meeting is first made by the Corporation. In no event shall any adjournment or postponement of an annual meeting or the public disclosure thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(d) To be in proper written form, a stockholder’s notice to the Secretary shall set forth in writing, as to each matter the stockholder proposes to bring before the meeting, the following: (i) a description of the business desired to be brought before the meeting, including the text of the proposal or business and the text of any resolutions proposed for consideration; (ii) the name and record address, as they appear on the Corporation’s stock ledger, of such stockholder and the name and address of any Stockholder Associated Person; (iii) (A) the class and series and number of shares of each class and series of capital stock of the Corporation which are, directly or indirectly, owned beneficially and/or of record by such stockholder or any Stockholder Associated Person, documentary evidence of such record or beneficial ownership, and the date or dates such shares were acquired and the investment intent at the time such shares were acquired, (B) any Derivative Instrument directly or indirectly owned beneficially by such stockholder or any Stockholder Associated Person and any other direct or indirect right held by such stockholder or any Stockholder Associated Person to profit from, or share in any profit derived from, any increase or decrease in the value of shares of the Corporation, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder or any Stockholder Associated Person has a right to vote any securities of the Corporation, (D) any Short Interest indirectly or directly held by such stockholder or any Stockholder Associated Person in any security issued by the Corporation, (E) any rights to dividends on the shares of the Corporation owned beneficially by such stockholder or any Stockholder Associated Person that are separated or separable from the underlying securities of the Corporation, (F) any proportionate interest in securities of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder or any Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, and (G) any performance-related fees (other than an asset-based fee) that such stockholder or any Stockholder Associated Person is entitled to based on any increase or decrease in the value of securities of the Corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such stockholder’s or any Stockholder Associated Person’s immediate family sharing the same household (which information, in each case, shall be supplemented by such stockholder and any Stockholder Associated Person not later than ten (10) calendar days after the record date for the meeting to disclose such ownership as of the record date); (iv) a description of all arrangements or understandings between such stockholder and/or any Stockholder Associated Person and any other person or persons (naming such person or persons) in connection with the proposal of such business by such stockholder; (v) any material interest of such stockholder or any Stockholder Associated Person in such business, individually or in the aggregate, including any anticipated benefit to such stockholder or any Stockholder Associated Person therefrom; (vi) a representation from such stockholder as to whether the stockholder or any Stockholder Associated Person intends or is part of a group which intends (1) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal and/or (2) otherwise to solicit proxies from stockholders in support of such proposal; (vii) a representation that such stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting, that such stockholder intends to vote such stock at such meeting, and that such stockholder intends to appear at the meeting in person or by proxy to bring such business before such meeting; (viii) whether and the extent to which any agreement, arrangement or understanding has been made, the effect or intent of which is to increase or decrease the voting power of such stockholder or any Stockholder Associated Person with respect to any securities of the Corporation, without regard to whether such transaction is required to be reported on a Schedule 13D or other form in accordance with Section 13(d) of the Exchange Act or any successor provisions thereto and the rules and regulations promulgated thereunder; (ix) in the event that such business includes a proposal to amend these Bylaws, the complete text of the proposed
 
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amendment; and (x) such other information regarding each matter of business to be proposed by such stockholder, regarding the stockholder in his or her capacity as a proponent of a stockholder proposal, or regarding any Stockholder Associated Person, that would be required to be disclosed in a proxy statement or other filings required to be made with the U.S. Securities and Exchange Commission (the “ SEC ”) in connection with the solicitations of proxies for such business pursuant to Section 14 of the Exchange Act (or pursuant to any law or statute replacing such section) and the rules and regulations promulgated thereunder. “ Stockholder Associated Person ” of a stockholder shall include (x) any person controlling, directly or indirectly, or acting in concert with, such stockholder, (y) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder and (z) any person directly or indirectly controlling, controlled by or under common control with such Stockholder Associated Person.
(e) If the information submitted pursuant to this Section 12 by any stockholder proposing business for consideration at an annual meeting shall be inaccurate to any material extent, such information may be deemed not to have been provided in accordance with this Section 12. Upon written request by the Secretary, the Board or any committee thereof, any stockholder proposing business for consideration at an annual meeting shall provide, within seven (7) business days of delivery of such request (or such longer period as may be specified in such request), written verification, satisfactory in the discretion of the Board, any committee thereof or any authorized officer of the Corporation, to demonstrate the accuracy of any information submitted by the stockholder pursuant to this Section 12. If a stockholder fails to provide such written verification within such period, the information as to which written verification was requested may be deemed not to have been provided in accordance with this Section 12.
(f) For purposes of these Bylaws, “ public disclosure ” shall be deemed to include a disclosure made in a (i) press release reported by the Dow Jones News Service, Reuters Information Service, Associated Press or any comparable or successor national news wire service, or (ii) in a document filed by the Corporation with the SEC pursuant to Section 13, 14 or 15(d) of the Exchange Act or any successor provisions thereto.
(g) No business (other than nominations of persons for election to the Board which shall be made in accordance with the procedures set forth in Section 17 of these Bylaws) shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 12.
(h) Except as otherwise required by the DGCL and other applicable law, the Certificate or these Bylaws, a Co-Chairman of the Board or other person presiding at an annual meeting shall have the power and duty (i) to determine whether any business proposed to be brought before the annual meeting was properly brought before the meeting in accordance with the procedures set forth in this Section 12, including whether the stockholder or any Stockholder Associated Person on whose behalf the proposal is made, solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s proposal in compliance with such stockholder’s representation as required by this Section 12, and (ii) if any proposed business was not brought in compliance with this Section 12, to declare that such proposal is defective and shall be disregarded.
(i) In addition to the provisions of this Section 12, a stockholder shall also comply with all applicable requirements of the DGCL, other applicable law and the Exchange Act, and the rules and regulations thereunder, with respect to the matters set forth herein, provided , however , that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to stockholder proposals to be considered pursuant to Section 12(a)(iii) of these Bylaws.
(j) Nothing in this Section 12 shall be deemed to affect any rights (i) of stockholders to request the inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act, or (ii) of the holders of any series of preferred stock to elect directors pursuant to any applicable provision of the Certificate.
 
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(k) Notwithstanding anything in this Section 12 to the contrary, a stockholder intending to nominate one or more persons for election as a director at any meeting of stockholders must comply with Section 17 of these Bylaws for any such nomination to be properly brought before such meeting.
(l) Notwithstanding anything in this Section 12 to the contrary, the requirements of this Section 12 shall not apply to the exercise by Amneal of its rights to designate persons for nomination for election to the Board pursuant to the Stockholders Agreement, dated as of October 17, 2017 (as amended from time to time, the “ Stockholders Agreement ”), among the Corporation and each of the Amneal Group Members (as defined therein). For purposes of these Bylaws, the term “Amneal” is used as defined in Article Fourteenth of the Certificate.
(m) Notwithstanding anything in this Section 12 to the contrary, the requirements of this Section 12 shall not apply to the exercise by the holders of Class B-1 Common Stock of the Corporation of their rights to designate a person for nomination for election to the Board pursuant to the Certificate.
(n) Notwithstanding anything in these Bylaws to the contrary, if a stockholder who has submitted a written notice of intention to propose business at a meeting of stockholders (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present the business, such business shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 12, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
ARTICLE III
BOARD OF DIRECTORS
SECTION 13. POWERS. The property, business and affairs of the Corporation shall be managed by, or under the direction of, the Board. The Board may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute, regulation, the Certificate or these Bylaws directed or required to be exercised or done by the stockholders.
SECTION 14. NUMBER. The authorized number of directors shall be no less than one nor more than thirteen. Within the foregoing limits and subject to the provisions of the Stockholders Agreement, the number of directors shall be fixed from time to time by resolution adopted by the Board.
SECTION 15. TERM. The Board shall be elected by the stockholders at their annual meeting, and each director shall be elected to serve for the term of one year and until his successor shall be elected and qualify or until his earlier death, resignation or removal. No decrease in the number of directors constituting the Board shall shorten the term of any incumbent director.
SECTION 16. QUALIFICATIONS.
(a) Each director shall be at least 21 years of age. Directors need not be stockholders of the Corporation.
(b) Each director and nominee for election as a director of the Corporation must deliver to the Secretary at the principal office of the Corporation a written questionnaire with respect to the background and qualifications of such person (which questionnaire shall be provided by the Secretary upon written request and approved from time to time by the Board or its Nominating and Corporate Governance Committee) and a written representation and agreement (in the form provided by the Secretary upon written request) (the “ Prospective Director Agreement ”). The Prospective Director Agreement (i) shall provide that such person (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or
 
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assurance to, any person or entity as to how such person, if such person is at the time a director or is subsequently elected as a director of the Corporation, will act or vote on any issue or question (a “ Voting Commitment ”) that has not been disclosed to the Corporation, or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if such person is at the time a director or is subsequently elected as a director of the Corporation, with such person’s duties as a director under applicable law, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and (C) would be in compliance, if elected as a director of the Corporation, and will, if such person is at the time a director or is subsequently elected as a director of the Corporation, comply with, all applicable corporate governance, conflicts of interest, confidentiality, corporate opportunities, securities ownership and stock trading policies, and other policies and guidelines of the Corporation (copies of which shall be provided by the Secretary upon written request), and (ii) shall include, if such person is at the time a director or is subsequently elected as a director of the Corporation, such person’s irrevocable resignation as a director if such person is found by a court of competent jurisdiction to have breached the Prospective Director Agreement in any material respect.
SECTION 17. NOTICE OF NOMINATIONS FOR DIRECTORS.
(a) Annual Meetings of Stockholders .
(1) Nominations of persons for election to the Board at an annual meeting of stockholders may be made (A) by or at the direction of the Board or a committee appointed by the Board, or (B) by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 17(a), on the record date for the determination of the stockholders entitled to vote at such annual meeting of stockholders and at the time of such annual meeting of stockholders, (ii) who is entitled to vote at the annual meeting of stockholders, and (iii) who complies with the notice procedures set forth in this Section 17(a) as to such nominations, including, but not limited to, the procedures regarding such notice’s timeliness and required form.
(2) For a stockholder’s notice of nomination of persons for election to the Board at an annual meeting of stockholders to be brought before an annual meeting by a stockholder pursuant to Section 17(a)(1)(B) of these Bylaws, the stockholder must have given timely notice thereof, in proper written form, to the Secretary. To be considered timely, a stockholder’s notice of nomination must be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) calendar day, and not later than the close of business on the ninetieth (90th) calendar day, prior to the first anniversary of the immediately preceding year’s annual meeting; provided , however , that in the event that no annual meeting was held in the previous year or the annual meeting is called for a date that is more than thirty (30) calendar days earlier or more than sixty (60) calendar days later than such anniversary date, notice by the stockholder in order to be timely must be so delivered or received not earlier than the close of business on the one hundred twentieth (120 th ) calendar day prior to the date of such annual meeting and not later than the close of business on the later of the ninetieth (90 th ) calendar day prior to the date of such annual meeting or, if the first public disclosure of the date of such annual meeting is less than one hundred (100) calendar days prior to the date of such annual meeting, the tenth (10th) calendar day following the day on which public disclosure of the date of such annual meeting is first made by the Corporation. In no event shall any adjournment or postponement of an annual meeting or the public disclosure thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
To be in proper written form, a stockholder’s notice of nomination to the Secretary (whether given pursuant to this Section 17(a) or Section 17(b) of these Bylaws) shall set forth in writing the following: (a) as to each person whom the stockholder proposes to nominate for election or reelection as a director (i) the name, age, business address and residence address of such person; (ii) the principal occupation and employment of such person; (iii) the class and series and number of shares of each class and series of capital stock of the Corporation
 
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which are owned beneficially or of record by such person (which information shall be supplemented not later than ten (10) calendar days after the record date for the meeting to disclose such ownership as of the record date); (iv) such person’s executed written consent to being named in the Corporation’s proxy statement as a nominee and to serving as a director if elected; (v) all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made with the SEC in connection with the solicitation of proxies for the election of directors in a contested election pursuant to Section 14 of the Exchange Act (or pursuant to any law or statute replacing such section), and the rules and regulations promulgated thereunder; (vi) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such person being nominated, on the one hand, and the stockholder and any Stockholder Associated Person, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Item 404 promulgated under Regulation S-K of the Exchange Act if the stockholder making the nomination and any Stockholder Associated Person were the “registrant” for purposes of such rule and the person being nominated were a director or executive officer of such registrant; and (vii) the information, questionnaire and agreement required under Section 16 of these Bylaws; and (b) as to the stockholder giving the notice (i) the name and record address of such stockholder, as they appear on the Corporation’s stock ledger, and the name and address of any Stockholder Associated Person; (ii) (A) the class and series and number of shares of each class and series of capital stock of the Corporation which are, directly or indirectly, owned beneficially and/or of record by such stockholder or any Stockholder Associated Person, documentary evidence of such record or beneficial ownership, and the date or dates such shares were acquired and the investment intent at the time such shares were acquired, (B) any Derivative Instrument directly or indirectly owned beneficially by such stockholder or any Stockholder Associated Person and any other direct or indirect right held by such stockholder or any Stockholder Associated Person to profit from, or share in any profit derived from, any increase or decrease in the value of shares of the Corporation, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder or any Stockholder Associated Person has a right to vote any shares of any security of the Corporation, (D) any Short Interest indirectly or directly held by such stockholder or any Stockholder Associated Person in any security issued by the Corporation, (E) any rights to dividends on the shares of the Corporation owned beneficially by such stockholder or any Stockholder Associated Person that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder or any Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, and (G) any performance-related fees (other than an asset-based fee) that such stockholder or any Stockholder Associated Person is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such stockholder’s or any Stockholder Associated Person’s immediate family sharing the same household (which information shall, in each case, be supplemented by such stockholder and any Stockholder Associated Person not later than ten (10) calendar days after the record date for the meeting to disclose such ownership as of the record date); (iii) a description of all arrangements or understandings between such stockholder or any Stockholder Associated Person and each proposed nominee and any other person or persons (naming such person or persons) pursuant to which the nomination(s) are to be made by such stockholder; (iv) any material interest of such stockholder or any Stockholder Associated Person in the election of such proposed nominee, individually or in the aggregate, including any anticipated benefit to the stockholder or any Stockholder Associated Person therefrom; (v) a representation that such stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and that such stockholder intends to appear in person or by proxy at the meeting to nominate the person or persons named in its notice; (vi) a representation from the stockholder as to whether the stockholder or any Stockholder Associated Person intends or is part of a group which intends (A) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to elect the person proposed as a nominee and/or (B) otherwise to solicit proxies from stockholders in support of the election of such person; (vii) whether and the extent to which any agreement, arrangement or understanding has been made, the effect or intent of which is to increase or decrease the voting power of such stockholder or such Stockholder Associated Person with respect to any shares of the capital stock of the Corporation, without regard
 
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to whether such transaction is required to be reported on a Schedule 13D or other form in accordance with Section 13(d) of the Exchange Act or any successor provisions thereto and the rules and regulations promulgated thereunder; and (viii) any other information relating to such stockholder and any Stockholder Associated Person that would be required to be disclosed in a proxy statement or other filings required to be made with the SEC in connection with solicitations of proxies for the election of directors in a contested election pursuant to Section 14 of the Exchange Act (or pursuant to any law or statute replacing such section) and the rules and regulations promulgated thereunder. In addition to the information required above, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.
(3) Notwithstanding anything in this Section 17 to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting of the stockholders is increased and there is no public disclosure by the Corporation, naming all of the nominees for directors or specifying the size of the increased Board, at least ninety (90) calendar days prior to the first anniversary of the date of the immediately preceding year’s annual meeting, a stockholder’s notice required by this Section 17 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10 th ) calendar day following the day on which such public disclosure is first made by the Corporation.
(b) Special Meetings of Stockholders . Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected (i) pursuant to the Corporation’s notice of meeting, (ii) by or at the direction of the Board, or (iii) provided that the Board, has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who (A) is a stockholder of record at the time of giving of notice provided for in this Section 17(b), (B) is a stockholder of record on the record date for the determination of the stockholders entitled to vote at such meeting, (C) is a stockholder of record at the time of such meeting, (D) is entitled to vote at such meeting, and (E) complies with the notice procedures set forth in this Section 17(b) as to such nomination. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the proper form of stockholder’s notice required by Section 17(a)(2) of these Bylaws with respect to any nomination shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120 th ) calendar day prior to the date of such special meeting and not later than the close of business on the later of the ninetieth (90 th ) calendar day prior to the date of such special meeting or, if the first public disclosure made by the Corporation of the date of such special meeting is less than one hundred (100) days prior to the date of such special meeting, not later than the tenth (10 th ) calendar day following the day on which public disclosure is first made of the date of the special meeting at which directors are to be elected. In no event shall any adjournment or postponement of a special meeting or the public disclosure thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(c) General .
(1) If the information submitted pursuant to this Section 17 by any stockholder proposing a nominee for election as a director at a meeting of stockholders shall be inaccurate to any material extent, such information may be deemed not to have been provided in accordance with this Section 17. Upon written request by the Secretary, the Board or any committee thereof, any stockholder proposing a nominee for election as a director at a meeting shall provide, within seven (7) business days of delivery of such request (or such longer period as may be specified in such request), written verification, satisfactory in the discretion of the Board, any committee thereof or any authorized officer of the Corporation, to demonstrate the accuracy of any information submitted
 
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by the stockholder pursuant to this Section 17. If a stockholder fails to provide such written verification within such period, the information as to which written verification was requested may be deemed not to have been provided in accordance with this Section 17.
(2) No person shall be eligible for election as a director of the Corporation at any meeting of stockholders unless nominated in accordance with the procedures set forth in this Section 17.
(3) Notwithstanding anything in these Bylaws to the contrary, if a stockholder who has submitted a written notice of intention to propose a nominee for election as a director at a meeting of stockholders (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present the nomination, such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 17, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(4) Except as otherwise required by the DGCL and other applicable law, the Certificate or these Bylaws, a Co-Chairman of the Board or other person presiding at the meeting shall have the power and duty (A) to determine whether any nomination proposed to be brought before the meeting was properly made in accordance with the procedures set forth in this Section 17, including whether the stockholder or any Stockholder Associated Person on whose behalf the nomination is made, solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of the election of such stockholder’s nominee(s) in compliance with such stockholder’s representation as required by this Section 17, and (B) if any proposed nomination was not made in compliance with this Section 17, to declare that such nomination is defective and shall be disregarded.
(5) In addition to the provisions of this Section 17, a stockholder shall also comply with all applicable requirements of the DGCL, other applicable law and the Exchange Act, and the rules and regulations thereunder, with respect to the matters set forth herein, provided , however , that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the applicable requirements for nominations by stockholders to be considered pursuant to Section 17(a) or Section 17(b) of these Bylaws.
(6) Nothing in this Section 17 shall be deemed to affect any rights of the holders of any series of Preferred Stock, if and to the extent provided for, under applicable law, the Certificate or these Bylaws.
(7) Notwithstanding anything in this Section 17 to the contrary, the requirements of this Section 17 shall not apply to the exercise by Amneal of its rights to designate persons for nomination for election to the Board pursuant to the Stockholders Agreement.
(8) Notwithstanding anything in this Section 17 to the contrary, the requirements of this Section 17 shall not apply to the exercise by the holders of Class B-1 Common Stock of the Corporation of their rights to designate a person for nomination for election to the Board pursuant to the Certificate.
SECTION 18. RESIGNATIONS. Any director may resign at any time by giving written notice thereof to the Board, a Co-Chairman of the Board, the Chief Executive Officer or the Secretary. Such resignation shall take effect at the time specified therein or, if the time is not specified therein, upon receipt thereof; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
SECTION 19. REMOVAL. Subject to the provisions of the Stockholders Agreement and the Certificate, any director or the entire Board may be removed, either for or without cause, at any time, by the affirmative vote of the holders of a majority of the shares entitled to vote at an election of directors at any annual or special meeting of the stockholders called for that purpose. For purposes of this Section 19, “cause” shall mean (a) a
 
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final conviction of a felony involving moral turpitude, or (b) willful misconduct that is materially and demonstrably injurious economically to the Corporation. For purposes of this definition of “cause,” no act, or failure to act, by a director shall be considered “willful” unless committed in bad faith and without a reasonable belief that the act or failure to act was in the best interest of the Corporation or any affiliate of the Corporation. “Cause” shall not exist unless and until the Corporation has delivered to the director a written notice of the director’s failure to act that constitutes “cause” and, if cure is possible, such director shall not have cured such act or omission within ninety (90) days after the delivery of such notice.
SECTION 20. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Subject to the provisions of the Stockholders Agreement and the Certificate, vacancies in the Board, whether resulting from death, resignation, disqualification, removal or other causes, and any newly created directorships resulting from any increase in the number of directors, shall, unless the Board determines by resolution that any such vacancy or newly created directorships shall be filled by the stockholders, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum, or by a sole remaining director. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been elected and qualified, except in the event of his or her earlier death, resignation, disqualification or removal.
SECTION 21. MEETINGS.
(a) Organizational Meetings . The newly elected directors shall hold their first meeting to organize the Corporation, elect officers and transact any other business which may properly come before the meeting. An annual organizational meeting of the Board shall be held immediately after each annual meeting of the stockholders, or at such time and place as may be noticed for the meeting.
(b) Regular Meetings . Regular meetings of the Board may be held without notice at such places and times as shall be determined from time to time by resolution of the directors.
(c) Special Meetings and Notice to Directors . Special meetings of the Board shall be called by a Co-Chairman of the Board, the Chief Executive Officer or by the Secretary on the written request of any director with at least forty eight (48) hours’ notice to each director and shall be held at such place as may be determined by the person or persons calling the meeting or as shall be stated in the notice of the meeting. Any notice to directors may be given by telecopier, telephone or other means of electronic transmission.
SECTION 22. QUORUM, VOTING AND ADJOURNMENT. A majority of the total number of directors or any committee thereof, but not less than one (1), shall constitute a quorum for the transaction of business. Subject to the provisions of the Stockholders Agreement, the affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board, unless a different vote is required by applicable law, the Certificate or these Bylaws. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting to another time and place. Notice of such adjourned meeting need not be given if the time and place of such adjourned meeting are announced at the meeting so adjourned.
SECTION 23. COMMITTEES. Subject to the provisions of the Stockholders Agreement, the Board may designate one or more committees, including but not limited to an Executive Committee and an Audit Committee, each such committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee to replace any absent or disqualified member at any meeting of the committee. Subject to the provisions of the Stockholders Agreement, any such committee, to the extent provided in the resolution of the Board and to the extent permitted by applicable law, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority to amend the Certificate, adopt an agreement of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s properties and assets, recommend to the stockholders a dissolution of the Corporation or a
 
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revocation of a dissolution or to amend these Bylaws. Unless a resolution of the Board expressly provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock of the Corporation. All committees of the Board shall report their proceedings to the Board when required.
SECTION 24. ACTION WITHOUT A MEETING. Unless otherwise restricted by the Certificate or these Bylaws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or any committee thereof consent thereto in writing, or by electronic transmission, and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
SECTION 25. COMPENSATION. Directors shall be entitled to such compensation for their services as may be approved by the Board, including, if so approved, by resolution of the Board, a fixed sum and expenses of attendance, if any, for attendance at each regular or special meeting of the Board and at any meeting of a committee of the Board. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent, employee, or otherwise and receiving compensation therefor.
SECTION 26. MEETING BY ELECTRONIC COMMUNICATIONS EQUIPMENT. Any member of the Board, or of any committee thereof, may participate in a meeting by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
ARTICLE IV
OFFICERS
SECTION 27. OFFICERS. The officers of the Corporation shall be two Co-Chairmen of the Board, a Chief Executive Officer, a President, a Chief Operating Officer, a Chief Financial Officer, one or more Vice-Presidents, a Secretary, a Treasurer and such other officers and assistant officers as the Board may from time to time deem advisable and appoint (which persons so appointed shall be deemed “officers” of the Corporation). Except for the Co-Chairmen, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer and Secretary, the Board may refrain from filling any of the said offices at any time and from time to time. Any number of offices may be held by the same person. The following officers shall be elected by the Board at the time, in the manner and for such terms as the Board from time to time shall determine: Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer and Secretary. The Chief Executive Officer may appoint such other officers and assistant officers as he may deem advisable provided such officers or assistant officers have a title no higher than Vice-President, who shall hold office for such periods as the Chief Executive Officer shall determine.
SECTION 28. CO-CHAIRMAN OF THE BOARD. Each Co-Chairman of the Board shall be a member of the Board and shall preside at all meetings of the Board and of the stockholders. In addition, each Co-Chairman of the Board shall have such powers and perform such other duties as from time to time may be assigned to him by the Board.
SECTION 29. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall have general supervision of all of the departments and business of the Corporation; he or she shall prescribe the duties of the other officers and employees and see to the proper performance thereof. The Chief Executive Officer shall be responsible for having all orders and resolutions of the Board carried into effect. The Chief Executive Officer shall execute on behalf of the Corporation and may affix or cause to be affixed a seal to all authorized documents and instruments requiring such execution, except to the extent that signing and execution thereof shall have been delegated to
 
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some other officer or agent of the Corporation by the Board or by the Chief Executive Officer. The Chief Executive Officer shall be a member of the Board. In the absence or disability of a Co-Chairman of the Board or his or her refusal to act, the Chief Executive Officer shall preside at meetings of the Board. In general, the Chief Executive Officer shall perform all the duties and exercise all the powers and authorities incident to his or her office or as prescribed by the Board.
SECTION 30. PRESIDENT. The President shall perform such duties as customarily pertain to the office of President or are prescribed by the Board or Chief Executive Officer. In the absence, disability or refusal of the Chief Executive Officer to act, or the vacancy of such office, the President shall perform the duties and have the powers and authorities of the Chief Executive Officer.
SECTION 31. CHIEF OPERATING OFFICER. The Chief Operating Officer shall perform such duties as customarily pertain to the office of Chief Operating Officer or are prescribed by the Board, Chief Executive Officer or President. In the absence, disability or refusal of the President to act, or the vacancy of such office, the Chief Operating Officer shall perform the duties and have the powers and authorities of the President.
SECTION 32. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall be the principal financial and accounting officer of the Corporation and shall have such other duties as may be prescribed by the Board, Chief Executive Officer or President.
SECTION 33. VICE PRESIDENTS. Each Vice President, if any are elected, of whom one or more may be designated an Executive and/or Senior Vice President, shall have such powers, shall perform such duties and shall be subject to such supervision as may be prescribed by the Board, the Chief Executive Officer, the President or the Chief Operating Officer. In the event of the absence or disability of the Chief Executive Officer or the President or their refusal to act, the Vice-Presidents, in the order of their rank, and within the same rank in the order of their seniority, shall perform the duties and have the powers and authorities of the Chief Executive Officer and President, except to the extent inconsistent with applicable law.
SECTION 34. TREASURER. The Treasurer, if one is elected, shall have custody of the corporate funds, securities, evidences of indebtedness and other valuables of the Corporation and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation. He shall deposit all moneys and other valuables in the name and to the credit of the Corporation in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Corporation, taking proper vouchers therefor. He shall render to the Chief Executive Officer and the Board, upon their request, a report of the financial condition of the Corporation. If required by the Board, he shall give the Corporation a bond for the faithful discharge of his duties in such amount and with such surety as the Board shall prescribe. The Treasurer shall have such further powers and perform such other duties incident to the office of Treasurer as from time to time are assigned to him by the Board.
SECTION 35. SECRETARY. The Secretary shall be the Chief Administrative Officer of the Corporation and shall: (a) cause minutes of all meetings of the stockholders and directors to be recorded and kept; (b) cause all notices required by these Bylaws or otherwise to be given properly; (c) see that the minute books, stock books, and other nonfinancial books, records and papers of the Corporation are kept properly; and (d) cause all reports, statements, returns, certificates and other documents to be prepared and filed when and as required. The Secretary shall keep a seal of the Corporation, and, when authorized by the Board, Chief Executive Officer or the President, cause the seal to be affixed to any documents and instruments requiring it. The Secretary shall act under the supervision of the Chief Executive Officer and President or such other officer as the Chief Executive Officer or President may designate. The Secretary shall have such further powers and perform such other duties as prescribed from time to time by the Board, Chief Executive Officer, President or such other supervising officer as the Chief Executive Officer or President may designate.
SECTION 36. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Each Assistant Treasurer and each Assistant Secretary, if any are elected, shall be vested with all the powers and shall perform all the
 
14

duties of the Treasurer and Secretary, respectively, in the absence or disability of such officer, unless or until the Board shall otherwise determine. In addition, Assistant Treasurers and Assistant Secretaries shall have such powers and shall perform such duties as shall be assigned to them by the Board.
SECTION 37. DELEGATION OF DUTIES. In the absence, disability or refusal of any officer to exercise and perform his duties, the Board may delegate to another officer such powers or duties.
SECTION 38. RESIGNATION. Any officer may resign at any time by giving notice in writing or by electronic transmission to the Board or to the President or to the Secretary. Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall not be necessary to make it effective. Any resignation shall be without prejudice to the rights, if any, of the Corporation under any contract with the resigning officer.
SECTION 39. REMOVAL. Subject to the provisions of the Stockholders Agreement, any officer may be removed from office at any time, either with or without cause, by the affirmative vote of a majority of the directors in office at the time, or by the unanimous written consent of the directors in office at the time, or by any duly authorized committee or, with respect to any officer other than the Chairman of the Board (if the Chairman of the Board is designated as an officer of the corporation by the Board), by the Chief Executive Officer or by other superior officers upon whom such power of removal may have been conferred by the Board.
SECTION 40. VACANCIES. Subject to the provisions of the Stockholders Agreement, the Board shall have power to fill vacancies occurring in any office.
ARTICLE V
STOCK
SECTION 41. CERTIFICATES OF STOCK. The shares of the Corporation shall be represented by certificates provided that the Board may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be uncertificated shares. Every holder of stock of the Corporation represented by certificates shall be entitled to have a certificate, in such form as may be prescribed by applicable law and by the Board, representing the number of shares held by such holder registered in certificate form, and signed by, or in the name of the Corporation by two authorized officers of the Corporation including, but not limited to, the Chairman of the Board, the Chief Executive Officer, the President, a Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, certifying the number and class of shares of stock in the Corporation owned by him. Any or all of the signatures on the certificate may be a facsimile. The Board shall have the power to appoint one or more transfer agents and/or registrars for the transfer or registration of certificates of stock of any class, and may require stock certificates to be countersigned or registered by one or more of such transfer agents and/or registrars.
SECTION 42. TRANSFER OF SHARES.
(a) Shares of stock of the Corporation shall be transferable in the manner prescribed by law, the Certificate, the Stockholders Agreement and in these Bylaws. Shares of stock of the Corporation shall be transferable upon its books by the holders thereof, in person or by their duly authorized attorneys or legal representatives, upon surrender to the Corporation by delivery thereof to the person in charge of the stock and transfer books and ledgers. Such certificates shall be cancelled and new certificates shall thereupon be issued. A record shall be made of each transfer. Whenever any transfer of shares shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are presented, both the transferor and transferee request the Corporation to do so.
 
15

(b) The Board shall have power and authority to make such rules and regulations as it may deem necessary or proper concerning the issue, transfer and registration of certificates for shares of stock of the Corporation.
SECTION 43. LOST CERTIFICATES. A new certificate of stock may be issued in the place of any certificate previously issued by the Corporation, alleged to have to have been lost, stolen, destroyed or mutilated, and the Board may, in their discretion, require the owner of such lost, stolen, destroyed or mutilated certificate, or his legal representative, to give the Corporation a bond, in such sum as the Board may direct, not exceeding double the value of the stock, in order to indemnify the Corporation against any claims that may be made against it in connection therewith.
SECTION 44. STOCKHOLDERS OF RECORD. The Corporation shall be entitled to treat the holder of record of any share or shares of its capital stock as the holder thereof, in fact, and shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the DGCL or other applicable law.
SECTION 45. RECORD DATE.
(a) Record Date for Meetings of Stockholders . For the purpose of determining the stockholders entitled to notice of, or to vote at, any meeting of stockholders or any adjournment thereof, the directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at any meeting of stockholders shall apply to any adjournment of the meeting; provided , however , that the Board may fix a new record date for the adjourned meeting.
(b) Record Date for Payments of Dividends and Distributions . In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion, or exchange of stock or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
(c) Record Date for Corporate Actions by Written Consent .
(i) The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall be as fixed by the Board or as otherwise established under this Section 46(c). Any person seeking to have the stockholders authorize or take corporate action by written consent without a meeting shall, by written notice addressed to the Secretary and delivered to the Corporation, request that a record date be fixed for such purpose. The Board may fix a record date for such purpose which shall be no more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board and shall not precede the date on which such resolution is adopted. If the Board fails within ten (10) days after the Corporation receives such notice to fix a record date for such purpose, the record date shall be the day on which the first written consent is delivered to the Corporation in the manner described in Section 46(c)(ii) below unless prior action by the Board is required under the DGCL, in which event the record date shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.
 
16

(ii) (A) Each written consent purporting to take or authorizing the taking of corporate action is referred to in this Section 46(c)(ii) of these Bylaws as a “ Consent ”. No Consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the first date on which a consent is so delivered to the Corporation in the manner required by this Section 46(c)(ii), Consents signed by a sufficient number of stockholders to take such action, and not revoked, are so delivered to the Corporation.
(B) A Consent shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery to the Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested.
(C) In the event of the delivery to the Corporation of a Consent, the Secretary shall provide for the safe-keeping of such Consent and shall promptly conduct such ministerial review of the sufficiency of the Consents and of the validity of the action to be taken by stockholder consent as he deems necessary or appropriate, including, without limitation, whether the holders of a number of shares having the requisite voting power to authorize or take the action specified in the Consent have given consent; provided , however , that if the corporate action to which the Consent relates is the removal or replacement of one or more members of the Board, the Secretary shall promptly designate two persons, who shall not be members of the Board, to serve as inspectors with respect to such Consent and such inspectors shall discharge the functions of the Secretary under this Section 45(c)(ii). If after such investigation the Secretary or the inspectors (as the case may be) shall determine that the Consent is valid and that the action therein specified has been validly authorized, that fact shall forthwith be certified on the records of the Corporation kept for the purpose of recording the proceedings of meetings of stockholders, and the Consent shall be filed in such records, at which time the Consent shall become effective as stockholder action. In conducting the investigation required by this Section 45(c)(ii), the Secretary or the inspectors (as the case may be) may, at the expense of the Corporation, retain special legal counsel and any other necessary or appropriate professional advisors, and such other personnel as they may deem necessary or appropriate to assist them, and to the fullest extent permitted by law shall be fully protected in relying in good faith upon the opinion of such counsel or advisors.
SECTION 46. DIVIDENDS. Subject to the provisions of the Certificate, the Board may at any regular or special meeting, out of funds legally available therefor, declare and pay dividends upon the stock of the Corporation. Before the declaration of any dividend, the Board may set apart, out of any funds of the Corporation available for dividends, such sum or sums as from time to time in their discretion may be deemed proper for working capital or as a reserve fund to meet contingencies or for such other purposes as shall be deemed conducive to the interests of the Corporation.
SECTION 47. FRACTIONAL SHARES. The Company shall have the complete discretion to issue fractional shares.
ARTICLE VI
NOTICE AND WAIVER OF NOTICE
SECTION 48. NOTICE. Whenever any written notice is required to be given by law, the Certificate or these Bylaws, such notice, if mailed, shall be deemed to be given when deposited in the United States mail, postage prepaid, addressed to the person entitled to such notice at his address as it appears in the books and records of the Corporation. Such notice may also be sent by electronic transmission in accordance with applicable law.
SECTION 49. WAIVER OF NOTICE. Whenever notice is required to be given under any provision of the DGCL, the Certificate or these Bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be
 
17

deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the Certificate or these Bylaws.
ARTICLE VII
AMENDMENT OF BYLAWS
SECTION 50. AMENDMENT OR REPEAL BY THE BOARD. Except as otherwise provided by the DGCL or the Certificate, subject to the provisions of the Stockholders Agreement, these Bylaws may be amended or repealed, in whole or in part, by (x) the affirmative vote of not less than a majority of the Board at any regular or special meeting of the Board provided that notice of such proposed amendment or repeal to be made is included in the notice of the meeting at which such action takes place, which shall also include, without limitation, the text of any such proposed amendment and/or any resolution calling for any such amendment or repeal or (y) by unanimous written consent of the Board.
SECTION 51. AMENDMENT OR REPEAL BY STOCKHOLDERS. Any amendment to, repeal of, or adoption of any provisions inconsistent with these Bylaws, which has not previously received the approval of the Board, shall require for adoption the affirmative vote of the holders of a majority in voting power of the issued and outstanding shares present in person or represented by proxy at a meeting of stockholders and entitled to vote thereon, provided , however , that, notwithstanding anything to the contrary contained herein, any amendment to, repeal of, or adoption of any provisions inconsistent with, Sections 2, 3, 6, 12, 14, 15, 16, 17, 19, 20 and 46 of these Bylaws, this Section 52 and Article IX hereof, which has not previously received the approval of the Board shall require for adoption the affirmative vote of the holders of not less than two-thirds of the voting power of the issued and outstanding shares entitled to vote at a duly called and convened annual or special meeting of stockholders, and provided , further , that, in addition to any other notice required by these Bylaws and other applicable requirements contained herein, notice of such proposed amendment or repeal is included in the notice of the meeting at which such action takes place, which shall also include, without limitation, the text of any such proposed amendment and/or any resolution calling for any such amendment or repeal.
SECTION 52. NO CONFLICT WITH THE CERTIFICATE OF INCORPORATION. No Bylaw shall be adopted, amended or repealed so as to cause such Bylaw or these Bylaws to be inconsistent or in conflict with or violate any provision of the Certificate.
ARTICLE VIII
MISCELLANEOUS
SECTION 53. SEAL. The seal of the Corporation shall be circular in form and shall have the name of the Corporation on the circumference and the jurisdiction and year of incorporation in the center.
SECTION 54. FISCAL YEAR. The fiscal year of the Corporation shall end on December 31 of each year, or such other twelve consecutive months as the Board may designate.
SECTION 55. CORPORATE FUNDS AND CHECKS. The funds of the Corporation shall be kept in such depositories as shall from time to time be prescribed by the Board. All checks or other orders for the payment of money shall be signed by the Chief Executive Officer, President or Chief Financial Officer or such other person or agent as may from time to time be authorized and with such countersignature, if any, as may be required by the Board.
 
18

SECTION 56. CONTRACTS AND OTHER DOCUMENTS. The Chief Executive Officer or President, or such other officer or officers as may from time to time be authorized by the Board, shall have power to sign and execute on behalf of the Corporation deeds, conveyances and contracts, and any and all other documents requiring execution by the Corporation.
SECTION 57. OWNERSHIP OF STOCK OF ANOTHER CORPORATION. The Chief Executive Officer or President, or such other officer or agent as shall be authorized by the Board, shall have the power and authority, on behalf of the Corporation, to attend and to vote at any meeting of stockholders or securityholders of any corporation or entity in which the Corporation holds stock or securities and may exercise, on behalf of the Corporation, any and all of the rights and powers incident to the ownership of such stock or securities at any such meeting, including the authority to execute and deliver proxies and consents on behalf of the Corporation.
SECTION 58. SEVERABILITY. If any provision (or part thereof) of these Bylaws is illegal or unenforceable as such, such illegality or unenforceability shall not affect any other provision (or part thereof) of these Bylaws and such other provisions shall continue in full force and effect.
SECTION 59. SUBJECT TO LAW AND THE CERTIFICATE OF INCORPORATION. All rights, powers, duties and responsibilities provided for in these Bylaws, whether or not explicitly so qualified, are qualified by the provisions of the Certificate, the DGCL and any other applicable law.
SECTION 60. EMERGENCY BYLAWS. The provisions of this Section 61 shall be operative only during a national emergency declared by the President of the United States or the person performing the President’s functions, or in the event of a nuclear, atomic or other attack on the United States or a disaster or catastrophe making it impossible or impracticable for the Corporation to conduct its business without recourse to the provisions of this Section 61. Said provisions in such event shall override all other Bylaws or the Corporation in conflict with any provisions of this Section 61, and shall remain operative so long as it remains impossible or impracticable to continue the business of the Corporation otherwise, but thereafter shall be inoperative; provided , however , that all actions taken in good faith pursuant to such provisions shall thereafter remain in full force and effect unless and until revoked by action taken pursuant to the provisions of the Bylaws other than those contained in this Section 61.
(a) A meeting of the Board or of any committee thereof may be called by any officer or director upon one hour’s notice to all persons entitled to notice whom, in the sole judgment of the notifier, it is feasible to notify;
(b) The director or directors in attendance at the meeting of the Board or of any committee thereof shall constitute a quorum; and
(c) These Bylaws may be amended or repealed, in whole or in part, by a majority vote of the directors attending any meeting of the Board, provided such amendment or repeal shall only be effective for the duration of such emergency.
 
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Exhibit 3.3

 
FORM OF
AMNEAL PHARMACEUTICALS LLC
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of [        ]

THE COMPANY INTERESTS REPRESENTED BY THIS THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH COMPANY INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.

 

TABLE OF CONTENTS

 	  	Page	 	
Article I	  				
DEFINITIONS	  	 	2	 	
		
Article II	  				
ORGANIZATIONAL MATTERS	  	 	11	 	
Section 2.01 Formation of Company	  	 	11	 	
Section 2.02 Third Amended and Restated Limited Liability Company Agreement	  	 	11	 	
Section 2.03 Name	  	 	11	 	
Section 2.04 Purpose	  	 	12	 	
Section 2.05 Principal Office; Registered Office	  	 	12	 	
Section 2.06 Term	  	 	12	 	
Section 2.07 No State-Law Partnership	  	 	12	 	
		
Article III	  				
MEMBERS; UNITS; CAPITALIZATION	  	 	12	 	
Section 3.01 Members	  	 	12	 	
Section 3.02 Units	  	 	13	 	
Section 3.03 Recapitalization; the Corporation’s Capital Contribution; the Corporation’s Purchase of Common Units	  	 	13	 	
Section 3.04 Authorization and Issuance of Additional Units	  	 	13	 	
Section 3.05 Repurchases or Redemptions	  	 	14	 	
Section 3.06 Certificates Representing Units; Lost, Stolen or Destroyed Certificates; Registration and Transfer of Units	  	 	15	 	
Section 3.07 Negative Capital Accounts	  	 	15	 	
Section 3.08 No Withdrawal	  	 	15	 	
Section 3.09 Loans From Members	  	 	15	 	
Section 3.10 Tax Treatment of Corporate Equity Plans	  	 	15	 	
Section 3.11 Dividend Reinvestment Plan, Cash Option Purchase Plan, Stock Incentive Plan or Other Plan	  	 	17	 	
		
Article IV	  				
DISTRIBUTIONS	  	 	17	 	
Section 4.01 Distributions	  	 	17	 	
Section 4.02 Restricted Distributions	  	 	18	 	
		
Article V	  				
CAPITAL ACCOUNTS; ALLOCATIONS; TAX MATTERS	  	 	18	 	
Section 5.01 Capital Accounts	  	 	18	 	
Section 5.02 Allocations	  	 	19	 	
Section 5.03 Regulatory and Special Allocations	  	 	19	 	
Section 5.04 Tax Allocations	  	 	20	 	
Section 5.05 Withholding; Reimbursement for Payments on Behalf of a Member	  	 	21	 	
		
Article VI	  				
MANAGEMENT	  	 	22	 	
Section 6.01 Authority of Manager	  	 	22	 	
Section 6.02 Actions of the Manager	  	 	23	 	
Section 6.03 Resignation; No Removal	  	 	23	 	
Section 6.04 Vacancies	  	 	23	 	
Section 6.05 Transactions Between Company and Manager	  	 	23	 	
Section 6.06 Reimbursement for Expenses	  	 	23	 	
Section 6.07 Delegation of Authority	  	 	24	 	
 
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 	  	Page	 	
Section 6.08 Limitation of Liability of Manager	  	 	24	 	
Section 6.09 Investment Company Act	  	 	24	 	
Section 6.10 Outside Activities of the Manager	  	 	24	 	
Section 6.11 Standard of Care	  	 	25	 	
		
Article VII	  				
RIGHTS AND OBLIGATIONS OF MEMBERS	  	 	25	 	
Section 7.01 Limitation of Liability and Duties of Members; Investment Opportunities	  	 	25	 	
Section 7.02 Lack of Authority	  	 	26	 	
Section 7.03 No Right of Partition	  	 	26	 	
Section 7.04 Indemnification	  	 	26	 	
Section 7.05 Members Right to Act	  	 	27	 	
Section 7.06 Inspection Rights	  	 	28	 	
		
Article VIII	  				
BOOKS, RECORDS, ACCOUNTING AND REPORTS, AFFIRMATIVE COVENANTS	  	 	28	 	
Section 8.01 Records and Accounting	  	 	28	 	
Section 8.02 Fiscal Year	  	 	28	 	
		
Article IX	  				
TAX MATTERS	  	 	29	 	
Section 9.01 Preparation of Tax Returns	  	 	29	 	
Section 9.02 Tax Elections	  	 	29	 	
Section 9.03 Tax Controversies	  	 	29	 	
Section 9.04 Liabilities	  	 	30	 	
		
Article X	  				
RESTRICTIONS ON TRANSFER OF UNITS	  	 	30	 	
Section 10.01 Transfers by Members	  	 	30	 	
Section 10.02 Permitted Transfers	  	 	30	 	
Section 10.03 Restricted Units Legend	  	 	31	 	
Section 10.04 Transfer	  	 	31	 	
Section 10.05 Assignee’s Rights	  	 	32	 	
Section 10.06 Assignor’s Rights and Obligations	  	 	32	 	
Section 10.07 Overriding Provisions	  	 	32	 	
		
Article XI	  				
REDEMPTION AND EXCHANGE RIGHTS	  	 	33	 	
Section 11.01 Redemption Right of a Member	  	 	33	 	
Section 11.02 Contribution of the Corporation	  	 	36	 	
Section 11.03 Exchange Right of the Corporation	  	 	36	 	
Section 11.04 Reservation of Shares of Class A Common Stock and Class B-1 Common Stock; Listing; Certificate of the Corporation	  	 	36	 	
Section 11.05 Effect of Exercise of Redemption or Exchange Right	  	 	37	 	
Section 11.06 Tax Treatment	  	 	37	 	
		
Article XII	  				
ADMISSION OF MEMBERS	  	 	37	 	
Section 12.01 Substituted Members	  	 	37	 	
Section 12.02 Additional Members	  	 	37	 	
		
Article XIII	  				
WITHDRAWAL AND RESIGNATION; TERMINATION OF RIGHTS	  	 	38	 	
Section 13.01 Withdrawal and Resignation of Members	  	 	38	 	
 
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 	  	Page	 	
Article XIV	  				
DISSOLUTION AND LIQUIDATION	  	 	38	 	
Section 14.01 Dissolution	  	 	38	 	
Section 14.02 Liquidation and Termination	  	 	38	 	
Section 14.03 Deferment; Distribution in Kind	  	 	39	 	
Section 14.04 Cancellation of Certificate	  	 	39	 	
Section 14.05 Reasonable Time for Winding Up	  	 	39	 	
Section 14.06 Return of Capital	  	 	39	 	
		
Article XV	  				
VALUATION	  	 	39	 	
Section 15.01 Determination	  	 	39	 	
Section 15.02 Dispute Resolution	  	 	39	 	
		
Article XVI	  				
GENERAL PROVISIONS	  	 	40	 	
Section 16.01 Power of Attorney	  	 	40	 	
Section 16.02 Confidentiality	  	 	40	 	
Section 16.03 Amendments	  	 	41	 	
Section 16.04 Title to Company Assets	  	 	41	 	
Section 16.05 Addresses and Notices	  	 	41	 	
Section 16.06 Binding Effect; Intended Beneficiaries	  	 	42	 	
Section 16.07 Creditors	  	 	42	 	
Section 16.08 Waiver	  	 	43	 	
Section 16.09 Counterparts	  	 	43	 	
Section 16.10 Applicable Law	  	 	43	 	
Section 16.11 Severability	  	 	43	 	
Section 16.12 Further Action	  	 	43	 	
Section 16.13 Conflict	  	 	43	 	
Section 16.14 Delivery by Electronic Transmission	  	 	43	 	
Section 16.15 Right of Offset	  	 	43	 	
Section 16.16 Effectiveness	  	 	44	 	
Section 16.17 Entire Agreement	  	 	44	 	
Section 16.18 Remedies	  	 	44	 	
Section 16.19 Descriptive Headings; Interpretation	  	 	44	 	
Schedules

Schedule 1	  	—	  	Initial Schedule of Members	
Exhibits

Exhibit A	  	—	  	Form of Joinder Agreement	
 
iii

AMNEAL PHARMACEUTICALS LLC
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”), dated as of [        ], is entered into by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Company ”), and its Members (as defined herein).
WHEREAS, the Company was formed as a limited liability company pursuant to and in accordance with the Delaware Act (as defined herein) by the filing of the Certificate (as defined herein) with the Secretary of State of the State of Delaware pursuant to Section 18-201 of the Delaware Act on June 15, 2004;
WHEREAS, the Company previously entered into a Second Amended and Restated Limited Liability Company Agreement of the Company, dated as of May 1, 2015 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time to but excluding the date hereof, together with all schedules, exhibits and annexes thereto, the “ Second A&R LLC Agreement ”), with the members of the Company party thereto;
WHEREAS, immediately prior to the Effective Time (as defined herein), (a) Amneal Pharmaceuticals Holding Company LLC, a Delaware limited liability company (“ APHC ”), held Class A units representing limited liability company interests in the Company (the “ Original Class  A Units ”), (b) AP Class D Member, LLC, a Delaware limited liability company (“ D, LLC ”), held Class D units representing limited liability company interests in the Company (the “ Original Class  D Units ”), (c) AP Class E Member, LLC, a Delaware limited liability company (“ E, LLC ”), held Class E units representing limited liability company interests in the Company (the “ Original Class  E Units ”), and (d) AH PPU Management, LLC, a Delaware limited liability company (“ AH PPU ” and, together with APHC, D, LLC and E, LLC, the “ Original Members ”), held Class F units representing limited liability company interests in the Company (the “ Original Class  F Units ”), Class G units representing limited liability company interests in the Company (the “ Original Class  G Units ”) and Class H units representing limited liability company interests in the Company (the “ Original Class  H Units ” and, together with the Original Class A Units, the Original Class D Units, the Original Class E Units, the Original Class F Units and the Original Class G Units, the “ Original Units ”);
WHEREAS, the parties are entering into this Agreement to amend and restate the Second A&R LLC Agreement in its entirety as of the Effective Time to reflect (a) the Recapitalization (as defined herein) and the consummation of the transactions contemplated by the Business Combination Agreement (as defined herein), (b) the Impax Contribution (as defined herein) and the admission of Amneal Pharmaceuticals, Inc., a Delaware corporation (the “ Corporation ”), as a Member, (c) the Corporation’s designation as the Manager (as defined herein), and (d) the rights and obligations of the Members that are enumerated and agreed upon in the terms of this Agreement effective as of the Effective Time, at which time the Second A&R LLC Agreement shall be superseded entirely by this Agreement; and
WHEREAS, in connection with the Recapitalization and as of the Effective Time, the Original Units of each Original Member will be converted into Common Units (as defined herein) issued in accordance with this Agreement and the Original Units will cease to exist.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Members, intending to be legally bound, hereby agree as follows:
 ARTICLE I
 
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 DEFINITIONS
The following definitions shall be applied to the terms used in this Agreement for all purposes, unless otherwise clearly indicated to the contrary.
“ Additional Member ” has the meaning set forth in Section  12.02 .
“ Adjusted Capital Account Deficit ” means with respect to the Capital Account of any Member as of the end of any Taxable Year, the amount by which the balance in such Capital Account is less than zero. For this purpose, such Member’s Capital Account balance shall be:
 
 	(a)	reduced for any items described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5), and (6); and	
 
 	(b)	increased for any amount such Member is obligated to contribute or is treated as being obligated to contribute to the Company pursuant to Treasury Regulations Section 1.704-1(b)(2)(ii)(c) (relating to partner liabilities to a partnership) or 1.704-2(g)(1) and 1.704-2(i) (relating to minimum gain).	
“ Admission Date ” has the meaning set forth in Section  10.06 .
“ Affiliate ” (and, with a correlative meaning, “ Affiliated ”) means, with respect to a specified Person, each other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. As used in this definition, “control” (including with correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of voting securities, by contract or otherwise).
“ Agreement ” has the meaning set forth in the preamble to this Agreement.
“ AH PPU ” has the meaning set forth in the recitals to this Agreement.
“ APHC ” has the meaning set forth in the recitals to this Agreement.
“ Appraisers ” has the meaning set forth in Section  15.02 .
“ Assignee ” means a Person to whom a Company Interest has been transferred but who has not become a Member pursuant to Article XII .
“ Assumed Tax Liability ” means, with respect to any Member at any Tax Advance Date, an amount equal to the amount of federal, state, local and foreign income taxes (including any applicable estimated taxes) for such taxable year, determined taking into account the character of income and loss allocated as it affects the Assumed Tax Rate, that the Manager estimates in good faith would be due from such Member as of the relevant Tax Advance Date, (i) assuming such Member were an individual who earned solely the items of income, gain, deduction, loss, and/or credit allocated to such Member pursuant to Article V , (ii) taking into account adjustments and allocations under Sections 704(c), 734 and 743 of the Code and applicable limitations on the deductibility of capital losses, and (iii) assuming that such Member is subject to tax at the Assumed Tax Rate. The Manager shall reasonably determine the Assumed Tax Liability for each Member based on such assumptions as the Manager in good faith deems reasonably necessary.
“ Assumed Tax Rate ” means, for any taxable year, the sum of the highest marginal rate of federal, state, and local income tax applicable to any direct, or in the case of ownership through an entity classified as a partnership or disregarded entity for federal income tax purposes, indirect owner of a Member (other than the Corporation) (including any tax imposed under Section 1401 or Section 1411 of the Code) determined by applying the rates
 
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applicable to ordinary income (in cases where taxes are being determined on ordinary income allocated to a Member) and capital gains (in cases where taxes are being determined on capital gains allocated to a Member), and including any deduction of state and local income taxes in computing a Member’s liability for federal income tax. The Manager shall consult in good faith with each Member to determine the Assumed Tax Rate for such Member for any taxable year.
“ Base Rate ” means, on any date, a variable rate per annum equal to the rate of interest most recently published by The Wall Street Journal as the “prime rate” at large U.S. money center banks.
“ Black-Out Period ” means any “black-out” or similar period under the Corporation’s policies covering trading in the Corporation’s securities to which the applicable Redeemed Member is subject, which period restricts the ability of such Redeemed Member to immediately resell shares of Class A Common Stock to be delivered to such Redeemed Member in connection with a Share Settlement.
“ Book Value ” means, the adjusted basis of such asset for federal income tax purposes, except as follows: (a) the initial Book Value of any Company asset contributed by a Member to the Company shall be the gross Fair Market Value of such Company asset as of the date of such contribution; (b) immediately prior to the Distribution by the Company of any Company asset to a Member, the Book Value of such asset shall be adjusted to its gross Fair Market Value as of the date of such Distribution; (c) the Book Value of all Company assets shall be adjusted to equal their respective gross Fair Market Values, as reasonably determined in good faith by the Manager, as of the following times: (i) the acquisition of an additional Company Interest in the Company by a new or existing Member in consideration of a Capital Contribution of more than a de minimis amount; (ii) the Distribution by the Company to a Member of more than a de minimis amount of property (other than cash) as consideration for all or a part of such Member’s Company Interest; and (iii) the liquidation of the Company within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g); provided , that adjustments pursuant to clauses (i) and (ii) above need not be made if the Manager reasonably determines in good faith that such adjustment is not necessary or appropriate to reflect the relative economic interests of the Members and that the absence of such adjustment does not adversely and disproportionately affect any Member; (d) the Book Value of each Company asset shall be increased or decreased, as the case may be, to reflect any adjustments to the adjusted tax basis of such Company asset pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Account balances pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m); provided , that Book Values shall not be adjusted pursuant to this paragraph (d) to the extent that an adjustment pursuant to paragraph (c) above is made in conjunction with a transaction that would otherwise result in an adjustment pursuant to this paragraph; and if the Book Value of a Company asset has been determined pursuant to paragraph (a) or adjusted pursuant to paragraphs (c) or (d) above, such Book Value shall thereafter be adjusted to reflect the Depreciation taken into account with respect to such Company asset for purposes of computing Profits and Losses.
“ Business Combination Agreement ” means that certain Business Combination Agreement, dated as of October 17, 2017, by and among the Company, Impax, the Corporation and K2 Merger Sub Corporation, a Delaware corporation (as may be amended or supplemented from time to time).
“ Business Combination Closing ” means the “Closing” as defined in Section 1.03 of the Business Combination Agreement.
“ Business Day ” means any day other than a Saturday or a Sunday or a day on which banks located in New York City, New York generally are authorized or required by Law to close.
“ Capital Account ” means the capital account maintained for a Member in accordance with Section  5.01 .
“ Capital Contribution ” means, with respect to any Member, the amount of any cash, cash equivalents, promissory obligations or the Fair Market Value of other property that such Member contributes (or is deemed to contribute) to the Company pursuant to Article III hereof.
 
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“ Cash Settlement ” means immediately available funds in U.S. dollars in an amount equal to the product of (a) the Share Settlement and (b) the Common Unit Redemption Price.
“ Certificate ” means the Company’s Certificate of Formation as filed with the Secretary of State of Delaware.
“ Change of Control Transaction ” means (a) a sale of all or substantially all of the Company’s assets determined on a consolidated basis, (b) a sale of a majority of the Company’s outstanding Units (other than (i) to the Corporation, (ii) in a Permitted Transfer or (iii) in connection with a Redemption or Direct Exchange in accordance with Article XI ) or (c) a sale of a majority of the outstanding voting securities of any Material Subsidiary of the Company; in any such case, whether by merger, recapitalization, consolidation, reorganization, combination or otherwise; provided, however , that neither (w) a transaction solely between the Company or any of its wholly-owned Subsidiaries, on the one hand, and the Company or any of its wholly-owned Subsidiaries, on the other hand, nor (x) a transaction solely for the purpose of changing the jurisdiction of domicile of the Company, nor (y) a transaction solely for the purpose of changing the form of entity of the Company, nor (z) a sale of a majority of the outstanding shares of Class A Common Stock (treating for this purpose all outstanding shares of Class B-1 Common Stock as if converted to Class A Common Stock), whether by merger, recapitalization, consolidation, reorganization, combination or otherwise, shall in each case of clauses (w), (x), (y) and (z) constitute a Change of Control Transaction.
“ Class  A Common Stock ” means the Class A Common Stock, par value [$0.01] per share, of the Corporation.
“ Class B Common Stock ” means the Class B Common Stock, par value [$0.01] per share, of the Corporation.
“ Class B-1 Common Stock ” means the Class B-1 Common Stock, par value $0.01 per share, of the Corporation.
“ Code ” means the United States Internal Revenue Code of 1986, as amended.
“ Common Stock ” means all classes and series of common stock of the Corporation, including the Class A Common Stock, the Class B Common Stock and the Class B-1 Common Stock.
“ Common Unit ” means a Unit representing a fractional part of the Company Interests of the Members (or a permitted Assignee) and having the rights and obligations specified with respect to the Common Units in this Agreement.
“ Common Unit Redemption Price ” means the average of the volume-weighted closing price for a share of Class A Common Stock on the principal U.S. securities exchange or automated or electronic quotation system on which the Class A Common Stock trades, as reported by Bloomberg, L.P., or its successor, for each of the five (5) consecutive full Trading Days ending on and including the last full Trading Day immediately prior to the Redemption Notice Date, subject to appropriate and equitable adjustment for any stock splits, reverse splits, stock dividends or similar events affecting the Class A Common Stock. If the Class A Common Stock no longer trades on a securities exchange or automated or electronic quotation system, then the Common Unit Redemption Price shall be the fair market value of one share of Class A Common Stock, as determined by the Corporate Board in good faith, that would be obtained in an arms-length transaction between an informed and willing buyer and an informed and willing seller, with neither party having any compulsion to buy or sell, and without regard to the particular circumstances of the buyer or seller; provided, however , that in the event that the applicable Redeemed Member disputes the accuracy of such determination and the Manager and such Member are unable to agree on such determination, (a) the Manager and such Member shall each select an Appraiser, who shall each determine the fair market value of one share of Class A Common Stock in accordance with this sentence, (b) the
 
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Appraisers shall be instructed to give written notice of their determination thereof within thirty (30) days of their appointment as Appraisers, (c) if the fair market value of one share of Class A Common Stock as determined by an Appraiser is (i) higher than the fair market value of one share of Class A Common Stock as determined by the other Appraiser by 10% or more, and the Manager and such Member do not otherwise agree on a fair market value, the original Appraisers shall designate a third Appraiser, and the fair market value shall be the average of the fair market values determined by all three Appraisers, unless the Manager and such Member(s) otherwise agree on a fair market value, or (ii) within 10% of the fair market value as determined by the other Appraiser (but not identical), and the Manager and such Member do not otherwise agree on a fair market value, the fair market value shall be the average of the fair market values determined by the two Appraisers, and (d) the fees and expenses of the Appraisers shall be borne by the Company, on the one hand, and by such Member, on the other hand, based upon the percentage which the portion of the contested amount not awarded to such Member bears to the amount actually contested by such Member. For example, if such Member contests that the fair market value of a share of Class A Common Stock is $100, and if the Appraisers ultimately determine the fair market value of a share of Class A Common Stock is $60 of the $100 contested, then the costs and expenses of the Appraisers will be allocated 60% (i.e., 60 ÷ 100) to the Company and 40% (i.e., 40 ÷ 100) to such Member.
“ Company ” has the meaning set forth in the preamble to this Agreement.
“ Company Interest ” means the interest of a Member (or a permitted Assignee) in Profits, Losses and Distributions.
“ Company Minimum Gain ” means “partnership minimum gain” determined pursuant to Treasury Regulations Section 1.704-2(d).
“ Conflicts Committee ” means the Conflicts Committee of the Corporate Board established pursuant to the Stockholders Agreement.
“ Corporate Board ” means the Board of Directors of the Corporation.
“ Corporation ” has the meaning set forth in the recitals to this Agreement, together with its permitted successors and assigns.
“ Corporation Restricted Shares ” has the meaning set forth in Section  3.04(a) .
“ Credit Agreement ” means [        ] (as may be amended, restated, supplemented or otherwise modified from time to time and including any one or more refinancings or replacements thereof, in whole or in part, with any other debt facility or debt obligation).
“ D, LLC ” has the meaning set forth in the recitals to this Agreement.
“ Delaware Act ” means the Delaware Limited Liability Company Act, 6 Del.C. § 18-101, et seq. , as it may be amended from time to time, and any successor thereto.
“ Depreciation ” means, for each Taxable Year or other Fiscal Period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable for U.S. federal income tax purposes with respect to property for such Taxable Year or other Fiscal Period, except that (a) with respect to any such property the Book Value of which differs from its adjusted tax basis for U.S. federal income tax purposes and which difference is being eliminated by use of the “remedial method” pursuant to Treasury Regulations Section 1.704-3(d), Depreciation for such Taxable Year or other Fiscal Period shall be the amount of book basis recovered for such Taxable Year or other Fiscal Period under the rules prescribed by Treasury Regulations Section 1.704-3(d)(2), and (b) with respect to any other such property, the Book Value of which differs from its adjusted tax basis at the beginning of such Taxable Year or other Fiscal Period, Depreciation shall be an amount which bears the same
 
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ratio to such beginning Book Value as the U.S. federal income tax depreciation, amortization, or other cost recovery deduction for such Taxable Year or other Fiscal Period bears to such beginning adjusted tax basis; provided , however , that if the adjusted tax basis of any property at the beginning of such Taxable Year or other Fiscal Period is zero dollars ($0.00), Depreciation with respect to such property shall be determined with reference to such beginning Book Value using any reasonable method selected by the Manager.
“ Direct Exchange ” has the meaning set forth in Section  11.03(a) .
“ Discount ” has the meaning set forth in Section  6.06 .
“ Distributable Cash ” shall mean, as of any relevant date on which a determination is being made by the Manager regarding a potential distribution pursuant to Section  4.01(a) , the amount of cash that could be distributed by the Company for such purposes in accordance with the Credit Agreement (and without otherwise violating any applicable provisions of or resulting in a default (or an event that, with notice or the lapse of time or both, would constitute a default) under the Credit Agreement).
“ Distribution ” (and, with a correlative meaning, “ Distribute ”) means each distribution made by the Company to a Member with respect to such Member’s Units, whether in cash, property or securities of the Company and whether by liquidating distribution or otherwise; provided, however , that none of the following shall be a Distribution: (a) any recapitalization that does not result in the distribution of cash or property to Members or any exchange of securities of the Company, and any subdivision (by Unit split or otherwise) or any combination (by reverse Unit split or otherwise) of any outstanding Units, (b) any other payment made by the Company to a Member in redemption or repurchase of all or a portion of such Member’s Units or (c) any amounts payable pursuant to Section  6.06 .
“ E, LLC ” has the meaning set forth in the recitals to this Agreement.
“ Effective Time ” has the meaning set forth in Section  16.16 .
“ Equity Plan ” means any stock, stock option or equity purchase plan, restricted stock or equity plan or other similar equity compensation plan now or hereafter adopted by the Company or the Corporation.
“ Equity Securities ” means (i) with respect to the Company or any of its Subsidiaries, (a) Units or other equity interests in the Company or any Subsidiary of the Company (including other classes or groups thereof having such relative rights, powers and duties as may from time to time be established by the Manager pursuant to the provisions of this Agreement, including rights, powers and/or duties senior to existing classes and groups of Units and other equity interests in the Company or any Subsidiary of the Company), (b) obligations, evidences of indebtedness or other securities or interests convertible or exchangeable into Units or other equity interests in the Company or any Subsidiary of the Company, and (c) warrants, options or other rights to purchase or otherwise acquire Units or other equity interests in the Company or any Subsidiary of the Company and (ii) with respect to the Corporation, any and all shares, interests, participation or other equivalents (however designated) of corporate stock, including all common stock and preferred stock, or warrants, options or other rights to acquire any of the foregoing, including any debt instrument convertible or exchangeable into any of the foregoing.
“ Event of Withdrawal ” means the expulsion, bankruptcy or dissolution of a Member or the occurrence of any other event that terminates the continued membership of a Member in the Company. “Event of Withdrawal” shall not include an event that (a) terminates the existence of a Member for income tax purposes (including, without limitation, a change in entity classification of a Member under Treasury Regulations Section 301.7701-3, termination of a partnership pursuant to Section 708(b)(1)(B) of the Code, a sale of assets by, or liquidation of, a Member pursuant to an election under Section 338 of the Code, or merger, severance, or allocation within a trust or among sub-trusts of a trust that is a Member), but that (b) does not terminate the existence of such Member under applicable state law (or, in the case of a trust that is a Member, does not terminate the trusteeship of the fiduciaries under such trust with respect to all the Company Interests of such trust that is a Member).
 
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“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Exchange Election Notice ” has the meaning set forth in Section  11.03(b) .
“ Fair Market Value ” means, with respect to any asset, its fair market value determined according to Article XV .
“ Fiscal Period ” means any interim accounting period within a Taxable Year established by the Company and which is permitted or required by Section 706 of the Code.
“ Fiscal Year ” means the Company’s annual accounting period established pursuant to Section  8.02 .
“ Governmental Entity ” means (a) the United States of America, (b) any other sovereign nation, (c) any state, province, district, territory or other political subdivision of (a) or (b) of this definition, including any county, municipal or other local subdivision of the foregoing, or (d) any entity exercising executive, legislative, judicial, regulatory or administrative functions of government on behalf of (a), (b) or (c) of this definition.
“ Impax ” means Impax Laboratories LLC, a Delaware limited liability company.
“ Impax Contributed Interests ” means all of the outstanding equity interests of Impax.
“ Impax Contribution ” has the meaning set forth in Section  3.03(b) .
“ Indemnified Person ” has the meaning set forth in Section  7.04(a) .
“ Investment Company Act ” means the U.S. Investment Company Act of 1940, as amended from time to time.
“ Joinder ” means a joinder to this Agreement, in form and substance substantially similar to Exhibit A to this Agreement.
“ Law ” means all laws, statutes, ordinances, rules and regulations of the United States, any foreign country and each state, commonwealth, city, county, municipality, regulatory body, agency or other political subdivision thereof.
“ LLC Employee ” means an employee of, or other service provider to, the Company or any Subsidiary, in each case acting in such capacity.
“ Losses ” means items of Company loss or deduction determined according to Section  5.01(b) .
“ Manager ” has the meaning set forth in Section  6.01 .
“ Market Price ” means, with respect to a share of Class A Common Stock as of a specified date, the last sale price per share of Class A Common Stock, regular way, or if no such sale took place on such day, the average of the closing bid and asked prices per share of Class A Common Stock, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the Stock Exchange or, if the Class A Common Stock is not listed or admitted to trading on the Stock Exchange, as reported on the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Class A Common Stock is listed or admitted to trading or, if the Class A Common Stock is not listed or admitted to trading on any national securities exchange, the last quoted price, or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System or, if
 
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such system is no longer in use, the principal other automated quotation system that may then be in use or, if the Class A Common Stock is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Class A Common Stock selected by the Corporate Board or, in the event that no trading price is available for the shares of Class A Common Stock, the fair market value of a share of Class A Common Stock, as determined in good faith by the Corporate Board.
“ Material Subsidiary ” means any direct or indirect Subsidiary of the Company that, as of any date of determination, represents more than (a) 50% of the consolidated net tangible assets of the Company or (b) 50% of the consolidated net income of the Company before interest, taxes, depreciation and amortization [(calculated in a manner substantially consistent with the definition of “Consolidated Net Income” and “EBITDA” or similar definition(s) appearing in the Credit Agreement, including such additional adjustments that are permitted to be made to such measure as described in “EBITDA” or a similar definition appearing in the Credit Agreement)].
“ Member ” means, as of any date of determination, (a) each of the members named on the Schedule of Members and (b) any Person admitted to the Company as a Substituted Member or Additional Member in accordance with Article XII , but in each case only so long as such Person is shown on the Company’s books and records as the owner of one or more Units.
“ Member Minimum Gain ” means “partner nonrecourse debt minimum gain” as defined in Treasury Regulations Section 1.704-2(i)(3).
“ Officer ” has the meaning set forth in Section  6.01(b) .
“ Optionee ” means a Person to whom a stock option is granted under any Equity Plan.
“ Original Class  A Units ” has the meaning set forth in the recitals to this Agreement.
“ Original Class  D Units ” has the meaning set forth in the recitals to this Agreement.
“ Original Class  E Units ” has the meaning set forth in the recitals to this Agreement.
“ Original Class  F Units ” has the meaning set forth in the recitals to this Agreement.
“ Original Class  G Units ” has the meaning set forth in the recitals to this Agreement.
“ Original Class  H Units ” has the meaning set forth in the recitals to this Agreement.
“ Original Units ” has the meaning set forth in the recitals to this Agreement.
“ Original Members ” has the meaning set forth in the recitals to this Agreement.
“ Other Agreements ” has the meaning set forth in Section  10.04 .
“ Partnership Representative ” has the meaning set forth in Section  9.03(b) .
“ Percentage Interest ” means, with respect to a Member at a particular time, such Member’s percentage interest in the Company determined by dividing such Member’s Units by the total Units of all Members at such time. The Percentage Interest of each member shall be calculated to the 4 th decimal place.
“ Permitted Transfer ” has the meaning set forth in Section  10.02 .
“ Person ” means an individual or any corporation, partnership, limited liability company, trust, unincorporated organization, association, joint venture or any other organization or entity, whether or not a legal entity.
 
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“ Pro rata ,” “ proportional ,” “ in proportion to ,” and other similar terms, means, with respect to the holder of Units, pro rata based upon the number of such Units held by such holder as compared to the total number of Units outstanding.
“ Profits ” means items of Company income and gain determined according to Section  5.01(b) .
“ Recapitalization ” has the meaning set forth in Section  3.03(a) .
“ Reclassification Event ” means any of the following: (i) any reclassification or recapitalization of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination or any transaction subject to Section  3.04 ), (ii) any merger, consolidation or other combination involving Common Stock, or (iii) any sale, conveyance, lease, or other disposal of all or substantially all the properties and assets of the Corporation to any other Person, in each of clauses (i), (ii) or (iii), as a result of which holders of Common Stock shall be entitled to receive cash, securities or other property for their shares of Common Stock.
“ Redeemed Units ” has the meaning set forth in Section  11.01(a) .
“ Redeemed Member ” has the meaning set forth in Section  11.01(a) .
“ Redemption ” has the meaning set forth in Section  11.01(a) .
“ Redemption Date ” has the meaning set forth in Section  11.01(a) .
“ Redemption Notice ” has the meaning set forth in Section  11.01(a) .
“ Redemption Notice Date ” has the meaning set forth in Section  11.01(a) .
“ Redemption Right ” has the meaning set forth in Section  11.01(a) .
“ Related Person ” has the meaning set forth in Section  7.01(c) .
“ Requisite Members ” means the Members (which may include the Manager) holding at least seventy-five percent (75%) of the Common Units then outstanding.
“ Retraction Notice ” has the meaning set forth in Section  11.01(b) .
“ Revised Partnership Audit Provisions ” shall mean Section 1101 of Title XI (Revenue Provisions Related to Tax Compliance) of the Bipartisan Budget Act of 2015, H.R. 1314, Public Law Number 114-74.
“ Schedule of Members ” has the meaning set forth in Section  3.01(b) .
“ SEC ” means the U.S. Securities and Exchange Commission, including any governmental body or agency succeeding to the functions thereof.
“ Second A&R LLC Agreement ” has the meaning set forth in the recitals to this Agreement.
“ Securities Act ” means the U.S. Securities Act of 1933, as amended, and applicable rules and regulations thereunder, and any successor to such statute, rules or regulations. Any reference herein to a specific section, rule or regulation of the Securities Act shall be deemed to include any corresponding provisions of future Law.
“ Settlement Method Notice ” has the meaning set forth in Section  11.01(b) .
 
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“ Share Settlement ” means (a) a number of shares of Class A Common Stock equal to the number of Redeemed Units or (b) if the Redeemed Member specifies in its applicable Redemption Notice that all or any portion of its Redeemed Units are to be redeemed for Class B-1 Common Stock (a “ Class B-1 Redemption Election ”), a number of shares of (i) Class A Common Stock equal to the number of Redeemed Units that the Redeemed Member specifies in such Redemption Notice are to be redeemed for Class A Common Stock and (ii) Class B-1 Common Stock equal to the number of Redeemed Units that the Redeemed Member specifies in such Redemption Notice are to be redeemed for Class B-1 Common Stock; provided that (x) the Redeemed Members collectively shall not be permitted to redeem more than a total of [                ] Common Units (as adjusted for any equity split, equity distribution, recapitalization, combination, reclassification or similar change in the capital structure of the Company following the date hereof) in the aggregate for Class B-1 Common Stock (the “ Class B-1 Redemption Cap ”) and (y) if a Redeemed Member makes a Class B-1 Redemption Election that (together with all prior Redemptions) would exceed the Class B-1 Redemption Cap, its applicable Redemption Notice shall be deemed to have specified that such excess number of Redeemed Units instead be redeemed for Class A Common Stock.
“ Stock Exchange ” means the New York Stock Exchange, or such other stock exchange or securities market on which shares of Class A Common Stock are at any time listed or quoted.
“ Stockholders Agreement ” means that certain Stockholders Agreement, dated as of October 17, 2017, by and among the Corporation and the other parties named therein (together with any joinder thereto from time to time by any successor or assign to any party to such Agreement).
“ Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the voting interests thereof are at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, references to a “Subsidiary” of the Company shall be given effect only at such times that the Company has one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company.
“ Substituted Member ” means a Person that is admitted as a Member to the Company pursuant to Section  12.01 .
“ Tax Advance ” has the meaning set forth in Section  4.01(b)(ii) .
“ Tax Advance Date ” means any date that is two Business Days prior to the date on which estimated federal income tax payments are required to be made by corporate taxpayers and the due date for federal income tax returns of corporate taxpayers (without regard to extensions).
“ Tax Matters Partner ” has the meaning set forth in Section  9.03 .
“ Tax Receivable Agreement ” means the Tax Receivable Agreement, dated as of the date hereof, by and among the Company, the Corporation and the other Members from time to time party thereto (as may be amended or supplemented from time to time).
“ Taxable Year ” means the Company’s accounting period for U.S. federal income tax purposes determined pursuant to Section  9.02 .
“ Trading Day ” means a day on which the Stock Exchange or such other principal United States securities exchange on which the Class A Common Stock is listed or admitted to trading is open for the transaction of business (unless such trading shall have been suspended for the entire day).
 
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“ Transfer ” (and, with a correlative meaning, “ Transferring ”) means any sale, transfer, assignment, pledge, encumbrance or other disposition of (whether directly or indirectly, whether with or without consideration and whether voluntarily or involuntarily or by operation of Law) (a) any interest (legal or beneficial) in any Equity Securities of the Company or (b) any equity or other interest (legal or beneficial) in any Member if a majority of the assets of such Member consist of Units; provided, however , that a pledge, encumbrance, hypothecation or mortgage to a bank or other institutional lender to secure a loan for borrowed money by any Member shall not constitute a “Transfer” until the foreclosure thereof.
“ Treasury Regulations ” means the regulations promulgated under the Code and any corresponding provisions of succeeding regulations.
“ Unit ” means a Company Interest of a Member or a permitted Assignee in the Company representing a fractional part of the Company Interests of all Members and Assignees as may be established by the Manager from time to time in accordance with Section  3.02 ; provided, however , that any class or group of Units issued shall have the relative rights, powers and duties set forth in this Agreement, and the Company Interest represented by such class or group of Units shall be determined in accordance with such relative rights, powers and duties.
“ Value ” means (a) for any stock option, the Market Price for the trading day immediately preceding the date of exercise of a stock option under the applicable Equity Plan and (b) for interest granted pursuant to an Equity Plan other than a stock option, the Market Price for the trading day immediately preceding the Vesting Date.
“ Vesting Date ” has the meaning set forth in Section  3.10(c) .
 ARTICLE II
ORGANIZATIONAL MATTERS
 Section 2.01 Formation of Company . The Company was formed on June 15, 2004 pursuant to the provisions of the Delaware Act.
 Section 2.02 [Third] Amended and Restated Limited Liability Company Agreement . The Members hereby execute this Agreement for the purpose of continuing the affairs of the Company without dissolution and the conduct of its business in accordance with the provisions of the Delaware Act. This Agreement amends and restates the Second A&R LLC Agreement in its entirety and shall constitute the “limited liability company agreement” (as that term is used in the Delaware Act) of the Company effective as of the date set forth above. The Members hereby agree that during the term of the Company set forth in Section  2.06 , the rights and obligations of the Members with respect to the Company will be determined in accordance with the terms and conditions of this Agreement and the Delaware Act. On any matter upon which this Agreement is silent, the Delaware Act shall control. No provision of this Agreement shall be in violation of the Delaware Act and to the extent any provision of this Agreement is in violation of the Delaware Act, such provision shall be void and of no effect to the extent of such violation without affecting the validity of the other provisions of this Agreement; provided, however , that where the Delaware Act provides that a provision of the Delaware Act shall apply “unless otherwise provided in a limited liability company agreement” or words of similar effect, the provisions of this Agreement shall in each instance control; provided further , that notwithstanding the foregoing, Section  18-210 of the Delaware Act shall not apply or be incorporated into this Agreement.
 Section 2.03 Name . The name of the Company shall be “Amneal Pharmaceuticals LLC”. The Manager in its sole discretion may change the name of the Company at any time and from time to time in accordance with the Delaware Act. Notification of any such change shall be given to all of the Members and, to the extent practicable, to all of the holders of any Equity Securities then outstanding. The Company’s business may be conducted under its name and/or any other name or names deemed advisable by the Manager.
 
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 Section 2.04 Purpose . The primary business and purpose of the Company shall be to engage in such activities as are permitted under the Delaware Act and determined from time to time by the Manager in accordance with the terms and conditions of this Agreement.
 Section 2.05 Principal Office; Registered Office . The principal office of the Company shall be at 400 Crossing Boulevard, 3rd Floor, Bridgewater, NJ 08807, or such other place as the Manager may from time to time designate. The address of the registered office of the Company in the State of Delaware shall be 251 Little Falls Drive, Wilmington, County of New Castle, DE 19808, and the registered agent for service of process on the Company in the State of Delaware at such registered office shall be the Corporation Service Company. The Manager may from time to time change the Company’s registered agent and registered office in the State of Delaware in accordance with the Delaware Act.
 Section 2.06 Term . The term of the Company commenced upon the filing of the Certificate in accordance with the Delaware Act and shall continue until dissolution of the Company in accordance with the provisions of Article XIV . The existence of the Company shall continue as a separate legal entity until cancellation of the Certificate as provided in the Delaware Act.
 Section 2.07 No State-Law Partnership . The Members intend that the Company not be a partnership (including a limited partnership) or joint venture, and that no Member be a partner or joint venturer of any other Member by virtue of this Agreement, for any purposes other than as set forth in the last sentence of this Section  2.07 , and neither this Agreement nor any other document entered into by the Company or any Member relating to the subject matter hereof shall be construed to suggest otherwise. The Members intend that the Company shall be treated as a partnership for U.S. federal (and applicable state and local) income tax purposes, and that each Member and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment.
 ARTICLE III
MEMBERS; UNITS; CAPITALIZATION
 Section 3.01 Members .
(a) Each Original Member previously was admitted as a Member and shall remain a Member of the Company upon the Effective Time. At the Effective Time and concurrently with the Impax Contribution, the Corporation shall be admitted to the Company as a Member.
(b) The Company shall maintain a schedule setting forth: (i) the name of each Member; (ii) the aggregate number of outstanding Units and the number and class of Units held by each Member; (iii) the aggregate amount of cash Capital Contributions that has been made by the Members with respect to their Units; and (iv) the Fair Market Value of any property other than cash contributed by the Members with respect to their Units (including, if applicable, a description and the amount of any liability assumed by the Company or to which contributed property is subject) (such schedule, the “ Schedule of Members ”). The applicable Schedule of Members in effect as of the Effective Time (after giving effect to the Recapitalization and the Impax Contribution) is set forth as Schedule  1 to this Agreement. The Schedule of Members shall be the definitive record of ownership of each Unit of the Company and all relevant information with respect to each Member. The Company shall be entitled to recognize the exclusive right of a Person registered on the Schedule of Members as the owner of Units for all purposes and shall not be bound to recognize any equitable or other claim to or interest in Units on the part of any other Person, whether or not it shall have express or other notice thereof, except as otherwise provided by the Delaware Act.
(c) No Member (other than the Corporation as expressly provided for in this Agreement) shall be required to make any additional Capital Contributions without such Member’s consent. No Member shall be required or,
 
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except as approved by the Manager pursuant to Section  6.01 and in accordance with the other provisions of this Agreement, permitted to loan any money or property to the Company or borrow any money or property from the Company.
 Section 3.02 Units . Interests in the Company shall be represented by Units, or such other securities of the Company, in each case as the Manager may establish in its discretion in accordance with the terms and subject to the restrictions hereof. Immediately after the Effective Time, the Units will be comprised of a single class of Common Units. To the extent required pursuant to Section  3.04(a) , the Manager may create one or more classes or series of Common Units or preferred Units solely to the extent they are in the aggregate substantially equivalent to a class of common stock of the Corporation or class or series of preferred stock of the Corporation.
 Section 3.03 Recapitalization; the Corporation ’ s Capital Contribution; the Corporation ’ s Purchase of Common Units .
(a) Recapitalization . In accordance with the Business Combination Agreement, at the Business Combination Closing, all Original Class A Units, Original Class D Units, Original Class E Units, Original Class F Units, Original Class G Units and Original Class H Units that were issued and outstanding and held by the Original Members prior to the execution and effectiveness of this Agreement are hereby converted into the number of Common Units set forth next to each Original Member’s name on Schedule 1 , which are hereby issued and outstanding as of the Effective Time (collectively, the “ Recapitalization ”).
(b) The Impax Contribution . Pursuant to the Business Combination Agreement, as of the Effective Time, the Corporation has contributed to the Company the Impax Contributed Interests, and the Company has issued to the Corporation in exchange therefor the number of Common Units set forth next to the Corporation’s name on Schedule 1 (the “ Impax Contribution ”). The parties hereto acknowledge and agree that the Impax Contribution will result in a “revaluation of partnership property” and corresponding adjustments to Capital Account balances as described in Section 1.704-1(b)(2)(iv)(f) of the Treasury Regulations.
 Section 3.04 Authorization and Issuance of Additional Units .
(a) If at any time the Corporation issues a share of its Class A Common Stock or Class B-1 Common Stock or any other Equity Security of the Corporation, (i) the Company shall issue to the Corporation one Common Unit (if the Corporation issues a share of Class A Common Stock or Class B-1 Common Stock), or such other Equity Security of the Company (if the Corporation issues Equity Securities other than Class A Common Stock or Class B-1 Common Stock) corresponding to the Equity Securities issued by the Corporation, and with substantially the same rights to dividends and distributions (including distributions upon liquidation) and other economic rights as those of such Equity Securities of the Corporation and (ii) the net proceeds received by the Corporation with respect to the corresponding share of Class A Common Stock or Class B-1 Common Stock or other Equity Security, if any, shall be concurrently contributed by the Corporation to the Company as a Capital Contribution; provided , that if the Corporation issues any shares of Class A Common Stock or Class B-1 Common Stock or in order to directly purchase from another Member (other than the Corporation) a number of Common Units pursuant to Section  11.03(a) (and a corresponding number of shares of Class B Common Stock), then the Company shall not issue any new Common Units in connection therewith and the Corporation shall not be required to transfer such net proceeds to the Company (it being understood that such net proceeds shall instead be transferred to such other Member as consideration for such purchase). Notwithstanding the foregoing, this Section  3.04(a) shall not apply to (i) (A) the issuance and distribution to holders of shares of Class A Common Stock or Class B-1 Common Stock of rights to purchase Equity Securities of the Corporation under a “poison pill” or similar shareholders rights plan or (B) the issuance (including under the Corporation’s Equity Plans) of any warrants, options, other rights or property that are convertible into or exercisable or exchangeable for Common Stock, but shall in each of the foregoing cases apply to the issuance of Common Stock in connection with the conversion, exercise or settlement of such rights, warrants, options or other rights or property or (ii) the issuance of Common Stock pursuant to any Equity Plan that is restricted, subject to forfeiture or otherwise
 
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unvested upon issuance (“ Corporation Restricted Shares ”), but shall apply on the applicable Vesting Date with respect to such Corporation Restricted Shares. Except pursuant to Article XI , (x) the Company may not issue any additional Common Units to the Corporation or any of its Subsidiaries unless substantially simultaneously the Corporation or such Subsidiary issues or sells an equal number of shares of the Corporation’s Class A Common Stock or Class B-1 Common Stock to another Person, and (y) the Company may not issue any other Equity Securities of the Company to the Corporation or any of its Subsidiaries unless substantially simultaneously the Corporation or such Subsidiary issues or sells, to another Person, an equal number of shares of a new class or series of Equity Securities of the Corporation or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation) and other economic rights as those of such Equity Securities of the Company.
(b) The Company shall only be permitted to issue additional Units or other Equity Securities in the Company to the Persons and on the terms and conditions provided for in Section  3.02 , this Section  3.04 and Section  3.11 .
(c) The Company shall not in any manner effect any subdivision (by equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Class A Common Stock or Class B-1 Common Units unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. The Corporation shall not in any manner effect any subdivision (by stock split, stock dividend, reclassification, recapitalization or otherwise) or combination (by reverse stock split, reclassification, recapitalization or otherwise) of the outstanding Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Common Units, with corresponding changes made with respect to any other exchangeable or convertible securities. The Company shall not in any manner effect any subdivision (by equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of any outstanding Equity Securities of the Company (other than the Common Units) unless accompanied by an identical subdivision or combination, as applicable, of the corresponding Equity Securities of the Corporation, with corresponding changes made with respect to any other exchangeable or convertible securities. The Corporation shall not in any manner effect any subdivision (by stock split, stock dividend, reclassification, recapitalization or otherwise) or combination (by reverse stock split, reclassification, recapitalization or otherwise) of any outstanding Equity Securities of the Corporation (other than the Class A Common Stock or Class B-1 Common Stock) unless accompanied by an identical subdivision or combination, as applicable, of the corresponding Equity Securities of the Company, with corresponding changes made with respect to any other exchangeable or convertible securities.
 Section 3.05 Repurchases or Redemptions . The Corporation or any of its Subsidiaries may not redeem, repurchase or otherwise acquire (i) any shares of Class A Common Stock or Class B-1 Common Stock unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the Corporation an equal number of Common Units for the same price per security or (ii) any other Equity Securities of the Corporation unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the Corporation an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation) and other economic rights as those of such Equity Securities of the Corporation for the same price per security. The Company may not redeem, repurchase or otherwise acquire (A) any Common Units from the Corporation or any of its Subsidiaries unless substantially simultaneously the Corporation or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Common Stock or Class B-1 Common Stock for the same price per security from holders thereof or (B) any other Equity Securities of the Company from the Corporation or any of its Subsidiaries unless substantially simultaneously the Corporation or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of the Corporation of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation) and other economic rights as those of such Equity
 
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Securities of the Corporation. Notwithstanding the foregoing, to the extent that any consideration payable by the Corporation in connection with the redemption or repurchase of any shares of Class A Common Stock, Class B-1 Common Stock or other Equity Securities of the Corporation or any of its Subsidiaries consists (in whole or in part) of shares of Class A Common Stock, or Class B-1 Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Common Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
 Section 3.06 Certificates Representing Units; Lost, Stolen or Destroyed Certificates; Registration and Transfer of Units .
(a) Units shall not be certificated unless otherwise determined by the Manager. If the Manager determines that one or more Units shall be certificated, each such certificate shall be signed by or in the name of the Company, by the Chief Executive Officer and any other officer designated by the Manager, representing the number of Units held by such holder. Such certificate shall be in such form (and shall contain such legends) as the Manager may determine. Any or all of such signatures on any certificate representing one or more Units may be a facsimile, engraved or printed, to the extent permitted by applicable Law. The Manager agrees that it shall not elect to treat any Unit as a “security” within the meaning of Article 8 of the Uniform Commercial Code unless thereafter all Units then outstanding are represented by one or more certificates.
(b) If Units are certificated, the Manager may direct that a new certificate representing one or more Units be issued in place of any certificate theretofore issued by the Company alleged to have been lost, stolen or destroyed, upon delivery to the Manager of an affidavit of the owner or owners of such certificate, setting forth such allegation. The Manager may require the owner of such lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Company a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.
(c) Upon surrender to the Company or the transfer agent of the Company, if any, of a certificate for one or more Units, duly endorsed or accompanied by appropriate evidence of succession, assignment or authority to transfer, in compliance with the provisions hereof, the Company shall issue a new certificate representing one or more Units to the Person entitled thereto, cancel the old certificate and record the transaction upon its books. Subject to the provisions of this Agreement, the Manager may prescribe such additional rules and regulations as it may deem appropriate relating to the issue, Transfer and registration of Units.
 Section 3.07 Negative Capital Accounts . No Member shall be required to pay to any other Member or the Company any deficit or negative balance which may exist from time to time in such Member’s Capital Account (including upon and after dissolution of the Company).
 Section 3.08 No Withdrawal . No Person shall be entitled to withdraw any part of such Person’s Capital Contribution or Capital Account or to receive any Distribution from the Company, except as expressly provided in this Agreement.
 Section 3.09 Loans From Members . Loans by Members to the Company shall not be considered Capital Contributions. Subject to the provisions of Section  3.01(c) , the amount of any such advances shall be a debt of the Company to such Member and shall be payable or collectible in accordance with the terms and conditions upon which such advances are made.
 Section 3.10 Tax Treatment of Corporate Equity Plans .
(a) Options Granted to Persons Other than LLC Employees . If at any time or from time to time, in connection with any Equity Plan, a stock option granted over shares of Class A Common Stock to a Person other
 
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than an LLC Employee is duly exercised, notwithstanding the amount of the Capital Contribution actually made pursuant to Section  3.04(a) , solely for U.S. federal (and applicable state and local) income tax purposes, the Corporation shall be deemed to have contributed to the Company as a Capital Contribution, in lieu of the Capital Contribution actually made and in consideration of additional Common Units, an amount equal to the Value of a share of Class A Common Stock as of the date of such exercise multiplied by the number of shares of Class A Common Stock then being issued by the Corporation in connection with the exercise of such stock option.
(b) Options Granted to LLC Employees . If at any time or from time to time, in connection with any Equity Plan, a stock option granted over shares of Class A Common Stock to an LLC Employee is duly exercised, solely for U.S. federal (and applicable state and local) income tax purposes, the following transactions shall be deemed to have occurred:
(i) The Corporation shall sell to the Optionee, and the Optionee shall purchase from the Corporation, for a cash price per share equal to the Value of a share of Class A Common Stock at the time of the exercise, the number of shares of Class A Common Stock equal to the quotient of (x) the exercise price payable by the Optionee in connection with the exercise of such stock option divided by (y) the Value of a share of Class A Common Stock at the time of such exercise.
(ii) The Corporation shall sell to the Company (or if the Optionee is an employee of, or other service provider to, a Subsidiary, the Corporation shall sell to such Subsidiary), and the Company (or such Subsidiary, as applicable) shall purchase from the Corporation, a number of shares of Class A Common Stock equal to the excess of (x) the number of shares of Class A Common Stock as to which such stock option is being exercised over (y) the number of shares of Class A Common Stock sold pursuant to Section  3.10(b)(i) hereof. The purchase price per share of Class A Common Stock for such sale of shares of Class A Common Stock to the Company (or such Subsidiary) shall be the Value of a share of Class A Common Stock as of the date of exercise of such stock option.
(iii) The Company shall transfer to the Optionee (or if the Optionee is an employee of, or other service provider to, a Subsidiary, the Subsidiary shall transfer to the Optionee) at no additional cost to such LLC Employee and as additional compensation to such LLC Employee, the number of shares of Class A Common Stock described in Section  3.10(b)(ii) .
(iv) The Corporation shall be deemed to have contributed any amounts received by the Corporation pursuant to 
Section  3.10(b)(i) and any amount deemed to be received by the Company pursuant to Section  3.10(b)(ii) in connection with the exercise of such stock option.
The transactions described in this Section  3.10(b) are intended to comply with the provisions of Treasury Regulations Section 1.1032-3 and shall be interpreted consistently therewith.
(c) Restricted Stock Granted to LLC Employees . If at any time or from time to time, in connection with any Equity Plan, any shares of Class A Common Stock are issued to an LLC Employee (including any Corporation Restricted Shares) in consideration for services performed for the Company or any Subsidiary, on the date (such date, the “ Vesting Date ”) that the Value of such shares is includible in taxable income of such LLC Employee, the following events will be deemed to have occurred solely for U.S. federal (and applicable state and local) income tax purposes: (a) the Corporation shall be deemed to have sold such shares of Class A Common Stock to the Company (or if such LLC Employee is an employee of, or other service provider to, a Subsidiary, to such Subsidiary) for a purchase price equal to the Value of such shares of Class A Common Stock, (b) the Company (or such Subsidiary) shall be deemed to have delivered such shares of Class A Common Stock to such LLC Employee, (c) the Corporation shall be deemed to have contributed the purchase price for such shares of Class A Common Stock to the Company as a Capital Contribution, and (d) in the case where such LLC Employee is an employee of a Subsidiary, the Company shall be deemed to have contributed such amount to the capital of the Subsidiary.
 
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(d) Future Stock Incentive Plans . Nothing in this Agreement shall be construed or applied to preclude or restrain the Corporation from adopting, modifying or terminating stock incentive plans for the benefit of employees, directors or other business associates of the Corporation, the Company or any of their respective Affiliates. The Members acknowledge and agree that, in the event that any such plan is adopted, modified or terminated by the Corporation, amendments to this Section  3.10 may become necessary or advisable and that any approval or consent to any such amendments requested by the Corporation shall be deemed granted by the Manager without the requirement of any further consent or acknowledgement of any other Member.
(e) Anti-dilution Adjustments. For all purposes of this Section  3.10 , the number of shares of Class A Common Stock and the corresponding number of Common Units shall be determined after giving effect to all anti-dilution or similar adjustments that are applicable, as of the date of exercise or vesting, to the option, warrant, restricted stock or other equity interest that is being exercised or becomes vested under the applicable Equity Plan and applicable award or grant documentation.
 Section 3.11 Dividend Reinvestment Plan, Cash Option Purchase Plan, Stock Incentive Plan or Other Plan . Except as may otherwise be provided in this Article III , all amounts received or deemed received by the Corporation in respect of any dividend reinvestment plan, cash option purchase plan, stock incentive or other stock or subscription plan or agreement, either (a) shall be utilized by the Corporation to effect open market purchases of shares of Class A Common Stock, or (b) if the Corporation elects instead to issue new shares of Class A Common Stock with respect to such amounts, shall be contributed by the Corporation to the Company in exchange for additional Common Units. Upon such contribution, the Company will issue to the Corporation a number of Common Units equal to the number of new shares of Class A Common Stock so issued.
 ARTICLE IV
DISTRIBUTIONS
 Section 4.01 Distributions .
(a) Distributable Cash; Other Distributions . To the extent permitted by applicable Law and hereunder, Distributions to Members may be declared by the Manager out of Distributable Cash or other funds or property legally available therefor in such amounts and on such terms (including the payment dates of such Distributions) as the Manager shall determine using such record date as the Manager may designate; such Distributions shall be made to the Members as of the close of business on such record date on a pro rata basis in accordance with each Member’s Percentage Interest as of the close of business on such record date; provided, however , that the Manager shall have the obligation to make Distributions as set forth in Sections 4.01(b) and 14.02 ; and provided further that, notwithstanding any other provision herein to the contrary, no Distributions shall be made to any Member to the extent such Distribution would violate Section 18-607 or Section 18-804 of the Delaware Act. Promptly following the designation of a record date and the declaration of a Distribution pursuant to this Section  4.01(a) , the Manager shall give notice to each Member of the record date, the amount and the terms of the Distribution and the payment date thereof. In furtherance of the foregoing, it is intended that the Manager shall, to the extent permitted by applicable Law and hereunder, have the right in its reasonable discretion to make Distributions to the Members pursuant to this Section  4.01(a) in such amounts as shall enable the Corporation to pay dividends or to meet its obligations (to the extent such obligations are not otherwise able to be satisfied as a result of Tax Distributions required to be made pursuant to Section  4.01(b) or reimbursements required to be made pursuant to Section  6.06 ).
(b) Tax Distributions . With respect to any tax period (or the portion thereof) ending after the date hereof:
(i) The Company shall make distributions to all Members pro rata, in accordance with each Member’s Percentage Interest, on a quarterly basis and in such amounts as necessary to enable the Corporation to timely (x) satisfy all of its U.S. federal, state and local and non-U.S. tax liabilities, and (y) meet its obligations pursuant to the Tax Receivable Agreement.
 
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(ii) If a Member (other than the Corporation) has an Assumed Tax Liability at a Tax Advance Date in excess of the sum of the amount of distributions under Section  4.01(a), Section  4.01(b)(i) and any Tax Advances made to such Member during such taxable year, the Company shall, to the extent permitted by applicable Law, and subject to the availability of funds and any restrictions contained in any agreement to which the Company or any of its Subsidiaries is bound, make advances to such Member in an amount equal to such excess (a “ Tax Advance ”). Any such Tax Advance shall be treated as an advance against and, thus, shall reduce (without duplication), any future distributions that would otherwise be made to such Member pursuant to Sections 4.01(a) and 14.02(c) . If there is a Tax Advance outstanding with respect to a Member who (x) elects to participate in a Redemption (including, for the avoidance of doubt, any Direct Exchange at the option of the Corporation pursuant to Section  11.03 ), or (y) Transfers Units pursuant to the provisions of Article X , then in each case such Member shall repay to the Company within fifteen (15) days after the Redemption Date or Date of such Transfer, as the case may be, an amount of cash equal to the proportionate share of such Tax Advance relating to its Units subject to the Redemption or Transfer (determined at the time of the Redemption or Transfer based on the number of Units subject to the Redemption or Transfer as compared to the total number of Units held by such Member), provided that, in the case of a Transfer described in clause (y) , such Member shall not be required to pay such amount of cash equal to the proportionate share of such Tax Advance relating to its Units subject to the Transfer, if the transferee agrees to assume the Member’s obligation to repay to the Company such amount equal to the proportionate share of the Member’s existing Tax Advance relating to such Units subject to the Transfer, and such Member shall be relieved from any liabilities associated with and the obligation to repay its existing Tax Advance relating to such Units subject to the Transfer. The obligations of each Member pursuant to the preceding sentence shall survive the withdrawal of any Member or the Transfer of any Member’s Units and shall apply to any current or former Member. For the avoidance of doubt, any repayment of a Tax Advance pursuant to the previous sentence shall not be treated as a Capital Contribution.
(c) Tax Refunds of the Corporation . All refunds for taxes received by the Corporation after the Effective Time that are attributable to taxable periods (or portions thereof) ending on or before the Effective Time shall be promptly transferred to the Company for no consideration and no additional Units shall be issued to the Corporation in respect of any such transfer. Such transfers shall not constitute Capital Contributions and shall have no effect on the Capital Accounts of any Member.
 Section 4.02 Restricted Distributions . Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make any Distribution to any Member on account of any Company Interest if such Distribution would violate any applicable Law or the terms of the Credit Agreement or result in a default (or an event that, with notice or the lapse of time or both, would constitute a default) thereunder.
 ARTICLE V
CAPITAL ACCOUNTS; ALLOCATIONS; TAX MATTERS
 Section 5.01 Capital Accounts .
(a) The Company shall maintain a separate Capital Account for each Member according to the rules of Treasury Regulations Section 1.704-1(b)(2)(iv). For this purpose, the Company may (in the reasonable discretion of the Manager), upon the occurrence of the events specified in Treasury Regulations Section 1.704-1(b)(2)(iv)(f), increase or decrease the Capital Accounts in accordance with the rules of such Treasury Regulations and Treasury Regulations Section 1.704-1(b)(2)(iv)(g) to reflect a revaluation of Company property. The Capital Account balance of each of the Members as of the date hereof, as adjusted in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(f), is its respective “Contribution Closing Capital Account Balance” set forth on the Schedule of Members.
(b) For purposes of computing the amount of any item of Company income, gain, loss or deduction to be allocated pursuant to this Article V and to be reflected in the Capital Accounts of the Members, the
 
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determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for U.S. federal income tax purposes (including any method of depreciation, cost recovery or amortization used for this purpose); provided, however , that:
(i) The computation of all items of income, gain, loss and deduction shall include those items described in
Code Section 705(a)(l)(B) or Code Section 705(a)(2)(B) and Treasury Regulations Section 1.704-1(b)(2)(iv)(i), without regard to the fact that such items are not includable in gross income or are not deductible for U.S. federal income tax purposes.
(ii) If the Book Value of any Company property is adjusted pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(e) or (f), the amount of such adjustment shall be taken into account as gain or loss from the disposition of such property.
(iii) Items of income, gain, loss or deduction attributable to the disposition of Company property having a Book Value that differs from its adjusted basis for tax purposes shall be computed by reference to the Book Value of such property.
(iv) In lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing Profits or Losses, there shall be taken into account Depreciation for such Taxable Year or other Fiscal Period.
(v) To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Sections 732(d), 734(b) or 743(b) is required, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis).
(vi) Items specifically allocated under Section  5.03 shall be excluded from the computation of Profits and Losses.
 Section 5.02 Allocations . After giving effect to the allocations under Section  5.03 , and subject to Section  5.04 , Profits, Losses and, to the extent necessary, individual items of income, gain, loss, credit and deduction, for any Taxable Year or other Fiscal Period shall be allocated among the Capital Accounts of the Members on a pro rata basis in accordance with each Member’s Percentage Interest.
 Section 5.03 Regulatory and Special Allocations .
(a) Partner nonrecourse deductions (as defined in Treasury Regulations Section 1.704-2(i)(2)) attributable to partner nonrecourse debt (as defined in Treasury Regulations Section 1.704-2(b)(4)) shall be allocated in the manner required by Treasury Regulations Section 1.704-2(i). If there is a net decrease during a Taxable Year in Member Minimum Gain, items of Company income and gain for such Taxable Year (and, if necessary, for subsequent Taxable Years) shall be allocated to the Members in the amounts and of such character as determined according to Treasury Regulations Section 1.704-2(i)(4).
(b) Nonrecourse deductions (as determined according to Treasury Regulations Section 1.704-2(b)(1)) for any Taxable Year shall be allocated pro rata among the Members in accordance with their Percentage Interests. Except as otherwise provided in Section  5.03(a) , if there is a net decrease in the Company Minimum Gain during any Taxable Year, each Member shall be allocated items of Company income and gain for such Taxable Year (and, if necessary, for subsequent Taxable Years) in the amounts and of such character as determined according to Treasury Regulations Section 1.704-2(f). This Section  5.03(b) is intended to be a minimum gain chargeback provision that complies with the requirements of Treasury Regulations Section 1.704-2(f), and shall be interpreted in a manner consistent therewith.
(c) If any Member that unexpectedly receives an adjustment, allocation or Distribution described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) has an Adjusted Capital Account Deficit as of
 
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the end of any Taxable Year, computed after the application of Sections 5.03(a) and 5.03(b) but before the application of any other provision of this Article V , then items of Company income and gain for such Taxable Year shall be allocated to such Member in proportion to, and to the extent of, such Adjusted Capital Account Deficit. This Section  5.03(c) is intended to be a qualified income offset provision as described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted in a manner consistent therewith.
(d) If the allocation of Losses to a Member as provided in Section  5.02 would create or increase an Adjusted Capital Account Deficit, there shall be allocated to such Member only that amount of Losses as will not create or increase an Adjusted Capital Account Deficit. The Losses that would, absent the application of the preceding sentence, otherwise be allocated to such Member shall be allocated to the other Members in accordance with their relative Percentage Interests, subject to this Section  5.03(d) .
(e) Profits and Losses described in Section  5.01(b)(v) shall be allocated in a manner consistent with the manner that the adjustments to the Capital Accounts are required to be made pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(j) and (m).
(f) The allocations set forth in Section  5.03(a) through and including Section  5.03(d) (the “ Regulatory Allocations ”) are intended to comply with certain requirements of Sections 1.704-1(b) and 1.704-2 of the Treasury Regulations. The Regulatory Allocations may not be consistent with the manner in which the Members intend to allocate Profit and Loss of the Company or make Distributions. Accordingly, notwithstanding the other provisions of this Article V , but subject to the Regulatory Allocations, income, gain, deduction and loss shall be reallocated among the Members so as to eliminate the effect of the Regulatory Allocations and thereby cause the respective Capital Accounts of the Members to be in the amounts (or as close thereto as possible) they would have been if Profit and Loss (and such other items of income, gain, deduction and loss) had been allocated without reference to the Regulatory Allocations. In general, the Members anticipate that this will be accomplished by specially allocating other Profit and Loss (and such other items of income, gain, deduction and loss) among the Members so that the net amount of the Regulatory Allocations and such special allocations to each such Member is zero. In addition, if in any Taxable Year or other Fiscal Period there is a decrease in Company Minimum Gain, or in Member Minimum Gain, and application of the minimum gain chargeback requirements set forth in Section  5.03(a) or Section  5.03(b) would cause a distortion in the economic arrangement among the Members, the Members may, if they do not expect that the Company will have sufficient other income to correct such distortion, request the Internal Revenue Service to waive either or both of such minimum gain chargeback requirements. If such request is granted, this Agreement shall be applied in such instance as if it did not contain such minimum gain chargeback requirement.
 Section 5.04 Tax Allocations .
(a) The income, gains, losses, deductions and credits of the Company will be allocated, for U.S. federal (and applicable state and local) income tax purposes, among the Members in accordance with the allocation of such income, gains, losses, deductions and credits among the Members for computing their Capital Accounts; provided that if any such allocation is not permitted by the Code or other applicable Law, the Company’s subsequent income, gains, losses, deductions and credits will be allocated among the Members so as to reflect as nearly as possible the allocation set forth herein in computing their Capital Accounts.
(b) Items of Company taxable income, gain, loss and deduction with respect to any property contributed to the capital of the Company shall be allocated among the Members in accordance with Code Section 704(c) so as to take account of any variation between the adjusted basis of such property to the Company for U.S. federal income tax purposes and its Book Value in a manner consistent with Code Section 704(c) and the applicable Regulations using any method approved under Section 704(c) of the Code and the Treasury Regulations promulgated thereunder as mutually agreed to by the Manager and APHC (or its successor). If the Manager and APHC (or its successor) are unable to agree on such a method, the variation shall be taken into account using the “traditional method,” as described in Treasury Regulations Section 1.704-3(b).
 
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(c) If the Book Value of any Company asset is adjusted pursuant to Section  5.01(b) , subsequent allocations of items of taxable income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for U.S. federal income tax purposes and its Book Value in a manner consistent with Code Section 704(c) and the applicable Regulations using any method approved under Section 704(c) of the Code and the Treasury Regulations promulgated thereunder as mutually agreed to by the Manager and APHC (or its successor). If the Manager and APHC (or its successor) are unable to agree on such a method, the variation shall be taken into account using the “traditional method,” as described in Treasury Regulations Section 1.704-3(b).
(d) In the event of a Transfer of Units, Profits and Losses and other items of income, gain, loss and deduction of the Company attributable to such transferred Units for the Fiscal Period in which such Transfer occurs shall be determined using either the interim closing of the books method or the proration method, as mutually agreed to by the Corporation and APHC (or its successor) for so long as APHC (or its successor) remains a Member and at the election of the Corporation thereafter.
(e) If, as a result of an exercise of a noncompensatory option to acquire an interest in the Company, a Capital Account reallocation is required under Treasury Regulations Section 1.704-1(b)(2)(iv)( s )(3), the Company shall make corrective allocations pursuant to Treasury Regulations Section 1.704-1(b)(4)(x).
(f) Allocations of tax credits, tax credit recapture, and any items related thereto shall be allocated to the Members pro rata as determined by the Manager taking into account the principles of Treasury Regulations Section 1.704-1(b)(4)(ii).
(g) Each Member’s share of the Company’s “excess nonrecourse liabilities” shall be determined in accordance with Treasury Regulations Section 1.752-3(a)(3) using a method mutually agreed to by the Manager and APHC (or its successor). If the Manager and APHC (or its successor) are unable to agree on such a method, the Company’s excess nonrecourse liabilities shall be allocated to the Members using the “additional method,” as described in Treasury Regulations Section 1.752-3(a)(3).
(h) Allocations pursuant to this Section  5.04 are solely for purposes of U.S. federal (and applicable state and local) income taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, Distributions or other Company items pursuant to any provision of this Agreement.
 Section 5.05 Withholding; Reimbursement for Payments on Behalf of a Member . The Company and its Subsidiaries may withhold from distributions, allocations or portions thereof if it is required to do so by any applicable Law, and each Member hereby authorizes the Company and its Subsidiaries to withhold or pay on behalf of or with respect to such Member any amount of U.S. federal, state, or local or non-U.S. taxes that the Manager determines, in good faith, that the Company or any of its Subsidiaries is required to withhold or pay with respect to any amount distributable or allocable to such Member pursuant to this Agreement. In addition, if the Company is obligated to pay any other amount to a Governmental Entity (or otherwise makes a payment to a Governmental Entity) that is specifically attributable to a Member (including U.S. federal income taxes as a result of Company obligations pursuant to the Revised Partnership Audit Provisions with respect to items of income, gain, loss deduction or credit allocable or attributable to such Member, state personal property taxes and state unincorporated business taxes, but excluding payments such as professional association fees and the like made voluntarily by the Company on behalf of any Member based upon such Member’s status as an employee of the Company), then such tax shall be treated as an amount of taxes withheld or paid with respect to such Member pursuant to this Section  5.05 . For all purposes under this Agreement, any amounts withheld or paid with respect to a Member pursuant to this Section  5.05 shall be treated as having been distributed to such Member at the time such withholding or payment is made. Further, to the extent that the cumulative amount of such withholding or payment for any period exceeds the distributions to which such Member is entitled for such period, such Member shall reimburse the Company in full for the amount of such excess. The Manager may offset Distributions to
 
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which a Person is otherwise entitled under this Agreement against such Person’s obligation to reimburse the Company under this Section  5.05 . A Member’s obligation to reimburse the Company under this Section  5.05 shall survive the termination, dissolution, liquidation and winding up of the Company, and for purposes of this Section  5.05 , the Company shall be treated as continuing in existence. The Company may pursue and enforce all rights and remedies it may have against each Member under this Section  5.05 , including instituting a lawsuit to collect amounts owed under such reimbursement obligation with interest accruing from the date such withholding or payment is made by the Company at a rate per annum equal to the Base Rate (but not in excess of the highest rate per annum permitted by Law). Any income from such reimbursement (and interest) shall not be allocated to or distributed to the Member reimbursing such amount (and interest). Each Member hereby agrees to furnish to the Company such information and forms as required or reasonably requested in order to comply with any laws and regulations governing withholding of tax or in order to claim any reduced rate of, or exemption from, withholding to which the Member is legally entitled.
 ARTICLE VI
MANAGEMENT
 Section 6.01 Authority of Manager .
(a) Except for situations in which the approval of any Member(s) is specifically required by this Agreement and for situations in which the approval of the Conflicts Committee is required pursuant to the Stockholders Agreement, or as otherwise provided in this Agreement, (i) all management powers over the business and affairs of the Company shall be exclusively vested in the Corporation, as the sole managing member of the Company (the Corporation, in such capacity, or any other Person appointed in accordance with Section  6.04 , the “ Manager ”) and (ii) the Manager shall conduct, direct and exercise full control over all activities of the Company. The Manager shall be the “manager” of the Company for the purposes of the Delaware Act. Except as otherwise expressly provided for herein and subject to the other provisions of this Agreement, the Members hereby consent to the exercise by the Manager of all such powers and rights conferred on the Members by the Delaware Act with respect to the management and control of the Company. Any vacancies in the position of Manager shall be filled in accordance with Section  6.04 .
(b) The day-to-day business and operations of the Company shall be overseen and implemented by officers of the Company (each, an “ Officer ” and collectively, the “ Officers ”), subject to the limitations imposed by the Manager. An Officer may, but need not, be a Member. Each Officer shall be appointed by the Manager and shall hold office until his or her successor shall be duly designated and shall qualify or until his or her death or until he or she shall resign or shall have been removed in the manner hereinafter provided. Any one Person may hold more than one office. Subject to the other provisions in this Agreement (including in Section  6.07 below), the salaries or other compensation, if any, of the Officers of the Company shall be fixed from time to time by the Manager. The authority and responsibility of the Officers shall include, but not be limited to, such duties as the Manager may, from time to time, delegate to them and the carrying out of the Company’s business and affairs on a day-to-day basis. An Officer may also perform one or more roles as an officer of the Manager. The Manager may remove any Officer from office at any time, with or without cause. If any vacancy shall occur in any office, for any reason whatsoever, then the Manager shall have the right to appoint a new Officer to fill the vacancy. Notwithstanding anything to the contrary herein, at the Effective Time, the Manager shall appoint the chief executive officer of the Corporation to serve as the chief executive officer of the Company until his death or until he shall resign or shall have been removed by the Manager in the manner provided herein.
(c) Subject to the other provisions of this Agreement, the Manager shall have the power and authority to effectuate the sale, lease, transfer, exchange or other disposition of any, all or substantially all of the assets of the Company (including the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Company) or the merger, consolidation, reorganization or other combination of the Company with or into another entity.
 
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 Section 6.02 Actions of the Manager . The Manager may act through any Officer or through any other Person or Persons to whom authority and duties have been delegated pursuant to Section  6.07 .
 Section 6.03 Resignation; No Removal . The Corporation shall not, by any means, resign as, cease to be or be replaced as the Manager except in compliance with this Section  6.03 . No termination or replacement of the Corporation as the Manager shall be effective unless proper provision is made, in compliance with this Agreement, so that the obligations of the Corporation (or its successor, if applicable) and any new Manager and the rights of all Members under this Agreement and applicable Law remain in full force and effect. No appointment of a Person other than the Corporation (or its successor, as applicable) as the Manager shall be effective unless the Corporation (or its successor, as applicable) and the new Manager (as applicable) provide all of the other Members with contractual rights, directly enforceable by such other Members against the Corporation (or its successor, as applicable) and the new Manager (as applicable), to cause (a) the Corporation to comply with all of the Corporation’s obligations under this Agreement (including its obligations under Article XI ) other than those that must necessarily be taken in its capacity as the Manager and (b) the new Manager to comply with all of the Manager’s obligations under this Agreement. For the avoidance of doubt, the Members have no right under this Agreement to remove or replace the Manager.
 Section 6.04 Vacancies . Vacancies in the position of Manager occurring for any reason shall be filled by the Corporation (or, if the Corporation has ceased to exist without any successor or assign, then by the holders of a majority in interest of the voting capital stock of the Corporation immediately prior to such cessation). For the avoidance of doubt, the Members (other than the Corporation) have no right under this Agreement to fill any vacancy in the position of Manager.
 Section 6.05 Transactions Between Company and Manager . The Manager may cause the Company to contract and deal with the Manager, or any Affiliate of the Manager; provided that such contracts and dealings are on terms comparable to and competitive with those available to the Company from others dealing at arm’s length or are approved by the Members (other than the Manager and its controlled Affiliates) holding a majority of the Units (excluding Units held by the Manager and its controlled Affiliates) then outstanding and, in any case, would not violate any provisions of or result in a default (or an event that, with notice or the lapse of time or both, would constitute a default) under the Credit Agreement; and provided , further , that any such contracts and dealings that are deemed Related Party Transactions (as defined in the Stockholders Agreement) shall be subject to Conflicts Committee approval.
 Section 6.06 Reimbursement for Expenses . The Manager shall not be compensated for its services as Manager of the Company except as expressly provided in this Agreement. The Members acknowledge and agree that the Manager’s Class A Common Stock is and will continue to be publicly traded and therefore the Manager will have access to the public capital markets and that such status and the services performed by the Manager will inure to the benefit of the Company and all Members; therefore, the Manager shall be reimbursed by the Company for any reasonable out-of-pocket expenses incurred on behalf of the Company, including all fees, expenses and costs of being a public company (including public reporting obligations, proxy statements, stockholder meetings, stock exchange fees, transfer agent fees, SEC and FINRA filing fees and offering expenses) and maintaining its existence as a separate legal entity, but excluding, for the avoidance of doubt, any payment obligations of the Corporation under the Tax Receivable Agreement. In the event that (i) shares of Class A Common Stock were sold to underwriters in the initial public offering of the Corporation or are sold to underwriters in any public offering after the Effective Time, in each case, at a price per share that is lower than the price per share for which such shares of Class A Common Stock are sold to the public in such public offering after taking into account underwriters’ discounts or commissions and brokers’ fees or commissions (such difference, the “ Discount ”) and (ii) the proceeds from such public offering are used to fund the Cash Settlement for any Redeemed Units or otherwise contributed to the Company, the Company shall reimburse the Manager for such Discount by treating such Discount as an additional Capital Contribution made by the Manager to the Company, issuing Common Units in respect of such deemed Capital Contribution in accordance with Section  11.02 , and increasing the Manager’s Capital Account by the amount of such Discount. To the extent
 
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practicable, expenses incurred by the Manager on behalf of or for the benefit of the Company shall be billed directly to and paid by the Company and, if and to the extent any reimbursements to the Manager or any of its Affiliates by the Company pursuant to this Section  6.06 constitute gross income to such Person (as opposed to the repayment of advances made by such Person on behalf of the Company), such amounts shall be treated as “guaranteed payments” within the meaning of Code Section 707(c) and shall not be treated as distributions for purposes of computing the Members’ Capital Accounts.
 Section 6.07 Delegation of Authority . The Manager (a) may, from time to time, delegate to one or more Persons such authority and duties as the Manager may deem advisable, and (b) may assign titles (including chief executive officer, president, chief executive officer, chief financial officers, chief operating officer, vice president, secretary, assistant secretary, treasurer or assistant treasurer) and delegate certain authority and duties to such Persons as the same may be amended, restated, supplemented or otherwise modified from time to time. Any number of titles may be held by the same individual. The salaries or other compensation, if any, of such agents of the Company shall be fixed from time to time by the Manager, subject to the other provisions in this Agreement.
 Section 6.08 Limitation of Liability of Manager .
(a) Except as otherwise provided herein or in an agreement entered into by such Person and the Company, neither the Manager nor any of the Manager’s Affiliates shall be liable to the Company or to any Member that is not the Manager for any act or omission performed or omitted by the Manager in its capacity as the sole managing member of the Company pursuant to authority granted to the Manager by this Agreement; provided, however , that, except as otherwise provided herein, such limitation of liability shall not apply to the extent the act or omission was attributable to the Manager’s or its Affiliates’ or their respective agents’ bad faith, willful misconduct or violation of Law in which the Manager or such Affiliate or their respective agents acted with knowledge that its conduct was unlawful, or for any present or future breaches of any representations, warranties, covenants or obligations by the Manager or its Affiliates contained herein or in the other agreements with the Company. The Manager may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents, and, to the fullest extent permitted by applicable Law, shall not be responsible for any misconduct or negligence on the part of any such agent (so long as such agent was selected in good faith and with reasonable care). The Manager shall be entitled to rely upon the advice of legal counsel, independent public accountants and other experts, including financial advisors, and any act of or failure to act by the Manager in good faith reliance on such advice shall in no event subject the Manager to liability to the Company or any Member that is not the Manager.
(b) Subject to Section  6.11 , whenever in this Agreement the Manager is permitted or required to take any action or to make a decision in its “good faith” or under another express standard, the Manager shall act under such express standard and, to the fullest extent permitted by applicable Law, shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein, and, notwithstanding anything contained herein to the contrary, so long as the Manager acts in good faith, the resolution, action or terms so made, taken or provided by the Manager shall not constitute a breach of this Agreement or any other agreement contemplated herein or impose liability upon the Manager or any of the Manager’s Affiliates.
 Section 6.09 Investment Company Act . The Manager shall use its best efforts to ensure that the Company shall not be subject to registration as an investment company pursuant to the Investment Company Act.
 Section 6.10 Outside Activities of the Manager . The Manager shall not, directly or indirectly, enter into or conduct any business or operations, other than in connection with (a) the ownership, acquisition and disposition of Common Units, (b) the management of the business and affairs of the Company and its Subsidiaries, (c) the operation of the Manager as a reporting company with a class (or classes) of securities registered under Section 12 of the Exchange Act and listed on a securities exchange, (d) the offering, sale, syndication, private
 
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placement or public offering of stock, bonds, securities or other interests, (e) financing or refinancing of any type related to the Company, its Subsidiaries or their assets or activities, and (f) such activities as are incidental to the foregoing; provided, however , that, except as otherwise provided herein, the net proceeds of any sale of Equity Securities of the Corporation pursuant to the preceding clauses (d) and (e) shall be made available to the Company as Capital Contributions and the proceeds of any other financing raised by the Manager pursuant to the preceding clauses (d) and (e) shall be made available to the Company as loans or otherwise as appropriate and, provided further , that the Manager may, in its sole and absolute discretion, from time to time hold or acquire assets in its own name or otherwise other than through the Company and its Subsidiaries so long as the Manager takes all necessary measures to ensure that the economic benefits and burdens of such assets are otherwise vested in the Company or its Subsidiaries, through assignment, mortgage loan or otherwise. Nothing contained herein shall be deemed to prohibit the Manager from executing any guarantee of indebtedness of the Company or its Subsidiaries.
 Section 6.11 Standard of Care . Subject to the second sentence of this Section  6.11 , the Manager shall, in connection with the performance of its duties in its capacity as the Manager, have the same fiduciary duties to the Company and the Members as would be owed to a Delaware corporation and its stockholders by its directors, and shall be entitled to the benefit of the same presumptions in carrying out such duties as would be afforded to a director of a Delaware corporation (as such duties and presumptions are defined, described and explained under the Laws of the State of Delaware as in effect from time to time). Notwithstanding anything to the contrary set forth in this Agreement, the Manager shall not be liable to the Company or its Members for monetary damages for any breach of fiduciary duty that would be owed to a Delaware corporation and its stockholders by its directors; provided , however , that this, limitation of liability shall not eliminate or limit the liabilities of the Manager for any breach of the duty of loyalty to the Company or its Members or for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law. The provisions of this Agreement, to the extent that they restrict or eliminate the duties (including fiduciary duties) and liabilities of the Manager otherwise existing at law or in equity, are agreed by the Members to replace, to the fullest extent permitted by applicable Law, such other duties and liabilities of the Manager.
 ARTICLE VII
RIGHTS AND OBLIGATIONS OF MEMBERS
 Section 7.01 Limitation of Liability and Duties of Members; Investment Opportunities .
(a) Except as provided in this Agreement or in the Delaware Act, no Member (including the Manager) shall be obligated personally for any debt, obligation or liability solely by reason of being a Member or acting as the Manager of the Company; provided that, in the case of the Manager, and subject to the second sentence of Section  6.11 , this sentence shall not in any manner limit the liability of the Manager to the Company or any Member (other than the Manager) attributable to a breach by the Manager of any obligations of the Manager under this Agreement. Notwithstanding anything contained herein to the contrary, the failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business and affairs under this Agreement or the Delaware Act shall not be grounds for imposing personal liability on the Members for liabilities of the Company.
(b) In accordance with the Delaware Act and the laws of the State of Delaware, a Member may, under certain circumstances, be required to return amounts previously distributed to such Member. To the fullest extent permitted by applicable Law, it is the intent of the Members that no Distribution to any Member pursuant to Article IV shall be deemed a return of money or other property paid or distributed in violation of the Delaware Act. The payment of any such money or Distribution of any such property to a Member shall be deemed to be a compromise within the meaning of Section 18-502(b) of the Delaware Act, and, to the fullest extent permitted by Law, any Member receiving any such money or property shall not be required to return any such money or property to the Company or any other Person. However, if any court of competent jurisdiction holds that,
 
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notwithstanding the provisions of this Agreement, any Member is obligated to make any such payment, such obligation shall be the obligation of such Member and not of any other Member.
(c) Notwithstanding any other provision of this Agreement (subject to Section  6.08 and except as set forth in Section  6.11 , in each case, with respect to the Manager), to the extent that, at law or in equity, any Member (or such Member’s Affiliate or any manager, managing member, general partner, director, officer, employee, agent, fiduciary or trustee of such Member or of any Affiliate of such Member (each Person described in this parenthetical, a “ Related Person ”)) has duties (including fiduciary duties (other than any fiduciary duty owed by such Member or Related Person to the Corporation)) to the Company, to the Manager, to another Member, to any Person who acquires an interest in a Company Interest or to any other Person bound by this Agreement, all such duties are hereby eliminated, to the fullest extent permitted by law, and replaced with the duties or standards expressly set forth herein, if any. The elimination of duties to the Company, the Manager, each of the Members, each other Person who acquires an interest in a Company Interest and each other Person bound by this Agreement and replacement thereof with the duties or standards expressly set forth herein, if any, are approved by the Company, the Manager, each of the Members, each other Person who acquires an interest in a Company Interest and each other Person bound by this Agreement.
(d) Notwithstanding any duty (including any fiduciary duty) otherwise applicable at law or in equity, the doctrine of corporate opportunity, or any analogous doctrine, will not apply to any Member (including the Corporation in its capacity as a Member or as Manager) or to any Related Person of such Member, and no Member (or any Related Person of such Member) that acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Company or the Members will have any duty to communicate or offer such opportunity to the Company or the Members, or to develop any particular investment, and such Person will not be liable to the Company or the Members for breach of any fiduciary or other duty (other than any fiduciary duty owed by such Person to the Corporation) by reason of the fact that such Person pursues or acquires for, or directs such opportunity to, another Person or does not communicate such investment opportunity to the Members. Notwithstanding any duty (including any fiduciary duty (other than any fiduciary duty owed to the Corporation)) otherwise applicable at law or in equity, neither the Company nor any Member has any rights or obligations by virtue of this Agreement or the relationships created hereby in or to such independent ventures or the income or profits or losses derived therefrom, and the pursuit of any such ventures outside the Company, even if competitive with the activities of the Company or the Members, will not be deemed wrongful or improper.
 Section 7.02 Lack of Authority . No Member, other than the Manager or a duly appointed Officer, in each case in its capacity as such, has the authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company or to make any expenditure on behalf of the Company. The Members hereby consent to the exercise by the Manager of the powers conferred on the Manager by Law and this Agreement.
 Section 7.03 No Right of Partition . No Member shall have the right to seek or obtain partition by court decree or operation of Law of any Company property, or the right to own or use particular or individual assets of the Company.
 Section 7.04 Indemnification .
(a) Subject to Section  5.05 , the Company hereby agrees to indemnify and hold harmless any Person (each an “ Indemnified Person ”) to the fullest extent permitted under the Delaware Act, as the same now exists or may hereafter be amended, substituted or replaced (but, in the case of any such amendment, substitution or replacement only to the extent that such amendment, substitution or replacement permits the Company to provide broader indemnification rights than the Company is providing immediately prior to such amendment), against all expenses, liabilities, damages and losses (including attorneys’ fees, judgments, amounts paid in settlement, fines, excise taxes, interest or penalties) reasonably incurred or suffered by such Person (or one or more of such Person’s Affiliates) by reason of the fact that such Person is or was serving as the Manager or Officer of the
 
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Company or is or was serving at the request of the Company as a manager, officer, director, principal or member of another corporation, partnership, joint venture, limited liability company, trust or other enterprise; provided, however , that no Indemnified Person shall be indemnified for any expenses, liabilities and losses suffered that are attributable to such Indemnified Person’s or its Affiliates’ bad faith, willful misconduct or violation of Law in which such Indemnified Person or such Affiliate acted with knowledge that its conduct was unlawful, or for any present or future breaches of any representations, warranties, covenants or obligations by such Indemnified Person or its Affiliates contained herein or in the other agreements with the Company. Expenses, including attorneys’ fees, incurred by any such Indemnified Person in defending a proceeding shall be paid by the Company in advance of the final disposition of such proceeding, including any appeal therefrom, upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company.
(b) The right to indemnification and the advancement of expenses conferred in this Section  7.04 shall not be exclusive of any other right which any Person may have or hereafter acquire under any statute, agreement, bylaw, action by the Manager or otherwise.
(c) The Company shall maintain directors’ and officers’ liability insurance, or substantially equivalent insurance, at its expense, to protect any Indemnified Person (and the investment funds, if any, they represent) against any expense, liability or loss described in Section  7.04(a) whether or not the Company would have the power to indemnify such Indemnified Person against such expense, liability or loss under the provisions of this Section  7.04 . The Company shall use its commercially reasonable efforts to purchase and maintain property, casualty and liability insurance in types and at levels customary for companies of similar size engaged in similar lines of business, as determined in good faith by the Manager, and the Company shall use its commercially reasonable efforts to purchase directors’ and officers’ liability insurance (including employment practices coverage) with a carrier and in an amount that is necessary or desirable as determined in good faith by the Manager.
(d) Notwithstanding any provision to the contrary in this Agreement, the indemnification and advancement of expenses to be provided by the Company pursuant to this Section  7.04 shall be provided out of and to the extent of Company assets only and no Member (unless such Member otherwise agrees in writing or is found in a final decision by a court of competent jurisdiction to have personal liability on account thereof) shall have personal liability on account thereof or shall be required to make additional Capital Contributions to help satisfy such indemnity of the Company.
(e) If this Section  7.04 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Indemnified Person pursuant to this Section  7.04 to the fullest extent permitted by any applicable portion of this Section   7.04 that shall not have been invalidated and to the fullest extent permitted by applicable Law.
 Section 7.05 Members Right to Act . For matters that require the approval of the Members, the Members shall act through meetings and written consents as described in paragraphs (a) and (b) below:
(a) Except as otherwise expressly provided by this Agreement, acts by the Members holding a majority of the outstanding Units, voting together as a single class, shall be the acts of the Members. Any Member entitled to vote at a meeting of Members may authorize another person or persons to act for it by proxy. An electronic mail, telegram, telex, cablegram or similar transmission by the Member, or a photographic, photostatic, facsimile or similar reproduction of a writing executed by the Member shall (if stated thereon) be treated as a proxy executed in writing for purposes of this Section  7.05(a) . No proxy shall be voted or acted upon after eleven (11) months from the date thereof, unless the proxy provides for a longer period. A proxy shall be revocable unless the proxy form conspicuously states that the proxy is irrevocable and that the proxy is coupled with an interest. Should a proxy designate two or more Persons to act as proxies, unless that instrument shall provide to the contrary, a majority of such Persons present at any meeting at which their powers thereunder are to be exercised shall have
 
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and may exercise all the powers of voting or giving consents thereby conferred, or, if only one be present, then such powers may be exercised by that one; or, if an even number attend and a majority do not agree on any particular issue, the Company shall not be required to recognize such proxy with respect to such issue if such proxy does not specify how the votes that are the subject of such proxy are to be voted with respect to such issue.
(b) The actions by the Members permitted hereunder may be taken at a meeting called by the Manager or by the Members holding a majority of the Units entitled to vote on such matter on at least forty eight (48) hours’ prior written notice to the other Members entitled to vote, which notice shall state the purpose or purposes for which such meeting is being called. The actions taken by the Members entitled to vote or consent at any meeting (as opposed to by written consent), however called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the Members entitled to vote or consent as to whom it was improperly held signs a written waiver of notice or a consent to the holding of such meeting or an approval of the minutes thereof. The actions by the Members entitled to vote or consent may be taken by vote of the Members entitled to vote or consent at a meeting or by written consent, so long as such consent is signed by Members having not less than the minimum number of Units that would be necessary to authorize or take such action at a meeting at which all Members entitled to vote thereon were present and voted. Prompt notice of the action so taken, which shall state the purpose or purposes for which such consent is required and may be delivered via email, without a meeting shall be given to those Members entitled to vote or consent who have not consented in writing; provided, however , that the failure to give any such notice shall not affect the validity of the action taken by such written consent. Any action taken pursuant to such written consent of the Members shall have the same force and effect as if taken by the Members at a meeting thereof.
 Section 7.06 Inspection Rights . The Company shall permit each Member and each of its designated representatives to (i) visit and inspect any of the properties of the Company and its Subsidiaries, all at reasonable times and upon reasonable notice, (ii) examine the corporate and financial records of the Company or any of its Subsidiaries and make copies thereof or extracts therefrom, (iii) consult with the managers, officers, employees and independent accountants of the Company or any of its Subsidiaries concerning the affairs, finances and accounts of the Company or any of its Subsidiaries. The presentation of an executed copy of this Agreement by any Member to the Company’s independent accountants shall constitute the Company’s permission to its independent accountants to participate in discussions with such Persons and their respective designated representatives.
 ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS, AFFIRMATIVE COVENANTS
 Section 8.01 Records and Accounting . The Company shall keep, or cause to be kept, appropriate books and records with respect to the Company’s business, including all books and records necessary to provide any information, lists and copies of documents required to be provided pursuant to Section  9.01 or pursuant to applicable Laws. All matters concerning (a) the determination of the relative amount of allocations and Distributions among the Members pursuant to Articles III and IV and (b) accounting procedures and determinations, and other determinations not specifically and expressly provided for by the terms of this Agreement, shall be determined by the Manager, whose determination shall be final and conclusive as to all of the Members absent manifest clerical error.
 Section 8.02 Fiscal Year . The Fiscal Year of the Company shall end on December 31 of each year or such other date as may be established by the Manager; provided that the Company shall have the same Fiscal Year for accounting purposes as its Taxable Year for U.S. federal income tax purposes.
 
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 ARTICLE IX
TAX MATTERS
 Section 9.01 Preparation of Tax Returns . The Manager shall arrange, at the Company’s expense, for the preparation and timely filing of all tax returns required to be filed by the Company. On or before March 15, June 15, September 15, and December 15 of each Taxable Year, the Company shall send to each Person who was a Member at any time during the prior quarter, an estimate of such Member’s state tax apportionment information and allocations to the Members of taxable income, gains, losses, deductions and credits for the prior quarter, which estimate shall have been reviewed by the Company’s outside tax accountants. The Company shall send to each Person who was a Member at any time during such Taxable Year, a statement showing such Member’s (A) final state tax apportionment information, (B) allocations to the Members of taxable income, gains, losses, deductions and credits for such Taxable Year, (C) a completed IRS Schedule K-1 and (D) all other information reasonably requested and necessary for the preparation of such Person’s U.S. federal (and applicable state and local) income tax returns. The Company shall make commercially reasonable efforts to send the information set forth in the preceding sentence no later than the later of (i) April 15 following the end of the prior Taxable Year, and (ii) thirty (30) Business Days after the issuance of the final financial statement report for a Fiscal Year by the Company’s auditors; provided , however , that in no event shall such information be delivered later than one-hundred fifty (150) days following the end of the prior Taxable Year. Each Member shall notify the Company, and the Company shall take reasonable efforts to notify each of the other Members, upon receipt of any notice of tax examination of the Company by U.S. federal, state or local authorities. Subject to the terms and conditions of this Agreement, in its capacity as Tax Matters Partner or Partnership Representative (as applicable), the Corporation shall have the authority to prepare the tax returns of the Company using the elections set forth in Section  9.02 and such other permissible methods and elections as it determines in its reasonable discretion.
 Section 9.02 Tax Elections . The Company and any eligible Subsidiary shall make an election pursuant to Section 754 of the Code, shall not thereafter revoke such election and shall make a new election pursuant to Section 754 to the extent necessary following any “termination” of the Company or the Subsidiary under Section 708 of the Code. In addition, the Company (and any eligible Subsidiary) shall make the following elections on the appropriate forms or tax returns:
(a) to adopt the calendar year as the Company’s Taxable Year, if permitted under the Code;
(b) to adopt the accrual method of accounting for U.S. federal income tax purposes; and
(c) to elect to amortize the organizational expenses of the Company as permitted by Code Section 709(b).
Each Member will upon request supply any information reasonably necessary to give proper effect to any such elections.
 Section 9.03 Tax Controversies .
(a) With respect to Tax Years beginning on or before December 31, 2017, the Corporation is hereby designated the Tax Matters Partner of the Company, within the meaning given to such term in Section 6231 of the Code (the Corporation, in such capacity, the “ Tax Matters Partner ”) and is authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services reasonably incurred in connection therewith. Each Member agrees to cooperate with the Company and to do or refrain from doing any or all things reasonably requested by the Company with respect to the conduct of such proceedings. The Tax Matters Partners shall keep all Members fully advised on a current basis of any contacts by or discussions with the tax authorities, and the Members shall have the right to observe and participate through representatives of their own choosing (at their sole expense) in any tax proceedings. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Code (Code Sections 6221 et seq.).
 
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(b) With respect to Tax Years beginning after December 31, 2017, pursuant to the Revised Partnership Audit Provisions, the Corporation shall be designated and may, on behalf of the Company, at any time, and without further notice to or consent from any Member, act as the “partnership representative” of the Company, within the meaning given to such term in Section 6223 of the Code (the Corporation, in such capacity, the “ Partnership Representative ”) for purposes of the Code. The Partnership Representative shall have the right and obligation to take all actions authorized and required, respectively, by the Code for the Partnership Representative, and is authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services reasonably incurred in connection therewith. Each Member agrees to cooperate with the Company and to do or refrain from doing any or all things reasonably requested by the Company with respect to the conduct of such proceedings. The Partnership Representative shall keep all Members fully advised on a current basis of any contacts by or discussions with the tax authorities, and the Members shall have the right to observe and participate through representatives of their own choosing (at their sole expense) in any tax proceedings. Nothing herein shall diminish, limit or restrict the rights of any Member under the Revised Partnership Audit Provisions.
 Section 9.04 Liabilities . The Manager shall make commercially reasonable efforts to ensure that all indebtedness that for U.S. federal income tax purposes is treated as indebtedness of the Company or any of its direct or indirect Subsidiaries that is treated as a partnership for U.S. federal income tax purposes are nonrecourse liabilities within the meaning of Treasury Regulations Section 1.752-1(a)(2).
 ARTICLE X
RESTRICTIONS ON TRANSFER OF UNITS
 Section 10.01 Transfers by Members . No holder of Units may Transfer any interest in any Units, except Transfers (a) pursuant to and in accordance with Section  10.02 or (b) approved in writing by the Manager (other than any Transfer by the Manager). Notwithstanding the foregoing, (i) “Transfer” shall not include an event that terminates the existence of a Member for income tax purposes (including, without limitation, a change in entity classification of a Member under Treasury Regulations Section 301.7701-3, termination of a partnership pursuant to Section 708(b)(1)(B) of the Code, a sale of assets by, or liquidation of, a Member pursuant to an election under Section 338 of the Code, or merger, severance, or allocation within a trust or among sub-trusts of a trust that is a Member), but that does not terminate the existence of such Member under applicable state law (or, in the case of a trust that is a Member, does not terminate the trusteeship of the fiduciaries under such trust with respect to all the Company Interests of such trust that is a Member) and (ii) this Article X shall not restrict any Redemption pursuant to Section  11.01 or exchange pursuant to Section   11.03 .
 Section 10.02 Permitted Transfers . The restrictions contained in Section  10.01 shall not apply to any Transfer (each, a “ Permitted Transfer ”) (i) by a Member to an Affiliate of such Member, (ii) by any Original Member or any direct or (through a subsequent transfer) indirect transferee of such Original Member (A) with the prior written consent of the Conflicts Committee, (B) in response to a tender or exchange offer that has been approved or recommended by the Corporate Board, (C) in connection with any Company Sale (as defined in the Stockholders Agreement), (D) that is an individual, (1) to such Original Member’s (or such transferee’s) spouse, (2) to such Original Member’s (or such transferee’s) lineal ancestors, lineal descendants, siblings, cousins or the spouses thereof, (3) to trusts for the benefit of such Original Member (or such transferee) or such persons, (4) to foundations established by such Original Member (or such transferee) or such persons or Affiliates thereof or (5) by way of bequest or inheritance upon death, (E) that is an entity, to such Original Member’s (or such transferee’s) members, partners or other equity holders or (F) of up to a total of 60,000,000 Common Units (as adjusted for any equity split, equity distribution, recapitalization, combination, reclassification or similar change in the capital structure of the Company following the date hereof) in the aggregate for all Members collectively pursuant to one or more PIPE Transactions (as defined in the Stockholders Agreement) (without duplication of the foregoing clauses (A) through (E)) or (iii) pursuant to a Redemption or Direct Exchange in accordance with
 
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Article XI hereof; provided, however , that the restrictions contained in this Agreement shall continue to apply to Units after any Permitted Transfer of such Units. In the case of any Permitted Transfer in accordance with clauses (i) or (ii) of the definition of “Permitted Transfer”, (A) the transferor shall deliver a written notice to the Company and the Members, which notice will disclose in reasonable detail the identity of the proposed transferee, and (B) any such transferees of Units Transferred in such Permitted Transfer shall agree in writing to be bound by the provisions of this Agreement. In the case of a Permitted Transfer (other than a Redemption or Direct Exchange) by any Original Member of Common Units to a transferee in accordance with this Section  10.02 , such Member (or any subsequent transferee of such Member) shall be required to also Transfer a number of shares of Class B Common Stock corresponding to the number of such Member’s (or subsequent transferee’s) Common Units that were Transferred in the transaction to such transferee; and, in the case of a Redemption or Direct Exchange, a number of shares of Class B Common Stock corresponding to the number of such Member’s Common Units that were Transferred in such Redemption or Direct Exchange shall be cancelled. All Permitted Transfers are subject to the additional limitations set forth in Section  10.07(b) hereof (other than Section  10.07(b)(iii) ) and Section 4.1 of the Stockholders Agreement.
 Section 10.03 Restricted Units Legend . The Units have not been registered under the Securities Act and, therefore, in addition to the other restrictions on Transfer contained in this Agreement, cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is then available. To the extent such Units have been certificated, each certificate evidencing Units and each certificate issued in exchange for or upon the Transfer of any Units (if such securities remain Units as defined herein after such Transfer) shall be stamped or otherwise imprinted with a legend in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON [        ], 2017, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ ACT ”), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED IN THE THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF AMNEAL PHARMACEUTICALS LLC, AS MAY BE AMENDED AND MODIFIED FROM TIME TO TIME, AND AMNEAL PHARMACEUTICALS LLC RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO ANY TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY AMNEAL PHARMACEUTICALS LLC TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.”
The Company shall imprint such legend on certificates (if any) evidencing Units. The legend set forth above shall be removed from the certificates (if any) evidencing any units which cease to be Units in accordance with the definition thereof.
 Section 10.04 Transfer . Prior to Transferring any Units (other than (i) in connection with a Redemption or Direct Exchange in accordance with Article XI or (ii) pursuant to a Change of Control Transaction), the Transferring holder of Units shall cause the prospective transferee to be bound by this Agreement and any other agreements executed by the holders of Units and relating to such Units in the aggregate (collectively, the “ Other Agreements ”), and shall cause the prospective transferee to execute and deliver to the Company and the other holders of Units a Joinder (or other counterpart to this Agreement reasonably acceptable to the Manager) and counterparts of any applicable Other Agreements. Any Transfer or attempted Transfer of any Units in violation of any provision of this Agreement (including any prohibited indirect Transfers) (a) shall be void, and (b) the Company shall not record such Transfer on its books or treat any purported transferee of such Units as the owner of such securities for any purpose.
 
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 Section 10.05 Assignee ’ s Rights .
(a) The Transfer of a Company Interest in accordance with this Agreement shall be effective as of the date of its assignment (assuming compliance with all of the conditions to such Transfer set forth herein), and such Transfer shall be shown on the Schedule of Members. Profits, Losses and other Company items shall be allocated between the transferor and the Assignee according to Code Section 706, using any permissible method as determined in the reasonable discretion of the Manager. Distributions made before the effective date of such Transfer shall be paid to the transferor, and Distributions made after such date shall be paid to the Assignee.
(b) Unless and until an Assignee becomes a Member pursuant to Article XII , the Assignee shall not be entitled to any of the rights granted to a Member hereunder or under applicable Law, other than the rights granted specifically to Assignees pursuant to this Agreement; provided, however , that, without relieving the transferring Member from any such limitations or obligations as more fully described in Section  10.06 , such Assignee shall be bound by any limitations and obligations of a Member contained herein that a Member would be bound on account of the Assignee’s Company Interest (including the obligation to make Capital Contributions on account of such Company Interest).
 Section 10.06 Assignor ’ s Rights and Obligations . Any Member who shall Transfer any Company Interest in a manner in accordance with this Agreement shall cease to be a Member with respect to such Units or other interest and shall no longer have any rights or privileges, or, except as set forth in this Section  10.06 , duties, liabilities or obligations, of a Member with respect to such Units or other interest (it being understood, however, that the applicable provisions of Section  6.08 , Section  7.01 and Section  7.04 shall continue to inure to such Person’s benefit), except that unless and until the Assignee (if not already a Member) is admitted as a Substituted Member in accordance with the provisions of Article XII (the “ Admission Date ”), (i) such assigning Member shall retain all of the duties, liabilities and obligations of a Member with respect to such Units or other interest, and (ii) the Manager may, in its sole discretion, reinstate all or any portion of the rights and privileges of such Member with respect to such Units or other interest for any period of time prior to the Admission Date. Nothing contained herein shall relieve any Member who Transfers any Units or other interest in the Company from any liability of such Member to the Company with respect to such Company Interest that may exist on the Admission Date or that is otherwise specified in the Delaware Act and incorporated into this Agreement or for any liability to the Company or any other Person for any materially false statement made by such Member (in its capacity as such) or for any present or future breaches of any representations, warranties or covenants by such Member (in its capacity as such) contained herein or in the other agreements with the Company.
 Section 10.07 Overriding Provisions .
(a) Any Transfer in violation of this Article X shall be null and void ab initio, and the provisions of Sections 10.05 and 10.06 shall not apply to any such Transfers. For the avoidance of doubt, any Person to whom a Transfer is made or attempted in violation of this Article X shall not become a Member, shall not be entitled to vote on any matters coming before the Members and shall not have any other rights in or with respect to any rights of a Member of the Company. The approval of any Transfer in any one or more instances shall not limit or waive the requirement for such approval in any other or future instance. The Manager shall promptly amend the Schedule of Members to reflect any Permitted Transfer pursuant to this Article X .
(b) Notwithstanding anything contained herein to the contrary (including, for the avoidance of doubt, the provisions of Section  10.01 and Article XI and Article XII ), in no event shall any Member Transfer any Units to the extent such Transfer would:
(i) result in the violation of the Securities Act, or any other applicable U.S. federal or state or non-U.S. Laws;
(ii) subject the Company to registration as an investment company under the Investment Company Act;
 
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(iii) in the reasonable determination of the Manager, be a violation of or a default (or an event that, with notice or the lapse of time or both, would constitute a default) under, or result in an acceleration of any indebtedness under, any promissory note, mortgage, loan agreement, indenture or similar instrument or agreement to which the Company or the Manager is a party; provided that the payee or creditor to whom the Company or the Manager owes such obligation is not an Affiliate of the Company or the Manager; provided , further , this Section  10.07(b)(iii) shall not apply to any Permitted Transfer;
(iv) fail to meet one or more of the “secondary market safe harbors” described in Treasury Regulations Sections 1.7704-1(e) (regarding transfers not involving trading, such as, for example certain gift transfers certain carryover basis transfers and certain transfers involving blocks of interests representing more than two percent (2%) of the total interests in the Company’s capital or profits), 1.7704-1(f) (regarding transfers pursuant to certain redemption and repurchase agreements), 1.7704-1(g) (regarding transfers through qualified matching services), or 1.7704-1(j) (regarding transfers where there is a lack of actual trading (that is, trading in the aggregate representing two percent (2%) or less of the total interests in the Company’s capital or profits in a taxable year)), and, accordingly, in no event shall the Company recognize any Transfer of any Units in a taxable year, other than those Transfers that are described in Treasury Regulations Sections 1.7704-1(e)(1)(i)-(vii), 1.7704-1(e)(1)(ix), 1.7704-1(f), or 1.7704-1(g), to the extent such Transfers in the aggregate for such taxable year would exceed two percent (2%) of the total interests in the Company’s capital or profits as determined in accordance with Treasury Regulations Sections 1.7704-1(j) and 1.7704-1(k); provided that the prohibitions contained in this Section  10.07(b)(iv) shall not apply to any Transfer occurring in any taxable year in which the Company did not have more than one hundred (100) partners within the meaning of Treasury Regulations Section 1.7704-1(h)(1) (determined by treating each Person that owns an interest in a Member that is a partnership, S corporation, or grantor trust for federal income tax purposes as a partner pursuant to Treasury Regulations Section 1.7704-1(h)) at any time during such taxable year; provided , further , this Section  10.07(b)(iv) shall apply to any transaction that would be a transfer for U.S. federal income tax purposes even if such transfer is not a Transfer as defined herein;
(v) cause the Company to lose its status as a partnership for U.S. federal income tax purposes or, without limiting the generality of the foregoing, cause the Company to be treated as a “publicly traded partnership” or to be taxed as a corporation pursuant to Section 7704 of the Code and any applicable Treasury Regulations issued thereunder, or any successor provision of the Code; provided , further , this Section  10.07(b)(v) shall apply to any transaction that would be a transfer for U.S. federal income tax purposes, even if such transfer is not a Transfer as defined herein, or
(vi) be a Transfer to a Person who is not legally competent or who has not achieved his or her majority under applicable Law (excluding trusts for the benefit of minors).
 ARTICLE XI
REDEMPTION AND EXCHANGE RIGHTS
 Section 11.01 Redemption Right of a Member .
(a) Each Member (other than the Corporation) shall be entitled to cause the Company to redeem (a “ Redemption ”) all or any portion of its Common Units (the “ Redemption Right ”) at any time. A Member desiring to exercise its Redemption Right (the “ Redeemed Member ”) shall exercise such right by giving written notice (collectively, the “ Redemption Notice ”) to the Company with a copy to the Corporation (the date of the delivery of such Redemption Notice, the “ Redemption Notice Date ”). The Redemption Notice shall specify the number of Common Units (the “ Redeemed Units ”) that the Redeemed Member intends to have the Company redeem. The Redemption shall be completed on the date that is three (3) Business Days following delivery of the applicable Redemption Notice, unless the Company elects and is permitted to make the redemption payment by means of a Cash Settlement, in which case the Redemption shall be completed as promptly as practicable
 
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following delivery of the applicable Redemption Notice, but in any event, no more than ten (10) Business Days after delivery of such Redemption Notice (unless and to the extent that the Manager in its reasonable discretion agrees in writing to waive such time periods) (the date of such completion, the “ Redemption Date ”); provided that the Company, the Corporation and the Redeemed Member may change the number of Redeemed Units and/or the Redemption Date specified in such Redemption Notice to another number and/or date by mutual agreement in writing signed by each of them; provided further that a Redemption Notice that includes Redeemed Units that are to be redeemed for Class A Common Stock may be conditioned on the closing of an underwritten distribution of the shares of Class A Common Stock that may be issued in connection with such proposed Redemption. Unless the Redeemed Member timely has delivered a Retraction Notice as provided in Section  11.01(b) or has delayed a Redemption as provided in Section  11.01(c) or the Corporation has elected to effect a Direct Exchange as provided in Section  11.03 , on the Redemption Date (to be effective immediately prior to the close of business on the Redemption Date) (i) the Redeemed Member shall transfer and surrender the Redeemed Units to the Company and a corresponding number of shares of Class B Common Stock to the Corporation, in each case free and clear of all liens and encumbrances, (ii) the Company shall (x) cancel the Redeemed Units, (y) transfer to the Redeemed Member the consideration to which the Redeemed Member is entitled under Section  11.01(b) , and (z) if the Units are certificated, issue to the Redeemed Member a certificate for a number of Common Units equal to the difference (if any) between the number of Common Units evidenced by the certificate surrendered by the Redeemed Member pursuant to clause (i) of this Section  11.01(a) and the number of Redeemed Units and (iii) the Corporation shall cancel such shares of Class B Common Stock.
(b) In exchange for its Redeemed Units, a Redeemed Member shall be entitled to receive the Share Settlement or, at the Company’s election, the Cash Settlement from the Company; provided , however , that the Company shall not be permitted to elect the Cash Settlement method in connection with any Redemption of Common Units that are to be redeemed for Class B-1 Common Stock pursuant to a Class B-1 Redemption Election by such Redeemed Member. Within one (1) Business Day of delivery of the Redemption Notice, the Company shall give written notice (the “ Settlement Method Notice ”) to the Redeemed Member (with a copy to the Corporation) of its intended settlement method; provided that if the Company does not timely deliver a Settlement Method Notice, the Company shall be deemed to have elected the Share Settlement method. The Redeemed Member may retract its Redemption Notice by giving written notice (the “ Retraction Notice ”) to the Company (with a copy to the Corporation) at any time prior to 5:00 p.m., New York City time, on the Business Day after delivery of the Settlement Method Notice. The timely delivery of a Retraction Notice shall terminate all of the Redeemed Member’s, the Company’s and the Corporation’ rights and obligations under this Section  11.01 arising from the retracted Redemption Notice.
(c) Notwithstanding anything to the contrary in Section  11.01(b) , in the event the Company elects a Share Settlement in connection with a Redemption, a Redeemed Member shall be entitled, at any time prior to the consummation of a Redemption, to revoke its Redemption Notice or delay the consummation of a Redemption if any of the following conditions exists: (i) any registration statement pursuant to which the resale of the Class A Common Stock to be registered for such Redeemed Member at or immediately following the consummation of the Redemption shall have ceased to be effective pursuant to any action or inaction by the SEC or no such resale registration statement has yet become effective; (ii) the Corporation shall have failed to cause any related prospectus to be supplemented by any required prospectus supplement necessary to effect such Redemption; (iii) the Corporation shall have exercised a contractual right to defer, delay or suspend the filing or effectiveness of a registration statement and such deferral, delay or suspension shall affect the ability of such Redeemed Member to have the resale of its Class A Common Stock registered at or immediately following the consummation of the Redemption; (iv) the Corporation shall have disclosed to such Redeemed Member any material non-public information concerning the Corporation, the receipt of which results in such Redeemed Member being prohibited or restricted from selling Class A Common Stock at or immediately following the Redemption without disclosure of such information (and the Corporation does not permit disclosure); (v) any stop order relating to the registration statement pursuant to which the Class A Common Stock was to be registered by such Redeemed Member at or immediately following the Redemption shall have been issued by the SEC; (vi) there shall have occurred a material disruption in the securities markets generally or in the market or
 
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markets in which the Class A Common Stock is then traded; (vii) there shall be in effect an injunction, a restraining order or a decree of any nature of any Governmental Entity that restrains or prohibits the Redemption; (viii) the Corporation shall have failed to comply in all material respects with its obligations under the Stockholders Agreement, and such failure shall have affected the ability of such Redeemed Member to consummate the resale of Class A Common Stock to be received upon such redemption pursuant to an effective registration statement; or (ix) the Redemption Date would occur three (3) Business Days or less prior to, or during, a Black-Out Period; provided further , that in no event shall the Redeemed Member seeking to delay the consummation of such Redemption and relying on any of the matters contemplated in clauses (i) through (ix) above have controlled or intentionally materially influenced any facts, circumstances, or Persons in connection therewith (except in the good faith performance of his or her duties as an officer or director of the Corporation) in order to provide such Redeemed Member with a basis for such delay or revocation. If a Redeemed Member delays the consummation of a Redemption pursuant to this Section  11.01(c) , (A) the Redemption Date shall occur on the third (3rd) Business Day following the date on which the conditions giving rise to such delay cease to exist (or such earlier day as the Corporation, the Company and such Redeemed Member may agree in writing) and (B) notwithstanding anything to the contrary in Section  11.01(b) , the Redeemed Member may retract its Redemption Notice by giving a Retraction Notice to the Company (with a copy to the Corporation) at any time prior to 5:00 p.m., New York City time, on the second Business Day following the date on which the conditions giving rise to such delay cease to exist.
(d) The amount of the Share Settlement or the Cash Settlement that a Redeemed Member is entitled to receive under 
Section  11.01(b) shall not be adjusted on account of any Distributions previously made with respect to the Redeemed Units or dividends previously paid with respect to Class A Common Stock or Class B-1 Common Stock; provided, however , that if a Redeemed Member causes the Company to redeem Redeemed Units and the Redemption Date occurs subsequent to the record date for any Distribution with respect to the Redeemed Units but prior to payment of such Distribution, the Redeemed Member shall be entitled to receive such Distribution with respect to the Redeemed Units on the date that it is made notwithstanding that the Redeemed Member transferred and surrendered the Redeemed Units to the Company prior to such date.
(e) In the event of a distribution (by dividend or otherwise) by the Corporation to all holders of Class A Common Stock or Class B-1 Common Stock of evidences of its indebtedness, securities, or other assets (including Equity Securities of the Corporation), but excluding any cash dividend or distribution of any such assets received by the Corporation in respect of its Units, then, in exchange for its Redeemed Units, a Redeemed Member shall be entitled to receive, in addition to the consideration set forth in Section  11.01(b) , the amount of such security, securities or other property that the Redeemed Member would have received if such Redemption Right had been exercised and the Redemption Date had occurred immediately prior to the record date or effective time of any such transaction, taking into account any adjustment as a result of any subdivision (by any split, distribution or dividend, reclassification, reorganization, recapitalization or otherwise) or combination (by reverse split, reclassification, recapitalization or otherwise) of such security, securities or other property that occurs after such record date or effective time. For the avoidance of doubt, subsequent to any such transaction, this Article XI shall apply mutatis mutandis with respect to any such security, securities or other property received by holders of Class A Common Stock or Class B-1 Common Stock in such transaction.
(f) If a Reclassification Event occurs, the Manager or its successor, as the case may be, shall, as and to the extent necessary, amend this Agreement in compliance with Section  16.03 , and enter into any necessary supplementary or additional agreements, to ensure that, following the effective date of the Reclassification Event: (i) the rights of holders of Common Units (other than the Corporation) set forth in this Section  11.01 provide that each Common Unit is redeemable for the same amount and same type of property, securities or cash (or combination thereof) that one share of Class A Common Stock (or, in the case of a Class B-1 Redemption Election, Class B-1 Common Stock) becomes exchangeable for or converted into as a result of the Reclassification Event (taking into account any adjustment as a result of any subdivision (by any split, distribution or dividend, reclassification, reorganization, recapitalization or otherwise) or combination (by reverse split, reclassification, recapitalization or otherwise) of such security, securities or other property that
 
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occurs after the record date or effective time for such Reclassification Event) and (ii) the Corporation or the successor to the Corporation, as applicable, is obligated to deliver such property, securities or cash upon such redemption. The Corporation shall not consummate or agree to consummate any Reclassification Event unless the successor Person, if any, becomes obligated to comply with the obligations of the Corporation (in whatever capacity) under this Agreement.
 Section 11.02 Contribution of the Corporation . Subject to Section  11.03 , in connection with the exercise of a Redeemed Member’s Redemption Rights under Section  11.01(a) , the Corporation shall contribute to the Company the consideration the Redeemed Member is entitled to receive under Section  11.01(b) . Unless the Redeemed Member has timely delivered a Retraction Notice as provided in Section  11.01(b) or has delayed a Redemption as provided in Section  11.01(c) , or the Corporation has elected to effect a Direct Exchange as provided in Section  11.03 , on the Redemption Date (to be effective immediately prior to the close of business on the Redemption Date) (i) the Corporation shall make its Capital Contribution to the Company (in the form of the Share Settlement or the Cash Settlement) required under this Section  11.02 , and (ii) the Company shall issue to the Corporation a number of Common Units equal to the number of Redeemed Units surrendered by the Redeemed Member. Notwithstanding any other provisions of this Agreement to the contrary, in the event that the Company elects and is permitted to make the redemption payment by means of a Cash Settlement, the Corporation shall only be obligated to contribute to the Company an amount in respect of such Cash Settlement equal to the net proceeds (after deduction of any underwriters’ discounts or commissions and brokers’ fees or commissions) from the sale by the Corporation of a number of shares of Class A Common Stock equal to the number of Redeemed Units to be redeemed with such Cash Settlement; provided that (x) the Corporation’s Capital Account shall be increased by an amount equal to any such discounts, commissions and fees relating to such sale of shares of Class A Common Stock in accordance with Section  6.06 and (y) for the avoidance of doubt, if the Cash Settlement to which the Redeemed Member is entitled exceeds the amount that is contributed to the Company by the Corporation, the Company shall still be required to pay the Redeemed Member the full amount of the Cash Settlement.
 Section 11.03 Exchange Right of the Corporation .
(a) Notwithstanding anything to the contrary in this Article XI , the Corporation may, in its sole and absolute discretion, elect to effect on the Redemption Date the exchange of Redeemed Units for the Share Settlement or Cash Settlement, at the Corporation’s option, through a direct exchange of such Redeemed Units and such consideration between the Redeemed Member and the Corporation (a “ Direct Exchange ”); provided , however , that the Corporation shall not be permitted to elect to effect a Direct Exchange for the Cash Settlement in respect of any Redeemed Units that are to be redeemed for Class B-1 Common Stock pursuant to a Class B-1 Redemption Election by such Redeemed Member. Upon such Direct Exchange pursuant to this Section  11.03 , the Corporation shall acquire the Redeemed Units and shall be treated for all purposes of this Agreement as the owner of such Units.
(b) The Corporation may, at any time prior to a Redemption Date, deliver written notice (an “ Exchange Election Notice ”) to the Company and the Redeemed Member setting forth its election to exercise its right to consummate a Direct Exchange; provided that such election does not prejudice the ability of the parties to consummate a Redemption or Direct Exchange on the Redemption Date. An Exchange Election Notice may be revoked by the Corporation at any time; provided that any such revocation does not prejudice the ability of the parties to consummate a Redemption on the Redemption Date. The right to consummate a Direct Exchange in all events shall be exercisable for all the Redeemed Units that would have otherwise been subject to a Redemption. Except as otherwise provided by this Section  11.03 , a Direct Exchange shall be consummated pursuant to the same timeframe and in the same manner as the relevant Redemption would have been consummated if the Corporation had not delivered an Exchange Election Notice.
 Section 11.04 Reservation of Shares of Class  A Common Stock and Class B-1 Common Stock; Listing; Certificate of the Corporation . At all times the Corporation shall reserve and keep available out of its authorized
 
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but unissued Class A Common Stock and Class B-1 Common Stock, solely for the purpose of issuance upon a Redemption or Direct Exchange, such number of shares of Class A Common Stock and Class B-1 Common Stock as shall be issuable upon any such Redemption or Direct Exchange pursuant to Share Settlements; provided that nothing contained herein shall be construed to preclude the Corporation from satisfying its obligations (i) in respect of any Redeemed Units that are to be redeemed for Class A Common Stock in such Redemption or Direct Exchange by delivery of purchased Class A Common Stock (which may or may not be held in the treasury of the Corporation) or the delivery of cash pursuant to a Cash Settlement or (ii) in respect of any Redeemed Units that are to be redeemed for Class B-1 Common Stock in such Redemption or Direct Exchange by delivery of purchased Class B-1 Common Stock (which may or may not be held in the treasury of the Corporation). The Corporation shall deliver Class A Common Stock that has been registered under the Securities Act with respect to any Redeemed Units that are to be redeemed for Class A Common Stock in Redemption or Direct Exchange to the extent a registration statement is effective and available for such shares. The Corporation shall use its commercially reasonable efforts to list the Class A Common Stock required to be delivered upon any such Redemption or Direct Exchange prior to such delivery upon each national securities exchange upon which the outstanding shares of Class A Common Stock are listed at the time of such Redemption or Direct Exchange (it being understood that any such shares may be subject to transfer restrictions under applicable securities Laws). The Corporation covenants that all Class A Common Stock issued and Class B-1 Common Stock upon a Redemption or Direct Exchange will, upon issuance, be validly issued, fully paid and non-assessable. The provisions of this Article XI shall be interpreted and applied in a manner consistent with the corresponding provisions of the Corporation’s certificate of incorporation.
 Section 11.05 Effect of Exercise of Redemption or Exchange Right . This Agreement shall continue notwithstanding the consummation of a Redemption or Direct Exchange and all governance or other rights set forth herein shall be exercised by the remaining Members and the Redeemed Member (to the extent of such Redeemed Member’s remaining interest in the Company). No Redemption or Direct Exchange shall relieve such Redeemed Member of any prior breach of this Agreement.
 Section 11.06 Tax Treatment . Unless otherwise required by applicable Law, the parties hereto acknowledge and agree that a Redemption or a Direct Exchange, as the case may be, shall be treated as a direct exchange between the Corporation and the Redeemed Member for U.S. federal (and applicable state and local) income tax purposes. The issuance of shares of Class A Common Stock, Class B-1 Common Stock or other securities upon a Redemption or Direct Exchange shall be made without charge to the Redeemed Member for any stamp or other similar tax in respect of such issuance.
 ARTICLE XII
ADMISSION OF MEMBERS
 Section 12.01 Substituted Members . Subject to the provisions of Article X , in connection with the Permitted Transfer of a Company Interest hereunder or a Transfer consented to by the Conflicts Committee, the transferee shall become a substituted Member (“ Substituted Member ”) on the effective date of such Transfer, which effective date shall not be earlier than the date of compliance with the conditions to such Transfer, and such admission shall be shown on the Schedule of Members.
 Section 12.02 Additional Members . Subject to the provisions of Article III and Article X , any Person that is not an Original Member or the Corporation may be admitted to the Company as an additional Member (any such Person, an “ Additional Member ”) only upon furnishing to the Manager (a) a Joinder (or other counterpart to this Agreement reasonably acceptable to the Manager) and counterparts of any applicable Other Agreements and (b) such other documents or instruments as may be reasonably necessary or appropriate to effect such Person’s admission as a Member (including entering into such documents as the Manager may deem appropriate in its reasonable discretion). Such admission shall become effective on the date on which the Manager determines in its reasonable discretion that such conditions have been satisfied and when any such admission is shown on the books and records of the Company.
 
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 ARTICLE XIII
WITHDRAWAL AND RESIGNATION; TERMINATION OF RIGHTS
 Section 13.01 Withdrawal and Resignation of Members . No Member shall have the power or right to withdraw or otherwise resign as a Member from the Company prior to the termination of the Company pursuant to Article XIV . Upon a Transfer of all of a Member’s Units in a Transfer permitted by this Agreement, subject to the provisions of Section  10.06 , such Member shall cease to be a Member.
 ARTICLE XIV
DISSOLUTION AND LIQUIDATION
 Section 14.01 Dissolution . The Company shall not be dissolved by the admission of Additional Members or Substituted Members or the attempted withdrawal or resignation of a Member. The Company shall dissolve, and its affairs shall be wound up, upon:
(a) the decision of the Manager (pursuant to a unanimous decision of the Corporate Board) together with the Requisite Members to dissolve the Company;
(b) a dissolution of the Company under Section 18-801(a)(4) of the Delaware Act; or
(c) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Delaware Act.
The bankruptcy (within the meaning of Section 18-304 of the Delaware Act) of a Member shall not cause the Member to cease to be a member of the Company. An Event of Withdrawal shall not, in and of itself, cause a dissolution of the Company and the Company shall continue without dissolution subject to the terms and conditions of this Agreement.
 Section 14.02 Liquidation and Termination . On dissolution of the Company, the Manager shall act as liquidator or may appoint one or more Persons as liquidator. The liquidators shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Delaware Act. The costs of liquidation shall be borne as a Company expense. Until final distribution, the liquidators shall continue to operate the Company properties with all of the power and authority of the Manager. The steps to be accomplished by the liquidators are as follows:
(a) as promptly as possible after dissolution and again after final liquidation, the liquidators shall cause a proper accounting to be made by a recognized firm of certified public accountants of the Company’s assets, liabilities and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable;
(b) the liquidators shall pay, satisfy or discharge from Company funds, or otherwise make adequate provision for payment and discharge thereof (including the establishment of a cash fund for contingent, conditional or unmatured liabilities in such amount and for such term as the liquidators may reasonably determine) all of the debts, liabilities and obligations of the Company (including all expenses incurred in liquidation); and
(c) all remaining assets of the Company shall be distributed to the Members in accordance with Article IV by the end of the Taxable Year during which the liquidation of the Company occurs (or, if later, by ninety (90) days after the date of the liquidation). The distribution of cash and/or property to the Members in accordance with the provisions of this Section  14.02 and Section  14.03 below constitutes a complete return to the Members of their Capital Contributions, a complete distribution to the Members of their interest in the Company and all the Company’s property and constitutes a compromise to which all Members have consented within the meaning of the Delaware Act. To the extent that a Member returns funds to the Company, it has no claim against any other Member for those funds.
 
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 Section 14.03 Deferment; Distribution in Kind . Notwithstanding the provisions of Section  14.02 , but subject to the order of priorities set forth therein, if upon dissolution of the Company the liquidators determine that an immediate sale of part or all of the Company’s assets would be impractical or would cause undue loss (or would otherwise not be beneficial) to the Members, the liquidators may, in their sole discretion, defer for a reasonable time the liquidation of any assets except those necessary to satisfy Company liabilities (other than loans to the Company by Members) and reserves. Subject to the order of priorities set forth in Section  14.02 , the liquidators may, in their sole discretion, distribute to the Members, in lieu of cash, either (a) all or any portion of such remaining Company assets in-kind in accordance with the provisions of Section  14.02(c) , (b) as tenants in common and in accordance with the provisions of Section  14.02(c) , undivided interests in all or any portion of such Company assets or (c) a combination of the foregoing. Any such Distributions in kind shall be subject to (x) such conditions relating to the disposition and management of such assets as the liquidators deem reasonable and equitable and (y) the terms and conditions of any agreements governing such assets (or the operation thereof or the holders thereof) at such time. Any Company assets distributed in kind will first be written up or down to their Fair Market Value, thus creating Profit or Loss (if any), which shall be allocated in accordance with Article V . The liquidators shall determine the Fair Market Value of any property distributed in accordance with the valuation procedures set forth in Article XV .
 Section 14.04 Cancellation of Certificate . On completion of the winding up of Company assets as provided herein and the Delaware Act, the Company is terminated (and the Company shall not be terminated prior to such time), and the Manager (or such other Person or Persons as the Delaware Act may require or permit) shall file a certificate of cancellation with the Secretary of State of Delaware, cancel any other filings made pursuant to this Agreement that are or should be canceled and take such other actions as may be necessary to terminate the Company. The Company shall be deemed to continue in existence for all purposes of this Agreement until it is terminated pursuant to this Section  14.04 .
 Section 14.05 Reasonable Time for Winding Up . A reasonable time shall be allowed for the orderly winding up of the business and affairs of the Company and the liquidation of its assets pursuant to Sections 14.02 and 14.03 in order to minimize any losses otherwise attendant upon such winding up.
 Section 14.06 Return of Capital . The liquidators shall not be personally liable for the return of Capital Contributions or any portion thereof to the Members (it being understood that any such return shall be made solely from Company assets).
 ARTICLE XV
VALUATION
 Section 15.01 Determination . “ Fair Market Value ” of a specific Company asset will mean the amount which the Company would receive in an all-cash sale of such asset in an arms-length transaction with a willing unaffiliated third party, with neither party having any compulsion to buy or sell, consummated on the day immediately preceding the date on which the event occurred which necessitated the determination of the Fair Market Value (and after giving effect to any transfer taxes payable in connection with such sale), as such amount is determined by the Manager (or, if pursuant to Section  14.02 , the liquidators) in its good faith judgment using all factors, information and data it deems to be pertinent.
 Section 15.02 Dispute Resolution . If any Member or Members dispute the accuracy of any determination of Fair Market Value in accordance with Section  15.01 , and the Manager and such Member(s) are unable to agree on the determination of the Fair Market Value of any asset of the Company, the Manager and such Member(s) shall each select a nationally recognized investment banking firm experienced in valuing securities of closely-held companies such as the Company in the Company’s industry (the “ Appraisers ”), who shall each determine the Fair Market Value of the asset or the Company (as applicable) in accordance with the provisions of Section  15.01 . The Appraisers shall be instructed to give written notice of their determination of the Fair Market
 
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Value of the asset or the Company (as applicable) within thirty (30) days of their appointment as Appraisers. If Fair Market Value as determined by an Appraiser is higher than the Fair Market Value as determined by the other Appraiser by 10% or more, and the Manager and such Member(s) do not otherwise agree on a Fair Market Value, the original Appraisers shall designate a third Appraiser meeting the same criteria used to select the original two, and the Fair Market Value shall be the average of the Fair Market Values determined by all three Appraisers, unless the Manager and such Member(s) otherwise agree on a Fair Market Value. If Fair Market Value as determined by an Appraiser is within 10% of the Fair Market Value as determined by the other Appraiser (but not identical), and the Manager and such Member(s) do not otherwise agree on a Fair Market Value, the Manager shall select the Fair Market Value of one of the Appraisers. The fees and expenses of the Appraisers shall be borne by the Company.
 ARTICLE XVI
GENERAL PROVISIONS
 Section 16.01 Power of Attorney .
(a) Each Member hereby constitutes and appoints the Manager (or the liquidator, if applicable) with full power of substitution, as his or her true and lawful agent and attorney-in-fact, with full power and authority in his, her or its name, place and stead, to:
(i) execute, swear to, acknowledge, deliver, file and record in the appropriate public offices (A) this Agreement, all certificates and other instruments and all amendments thereof which the Manager reasonably deems appropriate or necessary to form, qualify, or continue the qualification of, the Company as a limited liability company in the State of Delaware and in all other jurisdictions in which the Company may conduct business or own property; (B) all instruments which the Manager reasonably deems appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement in accordance with its terms; (C) all conveyances and other instruments or documents which the Manager reasonably deems appropriate or necessary to reflect the dissolution and liquidation of the Company pursuant to the terms of this Agreement, including a certificate of cancellation; and (D) all instruments relating to the admission, withdrawal or substitution of any Member pursuant to Article XII or XIII ; and
(ii) sign, execute, swear to and acknowledge all ballots, consents, approvals, waivers, certificates and other instruments appropriate or necessary, in the reasonable judgment of the Manager, to evidence, confirm or ratify any vote, consent, approval, agreement or other action which is made or given by the Members hereunder or is consistent with the terms of this Agreement, in the reasonable judgment of the Manager, to effectuate the terms of this Agreement.
(b) The foregoing power of attorney is irrevocable and coupled with an interest, and shall survive the death, disability, incapacity, dissolution, bankruptcy, insolvency or termination of any Member who is an individual and the transfer of all or any portion of his, her or its Company Interest and shall extend to such Member’s heirs, successors, assigns and personal representatives.
 Section 16.02 Confidentiality . Except as required by applicable Law, the Manager and each of the Members agree to hold the Company’s Confidential Information in confidence and shall not (i) disclose any Confidential Information except as otherwise authorized separately in writing by the Manager or (ii) use any Confidential Information except in furtherance of the business of the Company or as otherwise authorized separately in writing by the Manager. “ Confidential Information ” as used herein means any and all information obtained by a Member from the Company or any of its Affiliates directly or indirectly, including from their representatives, which such information includes, but is not limited to, ideas, financial information, products, data, services, business strategies, research, inventions (whether or not patentable), innovations and materials, equipment, all aspects of the Company’s business plan, proposed operation and products and other product plans, corporate structure, financial and organizational information, analyses, proposed partners, software code, designs,
 
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employees and their identities, equity ownership, customers, markets, the methods and means by which the Company plans to conduct its business, all trade secrets, trademarks, knowhow, formulas, processes and intellectual property. With respect to the Manager and such Member, Confidential Information does not include information or material that: (a) is rightfully in the possession of the Manager or such Member at the time of disclosure by the Company; (b) before or after it has been disclosed to the Manager or each Member by the Company, becomes part of public knowledge, not as a result of any action or inaction of the Manager or such Member, respectively, in violation of this Agreement; (c) is approved for release by written authorization of the Chief Executive Officer of the Company or of the Corporation; (d) is disclosed to the Manager or such Member or their representatives by a third party not, to the knowledge of the Manager or such Member, respectively, in violation of any obligation of confidentiality owed to the Company with respect to such information; or (e) is or becomes independently developed by the Manager or such Member or their respective representatives without use or reference to the Confidential Information.
 Section 16.03 Amendments . This Agreement may be amended or modified in writing by the Manager, subject to the prior written consent of the Requisite Members. Notwithstanding the foregoing, no amendment or modification (whether by amendment, merger, recapitalization or otherwise) (a) to this Section  16.03 may be made without the prior written consent of each of the Members, (b) that modifies the limited liability of any Member, or increases the liabilities or obligations of any Member, in each case, may be made without the consent of each such affected Member, (c) that materially alters or changes any rights, preferences or privileges of any Company Interests in a manner that is different or prejudicial relative to any other Company Interests, may be made without the approval of a majority in interest of the Members holding the Company Interests affected in such a different or prejudicial manner, (d) that materially alters or changes any rights, preferences or privileges of a holder of any class of Company Interests in a manner that is different or prejudicial relative to any other holder of the same class of Company Interests, may be made without the approval of the holder of Company Interests affected in such a different or prejudicial manner, (e) that adversely alters or changes any rights, preferences or privileges of Members other than the Corporation (and its Affiliates), may be made without the approval of a majority in interest of the Members (excluding, for this purpose, the Corporation and its Affiliates) holding Common Units, and (f) to any of the terms and conditions of this Agreement which terms and conditions expressly require the approval or action of certain Persons may be made without obtaining the consent of the requisite number or specified percentage of such Persons who are entitled to approve or take action on such matter; provided , that the Manager, acting alone, may amend this Agreement to reflect the issuance of additional Units or Equity Securities in accordance with Section  3.04 so long as the rights, preferences or privileges of such Units or Equity Securities with respect to voting, liquidation, redemption, conversion or distributions are not senior to or on parity with the Common Units.
 Section 16.04 Title to Company Assets . Company assets shall be deemed to be owned by the Company as an entity, and no Member, individually or collectively, shall have any ownership interest in such Company assets or any portion thereof. The Company shall hold title to all of its property in the name of the Company and not in the name of any Member. All Company assets shall be recorded as the property of the Company on its books and records, irrespective of the name in which legal title to such Company assets is held. The Company’s credit and assets shall be used solely for the benefit of the Company, and no asset of the Company shall be transferred or encumbered for, or in payment of, any individual obligation of any Member.
 Section 16.05 Addresses and Notices . Any notice provided for in this Agreement will be in writing and will be either personally delivered, or sent by (i) certified mail, return receipt requested, (ii) reputable overnight courier service providing confirmation of delivery (charges prepaid), (iii) telecopier transmission with confirmation of receipt, or (iv) e-mail of a .pdf attachment for which a confirmation e-mail is obtained, to the Company or the Manager, as applicable, at the addresses set forth below and to any other recipient and to any Member at such address as indicated by the Company’s records, or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder when delivered personally or on the date of delivery as established by the return receipt, courier service confirmation (or the date on which the return receipt or courier service confirms
 
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that acceptance of delivery was refused by the addressee), or telecopier confirmation received by the sender. The respective addresses of the Company and the Manager are:
to the Company:
Amneal Pharmaceuticals LLC
400 Crossing Boulevard, 3rd Floor
Bridgewater, New Jersey 08807
Attn: Chirag Patel
E-mail: [        ]
with copies (which copies shall not constitute notice) to:
Latham & Watkins LLP
650 Town Center Drive, 20th Floor
Costa Mesa, California 92626
Attn: Charles K. Ruck and R. Scott Shean
E-mail: charles.ruck@lw.com and scott.shean@lw.com
and
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attn: Frank Aquila
E-mail: aquilaf@sullcrom.com
to the Manager:
Amneal Pharmaceuticals, Inc.
400 Cross Boulevard, 3rd Floor
Bridgewater, New Jersey 08807
Attn: Sheldon Hirt
E-mail: shirt@amneal.com
with copies (which copies shall not constitute notice) to:
Latham & Watkins LLP
650 Town Center Drive, 20th Floor
Costa Mesa, California 92626
Attn: Charles K. Ruck and R. Scott Shean
E-mail: charles.ruck@lw.com and scott.shean@lw.com
and
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attn: Francis J. Aquila
E-mail: aquilaf@sullcrom.com
 Section 16.06 Binding Effect; Intended Beneficiaries . This Agreement shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their heirs, executors, administrators, successors, legal representatives and permitted assigns.
 Section 16.07 Creditors . None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company or any of its Affiliates, and no creditor who makes a loan to the Company or
 
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any of its Affiliates may have or acquire (except pursuant to the terms of a separate agreement executed by the Company in favor of such creditor) at any time as a result of making the loan any direct or indirect interest in Company Profits, Losses, Distributions, capital or property other than as a secured creditor.
 Section 16.08 Waiver . No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement or condition, regardless of how long such failure continues.
 Section 16.09 Counterparts . This Agreement may be executed in separate counterparts, each of which will be an original and all of which together shall constitute one and the same agreement binding on all the parties hereto.
 Section 16.10 Applicable Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Any dispute relating hereto shall be heard in the state or federal courts of the State of Delaware, and the parties agree to jurisdiction and venue therein.
 Section 16.11 Severability . Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
 Section 16.12 Further Action . The parties shall execute and deliver all documents, provide all information and take or refrain from taking such actions as may be reasonably necessary or appropriate to achieve the purposes of this Agreement.
 Section 16.13 Conflict . In the event of a direct conflict between the provisions of this Agreement and (i) any provision of the Certificate or (ii) any mandatory, non-waivable provision of the Delaware Act, such provision of the Certificate or the Delaware Act shall control. If any provision of the Delaware Act provides that it may be varied or superseded in the agreement of a limited liability company (or otherwise by agreement of the members or managers of a limited liability company), such provision shall be deemed superseded and waived in its entirety if this Agreement contains a provision addressing the same issue or subject matter.
 Section 16.14 Delivery by Electronic Transmission . This Agreement and any signed agreement or instrument entered into in connection with this Agreement or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of an electronic transmission, including by a facsimile machine or via email, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of electronic transmission by a facsimile machine or via email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through such electronic transmission as a defense to the formation of a contract and each such party forever waives any such defense.
 Section 16.15 Right of Offset . Whenever the Company is to pay any sum (other than pursuant to Article IV ) to any Member, any amounts that such Member owes to the Company which are not the subject of a good faith dispute may be deducted from that sum before payment. For the avoidance of doubt, the distribution of Units to the Corporation shall not be subject to this Section  16.15 .
 
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 Section 16.16 Effectiveness . This Agreement shall be effective immediately upon the Business Combination Closing (the “ Effective Time ”). The Second A&R LLC Agreement shall govern the rights and obligations of the Company and the other parties to this Agreement in their capacity as Members prior to the Effective Time.
 Section 16.17 Entire Agreement . This Agreement and those documents expressly referred to herein (including the Stockholders Agreement and the Business Combination Agreement) embody the entire agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. For the avoidance of doubt, the Second A&R LLC Agreement is superseded in its entirety by this Agreement as of the Effective Time and shall be of no further force and effect thereafter.
 Section 16.18 Remedies . Each Member shall have all rights and remedies set forth in this Agreement and all rights and remedies which such Person has been granted at any time under any other agreement or contract and all of the rights which such Person has under any Law. To the fullest extent permitted by applicable Law, any Person having any rights under any provision of this Agreement or any other agreements contemplated hereby shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by Law.
 Section 16.19 Descriptive Headings; Interpretation . The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. The use of the word “including” in this Agreement shall be by way of example rather than by limitation. Reference to any agreement, document or instrument means such agreement, document or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof. Without limiting the generality of the immediately preceding sentence, no amendment or other modification to any agreement, document or instrument that requires the consent of any Person pursuant to the terms of this Agreement or any other agreement will be given effect hereunder unless such Person has consented in writing to such amendment or modification. Wherever required by the context, references to a Fiscal Year shall refer to a portion thereof. The use of the words “or,” “either” and “any” shall not be exclusive. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Wherever a conflict exists between this Agreement and any other agreement, this Agreement shall control but solely to the extent of such conflict.
[ Signature Pages Follow ]
 
44

IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf this Third Amended and Restated Limited Liability Company Agreement as of the date first written above.
COMPANY:

AMNEAL PHARMACEUTICALS LLC	
	
By:                                                                                                   	
Name:
Title:	
[ Signature Page to Third Amended and Restated Limited Liability Company Agreement ]
 
45

	
MEMBERS:	

AMNEAL PHARMACEUTICALS, INC.	
	
By:                                                                                                   	
Name:	
Title:	
[ Signature Page to Third Amended and Restated Limited Liability Company Agreement ]
 
46

	
AMNEAL PHARMACEUTICALS HOLDING COMPANY LLC	
	
By:                                                                                                   	
Name:	
Title:	
[ Signature Page to Third Amended and Restated Limited Liability Company Agreement ]
 
47

	
AH PPU MANAGEMENT, LLC	
	
By:                                                                                                   	
Name:	
Title:	
[ Signature Page to Third Amended and Restated Limited Liability Company Agreement ]
 
48

	
AP CLASS D MEMBER, LLC	
	
By:                                                                                                   	
Name:	
Title:	
[ Signature Page to Third Amended and Restated Limited Liability Company Agreement ]
 
49

	
AP CLASS E MEMBER, LLC	
	
By:                                                                                                   	
Name:	
Title:	
[ Signature Page to Third Amended and Restated Limited Liability Company Agreement ]
 
50

SCHEDULE 1 *
SCHEDULE OF MEMBERS

Member	 	Common
Units	  	Percentage
Interest	  	Contribution
Closing Capital
Account Balance	  	Additional
Cash Capital
Contributions	  	Additional Non-
Cash Capital
Contributions	  	Capital
Accounts	
Amneal Pharmaceuticals, Inc.	 		  		  		  		  		  		
Amneal Pharmaceuticals Holding Company LLC	 		  		  		  		  		  		
AH PPU Management, LLC	 		  		  		  		  		  		
AP Class D Member, LLC	 		  		  		  		  		  		
AP Class E Member, LLC	 		  		  		  		  		  		
 
*	This Schedule of Members shall be updated from time to time to reflect any adjustment with respect to any subdivision (by Unit split or otherwise) or any combination (by reverse Unit split or otherwise) of any outstanding Common Units, or to reflect any additional issuances of Common Units pursuant to this Agreement.	
 
51

Exhibit A
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT, dated as of                     , 20     (this “ Joinder ”), is delivered pursuant to that certain [Third] Amended and Restated Limited Liability Company Agreement, dated as of [                    ], 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ LLC Agreement ”) by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Company ”), Amneal Pharmaceuticals, Inc., a Delaware corporation and the managing member of the Company (the “ Manager ”), and each of the Members from time to time party thereto. Capitalized terms used but not otherwise defined herein have the respective meanings set forth in the LLC Agreement.
 
 	1.	Joinder to the LLC Agreement . Upon the execution of this Joinder by the undersigned and delivery hereof to the Manager, the undersigned hereby is and hereafter will be a Member under the LLC Agreement and a party thereto, with all the rights, privileges and responsibilities of a Member thereunder. The undersigned hereby agrees that it shall comply with and be fully bound by the terms of the LLC Agreement as if it had been a signatory thereto as of the date thereof.	
 
 	2.	Incorporation by Reference . All terms and conditions of the LLC Agreement are hereby incorporated by reference in this Joinder as if set forth herein in full.	
 
 	3.	Address . All notices under the LLC Agreement to the undersigned shall be direct to:	
[Name]
[Address]
[City, State, Zip Code]
Attn:
Facsimile:
E-mail:
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Joinder as of the day and year first above written.

[NAME OF NEW MEMBER]	
	
By:                                                                                                   	
Name:	
Title:	
Acknowledged and agreed
as of the date first set forth above:
AMNEAL PHARMACEUTICALS LLC
By: AMNEAL PHARMACEUTICALS, INC.,
its Managing Member

By:                                                                                             	
Name:	
Title:	
 
52

Exhibit 4.1

 
IMPAX LABORATORIES, INC.
AND
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of June 30, 2015
2.00% Convertible Senior Notes due 2022

 

TABLE OF CONTENTS

P AGE

ARTICLE 1	 	
D EFINITIONS	 	
		
Section 1.01 . Definitions	  	 	1	 	
Section 1.02 . References to Interest	  	 	12	 	
	
ARTICLE 2	 	
I SSUE , D ESCRIPTION , E XECUTION , R EGISTRATION AND E XCHANGE OF N OTES	 	
		
Section 2.01 . Designation and Amount	  	 	12	 	
Section 2.02 . Form of Notes	  	 	12	 	
Section 2.03 . Date and Denomination of Notes; Payments of Interest and Defaulted Amounts	  	 	13	 	
Section 2.04 . Execution, Authentication and Delivery of Notes	  	 	15	 	
Section 2.05 . Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	  	 	15	 	
Section 2.06 . Mutilated, Destroyed, Lost or Stolen Notes	  	 	22	 	
Section 2.07 . Temporary Notes	  	 	23	 	
Section 2.08 . Cancellation of Notes Paid, Converted, Etc	  	 	23	 	
Section 2.09 . CUSIP Numbers	  	 	23	 	
Section 2.10 . Additional Notes; Repurchases	  	 	24	 	
	
ARTICLE 3	 	
S ATISFACTION AND D ISCHARGE	 	
		
Section 3.01 . Satisfaction and Discharge	  	 	24	 	
	
ARTICLE 4	 	
P ARTICULAR C OVENANTS OF THE C OMPANY	 	
		
Section 4.01 . Payment of Principal and Interest	  	 	24	 	
Section 4.02 . Maintenance of Office or Agency	  	 	25	 	
Section 4.03 . Appointments to Fill Vacancies in Trustee’s Office	  	 	25	 	
Section 4.04 . Provisions as to Paying Agent	  	 	25	 	
Section 4.05 . Existence	  	 	27	 	
Section 4.06 . Rule 144A Information Requirement and Annual Reports	  	 	27	 	
Section 4.07 . Stay, Extension and Usury Laws	  	 	29	 	
Section 4.08 . Compliance Certificate; Statements as to Defaults	  	 	29	 	
Section 4.09 . Additional Amounts	  	 	29	 	
 
i

					
ARTICLE 5	 	
L ISTS OF H OLDERS AND R EPORTS BY THE C OMPANY AND THE T RUSTEE	 	
		
Section 5.01 . Lists of Holders	  	 	32	 	
Section 5.02 . Preservation and Disclosure of Lists	  	 	32	 	
	
ARTICLE 6	 	
D EFAULTS AND R EMEDIES	 	
		
Section 6.01 . Events of Default	  	 	32	 	
Section 6.02. Acceleration; Rescission and Annulment	  	 	33	 	
Section 6.03. Additional Interest	  	 	34	 	
Section 6.04. Payments of Notes on Default; Suit Therefor	  	 	35	 	
Section 6.05 . Application of Monies Collected by Trustee	  	 	37	 	
Section 6.06 . Proceedings by Holders	  	 	38	 	
Section 6.07 . Proceedings by Trustee	  	 	38	 	
Section 6.08 . Remedies Cumulative and Continuing	  	 	39	 	
Section 6.09 . Direction of Proceedings and Waiver of Defaults by Majority of Holders	  	 	39	 	
Section 6.10 . Notice of Defaults	  	 	40	 	
Section 6.11 . Undertaking to Pay Costs	  	 	40	 	
	
ARTICLE 7	 	
C ONCERNING THE T RUSTEE	 	
		
Section 7.01 . Duties and Responsibilities of Trustee	  	 	40	 	
Section 7.02 . Reliance on Documents, Opinions, Etc	  	 	42	 	
Section 7.03 . No Responsibility for Recitals, Etc	  	 	43	 	
Section 7.04 . Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes	  	 	43	 	
Section 7.05 . Monies and Shares of Common Stock to Be Held in Trust	  	 	43	 	
Section 7.06 . Compensation and Expenses of Trustee	  	 	44	 	
Section 7.07 . Officer’s Certificate as Evidence	  	 	45	 	
Section 7.08 . Eligibility of Trustee	  	 	45	 	
Section 7.09 . Resignation or Removal of Trustee	  	 	45	 	
Section 7.10 . Acceptance by Successor Trustee	  	 	46	 	
Section 7.11 . Succession by Merger, Etc	  	 	47	 	
Section 7.12 . Trustee’s Application for Instructions from the Company	  	 	47	 	
	
ARTICLE 8	 	
C ONCERNING THE H OLDERS	 	
		
Section 8.01 . Action by Holders	  	 	48	 	
Section 8.02 . Proof of Execution by Holders	  	 	48	 	
Section 8.03 . Who Are Deemed Absolute Owners	  	 	48	 	
Section 8.04 . Company-Owned Notes Disregarded	  	 	49	 	
Section 8.05 . Revocation of Consents; Future Holders Bound	  	 	49	 	
 
ii

					
ARTICLE 9	 	
H OLDERS ’ M EETINGS	 	
		
Section 9.01 . Purpose of Meetings	  	 	49	 	
Section 9.02 . Call of Meetings by Trustee	  	 	50	 	
Section 9.03 . Call of Meetings by Company or Holders	  	 	50	 	
Section 9.04 . Qualifications for Voting	  	 	50	 	
Section 9.05 . Regulations	  	 	50	 	
Section 9.06 . Voting	  	 	51	 	
Section 9.07 . No Delay of Rights by Meeting	  	 	51	 	
	
ARTICLE 10	 	
S UPPLEMENTAL I NDENTURES	 	
		
Section 10.01 . Supplemental Indentures Without Consent of Holders	  	 	52	 	
Section 10.02 . Supplemental Indentures with Consent of Holders	  	 	53	 	
Section 10.03 . Effect of Supplemental Indentures	  	 	54	 	
Section 10.04 . Notation on Notes	  	 	54	 	
Section 10.05 . Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee	  	 	54	 	
	
ARTICLE 11	 	
C ONSOLIDATION , M ERGER , S ALE , C ONVEYANCE AND L EASE	 	
		
Section 11.01 . Company May Consolidate, Etc. on Certain Terms	  	 	55	 	
Section 11.02 . Successor Corporation to Be Substituted	  	 	55	 	
Section 11.03 . Opinion of Counsel to Be Given to Trustee	  	 	56	 	
	
ARTICLE 12	 	
I MMUNITY OF I NCORPORATORS , S TOCKHOLDERS , O FFICERS AND D IRECTORS	 	
		
Section 12.01 . Indenture and Notes Solely Corporate Obligations	  	 	56	 	
	
ARTICLE 13	 	
[I NTENTIONALLY O MITTED ]	 	
	
ARTICLE 14	 	
C ONVERSION OF N OTES	 	
		
Section 14.01 . Conversion Privilege	  	 	57	 	
Section 14.02 . Conversion Procedure; Settlement Upon Conversion	  	 	60	 	
Section 14.03 . Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes	  	 	64	 	
 
iii

					
Section 14.04 . Adjustment of Conversion Rate	  	 	67	 	
Section 14.05 . Adjustments of Prices	  	 	76	 	
Section 14.06 . Shares to Be Fully Paid	  	 	77	 	
Section 14.07 . Effect of Recapitalizations, Reclassifications and Changes of the Common Stock	  	 	77	 	
Section 14.08 . Certain Covenants	  	 	79	 	
Section 14.09 . Responsibility of Trustee	  	 	79	 	
Section 14.10 . Notice to Holders Prior to Certain Actions	  	 	80	 	
Section 14.11 . Stockholder Rights Plans	  	 	80	 	
Section 14.12 . Limit on Issuance of Shares of Common Stock Upon Conversion	  	 	81	 	
	
ARTICLE 15	 	
R EPURCHASE OF N OTES AT O PTION OF H OLDERS	 	
		
Section 15.01 . [ Intentionally Omitted ]	  	 	81	 	
Section 15.02 . Repurchase  at Option of Holders Upon a Fundamental Change	  	 	81	 	
Section 15.03 . Withdrawal of Fundamental Change Repurchase Notice	  	 	84	 	
Section 15.04 . Deposit of Fundamental Change Repurchase Price	  	 	84	 	
Section 15.05. Covenant to Comply with Applicable Laws Upon Repurchase of Notes	  	 	85	 	
Section 15.06. Third Party Offers	  	 	85	 	
Section 15.07. Reference Property Exception	  	 	85	 	
	
ARTICLE 16	 	
N O R EDEMPTION	 	
		
Section 16.01. No Redemption	  	 	86	 	
	
ARTICLE 17	 	
M ISCELLANEOUS P ROVISIONS	 	
		
Section 17.01 . Provisions Binding on Company’s Successors	  	 	86	 	
Section 17.02 . Official Acts by Successor Corporation	  	 	86	 	
Section 17.03 . Addresses for Notices, Etc	  	 	86	 	
Section 17.04 . Governing Law; Jurisdiction	  	 	87	 	
Section 17.05 . Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	  	 	87	 	
Section 17.06 . Legal Holidays	  	 	88	 	
Section 17.07 . No Security Interest Created	  	 	88	 	
Section 17.08 . Benefits of Indenture	  	 	88	 	
Section 17.09 . Table of Contents, Headings, Etc	  	 	88	 	
Section 17.10 . Authenticating Agent	  	 	88	 	
Section 17.11 . Execution in Counterparts	  	 	89	 	
Section 17.12 . Severability	  	 	90	 	
Section 17.13 . Waiver of Jury Trial	  	 	90	 	
Section 17.14 . Force Majeure	  	 	90	 	
 
iv

					
Section 17.15 . Calculations	  	 	90	 	
Section 17.16. USA PATRIOT Act	  	 	90	 	
Section 17.17. Withholding Taxes	  	 	90	 	
	
EXHIBIT	 	
		
Exhibit A Form of Note	  	 	A-1	 	
 
v

INDENTURE dated as of June 30, 2015 between IMPAX LABORATORIES, INC., a Delaware corporation, as issuer (the “ Company ,” as more fully set forth in Section 1.01) and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (the “ Trustee ,” as more fully set forth in Section 1.01).
In order to declare the terms and conditions upon which the Company’s 2.00% Convertible Senior Notes due 2022 (the “ Notes ”) are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:
ARTICLE 1
D EFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. The words “herein,” “hereof,” “hereunder” and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural as well as the singular.
“ Additional Amounts ” shall have the meaning specified in Section 4.09.
“ Additional Interest ” means all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and Section 6.03, as applicable.
“ Additional Shares ” shall have the meaning specified in Section 14.03(a).
“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing. Notwithstanding anything to the contrary herein, the determination of whether one Person is an “ Affiliate ” of another Person for purposes of this Indenture shall be made based on the facts at the time such determination is made or required to be made, as the case may be, hereunder.
“ Bid Solicitation Agent ” means the Company or the Person appointed by the Company to solicit bids for the Trading Price of the Notes in accordance with Section 14.01(b)(i). The Trustee shall initially act as the Bid Solicitation Agent; provided that the Company may appoint another Person as the Bid Solicitation Agent (including the Company or any of its Affiliates) without prior notice to Holders.

“ Board of Directors ” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.
“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“ Business Day ” means, with respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.
“ Capital Stock ” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity.
“ Cash Settlement ” shall have the meaning specified in Section 14.02(a).
“ Clause A Distribution ” shall have the meaning specified in Section 14.04(c).
“ Clause B Distribution ” shall have the meaning specified in Section 14.04(c).
“ Clause C Distribution ” shall have the meaning specified in Section 14.04(c).
“ close of business ” means 5:00 p.m. (New York City time).
“ Combination Settlement ” shall have the meaning specified in Section 14.02(a).
“ Commission ” means the U.S. Securities and Exchange Commission.
“ Common Equity ” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.
“ Common Stock ” means the common stock of the Company, par value $0.01 per share, at the date of this Indenture, subject to Section 14.07.
“ Company ” shall have the meaning specified in the first paragraph of this Indenture, and subject to the provisions of Article 11, shall include its successors and assigns.
“ Company Order ” means a written order of the Company, signed by the Company’s Chief Executive Officer, President, Chief Financial Officer, Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”), and delivered to the Trustee.
 
2

“ Conversion Agent ” shall have the meaning specified in Section 4.02.
“ Conversion Date ” shall have the meaning specified in Section 14.02(c).
“ Conversion Obligation ” shall have the meaning specified in Section 14.01(a).
“ Conversion Price ” means as of any time, $1,000, divided by the Conversion Rate as of such time.
“ Conversion Rate ” shall have the meaning specified in Section 14.01(a).
“ Corporate Trust Office ” means the principal office of the Trustee at which at any time its corporate trust business regarding this Indenture shall be administered, which office at the date hereof is located at 1100 North Market Street, Wilmington, DE 19890, Attention: Impax Laboratories Administrator, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the Holders and the Company).
“ Custodian ” means the Trustee, as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity thereto.
“ Daily Conversion Value ” means, for each of the 40 consecutive Trading Days during the Observation Period, 2.5% of the product of (a) the Conversion Rate on such Trading Day and (b) the Daily VWAP for such Trading Day.
“ Daily Measurement Value ” means the Specified Dollar Amount (if any), divided by 40.
“ Daily Settlement Amount ,” for each of the 40 consecutive Trading Days during the Observation Period, shall consist of:
(a) cash in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Conversion Value on such Trading Day; and
(b) if the Daily Conversion Value on such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i) the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for such Trading Day.
“ Daily VWAP ” means, for each of the 40 consecutive Trading Days during the relevant Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “IPXL <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company). The “ Daily VWAP ” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
 
3

“ Default ” means any event that is, or after notice or passage of time, or both, would be, an Event of Default.
“ Defaulted Amounts ” means any amounts on any Note (including, without limitation, the Fundamental Change Repurchase Price, principal and interest) that are payable but are not punctually paid or duly provided for.
“ Depositary ” means, with respect to each Global Note, the Person specified in Section 2.05(c) as the Depositary with respect to such Notes, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “ Depositary ” shall mean or include such successor.
“ Distributed Property ” shall have the meaning specified in Section 14.04(c).
“ Effective Date ” shall have the meaning specified in Section 14.03(c), except that, as used in Section 14.04 and Section 14.05, “ Effective Date ” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.
“ Event of Default ” shall have the meaning specified in Section 6.01.
“ Ex-Dividend Date ” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“ FATCA ” shall have the meaning specified in Section 4.09.
“ Form of Assignment and Transfer ” means the “Form of Assignment and Transfer” attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.
“ Form of Fundamental Change Repurchase Notice ” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.
 
4

“ Form of Note ” means the “Form of Note” attached hereto as Exhibit A.
“ Form of Notice of Conversion ” means the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.
“ Fundamental Change ” shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:
(a) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its Wholly Owned Subsidiaries and the employee benefit plans of the Company and its Wholly Owned Subsidiaries, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing more than 50% of the voting power of all classes of the Company’s Common Equity;
(b) the consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets; (B) any share exchange, consolidation or merger of the Company pursuant to which the Common Stock will be converted into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one of the Company’s Wholly Owned Subsidiaries; provided , however , that a transaction described in clause (B) in which the holders of all classes of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such transaction in substantially the same proportions as such ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b);
(c) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or
(d) the Common Stock (or other shares or Capital Stock or Reference Property underlying the Notes) ceases to be listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors);
provided , however , that a transaction or transactions described in clause (a) or clause (b) above shall not constitute a Fundamental Change, if at least 90% of the consideration received or to be received by the common stockholders of the Company, excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights, in connection with such transaction or transactions consists of shares of common stock that are listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions and as a result of such transaction or transactions the Notes become convertible into such consideration, excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights (subject to the provisions of Section 14.02(a)). If any transaction in which the Common Stock is replaced by the securities of another entity occurs, following completion of any related Make-Whole Fundamental Change Period (or, in the case of a transaction that would have been a Fundamental Change or a Make-Whole Fundamental Change but for the proviso immediately following clause (d) of the definition thereof, following the effective date of such transaction) references to the Company in this definition shall instead be references to such other entity.
 
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“ Fundamental Change Company Notice ” shall have the meaning specified in Section 15.02(c).
“ Fundamental Change Repurchase Date ” shall have the meaning specified in Section 15.02(a).
“ Fundamental Change Repurchase Notice ” shall have the meaning specified in Section 15.02(b)(i).
“ Fundamental Change Repurchase Price ” shall have the meaning specified in Section 15.02(a).
“ Global Note ” shall have the meaning specified in Section 2.05(b).
“ Holder ,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name at the time a particular Note is registered on the Note Register.
“ Indenture ” means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.
“ Interest Payment Date ” means each June 15 and December 15 of each year, beginning on December 15, 2015.
“ Last Reported Sale Price ” of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “ Last Reported Sale Price ” shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted, the “ Last Reported Sale Price ” shall be the average of the mid-point of the last bid and last ask prices for the Common Stock on the relevant date from a nationally recognized independent investment banking firm selected by the Company for this purpose.
 
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“ Make-Whole Fundamental Change ” means any transaction or event that constitutes a Fundamental Change (as defined above and determined after giving effect to any exceptions to or exclusions from such definition, but without regard to the proviso in clause (b) of the definition thereof).
“ Make-Whole Fundamental Change Period ” shall have the meaning specified in Section 14.03(a).
“ Market Disruption Event ” means, for the purposes of determining amounts due upon conversion (a) a failure by the primary U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock.
“ Maturity Date ” means June 15, 2022.
“ Maximum Number of Underlying Shares ” shall have the meaning specified in Section 14.02(a)(iii).
“ Measurement Period ” shall have the meaning specified in Section 14.01(b)(i).
“ Merger Event ” shall have the meaning specified in Section 14.07(a).
“ Note ” or “ Notes ” shall have the meaning specified in the first paragraph of the recitals of this Indenture.
“ Note Register ” shall have the meaning specified in Section 2.05(a).
“ Note Registrar ” shall have the meaning specified in Section 2.05(a).
“ Notice of Conversion ” shall have the meaning specified in Section 14.02(b).
“ Observation Period ” with respect to any Note surrendered for conversion means: (i) if the relevant Conversion Date occurs prior to December 15, 2021, the 40 consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding such Conversion Date; and (ii) if the relevant Conversion Date occurs on or after December 15, 2021, the 40 consecutive Trading Days beginning on, and including, the 42nd Scheduled Trading Day immediately preceding the Maturity Date.
 
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“ Offering Memorandum ” means the preliminary offering memorandum dated June 23, 2015, as supplemented by the related pricing term sheet dated June 25, 2015, relating to the offering and sale of the Notes.
“ Officer ” means, with respect to the Company, the President, the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the Secretary, any Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”).
“ Officer’s Certificate ,” when used with respect to the Company, means a certificate that is delivered to the Trustee and that is signed by an Officer of the Company. Each such certificate shall include the statements provided for in Section 17.05 if and to the extent required by the provisions of such Section. The Officer giving an Officer’s Certificate pursuant to Section 4.08 shall be the principal executive, financial or accounting officer of the Company.
“ 1% Exception ” shall have the meaning specified in Section 14.04(k).
“ open of business ” means 9:00 a.m. (New York City time).
“ Opinion of Counsel ” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other counsel acceptable to the Trustee, that is delivered to the Trustee, which opinion may contain customary exceptions and qualifications as to the matters set forth therein. Each such opinion shall include the statements provided for in Section 17.05 if and to the extent required by the provisions of such Section 17.05.
“ outstanding ,” when used with reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation;
(b) Notes, or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent);
(c) Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is presented that any such Notes are held by protected purchasers in due course;
(d) Notes converted pursuant to Article 14 and required to be cancelled pursuant to Section 2.08; and
 
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(e) Notes repurchased by the Company pursuant to the penultimate sentence of Section 2.10.
“ Paying Agent ” shall have the meaning specified in Section 4.02.
“ Person ” means an individual, a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.
“ Physical Notes ” means permanent certificated Notes in registered form issued in denominations of $1,000 principal amount and integral multiples thereof.
“ Physical Settlement ” shall have the meaning specified in Section 14.02(a).
“ Predecessor Note ” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.
“ Record Date ” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable security) have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, by statute, by contract or otherwise).
“ Reference Property ” shall have the meaning specified in Section 14.07(a).
“ Regular Record Date ,” with respect to any Interest Payment Date, means the June 1 or December 1 (whether or not such day is a Business Day) immediately preceding the applicable June 15 or December 15 Interest Payment Date, respectively.
“ Relevant Taxing Jurisdiction ” shall have the meaning specified in Section 4.09.
“ Resale Restriction Termination Date ” shall have the meaning specified in Section 2.05(c).
“ Responsible Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
 
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“ Restricted Securities ” shall have the meaning specified in Section 2.05(c).
“ Rule 144 ” means Rule 144 as promulgated under the Securities Act.
“ Rule 144A ” means Rule 144A as promulgated under the Securities Act.
“ Scheduled Trading Day ” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “ Scheduled Trading Day ” means a Business Day.
“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“ Settlement Amount ” has the meaning specified in Section 14.02(a)(v).
“ Settlement Method ” means, with respect to any conversion of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to have been elected) by the Company.
“ Settlement Notice ” has the meaning specified in Section 14.02(a)(iv).
“ Significant Subsidiary ” means a Subsidiary of the Company that meets the definition of “significant subsidiary” under Rule 1-02(w) of Regulation S-X under the Exchange Act.
“ Specified Dollar Amount ” means the maximum cash amount per $1,000 principal amount of Notes to be received upon conversion as specified in the Settlement Notice related to any converted Notes.
“ Spin-Off ” shall have the meaning specified in Section 14.04(c).
“ Stock Price ” shall have the meaning specified in Section 14.03(c).
“ Stockholder Approval Date ” shall have the meaning specified in Section 14.02(a)(iii).
“ Subsidiary ” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.
“ Successor Company ” shall have the meaning specified in Section 11.01(a).
“ Surviving Entity ” shall have the meaning specified in Section 4.09.
 
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“ Trading Day ” means a day on which (i) trading in the Common Stock (or other security for which a closing sale price must be determined) generally occurs on The NASDAQ Global Select Market or, if the Common Stock (or such other security) is not then listed on The NASDAQ Global Select Market, on the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock (or such other security) is then traded and (ii) a Last Reported Sale Price for the Common Stock (or such other security) is available on such securities exchange or market; provided that if the Common Stock (or such other security) is not so listed or traded, “ Trading Day ” means a Business Day; and provided , further , that for purposes of determining amounts due upon conversion only, “ Trading Day ” means a day on which (x) there is no Market Disruption Event and (y) trading in the Common Stock generally occurs on The NASDAQ Global Select Market or, if the Common Stock is not then listed on The NASDAQ Global Select Market, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading, except that if the Common Stock is not so listed or admitted for trading, “ Trading Day ” means a Business Day.
“ Trading Price ” of the Notes on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers the Company selects for this purpose and directs to work with the Bid Solicitation Agent (if other than the Company); provided that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of Notes from a nationally recognized securities dealer on any determination date, then the Trading Price per $1,000 principal amount of Notes on such determination date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate.
“ transfer ” shall have the meaning specified in Section 2.05(c).
“ Transfer Restrictions ” shall have the meaning specified in Section 2.05(c).
“ Trigger Event ” shall have the meaning specified in Section 14.04(c).
“ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture; provided , however , that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.
 
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“ Trustee ” means the Person named as the “ Trustee ” in the first paragraph of this Indenture until a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “ Trustee ” shall mean or include each Person who is then a Trustee hereunder.
“ unit of Reference Property ” shall have the meaning specified in Section 14.07(a).
“ Valuation Period ” shall have the meaning specified in Section 14.04(c).
“ Wholly Owned Subsidiary ” means, with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this definition, the reference to “50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%”.
Section 1.02. References to Interest. Unless the context otherwise requires, any reference to interest on, or in respect of, any Note in this Indenture shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of Section 4.06(d), Section 4.06(e) and Section 6.03. Unless the context otherwise requires, any express mention of Additional Interest in any provision hereof shall not be construed as excluding Additional Interest in those provisions hereof where such express mention is not made.
ARTICLE 2
I SSUE , D ESCRIPTION , E XECUTION , R EGISTRATION AND E XCHANGE OF N OTES
Section 2.01. Designation and Amount. The Notes shall be designated as the “2.00% Convertible Senior Notes due 2022.” The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $600,000,000, subject to Section 2.10 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes to the extent expressly permitted hereunder.
Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of this Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes are subject.
 
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Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the Officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.
Each Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect repurchases, cancellations, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture. Payment of principal (including the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining Holders eligible to receive payment is provided for herein.
Section 2.03. Date and Denomination of Notes; Payments of Interest and Defaulted Amounts. (a) The Notes shall be issuable in registered form without coupons in minimum denominations of $1,000 principal amount and integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of such Note. Accrued interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months and, for partial months, on the basis of the number of days actually elapsed in a 30-day month.
(b) The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. The principal amount of any Note (x) in the case of any Physical Note, shall be payable at the office or agency of the Company maintained by the Company for such purposes in the contiguous United States, which shall initially be the Corporate Trust Office and (y) in the case of any Global Note, shall be payable by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Company shall pay or cause the Paying Agent to pay interest (i) on any Physical Notes (A) to Holders holding Physical Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate principal amount of more than $5,000,000, either by check mailed to each Holder or, upon application by such a Holder to the Note Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States, which application shall remain in effect until the Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.
 
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(c) Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, such relevant payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of or cause the Paying Agent to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on each Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a special record date for the payment of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee of such special record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Amounts and the special record date therefor to be mailed, first-class postage prepaid or sent electronically, to each Holder at its address as it appears in the Note Register, not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Amounts and the special record date therefor having been so sent, such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such special record date and shall no longer be payable pursuant to the following clause (ii) of this Section 2.03(c).
(ii) The Company may make payment of or cause the Paying Agent to make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
 
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Section 2.04. Execution, Authentication and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chief Executive Officer, President, Chief Financial Officer, Treasurer, Secretary or any of its Executive or Senior Vice Presidents.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder.
Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the form of Note attached as Exhibit A hereto, executed manually by an authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 17.10), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any Officer of the Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Note, shall be the Officers of the Company, although at the date of the execution of this Indenture any such person was not such an Officer.
Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. (a) The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any other office or agency of the Company designated pursuant to Section 4.02, the “ Note Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby initially appointed the “ Note Registrar ” for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.
Upon surrender for registration of transfer of any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.
 
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Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee upon receipt of a Company Order shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or for exchange, repurchase or conversion shall (if so required by the Company, the Trustee, the Note Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and duly executed, by the Holder thereof or its attorney-in-fact duly authorized in writing.
No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.
None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion or (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15.
All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.
(b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to the fourth paragraph from the end of Section 2.05(c) all Notes shall be represented by one or more Notes in global form (each, a “ Global Note ”) registered in the name of the Depositary or the nominee of the Depositary. The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depositary therefor.
(c) Every Note that bears or is required under this Section 2.05(c) to bear the legend set forth in this Section 2.05(c) (together with any Common Stock issued upon conversion of the Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the “ Restricted Securities ”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including the legend set forth below) (the “ Transfer Restrictions ”), unless such Transfer Restrictions shall be eliminated or otherwise waived by written consent of the Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such Transfer Restrictions. As used in this Section 2.05(c) and Section 2.05(d), the term “ transfer ” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.
 
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Until the date (the “ Resale Restriction Termination Date ”) that is the later of (1) the date that is one year after the last date of original issuance of the Notes, or such shorter period of time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any, as may be required by applicable law, any certificate evidencing such Note (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Section 2.05(d), if applicable) shall bear a legend in substantially the following form (unless such Notes have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee):
THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT OF IMPAX LABORATORIES, INC. (THE “ COMPANY ”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
 
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(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
No transfer of any Note prior to the Resale Restriction Termination Date will be registered by the Note Registrar unless the applicable box on the Form of Assignment and Transfer has been checked.
Any Note (or security issued in exchange or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to a registration statement that has become effective or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of such Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall be entitled to instruct the Custodian in writing to so surrender any Global Note as to which any of the conditions set forth in clause (i) through (iii) of the immediately preceding sentence have been satisfied, and, upon such instruction, the Custodian shall so surrender such Global Note for exchange; and any new Global Note so exchanged therefor shall not bear the restrictive legend specified in this Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall promptly notify the Trustee in writing upon the occurrence of the Resale Restriction Termination Date and promptly after a registration statement, if any, with respect to the Notes or any Common Stock issued upon conversion of the Notes has been declared effective under the Securities Act.
Notwithstanding any other provisions of this Indenture (other than the provisions set forth in this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second immediately succeeding paragraph.
 
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The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to each Global Note. Initially, each Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.
If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days, (iii) an Event of Default with respect to the Notes has occurred and is continuing and a beneficial owner of any Note requests through the Depositary that its beneficial interest therein be issued as a Physical Note or (iv) the Company and a Holder so agree, the Company shall execute, and the Trustee, upon receipt of an Officer’s Certificate and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver, at the Company’s expense, (x) in the case of clause (iii) or (iv), a Physical Note to such beneficial owner in a principal amount equal to the principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.
Physical Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the case of clause (iii) or (iv) of the immediately preceding paragraph, the relevant beneficial owner, shall instruct the Trustee. Upon execution and authentication, the Trustee shall, at the Company’s expense, deliver such Physical Notes to the Persons in whose names such Physical Notes are so registered.
At such time as all interests in a Global Note have been converted, canceled, repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with standing procedures and existing instructions between the Depositary and the Custodian. At any time prior to such cancellation, if any interest in a Global Note is exchanged for Physical Notes, converted, canceled, repurchased or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.
 
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None of the Company, the Trustee or any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
(d) Until the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion of a Note shall bear a legend in substantially the following form (unless such Common Stock has been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or such Common Stock has been issued upon conversion of a Note that has transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company with written notice thereof to the Trustee and any transfer agent for the Common Stock):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT OF IMPAX LABORATORIES, INC. (THE “ COMPANY ”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THE SERIES OF NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
 
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(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
Any such Common Stock (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).
(e) Any Note or Common Stock issued upon the conversion or exchange of a Note that is repurchased or owned by any Affiliate of the Company (or any Person who was an Affiliate of the Company at any time during the three months preceding) may not be resold by such Affiliate (or such Person, as the case may be) unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Note or Common Stock, as the case may be, no longer being a “restricted security” (as defined under Rule 144). The Company shall cause any Note that is repurchased or owned by it to be surrendered to the Trustee for cancellation in accordance with Section 2.08.
(f) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among depositary participants or beneficial owners or holders of any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
 
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(g) Neither the Trustee nor any agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon receipt of a Company Order, the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if applicable, such authenticating agent may require. No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of the new substitute Note being different from the name of the Holder of the old Note that became mutilated or was destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been surrendered for required repurchase or is about to be converted in accordance with Article 14 shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement, payment, conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement, payment, conversion or repurchase of negotiable instruments or other securities without their surrender.
 
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Section 2.07. Temporary Notes. Pending the preparation of Physical Notes, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon receipt of a Company Order, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Physical Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Physical Notes. Without unreasonable delay, the Company shall execute and deliver to the Trustee or such authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and upon receipt of a Company Order, the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Physical Notes authenticated and delivered hereunder.
Section 2.08. Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes surrendered for the purpose of payment, repurchase, registration of transfer or exchange or conversion, if surrendered to any Person other than the Trustee (including any of the Company’s agents, Subsidiaries or Affiliates), to be surrendered to the Trustee for cancellation. All Notes delivered to the Trustee shall be canceled promptly by it, and no Notes shall be authenticated in exchange thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of canceled Notes in accordance with its customary procedures and, after such disposition, shall deliver a certificate of such disposition to the Company, at the Company’s written request in a Company Order. If the Company shall acquire any of the Notes, such acquisition shall not operate as a redemption, repurchase or satisfaction of the indebtedness represented by such Notes unless and until the same are delivered to the Trustee for cancellation.
Section 2.09. CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to Holders as a convenience to such Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
 
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Section 2.10. Additional Notes; Repurchases. The Company may, without the consent of the Holders and notwithstanding Section 2.01, reopen this Indenture and issue additional Notes hereunder with the same terms as the Notes initially issued hereunder (other than differences in the issue price and interest accrued prior to the issue date of such additional Notes) in an unlimited aggregate principal amount; provided that if any such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax purposes, such additional Notes shall have a separate CUSIP number. Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate and Opinion of Counsel to cover such matters, in addition to those required by Section 17.05, as the Trustee shall reasonably request. In addition, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives. The Company shall cause any Notes so repurchased (other than Notes repurchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for cancellation in accordance with Section 2.08 and such Notes shall no longer be considered outstanding under this Indenture upon their repurchase.
ARTICLE 3
S ATISFACTION AND D ISCHARGE
Section 3.01. Satisfaction and Discharge. This Indenture shall upon request of the Company contained in an Officer’s Certificate cease to be of further effect, and the Trustee, at the expense of the Company, shall execute proper instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted as provided in Section 2.06) have been delivered to the Trustee for cancellation; or (ii) the Company has deposited with the Trustee or delivered to Holders, as applicable, after the Notes have become due and payable, whether on the Maturity Date, any Fundamental Change Repurchase Date, upon conversion or otherwise, cash, shares of Common Stock or a combination thereof, as applicable, solely to satisfy the Company’s Conversion Obligation, sufficient to pay all of the outstanding Notes and all other sums due and payable under this Indenture by the Company; and (b) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.06 shall survive.
ARTICLE 4
P ARTICULAR C OVENANTS OF THE C OMPANY
Section 4.01. Payment of Principal and Interest. The Company covenants and agrees that it will cause to be paid the principal (including the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes.
 
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Section 4.02. Maintenance of Office or Agency. The Company will maintain in the contiguous United States, an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“ Paying Agent ”) or for conversion (“ Conversion Agent ”) and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office or the office or agency of the Trustee in the contiguous United States; provided , no service of legal process on the Company may be made at any office of the Trustee.
The Company may also from time to time designate as co-Note Registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the contiguous United States for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The terms “ Paying Agent ” and “ Conversion Agent ” include any such additional or other offices or agencies, as applicable.
The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar, Custodian, Bid Solicitation Agent and Conversion Agent and the Corporate Trust Office as the office or agency in the contiguous United States, where Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase or for conversion and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served.
Section 4.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.04. Provisions as to Paying Agent. (a) If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:
(i) that it will hold all sums held by it as such agent for the payment of the principal (including the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the benefit of the Holders of the Notes;
 
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(ii) that it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal (including the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes when the same shall be due and payable; and
(iii) that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal (including the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such action; provided that if such deposit is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.
(b) If the Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the Fundamental Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly notify the Trustee in writing of any failure to take such action and of any failure by the Company to make any payment of the principal (including the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be held by the Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from all further liability but only with respect to such sums or amounts.
(d) Subject to applicable abandoned property laws, any money and shares of Common Stock deposited with the Trustee, any Paying Agent or the Conversion Agent, or then held by the Company, in trust for the payment of the principal (including the Fundamental Change Repurchase Price, if applicable) of, accrued and unpaid interest on and the consideration due upon conversion of any Note and remaining unclaimed for two years after such principal (including the Fundamental Change Repurchase Price, if applicable), interest or consideration due upon conversion has become due and payable shall be paid to the Company on request of the Company contained in an Officer’s Certificate, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money and shares of Common Stock, and all liability of the Company as trustee thereof, shall thereupon cease.
 
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Section 4.05. Existence. Subject to Article 11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 4.06. Rule 144A Information Requirement and Annual Reports. (a) At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and, upon written request, any Holder, beneficial owner or prospective purchaser of such Notes or any shares of Common Stock issuable upon conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A.
(b) The Company shall file with the Trustee, within 15 days after the same are required to be filed with the Commission, copies of any documents or reports that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act or any similar or successor grace period). Any such document or report that the Company files with the Commission via the Commission’s EDGAR system shall be deemed to be filed with the Trustee for purposes of this Section 4.06(b) at the time such documents are filed via the EDGAR system. Notwithstanding anything to the contrary, the Company shall in no event be required to file with, or otherwise provide or disclose to, the Trustee or any Holder any information for which the Company is requesting (assuming such request has not been denied), or has received, confidential treatment from the Commission.
(c) Delivery of the reports and documents described in subsection (b) above to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate).
(d) If, at any time during the six-month period beginning on, and including, the date that is six months after the last date of original issuance of the Notes, the Company fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than reports on Form 8-K), or the Notes are not otherwise freely tradable by Holders other than the Company’s Affiliates or Holders that were the Company’s Affiliates at any time during the three months preceding (as a result of restrictions pursuant to U.S. securities laws or the Transfer Restrictions), the Company shall pay Additional Interest on the Notes. Such Additional Interest shall accrue on the Notes at the rate of (i) 0.25% per annum of the principal amount of the Notes outstanding for each of the first 90 days and (ii) 0.50% per annum of the principal amount of the Notes outstanding for each day from, and including, the 91 st day, in each case, during such period for which the Company’s failure to file has occurred and is continuing or the Notes are not otherwise freely tradable by Holders other than the Company’s Affiliates (or Holders that have been the Company’s Affiliates at any time during the three months preceding) without restrictions pursuant to U.S. securities laws or the Transfer Restrictions. As used in this Section 4.06(d), documents or reports that the Company is required to “file” with the Commission pursuant to Section 13 or 15(d) of the Exchange Act does not include documents or reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
 
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(e) If, and for so long as, the restrictive legend on the Notes specified in Section 2.05(c) has not been removed (or deemed removed), the Notes are assigned a restricted CUSIP or the Notes are not otherwise freely tradable by Holders other than the Company’s Affiliates or Holders that were the Company’s Affiliates at any time during the three months preceding (without restrictions pursuant to U.S. securities laws or the Transfer Restrictions) as of the 380th day after the last date of original issuance of the Notes, the Company shall pay Additional Interest on the Notes at a rate equal to 0.50% per annum of the principal amount of Notes outstanding until the restrictive legend on the Notes has been removed (or deemed removed) in accordance with Section 2.05(c), the Notes are assigned an unrestricted CUSIP and the Notes are freely tradable by Holders other than the Company’s Affiliates (or Holders that were the Company’s Affiliates at any time during the three months preceding) (without restrictions pursuant to U.S. securities laws or the Transfer Restrictions).
(f) Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the Notes.
(g) The Additional Interest that is payable in accordance with Section 4.06(d) or Section 4.06(e) shall be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant to Section 6.03.
(h) If Additional Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the Company shall deliver to the Trustee and the Paying Agent (if other than the Trustee) an Officer’s Certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable. If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such payment.
(i) In no event shall the rate of any Additional Interest payable in accordance with Section 4.06(d) or Section 4.06(e), when taken together with that of Additional Interest payable as a result of the Company’s election pursuant to Section 6.03, exceed a total rate of 0.50% per annum, regardless of the number of events or circumstances giving rise to the requirement to pay such Additional Interest.
 
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Section 4.07. Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 4.08. Compliance Certificate; Statements as to Defaults. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2015) an Officer’s Certificate stating whether the signers thereof have knowledge of any failure by the Company to comply with all conditions and covenants then required to be performed under this Indenture during such fiscal year and, if so, specifying each such failure and the nature thereof.
In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event within 30 days after the Company becomes aware of the occurrence of any Event of Default or Default, an Officer’s Certificate setting forth the details of such Event of Default or Default, its status and the action that the Company is taking or proposing to take in respect thereof and remedies the Company is taking to cure such failure, if applicable.
Section 4.09. Additional Amounts. If the Company consolidates with, merges with or into or enters into any similar transaction with, or conveys, transfers or leases all or substantially all of its property and assets to, any Person and the resulting, surviving or transferee Person is not organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia (such Person or any successor thereto, the “ Surviving Entity ”), then all payments and deliveries made by, or on behalf of, the Surviving Entity under or with respect to the Notes, including, but not limited to, payments of principal (including, if applicable, the Fundamental Change Repurchase Price), payments of interest and payments of cash and/or deliveries of Common Stock or other Reference Property, if any, upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any taxes, duties, assessments or governmental charges imposed or levied by or within any jurisdiction in which any Surviving Entity is, for tax purposes, organized or resident or doing business or through which payment is made or deemed made by or on behalf of the Surviving Entity (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “ Relevant Taxing Jurisdiction ”) are required to be withheld or deducted from any payments made with respect to the Notes, such Surviving Entity shall pay to the Holder of each Note such additional amounts (the “ Additional Amounts ”) as may be necessary to ensure that the net amount received by the beneficial owner of such Note after such withholding or deduction (and after withholding or deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that the foregoing obligation to pay Additional Amounts shall not apply to:
 
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(a) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(i) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments thereunder or the enforcement thereof, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(ii) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of (including the Fundamental Change Repurchase Price, if applicable) and interest on, such Note or the payments of cash and/or deliveries of Common Stock or other Reference Property, if any, upon conversion of such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the Holder or beneficial owner of a Note would have been entitled to the Additional Amounts on presenting the same for payment at the close of such 30 day period; or;
(iii) the failure of the Holder or beneficial owner of a Note to comply with a timely request from any Surviving Entity, addressed to the Holder or beneficial owner, as the case may be, in each case, to the extent such Holder or beneficial owner is legally entitled to do so, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments under or with respect to the Notes;
(d) any withholding or deduction required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended, and any current or future U.S. Treasury Regulations or rulings promulgated thereunder (“ FATCA ”), any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA;
 
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(e) any taxes imposed on or with respect to any payment by the Surviving Entity to the Holder if such Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment, to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership, or a beneficial owner, who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof;
(f) any taxes that are required to be deducted or withheld on a payment pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing, or introduced in order to conform to, such directive; or
(g) any combination of items referred to in the preceding clauses (a) through (f) above.
For the avoidance of doubt, so long as the issuer of the Notes continues to be organized under the laws of the United States, any state thereof or the District of Columbia, neither such issuer nor any other Person shall have any obligation to pay Additional Amounts hereunder with respect to any withholding tax imposed by the United States or a political subdivision thereof.
Whenever there is mentioned in any context the payment of cash and/or delivery of Common Stock or other Reference Property, if any, upon conversion of any Note or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable) and interest on, any Note or any other amount payable or deliverable with respect to such Note, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Each Holder entitled to any Additional Amounts shall cooperate with the Surviving Entity and the Trustee in providing any information or documentation reasonably requested by the Surviving Entity or the Trustee to confirm the identity and/or tax status of such Holder and any affected beneficial owner to the extent such information is readily available to the Holder (to the extent necessary to establish such Holder’s entitlement to Additional Amounts) and to provide reasonable assistance to the Surviving Entity or Trustee in determining the applicable withholding tax rate and the amount of Additional Amounts payable in respect thereof. The Surviving Entity will furnish to the trustee an Officer’s Certificate and any other documentation reasonably satisfactory to the Trustee evidencing payment of any taxes so deducted or withheld and the amount of any Additional Amounts payable thereon. Copies of such documentation will be made available by the Trustee to Holders upon written request to the Trustee.
 
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The Trustee and Paying Agent shall have no duty to determine whether Additional Amounts are due, the amount of such Additional Amounts or to verify the Company’s calculation of such Additional Amounts.
ARTICLE 5
L ISTS OF H OLDERS AND R EPORTS BY THE C OMPANY AND THE T RUSTEE
Section 5.01. Lists of Holders. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee and the Paying Agent, semi-annually, not more than 10 days after each Record Date, and at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses of the Holders as of the Record Date with respect to the semi-annual delivery and as of a date not more than 15 days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished so long as the Trustee is acting as Note Registrar.
Section 5.02. Preservation and Disclosure of Lists. The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
ARTICLE 6
D EFAULTS AND R EMEDIES
Section 6.01. Events of Default. Each of the following events shall be an “ Event of Default ” with respect to the Notes:
(a) default in any payment of interest on any Note when due and payable, and the default continues for a period of 30 days;
(b) default in the payment of principal of any Note when due and payable on the Maturity Date, upon any required repurchase, upon declaration of acceleration or otherwise;
(c) failure by the Company to comply with its obligation to convert the Notes in accordance with this Indenture upon exercise of a Holder’s conversion right and such failure continues for five Business Days;
(d) failure by the Company to issue a Fundamental Change Company Notice in accordance with Section 15.02(c) or notice of a specified corporate event in accordance with Section 14.01(b)(ii) or Section 14.01(b)(iii), in each case, when due;
 
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(e) failure by the Company to comply with its obligations under Article 11;
(f) failure by the Company for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding has been received by the Company to comply with any of its other agreements contained in the Notes or this Indenture;
(g) default by the Company or any Significant Subsidiary of the Company with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $35,000,000 (or its foreign currency equivalent) in the aggregate of the Company and/or any such Subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable or (ii) constituting a failure to pay the principal or interest of any such debt when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise; if such default is not cured or waived, or such acceleration is not rescinded within 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of Notes then outstanding, in accordance with this Indenture;
(h) the Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or any such Significant Subsidiary or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or
(i) an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Significant Subsidiary or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 30 consecutive days.
Section 6.02 . Acceleration; Rescission and Annulment . If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company or any of its Significant Subsidiaries), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given by Holders), may declare 100% of the principal of, and accrued and unpaid interest on, all the Notes to be due and payable immediately, and upon any such declaration the same shall become and shall automatically be immediately due and payable, anything contained in this Indenture or in the Notes to the contrary notwithstanding. If an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company or any of its Significant Subsidiaries occurs and is continuing, 100% of the principal of, and accrued and unpaid interest, if any, on, all Notes shall become and shall automatically be immediately due and payable.
 
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The immediately preceding paragraph, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid interest upon all Notes and the principal of any and all Notes that shall have become due otherwise than by acceleration (with interest on overdue installments of accrued and unpaid interest to the extent that payment of such interest is enforceable under applicable law, and on such principal at the rate borne by the Notes at such time) and amounts due to the Trustee pursuant to Section 7.06, and if (1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all existing Events of Default under this Indenture, other than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes that shall have become due solely by such acceleration, shall have been cured or waived pursuant to Section 6.09, then and in every such case (except as provided in the immediately succeeding sentence) the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all existing or past Defaults or Events of Default with respect to the Notes and rescind and annul such declaration and its consequences and such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any Default or Event of Default resulting from (i) the nonpayment of the principal (including the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, any Notes or (ii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes.
Section 6.03. Additional Interest . Notwithstanding anything in this Indenture or in the Notes to the contrary, to the extent the Company elects, the sole remedy for an Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b) shall after the occurrence of such an Event of Default consist exclusively of the right to receive Additional Interest on the Notes at a rate equal to (i) 0.25% per annum of the principal amount of the Notes outstanding for the first 180 days during which such Event of Default is continuing and (ii) 0.50% per annum of the principal amount of such outstanding Notes for the 90 days thereafter during which such Event of Default is continuing. Additional Interest payable pursuant to this Section 6.03 shall be in addition to, not in lieu of, any Additional Interest payable pursuant to Section 4.06(d) or Section 4.06(e). If the Company so elects, such Additional Interest shall be payable in the same manner and on the same dates as the stated interest payable on the Notes. On the 271st day after such Event of Default (if the Event of Default relating to the Company’s failure to file is not cured or waived prior to such 271st day), the Notes shall be immediately subject to acceleration as provided in Section 6.02. The provisions of this paragraph will not affect the rights of Holders of Notes in the event of the occurrence of any Event of Default other than the Company’s failure to comply with its obligations as set forth in Section 4.06(b). In the event the Company does not elect to pay Additional Interest following an Event of Default in accordance with this Section 6.03 or the Company elected to make such payment but does not pay the Additional Interest when due, the Notes shall be immediately subject to acceleration as provided in Section 6.02.
 
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In order to elect to pay Additional Interest as the sole remedy during the first 270 days after the occurrence of any Event of Default described in the immediately preceding paragraph, the Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such election prior to the beginning of such 270-day period. Upon the failure to timely give such notice, the Notes shall be immediately subject to acceleration as provided in Section 6.02.
In no event shall the rate of any such Additional Interest payable described in this Section 6.03, when taken together with that of Additional Interest payable in accordance with Section 4.06(d) or Section 4.06(e), exceed a total rate of 0.50% per annum, regardless of the number of events or circumstances giving rise to the requirement to pay such Additional Interest .
The Trustee has no duty to determine whether Additional Interest is due, the amount of such Additional Interest or to verify the Company’s calculation of such Additional Interest.
Section 6.04. Payments of Notes on Default; Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable on the Notes for principal and interest, if any, with interest on any overdue principal and interest, if any, at the rate borne by the Notes at such time, and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.06. If the Company shall fail to pay such amounts forthwith, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated.
 
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In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees, and including any other amounts due to the Trustee under Section 7.06, incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property that the Holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any such proceedings.
 
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In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any waiver pursuant to Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Holders and the Trustee shall, subject to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Holders and the Trustee shall continue as though no such proceeding had been instituted.
Section 6.05. Application of Monies Collected by Trustee. Any monies or property collected by the Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies or property, upon presentation of the several Notes, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
First , to the payment of all amounts due the Trustee under this Indenture;
Second , in case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default in the order of the date due of the payments of such interest and cash due upon conversion, as the case may be, with interest (to the extent that such interest has been collected by the Trustee) upon such overdue payments at the rate borne by the Notes at such time, s uch payments to be made ratably to the Persons entitled thereto;
Third , in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount (including, if applicable, the payment of the Fundamental Change Repurchase Price and any cash due upon conversion) then owing and unpaid upon the Notes for principal and interest, if any, with interest on the overdue principal and, to the extent that such interest has been collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at such time, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the Fundamental Change Repurchase Price and the cash due upon conversion) and interest without preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the Fundamental Change Repurchase Price and any cash due upon conversion) and accrued and unpaid interest; and
Fourth , to the payment of the remainder, if any, to the Company.
 
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Section 6.06. Proceedings by Holders. Except to enforce the right to receive payment of principal (including, if applicable, the Fundamental Change Repurchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder of any Note shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:
(a) such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as herein provided;
(b) Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;
(c) such Holders shall have offered to the Trustee such security or indemnity reasonably satisfactory to it against any loss, liability or expense to be incurred therein or thereby;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of such security or indemnity, shall have neglected or refused to institute any such action, suit or proceeding; and
(e) no written direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the Holders of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09,
it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein). For the protection and enforcement of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision of any Note, the right of any Holder to receive payment or delivery, as the case may be, of (x) the principal (including the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, such Note, on or after the respective due dates expressed or provided for in such Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery, as the case may be, on or after such respective dates against the Company shall not be impaired or affected without the consent of such Holder.
Section 6.07. Proceedings by Trustee. In case of an Event of Default, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
 
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Section 6.08. Remedies Cumulative and Continuing. Except as provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders, respectively.
Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders. Subject to Section 7.01, the Holders of a majority of the aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes; provided , however , that (a) such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 may on behalf of the Holders of all of the Notes waive any existing or past Default or Event of Default hereunder and its consequences except (i) a default in the payment of accrued and unpaid interest, if any, on, or the principal (including any Fundamental Change Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 6.01, (ii) a failure by the Company to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended without the consent of each Holder of an outstanding Note affected. Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
 
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Section 6.10. Notice of Defaults. The Trustee shall, within 90 days after the occurrence and continuance of a Default of which a Responsible Officer has actual knowledge, mail to all Holders as the names and addresses of such Holders appear upon the Note Register, or otherwise deliver to all Holders, notice of all Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived before the giving of such notice; provided that, except in the case of a Default in the payment of the principal of (including the Fundamental Change Repurchase Price, if applicable), or accrued and unpaid interest on, any of the Notes or a Default in the payment or delivery of the consideration due upon conversion, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
Section 6.11. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section 6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section 8.04, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the Fundamental Change Repurchase Price, if applicable) on or after the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note, or receive the consideration due upon conversion, in accordance with the provisions of Article 14.
ARTICLE 7
C ONCERNING THE T RUSTEE
Section 7.01. Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In the event an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
 
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No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default that may have occurred:
(i) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith and willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding determined as provided in Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(d) whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section;
(e) the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Note Registrar with respect to the Notes;
(f) if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event;
 
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(g) in the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure of the party directing such investments prior to its maturity date or the failure of the party directing such investment to provide timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written investment direction from the Company; and
(h) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or transfer agent hereunder, the rights and protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to such Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or transfer agent.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers. The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder.
Section 7.02. Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 7.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, note, coupon or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;
 
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(e) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, custodian, nominee or attorney appointed by it with due care hereunder; and
(f) the permissive rights of the Trustee enumerated herein shall not be construed as duties.
In no event shall the Trustee be liable for any special, consequential, indirect or punitive loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action other than any such loss or damage caused by the Trustee’s willful misconduct or gross negligence. The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to the Trustee by the Company or by any Holder of the Notes.
The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
Section 7.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture, the Common Stock or of the Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the provisions of this Indenture. The Trustee shall have no responsibility or liability with respect to any information, statement or recital in the disclosure material prepared or distributed with respect to the issuance of the Notes.
Section 7.04. Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion Agent, Bid Solicitation Agent (if other than the Company) or Note Registrar, in its individual or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent, Bid Solicitation Agent or Note Registrar.
Section 7.05. Monies and Shares of Common Stock to Be Held in Trust. All monies and shares of Common Stock received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received. Money and shares of Common Stock held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money or shares of Common Stock received by it hereunder except as may be agreed from time to time by the Company and the Trustee.
 
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Section 7.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, compensation for all services rendered by it hereunder in any capacity as mutually agreed to in writing between the Trustee and the Company (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its gross negligence, willful misconduct or bad faith. The Company also covenants to indemnify the Trustee in any capacity under this Indenture and any other document or transaction entered into in connection herewith and its officers, directors, employees and agents and any authenticating agent for, and to hold them harmless against, any loss, claim, damage, liability or expense (whether asserted by the Company, a Holder or a third party) incurred without gross negligence, willful misconduct or bad faith on the part of the Trustee, its officers, directors, agents or employees, or such agent or authenticating agent, as the case may be, determined by a final non-appealable order and arising out of or in connection with the acceptance or administration of this Indenture or in any other capacity hereunder, including the costs and expenses of defending themselves against any claim of liability in the premises and including the costs and expenses of enforcing this Indenture (including this Section 7.06). The obligations of the Company under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee, except, subject to the effect of Section 6.05, funds held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company. The obligation of the Company under this Section 7.06 shall survive the satisfaction and discharge of this Indenture and the earlier resignation or removal or the Trustee. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The indemnification provided in this Section 7.06 shall extend to the officers, directors, agents and employees of the Trustee.
Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.
 
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Section 7.07. Officer’s Certificate as Evidence. Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence, willful misconduct, recklessness and bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence, willful misconduct, recklessness and bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08. Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 7.09. Resignation or Removal of Trustee. (a) The Trustee may at any time resign by giving written notice of such resignation to the Company and by sending notice thereof to the Holders at their addresses as they shall appear on the Note Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 60 days after the sending of such notice of resignation to the Holders, the resigning Trustee may, upon ten Business Days’ notice to the Company and the Holders, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, subject to the provisions of Section 6.11, on behalf of himself or herself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(a) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(ii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
 
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then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(b) The Holders of a majority in aggregate principal amount of the Notes at the time outstanding, as determined in accordance with Section 8.04, may at any time remove the Trustee and nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a) provided, may petition any court of competent jurisdiction for an appointment of a successor trustee.
(c) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10.
Section 7.10. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by such trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under the provisions of Section 7.08.
 
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Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction and at the expense of the Company shall send or cause to be sent a notice of the succession of such trustee hereunder to the Holders at their addresses as they shall appear on the Note Register. If the Company fails to send such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be sent at the expense of the Company.
Section 7.11. Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that in the case of any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee such corporation or other entity shall be eligible under the provisions of Section 7.08.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have; provided , however , that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 7.12. Trustee’s Application for Instructions from the Company. Any application by the Trustee for written instructions from the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer that the Company has indicated to the Trustee should receive such application actually receives such application, unless any such officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.
 
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ARTICLE 8
C ONCERNING THE H OLDERS
Section 8.01. Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders. Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining Holders entitled to take such action. The record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such action.
Section 8.02. Proof of Execution by Holders. Subject to the provisions of Section 7.01, Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal of and (subject to Section 2.03) accrued and unpaid interest on such Note, for conversion of such Note and for all other purposes under this Indenture; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor any Note Registrar shall be affected by any notice to the contrary. All such payments or deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or delivered, effectual to satisfy and discharge the liability for monies payable or shares deliverable upon any such Note. Notwithstanding anything to the contrary in this Indenture or the Notes following an Event of Default, any holder of a beneficial interest in a Global Note may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action of the Depositary or any other Person, such holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with the provisions of this Indenture.
 
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Section 8.04. Company-Owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Company, by any Subsidiary thereof or by any Affiliate of the Company or any Subsidiary thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action only Notes that a Responsible Officer knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee is not the Company, a Subsidiary thereof or an Affiliate of the Company or a Subsidiary thereof. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination.
Section 8.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.
ARTICLE 9
H OLDERS ’ M EETINGS
Section 9.01. Purpose of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the following purposes:
(a) to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;
 
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(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Notes under any other provision of this Indenture or under applicable law.
Section 9.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01, shall be sent to Holders of such Notes at their addresses as they shall appear on the Note Register. Such notice shall also be sent to the Company. Such notices shall be sent not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of Holders shall be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice.
Section 9.03. Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have sent the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 9.01, by sending notice thereof as provided in Section 9.02.
Section 9.04. Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
Section 9.05. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
 
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The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in aggregate principal amount of the Notes represented at the meeting and entitled to vote at the meeting.
Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or represented by him or her; provided , however , that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal amount of Notes represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
Section 9.06. Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall show the aggregate principal amount of the Notes voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 9.07. No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Notes.
 
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ARTICLE 10
S UPPLEMENTAL I NDENTURES
Section 10.01. Supplemental Indentures Without Consent of Holders. The Company, when authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for the assumption by a Successor Company of the obligations of the Company under this Indenture pursuant to Article 11;
(c) to add guarantees or co-obligors with respect to the Notes;
(d) to secure the Notes;
(e) to add to the covenants or Events of Default of the Company for the benefit of the Holders or surrender any right or power conferred upon the Company;
(f) to make any change that does not adversely affect the rights of any Holder in any material respect;
(g) in connection with any Merger Event, to provide that the Notes are convertible into Reference Property, subject to the provisions of Section 14.02, and make such related changes to the terms of the Notes and conversion rights of the Holders to the extent expressly required by Section 14.07;
(h) to provide for the acceptance of appointment by a successor Trustee in accordance with this Indenture;
(i) to comply with the rules of any applicable Depositary, so long as such amendment does not adversely affect the rights of any Holder in any material respect;
(j) to permit for the issuance of additional Notes in accordance with this Indenture;
(k) to comply with any requirement of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act so long as such amendment does not adversely affect the rights of any Holder in any material respect;
(l) to irrevocably elect or eliminate one of the Settlement Methods and/or irrevocably elect a minimum Specified Dollar Amount; or
 
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(m) to conform the provisions of this Indenture or the Notes to the “Description of notes” section of the Offering Memorandum.
Upon the written request of the Company, the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02.
Section 10.02. Supplemental Indentures with Consent of Holders. With the consent (evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the Company, when authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or any supplemental indenture or of modifying in any manner the rights of the Holders; provided , however , that, without the consent of each Holder of an outstanding Note affected, no such supplemental indenture shall:
(a) reduce the amount of Notes whose Holders must consent to an amendment;
(b) reduce the rate of or extend the stated time for payment of interest on any Note;
(c) reduce the principal of or extend the Maturity Date of any Note;
(d) make any change that adversely affects the conversion rights of any Notes;
(e) reduce the Fundamental Change Repurchase Price of any Note or amend or modify in any manner adverse to the Holders the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;
(f) make any Note payable in a currency, or at a place of payment, other than that stated in the Note;
(g) change the ranking of the Notes;
(h) impair the right of any Holder to receive payment of principal and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;
 
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(i) make any change to the provisions of Section 4.09 in a manner adverse to Holders; or
(j) make any change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.02 or Section 6.09.
Upon the written request of the Company, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject to Section 10.05, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
Holders do not need under this Section 10.02 to approve the particular form of any proposed supplemental indenture. It shall be sufficient if such Holders approve the substance thereof. After any such supplemental indenture becomes effective, the Company shall send to the Holders a notice briefly describing such supplemental indenture. However, the failure to give such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of the supplemental indenture.
Section 10.03. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article 10, this Indenture and the Notes shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties, liabilities and immunities under this Indenture of the Trustee, the Company and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 10.04. Notation on Notes. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s expense, bear a notation as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 17.10) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.
Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee. In addition to the documents required by Section 17.05, the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article 10 and is permitted or authorized by this Indenture.
 
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ARTICLE 11
C ONSOLIDATION , M ERGER , S ALE , C ONVEYANCE AND L EASE
Section 11.01. Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 11.02, the Company shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of its properties and assets to another Person, unless:
(a) the resulting, surviving or transferee Person (the “ Successor Company ”), if not the Company, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia or the Cayman Islands, the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United Kingdom, and the Successor Company (if not the Company) shall expressly assume, by supplemental indenture all of the obligations of the Company under the Notes and this Indenture (including, for the avoidance of doubt, the obligation to pay Additional Amounts, as set forth in Section 4.09); and
(b) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture.
For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the Company to another Person, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the Company to another Person.
Section 11.02. Successor Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company, such Successor Company (if not the Company) shall succeed to and, except in the case of a lease of all or substantially all of the Company’s properties and assets, shall be substituted for the Company, with the same effect as if it had been named herein as the party of the first part, and the Company (except in the case of a lease of all or substantially all of the Company’s property and assets) shall be discharged from the obligations of the Company under the Notes and this Indenture. Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the Officers of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon compliance with this Article 11 the Person named as the “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have become such in the manner prescribed in this Article 11) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.
 
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In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.
Section 11.03. Opinion of Counsel to Be Given to Trustee. No such consolidation, merger, sale, conveyance, transfer or lease shall be effective unless the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or lease and any such assumption and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, complies with the provisions of this Article 11.
ARTICLE 12
I MMUNITY OF I NCORPORATORS , S TOCKHOLDERS , O FFICERS AND D IRECTORS
Section 12.01. Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Note, nor because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, Officer or director or Subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released by the Holders as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes.
 
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ARTICLE 13
[I NTENTIONALLY O MITTED ]
ARTICLE 14
C ONVERSION OF N OTES
Section 14.01. Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding December 15, 2021 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after December 15, 2021 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 15.7858 shares of Common Stock (subject to adjustment as provided in this Article 14, the “ Conversion Rate ”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “ Conversion Obligation ”).
(b) (i) Prior to the close of business on the Business Day immediately preceding December 15, 2021, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any ten consecutive Trading Day period (the “ Measurement Period ”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each and the Company shall direct such securities dealers to work with the Bid Solicitation Agent. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) and the Company shall have no obligation to make such request unless a Holder of at least $5,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day and such Holder requests that the Company request that the Bid Solicitation Agent determine or, if the Company is acting as Bid Solicitation Agent, requests that the Company determine, the Trading Price of the Notes, at which time the Company shall instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids when required and the Bid Solicitation Agent fails to carry out such instruction, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
 
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(ii) If, prior to the close of business on the Business Day immediately preceding December 15, 2021, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than pursuant to a stockholders rights plan, so long as such rights have not separated from the shares of Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholders rights plan, so long as such rights have not separated from the shares of Common Stock), which distribution has a per share value, as reasonably determined by the Company, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution,
 
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then, in either case, the Company shall notify all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 45 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Holders of the Notes may not exercise this right if they participate (other than in the case of a share split or share combination), at the same time and upon the same terms as Holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.01(b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the applicable Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. None of the Trustee, the Bid Solicitation Agent, or Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a consolidation, merger, binding share exchange, or transfer or lease of all or substantially all of its assets, in each case, pursuant to which the Common Stock would be converted into Reference Property in a transaction described in Section 14.07(a) (but, in each case, excluding any reorganization or merger of the Company solely for the purpose of changing the Company’s jurisdiction of incorporation that results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into Reference Property constituting shares of common stock of the surviving entity listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors)), in each case, prior to the close of business on the Business Day immediately preceding December 15, 2021, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of such transaction or event until the earlier of (x) 35 Trading Days after the actual effective date of such transaction or event, if such transaction or event also constitutes a Fundamental Change, until the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) within one Business Day of the occurrence such transaction or event. None of the Trustee, the Bid Solicitation Agent, or Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a transaction or event described in this clause (iii) has occurred.
(iv) Prior to the close of business on the Business Day immediately preceding December 15, 2021, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on September 30, 2015 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter is greater than 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after September 30, 2015 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall notify the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv).
 
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Section 14.02. Conversion Procedure; Settlement Upon Conversion.
(a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“ Cash Settlement ”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“ Physical Settlement ”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“ Combination Settlement ”), at its election, as set forth in this Section 14.02 and subject in all respects to Section 14.02(a)(iii).
(i) All conversions for which the relevant Conversion Date occurs on or after December 15, 2021 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs on or after December 15, 2021, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) Notwithstanding anything to the contrary in this Indenture or the Notes, the Company shall not elect a Settlement Method, and the Company shall be deemed to have elected Cash Settlement, in respect of any conversion of Notes for which the relevant Conversion Date occurs prior to the first date (the “ Stockholder Approval Date ”) on which (x) the Company’s stockholders have approved an increase in the number of authorized but unissued shares of the Common Stock that are not reserved for other purposes sufficient for the Company to issue and deliver upon conversion of all outstanding Notes the full number of shares of Common Stock underlying such Notes, assuming for such purposes that a single Holder converted all outstanding Notes and the Company elected Physical Settlement in respect of such conversion, and including the maximum number of Additional Shares that may be added to the Conversion Rate upon conversion in connection with a Make-Whole Fundamental Change, as described in Section 14.03 (the “ Maximum Number of Underlying Shares ”) and (y) the Company has reserved for issuance upon conversion of all outstanding Notes a number of shares of Common Stock equal to the Maximum Number of Underlying Shares. For any conversions for which the relevant Conversion Date occurs on or after the Stockholder Approval Date, the Company may elect Cash Settlement, Physical Settlement or Combination Settlement as otherwise described in this Section 14.02. If the Company receives stockholder approval on any day, the Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) within five Business Days of such approval.
 
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(iv) If, in respect of any Conversion Date (or in respect of any conversion for which the relevant Conversion Date occurs on or after December 15, 2021), the Company elects to deliver a notice (the “ Settlement Notice ”) of the relevant Settlement Method in respect of such Conversion Date (or in respect of any conversion for which the relevant Conversion Date occurs on or after December 15, 2021), the Company, through the Conversion Agent, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after December 15, 2021, no later than December 15, 2021). If the Company does not elect a Settlement Method in respect of any conversions for which the relevant Conversion Date occurs on or after the Stockholder Approval Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(v) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “ Settlement Amount ”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
 
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(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(vi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify in writing the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Company) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “ Notice of Conversion ”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, pay all applicable transfer or similar taxes, if any, as described in Section 14.02(e), (4) if required, furnish appropriate endorsements and transfer documents and (5) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03.
If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
 
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(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “ Conversion Date ”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation (i) on the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement; provided that, in the case of Physical Settlement, with respect to any Conversion Date occurring after the Regular Record Date immediately preceding the Maturity Date, settlement shall occur on the Maturity Date, or (ii) on the third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
 
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(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record after the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Section 14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes. (a) If a Make-Whole Fundamental Change occurs or becomes effective prior to the Maturity Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change, the Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “ Additional Shares ”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion is received by the Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “ Make-Whole Fundamental Change Period ”).
 
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(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change pursuant to Section 14.01(b)(iii), the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement, Cash Settlement or Combination Settlement, subject to the limitations and in accordance with Section 14.02; provided , however , that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any adjustment for Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be paid to Holders in cash on the third Business Day following the Conversion Date. The Company shall notify in writing the Holders of Notes, the Trustee and the Conversion Agent of the Effective Date of any Make-Whole Fundamental Change no later than five Business Days after such Effective Date.
(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the “ Effective Date ”) and the price (the “ Stock Price ”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change. The Company shall make adjustments to the Stock Price, in its good faith judgment, to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date (as such term is used in Section 14.04) or expiration date of the event occurs during such five consecutive Trading Day period.
(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
 
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(e) The following table sets forth the number of Additional Shares of Common Stock by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date set forth below:

 	  	Stock Price	 	
Effective Date	  	$47.81	 	  	$52.50	 	  	$57.50	 	  	$63.35	 	  	$70.00	 	  	$80.00	 	  	$100.00	 	  	$150.00	 	  	$200.00	 	  	$275.00	 	
June 30, 2015	  	 	5.1303	 	  	 	4.5234	 	  	 	3.7755	 	  	 	3.0994	 	  	 	2.5159	 	  	 	1.8871	 	  	 	1.1392	 	  	 	0.4017	 	  	 	0.1473	 	  	 	0.0000	 	
June 15, 2016	  	 	5.1303	 	  	 	4.3293	 	  	 	3.5767	 	  	 	2.9028	 	  	 	2.3274	 	  	 	1.7168	 	  	 	1.0082	 	  	 	0.3409	 	  	 	0.1220	 	  	 	0.0000	 	
June 15, 2017	  	 	5.1303	 	  	 	4.1722	 	  	 	3.4024	 	  	 	2.7211	 	  	 	2.1471	 	  	 	1.5493	 	  	 	0.8782	 	  	 	0.2825	 	  	 	0.0985	 	  	 	0.0000	 	
June 15, 2018	  	 	5.1303	 	  	 	4.0430	 	  	 	3.2407	 	  	 	2.5402	 	  	 	1.9606	 	  	 	1.3720	 	  	 	0.7408	 	  	 	0.2247	 	  	 	0.0766	 	  	 	0.0000	 	
June 15, 2019	  	 	5.1303	 	  	 	3.9154	 	  	 	3.0610	 	  	 	2.3288	 	  	 	1.7381	 	  	 	1.1608	 	  	 	0.5834	 	  	 	0.1657	 	  	 	0.0559	 	  	 	0.0000	 	
June 15, 2020	  	 	5.1303	 	  	 	3.7659	 	  	 	2.8264	 	  	 	2.0429	 	  	 	1.4373	 	  	 	0.8839	 	  	 	0.3961	 	  	 	0.1071	 	  	 	0.0370	 	  	 	0.0000	 	
June 15, 2021	  	 	5.1303	 	  	 	3.5745	 	  	 	2.4654	 	  	 	1.5830	 	  	 	0.9661	 	  	 	0.4933	 	  	 	0.1833	 	  	 	0.0519	 	  	 	0.0189	 	  	 	0.0000	 	
June 15, 2022	  	 	5.1303	 	  	 	3.5543	 	  	 	1.8979	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 	
	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
The exact Stock Prices and Effective Dates may not be set forth in the table above, in which case:
(i) if the Stock Price is between two Stock Prices in the table above or the Effective Date is between two Effective Dates in the table, the number of Additional Shares shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as applicable, based on a 365-day year;
(ii) if the Stock Price is greater than $275.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and
(iii) if the Stock Price is less than $47.81 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate.
Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 20.9161 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
 
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Section 14.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04, without having to convert their Notes, as if they held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder.
(a) If the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company effects a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:

where,

CR 0	  	=	  	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable;	
			
CR’	  	=	  	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date;	
			
OS 0	  	=	  	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date; and	
			
OS’	  	=	  	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.	
Any adjustment made under this Section 14.04(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 14.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
 
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(b) If the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants (other than pursuant to a stockholders rights plan, so long as such rights have not separated from the shares of Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be increased based on the following formula:

where,

CR 0	  	=	  	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;	
			
CR’	  	=	  	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;	
			
OS 0	  	=	  	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;	
			
X	  	=	  	the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and	
			
Y	  	=	  	the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants.	
Any increase made under this Section 14.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If no such rights, options or warrants are issued, or if no such rights, options or warrants are exercised prior to their expiration, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.
For purposes of this Section 14.04(b) and for the purpose of Section 14.01(b)(ii)(A), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Company in good faith.
 
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(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected (or will be so effected, in accordance with the 1% Exception (as defined below)) pursuant to Section 14.04(a) or Section 14.04(b), (ii) rights issued under a stockholders rights plan, so long as such rights have not separated from the shares of Common Stock, (iii) dividends or distributions paid exclusively in cash as to which the provisions set forth in Section 14.04(d) apply (or shall apply, in accordance with the 1% Exception), (iv) distributions of Reference Property issued in exchange for the Common Stock as described in Section 14.07(a), and (v) Spin-Offs as to which the provisions set forth below in this Section 14.04(c) apply (or shall apply, in accordance with the 1% Exception) (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities, the “ Distributed Property ”), then the Conversion Rate shall be increased based on the following formula:

where,

CR 0	  	=	  	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;	
			
CR’	  	=	  	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;	
			
SP 0	  	=	  	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and	
			
FMV	  	=	  	the fair market value (as determined by the Company in good faith) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution.	
Any increase made under the portion of this Section 14.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution. If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 14.04(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.
 
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With respect to an adjustment pursuant to this Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “ Spin-Off ”), the Conversion Rate shall be increased based on the following formula:

where,

CR 0	  	=	  	the Conversion Rate in effect immediately prior to the end of the Valuation Period;	
			
CR’	  	=	  	the Conversion Rate in effect immediately after the end of the Valuation Period;	
			
FMV 0	  	=	  	the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “ Valuation Period ”); and	
			
MP 0	  	=	  	the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.	
The increase to the Conversion Rate under the preceding paragraph shall occur on the last Trading Day of the Valuation Period; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, the reference to “10” in the portion of this Section 14.04(c) related to Spin-Offs shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date for such Spin-Off and such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, the reference to “10” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date for such Spin-Off and such Trading Day in determining the Conversion Rate as of such Trading Day. In addition, if the Ex-Dividend Date for such Spin-Off is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of a conversion of Notes, references to “10” or “10 th” in the preceding paragraph and this paragraph will be deemed replaced, solely in respect of that conversion of Notes, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Observation Period.
 
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For purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights, options or warrants distributed by the Company to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“ Trigger Event ”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.04(c) (and no adjustment to the Conversion Rate under this Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 14.04(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 14.04(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
 
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For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), if any dividend or distribution to which this Section 14.04(c) is applicable also includes one or both of:
(A) a dividend or distribution of shares of Common Stock to which Section 14.04(a) is applicable (the “ Clause A Distribution ”); or
(B) a dividend or distribution of rights, options or warrants to which Section 14.04(b) is applicable (the “ Clause B Distribution ”),
then, in either case, (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 14.04(c) is applicable (the “ Clause C Distribution ”) and any Conversion Rate adjustment required by this Section 14.04(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 14.04(a) and Section 14.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 14.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 14.04(b).
(d) If any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Conversion Rate shall be adjusted based on the following formula:

where,

CR 0	  	=	  	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;	
			
CR’	  	=	  	the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;	
			
SP 0	  	=	  	the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and	
			
C	  	=	  	the amount in cash per share the Company distributes to all or substantially all holders of the Common Stock.	
 
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Any increase pursuant to this Section 14.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.
(e) If the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock (other than an odd-lot tender offer), to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula:

where,

CR 0	  	=	  	the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;	
			
CR’	  	=	  	the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;	
			
AC	  	=	  	the aggregate value of all cash and any other consideration (as determined by the Company in good faith) paid or payable for shares of Common Stock purchased in such tender or exchange offer;	
			
OS 0	  	=	  	the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);	
			
OS’	  	=	  	the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and	
			
SP’	  	=	  	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires.	
 
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The increase to the Conversion Rate under this Section 14.04(e) shall occur at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion of Notes within the 10 Trading Days immediately following, and including, the expiration date of any tender or exchange offer, references in this Section 14.04(e) with respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date that such tender or exchange offer expires and the Conversion Date in determining the Conversion Rate. In addition, if the Trading Day next succeeding the date such tender or exchange offer expires is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of a conversion of Notes, references in the preceding paragraph to 10 Trading Days shall be deemed to be replaced, solely in respect of that conversion of Notes, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the date such tender or exchange offer expires to, and including, the last Trading Day of such Observation Period.
(f) Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes, if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record holder of the shares of Common Stock as of the related Conversion Date as described under Section 14.02(i) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 14.04, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.
(g) Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes, if a Holder converts a Note, Combination Settlement is applicable to such Note and the Daily Settlement Amount for any Trading Day during the Observation Period applicable to such Note: (x) is calculated based on a Conversion Rate adjusted on account of any event described in Section 14.04(a) through (e); and (y) includes any shares of Common Stock that entitle such converting Holder to participate in such event, a Conversion Rate adjustment will not be made for such converting Holder for such Trading Day. Instead, such Holder will, as set forth in Section 14.04, be treated as if such Holder were the record owner of such number of shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.
 
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(h) Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of the Common Stock or any securities convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible or exchangeable securities.
(i) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 14.04, and to the extent permitted by applicable law and subject to the applicable listing standards of The NASDAQ Global Select Market, the Company from time to time may (but is not required to) increase the Conversion Rate by any amount for a period of at least 20 Business Days (x) if the Company determines that such increase would be in the Company’s best interest or (y) to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or similar event. Whenever the Conversion Rate is increased pursuant to either of the preceding two sentences, the Company shall send to the Holder of each Note at its last address appearing on the Note Register a notice of the increase at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(j) Except as described in Section 14.03 and this Section 14.04, the Conversion Rate shall not be required to be adjusted for any transaction or event. Without limiting the foregoing, the Conversion Rate shall not be required to be adjusted:
(i) upon the issuance of shares of Common Stock at a price per share below the Conversion Price or otherwise;
(ii) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;
(iii) upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of the Company’s Subsidiaries;
(iv) upon the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (iii) of this subsection and outstanding as of the date the Notes were first issued;
(v) for a third-party tender offer by any party other than the Company’s Subsidiaries as described in Section 14.04(e);
(vi) solely for a change in the par value of the Common Stock;
(vii) for accrued and unpaid interest, if any; or
(viii) for an event otherwise requiring an adjustment as described in this Indenture if such event is not consummated.
 
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(k) All calculations and other determinations under this Article 14 shall be made by the Company and shall be made to the nearest one-ten thousandth (1/10,000th) of a share. The Company shall not be required to make an adjustment in the Conversion Rate unless the adjustment would require a change of at least 1% in the Conversion Rate. However, the Company shall carry forward any adjustments that are less than 1% of the Conversion Rate and make such carried forward adjustments with respect to a Note, regardless of whether the aggregate adjustment is less than 1%, (i) in connection with any subsequent adjustment to the Conversion Rate of at least 1% of the Conversion Rate, (ii) upon the occurrence of any Fundamental Change or Make-Whole Fundamental Change, (iii) on June 15, 2022 and (iv) on any Conversion Date (in the case of Physical Settlement) or on each Trading Day of any Observation Period (in the case of Cash Settlement or Combination Settlement), in each case, regardless of whether such adjustments could otherwise be carried forward pursuant to the immediately preceding sentence (the exception referred to in this paragraph, the “ 1% Exception ”).
(l) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall send such notice of such adjustment of the Conversion Rate to each Holder at its last address appearing on the Note Register of this Indenture. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(m) For purposes of this Section 14.04, the number of shares of Common Stock at any time outstanding shall not include shares of Common Stock held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company, but shall include shares of Common Stock issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
Section 14.05. Adjustments of Prices. Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including an Observation Period and the period for determining the Stock Price for purposes of a Make-Whole Fundamental Change), the Company shall make adjustments in its good faith judgment to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date or expiration date, as the case may be, of the event occurs, at any time during the period when the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts are to be calculated. For the avoidance of doubt, any such adjustments will be made, solely to the extent the Company determines in its good faith judgment that any such adjustment is necessary, without duplication of any other adjustment made pursuant to this Article 14.
 
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Section 14.06. Shares to Be Fully Paid. On and following the Shareholder Approval Date, the Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming delivery of the maximum number of Additional Shares pursuant to Section 14.03 and that at the time of computation of such number of shares, all such Notes would be converted by a single Holder and that Physical Settlement were applicable).
Section 14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.
(a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than solely changes in par value or from no par value or changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety or
(iv) any statutory share exchange,
in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “ Merger Event ”), then, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “ Reference Property ,” with each “ unit of Reference Property ” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided , however , that at and after the effective time of the Merger Event the Conversion Obligation shall be calculated and settlement in accordance with Section 14.02 such that (i) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes as set forth, and subject to, Section 14.02 and (ii)(A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02 shall continue to be payable in cash, (B) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Merger Event and (C) the Daily VWAP shall be calculated based on the value of a unit of Reference Property.
 
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If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the third Business Day immediately following the relevant Conversion Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made.
Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) When the Company executes a supplemental indenture pursuant to subsection (a) of this Section 14.07, the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
 
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(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Section 14.08. Certain Covenants. (a) The Company covenants that all shares of Common Stock issued upon conversion of Notes will be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof.
(a) The Company further covenants that if at any time the Common Stock shall be listed on any national securities exchange or automated quotation system the Company will use reasonable best efforts to list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, any Common Stock issuable upon conversion of the Notes.
Section 14.09. Responsibility of Trustee. The Trustee and any Conversion Agent (other than the Company) shall not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any Conversion Agent (other than the Company) shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and Conversion Agent (other than the Company) make no representations with respect thereto. Neither the Trustee nor any Conversion Agent (other than the Company) shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article. Without limiting the generality of the foregoing, neither the Trustee nor Conversion Agent (other than the Company) shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 14.07 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in such Section 14.07 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event contemplated by Section 14.01(b) has occurred that makes the Notes eligible for conversion or no longer eligible therefor until the Company has delivered to the Trustee and the Conversion Agent the notices referred to in Section 14.01(b) with respect to the commencement or termination of such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of any such event or at such other times as shall be provided for in Section 14.01(b).
 
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Section 14.10. Notice to Holders Prior to Certain Actions. In case of any:
(a) action by the Company or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to Section 14.04 or Section 14.11;
(b) Merger Event; or
(c) voluntary or involuntary dissolution, liquidation or winding-up of the Company or any of its Subsidiaries;
then, in each case (unless notice of such event is otherwise required pursuant to another provision of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be sent to each Holder at its address appearing on the Note Register, as promptly as possible but in any event at least 20 days prior to the applicable date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common Stock of record are to be determined for the purposes of such action by the Company or one of its Subsidiaries, or (ii) the date on which such Merger Event, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such Merger Event, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, Merger Event, dissolution, liquidation or winding-up.
Section 14.11. Stockholder Rights Plans. If the Company has a stockholder rights plan in effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder rights plan, as the same may be amended from time to time. However, if, prior to any conversion of Notes, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the Common Stock Distributed Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.
 
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Section 14.12. Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding anything to the contrary in this Indenture, if an event occurs that would result in an increase in the Conversion Rate by an amount in excess of limitations imposed by any shareholder approval rules or listing standards of any national or regional securities exchange that are applicable to the Company, the Company will, at its option, either obtain stockholder approval of any issuance of Common Stock upon conversion of the Notes in excess of such limitations or pay cash in lieu of delivering any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations based on the Daily VWAP for each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering shares of Common Stock, the Company pays cash pursuant to this Section 14.12.
ARTICLE 15
R EPURCHASE OF N OTES AT O PTION OF H OLDERS
Section 15.01. [ Intentionally Omitted ]
Section 15.02. Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to $1,000 or an integral multiple of $1,000, on the date (the “ Fundamental Change Repurchase Date ”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “ Fundamental Change Repurchase Price ”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “ Fundamental Change Repurchase Notice ”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
 
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(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.
The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;
provided , however , that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 15.03.
The Paying Agent shall notify the Company daily of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “ Fundamental Change Company Notice ”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
 
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(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes;
provided , however , that, if the Notes are Global Notes, the Holders (and holders of a beneficial interest in such Global Notes) must comply with the applicable procedures of the Depositary.
No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02.
At the Company’s request made at least two (2) Business Days prior to the date notice must be delivered (unless a shorter period is agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided , however , that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
 
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Section 15.03. Withdrawal of Fundamental Change Repurchase Notice. (a) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with this Section 15.03 at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted (which must be $1,000 or an integral multiple thereof),
(ii) if Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted, and
(iii) the principal amount (which must be $1,000 or an integral multiple thereof), if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
provided , however , that if the Notes are Global Notes, the notice must comply with appropriate procedures of the Depositary.
Section 15.04. Deposit of Fundamental Change Repurchase Price. (a) The Company will deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04) on or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date) will be made on the later of (i) the Fundamental Change Repurchase Date ( provided the Holder has satisfied the conditions in Section 15.02) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 15.02 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided , however , that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(b) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Fundamental Change Repurchase Date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly withdrawn, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase Price).
 
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(c) Upon surrender of a Physical Note that is to be repurchased in part pursuant to Section 15.02, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note surrendered .
Section 15.05. Covenant to Comply with Applicable Laws Upon Repurchase of Notes . In connection with any repurchase offer, the Company will, if required:
(a) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act;
(b) file a Schedule TO or any other required schedule under the Exchange Act; and
(c) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes;
in each case, so as to permit the rights and obligations under this Article 15 to be exercised in the time and in the manner specified in this Article 15.
Section 15.06. Third Party Offers . Notwithstanding any other provision of this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such offer in the same manner, at the same time and otherwise in compliance with the requirements under this Indenture for a repurchase offer made by the Company pursuant to this Article 15 and such third party purchases all Notes that are properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements under this Indenture for a repurchase offer made by the Company pursuant to this Article 15.
Section 15.07. Reference Property Exception . Notwithstanding any other provision of this Article 15, the Company shall not be required to give a Fundamental Change Company Notice or repurchase the Notes upon a Fundamental Change pursuant to clause (b) of the definition of “Fundamental Change” if (i) such Fundamental Change results in the Notes becoming convertible (pursuant to the provisions set forth in Section 14.07(a)) into Reference Property consisting of cash in an amount per Note greater than the Fundamental Change Repurchase Price (assuming the maximum amount of accrued interest would be payable based on the latest possible Fundamental Change Purchase Date) and (ii) the Company provides timely notice of the Holders’ right to convert their Notes based on such Fundamental Change as set forth in Section 14.01(b)(iii).
 
85

ARTICLE 16
N O R EDEMPTION
Section 16.01. No Redemption . The Notes shall not be redeemable by the Company prior to the Maturity Date, and no sinking fund is provided for the Notes.
ARTICLE 17
M ISCELLANEOUS P ROVISIONS
Section 17.01. Provisions Binding on Company’s Successors. All the covenants, stipulations, promises and agreements of the Company contained in this Indenture shall bind its successors and assigns whether so expressed or not.
Section 17.02. Official Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or Officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Company.
Section 17.03. Addresses for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders on the Company shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to Impax Laboratories, Inc., 30831 Huntwood Ave., Hayward, CA 94544, Attention: General Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed to the Corporate Trust Office.
The Trustee, by notice to the Company, may designate additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the Note Register and shall be sufficiently given to it if so mailed within the time prescribed.
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any Fundamental Change Repurchase Notice) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Note (or its designee) pursuant to the standing instructions from such Depositary.
 
86

Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 17.04. Governing Law; Jurisdiction. THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).
The Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam , generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
Section 17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall, if requested by the Trustee, furnish to the Trustee an Officer’s Certificate stating that such action is permitted by the terms of this Indenture.
Each Officer’s Certificate provided for, by or on behalf of the Company in this Indenture and delivered to the Trustee with respect to compliance with this Indenture (other than the Officer’s Certificates provided for in Section 4.08) shall include (a) a statement that the person signing such certificate is familiar with the requested action and this Indenture; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statement contained in such certificate is based; (c) a statement that, in the judgment of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to whether or not, in the judgment of such person, such action is permitted by this Indenture.
 
87

Notwithstanding anything to the contrary in this Section 17.05, if any provision in this Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in connection with any action to be taken by the Trustee or the Company hereunder, the Trustee shall be entitled to, or entitled to request, such Opinion of Counsel.
Section 17.06. Legal Holidays. In any case where any Interest Payment Date, Fundamental Change Repurchase Date or Maturity Date is not a Business Day, then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with the same force and effect as if taken on such date, and no interest shall accrue in respect of the delay.
Section 17.07. No Security Interest Created. Nothing in this Indenture or in the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 17.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the Holders, the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 17.09. Table of Contents, Headings, Etc. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 17.10. Authenticating Agent. The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf and subject to its direction in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04 and Section 15.04 as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section 7.08.
 
88

Any corporation or other entity into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other entity succeeding to the corporate trust business of any authenticating agent, shall be the successor of the authenticating agent hereunder, if such successor corporation or other entity is otherwise eligible under this Section 17.10, without the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor corporation or other entity.
Any authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section, the Trustee may appoint a successor authenticating agent (which may be the Trustee), shall give written notice of such appointment to the Company and shall send notice of such appointment to all Holders as the names and addresses of such Holders appear on the Note Register.
The Company agrees to pay to the authenticating agent from time to time reasonable compensation for its services although the Company may terminate the authenticating agent, if it determines such agent’s fees to be unreasonable.
The provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section 17.10 shall be applicable to any authenticating agent.
If an authenticating agent is appointed pursuant to this Section 17.10, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
                                                  ,
as Authenticating Agent, certifies that this is one of the Notes described in the within-named Indenture.
By:                                   
Authorized Officer
Section 17.11. Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
 
89

Section 17.12. Severability. In the event any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 17.13. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 17.14. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 17.15. Calculations . Except as otherwise provided herein, the Company shall be responsible for making all calculations called for under the Notes. These calculations include, but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock, the Daily VWAPs, the Daily Conversion Values, the Daily Settlement Amounts, accrued interest payable on the Notes, Additional Interest, Additional Amounts and the Conversion Rate of the Notes. The Company shall make all these calculations in good faith and, absent manifest error, the Company’s calculations shall be final and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification. The Trustee will forward the Company’s calculations to any Holder of Notes upon the written request of that Holder at the sole cost and expense of the Company.
Section 17.16. USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
Section 17.17. Withholding Taxes . If the Company or other applicable withholding agent pays withholding taxes or backup withholding on behalf of the Holder or beneficial owner as a result of an adjustment to the Conversion Rate, the Company or other applicable withholding agent may, at its option, set off such payments against payments of cash and shares of Common Stock on the Notes.
[ Remainder of page intentionally left blank ]
 
90

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.

IMPAX LABORATORIES, INC.	
		
By:	 	s/ Bryan Reasons	
	 	Name: Bryan Reasons	
	 	Title:   CFO	
	
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee	
		
By:	 	s/ W. Thomas Morris II	
	 	Name: W. Thomas Morris II	
	 	Title:   Vice President	

EXHIBIT A
[FORM OF FACE OF NOTE]
[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]
[THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT OF IMPAX LABORATORIES, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
 
A-1

(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
 
A-2

Impax Laboratories, Inc.
2.00% Convertible Senior Note due 2022

No. [              ]	  	[Initially] 1 $[                  ]	
CUSIP No. [                  ]
Impax Laboratories, Inc., a corporation duly organized and validly existing under the laws of the State of Delaware (the “ Company ,” which term includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE & CO.] 2 [                ] 3 , or registered assigns, the principal sum [as set forth in the “Schedule of Exchanges of Notes” attached hereto] 4 [of $[                ]] 5 , which amount, taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $600,000,000 in aggregate at any time, in accordance with the rules and procedures of the Depositary, on June 15, 2022, and interest thereon as set forth below.
This Note shall bear interest at the rate of 2.00% per year from June 30, 2015, or from the most recent date to which interest had been paid or provided for to, but excluding, the next scheduled Interest Payment Date until June 15, 2022. Interest is payable semi-annually in arrears on each June 15 and December 15, commencing on December 15, 2015, to Holders of record at the close of business on the preceding June 1 and December 1 (whether or not such day is a Business Day), respectively. Additional Interest will be payable as set forth in Section 4.06(d), Section 4.06(e) and Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of such Section 4.06(d), Section 4.06(e) or Section 6.03, and any express mention of the payment of Additional Interest in any provision therein shall not be construed as excluding Additional Interest in those provisions thereof where such express mention is not made.
Any Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election, in accordance with Section 2.03(c) of the Indenture.
The Company shall pay or cause the Paying Agent to pay the principal of and interest on this Note, if and so long as such Note is a Global Note, in immediately available funds to the Depositary or its nominee, as the case may be, as the registered Holder of such Note. As provided in and subject to the provisions of the Indenture, the Company shall pay or cause the Paying Agent to pay the principal of any Notes (other than Notes that are Global Notes) at the office or agency designated by the Company for that purpose. The Company has initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes and its agency in the contiguous United States as a place where Notes may be presented for payment or for registration of transfer and exchange.

1  	Include if a global note.	
2  	Include if a global note.	
3  	Include if a physical note.	
4  	Include if a global note.	
5  	Include if a physical note.	
 
A-3

Reference is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this Note the right to convert this Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, on the terms and subject to the limitations set forth in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Note, and any claim, controversy or dispute arising under or related to this Note, shall be construed in accordance with and governed by the laws of the State of New York (without regard to the conflicts of laws provisions thereof).
In the case of any conflict between this Note and the Indenture, the provisions of the Indenture shall control and govern.
This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed manually by the Trustee or a duly authorized authenticating agent under the Indenture.
[ Remainder of page intentionally left blank ]
 
A-4

IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.

IMPAX LABORATORIES, INC.	

By:	 	 	
	 	Name:	
	 	Title:	
Dated:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION	
	
WILMINGTON TRUST, NATIONAL ASSOCIATION as Trustee, certifies that this is one of the Notes described in the within-named Indenture.	

By:	 	 	
	 	Authorized Officer	
 
A-5

[FORM OF REVERSE OF NOTE]
Impax Laboratories, Inc.
2.00% Convertible Senior Note due 2022
This Note is one of a duly authorized issue of Notes of the Company, designated as its 2.00% Convertible Senior Notes due 2022 (the “ Notes ”), limited to the aggregate principal amount of $600,000,000 all issued or to be issued under and pursuant to an Indenture dated as of June 30, 2015 (the “ Indenture ”), between the Company and Wilmington Trust, National Association (the “ Trustee ”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes. Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used in this Note and not defined in this Note shall have the respective meanings set forth in the Indenture.
In case certain Events of Default (other than an Event of Default specified in Section 6.01(h) or Section 6.01(i) of the Indenture with respect to the Company or any of its Significant Subsidiaries) shall have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.
Subject to the terms and conditions of the Indenture, the Company will make all payments and deliveries in respect of the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date and the principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a Note to a Paying Agent to collect such payments in respect of the Note. The Company will pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts.
The Indenture contains provisions permitting the Company and the Trustee in certain circumstances, without the consent of the Holders of the Notes, and in certain other circumstances, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures modifying the terms of the Indenture and the Notes as described therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any existing or past Default or Event of Default under the Indenture and its consequences.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay or deliver, as the case may be, the principal (including the Fundamental Change Repurchase Price, if applicable) of, accrued and unpaid interest on, and the consideration due upon conversion of, this Note at the place, at the respective times, at the rate and in the lawful money or shares of Common Stock, as the case may be, herein prescribed.
 
A-6

The Notes are issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. At the office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations, without payment of any service charge but, if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange of Notes being different from the name of the Holder of the old Notes surrendered for such exchange.
The Notes are not subject to redemption through the operation of any sinking fund or otherwise.
Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s option and subject to the limitations set forth in the Indenture, to require the Company to repurchase for cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase Date at a price equal to the Fundamental Change Repurchase Price.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions specified in the Indenture, prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable and subject to the limitations set forth in the Indenture, at the Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture.
 
A-7

ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act
CUST = Custodian
TEN ENT = as tenants by the entireties
JT TEN = joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
 
A-8

SCHEDULE A 6
SCHEDULE OF EXCHANGES OF NOTES
Impax Laboratories, Inc.
2.00% Convertible Senior Notes due 2022
The initial principal amount of this Global Note is                  DOLLARS ($[                    ]). The following increases or decreases in this Global Note have been made:

Date of exchange	 	Amount of
decrease in
principal amount
of this Global Note	 	Amount of
increase in
principal amount
of this Global Note	 	Principal amount
of this Global Note
following such
decrease or
increase	 	Signature of
authorized
signatory of
Trustee or
Custodian	

 	 	 	 	 	 	 	 	 	

 	 	 	 	 	 	 	 	 	

 	 	 	 	 	 	 	 	 	

 	 	 	 	 	 	 	 	 	

 	 	 	 	 	 	 	 	 	

 	 	 	 	 	 	 	 	 	

6  	Include if a global note.	
 
A-9

ATTACHMENT 1
[FORM OF NOTICE OF CONVERSION]
 
To:	Wilmington Trust, National Association	
1100 North Market Street
Wilmington, DE 19890
Attn: Impax Laboratories Administrator
The undersigned registered owner of this Note hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 principal amount or an integral multiple thereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable and any shares of Common Stock issuable and deliverable upon such conversion, together with any cash for any fractional share, and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If any shares of Common Stock or any portion of this Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 14.02(d) and Section 14.02(e) of the Indenture. Any amount required to be paid to the undersigned on account of interest accompanies this Note. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
					
Dated:                                                  	  	 	  		

	  	Signature(s)	  		

Signature Guarantee
Signature(s) must be guaranteed
by an eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion program
pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares
of Common Stock are to be issued, or
Notes are to be delivered, other than
to and in the name of the registered holder.
 
1

Fill in for registration of shares if
to be issued, and Notes if to
be delivered, other than to and in the
name of the registered holder:

 	 		 		 		
(Name)	 		 		 		

(Street Address)	 		 		 		

(City, State and Zip Code)	 		 		 		
Please print name and address	 		 		 		

Principal amount to be converted (if less than all): $                ,000	
	
NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.	

Social Security or Other Taxpayer	
Identification Number	
 
2

ATTACHMENT 2
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
 
To:	Wilmington Trust, National Association	
1100 North Market Street
Wilmington, DE 19890
Attn: Impax Laboratories Administrator
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Impax Laboratories, Inc. (the “ Company ”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company to pay to the registered holder hereof in accordance with Section 15.02 of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount or an integral multiple thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:
Dated:                     

                                                         	
Signature(s)	

Social Security or Other Taxpayer	
Identification Number	
	
Principal amount to be repaid (if less than all): $                ,000	
	
NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.	
 
1

ATTACHMENT 3
[FORM OF ASSIGNMENT AND TRANSFER]
For value received                                  hereby sell(s), assign(s) and transfer(s) unto                                      (Please insert social security or Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably constitutes and appoints                                  attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.
In connection with any transfer of the within Note occurring prior to the Resale Restriction Termination Date, as defined in the Indenture governing such Note, the undersigned confirms that such Note is being transferred:
☐ To Impax Laboratories, Inc. or a subsidiary thereof; or
☐ Pursuant to a registration statement that has become or been declared effective under the Securities Act of 1933, as amended; or
☐ Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or
☐ Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration requirements of the Securities Act of 1933, as amended.
 
1

	
Dated:                                                              	

 	

Signature(s)	
 	
Signature Guarantee	
Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program pursuant
to Securities and Exchange Commission
Rule 17Ad-15 if Notes are to be delivered, other
than to and in the name of the registered holder.
NOTICE: The signature on the assignment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
 
2

Exhibit 4.2
EXECUTION VERSION
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE , dated as of November 6, 2017 (this “ First Supplemental Indenture ”), to the Indenture dated as of June 30, 2015 (the “ Indenture ”) between Impax Laboratories, Inc. (the “ Company ”), a Delaware corporation, and Wilmington Trust, National Association, a national banking association, as Trustee (the “ Trustee ”). Each term used herein which is defined in the Indenture has the meaning assigned to such term in the Indenture unless otherwise specifically defined herein, in which case the definition set forth herein shall govern.
WITNESSETH
WHEREAS , the Company has heretofore executed and delivered the Indenture to provide for the issuance by the Company of a series of securities known as its 2.00% Convertible Senior Notes due 2022 (the “ Notes ”);
WHEREAS, Section 10.02 of the Indenture provides, inter alia , that under certain circumstances, the Company and the Trustee may amend the Indenture with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (the “ Requisite Consents ”);
WHEREAS, the Company has distributed a Consent Solicitation Statement, dated as of October 30, 2017 (the “ Statement ”), to the Holders in connection with the solicitation of such Holders’ consent to certain proposed amendments to the Indenture;
WHEREAS , pursuant to the Statement, the Requisite Consents have been received, and evidence of such consents has been provided by the Company to the Trustee, and all other conditions precedent, if any, provided for in the Indenture relating to the execution of this First Supplemental Indenture have been complied with as of the date hereof;
NOW, THEREFORE , for and in consideration of the premises contained herein and intending to be legally bound, each party agrees for the benefit of each other party and for the equal and ratable benefit of the Holders, as follows:
ARTICLE I
AMENDMENTS
Section 1.1 Section 4.05 of the Indenture is hereby amended by inserting the underlined language and removing the struck-through language below:
Section 4.05. Existence . Subject to Article 11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence as an entity; provided that this Section  4.05 shall not prohibit the Company from consummating the Transactions (as defined in that certain Business Combination Agreement dated as of October  17, 2017 among the Company, Atlas Holdings, Inc., K2 Merger Sub Corporation and Amneal Pharmaceuticals LLC ( as amended pursuant to the terms thereof from time to time, the “ Business Combination Agreement ”)), including by conversion to a limited liability company or other organizational form.
Section 1.2 Section 4.06(a) of the Indenture is hereby amended by inserting the underlined language below:
Section 4.06. Rule 144A Information Requirement and Annual Reports . (a) At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and, upon written request, any Holder, beneficial owner or prospective purchaser of such Notes or any shares of Common Stock issuable upon conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A; provided that following the consummation of the Transactions, the Company will be deemed to have satisfied the reporting requirements referred to above if any parent entity of the Company (including Amneal Pharmaceuticals, Inc.) has delivered such information with respect to the parent entity in lieu of the Company.
 
-1-

EXECUTION VERSION
 
Section 1.3 The following provision shall be inserted as Section 4.10 of the Indenture:
Section 4.10. Special Offer to Repurchase Notes . (a) The Company shall, not more than 10 Business Days following the date of the consummation of the Transactions, commence an offer (a “ Special Tender Offer ”) to Holders to repurchase for cash all of the outstanding Notes, or any portion thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “ Special Tender Date ”) specified by the Company at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Special Tender Date (the “ Special Tender Price ”), unless the Special Tender Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay on the Special Tender Date the full amount of accrued and unpaid interest to, but excluding, the Interest Payment Date to which the Record Date pertains, to Holders of record as of such Regular Record Date, and the Special Tender Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Section 4.10.
(b) In connection with any Special Tender Offer, the Company will, if required, (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act; (ii) file a Schedule TO or any other required schedule under the Exchange Act; and (iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, in each case, so as to permit the rights and obligations under this Section 4.10 to be exercised in the time and in the manner specified in this Section 4.10.
Section 1.4 The following provision shall be inserted as Section 4.11 of the Indenture:
Section 4.11. Transactions Permitted . Notwithstanding any other provision of this Indenture, the Transactions and the consummation thereof are, for the avoidance of doubt, permitted under and not prohibited by this Indenture and shall, provided that the Company complies with Section 4.10, be deemed not to result in any default or Event of Default under this Indenture.
Section 1.5 The Indenture and each Global Note, with effect on and from the date hereof, shall be deemed supplemented, modified and amended in such manner as necessary to make the terms of such Global Note consistent with the terms of the Indenture, as amended by this First Supplemental Indenture, and giving effect to the amendments set forth in Sections 1.1, 1.2, 1.3 and 1.4 hereof.
ARTICLE II
MISCELLANEOUS
Section 2.1 Conflict with Indenture .
To the extent not expressly amended or modified by this First Supplemental Indenture, the Indenture shall remain in full force and effect. If any provision of this First Supplemental Indenture is inconsistent with any provision of the Indenture, the provision of this First Supplemental Indenture shall control.
Section 2.2 Effectiveness .
The provisions of this First Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto. Notwithstanding the foregoing sentence, the provisions of this First Supplemental Indenture shall become operative only upon the payment of the Consent Payment (as defined in the Statement), with the result that the amendments to the Indenture effected by this First Supplemental Indenture shall be deemed to be revoked retroactively to the date hereof if the payment of the Consent Payment shall not occur.
 
-2-

EXECUTION VERSION
 
Section 2.3     Governing Law .
THIS FIRST SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS FIRST SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 2.4     Successors .
All agreements of the Company and the Trustee in the Indenture and as amended by this First Supplemental Indenture shall bind their respective successors.
Section 2.5     Counterparts .
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 2.6     The Trustee.
The Trustee shall not be responsible in any manner for or in respect of the validity or sufficiency of this First Supplemental Indenture or the due execution thereof by the Company. The recitals of fact contained herein shall be taken as the statements solely of the Company, and the trustee assumes no responsibility for the correctness thereof.
 
-3-

EXECUTION VERSION
 
IN WITNESS WHEREOF , the parties to this First Supplemental Indenture have caused it to be duly executed as of the day and year first written.

IMPAX LABORATORIES, INC.	
		
By:	 	/s/ Bryan M. Reasons	
Name:	 	Bryan M. Reasons	
Title:	 	SVP and Chief Financial Officer	
	
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee	
		
By:	 	/s/ W. Thomas Morris	
Name:	 	W. Thomas Morris	
Title:	 	Vice President	
 
-4-

Exhibit 4.3
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE , dated as of May 4, 2018 (this “ Second Supplemental Indenture ”), to the Indenture dated as of June 30, 2015 (the “ Indenture ”), as amended by that certain First Supplemental Indenture dated as of November 6, 2017, each between Impax Laboratories, Inc. (the “ Company ”), a Delaware corporation, and Wilmington Trust, National Association, a national banking association, as Trustee (the “ Trustee ”). Each term used herein which is defined in the Indenture has the meaning assigned to such term in the Indenture unless otherwise specifically defined herein, in which case the definition set forth herein shall govern.
WITNESSETH
WHEREAS , the Company has heretofore executed and delivered the Indenture to provide for the issuance by the Company of a series of securities known as its 2.00% Convertible Senior Notes due 2022 (the “ Notes ”);
WHEREAS , the Company entered into a Business Combination Agreement, dated as of October 17, 2017 (the “ Business Combination Agreement ”), as amended by Amendment No. 1 dated November 21, 2017 and Amendment No. 2 dated December 16, 2017, by and among the Company, Atlas Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“ Holdco ”), K2 Merger Sub Corporation, a Delaware corporation and a wholly-owned subsidiary of Holdco (“ Merger Sub ”) and Amneal Pharmaceuticals, LLC (“ Amneal ”), a Delaware limited liability company;
WHEREAS , pursuant to the Business Combination Agreement and subject to the terms and conditions therein, Merger Sub will merge with and into the Company, the Company will convert to Impax Laboratories, LLC, a limited liability company pursuant to the General Corporation Law of the State of Delaware and the Delaware Limited Liability Company Act, and become a wholly-owned subsidiary of Holdco (the “ Combination ”), which will be renamed Amneal Pharmaceuticals, Inc. (“ New Amneal ”);
WHEREAS , pursuant to the Business Combination Agreement and subject to the terms and conditions therein, at the effective time of the Combination, each share of the Common Stock, par value $0.01 per share, of the Company (the “ Impax Common Stock ”) issued and outstanding immediately prior to the effective time of the Combination (other than the shares of Impax Common Stock held by the Company, Holdco, Amneal, or any direct or indirect wholly owned subsidiary of Amneal or the Company) will be converted into the right to receive one share of Class A Common Stock, par value $0.01 per share, of New Amneal (“ New Amneal Class  A Common Stock ”);
WHEREAS , Article 14.07(a) of the Indenture provides that upon the occurrence of any Merger Event, then, at and after the effective time of the transaction, the right to exchange each $1,000 principal face amount of Notes will be changed into a right to exchange such principal face amount of Notes into, in lieu of Impax Common Stock, the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Impax Common Stock equal to the Exchange Rate immediately prior to such transaction would have owned or been entitled to receive (the “ Reference Property ”) upon such transaction;
WHEREAS , in connection with the execution and delivery of this Second Supplemental Indenture, the Trustee has received an Officer’s Certificate and an Opinion of Counsel as contemplated by Sections 10.05 and 14.07(b) of the Indenture; and
WHEREAS , the Company and New Amneal have requested that the Trustee execute and deliver this Second Supplemental Indenture and have satisfied all requirements necessary to make this Second Supplemental Indenture a valid instrument in accordance with its terms.
NOW, THEREFORE , for and in consideration of the premises contained herein and intending to be legally bound, each party agrees for the benefit of each other party and for the equal and ratable benefit of the Holders, as follows:

ARTICLE I
EFFECT OF MERGER ON CONVERSION RIGHT
Section 1.1 Conversion Right . The Company and New Amneal hereby acknowledge and agree that, in accordance with Article 14.07(a) of the Indenture, at and after the effective time of the Combination, the Holder of each Note that was outstanding as of the effective time of the Combination shall have the right to convert, subject to the provisions of Article 14 of the Indenture, each $1,000 principal face amount of such Note for the number of shares of New Amneal Class A Common Stock that a Holder of a number of shares of Impax Common Stock equal to the Conversion Rate immediately prior to the effective time of the Combination would have been entitled to receive upon the Combination. For purposes of this Second Supplemental Indenture, “Reference Property” and “unit of Reference Property,” as defined in the Indenture, means New Amneal Class A Common Stock and one share of New Amneal Class A Common Stock, respectively, and the initial Conversion Rate immediately following the Combination will be 15.7853 shares of New Amneal Class A Common Stock.
ARTICLE II
ADDITION OF NEW AMNEAL AS A PARTY TO THE INDENTURE
Section 2.1 New Amneal hereby irrevocably and unconditionally agrees to be bound by the terms of the Indenture applicable to it and to issue shares of New Amneal Class A Common Stock as necessary to satisfy the Company’s conversion obligation with respect to any Notes validly surrendered for conversion pursuant to Article 14 of the Indenture.
Section 2.2 The Company and New Amneal hereby covenant and agree that, in connection with the delivery of New Amneal Class A Common Stock upon conversion of any Notes validly surrendered for conversion pursuant to Article 14 of the Indenture, they shall take such measures to protect the interests of the Holders of the Notes as they shall reasonably consider necessary in connection with the Combination and the matters set forth in Section 1.1 of this Second Supplemental Indenture in connection therewith.
ARTICLE III
MISCELLANEOUS
Section 3.1 Conflict with Indenture .
To the extent not expressly amended or modified by this Second Supplemental Indenture, the Indenture shall remain in full force and effect. If any provision of this Second Supplemental Indenture is inconsistent with any provision of the Indenture, the provision of this Second Supplemental Indenture shall control.
Section 3.2 Effectiveness .
The provisions of this Second Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto. Notwithstanding the foregoing sentence, the provisions of this Second Supplemental Indenture shall become operative only upon the payment of the Consent Payment (as defined in the Statement), with the result that the amendments to the Indenture effected by this Second Supplemental Indenture shall be deemed to be revoked retroactively to the date hereof if the payment of the Consent Payment shall not occur.
Section 3.3 Governing Law .
THIS SECOND SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SECOND SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.4 Successors .
All agreements of the Company and the Trustee in the Indenture and as amended by this Second Supplemental Indenture shall bind their respective successors.
Section 3.5 Counterparts .
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

Section 3.6 The Trustee .
The Trustee shall not be responsible in any manner for or in respect of the validity or sufficiency of this Second Supplemental Indenture or the due execution thereof by the Company. The recitals of fact contained herein shall be taken as the statements solely of the Company, and the trustee assumes no responsibility for the correctness thereof.

IN WITNESS WHEREOF , the parties to this Second Supplemental Indenture have caused it to be duly executed as of the day and year first written.

IMPAX LABORATORIES, LLC	
		
By:	 	/s/ Bryan M. Reasons	
Name: Bryan M. Reasons	
Title: Chief Financial Officer	
	
AMNEAL PHARMACEUTICALS, INC.	
		
By:	 	/s/ Bryan M. Reasons	
Name: Bryan M. Reasons	
Title: Chief Financial Officer	
	
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee	
		
By:	 	/s/ Sarah Vilhauer	
Name: Sarah Vilhauer	
Title: Banking Officer	

Exhibit 5.1

 	 	53rd at Third	
	 	885 Third Avenue	
	 	New York, New York 10022-4834	
	 	Tel: +1.212.906.1200 Fax: +1.212.751.4864	
	 	www.lw.com	
		
	 	FIRM I AFFILIATE OFFICES	
	 	Beijing	  	Moscow	
	 	Boston	  	Munich	
	 	Brussels	  	New York	
May 7, 2018	 	Century City	  	Orange County	
	 	Chicago	  	Paris	
	 	Dubai	  	Riyadh	
	 	Düsseldorf	  	Rome	
	 	Frankfurt	  	San Diego	
	 	Hamburg	  	San Francisco	
	 	Hong Kong	  	Seoul	
	 	Houston	  	Shanghai	
	 	London	  	Silicon Valley	
	 	Los Angeles	  	Singapore	
	 	Madrid	  	Tokyo	
	 	Milan	  	Washington, D.C.	
Atlas Holdings, Inc.
c/o Impax Laboratories, Inc.
30831 Huntwood Ave
Hayward, California 94544
 
 	Re:	Registration Statement No. 333-333-223501; 226,738,335 Shares of Class A common stock, par value $0.01 per share	
Ladies and Gentlemen:
We have acted as special counsel to Atlas Holdings, Inc., a Delaware corporation (the “Company” ), in connection with the proposed issuance of up to 226,738,335 shares (the “Shares” ) of Class A common stock, $0.01 par value per share (the “Common Stock” ). The Shares are included in a registration statement on Form S-1 under the Securities Act of 1933, as amended (the “Act” ), filed with the Securities and Exchange Commission (the “Commission” ) on March 7, 2018 (Registration No. 333-223501) (as amended, the “Registration Statement” ). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related Prospectus, other than as expressly stated herein with respect to the issue of the Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to General Corporation Law of the State of Delaware, and we express no opinion with respect to any other laws.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Board of Directors of the Company has taken all necessary corporate action to authorize and approve the Amended and Restated Certificate of Incorporation of the Company in the form most recently filed as an exhibit to the Registration Statement (the

April 13, 2018
Page 2

 
“Amended and Restated Certificate of Incorporation” ), when the Amended and Restated Certificate of Incorporation of the Company has been duly filed with the Secretary of State of the State of Delaware and when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers, and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Registration Statement, the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the General Corporation Law of the State of Delaware.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm in the Prospectus under the heading “Legal matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ LATHAM & WATKINS LLP
LATHAM & WATKINS LLP

Exhibit 10.1
Execution Version

JPMORGAN CHASE BANK, N.A.
383 Madison Avenue
New York, New York 10179	  	BANK OF AMERICA, N.A.
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
One Bryant Park
New York, NY 10036	  	ROYAL BANK OF CANADA,
RBC CAPITAL MARKETS
LLC
200 Vesey Street
New York, New York 10281	
Highly Confidential
November 6, 2017
Amneal Pharmaceuticals LLC
400 Crossing Blvd, 3rd Floor
Bridgewater, NJ 08807-2863
Attention: Jim Mastakas, Sr. VP and CFO
Project Apex
Amended and Restated Commitment Letter
Ladies and Gentlemen:
You have advised JPMorgan Chase Bank, N.A. (“ JPMCB ”), Bank of America, N.A. (“ BANA ”), Merrill Lynch, Pierce, Fenner & Smith Incorporated (“ MLPFS ”), Royal Bank of Canada (“ Royal Bank ”) and RBC Capital Markets 1 (together with Royal Bank, “ RBCCM ” and RBCCM together with JPMCB, BANA and MLPFS, “ we ” or “ us ” or the “ Commitment Parties ” and each a “ Commitment Party ”), that Amneal Pharmaceuticals LLC, a Delaware limited liability company (“ you ” or “ Atlas ”) intends to acquire the company previously identified to us and code named “K2” (the “ Company ”), and to consummate the other transactions described in Exhibit A hereto. Capitalized terms used but not defined herein have the meanings assigned to them in the Exhibits hereto. This Amended and Restated Commitment Letter (together with the Term Sheets and the other attachments hereto and thereto, the “ Commitment Letter ”) amends and restates as of the date hereof the Commitment Letter dated as of October 17, 2017 (the “ Original Commitment Letter ”), by and among you, JPMCB, BANA and MLPFS, and such Original Commitment Letter will be of no further force and effect.
 
1.	Commitments .	
In connection with the Transactions, each of JPMCB, BANA and Royal Bank (collectively, the “ Initial Lenders ” and each an “ Initial Lender ”) commits, on a several and not joint basis, to provide the aggregate principal amount of the ABL Facility and the Term Facility set forth opposite its name in the table below upon the terms set forth in the applicable Summary of Principal Terms and Conditions attached hereto as Exhibit B and Exhibit C and subject only to the conditions set forth on Exhibit D hereto.

Initial Lender	  	ABL Facility	 	  	Term Facility	 	
JPMCB	  	$	137,500,000	 	  	$	1,485,000,000	 	
BANA	  	$	87,500,000	 	  	$	945,000,000	 	
Royal Bank	  	$	25,000,000	 	  	$	270,000,000	 	

1  	RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.	
 
1

2.	Titles and Roles.	
(i) Each of JPMCB (acting alone or through or with affiliates selected by it), BANA (acting alone or through or with affiliates selected by it) and RBCCM (acting alone or through or with affiliates selected by it) will act as (i) joint lead arranger and bookrunning manager for each of the Facilities (in such capacities, the “ Lead Arrangers ” and each a “ Lead Arranger ”) and (ii) JPMCB (acting alone or through or with affiliates selected by it) will act as sole administrative agent and collateral agent for each of the Facilities (in such capacities, the “ Administrative Agent ”). For the avoidance of doubt, JPMCB may perform its responsibilities through its affiliate, J.P. Morgan Securities LLC.
JPMCB will appear on the top left of the cover page of all marketing materials for the Facilities and will hold the roles and responsibilities conventionally understood to be associated with such name placement. No other agents, co-agents, lead arrangers, co-arrangers, bookrunners, managers or co-managers will be appointed, no other titles will be awarded and no compensation (other than compensation expressly contemplated by the Commitment Letter and the Fee Letters (as defined below) (the Commitment Letter and the Fee Letters, the “ Commitment Papers ”)) will be paid in connection with obtaining a commitment under the Facilities unless you and we agree.
 
3.	Syndication .	
The Lead Arrangers reserve the right, prior to or after the execution of the Facilities Documentation, to syndicate all or a portion of the commitments with respect to the Facilities, to a group of banks, financial institutions and other institutional lenders that are identified by the Lead Arrangers in consultation with you and reasonably acceptable to you (such consent not to be unreasonably withheld, conditioned or delayed) (together with the Initial Lenders, the “ Lenders ”).
The Lead Arrangers will not syndicate to any of the following (collectively, the “ Disqualified Lenders ”):
(a) those entities identified by you in writing, from time to time prior to or after the completion of general syndication, as competitors of Atlas or its subsidiaries and/or the Company or its subsidiaries;
(b) those banks, financial institutions, other institutional lenders and other persons identified in writing by or on behalf of you or the Company to us from time to time prior to October 17, 2017;
(c) those banks, financial institutions, other institutional lenders and other persons identified in writing by or on behalf of you to us after October 17, 2017 if such designation is reasonably acceptable to the Lead Arrangers; and
(d) any clearly identifiable (solely on the basis of the similarity of its name or as identified in writing by or on behalf of you) affiliate of the entities described in the preceding clauses (a), (b) and (c) (other than, with respect to this clause (d), any bona fide debt fund affiliates thereof).
No Disqualified Lender may become a Lender or have any commitment or right (including any participation right) with respect to any Facility; provided that, to the extent persons are identified as Disqualified Lenders in writing by or on behalf of you to us after October 17, 2017 (or, if after the Closing Date, by or on behalf of you to the Administrative Agent) pursuant to clauses (a) or (c), the inclusion of such persons as Disqualified Lenders will not become effective until the next business day following receipt of such notice, and, in any event, will not apply retroactively to any entity that has (i) acquired an assignment or participation interest, (ii) entered into a trade for either of the foregoing or (iii) become a competitor of Atlas or its subsidiaries and/or the Company or its subsidiaries before such entity is added to the list of Disqualified Lenders. The list of Disqualified Lenders shall be made available to all Lenders upon request. Notwithstanding the Lead Arrangers’ right to syndicate the Facilities and receive commitments with respect thereto (i) no Initial Lender will be relieved, released or novated from its obligations under the Commitment Papers in connection with any syndication, assignment or participation of the Facilities, including its commitments and obligations to fund the Facilities, until after the
 
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initial funding under the Facilities on the Closing Date has occurred, (ii) no assignment or novation will become effective (as between you and any Initial Lender) with respect to all or any portion of such Initial Lender’s commitments in respect of the Facilities until the initial funding of the Facilities on the Closing Date has occurred and (iii) unless you otherwise expressly agree in writing, each Initial Lender will retain exclusive control over all rights and obligations with respect to its commitments in respect of the Facilities, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the initial funding under the Facilities has occurred.
The Lead Arrangers intend to commence syndication efforts promptly upon the execution of this Commitment Letter and, as part of its syndication efforts, it is the Lead Arrangers’ intent to have Lenders commit to the Facilities prior to the Closing Date. You agree to use your commercially reasonable efforts to actively assist the Lead Arrangers in completing a Successful Syndication (as defined in the Fee Letter) until the date that is the earlier of (a) the date that is 90 days after the Closing Date and (b) the date on which a Successful Syndication is achieved (such earlier date, the “ Syndication Date ”). Such assistance will be limited to the following, upon our reasonable request:
(i) your using your commercially reasonable efforts to ensure that any syndication efforts benefit from your existing lending and investment banking relationships and, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on October 17, 2017, the existing lending and investment banking relationships of the Company;
(ii) direct contact between your senior management (and, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on October 17, 2017, your using your commercially reasonable efforts to arrange for direct contact with senior management of the Company) and the proposed Lenders at times and locations to be mutually agreed upon;
(iii) your assistance (and, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on October 17, 2017, your using your commercially reasonable efforts to cause the Company to assist) in the preparation of a customary confidential information memorandum (the “ Confidential Information Memorandum ”) for the Facilities and other customary marketing materials to be used in connection with the syndication of each of the Facilities;
(iv) your using your commercially reasonable efforts to procure, at your expense, prior to the launch of the general syndication of the Facilities, public ratings (but no specific rating) for the Term Facility from each of Standard & Poor’s Ratings Services (“ S&P ”) and Moody’s Investors Service, Inc. (“ Moody’s ”) and a public corporate credit rating (but no specific rating) and a public corporate family rating (but no specific rating) for the Borrower after giving effect to the Transactions from each of S&P and Moody’s, respectively;
(v) your providing (and, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on October 17, 2017, using your commercially reasonable efforts to cause the Company to provide) to the Lead Arrangers all customary information reasonably available to you with respect to you, the Company, your and its respective subsidiaries and the Transactions, including financial information and projections of the type customarily included in a “private side” bank book in a form customarily delivered in connection with senior secured bank financings and asset based loan financings of this type to syndicate the Facilities (such projections, together with financial estimates, forecasts, other financial projections and other forward-looking information, the “ Projections ”), as the Lead Arrangers may reasonably request in connection with the structuring, arrangement or syndication of the Facilities; and
(vi) the hosting, with the Lead Arrangers, of a meeting (or, if reasonably acceptable to you and the Lead Arrangers, a telephone, video or other electronic conference in lieu of such meeting) (and, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on October 17, 2017, your using your commercially reasonable efforts to cause the relevant senior officers of the Company to be available for such meeting (or such other conference in lieu of such meeting, as applicable)) of prospective Lenders at such time and location to be mutually agreed upon.
 
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Until the Syndication Date, you agree to ensure that there will not be any competing issues, offerings, placements, arrangements or syndications of your or your affiliates’ debt securities or your or your affiliates’ syndicated commercial bank or your or your affiliates’ other syndicated credit facilities (and, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement, to use your commercially reasonable efforts to ensure that there will not be any such competing issues, offerings, placements, arrangements or syndications of the Company or any of its subsidiaries), in each case if such issuance, offering, placement or arrangement would materially impair the primary syndication of the Term Loan Facility prior to the Syndication Date (other than the Facilities and/or any debt of the Company and its subsidiaries not prohibited from being incurred on or prior to the Closing Date or not prohibited from remaining outstanding on or after the Closing Date pursuant to the terms of the Acquisition Agreement).
For the avoidance of doubt, you will not be required to provide any trade secrets or information to the extent that the provision thereof would violate any law, rule or regulation, or any obligation of confidentiality binding upon, or waive any privilege that may be asserted by, you, the Company or any of your or its respective affiliates; provided that in the event that you do not provide information in reliance on this sentence, you will provide notice to the Lead Arrangers promptly upon obtaining knowledge that such information is being withheld and you shall use your commercially reasonable efforts to communicate, to the extent feasible, the applicable information in a way that would not violate the applicable obligation or risk waiver of such privilege.
Neither the commencement nor the completion of any syndication of the Facilities (including the Successful Syndication), nor the receipt of the ratings described above nor compliance with the foregoing provisions of this Section 3, will constitute a condition to any Initial Lender’s commitments hereunder or to the Closing Date. We acknowledge that neither the Company nor its affiliates is restricted from incurring debt or liens prior to the Acquisition, except as specifically set forth in the Acquisition Agreement, and that prior to the date or time on which the Acquisition is consummated pursuant to the terms of the Acquisition Agreement (the “ Acquisition Date ”), the Company is obligated to assist with respect to the Facilities only to the extent set forth in the Acquisition Agreement, and the extent of such restrictions and assistance (as set forth in the Acquisition Agreement as in effect on October 17, 2017) is acceptable to us. Your obligations under the Commitment Papers to use commercially reasonable efforts to cause the Company, its subsidiaries or their respective management to take (or to refrain from taking) any action is subject to the terms of the Acquisition Agreement and will not require you, under any circumstances, to take any action that is not practical, appropriate or reasonable in light of the circumstances or in contravention of the terms of the Acquisition Agreement, including terminating the Acquisition Agreement.
Except as set forth above, the Lead Arrangers will, in consultation with you, manage all aspects of any syndication of the Facilities, including (a) decisions as to the selection of institutions to be approached, which will exclude Disqualified Lenders, (b) when they will be approached, (c) when their commitments will be accepted, (d) which institutions will participate (which will exclude Disqualified Lenders), (e) the allocation of the commitments among the Lenders, and (f) the amount and distribution of fees among the Lenders.
 
4.	Information .	
You hereby represent and warrant (with respect to information provided by or concerning the Company, its subsidiaries or their respective operations or assets and any third party memoranda or reports furnished to us, to your knowledge), that (a) all written factual information and written factual data (other than (i) the Projections and (ii) information of a general economic or industry nature) (such written information and written data other than that set forth in clauses (i) and (ii) above, the “ Information ”) that have been or will be made available to the Commitment Parties directly or indirectly by or on behalf of you or the Company, or by any of your or its subsidiaries or representatives, when taken as a whole, does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto) and (b) the Projections that have been or will be made
 
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available to the Lead Arrangers by or on behalf of you or the Company, or by any of your or its subsidiaries or representatives, when taken as a whole, have been or will be prepared, when furnished, in good faith based upon assumptions that are believed by you to be reasonable at the time made and at the time any such Projections are delivered to the Lead Arrangers; it being understood by each Commitment Party and each Lead Arranger that (1) Projections are not to be viewed as facts, (2) Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of you or the Company, (3) no assurance can be given that any particular Projections will be realized and (4) actual results may differ and such differences may be material. You agree that, if at any time prior to the later of the Closing Date and the Syndication Date, you become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will and, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on October 17, 2017, you will use your commercially reasonable efforts to cause the Company to, promptly supplement the Information and the Projections so that such representations and warranties will be correct in all material respects under those circumstances. In arranging and syndicating the Facilities, the Lead Arrangers will be entitled to use and rely on the Information and the Projections without responsibility for independent verification thereof and do not assume responsibility for the accuracy or completeness of the Information or Projections. For the avoidance of doubt, the accuracy of the representations set forth above is not a condition precedent to the commitments hereunder or the funding of the Facilities on the Closing Date.
You acknowledge that (a) we may make available the Information, the Projections and other customary marketing material (including the Confidential Information Memorandum) to a proposed syndicate of Lenders (other than Disqualified Lenders) by posting the Information, the Projections and such other materials on SyndTrak, IntraLinks or another similar electronic system (the “ Platform ”), in each case, subject to a market standard “click through” or similar confidentiality agreement (reasonably approved by you), and (b) certain Lenders (each, a “ Public Lender ”) may not wish to receive material non-public information, for the purpose of and as defined under applicable United States federal and state securities laws and regulations, with respect to you, the Company and your and its respective subsidiaries or the securities of any of the foregoing (“ material non-public information ”). At the request of the Lead Arrangers, you agree to use your commercially reasonable efforts to assist us in preparing an additional version of the Confidential Information Memorandum (the public-side version) to be used by Public Lenders that will include no material non-public information with respect to you, the Company, your and its respective subsidiaries or the securities of any of the foregoing for purposes of United States federal and state securities laws. It is understood that, in connection with the assistance described above, (i) to the extent reasonably requested by the Lead Arrangers, you agree to deliver, and to use your commercially reasonable efforts to cause the Company to deliver, a customary authorization letter to be included in each Confidential Information Memorandum ( provided that any representation in such authorization letter, other than with respect to the absence of material non-public information, will be substantially consistent with the representations set forth in the preceding paragraph of this Commitment Letter) that authorizes the distribution of such Confidential Information Memorandum to prospective Lenders (other than Disqualified Lenders) and confirms that the public-side version does not include material non-public information; (ii) each Confidential Information Memorandum will exculpate you, the Company and us and the respective affiliates of the foregoing with respect to any liability related to the use or misuse of the content of such Confidential Information Memorandum or any related marketing material by the recipients thereof; (iii) the public-side version of the Confidential Information Memorandum and information provided to Public Lenders may include the following information, except to the extent you notify us to the contrary (prior to their distribution) and provided that you have been given a reasonable opportunity to review such public-side version and information (prior to their distribution) and comply with U.S. Securities and Exchange Commission disclosure requirements: (A) drafts and final Facilities Documentation, related definitive documentation (if any) and customary marketing term sheets that have been approved by you, (B) administrative materials prepared by the Lead Arrangers for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda) and (C) notification of changes in the terms of the Facilities; (iv) at our request, you agree to use your commercially reasonable efforts to identify information to be distributed to Public Lenders by clearly and conspicuously
 
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marking the same as “PUBLIC”; and (v) we will be entitled to treat any Information, Projections and other materials that are not specifically identified as “PUBLIC” as being suitable for posting only on the portion of the Platform not available to or accessible by Public Lenders.
 
5.	Fees .	
As consideration for the commitments of the Initial Lenders and the Lead Arrangers’ and other agents’ agreements to perform the services described herein, you agree to pay the fees set forth in the Amended and Restated Fee Letter dated the date hereof and delivered in connection with the Facilities (the “ Fee Letter ”) and the Agency Fee Letter dated the date hereof and delivered in connection with the Facilities (the “ Agency Fee Letter ” and, together with the Fee Letter, the “ Fee Letters ”). Once paid, such fees will not be refundable under any circumstances, except as otherwise contemplated by the Fee Letters or agreed in writing by the parties hereto.
 
6.	Conditions Precedent .	
Notwithstanding anything in the Commitment Papers, the Facilities Documentation or any other agreement or undertaking to the contrary, (x) the commitments of the Initial Lenders, the Lead Arrangers’ and other agents’ agreements to perform the services described herein and the availability and the funding of the Facilities on the Closing Date are subject to the satisfaction (or waiver by the Lead Arrangers) of only the conditions precedent set forth on Exhibit D (collectively, the “ Financing Conditions ”) and (y) the following provisions (collectively, the “ Certain Funds Provisions ”) will apply:
(i) the only representations and warranties that will be made on the Closing Date and the accuracy of which shall be a condition to the initial availability of the Facilities on the Closing Date will be the Acquisition Agreement Representations and the Specified Representations; provided that a failure of an Acquisition Agreement Representation to be true and correct shall not result in a failure of a condition to the initial availability of the Facilities on the Closing Date or a default under the Facilities Documentation, unless such failure results in a failure of a condition precedent to your (or your affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement, or such failure gives you the right (taking into account any applicable cure provisions) to terminate your obligations under the Acquisition Agreement;
(ii) the terms of the Facilities Documentation and the Closing Deliverables will be subject to the Documentation Principles, and in any event will be in a form such that they do not impair the availability or funding of the Facilities on the Closing Date if the Financing Conditions are satisfied (or waived by the Lead Arrangers); it being understood that, to the extent any Collateral (including the creation, attachment or perfection of any security interest) is not or cannot be provided on the Closing Date after your use of your commercially reasonable efforts to do so without undue burden or expense (other than to the extent that a lien on such Collateral may be perfected by (i) the filing of a financing statement under the Uniform Commercial Code or (ii) to the extent such certificates are delivered in connection with the Refinancing, the delivery of certificated securities representing the equity interests in your wholly-owned material U.S. subsidiaries and, to the extent such certificates are delivered pursuant to the Acquisition Agreement, in the Company’s wholly-owned material U.S. subsidiaries) then the provision of any such Collateral and/or any such creation, attachment or perfection will not constitute a condition precedent to the availability or funding of any Facility on the Closing Date (and will not result in a default under any Facility), but may instead be provided within 90 days after the Closing Date pursuant to arrangements to be mutually agreed, subject to such extensions as are reasonably agreed by the applicable Administrative Agent); and
(iii) there are no conditions (implied or otherwise) to the commitments and agreements hereunder (including compliance with the terms of the Commitment Papers or the Facilities Documentation), other than the Financing Conditions, and upon satisfaction (or waiver by the Lead Arrangers) of the Financing Conditions, the Administrative Agent and the Initial Lenders will execute the Facilities Documentation to which it is a party for Facilities to be funded on the Closing Date and the initial funding under such Facilities will occur.
 
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“ Acquisition Agreement Representations ” means such of the representations and warranties made by or with respect to the Company and its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that you (or your affiliates) have the right (taking into account any applicable cure provisions) to terminate your (or their) obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement or the failure of an Acquisition Agreement Representation to be true and correct results in a failure of a condition precedent to your (or your affiliates’) obligations to consummate the Acquisition in the Acquisition Agreement.
“ Specified Representations ” means the representations and warranties of you and your Loan Party subsidiaries set forth in the Facilities Documentation relating to their organizational existence, organizational power and authority (only as to execution, delivery and performance of the applicable Facilities Documentation and the extensions of credit thereunder), their due authorization, execution, delivery and enforceability (against them) of the applicable Facilities Documentation, solvency on a consolidated basis as of the Closing Date after giving effect to the Transactions (consistent with the solvency certificate attached as Exhibit E hereto), no conflicts of the Facilities Documentation with its organizational documents (only as to the entering into and performance of the Facilities Documentation), Federal Reserve margin regulations, the Investment Company Act and the Patriot Act, use of proceeds not violating applicable sanctions laws and anti-corruption laws, and creation, validity, attachment and perfection of security interests in the UCC Article 9 collateral required to be perfected on the Closing Date (subject to permitted liens (including liens permitted to remain outstanding following the Closing Date pursuant to the terms of the Acquisition Agreement) and the Certain Funds Provisions).
 
7.	Indemnification; Expenses .	
You agree to indemnify and hold harmless each Commitment Party and its affiliates and controlling persons and the respective officers, directors, employees, partners, agents and representatives of each of the foregoing and their successors and permitted assigns (each, an “ Indemnified Person ”) from and against any and all losses, claims, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject arising out of, resulting from or in connection with the Original Commitment Letter, the Original Fee Letter (as defined in the Fee Letter), the Original Fee Letter (as defined in the Agency Fee Letter), the Commitment Papers, the Transactions, the Facilities or the use of proceeds thereunder, or any claim, litigation, investigation or proceeding (each, an “ Action ”) relating to any of the foregoing, regardless of whether any such Indemnified Person is a party thereto, whether or not such Action is brought by you, your equity holders, affiliates, creditors or any other person, and to reimburse each such Indemnified Person, promptly after receipt of a written request, together with customary backup documentation in reasonable detail, for any reasonable legal expenses (limited to one counsel for all Indemnified Persons taken as a whole and, if reasonably necessary, a single local counsel for all Indemnified Persons taken as a whole in each relevant material jurisdiction (which may be a single local counsel acting in multiple jurisdictions) and, solely in the case of an actual or perceived conflict of interest between Indemnified Persons where the Indemnified Persons affected by such conflict inform you of such conflict, one additional primary counsel and one additional counsel in each relevant material jurisdiction to each group of affected Indemnified Persons similarly situated taken as a whole) and other reasonable and documented in reasonable detail out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing; provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or expenses to the extent (a) resulting from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of its Related Indemnified Persons (as defined below), (b) arising from a material breach of the obligations of such Indemnified Person or any of its Related Indemnified Persons under the Commitment Papers or the Facilities Documentation (in the case of the preceding clauses (a) and (b) as determined by a court of competent jurisdiction in a final and non-appealable judgment), or (c) arising from any dispute among Indemnified Persons or Related Indemnified Persons of the foregoing other than any claims against any Commitment Party in its capacity or in fulfilling its role as an Initial Lender, Lead Arranger, Administrative Agent or other agent role under any Facility and other than any claims arising out of any act or omission on the part of you or any of your affiliates. Notwithstanding the foregoing, each Indemnified
 
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Person and Related Indemnified Party shall be obligated to refund and return promptly any and all amounts paid by you or any of your affiliates under this Section 7 to such Indemnified Person or such Related Indemnified Party, as applicable, for any such losses, claims, damages, liabilities or expenses to the extent such Indemnified Person or such Related Indemnified Party, as applicable, is or was not entitled to payment of such amounts in accordance with the terms hereof as finally determined by a final, non-appealable judgment of a court of competent jurisdiction.
Notwithstanding any other provision of this Commitment Letter, except to the extent resulting from the willful misconduct, bad faith or gross negligence of (or material breach of the Commitment Papers by) such Indemnified Person or any of its Related Indemnified Persons (as determined by a court of competent jurisdiction in a final and non-appealable judgment), no Indemnified Person will be liable for any damages arising from the use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems (including the Platform) and none of the Indemnified Persons, Related Indemnified Persons, you, your affiliates, the Company and/or its affiliates (or any of our, your or their respective directors, officers, employees, controlling persons, controlled affiliates or agents), will be liable for any indirect, special, punitive or consequential damages in connection with the Original Commitment Letter, the Original Fee Letter (as defined in the Fee Letter), the Original Fee Letter (as defined in the Agency Fee Letter), the Commitment Papers, the Facilities, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities or other transactions related to the Facilities; provided that this sentence will not limit your indemnification or reimbursement obligations set forth herein to the extent such special, indirect, punitive or consequential damages are included in any third-party claim in connection with which such Indemnified Person is entitled to indemnification hereunder. You will not be liable for any settlement of any Action effected without your prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), but, if settled with your prior written consent or if there is a final judgment in any such Actions, you agree to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with this Section 7. You will not, without the prior written consent of an Indemnified Person, effect any settlement of any Action in respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (i) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person from all liability on claims that are the subject matter of such Actions and (ii) does not include any statement as to any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Person.
It is further agreed that the Initial Lenders shall be liable in respect of their respective commitments to the Facilities, on a several, and not joint, basis with any other Initial Lender, and no Initial Lender shall be responsible for the commitment of any other Initial Lender.
For purposes hereof, a “ Related Indemnified Person ” of an Indemnified Person means (a) any controlling person or controlled affiliate of such Indemnified Person, (b) the respective directors, officers, or employees of such Indemnified Person or any of its controlling persons or controlled affiliates and (c) the respective agents of such Indemnified Person or any of its controlling persons or controlled affiliates, in the case of this clause (c), acting at the instructions of such Indemnified Person, controlling person or such controlled affiliate; provided that each reference to a controlled affiliate or controlling person in this sentence pertains to a controlled affiliate or controlling person involved in the negotiation or syndication of this Commitment Letter and the Facilities.
Upon and subject to the occurrence of the Closing Date and the initial funding of the Facilities, you agree to reimburse the Commitment Parties for their reasonable and documented in reasonable detail out-of-pocket expenses (including expenses of the Commitment Parties’ due diligence investigation, syndication expenses, travel expenses and reasonable fees, disbursements and other charges of the single counsel to the Commitment Parties identified in the Term Sheets and, if reasonably necessary, of a single local counsel to the Commitment Parties in each relevant material jurisdiction, which may be a single local counsel acting in multiple jurisdictions), in each case, incurred solely in connection with the negotiation and preparation of the Original
 
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Commitment Letter, the Original Fee Letter (as defined in the Fee Letter), the Original Fee Letter (as defined in the Agency Fee Letter), this Commitment Letter, the Fee Letters, the Facilities Documentation and any related definitive documentation (collectively, the “ Expenses ”); provided that, for the avoidance of doubt, you will not be required to reimburse the Commitment Parties for any Expenses in the event the Closing Date does not occur. You acknowledge that we may receive a benefit, including without limitation, a discount, credit or other accommodation, from any of such counsel based on the fees such counsel may receive on account of their relationship with us including, without limitation, fees paid pursuant hereto.
 
8.	Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities; Binding Obligations .	
You acknowledge that the Commitment Parties and their affiliates may be providing debt financing, equity capital or other services (including investment banking and financial advisory services, securities trading, hedging, financing and brokerage activities and financial planning and benefits counseling) to other companies in respect of which you or the Company and your and its respective affiliates may have conflicting interests. We will not furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or our other relationships with you to such other companies. You also acknowledge that we do not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us or any of our respective affiliates from such other companies.
You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and the Commitment Parties is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether any such Commitment Party has advised or is advising you on other matters, (b) the Commitment Parties, on the one hand, and you, on the other hand, have an arm’s-length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of the Commitment Parties, and you hereby agree, to the fullest extent permitted by law, that you will not assert any claim against any Commitment Party or any of its affiliates based on a breach of fiduciary duty or an alleged breach of fiduciary duty and agree that we will have no liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on your behalf, including equity holders, employees or creditors, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter, (d) you have been advised that the Commitment Parties and their affiliates are engaged in a broad range of transactions that may involve interests that differ from your and your affiliates’ interests and that the Commitment Parties have no obligation to disclose such interests and transactions to you or your affiliates, (e) you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate and (f) the Commitment Parties have been, are and will be acting solely as a principal and, except as otherwise expressly agreed in writing by the relevant parties, has not been, is not and will not be acting as an advisor, agent or fiduciary for you, any of your affiliates or any other person or entity. In addition, the Commitment Parties may employ the services of its affiliates in providing certain services hereunder and may exchange with such affiliates in connection therewith information concerning you and the Company, and such affiliates shall be entitled to the benefits afforded to, and subject to the obligations of (including, for the avoidance of doubt, those set forth in Section 12), the Commitment Parties under this Commitment Letter.
You further acknowledge that the Commitment Parties and their affiliates may be full service securities firms engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, the Commitment Parties may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, you, the Company and your and its subsidiaries and other companies with which you, the Company, your or its subsidiaries may have commercial or other relationships. With respect to any securities and/or financial instruments so held by the Commitment Parties, their affiliates or any of their respective customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.
 
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You acknowledge and agree that we are not advising you as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. You shall consult with your own advisors concerning such matters and shall be responsible for making your own independent investigation and appraisal of the transactions contemplated hereby.
We represent and warrant that the Commitment Papers constitute our legally valid and binding obligation, including to provide services set forth herein and to fund the Facilities, in each case, subject to the terms and conditions set forth herein and enforceable at law and in equity in accordance with their terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law)); provided that it is acknowledged and agreed by each party hereto that the initial funding of the Facilities will be subject only to the Financing Conditions. You represent and warrant that the Commitment Papers constitute your legally valid and binding obligations, in each case, subject to the terms and conditions set forth herein and enforceable at law and in equity against you in accordance with their terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law)); provided that nothing contained in the Commitment Papers obligates you or any of your affiliates to consummate any Transaction or to draw upon all or any portion of the Facilities.
 
9.	Assignments; Amendments; Governing Law, Etc.	
This Commitment Letter and the commitments hereunder are not assignable (except any assignment that occurs as a matter of law pursuant to the Transactions or by you to the Company, any of its or your U.S. organized wholly owned subsidiaries, in each case, on or prior to the Closing Date) without the prior written consent of each other party hereto and any attempted assignment without such consent will be null and void; provided , that MLPFS may, without notice to Atlas and/or the Company, assign its rights and obligations under this Commitment Letter and the Fee Letter to any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Commitment Letter. The Commitment Letter and the commitments hereunder are intended to be solely for the benefit of the parties hereto (and Indemnified Persons), is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons) and is not intended to create a fiduciary relationship among the parties hereto. Any and all services to be provided by the Commitment Parties hereunder may be performed by or through any of its affiliates or branches, and such affiliates and branches shall be entitled to the benefits afforded to, and will be subject to the obligations of (including, for the avoidance of doubt, those set forth in Section 12), the Commitment Parties under this Commitment Letter. Except as otherwise set forth herein, this Commitment Letter may not be amended or any provision hereof waived or modified except in a writing signed by the Commitment Parties and you. This Commitment Letter may be executed in any number of counterparts, each of which will be an original and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile or other electronic transmission (including in “.pdf” format) will be effective as delivery of a manually executed counterpart hereof. Section headings used herein are for convenience of reference only, are not part of this Commitment Letter and shall not affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter. The Commitment Papers supersede all prior understandings, whether written or oral, among you and us with respect to the Facilities and set forth the entire understanding of the parties hereto with respect thereto. THIS COMMITMENT LETTER, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATING TO THIS COMMITMENT LETTER, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; provided , however , that (a) the interpretation of the definition of Impax Material Adverse Effect (and whether or not an Impax Material Adverse Effect has occurred, including, for purposes of the Financing Conditions), (b) the determination of the accuracy of any Acquisition Agreement Representation and whether as a result of any inaccuracy of any Acquisition Agreement
 
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Representation there has been a failure of a condition to the Acquisition under the Acquisition Agreement (including, for purposes of the Financing Conditions) and (c) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement will, in each case, be governed by, and construed and interpreted in accordance with, the laws governing the Acquisition Agreement as applied to the Acquisition Agreement, without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction.
 
10.	WAIVER OF JURY TRIAL .	
EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THE ACQUISITION, THE TRANSACTIONS, THE COMMITMENT PAPERS OR THE PERFORMANCE BY US OR ANY OF OUR AFFILIATES OF THE SERVICES HEREUNDER OR THEREUNDER.
 
11.	Jurisdiction .	
Each party hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting, in each case, in the Borough of Manhattan in the City of New York, and any appellate court from any such court, in any suit, action, proceeding, claim or counterclaim arising out of or relating to the Commitment Papers or the Transactions, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such suit, action, proceeding, claim or counterclaim will be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action, proceeding, claim or counterclaim arising out of or relating to the Commitment Papers or the Transactions in any court in which such venue may be laid in accordance with clause (a) of this sentence, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action, proceeding, claim or counterclaim in any such court and (d) agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Service of any process, summons, notice or document by registered mail or overnight courier addressed to any of the parties hereto at the addresses above will be effective service of process against such party for any suit, action, proceeding, claim or counterclaim brought in any such court.
 
12.	Confidentiality .	
This Commitment Letter is delivered to you on the understanding that neither the Fee Letters nor the Commitment Letter, or their terms or substance, may be disclosed by you to any other person or entity, except (a) to your officers, directors, employees, affiliates, controlling persons, members, partners, equity holders, attorneys, accountants, representatives, agents and advisors on a confidential basis, (b) [reserved], (c) if the Commitment Parties consent in writing to such proposed disclosure, (d) that the Term Sheets and the existence of this Commitment Letter (but not this Commitment Letter or the contents of the Commitment Papers) may be disclosed to any rating agency in connection with the Transactions on a confidential basis or (e) pursuant to the order of any court or administrative agency in any pending legal or administrative proceeding, or otherwise as required by applicable law or regulation or as requested by a governmental authority (in which case you agree to inform us promptly thereof to the extent lawfully permitted to do so); provided that you may disclose (i) the Commitment Papers and the contents thereof to the Company and its officers, directors, employees, attorneys, accountants, representatives, agents and advisors on a confidential basis, (ii) the aggregate amount of the fees (including upfront fees and OID) payable under the Fee Letters as part of generic disclosure regarding sources and uses (but without disclosing any specific fees set forth therein) in connection with any syndication of the Facilities or other marketing efforts for debt to be used to finance the Transactions, (iii) the Fee Letters and the
 
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contents thereof to your auditors and your accounting and tax advisors and to the Company’s auditors and accounting and tax advisors on a confidential basis for accounting and tax purposes, (iv) the Commitment Papers to the extent reasonably necessary in connection with the enforcement of your rights hereunder or under the Fee Letters, (v) the Commitment Letter and its contents (but not the Fee Letters or the contents thereof) in any syndication of the Facilities or other marketing efforts for a financing of the Transactions, (vi) the Commitment Letter and its contents (but not the Fee Letters or the contents thereof) after your acceptance thereof or prior thereto to the extent that such information becomes publicly available other than by reason of improper disclosure by you in violation of any confidentiality obligations hereunder and/or (vii) as may be required pursuant to applicable securities laws (including in customary filings by the Company and any applicable proxy statements).
The Commitment Parties and their affiliates will use all confidential information provided to them or such affiliates by or on behalf of you and the contents of the Commitment Papers solely for the purpose of providing the services that are the subject of this Commitment Letter and will treat confidentially all such information and the Commitment Papers; provided that the foregoing will not prevent the Commitment Parties from disclosing any such information (a) pursuant to the order of any court or administrative agency or otherwise as required by applicable law or regulation or as requested by a governmental authority (in which case the applicable Commitment Party agrees to inform you promptly thereof to the extent lawfully permitted to do so, unless such Commitment Party is prohibited by applicable law from so informing you, or except in connection with any request as part of any governmental or regulatory audit or examination conducted by accountants or any governmental or regulatory authority exercising examination or regulatory authority), (b) upon the request or demand of any governmental or regulatory authority having jurisdiction over a Commitment Party or any of its affiliates (in which case the applicable Commitment Party agrees to inform you promptly thereof, unless such Commitment Party is prohibited by applicable law from so informing you, or except in connection with any request as part of any regulatory audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by a Commitment Party or any of its affiliates in violation of any confidentiality obligations hereunder, (d) to the extent that such information is received by such Commitment Party from a third party that is not to such Commitment Party’s knowledge subject to confidentiality obligations to you, the Company or the Borrower, (e) to the extent that such information is independently developed by such Commitment Party without reliance on such information, (f) to such Commitment Party’s affiliates and its and their respective officers, directors, employees, legal counsel, independent auditors and other experts or agents who need to know such information in connection with the Transactions, are informed of the confidential nature of such information and are instructed to keep such information confidential, (g) except with respect to the Fee Letters and their contents, to bona fide prospective Lenders, participants or assignees or any bona fide potential counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or any of its subsidiaries or any of their respective obligations, in each case who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph) which agreement will be pursuant to customary syndication practice, (h) to ratings agencies, (i) to the extent reasonably necessary in connection with the enforcement of our rights hereunder or under the Fee Letters, (j) to market data collectors and similar service providers to the loan industry for league table purposes, information that is customarily provided to such collectors or providers or (k) if you give your prior written consent to such proposed disclosure, in your sole discretion; provided that (i) the disclosure of any such information to any Lenders, prospective Lenders, participants, prospective participants, assignees or prospective assignees or swap counterparties or potential swap counterparties pursuant to the preceding clauses (f) and (g) will be made subject to the acknowledgment and acceptance by such Lender or prospective Lender or participant or prospective participant that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you and the Commitment Parties, including, without limitation, as agreed in any marketing materials) in accordance with the standard syndication processes of such Commitment Party or customary market standards for dissemination of such type of information, which shall in any event require “click through” or other affirmative actions on the part of the
 
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recipient to access such information and (ii) no such disclosure shall be to any person that is a Disqualified Lender on the date of such disclosure.
After the closing of the Transactions and at such Commitment Party’s expense, a Commitment Party may (i) after consultation with the Borrower, place advertisements in periodicals and on the Internet as it may choose and (ii) on a confidential basis, circulate promotional materials in the form of a “tombstone” or “case study” (and, in each case, otherwise describe the names of any of you or your affiliates and any other information about the Transactions, including the amount, type and closing date of the Facilities).
Our obligations under this Section 12 will automatically terminate and be superseded by the confidentiality provisions in the Facilities Documentation upon the execution and delivery of the Facilities Documentation and in any event our and your obligations under this Section 12 will terminate two years from October 17, 2017 ( provided that the foregoing will not apply to your obligations with respect to the contents of the Fee Letters).
 
13.	Surviving Provisions .	
The reimbursement (if applicable), indemnification, expense (if applicable), payment of fees (if applicable), confidentiality, syndication jurisdiction, venue, governing law, no agency or fiduciary duty and waiver of jury trial provisions contained in the Commitment Papers shall remain in full force and effect regardless of whether definitive financing documentation is executed and delivered and notwithstanding the termination of this Commitment Letter or the Initial Lenders’ commitments hereunder and the Lead Arrangers’ and other agents’ agreements to provide the services described herein; provided that your obligations under this Commitment Letter, other than Section 12 and Section 3 will automatically terminate and be superseded by the Facilities Documentation (with respect to indemnification, to the extent covered thereby) upon initial funding under the Facilities and the payment of all amounts owing at such time under the Commitment Papers.
 
14.	Patriot Act Notification .	
We hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “ Patriot Act ”), each Commitment Party and each Lender is required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes the name, address, tax identification number and other information regarding the Borrower and each Guarantor that will allow such Commitment Party or such Lender to identify the Borrower and each Guarantor in accordance with the Patriot Act. This notice is given in accordance with the requirements of the Patriot Act and is effective as to each Commitment Party, each Lender and each of their respective affiliates.
 
15.	Termination .	
In the event that the initial borrowing in respect of the Facilities does not occur on or prior to the date that is five business days after the Outside Date (as defined in the Acquisition Agreement in effect on October 17, 2017), or (if earlier) (a) the date on which the Acquisition Agreement has terminated in accordance with its terms and (b) the date of the consummation of the Acquisition (but not, for the avoidance of doubt, prior to the consummation thereof) with or without the funding of the Facilities, then this Commitment Letter and the commitments and undertakings of the Commitment Parties hereunder will automatically terminate unless the Commitment Parties, in their sole discretion, agree to an extension in writing. The termination of any commitment pursuant to this paragraph will not prejudice our or your rights and remedies in respect of any breach or repudiation of the Commitment Papers.
[Signature pages follow.]
 
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We are pleased to have this opportunity and we look forward to working with you on this transaction.

Very truly yours,	
	
JPMORGAN CHASE BANK, N.A.	
		
By:	 	       /s/ James A. Knight	
	 	Name: James A. Knight	
	 	Title: Executive Director	
 
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BANK OF AMERICA, N.A.
 	
By:	 	       /s/ Jae Lee	
	 	Name: Jae Lee	
	 	Title: Director	

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

By:	 	       /s/ Jae Lee	
	 	Name: Jae Lee	
	 	Title: Director	
 
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ROYAL BANK OF CANADA
 	
By:	 	       /s/ James S. Wolfe	
	 	Name: James S. Wolfe	
	 	Title: Managing Director; Head of Global Leveraged Finance	
 
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Accepted and agreed to as of
the date first written above:

AMNEAL PHARMACEUTICALS LLC

By:	 	  /s/ Chintu Patel	
	 	  Name: Chintu Patel	
	 	  Title: Manager	

By:	 	  /s/ Chirag Patel	
	 	  Name: Chirag Patel	
	 	  Title: Manager	

By:	 	  /s/ Tushar Patel	
	 	  Name: Tushar Patel	
	 	  Title: Manager	

By:	 	  /s/ Gautam Patel	
	 	  Name: Gautam Patel	
	 	  Title: Manager	
 
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CONFIDENTIAL	  	EXHIBIT A	
Project Apex
Transaction Description 1
It is intended that:
(a) Amneal Pharmaceuticals LLC, a Delaware limited liability company (“ you ” or “ Atlas ”) will directly or indirectly acquire (the “ Acquisition ”) the company previously identified to us and code-named “K2” (the “ Company ”) pursuant to the Business Combination Agreement, dated as of October 17, 2017, together with the schedules and exhibits thereto, among Atlas, the Company, Atlas Holdings, Inc. and K2 Merger Sub, Corporation, a copy of which was delivered to the Lead Arrangers (or their designee) on October 17, 2017 (as amended from time to time, the “ Acquisition Agreement ”);
(b) the Borrower will obtain:
(i) up to $500 million (or such lower amount as Atlas may request) in commitments under a senior secured asset based revolving credit facility (the “ ABL Facility ”) having the terms set forth in the Summary of Principal Terms and Conditions attached to this Commitment Letter as Exhibit B (the “ ABL Facility Term Sheet ”), and
(ii) $2,700 million (or such lower amount as Atlas may request) in aggregate principal amount of senior secured term loans (the “ Term Facility ”) having the terms set forth in the Summary of Principal Terms and Conditions attached to this Commitment Letter as Exhibit C (the “ Term Facility Term Sheet );
(c) the proceeds of the initial borrowing under the Facilities, and cash on hand at Atlas and its subsidiaries and the Company and its subsidiaries on the Closing Date will be applied on the Closing Date to finance the repayment of the debt (and termination of commitments thereunder and release of all liens and security interests related thereto) (collectively, the “ Refinancing ”):
(i) under that certain (1) Revolving Credit Agreement, dated as of November 1, 2013 (as amended, amended and restated, supplemented or otherwise modified from time to time) by, among others, you and Healthcare Financial Solutions, LLC (as successor in interest to General Electric Capital Corporation), as agent, and (2) Credit Agreement dated as of November 1, 2013 (as amended, amended and restated, supplemented or otherwise modified from time to time) by, among others, you and Healthcare Financial Solutions, LLC (as successor in interest to General Electric Capital Corporation), as agent (such credit facilities, the “ Existing Atlas Credit Agreements ” and the credit facilities thereunder, the “ Existing Atlas Credit Facilities ”); and
(ii) of the Company and its subsidiaries with respect to which the Acquisition Agreement requires the delivery of a payoff letter (collectively, the “ Existing K2 Credit Facilities ” and together with the Existing Atlas Credit Facilities, the “ Existing Credit Facilities ”); and
(d) the Borrower or one or more of its affiliates shall undertake (or shall cause the Company to undertake) one or more Existing Notes LM Transactions; and
(e) pay fees, costs and expenses related to the Transactions (such fees, costs and expenses, the “ Transaction Costs ”).
The transactions described above, together with the transactions related thereto, are collectively referred to herein as the “ Transactions .”

1  	All capitalized terms used but not defined in this Exhibit  A have the meanings given to them in the Commitment Letter to which this Exhibit  A is attached, including the other Exhibits thereto. In the event any such capitalized term is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit  A will be determined by reference to the context in which it is used.	
 
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The ABL Facility Term Sheet, the Term Facility Term Sheet and the Financing Conditions are collectively referred to herein as the “ Term Sheets ” and each a “ Term Sheet ”. The ABL Facility and the Term Facility are collectively referred to herein as the “ Facilities ” and each a “ Facility ”. The Term Sheets, which contain all material terms related to the Facilities, are the result of extensive negotiations among the parties hereto. For purposes of the Commitment Papers, “ Closing Date ” means the date on which the Financing Conditions are satisfied (or waived) and the initial funding under the Facilities is required to occur. All references to “dollars” and “$” are to the lawful currency of the United States of America.
 
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CONFIDENTIAL	  	EXHIBIT B	
Project Apex
$500,000,000 ABL Facility
Summary of Principal Terms and Conditions
Capitalized terms used but not defined in this Exhibit  B shall have the meanings set forth in the Commitment Letter to which this Exhibit  B is attached or the other Exhibits to the Commitment Letter.

Borrower :	  	Amneal Pharmaceuticals LLC (the “ Borrower ”).	
		
Lead Arrangers and Bookrunners :	  	JPMCB, MLPFS and RBCCM (the “ Lead Arrangers ”).	
		
ABL Administrative Agent and ABL Collateral Agent :	  	JPMCB will act as the sole administrative agent and sole collateral agent (in such capacities, the “ ABL Administrative Agent ”) for the ABL Lenders.	
		
Additional Agents :	  	The Borrower may designate additional financial institutions to act as syndication agent, documentation agent or co-documentation agent.	
		
Transactions :	  	As described in Exhibit A to the Commitment Letter.	
		
Lenders :	  	JPMCB (or one of its affiliates), BANA (or one of its affiliates), Royal Bank (or one of its affiliates) and a syndicate of financial institutions and other lenders (the “ ABL Lenders ” and together with the Term Lenders, the “ Lenders ”) arranged by the Lead Arrangers and reasonably acceptable to the Borrower, excluding Disqualified Lenders.	
		
ABL Facility :	  	A senior secured asset based revolving credit facility in an aggregate principal amount of up to $500 million (the “ ABL Facility ”).	
		
	  	The commitment to make loans under the ABL Facility (the “ ABL Commitments ” and the loans thereunder, the “ ABL Loans ”) will be available to the Borrower in U.S. dollars.	
		
Swingline Facility : 1	  	The ABL Administrative Agent or another ABL Lender approved by the Borrower and the ABL Administrative Agent (in such capacity, the “ Swingline Lender ”) will make available to the Borrower a swingline facility in an amount to be mutually agreed under the ABL Facility under which the Borrower may make short-term borrowings in U.S. dollars (in minimum amounts and integral multiples consistent with the ABL Documentation Principles); provided that the Swingline Lender’s aggregate exposure under the ABL Facility (including loans made by it under the swingline facility) shall not exceed its commitment thereunder. Except for purposes of calculating the commitment fee described herein, any such swingline borrowings will reduce availability under the ABL Facility on a dollar-for-dollar basis. The ABL Lenders will be unconditionally obligated to purchase participations in any swingline loan pro rata based upon their commitments under the ABL Facility.
 
If any ABL Lender becomes a Defaulting Lender, then the swingline exposure of such Defaulting Lender will automatically be reallocated	

1  	At the Borrower’s option, the ABL Loan Documents will provide for same day base rate borrowing in lieu of swingline; provided that notice of request for such borrowings is received by 1:00 p.m. New York City time.	
 
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	  	among the non-Defaulting Lenders pro rata in accordance with their commitments under the ABL Facility up to an amount such that the revolving credit exposure of such non-Defaulting Lender does not exceed its commitment under the ABL Facility. In the event such reallocation does not fully cover the exposure of such Defaulting Lender, the Swingline Lender may require the Borrower to repay such “uncovered” exposure in respect of the swingline loans and will have no obligation to make new swingline loans to the extent such swingline loans would exceed the commitments of the non-Defaulting Lenders.	
		
Letters of Credit :	  	An amount to be mutually agreed (and in any event no less than $25 million) of the ABL Facility will be available to the Borrower in the form of letters of credit. Letters of credit will be issued by the ABL Administrative Agent and/or one or more other ABL Lenders selected by the Borrower and approved by the ABL Administrative Agent that agree to act in such capacity (in such capacity, the “ Issuing Banks ”). Each letter of credit will be denominated in U.S. dollars and will expire no later than the earlier of (a) twelve months after its date of issuance and (b) the fifth business day prior to the final maturity of the ABL Facility; provided , however , that any letter of credit may provide for renewal thereof for additional periods of up to twelve months or such longer period of time as may be agreed by the applicable Issuing Bank (which in no event shall extend beyond the date referred to in clause (b) above, except to the extent cash collateralized or backstopped pursuant to arrangements reasonably acceptable to the relevant Issuing Bank, provided that no ABL Lender will be required to fund participations in Letters of Credit after the maturity date applicable to its commitments).
 
Drawings under any Letter of Credit will be reimbursed by the Borrower (whether with its own funds or, if the conditions to such a borrowing are satisfied, with the proceeds of ABL Loans) within one business day after notice of such drawing is received by the Borrower from the applicable Issuing Bank. To the extent that the Borrower does not so reimburse the applicable Issuing Bank, the Lenders under the ABL Facility will be irrevocably and unconditionally obligated to fund participations in the reimbursement obligations on a pro rata basis in accordance with their commitments under such ABL Facility.
 
If any Lender under the ABL Facility becomes a defaulting lender, then the letter of credit exposure of such defaulting lender will automatically be reallocated among the non- defaulting lenders pro rata in accordance with their commitments under the ABL Facility up to an amount such that the revolving credit exposure of each such non-defaulting lender does not exceed its commitment. In the event that such reallocation does not fully cover the letter of credit exposure of the applicable defaulting lender, the applicable Issuing Bank may require the Borrower to cash collateralize (in an amount to be agreed with the applicable Issuing Bank, but in no event to exceed 105% of the outstanding amount of the applicable outstanding letters of credit) such “uncovered” exposure in respect of each outstanding letter of credit and will have no obligation to issue new letters of credit, or to extend, renew or amend existing letters of credit to the extent letter of credit	
 
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	  	exposure would exceed the commitments of the non-defaulting lenders, unless such “uncovered” exposure is cash collateralized to the applicable Issuing Bank’s reasonable satisfaction (in an amount to be agreed with the applicable Issuing Bank, but in no event to exceed 105% of the outstanding amount of the applicable outstanding letters of credit).	
		
Incremental ABL Facilities :	  	The Facilities Documentation for the ABL Facility (the “ ABL Loan Documents ”) will permit the Borrower from time to time, on one or more occasions, to increase commitments under the ABL Facility (any such increase, an “ Incremental ABL Facility ”); provided that the aggregate principal amount of all such increases does not exceed the sum of (i) $200 million and (ii) the difference between (x) $500 million and (y) the ABL Commitments as of the Closing Date; provided, further , that (i) no event of default (or, in the case of a Permitted Acquisition or other permitted investment, no payment or bankruptcy event of default) under the ABL Facility has occurred and is continuing or would exist after giving effect thereto or, in the case of a Limited Condition Transaction, at the Borrower’s option, at the time of execution of a definitive acquisition agreement, (ii) any Incremental ABL Facility will be on the same terms and pursuant to documentation applicable to (and will form a part of), the ABL Facility, as provided for pursuant to the ABL Documentation Principles, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders providing such Incremental ABL Facility and (iii) all representations and warranties in the ABL Loan Documents shall be true and correct in all material respects on and as of the date of incurrence of the Incremental ABL Facility (or, if any such representations or warranties are qualified by materiality, material adverse effect or similar language, be true and correct in all respects).
 
The Borrower may seek commitments in respect of the Incremental ABL Facilities from existing ABL Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and/or additional banks, financial institutions and other institutional lenders who will become ABL Lenders in connection therewith (an “ ABL Additional Lender ”); provided that the ABL Administrative Agent, the Swingline Lender and the Issuing Bank will have consent rights (not to be unreasonably withheld, conditioned or delayed) with respect to such ABL Additional Lender, if such consent would be required for an assignment of loans or commitments under the ABL Facility, as applicable, to such ABL Additional Lender.	
		
Purpose :	  	The letters of credit and proceeds of loans under the ABL Facility may be used for working capital and other general corporate purposes, including the financing of Permitted Acquisitions and other permitted investments and permitted dividends and any other use not prohibited by the ABL Loan Documents.	
		
Availability :	  	On the Closing Date, at the option of the Borrower, ABL Loans (exclusive of letter of credit usage) will be made available in an amount that, in the aggregate, will not exceed $100 million plus amounts (i) for	
 
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	  	replacing and/or backstopping existing letters of credit and refinancing any revolving facilities of Atlas and its subsidiaries and/or the Company and its subsidiaries and (ii) to fund any OID or fees pursuant to the “market flex” provisions in the Fee Letter.
 
Additionally, letters of credit may be issued on the Closing Date in order to backstop or replace letters of credit outstanding on the Closing Date under facilities no longer available to Atlas or any of its subsidiaries and/or the Company or any of its subsidiaries as of the Closing Date (and if the issuer of such letters of credit becomes an ABL Lender under the ABL Facility, such existing letters of credit may be deemed letters of credit outstanding under the ABL Facility).
 
Otherwise, ABL Loans will be available at any time prior to the final maturity of the ABL Facility, in minimum principal amounts to be agreed upon. Amounts repaid under the ABL Facility may be reborrowed.	
		
ABL Documentation Principles :	  	The definitive documentation for the ABL Facility will (a) initially be prepared by counsel to the Borrower, (b) contain the terms and conditions set forth in this Exhibit B, (c) reflect the operational and strategic requirements of the Borrower and its subsidiaries, (d) be consistent with the proposed business plan and the model delivered to the Lead Arrangers on October 6, 2017 (the “ Model ”), (e) be based on, and no less favorable to, the Company and its subsidiaries than the documentation for the Term Facility set forth on Exhibit C ( provided that terms specific to asset based revolving facilities will be based on and in no event less favorable to the Borrower and its subsidiaries than those set forth in the asset based facility for the company identified to you as “Mariposa”), taking into account differences in the industry of the borrower under such facility, (f) include customary “EU bail-in” provisions, (g) contain those covenant “baskets” and exceptions set forth in the documentation for the Term Facility as modified herein, (h) be modified to accommodate the reasonable operational and agency guidelines and practices of the ABL Administrative Agent and changes in law and accounting standards and (i) be negotiated in good faith. The foregoing is referred to herein, collectively, as the “ ABL Documentation Principles ”. The ABL Loan Documents will, subject to the “flex” provisions contained in the Fee Letter (which “flex” provisions shall not include any changes to the conditions to borrowing on the Closing Date), contain only those payment provisions, conditions to borrowing, mandatory prepayments, representations and warranties, covenants, events of default and guarantee and collateral provisions expressly set forth in this Exhibit B , in each case, applicable to, the Borrower and its restricted subsidiaries and with standards, qualifications, thresholds, exceptions, “baskets” and grace and cure periods consistent with the ABL Documentation Principles.	
		
Borrowing Base :	  	The borrowing base (the “ Borrowing Base ”) at any time shall equal the sum of:
 
(a) 85.0% of the Borrower’s and the ABL Guarantors’ eligible accounts receivables, plus	
 
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(b) the lesser of:
 
(i) 70.0% of the Borrower’s and the ABL Guarantors’ eligible inventory valued at cost on a FIFO basis and
 
(ii) 85% of the net orderly liquidation value of the Borrower’s and the ABL Guarantors’ eligible inventory valued at the lower of cost or market on a FIFO basis, plus
 
(c) 100.0% of Eligible Borrowing Base Cash, minus
 
(d) customary reserves (as described below).
 
Eligibility criteria for eligible inventory and eligible accounts receivable shall be set forth in the ABL Loan Documents in a manner consistent with the ABL Documentation Principles.
 
The Borrowing Base will be computed by the Borrower monthly (or more frequently as the Borrower may elect; provided that if such election is exercised, the Borrower will compute the Borrowing Base on such more frequent interval until the date that is 30 days after the date of such election), and a certificate (the “ Borrowing Base Certificate ”) presenting the Borrower’s computation of the Borrowing Base will be delivered to the ABL Administrative Agent promptly, but in no event later than the 20th calendar day following the end of each calendar month; provided, however , that if Excess Availability (as defined below) under the ABL Facility is less than the greater of (i) $75.0 million and (ii) 30% of the lesser of (A) the aggregate commitments at such time and (B) the Borrowing Base (the lesser of (A) and (B), the “ Line Cap ”) for five consecutive business days (a “ Weekly Borrowing Base Event ”), the Borrower will be required to compute the Borrowing Base and deliver a Borrowing Base Certificate on a weekly basis until the date on which Excess Availability under the ABL Facility has been at least the greater of (i) $75.0 million and (ii) 30% of the Line Cap for at least thirty consecutive calendar days. All references in this paragraph that refer to the Borrowing Base prior to the earlier of (x) delivery of the first Borrowing Base Certificate and (y) the Initial Borrowing Base Date (as defined below), shall be deemed to refer to the Modified Borrowing Base.
 
The ABL Administrative Agent will have the right to establish and modify reserves against the Borrowing Base assets in its Permitted Discretion with 5 business days prior written notice to the Borrower. As used herein, “ Permitted Discretion ” means the ABL Administrative Agent’s reasonable credit judgment (from the perspective of an asset-based lender) in establishing reserves, exercised in good faith in accordance with customary business practices for similar asset based lending facilities, based upon its consideration of any factor that it reasonably believes (i) could materially adversely affect the quantity, quality, mix or value of Collateral (including any applicable laws that may inhibit collection of a receivable), the enforceability or priority of the ABL Administrative Agent’s liens thereon, or the amount that the ABL Administrative Agent, the ABL Lenders or the Issuing Banks could receive in liquidation of any Collateral; (ii) that any collateral report or financial information delivered by the Borrower or any	
 
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	  	Guarantor is incomplete, inaccurate or misleading in any material respect; or (iii) creates an event of default. In exercising such judgment, the ABL Administrative Agent may consider any factors that could materially increase the credit risk of lending to the Borrower on the security of the Collateral. Any reserve established or modified by the ABL Administrative Agent shall have a reasonable relationship to circumstances, conditions, events or contingencies which are the basis for such reserve, as reasonably determined, without duplication, by the ABL Administrative Agent in good faith; provided that circumstances, conditions, events or contingencies existing or arising prior to the Initial Borrowing Base Date and, in each case, disclosed in writing in any field examination or appraisal delivered to the ABL Administrative Agent in connection herewith or otherwise known to the ABL Administrative Agent, in either case, prior to the Initial Borrowing Base Date, shall not be the basis for any establishment of any reserves after the Initial Borrowing Base Date, unless such circumstances, conditions, events or contingencies shall have changed in a material respect since the Initial Borrowing Base Date.
 
Notwithstanding anything to the contrary herein, (a) the amount of any such reserve of change shall have a reasonable relationship to the event, condition or other matter that is the basis for such reserve or such change, (b) no reserves or changes already accounted for through eligibility criteria (including collection/advance rates) shall be imposed and (c) no reserves shall be imposed on the first 5% of dilution of accounts receivable and thereafter no dilution reserve shall exceed 1% for each incremental whole percentage in dilution over 5%; provided that dilution reserves may reflect fractional percentages in dilution.
 
“ Specified Default ” means any payment or bankruptcy event of default, a failure to deliver any required Borrowing Base certificate (following a five business day grace period), any event of default arising from breach of the cash management provisions (following a two business day grace period) or an event of default arising from a breach of the ABL Financial Covenant.
 
For the period from the Closing Date until the 90th day after the Closing Date (or such earlier date as the Borrower may elect after delivery of a satisfactory field examination and inventory appraisal or such later date as may be agreed to by the ABL Administrative Agent) (such date, the “ Initial Borrowing Base Date ”), the Borrowing Base will be deemed to be the greater of (x) $250 million and (y) 70% of the ABL Commitments on the Closing Date (the “ Modified Borrowing Base ”).	
		
Interest Rates and Fees :	  	As set forth on Annex I hereto.	
		
Final Maturity and Amortization :	  	The ABL Facility will mature, and the ABL Commitments thereunder will terminate, on the fifth (5 th ) anniversary of the Closing Date. The ABL Facility will have no amortization	
		
Guarantees :	  	All obligations of the Borrower under the ABL Facility and of the Borrower and its restricted subsidiaries under any interest rate	
 
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	  	protection or other hedging arrangements identified by the Borrower and entered into with a Person that is the ABL Administrative Agent or a Lender or any affiliate of any such Administrative Agent or Lender at the time of entering into such arrangements, or if later, on the Closing Date and has been identified by the Borrower to the ABL Administrative Agent (collectively, the “ ABL Hedging Arrangements ”) and cash management arrangements identified by the Borrower and entered into with a Person that is the ABL Administrative Agent or a Lender or any affiliate of any such Administrative Agent or Lender at the time of entering into such arrangements, or if later, on the Closing Date and has been identified by the Borrower to the ABL Administrative Agent (collectively, the “ ABL Cash Management Arrangements ” and, together with the ABL Hedging Arrangements, the “ Secured Agreements ”), will be unconditionally guaranteed jointly and severally on a senior secured basis (the “ ABL Guarantees ”) by each existing and subsequently acquired or organized wholly-owned material U.S. subsidiary of the Borrower other than Excluded Subsidiaries (the “ ABL Guarantors ” and, collectively with the Borrower, the “ Loan Parties ”); provided that any such guarantees will not be required to the extent it would result in material adverse tax consequences as reasonably determined by the Borrower in consultation with the ABL Administrative Agent or if prohibited or restricted by applicable law or binding contractual obligation existing on the Closing Date or at the time of the acquisition of the applicable subsidiary (and not created in anticipation of such acquisition), including any requirement to obtain the consent of any governmental authority or third party.
 
Entities with respect to which the Borrower, directly or indirectly, owns 50% or less of the voting equity interests will not be subsidiaries of the Borrower.
 
For the avoidance of doubt, the “Loan Parties” will not include the Company or any of its subsidiaries until the Acquisition has been consummated.
 
The ABL Loan Documents will include customary exclusions for Guarantors that are not “eligible contract participants” (as defined in the Commodity Exchange Act (7 U.S.C. section 1 et seq., as amended from time to time) and any successor statute) and customary provisions regarding qualified “keepwell” with respect to guaranties of Secured Agreements.	
		
Security :	  	Subject to the Certain Funds Provisions, obligations of the Loan Parties in respect of the ABL Facility, the ABL Guarantees and the Secured Agreements (collectively, the “ ABL Secured Obligations ”) will be secured by a first priority security interest (subject to permitted liens) in substantially all personal property of the Borrower and the ABL Guarantors consisting of all accounts receivable, inventory, cash and cash equivalents, deposit accounts, securities and commodity accounts (other than the accounts in which net cash proceeds from the sale of non-ABL Priority Collateral are deposited pending reinvestment and which is subject to a first priority security interest in favor of the Term	
 
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	  	Loan Administrative Agent and the Term Lenders pursuant to the Term Facility and any other Excluded Accounts (as defined below)), documents of title and records related to the foregoing (but excluding, for the avoidance of doubt, intellectual property and general intangibles and certain other related assets evidencing, governing, securing or otherwise relating to the foregoing) and, in each case, proceeds thereof (other than the Excluded Assets (as defined in the Term Loan Documents), the “ ABL Priority Collateral ”) and (b) a perfected second priority security interest in the Collateral (other than the ABL Priority Collateral and the Excluded Assets). The pledges of and security interests in the Collateral granted by the Borrower and each ABL Guarantor shall secure the ABL Secured Obligations.
 
Notwithstanding anything to the contrary set forth above, the Loan Parties shall not be required, nor shall the ABL Administrative Agent be authorized, to perfect the above-described security interests by any means other than by (i) filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar central filing office) of the relevant State(s), (ii) filings in United States government offices with respect to intellectual property as expressly required in the Facilities Documentation, (iii) control agreements solely as described under the first paragraph under the section entitled “Cash Management and Cash Dominion” below or (iv) subject to the Intercreditor Agreement, delivery to the applicable Administrative Agent to be held in its possession of all Collateral consisting of intercompany notes, stock certificates and other instruments, each case constituting Collateral and as expressly required in the Facilities Documentation (and other actions required to perfect the above-described security interests due to a change in law and reasonably agreed between the Borrower and the ABL Administrative Agent).
 
In addition, (a) except as described under the first paragraph under the section entitled “Cash Management and Cash Dominion” below, control agreements shall not be required with respect to any deposit accounts, securities accounts, commodities accounts or uncertificated securities and no perfection actions shall be required with respect to (i) motor vehicles and other assets subject to certificates of title, (ii) letter of credit rights, except to the extent constituting a support obligation for other Collateral as to which perfection is accomplished solely by the filing of a UCC financing statement or equivalent (it being understood that no actions shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement or equivalent), (iii) commercial tort claims with a value of less than an amount to be agreed and (iv) promissory notes evidencing debt for borrowed money in a principal amount of less than an amount to be agreed, (b) share certificates of immaterial subsidiaries shall not be required to be delivered, (c) no actions with respect to any assets located outside of the United States or in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction will be required to be taken to create any security interests or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction) and (d) no landlord lien waivers,	
 
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	  	estoppels or collateral access letters will be required. The ABL Loan Documents will provide that “fair market value” will be determined by the Borrower in good faith and if supported by an opinion of a reputable valuation or investment banking firm shall be conclusive.
 
Notwithstanding the foregoing, assets will be excluded from the Collateral in circumstances where the applicable Administrative Agent determines in consultation with the Borrower that the costs of obtaining, perfecting or maintaining a security interest in such assets exceed the fair market value thereof or the practical benefit to the Lenders afforded (or proposed to be afforded) thereby. Liens on assets that are transferred in a permitted transaction to a Person that is not (and is not required to be) a Loan Party under the ABL Loan Documents and liens on any assets held by an Excluded Subsidiary (or any Person that becomes an Excluded Subsidiary in a transaction not prohibited by the ABL Loan Documents) or on assets that are Excluded Assets shall be automatically released. The ABL Administrative Agent shall execute such acknowledgments and releases reasonably acceptable to it as the Borrower may reasonably request in connection with any such release, and the ABL Administrative Agent shall be entitled to rely exclusively on an officer’s certificate of the Borrower when executing any such acknowledgment or release. Any execution and delivery of documents pursuant to such a release shall be without recourse to or warranty by the ABL Administrative Agent and at the Borrower’s expense, in accordance with the Documentation Principles.	
		
Intercreditor Agreement :	  	The relative rights and priorities in the Collateral for the secured parties in (a) the ABL Facility and (b) the Term Facility will be set forth in a customary intercreditor agreement as between the collateral agent for the Term Facility, on the one hand, and the collateral agent for the ABL Facility, on the other hand (the “ Intercreditor Agreement ”); provided that the Intercreditor Agreements will be substantially consistent with, and no less favorable to the Borrower than, the Intercreditor Agreement entered into in connection with the “Mariposa” transaction but shall take into account the Documentation Principles.	
		
Cash Management and Cash Dominion :	  	The Borrower and the ABL Guarantors will use commercially reasonable efforts to obtain account control agreements on all depository accounts (“ DDAs ”) and securities accounts of the Borrower and the ABL Subsidiary Guarantors (excluding accounts that are (i) solely used for payroll, taxes, wages and benefits, (ii) disbursement accounts, (iii) zero balance accounts, (iv) trust accounts, (v) other accounts with funds on deposit averaging less than an amount to be agreed for any single account or an amount to be agreed in the aggregate for all such accounts, (vi) swept at the end of each Business Day into another account in the name of, or subject to a customary blocked account control agreement (shifting control) in favor of the ABL Administrative Agent, in each case with standing wire instructions and (vii) accounts holding Term Priority Collateral or the proceeds thereof (collectively, “ Excluded Accounts ”) as soon as possible and in any event within 120 days after the Closing Date (or such later date as the ABL Administrative Agent shall agree). If such	
 
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	  	arrangements are not obtained within 120 days after the Closing Date (or such later date as the ABL Administrative Agent shall reasonably agree), the Borrower and the ABL Guarantors shall be required to move their bank accounts to the ABL Administrative Agent or another bank that will provide such control agreements. During a Cash Dominion Period (as defined below), all amounts in controlled DDAs will be swept into a collection account (or accounts) maintained with the ABL Administrative Agent and used to repay borrowings under the ABL Facility, subject to customary exceptions, limitations and thresholds to be agreed in accordance with the ABL Documentation Principles.
 
“Cash Dominion Period ” means (a) the period from the date that Excess Availability shall have been less than the greater of (x) 10.0% of the Line Cap and (y) $25.0 million for five consecutive business days to the date Excess Availability shall have been at least the greater of (x) 10.0% of the Line Cap and (y) $25.0 million for thirty consecutive calendar days or (b) upon the occurrence of a Specified Default, the period that such Specified Default shall be continuing.
 
“ Excess Availability ” shall mean, at any time, the difference of (a) the Line Cap at such time minus (b) the sum of (i) aggregate principal amount of all ABL Loans and swingline loans then outstanding, (ii) the maximum aggregate stated amounts of all then-outstanding letters of credit and (iii) all amounts drawn but unreimbursed under letters of credit at such time, in each case under the ABL Facility.
 
“ Eligible Borrowing Base Cash ” shall mean the amount of unrestricted cash of the Borrower and the ABL Guarantors at such time to the extent held in U.S. dollars in investment or depository accounts (a) with the ABL Administrative Agent or (b) with Lenders and subject to a customary account control agreement (shifting control) in favor of, the ABL Administrative Agent; provided that if the Borrowing Base includes Eligible Borrowing Base Cash, each borrowing notice shall include the amount of Eligible Borrowing Base Cash as of the close of business on the business day prior to the date of such notice. The Borrower shall be required to report the amount of Eligible Borrowing Base Cash held with institutions other than the ABL Administrative Agent to the ABL Administrative Agent on a bi-weekly basis (or, at any time that no loans are then outstanding and the aggregate stated amounts of all then-outstanding letters of credit is less than an amount to be agreed, on a monthly basis).	
		
Mandatory Prepayments :	  	If at any time, the aggregate amount of outstanding ABL Loans, unreimbursed letter of credit drawings and undrawn letters of credit under the ABL Facility exceeds the Line Cap, then the Borrower will within three business days repay outstanding ABL Loans and cash collateralize outstanding letters of credit in an aggregate amount equal to such excess, with no reduction of the ABL Commitments.
 
Following the occurrence and during the continuation of a Cash Dominion Period, all cash receipts (with exceptions to be agreed in the ABL Loan Documentation) will be promptly applied by the ABL Administrative Agent to repay outstanding ABL Loans and, if an event	
 
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	  	of default exists and the Required Lenders so direct, to cash collateralize outstanding Letters of Credit.	
		
Voluntary Prepayments/Reductions in Commitments :	  	Voluntary reductions of the unutilized portion of the ABL Commitments and voluntary prepayments of borrowings under the ABL Facility will be permitted at any time, in minimum principal amounts consistent with the ABL Documentation Principles, without premium or penalty, subject to reimbursement of the ABL Lenders’ redeployment costs actually incurred in the case of a prepayment of Adjusted LIBOR borrowings other than on the last day of the relevant interest period.	
		
Limited Condition Transactions :	  	The ABL Loan Documents will include limited condition transaction provisions substantially consistent with those set forth in the Term Loan Documents.	
		
Representations and Warranties :	  	Subject to the Certain Funds Provisions and limited to the representations and warranties (to be applicable to the Borrower and its restricted subsidiaries only and as qualified by disclosure schedules to be delivered by the Borrower on the Closing Date containing information necessary to make such representations and warranties accurate and complete on the Closing Date) expressly set forth in the Term Facility Term Sheet, with only corresponding changes to reference and reflect the ABL Facility (and in any event no less favorable to the Borrower and its subsidiaries than those set forth in the Term Loan Documents).	
		
Conditions Precedent to Initial Borrowing on the Closing Date :	  	Limited to the Financing Conditions (including and subject to the Certain Funds Provisions).	
		
Conditions Precedent to Each Borrowing after the Closing Date :	  	After the Closing Date, subject to any LCA Election rights, the making of each extension of credit under the ABL Facility shall be conditioned upon (a) delivery of a customary borrowing/issuance notice, (b) the making and accuracy of representations and warranties in all material respects (or, if any such representations or warranties are qualified by materiality, material adverse effect or similar language, they shall be true and correct in all respects), (c) the absence of defaults or events of default and (d) availability under the Borrowing Base.	
		
Affirmative Covenants :	  	Limited to the affirmative covenants expressly set forth in the Term Facility Term Sheet (to be applicable to the Borrower and its restricted subsidiaries only), with only corresponding changes to reference the ABL Facility and to (x) add the requirements set forth above (i) to deliver the Borrowing Base Certificates, (ii) financial covenant compliance certificates and (iii) in the first paragraph under “Cash Management and Cash Dominion”. In addition, the ABL Administrative Agent may conduct up to one (1) field examination and one (1) inventory appraisal (each at the expense of the Borrower) during any calendar year (with an additional field exam and inventory appraisal during the same calendar year, in each case, at the expense of the Lenders or Administrative Agent); provided that (i) at any time after the date on which Specified Excess Availability has been less than	
 
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	  	the greater of (x) $37.5 million and (y) 15% of the Line Cap for five consecutive business days, field examinations and inventory appraisals may each be conducted (at the expense of the Borrower) two (2) times during such calendar year or (ii) at any time during the continuation of a Specified Default, field examinations and inventory appraisals, may be conducted (at the expense of the Borrower) as frequently as reasonably determined by the ABL Administrative Agent in its Permitted Discretion.	
		
Negative Covenants :	  	Limited to the following (to be applicable to the Borrower and its restricted subsidiaries and subject to the ABL Documentation Principles):
 
(a) liens securing indebtedness with baskets for (i) liens (other than liens securing a securitization with accounts receivable, inventory and proceeds) securing (1)  pari passu first lien debt subject to a pro forma First Lien Net Leverage Ratio of no greater than the Closing Date First Lien Net Leverage Ratio or such ratio prior to such lien’s attachment and (2) junior lien debt subject to a Total Net Leverage Ratio of no greater than the Closing Date Total Net Leverage Ratio or such ratio prior to such lien’s attachment, in each case calculated on a pro forma basis and excluding the cash proceeds of such proposed debt for netting purposes; (ii) a general basket equal to $225 million; (iii) liens on the Collateral securing the other Facilities (including Incremental Facilities, Incremental ABL Facilities, Incremental Equivalent Debt and any permitted refinancing thereof); (iv) liens on assets of non-Loan Party subsidiaries; (v) liens on assets that do not constitute Collateral, not in excess of an amount to be agreed; (vi) other baskets and exceptions consistent with the ABL Documentation Principles or as otherwise agreed by the Borrower and the Lead Arrangers;
 
(b) investments with baskets for (i) loans and advances to officers, directors and employees (x) to acquire equity in the Borrower or any parent thereof or for other customary purposes (e.g. travel, entertainment, relocation) and (y) otherwise not in excess of $20 million outstanding; (ii) investments in connection with the Transactions, (iii) investments in restricted subsidiaries (including entities that become restricted subsidiaries in connection with such investment), with a cap on investments in non-Loan Parties in an amount to be agreed; (iv) investments in unrestricted subsidiaries and similar business investments in an amount not to exceed $160 million; (v) a general basket equal to $320 million; (vi) Permitted Acquisitions; (vii) unlimited investments (including Permitted Acquisitions) when the Payment Conditions are satisfied; and (viii) other baskets and exceptions consistent with the ABL Documentation Principles or as otherwise agreed by the Borrower and the Lead Arrangers);
 
(c) debt with baskets for (i) contribution indebtedness (at 2x the aggregate cash or fair market value contributed); (ii) Ratio Debt (as defined below); (iii) capital lease/purchase money debt of $160 million without regard to any capital leases or purchase money indebtedness scheduled on the Closing Date; (iv) non-Loan Party debt equal to $160 million plus additional amounts in the form of working capital or	
 
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	  	other local lines of credit so long as not secured by Collateral and non-recourse to the Loan Parties; (v) cash collateralized letters of credit; (vi) non-speculative hedging arrangements and cash management arrangements; (vii) any indebtedness of the Company incurred or issued prior to the Closing Date which remains outstanding and is permitted to remain outstanding under the Acquisition Agreement; (ix) indebtedness arising from agreements providing for adjustments of purchase price or “earn outs” entered into in connection with acquisitions, (x) debt incurred and/or assumed in connection with a Permitted Acquisition or other permitted investment (subject in the case of (1) any such incurred debt only to the requirements applicable to the incurrence of Ratio Debt or (2) any such assumed debt only, that such assumed debt is not created in anticipation of such acquisition or investment), with a cap on such debt of non-Loan Parties in an amount to be agreed; (xi) the Facilities (including Incremental Facilities, Incremental ABL Facilities, Incremental Equivalent Debt and any permitted refinancing thereof); (xii) Refinancing Facilities; (xiii) a general basket equal to $225 million; (xiv) additional unsecured unlimited amounts with respect to indebtedness maturing outside the ABL Facility subject to the satisfaction of the Payment Conditions on a pro forma basis; and (xv) other baskets and exceptions consistent with the ABL Documentation Principles or as otherwise agreed by the Borrower and the Lead Arrangers;
 
(d) fundamental changes (which shall permit unlimited permitted investments consummated as mergers or consolidations in accordance with the Documentation Principles);
 
(e) dispositions, with a basket for (i) unlimited dispositions (the “ General Dispositions Basket ”) subject to receipt of fair market value and 75% cash or cash equivalent consideration (subject to exceptions to be set forth in the ABL Loan Documents, which will include a basket of an amount to be agreed for non-cash consideration that may be designated as cash consideration); provided, that if the disposition of assets pursuant to clause (i) decreases the Borrowing Base by $25 million or more (after giving effect thereto), the Borrower shall deliver a pro forma Borrowing Base Certificate on or prior to the date of such sale (or such later date as the Administrative Agent may agree), (ii) dispositions in connection with licensing of intellectual property to non-guarantor restricted subsidiaries in connection with bona fide tax planning purposes as determined in good faith by the Borrower), (iii) a de minimis basket for dispositions of property with a fair market value less than $10 million per transaction or series of related transactions or $50 million in the aggregate in any fiscal year and (iv) other baskets and exceptions consistent with the ABL Documentation Principles or as otherwise agreed by the Borrower and the Lead Arrangers;
 
(f) restricted payments, with baskets for (i) equity buybacks upon death, disability or termination (etc.) subject to a cap of $30 million per fiscal year with rollover of unused amounts to subsequent calendar years; (ii) other equity redemptions up to $25 million per fiscal year; (iii) tax distributions equal to the Borrower’s taxable income (determined, if the Borrower is a disregarded entity for U.S. federal income tax purposes,	
 
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	  	as if the Borrower were instead a partnership for U.S. federal income tax purposes) multiplied by the highest marginal combined federal, state and local income tax rate applicable to any direct or indirect owner (other than a person owning indirectly through an entity that is treated as a corporation for U.S. federal income tax purposes) of the Borrower (or the Borrower’s regarded parent if the Borrower is a disregarded entity for U.S. federal income tax purposes), taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes (and any limitations thereon) and not subject to cap or clawback; (iv) payment of legal, accounting and other ordinary course corporate overhead or other operational expenses of any such parent not to exceed an amount to be agreed in any fiscal year and for the payment of franchise or similar taxes; (v) dividends, distributions or redemptions in connection with the Transactions; (vi) a general basket equal to $200 million, subject to no event of default; (vii) additional restricted payments subject only to compliance with the RP Payment Conditions; and (viii) other baskets and exceptions consistent with the ABL Documentation Principles or as otherwise agreed by the Borrower and the Lead Arrangers);
 
(g) transactions with affiliates in excess of $20 million per transaction or a series of related transactions;
 
(h) restrictions on negative pledge clauses; and
 
(j) prepaying material junior lien or unsecured debt for borrowed money that is contractually subordinated in right of payment to the ABL Facility and in excess of an amount to be agreed (the “ Junior Debt ”), or amendments of the documents governing such Junior Debt in a manner (when taken as a whole) materially adverse to the Lenders (when taken as a whole), which will permit, among other things, (i) regularly scheduled principal and interest, (ii) refinancing or exchanges of Junior Debt for other Junior Debt maturing no earlier, and not having a shorter weighted average life, than the Junior Debt being so refinanced or exchanged ( provided that such refinancing or exchange indebtedness shall be subordinated indebtedness if the Junior Debt so refinanced or exchanged was subordinated debt), (iii) conversion of Junior Debt to common or “qualified preferred” equity, (iv) a general basket equal to $200 million, subject to no event of default; (v) unlimited prepayments, purchases or redemptions of Junior Debt when the RP Payment Conditions are satisfied and (vi) other baskets and exceptions consistent with the ABL Documentation Principles and such other baskets and exceptions as otherwise agreed by the Borrower and the Lead Arrangers).
 
All dollar baskets will include a growing concept based on Consolidated EBITDA. The general basket for restricted payments may alternatively be used for investments and/or prepayments of Junior Debt, and the general basket for prepayments of Junior Debt may alternatively be used for restricted payments and/or investments. The Borrower shall be permitted to reclassify its debt and liens (other than debt under and liens securing the Facilities) incurred among baskets without limitation.

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	  	The Borrower and/or any restricted subsidiary will be permitted to make acquisitions of all or substantially all of the assets or a majority of the equity interests of a person or a line of business (each, a “ Permitted Acquisition ”), so long as (i) before and after giving effect thereto, no event of default has occurred and is continuing (or, in the case of a Limited Condition Transaction, at the Borrower’s option, at the time of execution of a definitive acquisition agreement, in which case no payment or bankruptcy event of default has occurred and is continuing at the time of consummation thereof), (ii) after giving effect thereto, the Borrower is in compliance with the permitted lines of business covenant and (iii) solely to the extent required by, and subject to the limitations set forth in “Guarantees” and “Security” above, the acquired company and its subsidiaries (other than any subsidiaries of the acquired company designated as an unrestricted subsidiary as provided in “Unrestricted Subsidiaries” below) will become Guarantors and pledge their Collateral to the ABL Administrative Agent.
 
The Borrower and any restricted subsidiary will be permitted to incur indebtedness (“ Ratio Debt ”) so long as, subject to the Borrower’s LCA Election rights (a) before and after giving effect thereto, no payment or bankruptcy event of default has occurred and is continuing and (b) the aggregate principal amount of such Ratio Debt outstanding may not exceed after giving effect to the incurrence of such debt and the application of the proceeds thereof on a pro forma basis, as of the last day of the most recently ended fiscal quarter of the Borrower for which internal financial statements are available, an amount equal to the Ratio Debt Cap.
 
The Ratio Debt Cap means an amount equal to $100 million plus the Ratio Incremental Amount.
 
“ Ratio Incremental Amount ” means:
 
(a) with respect to Ratio Debt to be secured by liens on a pari passu basis with the Term Facility and subject to a customary intercreditor agreement, the Borrower’s First Lien Net Leverage Ratio exceeding (i) the Closing Date First Lien Net Leverage Ratio or (ii) such ratio prior to such incurrence;
 
(b) with respect to Ratio Debt secured on a junior lien basis to the ABL Facility and subject to a customary intercreditor agreement, the Borrower’s Total Net Leverage Ratio exceeding (i) the Closing Date Total Net Leverage Ratio or (ii) such ratio prior to such incurrence; or
 
(c) with respect to unsecured Ratio Debt, either (i) the Borrower’s Total Net Leverage Ratio exceeding (x) the Closing Date Total Net Leverage Ratio or (y) such ratio prior to such incurrence or (ii) the Borrower’s Interest Coverage Ratio being no less than (x) 2.00:1.00 or (y) the Interest Coverage Ratio immediately prior to such incurrence,
 
in each case, as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, calculated in each case on a pro forma basis (excluding	
 
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	  	the cash proceeds to the Borrower of any then proposed Ratio Debt for netting purposes).
 
Compliance with a negative covenant in the ABL Loan Documents may be permitted in part by one basket or exception and in part by another, in the Borrower’s discretion, and the Borrower may designate and redesignate (the “ Redesignation ”) (on or after any applicable date) the baskets or exceptions available to it on such date (or any later date) upon with compliance is based.
 
Unless the Borrower elects otherwise, compliance will be deemed to be first pursuant to a basket or exception based on a financial ratio (to the maximum extent permitted by such basket or exception) prior to being determined to pursuant to any other basket or exception, including those based on a fixed dollar amount.
 
“ Payment Conditions ” shall mean the following: (i) no Specified Default exists or would arise after giving effect to the relevant transactions, (ii) pro forma compliance for the four fiscal quarters most recently preceding such transaction or payment for which financial statements are available with a Fixed Charge Coverage Ratio of at least 1.00:1.00 and (iii) the Borrower’s having Specified Excess Availability (and with a 30-day lookback) in excess of the greater of (x) $31.25 million and (y) 12.5% of the Line Cap; provided however that the condition set forth in clause (ii) shall not be applicable if the Borrower has Specified Excess Availability in excess of the greater of (x) $43.75 million and (y) 17.5% of the Line Cap, in each case, on a pro forma basis immediately after giving effect to such transaction.
 
“ RP Payment Conditions ” shall mean the following: (i) no Specified Default exists or would arise after giving effect to the relevant transactions, (ii) pro forma compliance for the four fiscal quarters most recently preceding such transaction or payment for which financial statements are available with a Fixed Charge Coverage Ratio of at least 1.00:1.00 and (iii) the Borrower’s having Specified Excess Availability (and with a 30-day lookback) in excess of the greater of (x) $37.5 million and (y) 15% of the Line Cap; provided however that the condition set forth in clause (ii) shall not be applicable if the Borrower has Specified Excess Availability in excess of the greater of (x) $50 million and (y) 20% of the Line Cap, in each case, on a pro forma basis immediately after giving effect to such transaction.	
		
ABL Financial Covenant :	  	Upon the occurrence and during the continuance of a Covenant Trigger Event, the Fixed Charge Coverage Ratio (as defined on Exhibit F to the Commitment Letter) as of the last day of any fiscal quarter shall not be less than 1.00:1.00, to be tested on the last day of any fiscal quarter (including at the time of occurrence of such Covenant Trigger Event and each subsequent fiscal quarter of the Borrower ending during the continuance of such Covenant Trigger Event) for which financial statements are required to have been delivered, on a trailing four quarter basis.
 
“ Covenant Trigger Event ” means Specified Excess Availability (as defined below) shall be less than either (a) the greater of (i) $25 million	
 
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	  	and (ii) 10.0% of the Line Cap for 2 consecutive Business Days or (b) the greater of (i) $18.75 million and (ii) 7.5% of the Line Cap at any time, and shall continue until Specified Excess Availability is equal to or exceeds such amount as reflected on a Borrowing Base Certificate delivered to the ABL Administrative Agent for a period of 20 days after Specified Excess Availability is equal to or exceeds such amount.
 
For purposes of determining compliance with the ABL Financial Covenant, any cash equity contribution (which shall be common equity or otherwise on terms reasonably acceptable to the ABL Administrative Agent) made to the Borrower after the beginning of the most recently ended fiscal quarter and on or prior to the day that is 10 business days after the day on which financial statements are required to be delivered for such fiscal quarter will, at the request of the Borrower, be included in the calculation of Consolidated EBITDA solely for the purposes of determining compliance with such ABL Financial Covenant at the end of such fiscal quarter and applicable subsequent periods which include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “ Specified Equity Contribution ”); subject solely to following conditions: (a) there shall be no more than two quarters in each four consecutive fiscal quarter period in respect of which a Specified Equity Contribution is made, (b) the amount of any Specified Equity Contribution shall be no more than the amount expected to be required to cause the Borrower to be in pro forma compliance with the ABL Financial Covenant specified above, (c) no more than five Specified Equity Contributions shall be made during the term of the ABL Facility, (d) all Specified Equity Contributions shall be disregarded for purposes of any financial ratio determination under the ABL Loan Documents other than for determining compliance with the ABL Financial Covenant and (e) there shall be no pro forma or other reduction in indebtedness with the proceeds of any Specified Equity Contribution for determining compliance with the ABL Financial Covenant unless such proceeds are actually applied to prepay indebtedness. The ABL Loan Documents will contain a customary standstill provision with respect to the declaration of an event of default and/or exercise of remedies during the period in which a Specified Equity Contribution could be made but the Borrower shall not be permitted to borrow or obtain new letters of credit during such period.
 
“ Specified Excess Availability ” shall mean the sum of (i) Excess Availability and (ii) the amount by which the Borrowing Base at such time exceeds the ABL Commitments, up to an amount not to exceed 2.5% of ABL Commitments.	
		
Unrestricted Subsidiaries :	  	The ABL Loan Documents will permit the Borrower to designate any existing or subsequently acquired or organized subsidiary as an “unrestricted subsidiary” and subsequently re-designate any such unrestricted subsidiary as a restricted subsidiary; provided that (a) no Specified Default exists or would result therefrom at the time of designation and (b) the Borrower is in compliance with the Payment Conditions. The designation of any unrestricted subsidiary as a restricted subsidiary will be deemed to be an incurrence at the time of	
 
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	  	such designation of indebtedness of such subsidiary or liens on the assets of such subsidiary, in each case, outstanding on the date of such designation. The designation of any subsidiary as an unrestricted subsidiary will constitute an investment for purposes of the investments negative covenant described under the caption “Negative Covenants” above.
 
Unrestricted Subsidiaries will not be subject to the representations and warranties, covenants or events of default of the ABL Loan Documents and the results of operations and indebtedness of unrestricted subsidiaries will not be taken into account for purposes of determining any financial ratio or covenant contained in the ABL Loan Documents, and any cash or cash equivalents of any unrestricted subsidiary will not be taken into account for purposes of any net debt test under the ABL Loan Documents.	
		
Events of Default :	  	Limited to the following (to be applicable to the Borrower and its restricted subsidiaries): nonpayment of principal, interest, letter of credit reimbursement obligations and fees (with not less than a five business day grace period for interest and fees); failure to perform negative covenants, the ABL Financial Covenant and affirmative covenant to provide notice of default or maintain the Borrower’s corporate existence; failure to deliver a Borrowing Base Certificate when required (subject to (a) five business day grace period or (b) two business day grace period if the Borrower is required to compute the Borrowing Base and deliver a Borrowing Base Certificate on a weekly basis as a result of a Weekly Borrowing Base Event); failure to perform under the Cash Management and Cash Dominion covenant (subject to a five business day grace period); failure to perform other covenants subject to a 30-day cure period after the earlier to occur of the date on which an executive officer of the Borrower becomes aware of such default and the date on which notice of default from the ABL Administrative Agent is received; any representation or warranty incorrect in any material respect when made; cross-acceleration and cross-default to continuing defaults under other material indebtedness in an aggregate principal amount in excess of the Threshold Amount (other than indebtedness held exclusively by subsidiaries); bankruptcy and similar proceedings of the Borrower or a material subsidiary; material monetary judgment defaults in excess of the Threshold Amount (to the extent not covered by insurance or other indemnity); ERISA events subject to no material adverse effect; invalidity (actual or asserted by the Borrower or any other subsidiary) of the ABL Loan Documents, the ABL Guarantees, the Intercreditor Agreement, a material security interest or a material portion of the Collateral; and change of control. “ Threshold Amount ” will be defined as the greater of (x) $80 million and (y) 12.5% of the Borrower’s Consolidated EBITDA for the most recently ended period of four fiscal quarters for which financial statements are available, calculated on a pro forma basis.	
		
Voting :	  	Amendments and waivers of the ABL Loan Documents will require the approval of Lenders (the “ Required ABL Lenders ”) holding more than	
 
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	  	50% of the aggregate amount of loans and commitments under the ABL Facility, except that: (a) the consent of each ABL Lender directly and adversely affected thereby shall be required with respect to (i) increases in commitments of such Lender, (ii) reductions of principal, interest (other than default interest) or fees owed to such Lender (it being understood and agreed that the waiver of any mandatory prepayment, default interest, default or event of default will only require the consent of the Required ABL Lenders), (iii) extensions of scheduled amortization, date of payment of interest or any fee or final maturity (it being understood and agreed that the waiver of any mandatory prepayment, default interest, default or event of default will only require the consent of the Required ABL Lenders) and (iv) changes to the pro rata sharing provisions (with exceptions for certain transactions and actions to be agreed, including amend and extend transactions and defaulting lender actions); (b) the consent of 100% of the ABL Lenders will be required with respect to (i) changes in voting thresholds and (ii) subordination or releases of liens on all or substantially all of the Collateral or all or substantially all of the aggregate value of the ABL Guarantees (other than in connection with any transfer or other release of Collateral or of the relevant Guarantor permitted by the ABL Loan Documents); (c) the consent of a supermajority (66.7%) of the ABL Commitments (or, if the ABL Commitments have been terminated, outstanding ABL Loans) will be required for any changes to the Borrowing Base definition or the component definitions thereof which result in increased borrowing availability; and (d) the consent of the ABL Administrative Agent and the Swingline Lender or Issuing Bank will be required to amend, modify or otherwise affect the rights and duties of the ABL Administrative Agent, such Swingline Lender or Issuing Bank, as the case may be. Notwithstanding the foregoing, only the consent of the Required ABL Lenders shall be required to waive the ABL Financial Covenant (or any component definition thereof to the extent applicable thereto) and not the consent of any other Lender. Disqualified Lenders will have limited voting rights (consistent with defaulting lenders) under the ABL Facility and will be required to assign all loans and commitments then owned by such Disqualified Lender to another lender (other than a Defaulting Lender) or eligible assignee (and the Borrower shall be entitled to seek specific performance in any applicable court of law or equity to enforce this sentence), subject to customary provisions and limitations.	
		
	  	The ABL Loan Documents shall contain customary provisions for replacing (i) non-consenting Lenders in connection with amendments and waivers requiring the consent of all Lenders or of all Lenders affected thereby so long as relevant Lenders holding more than 50% of the aggregate amount of the loans and commitments under the relevant Facilities have consented thereto, (ii) non-extending ABL Lenders, (iii) defaulting ABL Lenders, and (iv) ABL Lenders claiming increased costs, taxes gross-ups and similar required indemnity payments	
		
	  	The Facilities Documentation will contain customary “amend and extend” and “refinancing” provisions (on terms consistent with the Documentation Principles) pursuant to which the Borrower may refinance or extend commitments and/or outstandings pursuant to one	
 
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	  	or more tranches with only the consent of the respective extending or refinancing lenders; it being understood that each Lender under the applicable tranche or tranches that are being extended or refinanced shall have the opportunity to participate in such extension or refinancing on the same terms and conditions as each other lender in such tranche or tranches; provided that it is understood that no existing Lender will have any obligation to commit to any such extension or refinancing.	
		
Yield Protection and Increased Costs :	  	Usual for facilities and transactions of this type, including customary tax gross-up provisions and customary protections for increased costs imposed as a result of the Dodd-Frank Act or Basel III.	
		
Defaulting Lenders :	  	Consistent with the Documentation Principles. At the Borrower’s option, the Borrower may prepay the loans and/or terminate the commitments of any defaulting lender without penalty or premium.	
		
Assignments and Participations :	  	The ABL Lenders will be permitted to assign loans and commitments (other than to natural persons and Disqualified Lenders) with the consent of the Borrower, the ABL Administrative Agent, the Swingline Lender and the Issuing Bank (in each case, such consent not to be unreasonably withheld, delayed or conditioned, it being agreed that it shall be reasonable to withhold consent to assignment to a Disqualified Lender); provided that no consent of the Borrower shall be required after the occurrence and during the continuance of a payment or bankruptcy event of default with respect to the Borrower or in the case of an assignment to a Lender, an affiliate of a Lender or an approved fund. The Borrower will be deemed to have consented to an assignment unless it objects thereto by written notice (including via email) to the ABL Administrative Agent within 10 business days after having received written notice of a request for such consent from the ABL Administrative Agent.
 
Each assignment will be in a minimum amount of $2.5 million. The ABL Administrative Agent will receive a processing and recordation fee of $3,500, payable by the assignor and/or the assignee, with each assignment. Loans and commitments in respect of the ABL Facility will not be permitted to be assigned to the Borrower or any of its affiliates. Each prospective assignee and participant will be required to represent that it is not a Disqualified Lender or an affiliate of a Disqualified Lender, in each case to the extent a list of Disqualified Lenders has been made available to the prospective assignee or participant, as applicable. As used herein, “ approved fund ” means, with respect to any Lender, any fund that is administered, advised or managed by (i) such Lender, (ii) an affiliate of such Lender or (iii) any entity or an affiliate of an entity that administers, advises or manages such Lender.
 
The ABL Lenders will be permitted to participate loans and commitments (other than to natural persons and Disqualified Lenders). Voting rights of participants will be limited to matters in respect of (i) increases in commitments participated to such participant, (ii) reductions of principal, interest (other than default interest) or fees	
 
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	  	in respect of loans participated to such participant (it being understood and agreed that the waiver of any mandatory prepayment, default interest, default or event of default will not require the consent of such participant), (iii) extensions of scheduled amortization, date of payment of interest and any fee or final maturity (it being understood and agreed that the waiver of any mandatory prepayment, default interest, default or event of default will not require the consent of such participant), and (iv) releases of all or substantially all of the Collateral or all or substantially all of the aggregate value of the Guarantees (other than in connection with any sale of Collateral or of the relevant Guarantor permitted by the ABL Loan Documents).
 
Notwithstanding anything in the ABL Loan Documents to the contrary, the ABL Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of the ABL Loan Documents relating to Disqualified Lenders. Without limiting the generality of the foregoing, the ABL Administrative Agent in its capacity as such shall not (x) be obligated to ascertain, monitor or inquire as to whether any ABL Lender or participant in ABL Loans or prospective ABL Lender or participant in ABL Loans is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of ABL Loans, or ABL Commitments (in each case, except to the extent constituting gross negligence, bad faith or willful misconduct) disclosure of confidential information, to any Disqualified Lender.	
		
Expenses and Indemnification :	  	The expense and indemnification provisions to be set forth in the ABL Loan Documents will be substantially consistent with those set forth in Term Loan Documents and otherwise consistent with the ABL Documentation Principles.	
		
Governing Law and Forum :	  	New York.	
		
Counsel to ABL Administrative Agent and Lead Arrangers :	  	Simpson Thacher & Bartlett LLP.	
 
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ANNEX I TO EXHIBIT B

Interest Rates :	  	The interest rates under the ABL Facility will be as follows:	
		
	  	At the option of the Borrower, Adjusted LIBOR plus the Applicable Margin or ABR plus the Applicable Margin.	
		
	  	As used herein:	
		
	  	“ Adjusted LIBOR ” means the London interbank offered rate, adjusted for statutory reserve requirements; provided that “Adjusted LIBOR” shall be no less than 0.00% per annum.	
		
	  	“ ABR ” means, for any day, a rate per annum equal to the greatest of (a) the prime rate in effect of such day, (b) the NYFRB rate in effect on such day plus  1 ⁄ 2 of 1%, (c) the Adjusted LIBOR rate for a one-month interest period on such day (or if such day is not a business day, the immediately preceding business day) plus 1% and (d) 1.00% per annum.	
		
	  	“ Applicable Margin ” means with respect to the ABL Facility, initially (a) 0.50% per annum, in the case of ABR loans, and (b) 1.50% per annum, in the case of Adjusted LIBOR loans and subject to adjustment as specified in the following paragraph.
 
From and after the first full fiscal quarter completed after the Closing Date, the Applicable Margin under the ABL Facility shall be subject to adjustment based on Excess Availability, as follows:	

Excess Availability	  	Adjusted
LIBOR
loans	 	 	ABR
loans	 	
Less than 33.3%	  	 	1.75	% 	 	 	0.75	% 	
Less than 66.7% and equal to or greater than 33.3%	  	 	1.50	% 	 	 	0.50	% 	
Equal to or greater than 66.7%	  	 	1.25	% 	 	 	0.25	% 	

	  	Adjusted LIBOR borrowings may be made for interest periods of 1, 2, 3 or 6 (or, if agreed to by all applicable Lenders, 12) months or a shorter period as may be agreed by all applicable Lenders, as selected by the Borrower.	
		
	  	Interest on loans and all fees will be payable in arrears on the basis of a 360-day year (calculated on the basis of actual number of days elapsed), provided that interest on ABR loans, when based on the ABL Administrative Agent’s prime rate, will be payable in arrears on the basis of a 365-day year (or a 366-day year in a leap year), in each case calculated on the basis of the actual number of days elapsed. Interest will be payable on Adjusted LIBOR loans on the last day of the applicable interest period (and at the end of each three months, in the case of interest periods longer than three months) and upon prepayment, and on ABR loans quarterly and upon prepayment.	
		
Default Rate :	  	Upon and during the continuance of a payment or bankruptcy event of default, overdue amounts shall bear interest at, with respect to principal, the applicable interest rate plus 2.00% per annum and, with respect to any other amount, the interest rate applicable to ABR loans plus 2.00% per annum, and in each case shall be payable on demand.	
 
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Letter of Credit Fees :	  	A per annum fee equal to the Applicable Margin with respect to Adjusted LIBOR loans under the ABL Facility in effect from time to time will accrue on the aggregate face amount of outstanding letters of credit under the ABL Facility, payable in arrears at the end of each quarter and upon termination of the ABL Facility. Such fees shall be distributed to the applicable ABL Lenders pro rata in accordance with their commitments under the ABL Facility. In addition, the Borrower shall pay to each Issuing Bank, for its own account, (a) a fronting fee to be agreed upon on the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter and upon termination of the ABL Facility, and (b) the Issuing Bank’s customary issuance and administration fees.	
		
Commitment Fee :	  	Initially, 0.375% per annum on the average daily unused portion of the ABL Facility, payable quarterly in arrears. From and after the delivery by the Borrower to the Administrative Agent of the Borrower’s financial statements for the first full fiscal quarter of the Borrower completed after the Closing Date, the commitment fee shall be subject to one step-down to 0.25% based on Excess Availability during the preceding quarter of less than or equal to 50%.	
 
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CONFIDENTIAL	  	EXHIBIT C	
Project Apex
$2,700,000,000 Term Loan Facility
Summary of Principal Terms and Conditions
Capitalized terms used but not defined in this Exhibit C shall have the meanings set forth in the Commitment Letter to which this Exhibit B is attached or the other Exhibits to the Commitment Letter.

Borrower :	  	Amneal Pharmaceuticals LLC (the “ Borrower ”).	
		
Lead Arrangers and Bookrunners :	  	JPMCB, MLPFS and RBCCM (the “ Lead Arrangers ”).	
		
Term Administrative Agent and Term Collateral Agent :	  	JPMCB will act as the sole administrative agent and sole collateral agent (in such capacities, the “ Term Administrative Agent” and together with the ABL Administrative Agent, the “ Administrative Agent ”) for the Term Lenders.	
		
Additional Agents :	  	The Borrower may designate additional financial institutions to act as syndication agent, documentation agent or co-documentation agent.	
		
Transactions :	  	As described in Exhibit A to the Commitment Letter.	
		
Lenders :	  	JPMCB (or one of its affiliates), BANA (or one of its affiliates), Royal Bank (or one of its affiliates) and a syndicate of financial institutions and other lenders (the “ Term Lenders ” and together with the ABL Lenders, the “ Lenders ”) arranged by the Lead Arrangers and reasonably acceptable to the Borrower, excluding Disqualified Lenders.	
		
Term Facility :	  	A senior secured term loan facility (the “ Term Facility ”) in an aggregate principal amount of $2,700 million plus at the Borrower’s election, any Term Flex Increase (as defined in the Fee Letter).	
		
	  	Loans under the Term Facility (“ Term Loans ”) will be available to the Borrower in U.S. dollars.	
		
Incremental Facilities :	  	The Facilities Documentation for the Term Facility (the “ Term Loan Documents ”) will permit the Borrower to add one or more incremental term facilities or increase the Term Facility (each, an “ Incremental Facility ” and collectively, the “ Incremental Facilities ”) in minimum amounts consistent with the Term Documentation Principles.
 
The aggregate principal amount of Incremental Facilities may not exceed, subject to the Borrower’s rights in respect of a Limited Condition Transaction (“ LCA Election ”), the Incremental Facility Cap.
 
“ Incremental Facility Cap ” means an amount equal to the Incremental Fixed Amount plus the Incremental Ratio Amount.
 
“ Incremental Fixed Amount ” means the sum of (a) the greater of (i) $641 million and (ii) 100% of the Borrower’s Consolidated EBITDA for the most recently ended period of four fiscal quarters for which	
 
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	  	financial statements are available, calculated on a pro forma basis, plus (b) the aggregate principal amount of voluntary prepayments, redemptions, repurchases and other permanent reductions of Term Loans that are secured on a pari passu basis with the Term Loans (in each case, including all debt buybacks and yank-a-bank payment amounts with credit given to the actual purchase price paid in cash), voluntary prepayments of loans under the ABL Facility (with a corresponding commitment reduction), in each case, except to the extent such prepayments were funded with the proceeds of long-term indebtedness, minus (c) the aggregate principal amount incurred under any Incremental Facility and Incremental Equivalent Debt incurred in reliance on the Fixed Incremental Amount.
 
“Incremental Ratio Amount” means such amount as would not result in,
 
(a) with respect to Incremental Facilities secured on a pari passu basis with the Term Facility, the Borrower’s First Lien Net Leverage Ratio exceeding (i) the Closing Date First Lien Net Leverage Ratio or (ii) such ratio prior to such incurrence;
 
(b) with respect to Incremental Facilities secured on a junior lien basis to the Term Facility, the Borrower’s Total Net Leverage Ratio exceeding (i) the Closing Date Total Net Leverage Ratio or (ii) such ratio prior to such incurrence; or
 
(c) with respect to unsecured Incremental Facilities, either (i) the Borrower’s Total Net Leverage Ratio exceeding (x) the Closing Date Total Net Leverage Ratio or (y) such ratio prior to such incurrence or (ii) the Borrower’s Interest Coverage Ratio being no less than (x) 2.00:1.00 or (y) the Interest Coverage Ratio immediately prior to such incurrence,
 
in each case as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, calculated in each case on a Pro Forma Basis (excluding the cash proceeds to the Borrower of any then proposed Incremental Facility for netting purposes).
 
“ Closing Date First Lien Net Leverage Ratio ” means the First Lien Net Leverage Ratio on the Closing Date. “ Closing Date Total Net Leverage Ratio ” means the Total Net Leverage Ratio on the Closing Date. Each such ratio will be adjusted on the Closing Date to reflect the effect of any Term Flex Increase (as defined in the Fee Letter).
 
If the Borrower incurs indebtedness under an Incremental Facility (or Incremental Equivalent Debt) using the Fixed Incremental Amount on the same date that it incurs indebtedness using the Ratio Incremental Amount, the relevant ratio above will be calculated without regard to any incurrence of indebtedness under the Fixed Incremental Amount. Unless the Borrower elects otherwise, each Incremental Facility (or Incremental Equivalent Debt) will be deemed incurred first as Ratio Incremental Amount to the extent permitted, with any balance incurred under the Fixed Incremental Amount. Incremental Facilities will rank pari passu or junior in right of payment with the Initial Term Loans and	
 
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	  	will either be unsecured or secured by Liens that are pari passu with or junior to the Liens securing the Initial Term Loans.
 
The Borrower may classify, and may later reclassify, indebtedness incurred under an Incremental Facility (or Incremental Equivalent Debt) (the “ Incremental Reclassification ”) as incurred as, and in reliance on, the Fixed Incremental Amount, Ratio Incremental Amount, or both, on the date of incurrence and thereafter, to the extent permitted on the date of classification (or the date of any such reclassification).
 
The Incremental Facilities will be available at the request of the Borrower with consent required only from those lenders that agree, in their discretion, to participate in such Incremental Facility. Lenders providing an Incremental Facility will be reasonably acceptable to (a) the Borrower and (b) the Term Administrative Agent (but only to the extent such person would otherwise have a consent right to an assignment of such loans to such lender, such consent not to be unreasonably withheld, conditioned or delayed). The Term Loan Documents may be amended as may be necessary to give effect to any Incremental Facility with the consent of the Borrower, the Term Administrative Agent and Lenders providing such Incremental Facility, including such amendments as may be necessary or advisable to have such facility fungible with the Initial Term Loans or other Incremental Facilities.
 
The incurrence of indebtedness under an Incremental Facility will be subject to only the following conditions and to any other conditions agreed between the lenders under the Incremental Facility and the Borrower, measured on the date such facilities are incurred, in each case subject to the Borrower’s LCA Election rights: (i) no event of default (or, in the case of a Permitted Acquisition or other permitted investment, no payment or bankruptcy event of default) under the Term Facility has occurred and be continuing or would result therefrom and (ii) all representations and warranties must be true and correct in all material respects immediately prior to, and after giving effect to, the incurrence of such Incremental Facility; provided that in connection with any Permitted Acquisition or other permitted investment that constitutes a Limited Condition Transaction, such representations and warranties may be limited to the Specified Representations
 
The Term Loan Documents will also require that:
 
(i) the final maturity date of any Incremental Facility be no earlier than the final maturity date for the Term Loans incurred on the Closing Date (the “ Initial Term Loans ”); provided that this clause (i) will not apply to up to $160 million (or if greater 25% of Consolidated EBITDA for the most recently ended period of four fiscal quarters for which financial statements are available, calculated on a pro forma basis) in aggregate initial principal amount of (at the Borrower’s option) Incremental Facilities or Incremental Equivalent Debt (the “ Inside Maturity Basket ”);
 
(ii) the weighted average life to maturity of any Incremental Facility be no shorter than the remaining weighted average life to maturity of the Initial Term Loans (without giving effect to any amortization or	
 
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	  	prepayments on the Initial Term Loans); provided that this clause (ii) will not apply to the Inside Maturity Basket;
 
(iii) the interest margins for any Incremental Facility will be determined by the Borrower and the lenders of such Incremental Facility; provided , that if the yield for any Incremental Facility incurred during the first six months following the Closing Date and secured on a pari passu basis with the Initial Term Loans (excluding any Incremental Facility (A) incurred in reliance on the Ratio Incremental Amount, (B) that has an outside maturity date at least one year after the latest maturity date of the Initial Term Loans at the time of incurrence thereof, (C) incurred in connection with a Permitted Investment), or (D) in an aggregate original principal amount up to $320 million (or if greater 50% of Consolidated EBITDA for the most recently ended period of four fiscal quarters for which financial statements are available, calculated on a pro forma basis)), is greater than the yield for the Initial First Lien Term Loans by more than 75 basis points (the “ Yield Differential ”), then the interest margins for the Initial Term Loans will be increased to the extent necessary so that the yield for such Incremental Facility is not more than 75 basis points higher than the yield for the Initial Term Loans (the “ MFN Provision ”);
 
(iv) any Incremental Facility will share on a pro rata basis or less than a pro rata basis (but not on a greater than pro rata basis except for prepayments with the proceeds of a refinancing and in respect of an earlier maturing tranche) in any mandatory prepayments of the Initial Term Loans, and
 
(v) except as otherwise set forth herein, all other terms of any Incremental Facility will be on terms and pursuant to documentation to be determined by the Borrower and the providers of such Incremental Facility; provided that to the extent such terms are not consistent with the Term Loan Documents, such terms shall be reasonably satisfactory to the Term Administrative Agent and the Borrower.
 
For purposes of determining the Yield Differential, (i) original issue discount (“ OID ”) or upfront fees (which will be deemed to constitute like amounts of OID) payable by the Borrower for the account of the Lenders with respect to the Initial Term Loans or the Incremental Facility in the primary syndication thereof will be included, (ii) arrangement, ticking, commitment or similar fees will be excluded (to the extent not paid or payable generally to all applicable lenders) and (iii) if the LIBOR or ABR floor for the Incremental Facility is greater than the LIBOR or ABR floor, respectively, for the Initial Term Loans, the difference between such floor for the Incremental Facility and the Initial Term Loans will be equated to an increase in interest margins, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing Initial Term Loans will be increased by such difference. OID will be measured with reference to the loan proceeds received by the Borrower (and not with reference to any price at which loans are assigned) and will be equated to interest based on an assumed four-year life to maturity.
 
The Borrower may, in lieu of adding Incremental Facilities, utilize any part of the Incremental Facility Cap to incur (i) notes and/or loans that	
 
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	  	will be secured by liens that have the same priority as the liens that secure the Initial Term Loans (“ Parity Lien Debt ”), (ii) notes and/or loans that will be secured by liens that are junior in priority to the liens that secure the Initial Term Loans (“ Junior Lien Debt ”) and/or (iii) unsecured notes and/or loans (“ Unsecured Debt ” and, together with Parity Lien Debt and Junior Lien Debt, “ Incremental Equivalent Debt ”); provided that:
 
(a) Incremental Equivalent Debt will be capped at the Incremental Facility Cap;
 
(b)(i) any Parity Lien Debt will not mature prior to the final maturity date of, or have a shorter weighted average life than, the Initial Term Loans (without giving effect to any amortization or prepayments on the Initial Term Loans); provided that this clause (i) will not apply to the Inside Maturity Basket and (ii) any Junior Lien Debt or Unsecured Debt (other than bridge facilities) will not have a final maturity date, or have scheduled amortization, prior to the date that is 91 days following the final maturity date of the Initial Term Loans,
 
(c) any mandatory prepayments of Parity Lien Debt will be made on a pro rata basis or less than a pro rata basis (but not on a greater than pro rata basis except for prepayments with the proceeds of a refinancing and in respect of an earlier maturing tranche) with mandatory prepayments of the Initial Term Loans and any mandatory prepayments of any Junior Lien Debt or Unsecured Debt may not be made except to the extent that prepayments are made, to the extent required under the Term Facility or any Parity Lien Debt, first pro rata to the Facilities and any such Parity Lien Debt,
 
(d) any secured Incremental Equivalent Debt will be secured by liens on Collateral only (and not on any other assets) and subject to a usual and customary intercreditor agreement,
 
(e) any Incremental Equivalent Debt will not be guaranteed by any subsidiaries of the Borrower other than the Loan Parties (as defined below), and
 
(f) Incremental Equivalent Debt will not be subject to any “most favored nations” pricing provisions, except that any Incremental Equivalent Debt in the form of term loans that is secured on a pari passu basis with the Initial Term Loans will be subject to the MFN Provision.	
		
Refinancing Facilities :	  	The Borrower may refinance loans and commitments under the Term Facility on a dollar-for dollar basis, from time to time, in whole or part, with one or more tranches of secured or unsecured indebtedness (such indebtedness, a “ Refinancing Facility ”). Providers of a Refinancing Facility issued under the Term Loan Documents must be reasonably acceptable to the Borrower and the Term Administrative Agent; provided , that consent of the Term Administrative Agent will be required only to the extent it would have a consent right to an assignment of Term Loans to such provider and such consent may not to be unreasonably withheld, conditioned or delayed.

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	  	The Term Loan Documents will contain customary limitations and restrictions applicable to Refinancing Facilities in accordance with the Term Documentation Principles.	
		
Term Documentation Principles :	  	The definitive documentation for the Term Loan Facility will (a) initially be prepared by counsel to the Borrower, (b) subject to the “flex” provisions contained in the Fee Letter, contain the terms and conditions set forth in this Exhibit C , (c) reflect the operational and strategic requirements of the Borrower and its subsidiaries, (d) be consistent with the proposed business plan and the Model, (e) shall be based upon the facilities documentation for the transaction identified to us as “Mariposa” and related documentation (collectively, the “ Identified Precedent ”), taking into account differences in the industry of the borrower under such facility, as modified for an “Up-C” structure, and in no event be less favorable to the Borrower and its subsidiaries than the definitive documentation governing the Existing Credit Facilities, (f) include customary “EU bail-in” provisions, (g) be modified to accommodate the reasonable operational and agency guidelines and practices of the Term Administrative Agent and changes in law and accounting standards and (h) be negotiated in good faith. The foregoing is referred to herein, collectively, as the “ Term Documentation Principles ” and together with the ABL Documentation Principles, the “ Documentation Principles ”). The Term Loan Documents will, subject to the “flex” provisions contained in the Fee Letter (which “flex” provisions shall not include any changes to the conditions to borrowing on the Closing Date), contain only those payment provisions, conditions to borrowing, mandatory prepayments, representations and warranties, covenants, events of default and guarantee and collateral provisions expressly set forth in this Exhibit C , in each case, applicable to, the Borrower and its restricted subsidiaries to the extent set forth herein and with standards, qualifications, thresholds, exceptions, “baskets” and grace and cure periods consistent with the Term Documentation Principles.	
		
Purpose :	  	The proceeds of Term Loans, together with balance sheet cash at Atlas, the Company and their respective subsidiaries, will be used to consummate the Refinancing and to pay the Transaction Costs.	
		
Availability :	  	The full amount of the Initial Term Loans must be drawn in a single drawing substantially concurrently with the consummation of the Acquisition; provided that a portion of such proceeds in an amount equal to the outstanding Impax Convertible Notes (as defined in the Acquisition Agreement on October 17, 2017) will be funded into escrow, subject to escrow arrangements reasonably acceptable to the Term Administrative Agent with an escrow agent reasonable acceptable to the Term Administrative Agent to make payments on such Impax Convertible Notes. Amounts repaid or prepaid under the Term Facility may not be reborrowed.	
		
Interest Rates and Fees :	  	As set forth on Annex I hereto.	
		
Final Maturity and Amortization :	  	The Term Facility will mature on the seventh (7 th ) anniversary of the Closing Date (subject to extension with the consent of only the	
 
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	  	extending lenders) and will amortize in equal quarterly installments in aggregate annual amounts equal to 1.00% of the original principal amount of the Initial Term Loans during each year of the Term Facility (such payments subject to reduction as a result of voluntary and mandatory prepayments as provided herein), with the balance of the original principal amount of the Initial Term Loans payable at maturity. Amortization will commence at the end of the first full fiscal quarter ending after the Closing Date.	
		
Guarantees :	  	All obligations of the Borrower under the Term Facility will be unconditionally guaranteed jointly and severally on a senior secured basis (the “ Term Guarantees ”) by each existing and subsequently acquired or organized wholly-owned material U.S. subsidiary of the Borrower, other than Excluded Subsidiaries (the “ Term Guarantors ” and collectively with the Borrower, the “ Loan Parties ”); provided that any such guarantees will not be required to the extent it would result in material adverse tax consequences as reasonably determined by the Borrower in consultation with the Term Administrative Agent or if prohibited or restricted by applicable law or binding contractual obligation existing on the Closing Date or at the time of the acquisition of the applicable subsidiary and not created in anticipation thereof, including any requirement to obtain the consent of any governmental authority or third party.
 
Entities with respect to which the Borrower, directly or indirectly, owns 50% or less of the voting equity interests will not be subsidiaries of the Borrower.
 
For the avoidance of doubt, the “Loan Parties” will not include the Company or any of its subsidiaries until the Acquisition has been consummated.
 
“ Excluded Subsidiary ” means:
 
(a)   any subsidiary that is not a wholly owned subsidiary of the Borrower or another Loan Party,
 
(b)   any non-U.S. subsidiary,
 
(c)   any FSHCO,
 
(d)   any direct or indirect U.S. subsidiary of a non-U.S. subsidiary,
 
(e)   any subsidiary that is prohibited or restricted by applicable Law or by a binding contractual obligation existing on the Closing Date or at the time of the acquisition of such subsidiary (and not incurred in contemplation of such acquisition) from providing a guaranty or if such guaranty would require governmental (including regulatory) or third party consent, approval, license or authorization,
 
(f)   any special purpose securitization vehicle (or similar entity used for a qualified securitization financing),
 
(g)   any subsidiary that is a not-for-profit organization,
 
(h)   any captive insurance subsidiary,	
 
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	  	(i) any other subsidiary with respect to which, in the reasonable judgment of the Borrower in consultation with the Term Administrative Agent, the providing of a guaranty would result in material adverse tax consequences as reasonably determined by the Borrower in consultation with the Term Administrative Agent,
 
(j) any other subsidiary with respect to which, in the reasonable judgment of the Term Administrative Agent determines, in consultation with the Borrower, that the cost or other consequences (including any adverse tax consequences) of providing the Guaranty shall be excessive in view of the benefits to be obtained by the Lenders therefrom,
 
(k)   each unrestricted subsidiary and
 
(l) any immaterial subsidiary;
 
provided that the Borrower, in its sole discretion, may cause any subsidiary that otherwise qualifies as an “Excluded subsidiary” to become a “Guarantor” in accordance with the definition thereof and thereafter such Subsidiary shall not constitute an “Excluded Subsidiary” (unless and until the Borrower elects otherwise).	
		
Security :	  	Subject to the Certain Funds Provisions, obligations of the Loan Parties in respect of the Term Facility and the Term Guarantees (collectively, the “ Term Secured Obligations ”) will be secured by (i) a perfected first priority (subject to permitted liens) pledge of 100% of the equity interests of each direct, wholly-owned restricted subsidiary of the Borrower and of each other Loan Party (which pledge, in the case of capital stock of any non-U.S. organized subsidiary or FSHCO, shall be limited to 65% of the voting capital stock and 100% of the non-voting capital stock of such non-U.S. organized subsidiary or FSHCO), (ii) perfected first priority security interests in substantially all tangible and intangible personal property (other than ABL Priority Collateral (as defined in Exhibit B)) (including but not limited to equipment, general intangibles (including contract rights), investment property, U.S. intellectual property, intercompany notes, instruments, chattel paper and documents, letter of credit rights, commercial tort claims and proceeds of the foregoing) and (iii) perfected second priority security interests in the ABL Priority Collateral (the items described in clauses (i), (ii) and (iii) above, but excluding the Excluded Assets (as defined below), collectively, the “ Collateral ” and the items described in clauses (i) and (ii) above, but excluding the “ Excluded Assets ”, the “ Term Priority Collateral ”). The pledges of and security interests in the Collateral granted by the Borrower and each other Loan Party shall secure the Term Secured Obligations.	
	  	 
Notwithstanding anything to the contrary, the Collateral shall exclude the following (collectively, the “ Excluded Assets ”):
 
(a)   any assets if and to the extent that a security interest therein (i) is prohibited by or in violation of any law, rule or regulation, (ii) requires any governmental or regulatory consent that has not been obtained;

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	  	(b)   any lease, license, franchise, charter, contract or agreement or purchase money lien or capital lease obligation, and any rights or interest thereunder, and any equipment subject to such purchase money lien, capital lease obligation or similar agreement, if and to the extent that a security interest therein is prohibited by or in violation of a term, provision or condition of any such lease, license, franchise, charter, contract or agreement or purchase money lien, capital lease obligation or similar agreement or requires a third party consent, approval, license or authorization, in each case of this clause (b) after giving effect to the anti-assignment provisions of the UCC or other applicable law and other than any proceeds or receivables thereof the assignment of which is expressly deemed effective under the UCC or other applicable law notwithstanding such prohibition or restriction (except to the extent such proceeds constitute Excluded Assets);
 
(c)   Excluded Equity Interests;
 
(d)   Excluded Accounts;
 
(e)   any “intent-to-use” application for registration of a trademark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing and acceptance of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “amendment to allege use” pursuant to Section 1(c) of the Lanham Act with respect thereto, to the extent that, and during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law;
 
(f)   any interests in real property (for the avoidance of doubt, excluding fixtures to the extent perfected by filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar central filing office) in the applicable grantor’s jurisdiction of organization);
 
(g)   any particular asset, if the pledge thereof or the security interest therein would result in material adverse tax consequences as reasonably determined by the Borrower in consultation with the Term Administrative Agent;
 
(h)   as extracted collateral, timber to be cut, farm products, manufactured homes and healthcare insurance receivables (but only to the extent such healthcare insurance receivables are (i) Medicare/Medicaid receivables, (ii) not perfected by the filing of a UCC financing statement or equivalent and/or (iii) as otherwise agreed);
 
(i) motor vehicles, airplanes and any other assets subject to certificates of title; and
 
(j) commercial tort claims below a dollar amount consistent with the Documentation Principles.

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	  	Notwithstanding anything to the contrary set forth above, the Loan Parties shall not be required, nor shall the Term Administrative Agent be authorized, (i) to perfect the above-described pledges and security interests by any means other than by (A) filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar central filing office) of the relevant State(s), (B) customary filings in (i) the United States Patent and Trademark Office with respect to any material U.S. registered patents and material U.S. registered trademarks and any applications therefor and (ii) the United States Copyright Office of the Library of Congress with respect to material copyright registrations, in each case constituting Collateral or (C) subject to the Intercreditor Agreement, delivery to the applicable Administrative Agent to be held in its possession of all Collateral consisting of intercompany notes, stock certificates and other instruments in each case constituting Collateral and subject to materiality thresholds consistent with the Term Documentation Principles and certain other exclusions to be agreed, in each case as expressly required in the Facilities Documentation (and other actions required to perfect the above-described security interests due to a change in law and reasonably agreed between the Borrower and the Term Administrative Agent) or (ii) to enter into any control agreement with respect to any deposit accounts, securities accounts or commodities accounts.
 
In addition, no perfection actions will be required with respect to (i) motor vehicles and other assets subject to certificates of title, (ii) letter of credit rights, except to the extent constituting a support obligation for other Collateral as to which perfection is accomplished solely by the filing of a UCC financing statement or equivalent (it being understood that no actions shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement or equivalent), (iii) commercial tort claims with a value of less than an amount to be agreed and (iv) promissory notes evidencing debt for borrowed money in a principal amount of less than an amount to be agreed, (b) share certificates of immaterial subsidiaries shall not be required to be delivered, (c) no actions with respect to any assets located outside of the United States or in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction will be required to be taken to create any security interests or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction) and (d) no landlord lien waivers, estoppels or collateral access letters will be required. The Term Loan Documents will provide that “fair market value” will be determined by the Borrower in good faith and if supported by an opinion of a reputable valuation or investment banking firm shall be conclusive.
 
Notwithstanding the foregoing, assets will be excluded from the Collateral in circumstances where the applicable Administrative Agent determines in consultation with the Borrower that the costs of obtaining, perfecting or maintaining a security interest in such assets exceed the fair market value thereof or the practical benefit to the Lenders afforded (or proposed to be afforded) thereby. Liens on assets	
 
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	  	that are transferred in a permitted transaction to a Person that is not (and is not required to be) a Loan Party under the Term Loan Documents and liens on any assets held by an Excluded Subsidiary (or any Person that becomes an Excluded Subsidiary in a transaction not prohibited by the Term Loan Documents) or on assets that are Excluded Assets shall be automatically released. The Term Administrative Agent shall execute such acknowledgments and releases reasonably acceptable to it as the Borrower may reasonably request in connection with any such release, and the Term Administrative Agent shall be entitled to rely exclusively on an officer’s certificate of the Borrower when executing any such acknowledgment or release. Any execution and delivery of documents pursuant to such a release shall be without recourse to or warranty by the Term Administrative Agent and at the Borrower’s expense, in accordance with the Documentation Principles.
 
“ Excluded Equity Interests ” means:
 
(a)   more than 65% of the issued and outstanding voting equity interests of (1) each subsidiary that is a non-U.S. subsidiary and (2) each subsidiary that is a FSHCO;
 
(b)   any equity interests of (1) any person that is not a direct wholly-owned material subsidiary of the Borrower or any other Loan Party or (2) any equity interests in any other Person (other than a direct or indirect wholly-owned subsidiary of the Borrower or any other Loan Party), in each case to the extent (x) the organization documents or other agreements with respect to such equity interests with other equity holders prohibits or restricts the pledge of such equity interests, (y) the pledge of such equity interests is otherwise prohibited or restricted by law, any agreement with a third party (other than the Borrower or any of its Subsidiaries) or would result in a change of control, repurchase obligation or other adverse consequence (in each case, except to the extent that any such prohibition or restriction would be rendered ineffective under the UCC or other applicable law),
 
(c)   any margin stock,
 
(d)   any equity interest, if the pledge thereof or the security interest therein would result in material adverse tax consequences as reasonably determined by the Borrower in consultation with the Term Administrative Agent,
 
(e)   equity interests in any unrestricted subsidiaries, and
 
(f)   any equity interest with respect to which the Term Administrative Agent has determined in consultation with the Borrower that the costs of pledging, perfecting or maintaining the pledge in respect of such equity interest hereunder exceeds the fair market value thereof or the practical benefit to the secured parties afforded (or proposed to be afforded) thereby.
 
“ FSHCO ” means any direct or indirect U.S. subsidiary of the Borrower that has no material assets other than equity interests (or equity interests and indebtedness) in one or more non-U.S. subsidiaries or other FSHCOs.	
 
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Intercreditor Agreement :	  	The relative rights and priorities in the Collateral for the secured parties in (a) the ABL Facility and (b) the Term Facility will be set forth in the Intercreditor Agreement.	
		
Mandatory Prepayments :	  	Loans under the Term Facility and any Incremental Facility secured on a pari passu basis with the liens securing the Term Facility will be prepaid with:	
		
	  	(a)   (i) 50% (with step-downs to 25% and 0% based on achieving a First Lien Net Leverage Ratio of 0.50x and 1.0x, respectively, inside the Closing Date First Lien Net Leverage Ratio) of the Borrower’s annual Excess Cash Flow (to be defined in a manner consistent with the Documentation Principles), commencing with the first full fiscal year ending after the Closing Date; provided that (i) voluntary prepayments (including those made through debt buybacks made by the Borrower or any of its restricted subsidiaries in an amount equal to the discounted amount actually paid in respect of such debt buyback) of the Term Loans, any Indebtedness that is secured on a pari passu basis with the Initial Term Loans, loans under the ABL Facility (with respect to any revolving facility, to the extent accompanied by a permanent reduction of the corresponding commitment) made during such fiscal year (or, without duplication, after the end of such fiscal year but prior to the date of any Excess Cash Flow payment) will reduce the amount of Excess Cash Flow prepayments required for such fiscal year on a dollar-for-dollar basis (other than to the extent such prepayments are funded with the proceeds of long-term indebtedness), (ii) Excess Cash Flow will be reduced for, among other things, cash used for capital expenditures (other than to the extent financed with long-term indebtedness), permitted investments (including Permitted Acquisitions) and certain restricted payments, in each case, other than to the extent funded with long-term indebtedness, made during such fiscal year and (iii) excess cash flow sweeps not in excess of $15 million will not be required.	
		
	  	(b)   100% (with step-downs to 50% and 0% based on achieving a First Lien Net Leverage Ratio of 0.50x and 1.0x, respectively, inside the Closing Date First Lien Net Leverage Ratio) of the net cash proceeds of dispositions by the Borrower and its restricted subsidiaries or casualty events in accordance with the Term Documentation Principles, but with exclusions consistent with the Term Documentation Principles or as the Borrower and the Lead Arrangers may agree, in excess of $20 million per transaction or series of related transactions and $40 million in the aggregate per fiscal year, and subject to the right of the Borrower to reinvest if such proceeds are reinvested (or committed to be reinvested) in assets used or useful in the business of the Borrower or any of its restricted subsidiaries within 18 months and, if so committed to be reinvested, reinvested no later than 180 days after the end of such 18-month period.	
 
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	  	(c)   100% of the net cash proceeds of non-ordinary course issuances of debt obligations of the Borrower and its restricted subsidiaries after the Closing Date (other than permitted debt that is not credit agreement refinancing debt).	
		
	  	Mandatory prepayments pursuant to clauses (a), (b) and (c) above will be subject to customary limitations no less favorable than those set forth in the Identified Precedent to the extent required to be made from cash at non-U.S. subsidiaries, the repatriation of which would result in material adverse tax consequences (as determined by the Borrower in consultation with the Term Administrative Agent) or would be prohibited or restricted by applicable law.
 
Each Term Lender will have the right to reject its pro rata share of any mandatory prepayment (any such rejected mandatory prepayment amounts, the “ Declined Amounts ”), in which case the amounts so rejected will be retained by the Borrower (with no obligation to repay such loans in the future).	
		
	  	The above described mandatory prepayments will be applied on a pro rata basis to the Term Facility and to any Incremental Facility that is secured by liens which are pari passu with the liens securing the Term Facility (or a less than pro rata basis if permitted by such Incremental Facility) and to the installments thereof as directed by the Borrower (or, absent any such direction, in direct order of maturity of the remaining installments under the Term Facility and any Incremental Facility; provided , that the Term Loan Documents will provide that in the case of mandatory prepayments in respect of any Excess Cash Flow or any asset sale or Condemnation Event, a ratable portion of the net proceeds thereof may be applied to prepay or offer to purchase any Parity Lien Debt if required under the terms of such debt.
 
In addition, if a successful consent solicitation in connection with an Existing Notes LM Transaction shall have been achieved, Loans under the Term Facility will be prepaid on the date that is the later of (x) 45 business days following the Closing Date and (y) five business days following the consummation of such Existing Notes LM Transaction in an aggregate principal amount equal to the aggregate principal amount of any Impax Convertible Notes that are outstanding on such date. Such mandatory prepayment will be applied on a pro rata basis in direct order of maturity of the remaining installments thereunder.	
		
Voluntary Prepayments :	  	Voluntary prepayments of borrowings under the Term Facility and any Incremental Facility will be permitted at any time, without premium or penalty (other than, with respect to prepayments of any Initial Term Loans, any applicable Repricing Premium referred to below), subject to reimbursement of the Lenders’ redeployment costs actually incurred in the case of a prepayment of Adjusted LIBOR loans other than on the last day of the relevant interest period.	
		
	  	All voluntary prepayments under the Term Facility and any Incremental Facility will be applied as directed by the Borrower.	
 
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Repricing Premium :	  	In the event of a Repricing Transaction (as defined below) with respect to all or any portion of the Initial Term Loans prior to the six month anniversary of the Closing Date, the Borrower will be subject to a prepayment premium of 1% (a “ Repricing Premium ”) on the principal amount of such loans under the Term Facility prepaid, repaid or refinanced or, in the case of any amendment, the principal amount of the relevant loans outstanding immediately prior to such amendment or subject to a mandatory assignment in connection with such amendment.
 
The term “ Repricing Transaction ” means (a) the incurrence by the Borrower or any other subsidiary of any term loan indebtedness (i) having an all-in yield that is less than the all-in yield for the Initial Term Loans (in each case, the all-in-yield will exclude any structuring, commitment, arrangement, ticking or other similar fees (to the extent not paid or payable generally to all applicable lenders)), and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, the outstanding principal of the Initial Term Loans or (b) any effective reduction in the all-in yield applicable to the Initial Term Loans (e.g., by way of amendment); provided that a Repricing Transaction will not include any event described in clause (a) or (b) above that (1) is not consummated for the primary purpose of lowering the all-in yield applicable to the Initial Term Loans or (2) that is consummated in connection with a change of control, an initial public offering or other Enterprise Transformative Event.
 
“ Enterprise Transformative Event ” means any merger, acquisition, investment, dissolution, liquidation, consolidation or disposition, in each case, by the Borrower or any restricted subsidiary that is either (a) not permitted by the terms of any Term Loan Documents immediately prior to the consummation of such transaction or (b) if permitted by the terms of the Term Loan Documents immediately prior to the consummation of such transaction, would not provide the Borrower and its restricted subsidiaries with adequate flexibility under the Term Loan Documents for the continuation and/or expansion of their combined operations following such consummation, as reasonably determined by the Borrower acting in good faith.	
		
Limited Condition Transactions :	  	The Term Loan Documents will include limited condition transaction provisions consistent with the Term Documentation Principles with respect to transactions whose consummation is not conditioned on the availability of, or on obtaining, third party financing (“ Limited Condition Transactions ”).	
		
Representations and Warranties :	  	Subject to the Certain Funds Provisions and limited to the following (to be applicable to, the Borrower and its restricted subsidiaries and as qualified by disclosure schedules to be delivered by the Borrower on the Closing Date containing information necessary to make such representations and warranties accurate and complete on the Closing Date): organization, existence, good standing, qualification and power; compliance with material laws; due authorization; no contravention with material laws, organizational documents, or material agreements; material governmental approvals; execution, delivery and	
 
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	  	enforceability of the Term Loan Documents; accuracy of financial statements and financial projections; no “Material Adverse Effect” after the Closing Date; litigation (subject to material adverse effect); labor matters (subject to material adverse effect); ownership of material property; environmental matters (subject to material adverse effect); taxes (subject to material adverse effect); ERISA compliance (subject to material adverse effect); subsidiaries; margin regulations; Investment Company Act; Patriot Act and applicable sanctions laws and anti-corruption laws; disclosure; material intellectual property; insurance; solvency on a consolidated basis as of the Closing Date consistent with the solvency certificate attached to this Commitment Letter; use of proceeds; and attachment and perfection of security interests in the Collateral (subject to permitted liens).	
		
Conditions Precedent to Initial Borrowing on the Closing Date :	  	Limited to the Financing Conditions (including and subject to the Certain Funds Provisions).	
		
Affirmative Covenants :	  	Limited to the following (to be applicable to the Borrower and its restricted subsidiaries only): delivery of annual audited financial statements (within 90 days) (which may include a “going concern” qualification relating to an anticipated, but not actual, financial covenant default or to an upcoming maturity date) and quarterly (for the first three quarters of any fiscal year) unaudited (within 45 days) financial statements, annual budgets (within 60 days after the start of each fiscal year) and compliance certificates (within five days after delivery of annual audit and quarterly financial statements, as applicable); notices of default and other material events; payment of material taxes; maintenance of existence; maintenance of material properties; maintenance of insurance; commercially reasonable efforts to maintain public corporate credit or family ratings (but not to maintain a specific rating) for the Borrower and public facilities ratings (but not to maintain a specific rating) for the Term Facility; compliance with material laws (including material environmental laws, Patriot Act and applicable sanctions laws and anti-corruption laws); books and records; inspection rights of the Term Administrative Agent (subject to limitations on frequency and cost reimbursement and other than information subject to confidentiality obligations or attorney-client or other privilege); covenant to guarantee obligations and give security; further assurances as to security (including after-acquired property) and guarantees; designation of subsidiaries; and use of proceeds.	
		
Negative Covenants :	  	Limited to the following (to be applicable to the Borrower and its restricted subsidiaries and subject to the Term Documentation Principles):
 
(a) liens securing indebtedness with baskets for (i) liens securing (1)  pari passu first lien debt subject to a pro forma First Lien Net Leverage Ratio of no greater than the Closing Date First Lien Net Leverage Ratio or such ratio prior to such lien’s attachment and (2) junior lien debt subject to a Total Net Leverage Ratio of no greater than the Closing Date Total Net Leverage Ratio or such ratio prior to such lien’s attachment, in each case calculated on a pro forma basis and	
 
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	  	excluding the cash proceeds of such proposed debt for netting purposes; (ii) a general basket equal to $225 million; (iii) liens on the Collateral securing the other Facilities (including Incremental Facilities, Incremental ABL Facilities, Incremental Equivalent Debt and any permitted refinancing thereof); (iv) liens on assets of non-Loan Party subsidiaries; (v) liens on assets that do not constitute Collateral not in excess of an amount to be agreed; (vi) other baskets and exceptions consistent with the Term Documentation Principles or as otherwise agreed by the Borrower and the Lead Arrangers;
 
(b) investments with baskets for (i) loans and advances to officers, directors and employees (x) to acquire equity in the Borrower or any parent thereof or for other customary purposes (e.g. travel, entertainment, relocation) and (y) otherwise not in excess of $20 million outstanding; (ii) investments in connection with the Transactions, (iii) investments in restricted subsidiaries (including entities that become restricted subsidiaries in connection with such investment) with a cap on investments in non-Loan Parties to be agreed; (iv) investments in unrestricted subsidiaries and similar business investments in an amount not to exceed $160 million; (v) a general basket equal to $320 million; (vi) Permitted Acquisitions; (vii) unlimited investments subject to compliance with a pro forma Total Net Leverage Ratio of not greater than 0.25x inside the Closing Date Total Net Leverage Ratio; and (viii) other baskets and exceptions consistent with the Term Documentation Principles or as otherwise agreed by the Borrower and the Lead Arrangers);
 
(c) debt with baskets for (i) contribution indebtedness (at 2x the aggregate cash or fair market value contributed); (ii) Ratio Debt (as defined below); (iii) capital lease/purchase money debt of $160 million without regard to any capital leases or purchase money indebtedness scheduled on the Closing Date; (iv) non-Loan Party debt equal to $160 million plus additional amounts in the form of working capital or other local lines of credit so long as not secured by Collateral and non-recourse to the Loan Parties; (v) cash collateralized letters of credit; (vi) non-speculative hedging arrangements and cash management arrangements; (vii) any indebtedness of the Company incurred or issued prior to the Closing Date which remains outstanding and is permitted to remain outstanding under the Acquisition Agreement; (ix) indebtedness arising from agreements providing for adjustments of purchase price or “earn outs” entered into in connection with acquisitions, (x) debt incurred and/or assumed in connection with a Permitted Acquisition or other permitted investment (subject in the case of (1) any such incurred debt only to the requirements applicable to the incurrence of Ratio Debt or (2) any such assumed debt only, that such assumed debt is not created in anticipation of such acquisition or investment), subject to a cap on such debt of non-Loan Parties to be agreed, (xi) the Facilities (including Incremental Facilities, Incremental ABL Facilities, Incremental Equivalent Debt and any permitted refinancing thereof); (xii) Refinancing Facilities; (xiii) a general basket equal to $225 million; and (xiv) other baskets and exceptions consistent with the Term Documentation Principles or as otherwise agreed by the Borrower and the Lead Arrangers;

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	  	(d) fundamental changes (which shall permit unlimited permitted investments consummated as mergers or consolidations in accordance with the Documentation Principles);
 
(e) dispositions, with a basket for (i) unlimited dispositions (the “ General Dispositions Basket ”) subject to receipt of fair market value and 75% cash or cash equivalent consideration (subject to exceptions to be set forth in the Term Loan Documents, which will include a basket of an amount to be agreed for non-cash consideration that may be designated as cash consideration), (ii) dispositions in connection with licensing of intellectual property to non-guarantor restricted subsidiaries in connection with bona fide tax planning purposes as determined in good faith by the Borrower), (iii) a de minimis basket for dispositions of property with a fair market value less than $10 million per transaction or series of related transactions or $50 million in the aggregate in any fiscal year and (iv) other baskets and exceptions consistent with the Term Documentation Principles or as otherwise agreed by the Borrower and the Lead Arrangers;
 
(f) restricted payments, with baskets for (i) equity buybacks upon death, disability or termination (etc.) subject to a cap of $25 million per fiscal year with rollover of unused amounts to subsequent calendar years; (ii) other equity redemptions up to $25 million per fiscal year; (iii) tax distributions equal to the Borrower’s taxable income (determined, if the Borrower is a disregarded entity for U.S. federal income tax purposes, as if the Borrower were instead a partnership for U.S. federal income tax purposes) multiplied by the highest marginal combined federal, state and local income tax rate applicable to any direct or indirect owner (other than a person owning indirectly through an entity that is treated as a corporation for U.S. federal income tax purposes) of the Borrower (or the Borrower’s regarded parent if the Borrower is a disregarded entity for U.S. federal income tax purposes), taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes (and any limitations thereon) and not subject to cap or clawback; (iv) payment of legal, accounting and other ordinary course corporate overhead or other operational expenses of any such parent not to exceed an amount to be agreed in any fiscal year and for the payment of franchise or similar taxes; (v) dividends, distributions or redemptions in connection with the Transactions; (vi) a general basket equal to $200 million, subject to no event of default; (vii) unlimited restricted payments subject only to compliance with a pro forma Total Net Leverage Ratio of not greater than 0.75x inside the Closing Date Total Net Leverage Ratio; and (viii) other baskets and exceptions consistent with the Term Documentation Principles or as otherwise agreed by the Borrower and the Lead Arrangers);
 
(g) transactions with affiliates in excess of $20 million per transaction or a series of related transactions;
 
(h) restrictions on negative pledge clauses; and
 
(j) prepaying material junior lien or unsecured debt for borrowed money that is contractually subordinated in right of payment to the Term Facility and in excess of an amount to be agreed (the “ Junior Debt ”), or amendments of the documents governing such Junior Debt in	
 
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	  	a manner (when taken as a whole) materially adverse to the Lenders (when taken as a whole), which will permit, among other things, (i) regularly scheduled principal and interest, (ii) refinancing or exchanges of Junior Debt for other Junior Debt maturing no earlier, and not having a shorter weighted average life, than the Junior Debt being so refinanced or exchanged ( provided that such refinancing or exchange indebtedness shall be subordinated indebtedness if the Junior Debt so refinanced or exchanged was subordinated debt), (iii) conversion of Junior Debt to common or “qualified preferred” equity, (iv) a general basket equal to $200 million, subject to no event of default; (v) unlimited prepayments, purchases or redemptions of Junior Debt subject to compliance with a pro forma Total Net Leverage Ratio of not greater than 0.75x inside the Closing Date Total Net Leverage Ratio; and (vi) other baskets and exceptions consistent with the Term Documentation Principles and such other baskets and exceptions as otherwise agreed by the Borrower and the Lead Arrangers).
 
All dollar baskets will include a growing concept based on Consolidated EBITDA. The general basket for restricted payments may alternatively be used for investments and/or prepayments of Junior Debt, and the general basket for prepayments of Junior Debt may alternatively be used for restricted payments and/or investments (the “ Basket Reclassification ”). The Borrower shall be permitted to reclassify its debt and liens (other than debt under and liens securing the Facilities) incurred among baskets without limitation.
 
The Borrower and/or any restricted subsidiary will be permitted to make acquisitions of all or substantially all of the assets or a majority of the equity interests of a person or a line of business (each, a “ Permitted Acquisition ”), so long as, subject to the Borrower’s LCA Election rights (i) before and after giving effect thereto, no event of default (or, in the case of a Permitted Acquisition or other permitted investment, no payment or bankruptcy event of default) has occurred and is continuing, (ii) after giving effect thereto, the Borrower is in compliance with the permitted lines of business covenant and (iii) solely to the extent required by, and subject to the limitations set forth in “Guarantees” and “Security” above, the acquired company and its subsidiaries (other than any subsidiaries of the acquired company designated as an unrestricted subsidiary as provided in “Unrestricted Subsidiaries” below) will become Guarantors and pledge their Collateral to the Term Administrative Agent.
 
The Borrower and any restricted subsidiary will be permitted to incur indebtedness (“ Ratio Debt ”) so long as, subject to the Borrower’s LCA Election rights (a) before and after giving effect thereto, no payment or bankruptcy event of default has occurred and is continuing and (b) the aggregate principal amount of such Ratio Debt outstanding may not exceed after giving effect to the incurrence of such debt and the application of the proceeds thereof on a pro forma basis, as of the last day of the most recently ended fiscal quarter of the Borrower for which internal financial statements are available, an amount equal to the Ratio Debt Cap.
 
The Ratio Debt Cap means an amount equal to $100 million plus the Ratio Incremental Amount.

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	  	“ Ratio Incremental Amount” means :
 
(a) with respect to Ratio Debt to be secured on a pari passu basis with the Term Facility and subject to a customary intercreditor agreement, the Borrower’s First Lien Net Leverage Ratio exceeding (i) the Closing Date First Lien Net Leverage Ratio or (ii) such ratio prior to such incurrence;
 
(b) with respect to Ratio Debt secured on a junior lien basis to the Term Facility and subject to a customary intercreditor agreement, the Borrower’s Total Net Leverage Ratio exceeding (i) the Closing Date Total Net Leverage Ratio or (ii) such ratio prior to such incurrence; or
 
(c) with respect to unsecured Ratio Debt, either (i) the Borrower’s Total Net Leverage Ratio exceeding (x) the Closing Date Total Net Leverage Ratio or (y) such ratio prior to such incurrence or (ii) the Borrower’s Interest Coverage Ratio being no less than (x) 2.00:1.00 or (y) the Interest Coverage Ratio immediately prior to such incurrence,
 
in each case, as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, calculated in each case on a pro forma basis (excluding the cash proceeds to the Borrower of any then proposed Ratio Debt for netting purposes).
 
Unless the Borrower elects otherwise, compliance will be deemed to be first pursuant to a basket or exception based on a financial ratio (to the maximum extent permitted by such basket or exception) prior to being determined to pursuant to any other basket or exception, including those based on a fixed dollar amount.
 
An Available Amount Basket will be included that, subject to the Borrower’s LCA Election rights, in the absence of a payment or bankruptcy event of default, may be used for investments, and subject to no event of default and, solely with respect to clause (b) of the definition of Available Amount Basket below, compliance with a 2.00:1.00 Interest Coverage Ratio test restricted payments and prepayments of Junior Debt.
 
“ Available Amount Basket ” will mean a cumulative amount equal to (a) the greater of (i) $165 million and (ii) an equivalent percentage of the Borrower’s Consolidated EBITDA for the most recently ended period of four fiscal quarters for which financial statements are available, calculated on a pro forma basis, plus (b) either, at the option of the Borrower to be made prior to the commencement of the general syndication of the Term Facility, (i) 50% of cumulative Consolidated Net Income or (ii) the retained portion of Excess Cash Flow for each fiscal year (commencing with the first full fiscal year ending after the Closing Date, and, with respect to clause (ii), measured with the positive Excess Cash Flow for each fiscal year less the amount of prepayments required to be made pursuant to the terms described above under “Mandatory Prepayments – Excess Cash Flow”), plus (c) the cash proceeds of new public or private qualified equity (other than contributions used to incur Indebtedness) issuances of the Borrower or	
 
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	  	any parent of the Borrower that are contributed to the Borrower as qualified equity, plus (d) qualified capital contributions to the Borrower made in cash or cash equivalents (other than Specified Equity Contributions and contributions used to incur Indebtedness), plus (e) the investments of the Borrower and its restricted subsidiaries made using the Available Amount Basket in any unrestricted subsidiary that has been re-designated as a restricted subsidiary or that has been merged or consolidated with or into the Borrower or any of its restricted subsidiaries (up to the lesser of (i) the fair market value of the investments of the Borrower and its restricted subsidiaries in such unrestricted subsidiary at the time of such re-designation or merger or consolidation and (ii) the fair market value of the original investments by the Borrower and its restricted subsidiaries in such unrestricted subsidiary), plus (f) returns, profits, distributions and similar amounts received in cash or cash equivalents by the Borrower and its restricted subsidiaries on investments made using the Available Amount Basket not in excess of such investments, plus (g) the aggregate amount of indebtedness (other than indebtedness owing to the Borrower or any of its restricted subsidiaries) that has been converted into or exchanged for equity interests (other than disqualified stock) of the Borrower, plus (h) any Declined Amounts, plus (i) amounts received by the Borrower or any of its restricted subsidiaries in cash from the sale of the equity interests of any unrestricted subsidiary or any dividend or other distribution by any unrestricted subsidiary, in each case, made in reliance on the Available Amount Basket.
 
Compliance with a negative covenant in the Term Loan Documents may be permitted in part by one basket or exception and in part by another, in the Borrower’s discretion, and the Borrower may designate and redesignate (the “ Redesignation ”) (on or after any applicable date) the baskets or exceptions available to it on such date (or any later date) upon with compliance is based.	
		
Term Facility Financial Covenant :	  	None.	
		
Unrestricted Subsidiaries :	  	The Term Loan Documents will permit the Borrower to designate any existing or subsequently acquired or organized subsidiary as an “unrestricted subsidiary” and subsequently re-designate any such unrestricted subsidiary as a restricted subsidiary; provided that no payment or bankruptcy event of default exists or would result therefrom at the time of designation. The designation of any unrestricted subsidiary as a restricted subsidiary shall be deemed to be an incurrence at the time of such designation of indebtedness of such subsidiary or liens on the assets of such subsidiary, in each case, outstanding on the date of such designation. The designation of any subsidiary as an unrestricted subsidiary shall constitute an investment for purposes of the investments negative covenant described under the caption “Negative Covenants” above. Unrestricted Subsidiaries will not be subject to the representations and warranties, covenants or events of default of the Term Loan Documents and the results of operations and indebtedness of unrestricted subsidiaries will not be taken into account for purposes of determining any financial ratio or covenant contained in	
 
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	  	the Term Loan Documents and any cash or cash equivalents of any unrestricted subsidiary will not be taken into account for purposes of any net debt test under the Term Loan Documents.	
		
Events of Default :	  	Limited to the following (to be applicable to the Borrower and its restricted subsidiaries): nonpayment of principal, interest, and fees (with not less than a five business day grace period for interest and fees); failure to perform negative covenants, affirmative covenant to provide notice of default or maintain the Borrower’s corporate existence; failure to perform other covenants subject to a 30-day cure period after the earlier to occur of the date on which an executive officer of the Borrower becomes aware of such default and the date on which notice of default from the Term Administrative Agent is received; any representation or warranty incorrect in any material respect when made; cross-acceleration and cross-default to continuing defaults under other material indebtedness in an aggregate principal amount in excess of the Threshold Amount (other than the Facilities and indebtedness held exclusively by subsidiaries); bankruptcy and similar proceedings of the Borrower or a material subsidiary; material monetary judgment defaults in excess of the Threshold Amount (to the extent not covered by insurance or other indemnity); ERISA events subject to no material adverse effect; invalidity (actual or asserted by the Borrower or any other subsidiary) of the Term Loan Documents, the Term Guarantees, the Intercreditor Agreement, a material security interest or a material portion of the Collateral; and change of control. “ Threshold Amount ” will be defined as the greater of (x) $80 million and (y) 12.5% of the Borrower’s Consolidated EBITDA for the most recently ended period of four fiscal quarters for which financial statements are available, calculated on a pro forma basis.	
		
Voting :	  	Amendments and waivers of the Term Loan Documents will require the approval of Lenders (the “ Required Lenders ”) holding more than 50% of the aggregate amount of loans and commitments under the Term Facility, except that: (a) the consent of each Lender directly and adversely affected thereby shall be required with respect to (i) increases in commitments of such Lender, (ii) reductions of principal, interest (other than default interest) or fees owed to such Lender (it being understood and agreed that the waiver of any mandatory prepayment, default interest, default or event of default will only require the consent of the Required Lenders), (iii) extensions of scheduled amortization, date of payment of interest or any fee or final maturity (it being understood and agreed that the waiver of any mandatory prepayment, default interest, default or event of default will only require the consent of the Required Lenders), and (iv) changes to the pro rata sharing provisions (with exceptions for certain transactions and actions to be agreed, including loan buybacks, amend and extend transactions and defaulting lender actions); and (b) the consent of 100% of the Lenders will be required with respect to (i) changes in voting thresholds and (ii) subordination or releases of liens on all or substantially all of the Collateral or all or substantially all of the aggregate value of the Term Guarantees (other than in connection with any transfer or other release of Collateral or of the relevant Guarantor permitted by the Term Loan	
 
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	  	Documents). The consent of the Term Administrative Agent will be required to amend, modify or otherwise affect the rights and duties of the Term Administrative Agent. Disqualified Lenders will have limited voting rights (consistent with defaulting lenders) under the Term Facility and will be required to assign all loans and commitments then owned by such Disqualified Lender to another lender (other than a Defaulting Lender) or eligible assignee (and the Borrower shall be entitled to seek specific performance in any applicable court of law or equity to enforce this sentence), subject to customary provisions and limitations.	
		
	  	The Term Loan Documents shall contain customary provisions for replacing (i) non-consenting Lenders in connection with amendments and waivers requiring the consent of all Lenders or of all Lenders adversely affected thereby so long as relevant Lenders holding more than 50% of the aggregate amount of the loans and commitments under the relevant Facilities have consented thereto, (ii) non-extending Term Lenders, (iii) defaulting Term Lenders, and (iv) Term Lenders claiming increased costs, gross-ups and similar required indemnity payments.	
		
	  	The Facilities Documentation will contain customary “amend and extend” and “refinancing” provisions (on terms consistent with the Documentation Principles) pursuant to which the Borrower may refinance or extend commitments and/or outstandings pursuant to one or more tranches with only the consent of the respective extending or refinancing lenders; it being understood that each Lender under the applicable tranche or tranches that are being extended or refinanced shall have the opportunity to participate in such extension or refinancing on the same terms and conditions as each other lender in such tranche or tranches; provided that it is understood that no existing Lender will have any obligation to commit to any such extension or refinancing.
 
The Facilities Documentation will permit amendments thereof without the approval or consent of the Term Lenders to effect a Repricing Transaction other than any Term Lender holding Term Loans subject to such Repricing Transaction that will continue as a Term Lender in respect of the repriced tranche of Term Loans or modified Term Loans.	
		
Yield Protection and Increased Costs :	  	Usual for facilities and transactions of this type (including customary tax gross-up provisions and customary protections for increased costs imposed as a result of the Dodd-Frank Act or Basel III), in each case consistent with the Documentation Principles.	
		
Defaulting Lenders :	  	Consistent with the Documentation Principles. At the Borrower’s option, the Borrower may prepay the loans and/or terminate the commitments of any defaulting lender without penalty or premium.	
		
Assignments and Participations :	  	The Term Lenders will be permitted to assign loans and commitments (other than to natural persons or Disqualified Lenders) with the consent of the Borrower and the Term Administrative Agent, such consent not to be unreasonably withheld, delayed or conditioned, it being agreed that it shall be reasonable to withhold consent to assignment to a Disqualified Lender); provided that no consent of the Borrower shall be	
 
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	  	required after the occurrence and during the continuance of a payment or bankruptcy event of default with respect to the Borrower or in the case of an assignment to a Lender, an affiliate of a Lender or an approved fund. The Borrower will be deemed to have consented to an assignment unless it objects thereto by written notice (including via email) to the Term Administrative Agent within 10 business days after having received written notice of a request for such consent from the Term Administrative Agent.
 
Each assignment will be in a minimum amount of $1.0 million. The Term Administrative Agent will receive a processing and recordation fee of $3,500, payable by the assignor and/or the assignee, with each assignment. Each prospective assignee and participant will be required to represent that it is not a Disqualified Lender or an affiliate of a Disqualified Lender, in each case to the extent a list of Disqualified Lenders has been made available to the prospective assignee or participant, as applicable. As used herein, “approved fund” means, with respect to any Lender, any fund that is administered, advised or managed by (i) such Lender, (ii) an affiliate of such Lender or (iii) any entity or an affiliate of an entity that administers, advises or manages such Lender.
 
Assignments of Term Loans and loans under Incremental Facilities to the Investors (to be defined in the Term Loan Documents) and their affiliates (other than the Borrower and its restricted subsidiaries) (each, an “ Affiliated Lender ”) will be permitted (a) on a non-pro rata basis through open market purchases and/or (b) through Dutch auctions open to all Lenders on a pro rata basis in accordance with customary procedures, subject to the following limitations:
 
(a)   for purposes of any amendment, waiver or modification of the Term Loan Documents that does not require the consent of each Lender or each affected Lender or does not adversely affect such Affiliated Lender in its capacity as such in any material respect as compared to other Lenders and for purposes of any bankruptcy plan of reorganization or liquidation, Affiliated Lenders will be deemed to have voted in the same proportion as non-affiliated Lenders voting on such matter;
 
(b)   Affiliated Lenders will not be permitted to attend/participate in conference calls or meetings attended solely by the Lenders and the Term Administrative Agent, or to receive information provided solely to the Lenders or to receive the advice of counsel to the Term Administrative Agent or the Lenders, nor may Affiliated Lenders challenge the attorney-client privilege between the Term Administrative Agent and counsel to the Term Administrative Agent or between the Lenders and counsel to the Lenders;
 
(c)   loans owned or held by the Affiliated Lenders must not, in the aggregate for all such persons, exceed 25% of the aggregate amount of loans under the Term Facility and any Incremental Term Facility, as the case may be, outstanding at the time of assignment or purchase; and

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	  	(d)   any assignment and assumption agreement executed in connection with such purchases or sales will be accompanied by a customary big boy letter;
 
provided , that a Debt Fund Affiliate (as defined below) will not be subject to the foregoing limitations described in clauses (a) through (d) above; provided , further , that all loans held by Debt Fund Affiliates may not account for more than 49.9% of the loans of consenting Lenders included in determining whether Required Lenders have consented to any amendment, modification, waiver or any other action with respect to any of the terms of, or otherwise have acted on any manner with respect to, the Term Loan Documents.
 
Notwithstanding the foregoing, the Term Loan Documents will permit (but not require) Affiliated Lenders to contribute any Term Loans acquired to the Borrower or any of its restricted subsidiaries for purposes of cancelling such debt, which may include contribution (with the consent of the Borrower) to the Borrower (whether through any of its direct or indirect parent entities or otherwise) in exchange for debt on a dollar-for-dollar basis or equity securities of such parent entity or the Borrower that are otherwise permitted to be incurred or issued by such entity or the Borrower at such time.
 
In addition, the Term Loan Documents will provide that assignments of loans under the Term Facility to the Borrower or any of its subsidiaries will be permitted through (a) open-market purchases on a non-pro rata basis and/or (b) Dutch auctions open to all Lenders on a pro rata basis in accordance with customary procedures, in each case so long as (i) no payment or bankruptcy event of default has occurred and is continuing or would result after giving effect to any such assignment pursuant to clause (b); and (ii) the loans purchased are automatically and permanently cancelled.	
		
	  	The Lenders will be permitted to participate loans and commitments to other people (other than natural persons and Disqualified Lenders). Voting rights of participants will be limited to matters in respect of (i) increases in commitments participated to such participant, (ii) reductions of principal, interest (other than default interest) or fees in respect of loans participated to such participant (it being understood and agreed that the waiver of any mandatory prepayment, default interest, default or event of default will not require the consent of such participant), (iii) extensions of scheduled amortization, date of payment of interest and any fee or final maturity (it being understood and agreed that the waiver of any mandatory prepayment, default interest, default or event of default will not require the consent of such participant), and (iv) releases of all or substantially all of the Collateral or all or substantially all of the aggregate value of the Guarantees (other than in connection with any sale of Collateral or of the relevant Guarantor permitted by the Term Loan Documents).
 
Notwithstanding anything to the contrary in the Term Loan Documents, in no event will the Term Administrative Agent be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of the Term Loan Documents	
 
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	  	relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Term Administrative Agent in its capacity as such shall not (x) be obligated to ascertain, monitor or inquire as to whether any Term Lender or participant in Term Loans or prospective Term Lender or participant in Term Loans is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Term Loans or (except to the extent constituting gross negligence, bad faith or willful misconduct) disclosure of confidential information, to any Disqualified Lender.
 
“ Debt Fund Affiliate ” means (a) any affiliate of an Investor (other than the Borrower or any of its subsidiaries) that is a bona fide debt fund or investment vehicle that is engaged in the business of investing in, acquiring or trading commercial loans, bonds or similar extensions of credit in the ordinary course and that exercises investment discretion independent from the private equity business of such Investor and (b) any investment fund or account of a Permitted Investor managed by third parties (including by way of a managed account, a fund or an index fund in which a Permitted Investor has invested) that is not organized or used primarily for the purpose of making equity investments, in each case (a) and (b), with respect to which the Investor or Permitted Investor does not, directly or indirectly, possess the power to direct or cause the direction of the investment policies of such entity.
“Permitted Investors” means (a) any of the Investors, (b) each of the affiliates and investment managers of the Investors, (c) any fund or account managed by any of the persons described in clause (a) or (b) of this definition, (d) any employee benefit plan of the Borrower or any of its subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and (e) investment vehicles of members of management of the Borrower that invest in, acquire or trade commercial loans but excluding natural persons.	
		
Expenses and Indemnification :	  	The expense and indemnification provisions to be set forth in the Term Loan Documents will be substantially consistent with those set forth in Identified Precedent and otherwise consistent with the Term Documentation Principles.	
		
Governing Law and Forum :	  	New York.	
		
Counsel to Term Administrative Agent and Lead Arrangers :	  	Simpson Thacher & Bartlett LLP	
 
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ANNEX I TO EXHIBIT C

Interest Rates :	  	The interest rates under the Term Facility will be as follows:	
		
	  	At the option of the Borrower, Adjusted LIBOR plus the Applicable Margin or ABR plus the Applicable Margin.	
		
	  	As used herein:	
		
	  	“ Adjusted LIBOR ” means the London interbank offered rate, adjusted for statutory reserve requirements; provided that “Adjusted LIBOR” shall be no less than 0.00% per annum.	
		
	  	“ ABR ” means, for any day, a rate per annum equal to the greatest of (a) the prime rate in effect of such day, (b) the NYFRB rate in effect on such day plus  1 ⁄ 2 of 1%, (c) the Adjusted LIBOR rate for a one-month interest period on such day (or if such day is not a business day, the immediately preceding business day) plus 1% and (d) 1.00% per annum.	
		
	  	“ Applicable Margin ” means, initially, (i) 2.50% per annum, in the case of ABR loans, and (ii) 3.50% per annum, in the case of Adjusted LIBOR loans and subject to adjustment as specified in the following paragraph.
 
From and after the first full fiscal quarter completed after the Closing Date, the Applicable Margin under the Term Facility shall be subject to two 25 bps step-downs upon achieving a reduction to the Closing Date First Lien Net Leverage Ratio of 0.25x and 0.50x, respectively.	
		
	  	Adjusted LIBOR borrowings may be made for interest periods of 1, 2, 3 or 6 (or, if agreed to by all applicable Lenders, 12) months or a shorter period as may be agreed by all applicable Lenders, as selected by the Borrower.	
		
	  	Interest on loans and all fees will be payable in arrears on the basis of a 360-day year (calculated on the basis of actual number of days elapsed), provided that interest on ABR loans, when based on the Term Administrative Agent’s prime rate, will be payable in arrears on the basis of a 365-day year (or a 366-day year in a leap year), in each case calculated on the basis of the actual number of days elapsed. Interest will be payable on Adjusted LIBOR loans on the last day of the applicable interest period (and at the end of each three months, in the case of interest periods longer than three months) and upon prepayment, and on ABR loans quarterly and upon prepayment.	
		
Default Rate :	  	Upon and during the continuance of a payment or bankruptcy event of default, overdue amounts shall bear interest at, with respect to principal, the applicable interest rate plus 2.00% per annum and, with respect to any other amount, the interest rate applicable to ABR loans plus 2.00% per annum, and in each case shall be payable on demand.	
 
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CONFIDENTIAL	  	EXHIBIT D	
Project Apex
Financing Conditions
Capitalized terms used in this Exhibit  D have the meanings set forth in the Commitment Letter to which this Exhibit  D is attached and the other Exhibits to the Commitment Letter. The commitments of the Initial Lenders, the Lead Arrangers’ and other agents’ agreements to perform the services described herein and the availability and the funding of the Facilities on the Closing Date are subject only to the satisfaction (or waiver by the Lead Arrangers) of only the following conditions precedent (in each case subject to the Certain Funds Provisions):
 
1.	The Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the Term Facility, and no provision thereof shall have been amended, modified or waived, and no consent shall have been given thereunder, in each case in any manner materially adverse to the interests of the Commitment Parties or the Lenders without the prior written consent of the Commitment Parties (it being understood and agreed that any modification, amendment, consent or waiver of the definition of “Impax Material Adverse Effect” contained in the Acquisition Agreement as in effect on October 17, 2017 shall be deemed to be materially adverse to the interests of the Commitment Parties and the Lenders).	
 
2.	The Refinancing shall have been consummated or will be consummated substantially concurrently with the initial borrowing under the Facilities.	
 
3.	The Commitment Parties will have received the following (such credit agreements, guarantee and security agreements, collectively, the “ Facilities Documentation ”), in each case containing terms that are materially consistent with the provisions of the applicable Term Sheet and the Documentation Principles and subject to the Certain Funds Provisions:	
 
 	(a)	(i) a credit agreement with respect to the ABL Facility and (ii) a customary guarantee and security agreement, with respect to the ABL Facility pursuant to which a lien is granted on the Collateral in favor of the ABL Administrative Agent for the ratable benefit of the Lenders under the ABL Facility and the ABL Administrative Agent is authorized to file customary “all asset” UCC-1 financing statements with respect thereto, in each case, executed by the Borrower and each of the other Loan Parties party thereto;	
 
 	(b)	(i) a credit agreement with respect to the Term Facility and (ii) a customary guarantee and security agreement, with respect to the Term Facility pursuant to which a lien is granted on the Collateral in favor of the Term Administrative Agent for the ratable benefit of the Lenders under the Term Facility and the Term Administrative Agent is authorized to file customary “all asset” UCC-1 financing statements with respect thereto, in each case, executed by the Borrower and each of the other Loan Parties party thereto;	
 
 	(c)	an acknowledgment to an intercreditor agreement with respect to the Facilities executed by the Borrower and each of the other Loan Parties signatory thereto;	
 
 	(d)	customary security agreements for filing in (i) the United States Patent and Trademark Office with respect to any material U.S. registered patents and material U.S. registered trademarks and any applications therefor and (ii) the United States Copyright Office of the Library of Congress with respect to material copyright registrations, in each case constituting Collateral;	
 
 	(e)	to the extent delivered to the Borrower in connection with the Refinancing , certificated securities representing the equity interests in the Borrower’s wholly-owned material U.S. subsidiaries, in each case to the extent constituting Collateral and with customary stock powers executed in blank; and	
 
 	(f)	to the extent delivered to the Borrower pursuant to the terms of the Acquisition Agreement, certificated securities representing the equity interests in the Company’s wholly-owned material U.S. subsidiaries, in each case to the extent constituting Collateral and with customary stock powers executed in blank.	
 
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4.	The Commitment Parties will have received the following (collectively, the “ Closing Deliverables ”) in each case subject to the Certain Funds Provisions and the Documentation Principles:	
 
 	(a)	customary legal opinions from counsel to the Borrower and the other Loan Parties;	
 
 	(b)	a customary officers’ certificate, containing organizational documents, customary evidence of authorization and a customary incumbency certificate from any of the officers of the Borrower (and the officers of the other Loan Parties) executing the Facilities Documentation;	
 
 	(c)	good standing certificates (to the extent applicable) from the Secretary of State or such other office of the Borrower’s and each of the other Loan Parties’ jurisdiction of organization;	
 
 	(d)	a solvency certificate substantially in the form set forth in Exhibit E to the Commitment Letter from the chief financial officer or other officer with equivalent duties of the Borrower; and	
 
 	(e)	a customary borrowing request, which may be delivered on or prior to the Closing Date.	
 
5.	Since the date of the Acquisition Agreement, there shall not have been any change, effect, event, circumstance, occurrence or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect (as defined in the Acquisition Agreement as in effect on October 17, 2017).	
 
6.	The Initial Lenders shall have received at least two Business Days prior to the Closing Date all outstanding documentation and other information about the Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, that in each case has been specifically requested by the Lead Arrangers in writing at least ten business days prior to the Closing Date.	
 
7.	Payment of fees and expenses due to the Commitment Parties under the Commitment Papers, to the extent (x) in the case of expenses and legal fees invoiced in reasonable detail at least three business days prior to the Closing Date (except as otherwise reasonably agreed by you) and (y) required to be paid on the Closing Date.	
 
8.	An Existing Notes LM Transaction (as defined in the Fee Letter) shall have been undertaken at least 3 business days prior to the Acquisition Date.	
 
9.	The Registration Statement (as defined in the Acquisition Agreement as of October 17, 2017) shall have been declared effective under the Securities Act (as defined in the Acquisition Agreement as of October 17, 2017).	
 
10.	The Acquisition Agreement Representations and the Specified Representations shall have been true and correct in all material respects (or in all respects if already qualified by materiality) as of the Closing Date.	
[remainder of page intentionally left blank]
 
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CONFIDENTIAL	  	EXHIBIT E	
Form of Solvency Certificate
Date: [                ,         ]
To the Administrative Agent and each of the Lenders
party to the Credit Agreement referred to below:
Pursuant to Section [        ] of the Credit Agreement 4 , the undersigned, solely in the undersigned’s capacity as [ chief financial officer][ specify other officer with equivalent duties ] of the Borrower, hereby certifies, on behalf of Borrower and not in the undersigned’s individual or personal capacity and without personal liability, that, to his knowledge, as of the Closing Date, after giving effect to the Transactions (including the making of the Loans under the Credit Agreement on the Closing Date and the application of the proceeds thereof):
 
 	(a)	the fair value of the assets of the Borrower and its Restricted Subsidiaries, on a consolidated basis, exceeds their debts and liabilities, subordinated, contingent or otherwise, on a consolidated basis;	
 
 	(b)	the present fair saleable value of the property of the Borrower and its Restricted Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, on a consolidated basis, as such debts and other liabilities become absolute and matured;	
 
 	(c)	the Borrower and its Restricted Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, on a consolidated basis, as such liabilities become absolute and matured; and	
 
 	(d)	the Borrower and its Restricted Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital.	
For purposes of this Solvency Certificate, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
The undersigned is familiar with the business and financial position of the Borrower and its Restricted Subsidiaries. In reaching the conclusions set forth in this Solvency Certificate, the undersigned has made such investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the business proposed to be conducted by the Borrower and its Restricted Subsidiaries after consummation of the Transactions.
* * *
IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate, solely in the undersigned’s capacity as [chief financial officer][ specify other officer with equivalent duties ] of the Borrower, on behalf of Borrower and not in the undersigned’s individual or personal capacity and without personal liability, as of the date first stated above.

                [Borrower]	
		
By:    	 	 	
	 	Name:	
	 	Title:   [Chief Financial Officer]	

4  	Credit Agreement to be defined.	
 
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CONFIDENTIAL	  	EXHIBIT F	
Select Definitions
The financial definitions in the Facilities Documentation will be substantially consistent with the equivalent definitions of such terms in the Identified Precedent, after giving effect to the Documentation Principles and as modified, solely to the extent more favorable to the Borrower, as set forth below.
“ Consolidated EBITDA ” means, with respect to any Person for any Test Period, Consolidated Net Income of such Person for such Test Period, adjusted by:
(1) adding thereto, in each case, only to the extent deducted (and not added back) in determining such Consolidated Net Income and without duplication:
 
(a)	consolidated interest expense of such Person for such Test Period, including (i) payments made in respect of hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, (ii) amortization and write-offs of deferred financing fees, debt issuance costs, commissions, fees and expenses and expensing of bridge, commitment or financing fees, and (iii) dividend payments (excluding items eliminated in consolidation) on any series of disqualified equity interests;	
 
(b)	Consolidated Amortization Expense for such Test Period;	
 
(c)	Consolidated Depreciation Expense for such Test Period;	
 
(d)	Consolidated Tax Expense for such Test Period;	
 
(e)	the amount of any restructuring, severance, relocation, consolidation, integration, remediation or similar items or reserves in such Test Period (whether or not characterized as such in accordance with GAAP), including items or reserves incurred or taken in connection with (i) Permitted Acquisitions and other permitted investments after the Closing Date and (ii) severance and the consolidation or closing of any facilities after the Closing Date;	
 
(f)	the amount of costs relating to signing, retention and completion bonuses, relocation expenses, recruiting expenses, costs and expenses incurred in connection with any strategic or new initiatives, transition costs, consolidation and closing costs for facilities, business optimization expenses and new systems design and implementation costs;	
 
(g)	the amount of “run-rate” cost savings, operating expense reductions and synergies related to the Transactions, any Specified Transaction or any other restructuring, cost saving initiative or other initiative that are projected by such Person in good faith to result from actions taken, committed to be taken or expected to be taken no later than 24 months after the end of such Test Period (which amounts will be determined by such Person in good faith and calculated on a pro forma basis as though such amounts had been realized on the first day of such Test Period), net of the amount of actual benefits realized during such Test Period from such actions;	
 
(h)	any costs or expenses incurred in such Test Period pursuant to or in connection with or resulting from any management equity plan, profits interest or stock option plan or any other management or employee benefit plan or agreement or any post-employment benefit plans or agreements or any grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other similar rights or any stock subscription, stockholders or partnership agreement;	
 
(i)	any net loss from disposed, abandoned, closed or discontinued operations;	
 
(j)	cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any Test Period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (2) below for any previous Test Period and not added back;	
 
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(k)	any non-cash charges or expenses reducing Consolidated Net Income for such Test Period ( provided that if any such non-cash item represents an accrual or reserve for potential cash items in any future Test Period, (i) such Person may determine not to add back such non-cash item in the current Test Period and (ii) to the extent such Person does decide to add back such non-cash item, the cash payment in respect thereof in such future Test Period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior Test Period);	
 
(l)	all charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of equity interests held by officers or employees of such Person and all losses, charges and expenses related to payments made to holders of options or other derivative equity interests in the common equity of such Person or any direct or indirect parent thereof in connection with, or as a result of, any distribution being made to equity holders of such Person or any direct or indirect parent thereof, which payments are being made to compensate such option holders as though they were equity holders at the time of, and entitled to share in, such distribution;	
 
(m)	the amount of any expenses paid on behalf of any member of the board of directors or reimbursable to such member of the board of directors;	
 
(n)	all judgments, liabilities, obligations, damages of any kind, including liquidated damages, settlement amounts, losses, fines, costs, fees, expenses (including, without limitation, reasonable attorneys’ fees and disbursements), penalties and interest and other charges or expenses in connection with any lawsuit or other proceeding against such Person and its Subsidiaries; provided, that the amounts added back pursuant to this clause (o) shall not exceed 15% of Consolidated EBITDA prior to giving effect to this clause (o);	
 
(o)	losses or discounts on any sale of receivables, securitization assets and related assets to any securitization subsidiary in connection with a securitization transaction permitted hereunder;	
 
(p)	earn-outs and contingent consideration obligations(including to the extent accounted for as bonuses and other compensation), payments in respect of dissenting shares, and purchase price adjustments, made by such Person during such Test Period, in each case, in connection with a permitted investment or acquisition;	
 
(q)	the amount of any contingent payments in connection with the licensing of intellectual property or other assets;	
 
(r)	any extraordinary, non-recurring or unusual costs items;	
 
(s)	other adjustments consistent with Regulation S-X; and	
(2) subtracting therefrom, in each case only to the extent (and in the same proportion) included or added in determining such Consolidated Net Income and without duplication:
 
 	(a)	the aggregate amount of all non-cash items increasing Consolidated Net Income (other than (i) the accrual of revenue or recording of receivables in the ordinary course of business and (ii) the reversal of any accrual of a reserve referred to in the parenthetical in clause (1)(k) of this definition (other than any such reversal that results from a cash payment subtracted from Consolidated EBITDA)) for such Test Period;	
 
 	(b)	any extraordinary, non-recurring or unusual gains; and	
 
 	(c)	any net income from disposed, abandoned, closed or discontinued operations.	
Notwithstanding the foregoing, Consolidated EBITDA of the Borrower (i) for the fiscal quarter ended June 30, 2017, shall be deemed to be $141,670,000, (ii) for the fiscal quarter ended September 30, 2017, shall be deemed to be $170,000,000, (iii) for the fiscal quarter ended December 31, 2017, shall be deemed to be $185,000,000, and (iv) for the fiscal quarter ended March 31, 2018, shall be deemed to be $144,500,000, as such amounts may be adjusted pursuant to pro forma adjustments permitted by this Agreement.
“ Consolidated Amortization Expense ” means, with respect to any Person for any Test Period, the amortization expense of such Person and its Restricted Subsidiaries for such Test Period, including the
 
73

amortization of deferred financing fees or costs for such Test Period, determined on a consolidated basis in accordance with GAAP.
“ Consolidated Cash Interest Expense ” means, with respect to any Person (on a consolidated basis) for any Test Period, the sum of: (1) cash consolidated interest expense (less cash interest income) for such period plus (2) all cash dividend payments (excluding items eliminated in consolidation) on any series of disqualified equity interests made during such period.
“ Consolidated Depreciation Expense ” means, with respect to any Person for any Test Period, the depreciation expense of such Person and its Restricted Subsidiaries for such Test Period, determined on a consolidated basis in accordance with GAAP.
“ Consolidated Net Debt ” means, as of any date of determination, (a) Consolidated Total Debt minus (b) the aggregate amount of cash and cash equivalents of the Borrower and its Restricted Subsidiaries as of such date that are not restricted.
“ Consolidated Net Income ” means, with respect to any Person for any Test Period, the Net Income of such Person and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such consolidated net income (to the extent otherwise included therein), without duplication:
 
(1)	the Net Income for such Test Period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that the Borrower’s or any Restricted Subsidiary’s equity in the Net Income of such Person shall be included in the Consolidated Net Income of the Borrower for such Test Period up to the aggregate amount of dividends or distributions or other payments in respect of such equity that are actually paid in cash (or to the extent converted into cash) by such Person to the Borrower or a Restricted Subsidiary, in each case, in such Test Period, to the extent not already included therein (subject in the case of dividends, distributions or other payments in respect of such equity made to a Restricted Subsidiary to the limitations contained in clause (2) below);	
 
(2)	solely with respect to the calculation of Available Amount and Excess Cash Flow, (a) the Net Income of any Subsidiary of such Person during such Test Period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or requirement of Law applicable to such Subsidiary during such Test Period; provided that Consolidated Net Income of such Person shall be increased by the amount of dividends or distributions or other payments that are actually paid to such Person or its Restricted Subsidiaries in respect of such Test Period and (b) the Net Income of any Person for the period prior to it becoming a Subsidiary;	
 
(3)	any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized by such Person or any of its Restricted Subsidiaries during such Test Period upon any asset sale or other disposition of any Equity Interests of any Person (other than any dispositions in the ordinary course of business) by such Person or any of its Restricted Subsidiaries;	
 
(4)	gains and losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP for such Test Period;	
 
(5)	earnings (or losses), including any impairment charge, resulting from any reappraisal, revaluation or write-up (or write-down) of assets during such Test Period;	
 
(6)	(a) unrealized gains and losses with respect to Hedge Agreements for such Test Period pursuant to the application of Accounting Standards Codification 815 (Derivatives and Hedging) and (b) any after-tax effect of income (or losses) for such Test Period that result from the early extinguishment of (i) Indebtedness, (ii) obligations under any Hedge Agreements or (iii) other derivative instruments;	
 
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(7)	any extraordinary, non-recurring or unusual gain (or extraordinary, non-recurring or unusual loss), together with any related provision for taxes on any such gain (or the tax effect of any such loss), recorded or recognized by such Person or any of its Restricted Subsidiaries during such Test Period;	
 
(8)	the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such Test Period;	
 
(9)	any after-tax gains (or losses) on disposal of disposed, abandoned or discontinued operations for such Test Period;	
 
(10)	effects of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in the inventory, property and equipment, software, goodwill, other intangible assets, in-process research and development, deferred revenue, debt and unfavorable or favorable lease line items in such Person’s consolidated financial statements pursuant to GAAP for such Test Period resulting from the application of purchase accounting in relation to the Transactions or any acquisition consummated prior to the Closing Date and any Permitted Acquisition or other investment or the amortization or write-off of any amounts thereof, net of taxes, for such Test Period;	
 
(11)	any non-cash compensation charge or expense (including any deferred non-cash compensation expense) for such Test Period, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights and any cash charges or expenses associated with the rollover, acceleration or payout of Equity Interests by, or to, management of the such Person or any of its Restricted Subsidiaries in connection with the Transactions;	
 
(12)	(a) Transaction Costs incurred during such Test Period (including, for the avoidance of doubt, any charges, costs or expenses pursuant to or in connection with or resulting from any Existing Notes Offer) and (b) any fees and expenses incurred during such Test Period, or any amortization thereof for such Test Period, in connection with any acquisition (other than the Transactions), investment, disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt or equity instrument (in each case, including any such transaction whether consummated on, after or prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring costs incurred during such Test Period as a result of any such transaction;	
 
(13)	any expenses, charges or losses for such Test Period that are covered by indemnification or other reimbursement provisions in connection with any investment, Permitted Acquisition or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement, to the extent actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); and	
 
(14)	to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses for such Test Period with respect to liability or casualty events or business interruption.	
“ Consolidated First Lien Net Debt ” means, as of any date of determination, (a) Consolidated Total Debt outstanding as of such date under the Facility and any other Consolidated Total Debt outstanding as of such date that is secured by a Lien on the ABL Priority Collateral that is [ pari passu with] [senior to or pari passu ] with the Lien securing the Obligations or that is secured by a Lien on the Term Priority Collateral that is [senior to or pari passu with] [ pari passu with] the Lien securing the Obligations minus (b) cash and cash equivalents and short term investments of the Borrower and its Restricted Subsidiaries as of such date that are not restricted; provided that for purposes of calculating the amount of Consolidated First Lien Net Debt with respect to any Indebtedness being incurred in reliance on compliance with any financial ratio-based incurrence test, unrestricted cash, cash
 
75

equivalents and short term investments will not include any proceeds received from such Indebtedness. For the avoidance of doubt, Indebtedness in respect of the [Term Loan] [ABL] Credit Agreement will constitute Consolidated First Lien Net Debt.
“Consolidated Tax Expense ” means, with respect to any Person for any Test Period, taxes based on gross receipts, income, profits or capital, franchise, excise or similar taxes, and foreign withholding taxes, of such Person for such Test Period, including (1) penalties and interest related thereto and (2) tax distributions made to any direct or indirect holders of equity interests of such Person in respect of any such taxes.
“ Consolidated Total Debt ” means, as of any date of determination, the aggregate principal amount of Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis (but excluding the effects of the application of purchase accounting in connection with the Transactions, any Permitted Acquisition or any other investment permitted hereunder), consisting of Indebtedness for borrowed money, unreimbursed obligations in respect of drawn letters of credit (to the extent not cash collateralized), obligations in respect of Capitalized Leases, debt obligations evidenced by promissory notes or similar instruments and obligations with respect to disqualified equity interests; provided that Consolidated Total Debt shall not include Indebtedness in respect of (i) any securitization financing permitted hereunder, (ii) any letter of credit, except to the extent of unreimbursed obligations in respect of drawn letters of credit ( provided that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Total Debt until three business days after such amount is drawn (it being understood that any borrowing, whether automatic or otherwise, to fund such reimbursement shall be counted)) and (iii) obligations under Hedge Agreements.]
“ First Lien Net Leverage Ratio ” means, with respect to any Test Period, the ratio of (a) Consolidated First Lien Net Debt outstanding as of the last day of such Test Period to (b) Consolidated EBITDA of the Borrower for such Test Period.
“ Fixed Charge Coverage Ratio ” means, as of any date, the ratio of:
 
(1)	(a) Consolidated EBITDA of the Borrower for the most recent Test Period, minus (b) cash taxes and other tax distributions, minus (c) non-financed cash Capital Expenditures of the Borrower for such period (it being understood that capital expenditures funded with proceeds of revolving loans will not be deemed to be “financed” for the purpose of this clause (c)), to	
 
(2)	Fixed Charges of the Borrower for such Test Period.	
“ Fixed Charges ” means, for any period, the sum of the following for such period:
 
(1)	Consolidated Cash Interest Expense for such period, plus	
 
(2)	all scheduled principal amortization payments that were paid or payable in cash during such period with respect to Indebtedness for borrowed money of the Borrower and the Restricted Subsidiaries, including payments in respect of Capital Leases but excluding payments with respect to intercompany Indebtedness.	
“ Interest Coverage Ratio ” means, as of any date, the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash Interest Expense for such Test Period, in each case of clause (a) and (b) calculated on a pro forma basis for the most recently ended Test Period as of such date.
“ Net Income ” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.
“ Test Period ” means, at any time, (1) with respect to the Borrower, the four consecutive fiscal quarters of the Borrower most recently ended (in each case taken as one accounting period) for which financial statements have been or are required to be delivered pursuant to [applicable sections of Credit Agreement] and (2) in the case of any Person other than the Borrower, for the period of four consecutive fiscal quarters most closely corresponding to the period set forth in clause (1).
 
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“ Total Net Leverage Ratio ” means, with respect to any Test Period, the ratio of (a) Consolidated Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the Borrower for such Test Period.
Pro Forma Calculations
(1) Notwithstanding anything to the contrary herein, financial ratios shall be calculated in the manner prescribed by this Section [        ]; provided that, notwithstanding anything to the contrary in clauses (2), (3) or (4) of this Section [        ], when calculating any financial ratio for purposes of (i) determining Applicable Margins and pricing grid step-downs, (ii) calculations of mandatory prepayments, (iii) determining compliance with the ABL Financial Covenant and (iv) any provisions related to the foregoing, the events described in this Section [        ] that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
(2) For purposes of calculating financial ratios, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been made (a) during the applicable Test Period or (b) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section [        ], then the financial ratios shall be calculated to give pro forma effect thereto in accordance with this Section [        ].
(3) Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer and may include, for the avoidance of doubt, the amount of cost savings, operating expense reductions and, synergies projected by the Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such Test Period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) relating to such Specified Transaction, net of the amount of actual benefits realized during such period from such actions (such cost savings and synergies, “ Specified Transaction Adjustments ”); provided , that
(a) such Specified Transaction Adjustments are reasonably identifiable and quantifiable in the good faith judgment of a Responsible Officer of the Borrower,
(b) such actions are taken, committed to be taken or reasonably anticipated to be taken no later than twenty four (24) months after the date of such Specified Transaction, and
(c) no amounts shall be added pursuant to this clause (3) to the extent duplicative of any amounts that are otherwise added back in calculating Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period.
(4) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of a financial covenant (in each case, other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), (a) during the applicable Test Period or (b) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then each financial ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
 
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LCA Election
Notwithstanding anything in this Agreement or any Loan Document to the contrary, when (a) calculating any applicable ratio in connection with incurrence of Indebtedness, the creation of Liens, the making of any disposition, the making of an investment, the designation of Subsidiary as restricted or unrestricted or the repayment of Indebtedness or (b) determining compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, in each case of (a) and (b) in connection with a Limited Condition Transaction, the date of determination of such ratio and determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “ LCA Election ”), be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “ LCA Test Date ”). If on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof), with such ratios and other provisions being calculated as if such Limited Condition Transaction or other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date for which financial statements are available, the Borrower could have taken such action on the relevant LCA Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless a payment or bankruptcy event of default shall be continuing on the date such Limited Condition Transaction is consummated. For the avoidance of doubt, (i) if any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA) or other provisions at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed to have been exceeded or breached solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions, unless on such date a payment or bankruptcy shall be continuing. If the Borrower has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. Notwithstanding anything in this Agreement or any Loan Document to the contrary, if the Borrower or any Restricted Subsidiary (x) incurs Indebtedness, creates Liens, makes dispositions, makes investments, makes Restricted Payments, designates any Subsidiary as restricted or unrestricted or repays any Indebtedness in connection with any Limited Condition Transaction under a ratio-based basket and (y) incurs Indebtedness, creates Liens, makes dispositions, makes investments, makes Restricted Payments, designates any Subsidiary as restricted or unrestricted or repays any Indebtedness in connection with such Limited Condition Transaction under a non-ratio-based basket (which shall occur within five Business Days of the events in clause (x) above), then the applicable ratio will be calculated with respect to any such action under the applicable ratio-based basket without regard to any such action under such non-ratio-based basket made in connection with such Limited Condition Transaction.
“ Specified Transaction ” means any investment that results in a Person becoming a Restricted Subsidiary, any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, any Permitted Acquisition, any disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower, any investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or a facility or any parcels of or interests (including leasehold interests) in real property and all improvements and fixtures thereon or any disposition of a business unit, line of business or division or a facility of the Borrower or a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or
 
Project Apex – Commitment Letter
 
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otherwise, or any incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), Restricted Payment or Incremental Loan that by the terms of this Agreement requires such test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”
 
Project Apex – Commitment Letter
 
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EXHIBIT 10.2
EXECUTION VERSION

 
$500,000,000
REVOLVING CREDIT AGREEMENT,
dated as of May 4, 2018,
among
AMNEAL PHARMACEUTICALS LLC,
as the Borrower,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent,
JPMORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A. and
RBC CAPITAL MARKETS,
as Bookrunners and Arrangers,
BANK OF AMERICA, N.A. and
ROYAL BANK OF CANADA,
as Co-Syndication Agents
and
BANK OF THE WEST, CAPITAL ONE, N.A., GOLDMAN SACHS BANK USA,
SUNTRUST BANK AND WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents

 

TABLE OF CONTENTS

 	    	 	  	Page	 	
		
ARTICLE I Definitions	  	 	1	 	
			
SECTION 1.01	    	Defined Terms	  	 	1	 	
SECTION 1.02	    	Terms Generally	  	 	80	 	
SECTION 1.03	    	Accounting Terms; GAAP; Fair Market Value	  	 	80	 	
SECTION 1.04	    	Effectuation of Transfers	  	 	81	 	
SECTION 1.05	    	Currencies	  	 	81	 	
SECTION 1.06	    	Required Financial Statements	  	 	81	 	
SECTION 1.07	    	Certifications	  	 	81	 	
SECTION 1.08	    	Pro Forma Calculations	  	 	81	 	
SECTION 1.09	    	LCA Election	  	 	83	 	
		
ARTICLE II The Credits	  	 	84	 	
			
SECTION 2.01	    	Commitments	  	 	84	 	
SECTION 2.02	    	Loans and Borrowings	  	 	86	 	
SECTION 2.03	    	Requests for Borrowings	  	 	87	 	
SECTION 2.04	    	[Reserved]	  	 	88	 	
SECTION 2.05	    	Letters of Credit	  	 	88	 	
SECTION 2.06	    	Funding of Borrowings	  	 	97	 	
SECTION 2.07	    	Interest Elections	  	 	98	 	
SECTION 2.08	    	Termination and Reduction of Commitments	  	 	99	 	
SECTION 2.09	    	Promise to Pay; Evidence of Debt	  	 	100	 	
SECTION 2.10	    	Optional Repayment of Loans	  	 	100	 	
SECTION 2.11	    	Mandatory Repayment of Loans	  	 	101	 	
SECTION 2.12	    	Fees	  	 	101	 	
SECTION 2.13	    	Interest	  	 	102	 	
SECTION 2.14	    	Alternate Rate of Interest	  	 	103	 	
SECTION 2.15	    	Increased Costs	  	 	105	 	
SECTION 2.16	    	Break Funding Payments	  	 	106	 	
SECTION 2.17	    	Taxes	  	 	106	 	
SECTION 2.18	    	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	  	 	110	 	
SECTION 2.19	    	Mitigation Obligations; Replacement of Lenders	  	 	114	 	
SECTION 2.20	    	Illegality	  	 	115	 	
SECTION 2.21	    	Incremental Facilities	  	 	116	 	
SECTION 2.22	    	Refinancing Amendments	  	 	118	 	
SECTION 2.23	    	Extensions of Loans and Revolving Commitments	  	 	119	 	
SECTION 2.24	    	Defaulting Lenders	  	 	122	 	
		
ARTICLE III Representations and Warranties	  	 	124	 	
			
SECTION 3.01	    	Organization; Powers	  	 	124	 	

							
SECTION 3.02	    	Authorization; No Contravention	  	 	125	 	
SECTION 3.03	    	Enforceability	  	 	125	 	
SECTION 3.04	    	Governmental Approvals	  	 	126	 	
SECTION 3.05	    	Title to Properties; Liens	  	 	126	 	
SECTION 3.06	    	Subsidiaries	  	 	126	 	
SECTION 3.07	    	Litigation; Compliance with Laws	  	 	127	 	
SECTION 3.08	    	Federal Reserve Regulations	  	 	128	 	
SECTION 3.09	    	Investment Company Act	  	 	128	 	
SECTION 3.10	    	Use of Proceeds	  	 	128	 	
SECTION 3.11	    	Tax Returns	  	 	128	 	
SECTION 3.12	    	No Material Misstatements	  	 	129	 	
SECTION 3.13	    	Environmental Matters	  	 	129	 	
SECTION 3.14	    	Security Documents	  	 	130	 	
SECTION 3.15	    	Location of Real Property and Leased Premises	  	 	130	 	
SECTION 3.16	    	Solvency	  	 	131	 	
SECTION 3.17	    	Financial Statements; No Material Adverse Effect	  	 	131	 	
SECTION 3.18	    	Insurance	  	 	132	 	
SECTION 3.19	    	USA PATRIOT Act; Anti-Corruption; Sanctions	  	 	132	 	
SECTION 3.20	    	Intellectual Property Rights; Licenses, Etc.	  	 	133	 	
SECTION 3.21	    	Employee Benefit Plans	  	 	134	 	
SECTION 3.22	    	Labor Matters	  	 	134	 	
SECTION 3.23	    	Borrowing Base Certificate	  	 	134	 	
		
ARTICLE IV Conditions of Lending	  	 	134	 	
			
SECTION 4.01	    	Closing Date Conditions Precedent	  	 	134	 	
SECTION 4.02	    	All Credit Events After the Closing Date	  	 	137	 	
		
ARTICLE V Affirmative Covenants	  	 	137	 	
			
SECTION 5.01	    	Existence; Businesses and Properties	  	 	138	 	
SECTION 5.02	    	Insurance	  	 	138	 	
SECTION 5.03	    	Taxes	  	 	139	 	
SECTION 5.04	    	Financial Statements, Reports, etc.	  	 	139	 	
SECTION 5.05	    	Litigation and Other Notices	  	 	143	 	
SECTION 5.06	    	Compliance with Laws	  	 	144	 	
SECTION 5.07	    	Maintaining Records; Access to Properties and Inspections	  	 	144	 	
SECTION 5.08	    	Use of Proceeds	  	 	146	 	
SECTION 5.09	    	Compliance with Environmental Laws	  	 	146	 	
SECTION 5.10	    	Further Assurances; Additional Security	  	 	146	 	
SECTION 5.11	    	Cash Management Systems; Application of Proceeds of Accounts	  	 	148	 	
SECTION 5.12	    	Post-Closing Matters	  	 	150	 	
		
ARTICLE VI Negative Covenants	  	 	150	 	
 
ii

							
SECTION 6.01	    	Indebtedness	  	 	151	 	
SECTION 6.02	    	Liens	  	 	157	 	
SECTION 6.03	    	[Reserved]	  	 	162	 	
SECTION 6.04	    	Investments, Loans and Advances	  	 	162	 	
SECTION 6.05	    	Fundamental Changes	  	 	168	 	
SECTION 6.06	    	Dispositions	  	 	169	 	
SECTION 6.07	    	Restricted Payments	  	 	173	 	
SECTION 6.08	    	Transactions with Affiliates	  	 	177	 	
SECTION 6.09	    	Business of the Borrower and its Subsidiaries	  	 	179	 	
SECTION 6.10	    	Burdensome Agreements	  	 	180	 	
SECTION 6.11	    	Limitation on Payments and Modifications of Certain Indebtedness; Amendments of Certain Documents	  	 	182	 	
SECTION 6.12	    	Use of Proceeds	  	 	184	 	
SECTION 6.13	    	Financial Performance Covenant	  	 	184	 	
		
ARTICLE VII [Reserved]	  	 	184	 	
		
ARTICLE VIII Events of Default	  	 	184	 	
			
SECTION 8.01	    	Events of Default	  	 	184	 	
SECTION 8.02	    	Right to Cure	  	 	188	 	
		
ARTICLE IX The Agents	  	 	189	 	
			
SECTION 9.01	    	Appointment	  	 	189	 	
SECTION 9.02	    	Delegation of Duties	  	 	190	 	
SECTION 9.03	    	Exculpatory Provisions	  	 	191	 	
SECTION 9.04	    	Reliance by Administrative Agent	  	 	192	 	
SECTION 9.05	    	Notice of Default	  	 	193	 	
SECTION 9.06	    	Non-Reliance on Agents and Other Lenders	  	 	193	 	
SECTION 9.07	    	Indemnification	  	 	193	 	
SECTION 9.08	    	Agent in Its Individual Capacity	  	 	194	 	
SECTION 9.09	    	Successor Agent	  	 	194	 	
SECTION 9.10	    	Arrangers; Co-Syndication Agents; Co-Documentation Agents	  	 	195	 	
SECTION 9.11	    	Collateral and Guaranty Matters	  	 	195	 	
SECTION 9.12	    	Certain ERISA Matters	  	 	198	 	
		
ARTICLE X Miscellaneous	  	 	200	 	
			
SECTION 10.01	    	Notices; Communications	  	 	200	 	
SECTION 10.02	    	Survival of Agreement	  	 	202	 	
SECTION 10.03	    	Binding Effect	  	 	202	 	
SECTION 10.04	    	Successors and Assigns	  	 	202	 	
SECTION 10.05	    	Expenses; Indemnity	  	 	208	 	
SECTION 10.06	    	Right of Set-off	  	 	211	 	
SECTION 10.07	    	Applicable Law	  	 	212	 	
 
iii

							
SECTION 10.08	    	Waivers; Amendment	  	 	212	 	
SECTION 10.09	    	Interest Rate Limitation	  	 	216	 	
SECTION 10.10	    	Entire Agreement	  	 	217	 	
SECTION 10.11	    	WAIVER OF JURY TRIAL	  	 	217	 	
SECTION 10.12	    	Severability	  	 	217	 	
SECTION 10.13	    	Counterparts	  	 	217	 	
SECTION 10.14	    	Headings	  	 	217	 	
SECTION 10.15	    	Jurisdiction; Consent to Service of Process	  	 	217	 	
SECTION 10.16	    	Confidentiality	  	 	218	 	
SECTION 10.17	    	Platform; Borrower Materials	  	 	220	 	
SECTION 10.18	    	[Reserved]	  	 	220	 	
SECTION 10.19	    	USA PATRIOT Act Notice	  	 	220	 	
SECTION 10.20	    	Intercreditor Agreements	  	 	221	 	
SECTION 10.21	    	No Advisory or Fiduciary Responsibility	  	 	221	 	
SECTION 10.22	    	Private-Side Information Contacts	  	 	222	 	
SECTION 10.23	    	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	  	 	222	 	
SECTION 10.24	    	Incorporation by Reference	  	 	223	 	
 
iv

Exhibits and Schedules

Exhibit A	 	Form of Assignment and Acceptance	
Exhibit B	 	Form of Borrowing Base Certificate	
Exhibit C	 	Form of Solvency Certificate	
Exhibit D-1	 	Form of Borrowing Request	
Exhibit D-2	 	Form of Letter of Credit Request	
Exhibit E	 	Form of Interest Election Request	
Exhibit F	 	[Reserved]	
Exhibit G	 	U.S. Tax Compliance Certificate	
Exhibit H	 	Form of Junior Lien Intercreditor Agreement	
Exhibit I	 	Form of Note	
Exhibit J	 	FILO Intercreditor Provisions	
		
Schedule 1.01(1)	 	Existing Letters of Credit	
Schedule 1.01(2)	 	Collateral Locations	
Schedule 2.01	 	Commitments	
Schedule 3.06	 	Subsidiaries	
Schedule 3.11	 	Taxes	
Schedule 3.13	 	Environmental Matters	
Schedule 3.15(1)	 	Owned Material Real Property	
Schedule 3.15(2)	 	Leased Material Real Property	
Schedule 3.18	 	Insurance	
Schedule 5.12	 	Post-Closing Matters	
Schedule 6.04	 	Investments	
Schedule 6.08	 	Transactions with Affiliates	
Schedule 6.10	 	Burdensome Agreements	
Schedule 10.01	 	Notice Information	
 
v

REVOLVING CREDIT AGREEMENT, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”), by and among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “ Borrower ”), the Lenders party hereto from time to time and JPMORGAN CHASE BANK, N.A. (“ JPM ”), as administrative agent (in such capacity, and as further defined in Section 1.01, the “ Administrative Agent ”), and as collateral agent (in such capacity, and as further defined in Section 1.01, the “ Collateral Agent ”).
RECITALS
 
(1)	Pursuant to the Business Combination Agreement, dated as of October 17, 2017 (such agreement, including all exhibits and schedules thereto, each as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Acquisition Agreement ”), by and among Impax (as defined herein), Atlas Holdings, Inc., a Delaware corporation which on the Closing Date will change its name to Amneal Pharmaceuticals, Inc. (“ Amneal Inc. ”), and the Borrower, Amneal Inc. will directly or indirectly (a) acquire (the “ Acquisition ”) all of the Capital Stock of Impax and (b) contribute (the “ Contribution ”) all of the Capital Stock of Impax to the Borrower.	
 
(2)	In connection with the consummation of the Acquisition, (a) the Lenders have agreed to extend credit to the Borrower in the form of Revolving Loans and Letters of Credit in an aggregate principal amount not to exceed $500.0 million, (b) certain financial institutions have agreed to extend credit to the Borrower in the form of term loans under the Term Loan Credit Agreement (as defined herein) in an aggregate principal amount of $2,700.0 million and (c) the proceeds of the Loans borrowed on the Closing Date under this Agreement and the Initial Term Loans (as defined in the Term Loan Credit Agreement, the “ Initial Term Loans ”) will be applied on the Closing Date to (i) consummate the Acquisition, the Closing Date Refinancing and the other Transactions (including the Specified Tender Offer, which shall be consummated with the portion of the Initial Term Loans deposited into the Escrow Account (as defined in the Term Loan Credit Agreement)) and (ii) pay the Transaction Costs (as defined herein).	
AGREEMENT
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Defined Terms . As used in this Agreement, the following terms have the meanings specified below:
“ ABL Priority Collateral ” means “ ABL Priority Collateral ” as defined in the Closing Date Intercreditor Agreement.
 
1

“ ABR ” means, for any day, a fluctuating rate per annum equal to the highest of:
 
(1)	the NYFRB Rate in effect on such day plus  1 ⁄ 2 of 1%;	
 
(2)	the Prime Rate in effect on such day;	
 
(3)	the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day; and	
 
(4)	1.00% per annum.	
Any change in the ABR due to a change in the NYFRB Rate, the Prime Rate or the Adjusted LIBO Rate will be effective from and including the effective date of such change in the NYFRB Rate, the Prime Rate or the Adjusted LIBO Rate, as the case may be. If the ABR is being used as an alternate rate of interest pursuant to Section 2.11 hereof, then the ABR shall be the greater of clauses (1), (2) and (4) above and shall be determined without reference to clause (3) above. For the avoidance of doubt, if the ABR as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“ ABR Borrowing ” means a Borrowing comprised of ABR Loans.
“ ABR Loan ” means any Loan bearing interest at a rate determined by reference to the ABR.
“ ABR Revolving Facility Borrowing ” means a Borrowing comprised of ABR Revolving Loans.
“ ABR Revolving Loan ” means any Revolving Loan bearing interest at a rate determined by reference to the ABR.
“ Acceptable Appraiser ” means (a) Hilco Valuation Services, LLC or (b) any other experienced and reputable appraiser reasonably acceptable to the Borrower and the Administrative Agent.
“ Account ” means, with respect to a Person, any of such Person’s now owned and hereafter acquired or arising accounts (as defined in the UCC), including, whether or not constituting “accounts” (as defined in the UCC), any rights to payment for the sale or lease of goods or Inventory or rendition of services, whether or not they have been earned by performance or arising out of the use of a credit or charge card or information contained on or used with such card (and whether same is an “Account” or “General Intangible” as defined in the UCC).
“ Acquisition ” has the meaning assigned to such term in the recitals hereto.
“ Acquisition Agreement ” has the meaning assigned to such term in the recitals hereto.
 
2

“ Acquisition Documents ” means the collective reference to the Acquisition Agreement, all exhibits and schedules thereto and all agreements expressly contemplated thereby, each as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“ Additional Lender ” means the banks, financial institutions and other institutional lenders and investors (other than natural persons and any Disqualified Institution) that become Lenders in connection with Incremental Commitments or Refinancing Term Loans; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to any Additional Lender to the extent its consent would be required under Section 10.04 for an assignment of Term Loans to such Additional Lender.
“ Adjusted LIBO Rate ” means, with respect to any Eurocurrency Revolving Facility Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“ Administrative Agent ” means JPM, in its capacity as administrative agent for itself and the Lenders hereunder, and any duly appointed successor in such capacity.
“ Administrative Agent Fees ” has the meaning assigned to such term in Section 2.12(3).
“ Administrative Questionnaire ” means a customary Administrative Questionnaire in a form supplied by the Administrative Agent.
“ Affiliate ” means, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. No Person (other than the Borrower or any Subsidiary of the Borrower) in whom a Receivables Subsidiary makes an Investment in connection with a Qualified Receivables Financing will be deemed to be an Affiliate of the Borrower or any of its Subsidiaries solely by reason of such Investment.
“ Agency Fee Letter ” means the Agency Fee Letter, dated November 6, 2017, by and among the Borrower, JPM, BANA and MLPFSI, as amended and in effect from time to time and including any joinders thereto.
“ Agents ” means the Administrative Agent and the Collateral Agent, in their respective capacities as such.
“ Agreement ” has the meaning assigned to such term in the introductory paragraph hereof.
“ Amneal Holdings ” means Amneal Holdings, LLC, a Delaware limited liability company.
“ Amneal Inc. ” has the meaning assigned to such term in the recitals hereto.
 
3

“ Annual Financial Statements ” has the meaning assigned to such term in Section 5.04(1).
“ Anti-Corruption Laws ” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Borrower or the Restricted Subsidiaries from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, and other similar legislation in any other jurisdictions (as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced).
“ Applicable Commitment Fee Percentage ” means a percentage per annum equal to (1) initially, 0.375% and (2) after September 30, 2018, the percentages per annum determined in accordance with the grid set forth below, based on Average Historical Excess Availability for the most recent fiscal quarter ending on the date prior to the first day of each fiscal quarter of the Borrower:

Level	  	Average Historical Excess Availability	  	Commitment Fee Percentage	
I	  	Greater than 50% of the Line Cap	  	0.375%	
II	  	Less than or equal to 50% of the Line Cap	  	0.25%	
For purposes of the foregoing, each change in the Applicable Commitment Fee Percentage resulting from a change in Average Historical Excess Availability shall be effective during the period commencing on and including the first day of each fiscal quarter of the Borrower and ending on the last day of such fiscal quarter, it being understood and agreed that, for purposes of determining the Applicable Commitment Fee Percentage on the first day of any fiscal quarter of the Borrower, the Average Historical Excess Availability during the most recently ended fiscal quarter of the Borrower shall be used.
“ Applicable Margin ” means, as of the Closing Date, (1) for ABR Loans, 0.50%, and (2) for Eurocurrency Revolving Loans, 1.50 % and, after September 30, 2018, the percentages per annum determined in accordance with the pricing grid set forth below, based on Average Historical Excess Availability for the most recent fiscal quarter ending on the date prior to the first day of each fiscal quarter of the Borrower:

Pricing Level	  	Average Historical Excess
Availability	  	Applicable
Margin for
Eurocurrency
Revolving Loans	  	Applicable
Margin for ABR
Loans	
I	  	Greater than or equal to 66.7% of the Line Cap	  	1.25%	  	0.25%	
II	  	Less than 66.7% of the Line Cap but greater than or equal to 33.3% of the Line Cap	  	1.50%	  	0.50%	
III	  	Less than 33.3% of the Line Cap	  	1.75%	  	0.75%	
 
4

For purposes of the foregoing, each change in the Applicable Margin resulting from a change in Average Historical Excess Availability shall be effective during the period commencing on and including the first day of each fiscal quarter of the Borrower and ending on the last day of such fiscal quarter, it being understood and agreed that, for purposes of determining the Applicable Margin on the first day of any fiscal quarter of the Borrower, the Average Historical Excess Availability during the most recently ended fiscal quarter of the Borrower shall be used.
“ Approved Fund ” means, with respect to any Lender, any fund that is administered, advised or managed by:
 
 	(a)	such Lender;	
 
 	(b)	any Affiliate of such Lender; or	
 
 	(c)	any entity or an Affiliate of an entity that administers, advises or manages such Lender.	
“ Arranger ” means each of JPM, BANA and RBC.
“ Arranger Fee Letter ” means the Amended and Restated Fee Letter, dated November 6, 2017, by and among the Borrower, JPM, BANA, MLPFSI and RBC, as amended and in effect from time to time and including any joinders thereto.
“ Asset Sale ” means any Casualty Event, or any sale, transfer or other disposition (including any Sale Leaseback Transaction) to any Person of any asset or assets of the Borrower or any Restricted Subsidiary, other than any disposition of any Securitization Assets.
“ Assignee ” has the meaning assigned to such term in Section 10.04(2).
“ Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an Assignee, and accepted by the Administrative Agent and the Borrower (if required by Section 10.04), substantially in the form of Exhibit A or such other form that is approved by the Administrative Agent and reasonably satisfactory to the Borrower.
“ Attributable Indebtedness ” means, on any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“ Availability Period ” means the period from and including the Closing Date to but excluding the earlier of the Maturity Date and the date of termination of the Revolving Facility Commitments.
“ Available Unused Commitment ” means, with respect to a Lender at any time, an amount equal to the amount by which (1) the Revolving Facility Commitment of such Lender at such time exceeds (2) the aggregate Revolving Facility Credit Exposure of such Lender at such time.
 
5

“ Average Historical Excess Availability ” means, for any period, the average daily Excess Availability for such period.
“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“ BANA ” means Bank of America, N.A.
“ Blocked Account ” has the meaning assigned to such term in Section 5.11.
“ Below Threshold Asset Sale Proceeds ” means the cash proceeds of Asset Sales involving aggregate consideration of $25.0 million or less.
“ Beneficial Owner ” has the meaning given to that term in Rule 13d-3 and Rule 13d-5 under the Exchange Act. The terms “ Beneficially Owns ” and “ Beneficially Owned ” have a corresponding meaning.
“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.
“ Board of Directors ” means, as to any Person, the board of directors, board of managers or other governing body of such Person, or if such Person is owned or managed by a single entity, the board of directors, board of managers or other governing body of such entity, and the term “directors” means members of the Board of Directors.
“ Borrower ” has the meaning assigned to such term in the recitals to this Agreement.
“ Borrower Materials ” has the meaning assigned to such term in Section 10.17(1).
“ Borrowing ” means a group of Loans of a single Type made on a single date and, in the case of Eurocurrency Revolving Loans, as to which a single Interest Period is in effect.
“ Borrowing Base ” means, at any time, the sum of:
 
(1)	85% of the Eligible Accounts held by the Loan Parties; plus	
 
(2)	the lesser of:	
 
6

 	(a)	70% of the Eligible Inventory held by the Loan Parties valued at Cost on a first-in, first-out basis; and	
 
 	(b)	85% of the Net Orderly Liquidation Value of Eligible Inventory held by the Loan Parties valued at the lower of Cost or market on a first-in, first-out basis; plus	
 
(3)	100% of all Eligible Cash held by the Loan Parties; less	
 
(4)	Reserves in effect at such time;	
provided , that notwithstanding anything to the contrary herein or in any other Loan Document, from the Closing Date until the Initial Borrowing Base Date, the Borrowing Base will be deemed to be $350 million for all purposes of this Agreement and the other Loan Documents.
“ Borrowing Base Certificate ” means a certificate, signed by a Responsible Officer of the Borrower, substantially in the form of Exhibit B (or another form acceptable to the Administrative Agent and the Borrower) setting forth the calculation of the Borrowing Base, including a calculation of each component thereof (including, to the extent the Borrower has received notice of any such Reserve from the Administrative Agent, any of the Reserves included in such calculation), all in such detail as is reasonably satisfactory to the Administrative Agent. All calculations of the Borrowing Base in connection with the preparation of any Borrowing Base Certificate will be made by the Borrower and certified to the Administrative Agent.
“ Borrowing Minimum ” means $500,000 in the case of ABR Borrowings and $1,000,000 in the case of Eurocurrency Revolving Facility Borrowings.
“ Borrowing Multiple ” means $100,000 in the case of ABR Borrowings and Eurocurrency Revolving Facility Borrowings.
“ Borrowing Request ” means a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit D-1.
“ Budget ” has the meaning assigned to such term in Section 5.04(5).
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided that when used in connection with a Eurocurrency Revolving Loan, the term “ Business Day ” also excludes any day on which banks are not open for dealings in deposits in the London interbank market.
“ Capital Expenditures ” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases) incurred by the Borrower and the Restricted Subsidiaries during such period that, in accordance with GAAP, are or should be included in “additions to property, plant or equipment” or similar items reflected in the consolidated statement of cash flows of the Borrower and its Restricted Subsidiaries for such period; provided that Capital Expenditures will not include:
 
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(1)	expenditures to the extent they are made with (a) Equity Interests of any Parent Entity or (b) proceeds of the issuance of Equity Interests (other than Disqualified Stock) of, or a cash capital contribution to, the Borrower after the Closing Date;	
 
(2)	expenditures with proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Borrower and its Restricted Subsidiaries;	
 
(3)	interest capitalized during such period;	
 
(4)	expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third party (excluding the Borrower and any Restricted Subsidiary) and for which none of the Borrower or any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other Person (whether before, during or after such period);	
 
(5)	the book value of any asset owned by the Borrower or any Restricted Subsidiary prior to or during such period to the extent that such book value is included as a Capital Expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that any expenditure necessary in order to permit such asset to be reused will be included as a Capital Expenditure during the period that such expenditure is actually made;	
 
(6)	the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (a) used or surplus equipment traded in at the time of such purchase or (b) the proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business;	
 
(7)	Investments in respect of any Permitted Acquisitions;	
 
(8)	the Acquisition; or	
 
(9)	the purchase of property, plant or equipment to the extent purchased with the proceeds of Asset Sales that are not applied to prepay loans pursuant to Section 2.08 of the Term Loan Credit Agreement.	
“ Capital Lease Obligations ” means, with respect to any Person, at the time any determination thereof is to be made, the obligations of such Person to pay rent or other amounts under any lease of (or other similar arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP (excluding the footnotes thereto) and, for purposes hereof, the amount of such obligations at any time will be the capitalized amount thereof at such time determined in accordance with GAAP.
 
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“ Capital Leases ” means all leases that have been or are required to be, in accordance with GAAP as in effect on the Closing Date, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capital Lease shall be the amount thereof accounted for as a liability in accordance with GAAP as in effect on the Closing Date.
“Capital Stock” means:
 
(1)	in the case of a corporation, corporate stock;	
 
(2)	in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;	
 
(3)	in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and	
 
(4)	any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.	
“ Captive Insurance Subsidiary ” means any Subsidiary that is subject to regulation as an insurance company (or any Subsidiary thereof).
“ Cash Dominion Period ” means the period commencing upon the occurrence of, and continuing during the continuation of, a Liquidity Condition or any Designated Event of Default. Once commenced, a Cash Dominion Period will continue until such Liquidity Condition or Designated Event of Default has been cured or waived or is no longer continuing, as applicable.
“ Cash Equivalents ” means:
 
(1)	Dollars, Canadian dollars, Japanese yen, pounds sterling, euros or the national currency of any participating member of the European Union or, in the case of any Non-U.S. Subsidiary, any local currencies held by it from time to time in the ordinary course of business and not for speculation;	
 
(2)	direct obligations of the United States of America, the United Kingdom or any member of the European Union or any agency thereof or obligations guaranteed by the United States of America, the United Kingdom or any member of the European Union or any agency thereof, in each case, with maturities not exceeding two years;	
 
(3)	time deposits, eurodollar time deposits, certificates of deposit and money market deposits, in each case, with maturities not exceeding one year from the date of acquisition thereof, demand deposits, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any commercial bank having capital, surplus and undivided profits of not less than $250.0 million (or the foreign currency equivalent thereof);	
 
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(4)	repurchase obligations for underlying securities of the types described in clauses (2) and (3) above and clause (6) below entered into with a bank meeting the qualifications described in clause (3) above;	
 
(5)	commercial paper or variable or fixed rate notes maturing not more than one year after the date of acquisition issued by a corporation rated at least “P-1” by Moody’s or “A-1” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency);	
 
(6)	securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, having one of the two highest rating categories obtainable from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized rating agency);	
 
(7)	Indebtedness issued by Persons with a rating of at least “A 2” by Moody’s or “A” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency), in each case, with maturities not exceeding one year from the date of acquisition, and marketable short-term money market and similar securities having a rating of at least “P-2” or “A-2” from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized rating agency);	
 
(8)	Investments in money market funds with average maturities of 12 months or less from the date of acquisition that are rated “Aaa3” by Moody’s and “AAA” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency);	
 
(9)	instruments equivalent to those referred to in clauses (1) through (8) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above customarily utilized in the countries where any such Restricted Subsidiary is located or in which such Investment is made;	
 
(10)	shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (1) through (9) above; and	
 
(11)	solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited to make in accordance with applicable law.	
“ Cash Management Bank ” means any provider of Cash Management Services that, at the time such Cash Management Obligations were entered into or, if entered into prior to the Closing Date, on the Closing Date, was the Administrative Agent, a Lender or an Affiliate of the foregoing, whether or not such Person subsequently ceases to be the Administrative Agent, a Lender or an Affiliate of the foregoing.
“ Cash Management Obligations ” means obligations owed by the Borrower or any Restricted Subsidiary to any Cash Management Bank in respect of or in connection with Cash Management Services and designated by the Cash Management Bank and the Borrower in writing to the Administrative Agent as “Cash Management Obligations” under this Agreement (but only if such obligations have not been designated as “Cash Management Obligations” under the Term Loan Credit Agreement).
 
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“ Cash Management Services ” means any treasury, depository, pooling, netting, overdraft, stored value card, purchase card (including so called “procurement card” or “P-card”), debit card, credit card, cash management and similar services and any automated clearing house transfer of funds.
“ Casualty Event ” means any event that gives rise to the receipt by the Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
“ Certain Funds Provisions ” has the meaning given to such term in the Commitment Letter.
A “ Change in Control ” will be deemed to occur if:
 
(1)	at any time a “change of control” (or comparable event) occurs under the Term Loan Credit Agreement or the documentation governing any Permitted Refinancing Indebtedness in respect of the foregoing, in each case, if any Indebtedness is outstanding under such agreement; or	
 
(2)	any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act, but excluding any employee benefit plan of such Person and its subsidiaries and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Permitted Holders, acquires, directly or indirectly, Beneficial Ownership of Equity Interests representing more than 35% of the aggregate ordinary voting power (determined on a fully diluted basis but without giving effect to contingent voting rights that have not yet vested) represented by the issued and outstanding Equity Interests of Amneal Inc. and the percentage of the aggregate ordinary voting power so held is greater than the percentage of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Amneal Inc. Beneficially Owned, directly or indirectly, in the aggregate by the Permitted Holders, taken together (determined on a fully diluted basis but without giving effect to contingent voting rights that have not yet vested) unless, in the case of this clause (2), the Permitted Holders have the right or the ability by voting power, contract or otherwise to elect or designate for election a majority of the board of directors of Amneal Inc.; or	
 
(3)	Amneal Inc. fails to Control the Borrower.	
“ Change in Law ” means:
 
(1)	the adoption of any law, rule or regulation after the Closing Date;	
 
(2)	any change in law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date; or	
 
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(3)	compliance by any Lender (or, for purposes of Section 2.15(2), by any lending office of such Lender or by such Lender’s holding company, if any) with any written request, guideline or directive (whether or not having the force of law) of any Governmental Authority, made or issued after the Closing Date; provided that, notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives promulgated thereunder or issued in connection therewith and (b) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case pursuant to Basel III, in each case will be deemed to be a “Change in Law,” regardless of the date enacted, adopted, promulgated or issued.	
“ Charges ” has the meaning assigned to such term in Section 10.09.
“ Closing Date ” means May 4, 2018.
“ Closing Date EBITDA ” means $619,791,601.
“ Closing Date First Lien Net Leverage Ratio ” means 4.20 to 1.00.
“ Closing Date Intercreditor Agreement ” means the ABL / Term Loan Intercreditor Agreement, dated as of the Closing Date, by and among the Administrative Agent, the Collateral Agent and JPM, as administrative agent and collateral agent under the Term Loan Credit Agreement, and acknowledged by the Loan Parties, as amended, restated, amended and restated, supplemented or otherwise modified from time to time pursuant to the terms hereof and thereof.
“ Closing Date Refinancing ” means the repayment of the debt and termination of the commitments under the Existing Credit Facilities and release of all Liens and security interests related thereto.
“ Closing Date Total Net Leverage Ratio ” means 4.20 to 1.00.
“ Co-Documentation Agents ” means Bank of the West, Capital One N.A., Goldman Sachs Bank USA, Suntrust Bank and Wells Fargo Bank, National Association.
“ Co-Syndication Agents ” means Bank of America, N.A. and Royal Bank of Canada.
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Collateral ” means the “ Collateral ” as defined in the Collateral Agreement and also includes all other property that is subject to any Lien in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to any Security Document; provided that, for the avoidance of doubt, the Collateral will not include any Excluded Assets.
 
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“ Collateral Access Agreement ” means a landlord waiver or other agreement, in a form as shall be reasonably satisfactory to the Collateral Agent, between the Collateral Agent and any third party (including any bailee, consignee, customs broker, or other similar Person) in possession of any Collateral or any landlord of any premises where any Collateral is located, as such landlord waiver or other agreement may be amended, restated, or otherwise modified from time to time.
“ Collateral Agent ” means JPM, in its capacity as Collateral Agent for itself and the other Secured Parties, and any duly appointed successor in that capacity.
“ Collateral Agreement ” means the ABL Guarantee and Collateral Agreement dated as of the Closing Date, among the Loan Parties party thereto and the Collateral Agent, as amended, amended and restated, supplemented or otherwise modified from time to time.
“ Collateral Test Triggering Event ” means any date on which Specified Excess Availability has been less than the greater of (A) $37.5 million and (B) 15% of the Line Cap for five (5) consecutive Business Days.
“ Commitment Fee ” has the meaning assigned to such term in Section 2.12(1).
“ Commitment ” means (1) with respect to each Lender, such Lender’s Revolving Facility Commitment and (2) with respect to any Issuing Bank, its Letter of Credit Commitment. On the Closing Date, the aggregate amount of Commitments is $500.0 million.
“ Commitment Letter ” means that certain Amended and Restated Commitment Letter, dated as of November 6, 2017, by and among the Borrower, JPM, BANA, MLPFSI and RBC and including any joinders thereto.
“ Consolidated Amortization Expense ” means, with respect to any Person for any Test Period, the amortization expense of such Person and its Restricted Subsidiaries for such Test Period, including the amortization of deferred financing fees or costs for such Test Period, determined on a consolidated basis in accordance with GAAP.
“ Consolidated Cash Interest Expense ” means, with respect to any Person and its Restricted Subsidiaries (on a consolidated basis) for any Test Period, the sum of: (1) cash consolidated interest expense (less cash interest income) for such period plus (2) all cash dividend payments (excluding items eliminated in consolidation) on any series of Disqualified Stock made during such period.
“ Consolidated Debt ” means, as of any date of determination, the sum (without duplication) of the aggregate principal amount of all Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on such date consisting of Indebtedness for borrowed money, unreimbursed obligations in respect of drawn letters of credit (to the extent not cash collateralized), Capital Lease Obligations, Indebtedness obligations evidenced by bonds, debentures, notes or similar instruments and obligations with respect to Disqualified Stock, determined on a consolidated basis in accordance with GAAP (but excluding the effects of the application of purchase accounting in connection with the Transactions, any Permitted Acquisition or any other investment permitted hereunder), based upon the most recent fiscal quarter for which Required Financial Statements have been or are required to have been delivered; provided , that Consolidated Debt will include any Convertible Indebtedness to the extent of the aggregate principal amount thereof; provided , further , that Consolidated Debt shall not include any Indebtedness in respect of:
 
(1)	any Qualified Receivables Transaction;	
 
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(2)	any letter of credit, except to the extent of unreimbursed obligations in respect of drawn letters of credit ( provided that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Debt until three business days after such amount is drawn (it being understood that any borrowing, whether automatic or otherwise, to fund such reimbursement shall be counted)); or	
 
(3)	obligations under Hedge Agreements.	
“ Consolidated Depreciation Expense ” means, with respect to any Person for any Test Period, the depreciation expense of such Person and its Restricted Subsidiaries for such Test Period, determined on a consolidated basis in accordance with GAAP.
“ Consolidated EBITDA ” means, with respect to any Person for any Test Period, Consolidated Net Income of such Person and its Restricted Subsidiaries for such Test Period, adjusted by:
 
(1)	adding thereto, in each case, only to the extent deducted (and not added back) in determining such Consolidated Net Income and without duplication:	
 
 	(a)	Consolidated Interest Expense for such Test Period;	
 
 	(b)	Consolidated Amortization Expense for such Test Period;	
 
 	(c)	Consolidated Depreciation Expense for such Test Period;	
 
 	(d)	Consolidated Tax Expense for such Test Period;	
 
 	(e)	the amount of any restructuring, severance, relocation, consolidation, integration, remediation or similar items or reserves in such Test Period (whether or not characterized as such in accordance with GAAP), including items or reserves incurred or taken in connection with (i) Permitted Acquisitions and other Permitted Investments after the Closing Date and (ii) severance and the consolidation or closing of any facilities after the Closing Date;	
 
 	(f)	the amount of costs relating to signing, retention and completion bonuses, relocation expenses, recruiting expenses, costs and expenses incurred in connection with any strategic or new initiatives, transition costs, consolidation and closing costs for facilities, business optimization expenses and new systems design and implementation costs;	
 
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 	(g)	the amount of “run-rate” cost savings, operating expense reductions and synergies related to the Transactions, any Specified Transaction or any other restructuring, cost saving initiative or other initiative that are projected by such Person in good faith to result from actions taken, committed to be taken or expected to be taken no later than 24 months after the end of such Test Period (which amounts will be determined by such Person in good faith and calculated on a Pro Forma Basis as though such amounts had been realized on the first day of such Test Period), net of the amount of actual benefits realized during such Test Period from such actions; provided , that the amounts added back pursuant to this clause (g) shall not exceed 25% of Consolidated EBITDA after giving effect to this clause (g);	
 
 	(h)	any costs or expenses incurred in such Test Period pursuant to or in connection with or resulting from any management equity plan, profits interest or stock option plan or any other management or employee benefit plan or agreement or any post-employment benefit plans or agreements or any grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other similar rights or any stock subscription, stockholders or partnership agreement;	
 
 	(i)	any net loss from disposed, abandoned, closed or discontinued operations;	
 
 	(j)	cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any Test Period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (2) below for any previous Test Period and not added back;	
 
 	(k)	any non-cash charges or expenses reducing Consolidated Net Income for such Test Period (provided that if any such non-cash item represents an accrual or reserve for potential cash items in any future Test Period, (i) such Person may determine not to add back such non-cash item in the current Test Period and (ii) to the extent such Person does decide to add back such non-cash item, the cash payment in respect thereof in such future Test Period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior Test Period);	
 
 	(l)	all charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of Equity Interests held by officers or employees of such Person and all losses, charges and expenses related to payments made to holders of options or other derivative Equity Interests in the common equity of such Person or any direct or indirect parent thereof in connection with, or as a result of, any distribution being made to equity holders of such Person or any direct or indirect parent thereof, which payments are being made to compensate such option holders as though they were equity holders at the time of, and entitled to share in, such distribution;	
 
 	(m)	the amount of any expenses paid on behalf of any member of the board of directors or reimbursable to such member of the board of directors;	
 
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 	(n)	all judgments, liabilities, obligations, damages of any kind, including liquidated damages, settlement amounts, losses, fines, costs, fees, expenses (including reasonable attorneys’ fees and disbursements), penalties and interest and other charges or expenses in connection with any lawsuit or other proceeding against such Person and its Subsidiaries; provided, that the amounts added back pursuant to this clause (n) shall not exceed 15% of Consolidated EBITDA prior to giving effect to this clause (n);	
 
 	(o)	losses or discounts on any sale of receivables, Securitization Assets and related assets in connection with any Qualified Receivables Transaction;	
 
 	(p)	earn-outs and contingent consideration obligations (including to the extent accounted for as bonuses and other compensation), payments in respect of dissenting shares, and purchase price adjustments, made by such Person during such Test Period, in each case, in connection with an investment or acquisition permitted hereunder;	
 
 	(q)	the amount of any contingent payments in connection with the licensing of Intellectual Property Rights or other assets;	
 
 	(r)	any extraordinary, non-recurring or unusual costs items; and	
 
 	(s)	other adjustments consistent with Regulation S-X; and	
(2) subtracting therefrom, in each case only to the extent (and in the same proportion) included or added in determining such Consolidated Net Income and without duplication:
 
 	(a)	the aggregate amount of all non-cash items increasing Consolidated Net Income (other than (i) the accrual of revenue or recording of receivables in the ordinary course of business and (ii) the reversal of any accrual of a reserve referred to in the parenthetical in clause (1)(k) of this definition (other than any such reversal that results from a cash payment subtracted from Consolidated EBITDA)) for such Test Period;	
 
 	(b)	any extraordinary, non-recurring or unusual gains; and	
 
 	(c)	any net income from disposed, abandoned, closed or discontinued operations.	
Notwithstanding the foregoing, Consolidated EBITDA of the Borrower (i) for the fiscal quarter ended March 31, 2017, shall be deemed to be $124,962,967, (ii) for the fiscal quarter ended June 30, 2017, shall be deemed to be $146,611,301, (iii) for the fiscal quarter ended September 30, 2017, shall be deemed to be $179,033,361, and (iv) for the fiscal quarter ended December 31, 2017, shall be deemed to be $169,183,972, as such amounts may be adjusted pursuant to Pro Forma adjustments permitted by this Agreement.
 
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“ Consolidated First Lien Net Debt ” means, as of any date, the Loans, the Initial Term Loans and any other Consolidated Debt outstanding as of such date that is secured on a pari passu basis with the Liens that secure the Initial Term Loans, minus all Unrestricted Cash as of such date in an aggregate amount not to exceed $150,000,000, in each case, determined based upon the most recent fiscal quarter for which Required Financial Statements have been or are required to have been delivered; provided that for purposes of calculating the amount of Consolidated First Lien Net Debt with respect to any Indebtedness being incurred in reliance on compliance with any financial ratio-based incurrence test, Unrestricted Cash will not include any proceeds received from such Indebtedness.
“ Consolidated Interest Expense ” means, with respect to any Person for any Test Period, the total consolidated interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, including , without duplication:
 
(1)	imputed interest on Capital Lease Obligations and Attributable Indebtedness of such Person and its Restricted Subsidiaries for such Test Period;	
 
(2)	commissions, discounts and other fees, charges and expenses owed by such Person and its Restricted Subsidiaries with respect to letters of credit securing financial obligations, bankers’ acceptance financing and receivables financings for such Test Period;	
 
(3)	pay-in-kind interest payments, amortization and write-offs of deferred financing fees, debt issuance costs, debt discount, or premium, commissions and other financing fees and expenses (including expensing of any bridge, commitment or other financing fees) incurred by such Person and its Restricted Subsidiaries for such Test Period including net costs under Hedge Agreements dealing with interest rates and any commitment fees payable thereunder and all discounts, commissions, fees and other similar charges associated with any Qualified Receivables Transaction;	
 
(4)	cash contributions to any employee stock ownership plan or similar trust made by such Person and its Restricted Subsidiaries to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than such Person or a wholly-owned Subsidiary) in connection with Indebtedness incurred by such plan or trust for such Test Period;	
 
(5)	all interest paid or payable with respect to discontinued operations of such Person and its Restricted Subsidiaries for such Test Period;	
 
(6)	the interest portion of any deferred payment obligations of such Person and its Restricted Subsidiaries for such Test Period; and	
 
(7)	all interest on any Indebtedness of such Person and its Restricted Subsidiaries that is (a) Indebtedness of others secured by any Lien on property owned or acquired by such Person or its Subsidiaries, whether or not the obligations secured thereby have been assumed, but limited to the fair market value of such property or (b) contingent obligations of such Person or its Subsidiaries in respect of Indebtedness;	
 
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provided that Consolidated Interest Expense shall be calculated after giving effect to Hedge Agreements related to interest rates (including associated costs), but excluding unrealized gains and losses with respect to such Hedge Agreements; provided further that when determining Consolidated Interest Expense in respect of any Test Period ending prior to the first anniversary of the Closing Date, Consolidated Interest Expense will be calculated by multiplying the aggregate Consolidated Interest Expense accrued since the Closing Date by 365 and then dividing such product by the number of days from and including the Closing Date to and including the last day of such Test Period. For purposes of this definition, interest on Capital Lease Obligations will be deemed to accrue at the interest rate reasonably determined by a Responsible Officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligations in accordance with GAAP.
“ Consolidated Net Income ” means, with respect to any Person for any Test Period, the Net Income of such Person and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such consolidated net income (to the extent otherwise included therein), without duplication:
 
(1)	the Net Income for such Test Period of any Person that is not a Subsidiary, or that is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that the Borrower’s or any Restricted Subsidiary’s equity in the Net Income of such Person shall be included in the Consolidated Net Income of the Borrower for such Test Period up to the aggregate amount of dividends or distributions or other payments in respect of such equity that are actually paid in cash (or to the extent converted into cash) by such Person to the Borrower or a Restricted Subsidiary, in each case, in such Test Period, to the extent not already included therein;	
 
(2)	[Reserved];	
 
(3)	any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized by such Person or any of its Restricted Subsidiaries during such Test Period upon any asset sale or other disposition of any Equity Interests of any Person (other than any dispositions in the ordinary course of business) by such Person or any of its Restricted Subsidiaries;	
 
(4)	gains and losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP for such Test Period;	
 
(5)	earnings (or losses), including any impairment charge, resulting from any reappraisal, revaluation or write-up (or write-down) of assets during such Test Period;	
 
(6)	(a) unrealized gains and losses with respect to Hedge Agreements for such Test Period pursuant to the application of Accounting Standards Codification 815 (Derivatives and Hedging) and (b) any after-tax effect of income (or losses) for such Test Period that result from the early extinguishment of (i) Indebtedness, (ii) obligations under any Hedge Agreements or (iii) other derivative instruments;	
 
(7)	any extraordinary, non-recurring or unusual gain (or extraordinary, non-recurring or unusual loss), together with any related provision for taxes on any such gain (or the tax effect of any such loss), recorded or recognized by such Person or any of its Restricted Subsidiaries during such Test Period;	
 
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(8)	the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such Test Period;	
 
(9)	any after-tax gains (or losses) on disposal of disposed, abandoned or discontinued operations for such Test Period;	
 
(10)	effects of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in the inventory, property and equipment, software, goodwill, other intangible assets, in-process research and development, deferred revenue, debt and unfavorable or favorable lease line items in such Person’s consolidated financial statements pursuant to GAAP for such Test Period resulting from the application of purchase accounting in relation to the Transactions or any acquisition consummated prior to the Closing Date and any Permitted Acquisition or other investment or the amortization or write-off of any amounts thereof, net of taxes, for such Test Period;	
 
(11)	any non-cash compensation charge or expense (including any deferred non-cash compensation expense) for such Test Period, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights and any cash charges or expenses associated with the rollover, acceleration or payout of Equity Interests by, or to, management of the such Person or any of its Restricted Subsidiaries in connection with the Transactions;	
 
(12)	(a) Transaction Costs incurred during such Test Period (including, for the avoidance of doubt, any charges, costs or expenses pursuant to or in connection with or resulting from any Existing Notes LM Transaction or Specified Tender Offer) and (b) any fees and expenses incurred during such Test Period, or any amortization thereof for such Test Period, in connection with any acquisition (other than the Transactions), investment, disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt or equity instrument (in each case, including any such transaction whether consummated on, after or prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring costs incurred during such Test Period as a result of any such transaction;	
 
(13)	any expenses, charges or losses for such Test Period that are covered by indemnification or other reimbursement provisions in connection with any investment, Permitted Acquisition or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement, to the extent actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); and	
 
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(14)	to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses for such Test Period with respect to liability or casualty events or business interruption.	
“ Consolidated Tax Expense ” means, with respect to any Person for any Test Period, taxes based on gross receipts, income, profits or capital, franchise, excise or similar taxes, and foreign withholding taxes, of such Person and its Restricted Subsidiaries for such Test Period, including (1) penalties and interest related thereto and (2) tax distributions made to any direct or indirect holders of Equity Interests of such Person in respect of any such taxes.
“ Consolidated Total Assets ” means, as of any date, the total assets of the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, determined based upon the most recent month-end financial statements available internally as of the date of determination, and calculated on a Pro Forma Basis.
“ Consolidated Total Net Debt ” means, as of any date, the Consolidated Debt outstanding as of such date minus all Unrestricted Cash as of such date in an aggregate amount not to exceed $150,000,000, in each case, determined based upon the most recent financial statements available internally as of the date of determination; provided that for purposes of calculating the Consolidated Total Net Debt with respect to any Indebtedness being incurred in reliance on compliance with any financial ratio-based incurrence test, Unrestricted Cash will not include any proceeds received from such Indebtedness.
“ continuing ” means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“ Contribution ” has the meaning assigned to such term in the recitals hereto.
“ Contribution Indebtedness ” means Indebtedness in an aggregate outstanding principal amount not to exceed an amount equal to 100% of the net cash proceeds and the fair market value of property (other than cash) received by the Borrower from Permitted Equity Issuances or as a contribution to its common equity capital, in each case, after the Closing Date and on or prior to the date of such incurrence (other than Excluded Contributions, Cure Amounts and sales of Equity Interests to the Borrower or any of its Subsidiaries) that are Not Otherwise Applied.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “ Controlling ” and “ Controlled ” will have correlative meanings.
“ Control Agreement ” has the meaning assigned to such term in the Collateral Agreement.
 
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“ Convertible Indebtedness ” means (1) the Impax Convertible Notes and (2) any Indebtedness of a Loan Party (which may be Guaranteed by other Loan Parties) permitted to be incurred hereunder that is either (a) convertible into common Capital Stock of the Borrower or of any direct or indirect parent thereof (or other applicable securities or property following a merger event or other change of the common Capital Stock of the Borrower) (and cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of such common Capital Stock or such other securities) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common Capital Stock of the Borrower or of any direct or indirect parent thereof and/or cash (in an amount determined by reference to the price of such common Capital Stock).
“ Cost ” means the calculated cost of purchases, based upon the Borrower’s accounting practices as reflected in the most recent Annual Financial Statements, which practices are consistent with the methodology used in the most recent appraisal delivered in connection with this Agreement prior to the Closing Date.
“ Covenant Trigger Event ” means that Specified Excess Availability is less than either (a) the greater of (i) $25.0 million and (ii) 10.0% of the Line Cap then in effect for two (2) consecutive Business Days or (b) the greater of (i) $18.75 million and (ii) 7.5% of the Line Cap then in effect at any time. Once commenced, a Covenant Trigger Event will be deemed to be continuing until such time as Specified Excess Availability equals or exceeds such amount, as reflected in a Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 5.04(9), for 20 consecutive days.
“ Credit Agreement Refinanced Debt ” has the meaning assigned to it in the definition of “ Credit Agreement Refinancing Indebtedness ”.
“ Credit Agreement Refinancing Indebtedness ” means secured or unsecured Indebtedness of the Borrower in the form of term loans or notes; provided that:
 
(1)	such Indebtedness is incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, Indebtedness (“ Credit Agreement Refinanced Debt ”) that is either Loans or other Credit Agreement Refinancing Indebtedness;	
 
(2)	such Indebtedness is in an original aggregate principal amount not greater than the principal amount of the Credit Agreement Refinanced Debt ( plus (a) the amount of unpaid, accrued or capitalized interest, penalties, premiums (including tender premiums), defeasance costs and other similar amounts payable with respect thereto and (b) underwriting discounts, fees, commissions, costs, expenses and other similar amounts payable with respect to such Credit Agreement Refinancing Indebtedness);	
 
(3)	(a) the Weighted Average Life to Maturity of such Indebtedness is equal to or longer than the remaining Weighted Average Life to Maturity of the Credit Agreement Refinanced Debt, and (b) the final maturity date of such Credit Agreement Refinancing Indebtedness may not be earlier than the Latest Maturity Date;	
 
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(4)	such Indebtedness may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments hereunder on the same basis as any Refinancing Term Loans;	
 
(5)	such Indebtedness will rank pari passu or junior in right of payment to the Credit Agreement Refinanced Debt;	
 
(6)	such Indebtedness is not secured by any assets or property of the Borrower or any Restricted Subsidiary that does not constitute Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender);	
 
(7)	such Indebtedness is not guaranteed by any Person other than a Guarantor;	
 
(8)	if such Indebtedness is secured:	
 
 	(a)	such Indebtedness shall be secured on a junior basis to the Revolving Facility Claims, except in the case of Credit Agreement Refinancing Indebtedness constituting Refinancing Term Loans (which shall be secured on a pari passu basis with any other outstanding Refinancing Term Loans);	
 
 	(b)	the security agreements relating to such Indebtedness are substantially similar to or the same as the applicable Security Documents (as determined in good faith by a Responsible Officer of the Borrower); and	
 
 	(c)	except in the case of Credit Agreement Refinancing Indebtedness constituting Refinancing Term Loans, a Debt Representative, acting on behalf of the holders of such Indebtedness, will become party to or otherwise subject to the provisions of a Junior Lien Intercreditor Agreement and/or, if applicable, the Closing Date Intercreditor Agreement; provided that, to the extent such Indebtedness constitutes Refinancing Term Loans, it shall be subject to the relative priorities and intercreditor provisions as described in Section 2.22(1); and	
 
(9)	the terms and conditions of such Indebtedness (a) are substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Indebtedness than, those applicable to such Credit Agreement Refinanced Debt (except for covenants applicable only to periods after the Latest Maturity Date at the time of incurrence) and (b) solely to the extent that any terms and conditions applicable to any such Credit Agreement Refinanced Debt are not substantially the same as, or are materially more restrictive on the Borrower and the Restricted Subsidiaries than, those then applicable to the Credit Agreement Refinanced Debt, shall otherwise reflect customary market terms and conditions, including with respect to high yield debt securities to the extent applicable, at the time of such incurrence of such Credit Agreement Refinancing Indebtedness ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Credit Agreement Refinancing Indebtedness, together with a reasonably detailed description of the material covenants and events of default of such Credit Agreement Refinancing Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in	
 
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 	good faith that such terms and conditions satisfy the requirement of this clause (9) shall be conclusive evidence that such Indebtedness satisfies this clause (9) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided that this clause (9) will not apply to (v) terms addressed in the preceding clauses (1) through (8), (w) interest rate, rate floors, fees, funding discounts and other pricing terms, (x) redemption, prepayment or other premiums, or (y) optional prepayment or redemption terms; provided further that the Borrower will promptly deliver to the Administrative Agent final copies of the definitive credit documentation relating to such Indebtedness (unless the Borrower is bound by a confidentiality obligation with respect thereto, in which case the Borrower will deliver a reasonably detailed description of the material terms and conditions of such Indebtedness in lieu thereof).	
Credit Agreement Refinancing Indebtedness will include any Registered Equivalent Notes issued in exchange therefor.
“ Credit Event ” has the meaning assigned to such term in Article IV.
“ Cure Amount ” has the meaning assigned to such term in Section 8.02.
“ Cure Right ” has the meaning assigned to such term in Section 8.02.
“ Customs Broker Agreement ” means an agreement, in form reasonably satisfactory to the Collateral Agent, in which the customs broker or other carrier acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the benefit of the Collateral Agent and agrees, upon notice from the Collateral Agent, to hold and dispose of such Inventory solely as directed by the Collateral Agent.
“ DDA ” means any checking or other demand deposit account maintained by the Loan Parties in the United States.
“ Debt Representative ” means, with respect to any Junior Lien Debt, the lenders or other holders of such Indebtedness or the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“ Default ” means any event or condition which, but for the giving of notice, lapse of time or both, would constitute an Event of Default.
 
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“ Defaulting Lender ” means any Lender that:
 
(1)	has refused (without retraction) or failed to (a) fund its portion of any Borrowing, or (b) pay to any Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due;	
 
(2)	has notified the Borrower, any Agent or any Issuing Bank that it does not intend to comply with its funding obligations under any Loan Document, or has made a public statement to that effect;	
 
(3)	has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations under any Loan Document ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (3) upon receipt of such written confirmation by the Administrative Agent and the Borrower); or	
 
(4)	has, or has a direct or indirect parent company that has:	
 
 	(a)	become insolvent or the subject of a proceeding under any voluntary or involuntary case under any Debtor Relief Law,	
 
 	(b)	had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or	
 
 	(c)	become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.	
Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (1) through (4) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Borrower, each Issuing Bank and each Lender.
“ Designated Event of Default ” means any Event of Default under Section 8.01(2), Section 8.01(3), Section 8.01(4) (solely with respect to a default under Section 5.04(9), Section 5.11 or Section 6.13), Section 8.01(8) or Section 8.01(9).
 
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“ Designated Non-Cash Consideration ” means the fair market value of non-cash consideration received by the Borrower or any Restricted Subsidiary in connection with an Asset Sale that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.
“ Discharge of ABL Revolving Claims ” has the meaning assigned to the term “Discharge of ABL Claims” in the Closing Date Intercreditor Agreement, except that, solely for purposes of this definition, the principal amount of any Refinancing Term Loans and any interest, fees, attorneys’ fees, costs, expenses, indemnities and other Obligations relating thereto do not constitute “ABL Claims” (as defined in the Closing Date Intercreditor Agreement).
“ Disinterested Director ” means, with respect to any Person and transaction, a member of the Board of Directors of such Person who does not have any material direct or indirect financial interest in or with respect to such transaction.
“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (excluding Liens, but including any sale or issuance of Equity Interests in a Restricted Subsidiary and any sale leaseback transactions of a Loan Party) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“ Disqualified Institution ” means:
 
(1)	those entities identified by or on behalf of the Borrower in writing to the Administrative Agent, from time to time prior to or after the completion of general syndication, as competitors of the Borrower or its Subsidiaries or Impax or its Subsidiaries;	
 
(2)	those banks, financial institutions, other institutional lenders and other persons identified in writing by or on behalf of the Borrower or Impax to the Arrangers from time to time prior to October 17, 2017;	
 
(3)	those banks, financial institutions, other institutional lenders and other persons identified in writing by or on behalf of the Borrower to the Arrangers after October 17, 2017 if such designation is reasonably acceptable to the Arrangers; and	
 
(4)	any clearly identifiable (solely on the basis of the similarity of its name or as identified in writing by or on behalf of the Borrower) Affiliate of the entities described in the preceding clauses (1), (2) and (3) (other than, with respect to this clause (4), any bona fide Debt Fund Affiliates thereof).	
Notwithstanding the foregoing, each Loan Party and the Lenders acknowledge and agree that (i) the Administrative Agent will not have any responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Institution and the Administrative Agent will have no liability with respect to or arising out of any assignment or participation of Term Loans to a Disqualified Institution and (ii) any written notice of a Disqualified Institution shall be deemed not delivered and not effective unless delivered by or on behalf of the Borrower to the Administrative Agent by email to JPMDQ_Contact@jpmorgan.com and shall only become effective, as of and following, two (2) Business Days after such delivery.
 
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“ Disqualified Stock ” means, with respect to any Person, any Equity Interests of such Person that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is redeemable or exchangeable at the option of the holder thereof), or upon the happening of any event or condition:
 
(1)	mature or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale are subject to the prior Payment in Full and the termination of the Commitments);	
 
(2)	is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part;	
 
(3)	provides for the scheduled payments of dividends in cash; or	
 
(4)	is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in each case, prior to the date that is 91 days after the earlier of:	
 
 	(a)	the Latest Maturity Date at the time of issuance; and	
 
 	(b)	the date on which the Term Loans and all other Obligations (other than Obligations in respect of Specified Hedge Agreements, Cash Management Obligations and contingent indemnification and reimbursement obligations that are not yet due and payable and for which no claim has been asserted) are Paid in Full and the Commitments are terminated and any outstanding Letters of Credit are expired, terminated or cash collateralized on terms reasonably satisfactory to the applicable Issuing Bank(s);	
provided that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided , further , that if such Equity Interests are issued pursuant to any plan for the benefit of any future, current or former officers, directors, managers, employees, consultants or independent contractors of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof, or their respective estates, heirs, family members, spouses, former spouses, successors, executors, administrators, trustees, legatees or distributees, such Equity Interests will not constitute Disqualified Stock solely because they may be required to be repurchased by the Borrower or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of any such Person’s termination, death or disability; and provided , further , that any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of any Equity Interests that is not Disqualified Stock will not be deemed to be Disqualified Stock. For the avoidance of doubt, any Convertible Indebtedness or any Permitted Convertible Indebtedness Call Transaction will not be deemed to be Disqualified Stock.
“ Dollars ” or “ $ ” means lawful money of the United States of America.
 
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“ EEA Financial Institution ” means:
 
(1)	any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority;	
 
(2)	any entity established in an EEA Member Country which is a parent of an institution described in clause (1) of this definition; or	
 
(3)	any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (1) or (2) of this definition and is subject to consolidated supervision with its parent.	
“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“ EEA Resolution Authority ” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ Dominion Account ” has the meaning assigned to such term in Section 5.11.
“ Eligible Accounts ” means, at any time, all Accounts of any Loan Party that constitute proceeds from the sale or disposition of Inventory in the ordinary course of business and that are reflected in the most recent Borrowing Base Certificate, except any Account with respect to which any of the exclusionary criteria set forth below applies. No Account will be an Eligible Account if:
 
(1)	Past Due / Extended : such Account are not paid within the earlier of sixty (60) days following its due date or more than (a) one hundred (120) days in respect of Accounts for which any of Cardinal, AmerisourceBergen, Walgreens, McKesson or any of their respective Affiliates is the Account debtor or (b) one hundred (100) days in respect of Accounts (other than Accounts for which Cardinal, AmerisourceBergen, Walgreens, McKesson or any of their respective Affiliates is the Account debtor), in the case of the foregoing clauses (a) and (b), following its original invoice date; provided that, in calculating delinquent portions of Accounts under this clause (1), only such delinquent portions will be excluded;	
 
(2)	Non-U.S./Canadian Accounts : unless otherwise agreed by the Administrative Agent or such Account is backed by a letter of credit reasonably acceptable to the Administrative Agent, such Account is the obligation of an Account debtor that (i) does not maintain its chief executive office in the United States, Canada or any political subdivision of any thereof or (ii) is not organized under the applicable laws of the United States or political subdivision thereof or the District of Columbia or Canada or any political subdivision thereof;	
 
(3)	Other Liens : such Account is (a) not owned by a Loan Party, (b) not subject to the valid, perfected and (subject to Liens having priority by operation of applicable Law) first priority Lien of the Collateral Agent as to such Account or (c) is subject to any other Lien	
 
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 	of any other Person, other than (i) Liens in favor of any Agent pursuant to any Loan Document, (ii) Liens permitted under Section 6.02(9), 6.02(10), 6.02(11), 6.02(12), 6.02(13), 6.02(17), 6.02(18), 6.02(22), 6.02(24) or 6.02(29) (including any Liens permitted under Section 6.02(40) with respect to the foregoing) or Permitted Liens arising by operation of law, in each case that do not have priority over the Liens that secure the Revolving Facility Claims or (iii) (x) Permitted Liens securing Indebtedness permitted under Section 6.01(1) which Liens do not have priority over the Liens that secure the Revolving Facility Claims, (y) Permitted Liens securing Ratio Debt, Indebtedness permitted under Section 6.01(2) and Indebtedness incurred pursuant to Section 6.01(11), 6.01(19), 6.01(21) or 6.01(28) (and in each case, any Permitted Refinancing Indebtedness thereof permitted under Section 6.01) and (z) Liens permitted under Section 6.02(14), 6.02(19), 6.02(20), 6.02(25), 6.02(28), 6.02(30), 6.02(31), 6.02(32), 6.02(33), 6.02(36)(a), 6.02(39) or 6.02(42) (including any Liens permitted under Section 6.02(40) with respect to the foregoing), which Liens, in the case of each of the foregoing clauses (y) and (z), are secured on a junior basis to the Liens that secure the Revolving Facility Claims;	
 
(4)	Not Bona Fide : Accounts that are not true and correct statements of bona fide indebtedness incurred in the amount of such Account by the applicable Account debtor;	
 
(5)	Disputed Accounts : such Account is disputed, or a claim, counterclaim, discount, deduction, reserve, allowance, recoupment, offset or chargeback has been asserted with respect thereto by the applicable Account debtor (but only to the extent of such dispute, claim, counterclaim, discount, deduction, reserve, allowance, recoupment, offset or chargeback);	
 
(6)	Bankruptcy : such Account is owed by an Account debtor that is subject to a bankruptcy proceeding of the type specified in Section 8.01(8) or (9) or that is liquidating, dissolving or winding up its affairs or otherwise deemed not creditworthy by the Administrative Agent in its Reasonable Credit Judgment; provided that (i) the Administrative Agent may, in its sole discretion, include Accounts from Account debtors subject to such proceedings if and to the extent that such Accounts are fully covered by credit insurance, letters of credit or other sufficient third-party credit support, or are otherwise deemed by the Administrative Agent not to pose an unreasonable risk of non-collectability;	
 
(7)	Judgments, Notes or Chattel Paper : such Account is evidenced by Chattel Paper or an Instrument (each as defined in the Collateral Agreement) of any kind, or has been reduced to judgment;	
 
(8)	Cross Aged Accounts : such Account is the obligation of an Account debtor if fifty percent (50%) or more of the Dollar amount of all Accounts owing by that Account debtor are ineligible under the other criteria set forth in this definition;	
 
(9)	Government Accounts : such Account is the obligation of an Account debtor that is the United States government or a political subdivision thereof, or any state, county or municipality or department, agency or instrumentality thereof unless Administrative Agent, in its sole discretion, has agreed to the contrary in writing, or the applicable Loan Party has complied with respect to such obligation with the Federal Assignment of Claims Act of 1940, or any applicable state, county or municipal law restricting the assignment thereof with respect to such obligation;	
 
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(10)	Contra Accounts : such Account to the extent the Borrower or any subsidiary thereof is liable for goods sold or services rendered by the applicable Account debtor, but only to the extent of the potential offset;	
 
(11)	Inter-Company/Affiliate Accounts : such Account arises from a sale to any Affiliate of any Loan Party or any employee, officer or director of the Borrower or any Subsidiary or any of their respective Affiliates or to any entity that has any common officer or director with any Loan Party; provided that the foregoing shall not apply to Accounts arising from sales (which sales are on terms and conditions not less favorable to the applicable Loan Party than would reasonably be obtained by such Loan Party in a comparable arm’s length transaction with a Person other than an Affiliate of a Loan Party) to any Affiliates (other than the Borrower and its Subsidiaries) that are portfolio companies of the Investors;	
 
(12)	Unbilled Accounts : an invoice with respect to such Account has not been sent to the applicable Account debtor;	
 
(13)	Progress Billing : such Account (i) as to which a Loan Party is not able to bring suit or otherwise enforce its remedies against the applicable Account debtor through judicial process or (ii) if the Account represents a progress billing consisting of an invoice for goods sold or used or services rendered pursuant to a contract under which the Account debtor’s obligation to pay that invoice is subject to a Loan Party’s completion of further performance under such contract or is subject to the equitable lien of a surety bond issuer;	
 
(14)	Bill and Hold; C.O.D. : such Account arises with respect to goods that are sold on a bill-and-hold or cash-on-delivery basis;	
 
(15)	Non-Acceptable Alternative Currency : unless otherwise agreed by the Administrative Agent or such Account is backed by a letter of credit reasonably acceptable to the Administrative Agent, such Account is payable in any currency other than Dollars;	
 
(16)	Conditional Sale : such Account arises with respect to goods that are placed on consignment, guarantied sale or other terms by reason of which the payment by the applicable Account debtor is conditional;	
 
(17)	Non-Ordinary Course Sales : such Account does not arise from the sale of goods or the performance of services by a Loan Party in the ordinary course of business;	
 
(18)	Consumer Sales : such Account arises with respect to goods that are sold by any party directly to individual consumers;	
 
(19)	Reserves; Rebates; Etc. : such Account to the extent a Loan Party has reserved for credits to be applied against the balance of such Account, but only to the extent of such potential credits, including without limitation any rebates, billbacks, chargebacks, redistribution fees, service level fees, miscellaneous fees and administrative fees;	
 
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(20)	Concentration Risk (Cardinal, AmerisourceBergen, Walgreens and McKesson) : with respect to Accounts for which any of Cardinal, AmerisourceBergen, Walgreens, McKesson or any of their respective Affiliates is the Account debtor (and solely to the extent that the respective long-term credit rating of Cardinal, AmerisourceBergen, Walgreens or McKesson, as applicable, is at least “BB” (“B+” in the case of Walgreens) from S&P and at least “Ba2” (“B1” in the case of Walgreens) from Moody’s), Accounts of such Account debtor, to the extent that such Accounts, together with all other Accounts owing by the respective Account debtor and its Affiliates, exceed thirty percent (30%) of all Eligible Accounts; provided that only such portion of such Accounts in excess of thirty percent (30%) of all Eligible Accounts will be excluded; provided further that if any of Cardinal, AmerisourceBergen, Walgreens or McKesson does not have at least the long-term credit rating set forth herein, then the limitation set forth in clause (21) of this definition shall be applicable to such Account debtor; or	
 
(21)	Concentration Risk (Other Account Debtors) : to the extent such Account (other than Accounts for which Cardinal, AmerisourceBergen, Walgreens, McKesson or any of their respective Affiliates is the Account debtor and only if the long-term credit rating of Cardinal, AmerisourceBergen, Walgreens or McKesson, as applicable, is at least “BB” (“B+” in the case of Walgreens) from S&P and at least “Ba2” (“B1” in the case of Walgreens) from Moody’s), together with all other Accounts owing by such Account debtor and its Affiliates as of any date of determination, exceed twenty percent (20%) of all Eligible Accounts; provided that only such portion of such Accounts in excess of twenty percent (20%) of all Eligible Accounts will be excluded.	
If any Account at any time ceases to be an Eligible Account, then such Account will promptly be excluded from the calculation of the Borrowing Base; provided that if any Account ceases to be an Eligible Account because of the adjustment of or imposition of new exclusionary criteria pursuant to the succeeding paragraph, the Administrative Agent will not require exclusion of such Account from the Borrowing Base until 5 Business Days following the date on which the Administrative Agent gives notice to the Borrower of such ineligibility; provided that upon such notice, the Borrower shall not be permitted to borrow any Loans or have any Letters of Credit issued so as to exceed the Line Cap after giving effect to such adjustment or imposition of new exclusionary criteria.
The Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust any of the exclusionary criteria set forth above and to establish new criteria, in each case, in its Reasonable Credit Judgment (based on an analysis of material facts or events first occurring, or first discovered by the Administrative Agent, after the Closing Date), subject to the necessary approvals set forth in Section 10.08 in the case of adjustments or new criteria which have the effect of making more credit available than would have been available based upon the criteria in effect on the Closing Date.
 
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“ Eligible Cash ” means Unrestricted Cash of a Loan Party held in a segregated deposit account or securities account that is cash denominated in Dollars and either (a) maintained with the Collateral Agent, for the benefit of the Secured Parties, as security for the Obligations or (b) if not maintained with the Collateral Agent, maintained with a Lender and subject to a Control Agreement; provided that in no event shall any cash held in any Excluded Account be included in Eligible Cash.
“ Eligible Inventory ” means all Inventory owned by any Loan Party reflected in the most recent Borrowing Base Certificate, except any Inventory with respect to which any of the exclusionary criteria set forth below applies. No item of Inventory will be Eligible Inventory if such item:
 
(1)	Unperfected : is not subject to a first priority (subject to any Permitted Liens arising by operation of law) perfected Lien in favor of the Collateral Agent as to such Inventory;	
 
(2)	Other Liens : is (a) not owned by a Loan Party or (b) is subject to any Lien of any Person, other than (i) Liens in favor of any Agent pursuant to any Loan Document, (ii) Liens permitted under Section 6.02(9), 6.02(10), 6.02(11), 6.02(12), 6.02(19), or 6.02(24) (including any Liens permitted under Section 6.02(40) with respect to the foregoing) or Permitted Liens arising by operation of law, in each case, that do not have priority over the Liens that secure the Revolving Facility Claims or (iii) (x) Permitted Liens securing Indebtedness permitted under Section 6.01(1) which Liens do not have priority over the Liens that secure the Revolving Facility Claims, (y) Permitted Liens securing Ratio Debt, Indebtedness permitted under Section 6.01(2) and Indebtedness incurred pursuant to Section 6.01(11), 6.01(15)(b), 6.01(19), 6.01(21), 6.01(28) or 6.01(30) (and in each case, any Permitted Refinancing Indebtedness thereof permitted under Section 6.01) and (z) Liens permitted under Section 6.02(13), 6.02(22), 6.02(28), 6.02(30), 6.02(31), 6.02(32), 6.02(33), 6.02(36)(b), 6.02(36)(c), 6.02(36)(d) or 6.02(42) (including any Liens permitted under Section 6.02(40) with respect to the foregoing), which Liens, in the case of each of the foregoing clauses (y) and (z), are secured on a junior basis to the Liens that secure the Revolving Facility Claims;	
 
(3)	Obsolete/Expired : is damaged, excess, obsolete, unsalable (including if such item of Inventory has not been approved by the FDA), shopworn, seconds, discontinued, work in process, recalled or expired or will expire within six months or less or otherwise fully reserved in accordance with normal operating practices;	
 
(4)	Not Owned : is not owned by one or more Loan Parties;	
 
(5)	Consignment : is the subject of a consignment by any Loan Party as consignor;	
 
(6)	Off-Site : is not located in a public third-party warehouse or on premises owned, leased or rented by a Loan Party and, in each case, set forth in Schedule 1.01(2) (as such schedule may be amended or supplemented from time to time);	
 
(7)	Leased Location : is located at any location leased by the Borrower or any Subsidiary, unless either (i) the lessor has delivered to the Collateral Agent a Collateral Access Agreement as to such location or (ii) a Reserve for rent, charges, and other amounts due or to become due with respect to such location has been established by the Administrative Agent in its Reasonable Credit Judgment;	
 
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(8)	Bailees / Warehousemen : is located in any third-party warehouse or is in the possession of a bailee and is not evidenced by a Document (as defined in Article 9 of the UCC), unless either (i) a reasonably satisfactory bailee letter has been delivered to the Administrative Agent with respect thereto or (ii) an appropriate Reserve for rent, charges, and other amounts due or to become due with respect to such location has been established by the Administrative Agent in its Reasonable Credit Judgment;	
 
(9)	Mortgage : is located at an owned location subject to a mortgage in favor of a lender other than the Collateral Agent, unless either (i) a reasonably satisfactory mortgagee waiver has been delivered to the Administrative Agent with respect thereto or (ii) an appropriate Reserve for rent, charges, and other amounts due or to become due with respect to such location has been established by the Administrative Agent in its Reasonable Credit Judgment;	
 
(10)	Non-U.S. / In-Transit : is not located in the U.S. or is in-transit, except that Inventory in-transit will not be deemed ineligible under this clause (10) if:	
 
 	(a)	it is in-transit between U.S. locations of Loan Parties; or	
 
 	(b)	(A) it has been paid for in advance of shipment, (B) legal ownership thereof has passed to the applicable Loan Party (or is retained by the applicable Loan Party) as evidenced by customary documents of title, (C) the Collateral Agent has control over the documents of title which evidence ownership of the subject Inventory (including, if requested by the Collateral Agent, by the delivery of a Customs Broker Agreement) and (D) it is insured to the reasonable satisfaction of the Collateral Agent;	
 
(11)	Packaging / Shipping Materials; Tooling; Display : consists of packaging or shipping materials, manufacturing supplies, tooling or replacement parts or display items;	
 
(12)	Customized : contains or bears any licensing, trademark, trade name or copyright licensed to any Loan Party by any Person (other than any Subsidiary) that would require the consent of a third party for the sale or disposition of such Inventory (which consent has not been paid) unless the Collateral Agent is reasonably satisfied that it may sell or otherwise dispose of such Inventory without (a) infringing the rights of such licensor, (b) violating any contract with such licensor, or (c) incurring any liability with respect to payment of royalties other than royalties incurred pursuant to sale of such Inventory under the current licensing agreement relating thereto;	
 
(13)	Uninsured : such Inventory is not insured in accordance with Section 5.02 hereof;	
 
(14)	Negotiable Bill of Sale : such Inventory is covered by a negotiable document of title for which, promptly upon reasonable written request by the Administrative Agent, the Borrower fails to deliver such document to the Administrative Agent with all necessary endorsements, free and clear of all Liens except Liens in favor of the Collateral Agent;	
 
(15)	Not Ordinary Course : such Inventory (other than raw materials) that is not of a type held for sale in the ordinary course of business of a Loan Party;	
 
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(16)	Returns : consists of goods which have been returned by the buyer; or	
 
(17)	Permitted Acquisitions : is acquired in connection with a Permitted Acquisition to the extent the Administrative Agent has not received a Report in respect of such Inventory showing results reasonably satisfactory to the Administrative Agent.	
If any Inventory at any time ceases to be Eligible Inventory, such Inventory will promptly be excluded from the calculation of the Borrowing Base; provided , however , that if any Inventory ceases to be Eligible Inventory because of the adjustment of or imposition of new exclusionary criteria pursuant to the succeeding paragraph, the Administrative Agent will not require exclusion of such Inventory from the Borrowing Base until 5 Business Days following the date on which the Administrative Agent gives notice to the Borrower of such ineligibility; provided that upon such notice, the Borrower shall not be permitted to borrow any Loans or have any Letters of Credit issued so as to exceed the Line Cap after giving effect to such adjustment or imposition of new exclusionary criteria.
The Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust any of the exclusionary criteria set forth above and to establish new criteria, in each case, its Reasonable Credit Judgment (based on an analysis of material facts or events first occurring, or first discovered by the Administrative Agent, after the Closing Date), subject to the necessary approvals set forth in Section 10.08 in the case of adjustments or new criteria which have the effect of making more credit available than would be available based upon the criteria in effect on the Closing Date.
“ Environment ” means ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna.
“ Environmental Laws ” means all applicable laws (including common law), statutes, rules, regulations, codes, ordinances, orders, binding agreements and final, binding decrees or judgments, in each case, promulgated or entered into by or with any Governmental Authority, relating in any way to the Environment, preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to occupational health and safety matters (to the extent relating to the environment or exposure to Hazardous Materials).
“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock, any Convertible Indebtedness and any Permitted Warrant Transaction).
“ Equivalent Percentage ” means, as of any date of determination, with respect to any Dollar amount, the percentage of TTM Consolidated EBITDA of the Borrower for the four quarters ended December 31, 2017 that such Dollar amount represents, rounded to the nearest one tenth of 1%. For purposes of calculating Equivalent Percentage, TTM Consolidated EBITDA of the Borrower for the four quarters ended December 31, 2017 will be deemed to be the Closing Date EBITDA.
 
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“ ERISA ” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, and any final regulations promulgated and the rulings issued thereunder.
“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower or any of its Subsidiaries, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ ERISA Event ” means:
 
(1)	a Reportable Event, or the requirements of Section 4043(b) of ERISA apply, with respect to a Plan;	
 
(2)	a withdrawal by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower or the Borrower, any ERISA Affiliate that is treated as a termination under Section 4062(e) of ERISA;	
 
(3)	a complete or partial withdrawal by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, any ERISA Affiliate from a Multiemployer Plan, receipt of written notification by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, any ERISA Affiliate concerning the imposition of Withdrawal Liability or written notification that a Multiemployer Plan is, or is expected to be, insolvent or endangered or in critical status within the meaning of Section 305 of ERISA;	
 
(4)	the provision by a Plan administrator or the PBGC of notice of intent to terminate a Plan, to appoint a trustee to administer a Plan, the treatment of a Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a Plan or Multiemployer Plan;	
 
(5)	the incurrence by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan, other than for the payment of plan contributions or PBGC premiums due but not delinquent under Section 4007 of ERISA;	
 
(6)	the application for a minimum funding waiver under Section 302(c) of ERISA with respect to a Plan;	
 
(7)	the imposition of a lien under Section 303(k) of ERISA with respect to any Plan; and	
 
(8)	a determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA).	
“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
 
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“ Eurocurrency Revolving Facility Borrowing ” means a Borrowing comprised of Eurocurrency Revolving Loans.
“ Eurocurrency Revolving Loan ” means any Revolving Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
“ Event of Default ” has the meaning assigned to such term in Section 8.01.
“ Excess Availability ” means, at any time, (a) the Line Cap at such time minus (b) the Revolving Facility Credit Exposure at such time.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Excluded Accounts ” means any DDA, securities account, commodity account or any other deposit account of any Loan Party or Restricted Subsidiary (and all Cash, Cash Equivalents and other securities or investments credited thereto or deposited therein):
 
(1)	that is a zero balance account, disbursement account or imprest account;	
 
(2)	that does not have an individual daily balance in excess of $500,000, or in the aggregate with each other account described in this clause (2), in excess of $5,000,000;	
 
(3)	the balance of which is swept at the end of each Business Day into a deposit account, securities account or commodity account that is in the name of the Collateral Agent or subject to a Control Agreement in favor of the Collateral Agent, so long as such daily sweep is not terminated or modified (other than to provide that the balance in such deposit account, securities account or commodity account is swept into another deposit account, securities account or commodity account subject to a Control Agreement in favor of the Collateral Agent) without the consent of the Collateral Agent;	
 
(4)	that is a Trust Account;	
 
(5)	that holds Term Priority Collateral or the proceeds thereof, so long as all amounts on deposit therein constitute Term Priority Collateral; or	
 
(6)	to the extent that it is cash collateral for letters of credit (other than Letters of Credit) to the extent permitted hereunder.	
“ Excluded Assets ” means “ Excluded Assets ” as defined in the Collateral Agreement.
“ Excluded Contributions ” means, as of any date, the aggregate amount of the net cash proceeds and Cash Equivalents, together with the aggregate fair market value of other assets that are used or useful in a business permitted under Section 6.08, received by the Borrower after the Closing Date from:
 
(1)	contributions to its common equity capital; or	
 
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(2)	the sale of Capital Stock of the Borrower;	
in each case, designated as Excluded Contributions pursuant to a certificate of a Responsible Officer of the Borrower on the date such contribution is made or such Capital Stock is sold, less the aggregate amount of Investments made pursuant to Section 6.04(29) and Restricted Payments made pursuant to Section 6.07(12), in each case prior to such date and Not Otherwise Applied; provided that the proceeds of Disqualified Stock and Cure Amounts will not be treated as Excluded Contributions.
“ Excluded Equity Interests ” means “ Excluded Equity Interests ” as defined in the Collateral Agreement.
“ Excluded Subsidiary ” means any:
 
(1)	Immaterial Subsidiary;	
 
(2)	Subsidiary that is not a Wholly Owned Subsidiary of the Borrower or a Subsidiary Loan Party;	
 
(3)	Unrestricted Subsidiary;	
 
(4)	Non-U.S. Subsidiary;	
 
(5)	direct or indirect U.S. Subsidiary of a Non-U.S. Subsidiary;	
 
(6)	FSHCO;	
 
(7)	Subsidiary that is prohibited or restricted by applicable Law or by a binding contractual obligation (including any Contractual Obligation) existing on the Closing Date or at the time of the acquisition or creation of such Subsidiary (and not incurred in contemplation of such acquisition or creation) from providing a Guarantee or if such Guarantee would require consent, approval, license or authorization of or from a Governmental Authority or a third party (other than a Loan Party or a controlled Affiliate of a Loan Party);	
 
(8)	special purpose securitization vehicle (or similar entity) including any Receivables Subsidiary or like special purpose entity;	
 
(9)	Subsidiary that is a not-for-profit organization;	
 
(10)	Captive Insurance Subsidiary;	
 
(11)	Subsidiary with respect to which, in the reasonable judgment of the Borrower in consultation with the Administrative Agent, the providing of a Guarantee would result in material adverse tax consequences as reasonably determined by the Borrower in consultation with the Administrative Agent; and	
 
(12)	Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent, in consultation with the Borrower, the cost or other consequences (including any adverse tax consequences) of providing a Guarantee would be excessive in view of the benefits to be obtained by the Lenders therefrom;	
 
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provided that the Borrower, in its sole discretion, may cause any Subsidiary that otherwise qualifies as an “Excluded Subsidiary” to become a “Guarantor” in accordance with the definition thereof and thereafter such Subsidiary will not constitute an “Excluded Subsidiary” unless and until the Borrower elects otherwise.
“ Excluded Taxes ” means, with respect to any Recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder:
 
(1)	Taxes imposed on or measured by its net income (however denominated) or franchise Taxes imposed in lieu of net income Taxes, in each case, (a) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) that are Other Connection Taxes;	
 
(2)	any branch profits Tax or any similar Tax that is imposed by any jurisdiction described in clause (1) above;	
 
(3)	any U.S. withholding Tax (including any backup withholding Tax) that is in effect and would apply to amounts payable hereunder to or for the account of a Recipient under the law applicable at the time such Recipient becomes a party to this Agreement (or in the case of a Lender, under the law applicable at the time such Lender changes its lending office), except to the extent that the Recipient’s assignor (if any), at the time of assignment (or such Lender immediately before it changed its lending office), was entitled to receive additional amounts from the Loan Party with respect to any U.S. withholding Tax pursuant to Section 2.14(1) or Section 2.14(3);	
 
(4)	Taxes that are attributable to such Lender’s or Administrative Agent’s failure to comply with Section 2.14(5) or Section 2.14(6); and	
 
(5)	any withholding Taxes imposed under FATCA.	
“ Exclusive License ” means, with respect to any drug or pharmaceutical product, any license to develop, commercialize, sell, market and promote such drug or pharmaceutical product and which provides for exclusive rights to develop, use, commercialize, sell, market, import and promote such drug or product within the United States; provided that an “Exclusive License” shall not include:
 
(1)	any license solely to distribute any such drug or product on an exclusive basis within any particular geographic region or territory,	
 
(2)	any licenses, which may be exclusive, solely to manufacture any such drug or product, and	
 
(3)	any license to manufacture, use, offer for sale or sell any authorized generic version of such drug or product; and “ Exclusively License ” shall have the correlative meaning.	
 
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“ Executive Order ” has the meaning assigned to such term in Section 3.19(3)(a).
“ Existing Credit Facilities ” means:
 
(1)	that certain Revolving Credit Agreement, dated as of November 1, 2013 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) by, among others, the Borrower and Healthcare Financial Solutions, LLC (as successor in interest to General Electric Capital Corporation), as agent;	
 
(2)	that certain Credit Agreement dated as of November 1, 2013 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) by, among others, the Borrower and Healthcare Financial Solutions, LLC (as successor in interest to General Electric Capital Corporation), as agent; and	
 
(3)	those certain credit facilities of Impax and its Subsidiaries with respect to which the Acquisition Agreement requires the delivery of a payoff letter.	
“ Existing Letters of Credit ” means those Letters of Credit described on Schedule 1.01(1) hereto.
“ Existing Notes LM Transactions ” means a consent solicitation to holders of the Impax Convertible Notes, pursuant to which Impax shall solicit consents to make certain amendments to the Impax Indenture such that the Acquisition and the transaction contemplated in the Acquisition Agreement would not result in a default or event of default under the Impax Indenture in exchange for monetary consideration (including an offer (on terms to be agreed) to purchase the Impax Convertible Notes at a price equal to, if coupled with any consent fee included therein, par) or other changes to the Impax Indenture for the benefit of holders of Impax Convertible Notes.
“ Extended Commitments ” means the Revolving Facility Commitments or other commitments to make Extended Loans held by any Extending Lenders.
“ Extended Loans ” means the Loans made pursuant to Extended Commitments.
“ Extending Lenders ” means each Lender accepting an Extension Offer.
“ Extension ” has the meaning assigned to such term in Section 2.23(1).
“ Extension Amendment ” has the meaning assigned to such term in Section 2.23(2).
“ Extension Offer ” has the meaning assigned to such term in Section 2.23(1).
“ Factoring Transaction ” means any transaction or series of transactions that may be entered into by the Borrower or any Restricted Subsidiary pursuant to which the Borrower or such Restricted Subsidiary may sell, convey, assign or otherwise transfer Securitization Assets (which may include a backup or precautionary grant of security interest in such Securitization Assets so sold, conveyed, assigned or otherwise transferred or purported to be so sold, conveyed, assigned or otherwise transferred) to any Person other than a Receivables Subsidiary.
 
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“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
“ FDA ” means the United States Food and Drug Administration and any successor thereto.
“ Federal Funds Effective Rate ” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate, provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.
“ Federal Reserve Board ” means the Board of Governors of the Federal Reserve System of the United States of America.
“ Fee Letters ” means the Agency Fee Letter and the Arranger Fee Letter.
“ Fees ” means the Administrative Agent Fees and all other fees set forth in the Fee Letters payable to a Lender, the Administrative Agent or any Arranger, in each case, with respect to the Revolving Facility.
“ FILO Intercreditor Provisions ” means the provisions set forth on Exhibit J.
“ Financial Officer ” means, with respect to any Person, the chief financial officer, principal accounting officer, director of financial services, treasurer, assistant treasurer or controller of such Person or other similar officer or Person performing similar functions of such Person, designated in writing by or on behalf of the Borrower to the Administrative Agent from time to time. Any document delivered hereunder that is signed by a Financial Officer of a Loan Party will be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership or other action on the part of such Loan Party and such Financial Officer will be conclusively presumed to have acted on behalf of such Loan Party. Unless otherwise specified, all references herein to a “Financial Officer” shall refer to a Financial Officer of the Borrower.
“ Financial Performance Covenant ” means the covenant set forth in Section 6.13.
“ First Lien Net Leverage Ratio ” means, with respect to any Test Period, the ratio of (1) Consolidated First Lien Net Debt outstanding as of the last day of such Test Period to (2) Consolidated EBITDA of the Borrower for such Test Period.
 
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“ Fixed Charge Coverage Ratio ” means, as of any date, the ratio of:
 
(1)	(a) Consolidated EBITDA of the Borrower for the most recent Test Period, minus (b) cash taxes and other tax distributions paid in cash during such period, minus (c) cash Capital Expenditures of the Borrower or any Restricted Subsidiary for such period to the extent not financed with the proceeds of Funded Debt (it being understood that Capital Expenditures funded with proceeds of revolving loans (including the Loans) will not be deemed to be “financed with the proceeds of Funded Debt” for the purpose of this clause (c)), to	
 
(2)	Fixed Charges of the Borrower for such Test Period.	
“ Fixed Charges ” means, for any period, the sum of the following for such period:
 
(1)	Consolidated Cash Interest Expense of the Borrower for such period, plus	
 
(2)	all scheduled principal amortization payments that were paid or payable in cash during such period with respect to Indebtedness for borrowed money of the Borrower and the Restricted Subsidiaries, including payments in respect of Capital Leases but excluding payments with respect to intercompany Indebtedness.	
“ Foreign Lender ” means any Lender or Issuing Bank that is organized under the laws of a jurisdiction other than the United States of America. For purposes of this definition, the United States of America, each state thereof and the District of Columbia will be deemed to constitute a single jurisdiction.
“ Fronting Exposure ” means, at any time there is a Defaulting Lender, with respect to the Issuing Bank, such Defaulting Lender’s Revolving Facility Percentage of the outstanding Revolving L/C Exposure, other than Revolving L/C Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to non-Defaulting Lenders or cash collateralized in accordance with the terms hereof.
“ FSHCO ” means any direct or indirect U.S. Subsidiary that has no material assets other than Equity Interests (or Equity Interests and Indebtedness) in one or more Non-U.S. Subsidiaries or other FSHCOs.
“ Funded Debt ” means all Indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date.
“ GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession (but excluding the policies, rules and regulations of the SEC applicable only to public companies).
 
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Notwithstanding anything to the contrary above or in the definition of Capital Lease Obligations or Capital Expenditures, in the event of a change under GAAP (or the application thereof) requiring any leases to be capitalized that are not required to be capitalized as of the Closing Date, only those leases that would result or would have resulted in Capital Lease Obligations or Capital Expenditures on the Closing Date (assuming for purposes hereof that they were in existence on the Closing Date) will be considered capital leases and all calculations under this Agreement will be made in accordance therewith.
“ Governmental Authority ” means any federal, state, local or foreign court or governmental agency, authority, instrumentality, regulatory or legislative body, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“ Guarantee ” of or by any Person (the “guarantor”) means:
 
(1)	any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect:	
 
 	(a)	to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take or pay or otherwise) or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligations;	
 
 	(b)	to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof;	
 
 	(c)	to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation;	
 
 	(d)	entered into for the purpose of assuring in any other manner the holders of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part); or	
 
 	(e)	as an account party in respect of any letter of credit, bank guarantee or other letter of credit guaranty issued to support such Indebtedness or other obligation; or	
 
(2)	any Lien on any assets of the guarantor securing any Indebtedness (or any existing right, contingent or otherwise, of the holder of Indebtedness to be secured by such a Lien) of any other Person, whether or not such Indebtedness or other obligation is assumed by the guarantor;	
 
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provided , that the term “Guarantee” will not include endorsements for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness).
The amount of any Guarantee will be deemed to be an amount equal to the stated or determinable amount of the related primary Indebtedness obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“ Guarantor ” means (1) each Subsidiary Loan Party and (2) each Parent Entity or Restricted Subsidiary that the Borrower may elect in its sole discretion, from time to time, upon written notice to the Administrative Agent, to cause to Guarantee the Obligations (including by executing a supplement to the Collateral Agreement in substantially the form attached thereto), until such date that the Borrower has informed the Administrative Agent that it elects not to have such Person Guarantee the Obligations.
“ Hazardous Materials ” means all pollutants, contaminants, wastes, chemicals, materials, substances and constituents that are defined, listed or regulated under Environmental Law as hazardous or toxic, or words of similar import, or the Release or exposure to which would reasonably be expected to give rise to liability under any Environmental Law, including explosive or radioactive substances, petroleum or petroleum byproducts or distillates, friable asbestos or friable asbestos-containing materials, polychlorinated biphenyls or radon gas.
“ Health Care Laws ” means any Laws applicable to the research, development, manufacture, distribution, marketing, storage, transportation, use and sale of products controlled by the Borrower or any of the Subsidiaries, including without limitation the federal Anti-kickback Statute (42 U.S.C. § 1320a-7b(b)), the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. §§ 3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the civil monetary penalty laws (42 U.S.C. § 1320a-7a), the federal Food, Drug & Cosmetic Act (21 U.S.C. §§ 301 et seq.), the federal Controlled Substances Act (21 U.S.C. § 801 et seq.), HIPAA, the Medicaid Drug Rebate Program (42 U.S.C. § 1396r-8), Medicare average sales price reporting (42 U.S.C. § 1395w-3a), the Public Health Service Act (42 U.S.C. § 256b), the federal TRICARE program (10 U.S.C. §1071 et seq.), the VA Federal Supply Schedule (38 U.S.C. § 8126), and the regulations promulgated pursuant to such laws, each as amended from time to time.
“ Hedge Agreement ” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions, in each case, not entered into for speculative purposes; provided that no phantom stock or similar plan providing for payments only on account of services provided by any future, current or former officers, directors, managers, employees, consultants or independent contractors of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof will be a Hedge Agreement.
 
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Notwithstanding the foregoing, agreements relating to any Permitted Convertible Indebtedness Call Transaction (and the obligations and transactions relating thereto) will not constitute a Hedge Agreement.
“ IFRS ” means International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such board, or the SEC, as the case may be), as in effect from time to time.
“ Immaterial Subsidiary ” means, as of any date, any Subsidiary that (i) did not, as of the last day of the most recent fiscal quarter for which Required Financial Statements have been delivered, have assets with a value in excess of 5.0% of the Consolidated Total Assets or revenues representing in excess of 5.0% of total revenues of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters for which Required Financial Statements have been delivered, calculated on a consolidated basis in accordance with GAAP; and (ii) taken together with all Immaterial Subsidiaries as of the last day of the most recent fiscal quarter of the Borrower for which Required Financial Statements have been delivered, did not have assets with a value in excess of 10.0% of Consolidated Total Assets or revenues representing in excess of 10.0% of total revenues of the Borrower and the Restricted Subsidiaries on a consolidated basis for such four-quarter period.
“ Impacted Interest Period ” has the meaning assigned to it in the definition of “ LIBO Rate ”.
“ Impax ” means (1) prior to the Impax Conversion, Impax Laboratories, Inc., a Delaware corporation, and (2) after the consummation of the Impax Conversion, Impax Laboratories, LLC, a Delaware limited liability company.
“ Impax Conversion ” means the conversion of Impax Laboratories, Inc., a Delaware corporation, into Impax Laboratories, LLC, a Delaware limited liability company.
“ Impax Convertible Notes ” means those certain 2.00% Convertible Senior Notes due 2022 in an aggregate principal amount not to exceed $600 million, issued pursuant to the Impax Indenture.
“ Impax Indenture ” means the Indenture dated as of June 30, 2015 between Impax and Wilmington Trust, National Association (the “ Trustee ), as amended and supplemented by the First Supplemental Indenture, dated as of November 6, 2017 between Impax and the Trustee, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“ Impax Merger ” means the merger of K2 Merger Sub Corporation, a Delaware corporation, with and into Impax, with Impax surviving such merger.
“ Impax Transactions ” means the Impax Merger and the Impax Conversion.
 
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“ Increased Reporting Period ” means each period beginning on the date that Excess Availability shall have been less than the greater of (x) $75.0 million and (y) 30% of the Line Cap, for five (5) consecutive Business Days, and ending on the date Excess Availability shall have been at least the greater of (x) $75.0 million and (y) 30% of the Line Cap for thirty (30) consecutive calendar days.
“ Incremental Commitment ” has the meaning assigned to such term in Section 2.21(1).
“ Incremental Equivalent Term Debt ” has the meaning assigned to such term in the Term Loan Credit Agreement.
“ Incremental Facility ” has the meaning assigned to such term in Section 2.21(1).
“ Incremental Facility Amendment ” has the meaning assigned to such term in Section 2.21(5).
“ Incremental Lender ” has the meaning assigned to such term in Section 2.21(4).
“ Indebtedness ” means, with respect to any Person, without duplication:
 
(1)	all obligations of such Person for borrowed money;	
 
(2)	all obligations of such Person evidenced by bonds, debentures, notes or similar instruments;	
 
(3)	all obligations of such Person under conditional sale or title retention agreements relating to property or assets purchased by such Person;	
 
(4)	all obligations of such Person issued or assumed as the deferred purchase price of property or services, to the extent the same would be required to be shown as a long-term liability on a balance sheet prepared in accordance with GAAP;	
 
(5)	all Capital Lease Obligations of such Person;	
 
(6)	all net payments that such Person would have to make in the event of an early termination, on the date Indebtedness of such Person is being determined, in respect of outstanding Hedge Agreements;	
 
(7)	the principal component of all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and bank guarantees;	
 
(8)	the principal component of all obligations of such Person in respect of bankers’ acceptances;	
 
(9)	all Guarantees by such Person of Indebtedness described in clauses (1) through (8) above; and	
 
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(10)	the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued dividends that have not increased the liquidation preference of such Disqualified Stock);	
provided that Indebtedness will not include:
 
 	(a)	trade payables, accrued expenses (including for payroll and other liabilities) and intercompany liabilities arising in the ordinary course of business;	
 
 	(b)	prepaid or deferred revenue arising in the ordinary course of business;	
 
 	(c)	purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase prices of an asset to satisfy unperformed obligations of the seller of such asset; or	
 
 	(d)	earn-out obligations until such obligations become a liability on the balance sheet of such Person in accordance with GAAP.	
The Indebtedness of any Person (i) will include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such Person in respect thereof and (ii) in the case of Restricted Subsidiaries that are not Loan Parties, will exclude loans and advances made by Loan Parties having a term not exceeding 364 days (inclusive of any roll over or extensions of terms) and made in the ordinary course of business (such loans and advances, “ Short Term Advances ”). The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Swap Termination Value thereof as of such date.
“ Indemnified Taxes ” means (1) all Taxes other than Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document; and (2) to the extent not otherwise described in clause (1), Other Taxes.
“ Indemnitee ” has the meaning assigned to such term in Section 10.05(2).
“ Independent Financial Advisor ” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged and that is independent of the Borrower and its Affiliates.
“ Initial Borrowing Base Date ” means the date that is 90 days after the Closing Date (or such earlier date as the Borrower may elect after delivery of a reasonably satisfactory field examination and inventory appraisal to the Administrative Agent or such later date as may be agreed to by the Administrative Agent in its sole discretion).
“ Initial Term Loans ” has the meaning assigned to such term in the introductory paragraph hereof.
“ Intellectual Property Rights ” has the meaning assigned to such term in Section 3.20(1).
 
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“ Intercreditor Agreement ” means the Closing Date Intercreditor Agreement or a Junior Lien Intercreditor Agreement that may be executed from time to time, as applicable.
“ Interest Election Request ” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07 and substantially in the form of Exhibit E.
“ Interest Payment Date ” means (1) with respect to any Eurocurrency Revolving Loan, the last Business Day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Revolving Facility Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing and (2) with respect to any ABR Loan, the first Business Day after the end of each fiscal quarter of the Borrower commencing with the first Business Day after the end of the fiscal quarter of the Borrower ending on June 30, 2018.
“ Interest Period ” means, as to any Eurocurrency Revolving Facility Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is one, two, three or six months thereafter (or, if agreed by all applicable Lenders, 12 months or a shorter period), as the Borrower may elect, or the date any Eurocurrency Revolving Facility Borrowing is converted to an ABR Borrowing in accordance with Section 2.07 or repaid or prepaid in accordance with Section 2.09, 2.10 or 2.11; provided that:
 
(1)	if any Interest Period would end on a day other than a Business Day, such Interest Period will be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period will end on the next preceding Business Day;	
 
(2)	any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) will end on the last Business Day of the calendar month at the end of such Interest Period;	
 
(3)	no Interest Period will extend beyond the applicable Maturity Date; and	
 
(4)	interest will accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.	
“ Inventory ” means , with respect to a Person, all of such Person’s now owned and hereafter acquired inventory (as defined in the UCC), goods and merchandise, wherever located, in each case, to be furnished under any contract of service or held for sale or lease, all returned goods, raw materials, work-in-process, finished goods (including embedded software), other materials, parts and supplies of any kind, nature or description that are used or consumed in such Person’s business or used in connection with the packing, shipping, advertising, selling, or finishing of such goods, merchandise and other property, all documents of title or other documents representing the foregoing.
 
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“ Interpolated Rate ” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent in its reasonable discretion (which such determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time.
“ Investment ” has the meaning assigned to such term in Section 6.04.
“ Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P (or reasonably equivalent ratings of another internationally recognized rating agency).
“ Investment Grade Securities ” means:
 
(1)	securities issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof (other than Cash Equivalents);	
 
(2)	securities that have an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Restricted Subsidiaries;	
 
(3)	corresponding instruments in countries other than the United States customarily utilized for high quality investments and in each case with maturities not exceeding two years from the date of acquisition; and	
 
(4)	investments in any fund that invests at least 95.0% of its assets in investments of the type described in clauses (1) and (2) above which fund may also hold immaterial amounts of cash pending investment or distribution.	
“ Investors ” means, collectively:
 
(1)	all direct and indirect members of Amneal Holdings as of the Closing Date after giving effect to the Transactions;	
 
(2)	B.U. Patel, Tushar Patel, Chirag Patel, Chintu Patel and/or their respective spouses, in their individual capacities and as direct or indirect owners, beneficiaries, officers, directors, trustees or managers of any Permitted Family Entities,	
 
(3)	all immediate and extended family members of B.U. Patel, Tushar Patel, Chirag Patel, Chintu Patel and/or their respective spouses and the respective estates, heirs, family members, spouses, former spouses, executors, administrators, trustees, legatees or distributees of any of the foregoing, in each case, who have been cleared by the Administrative Agent under its standard and customary “Know Your Customer” policies, and	
 
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(4)	any Permitted Family Entities who have been cleared by the Administrative Agent under its standard and customary “Know Your Customer” policies.	
“ Issuing Bank ” means JPM, RBC and each other Lender designated as an Issuing Bank pursuant to Section 2.05(12), in each case, in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.05(10); provided that RBC, in its capacity as an Issuing Bank hereunder, shall only be required to issue standby Letters of Credit. An Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” will include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“ Issuing Bank Fees ” has the meaning assigned to such term in Section 2.12(2)(b).
“ Joint Venture ” means (1) any Person which would constitute an “equity method investee” of the Borrower or any of the Restricted Subsidiaries and (2) any Person in whom the Borrower or any of the Restricted Subsidiaries beneficially owns any Equity Interest that is not a Restricted Subsidiary (other than an Unrestricted Subsidiary).
“ JPM ” has the meaning assigned to such term in the introductory paragraph hereof.
“ Junior Financing ” means any Indebtedness permitted to be incurred hereunder that is contractually subordinated in right of payment to the Obligations or secured by Liens that are contractually subordinated to the Liens securing the Obligations or any Permitted Refinancing Indebtedness in respect of any of the foregoing (excluding, for the avoidance of doubt, the Initial Term Loans and any Indebtedness secured on a pari passu basis with the Liens that secure the Initial Term Loans); provided that any Convertible Indebtedness will not constitute Junior Financing.
“ Junior Financing Documentation ” means the definitive documentation governing any Junior Financing.
“ Junior Lien Debt ” means any Indebtedness that is secured on a junior basis to the Liens that secure the Revolving Facility Claims (excluding, for the avoidance of doubt, the Initial Term Loans and any Indebtedness secured on a pari passu basis with the Liens that secure the Initial Term Loans).
“ Junior Lien Intercreditor Agreement ” means a “junior lien” intercreditor agreement substantially in the form attached hereto as Exhibit H (as the same may be modified in a manner satisfactory to the Administrative Agent, the applicable Debt Representative and the Borrower), or another lien subordination arrangement satisfactory to the Administrative Agent, the applicable Debt Representative and the Borrower. Upon the request of the Borrower, the Administrative Agent and Collateral Agent will execute and deliver a Junior Lien Intercreditor Agreement with one or more Debt Representatives (and acknowledged by the Loan Parties) for Indebtedness permitted hereunder that is permitted to be secured on a junior basis to the Revolving Facility.
 
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“ Latest Maturity Date ” means, as of any date of determination, the latest Maturity Date of the Revolving Facility Commitments, any Extended Commitments or any Refinancing Term Loans in effect on such date.
“ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities and executive orders, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“ L/C Amount ” has the meaning assigned to such term in the definition of Revolving L/C Exposure.
“ L/C Disbursement ” means a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“ L/C Participation Fee ” has the meaning assigned such term in Section 2.12(2)(a).
“ LCA Election ” has the meaning assigned to such term in Section 1.09.
“ LCA Test Date ” has the meaning assigned to such term in Section 1.09.
“ Lender ” means each financial institution listed on Schedule 2.01 (other than any such Person that has ceased to be a party hereto pursuant to an Assignment and Acceptance in accordance with Section 10.04), as well as any Person that becomes a Lender hereunder pursuant to Section 10.04 and any Additional Lender.
“ lending office ” means, as to any Lender, the applicable branch, office or Affiliate of such Lender designated by such Lender to make Loans.
“ Letter of Credit ” has the meaning assigned to such term pursuant to Section 2.05.
“ Letter of Credit Commitment ” means, with respect to each Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit pursuant to Section 2.05.
“ Letter of Credit Request ” shall mean a request by the Borrower substantially in the form of Exhibit D-2 (or such other form as may be agreed between the Borrower and the Administrative Agent).
“ Letter of Credit Sublimit ” means the aggregate Letter of Credit Commitments of the Issuing Banks, in an amount not to exceed $25.0 million.
“ LIBO Rate ” means, with respect to any Eurocurrency Revolving Facility Borrowing for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “ Impacted Interest Period ”) then the LIBO Rate shall be the Interpolated Rate.
 
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“ LIBO Screen Rate ” means, for any day and time, with respect to any Eurocurrency Revolving Facility Borrowing for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion); provided that if the LIBO Screen Rate as so determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.
“ Lien ” means, with respect to any asset (1) any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar encumbrance in or on such asset; or (2) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event will an operating lease or an agreement to sell be deemed to constitute a Lien.
“ Limited Condition Transaction ” means any transaction permitted hereunder by the Borrower or one or more Restricted Subsidiaries the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.
“ Line Cap ” means, at any time, the lesser of (1) the aggregate Revolving Facility Commitments at such time and (2) the Borrowing Base then in effect.
“ Liquidity Condition ” means and will exist during the period from (1) the date on which Excess Availability has been less than the greater of (a) $25 million and (b) 10.0% of the Line Cap then in effect, in either case, for five (5) consecutive Business Days, to (2) the date on which Excess Availability has been equal to or greater than the greater of (a) $25 million and (b) 10.0% of the Line Cap then in effect, in either case, for 30 consecutive calendar days.
“ LLC Agreement ” means that certain Third Amended and Restated Limited Liability Company Agreement of Amneal Pharmaceuticals LLC, dated as of the Closing Date, as such agreement may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance herewith and therewith.
“ Loan Accounts ” means the loan accounts established on the books of the Administrative Agent.
“ Loan Documents ” means this Agreement, the Security Documents, the Closing Date Intercreditor Agreement, any Junior Lien Intercreditor Agreement, any Note and, solely for the purposes of Sections 3.01, 3.02, and 8.01(3) hereof, the Fee Letters.
“ Loan Parties ” means the Borrower and the Guarantors.
 
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“ Loans ” means the Revolving Loans and any other loans and advances of any kind made by the Administrative Agent or any Lender pursuant to this Agreement (including, for the avoidance of doubt, any Protective Advances and Overadvances).
“ Management Group ” means the group consisting of the directors, executive officers and other management personnel of the Borrower and the Restricted Subsidiaries on the Closing Date or any Parent Entity, or their respective estates, heirs, family members, spouses, former spouses, executors, administrators, trustees, legatees or distributees.
“ Margin Stock ” has the meaning assigned to such term in Regulation U.
“ Material Adverse Effect ” means a material adverse effect on:
 
(1)	the business, financial condition or results of operations, in each case, of the Borrower and the Restricted Subsidiaries (taken as a whole);	
 
(2)	the ability of the Loan Parties (taken as a whole) to perform their payment obligations under the Loan Documents; or	
 
(3)	the rights and remedies of the Administrative Agent and the Lenders (taken as a whole) under the Loan Documents.	
“ Material Indebtedness ” means Indebtedness (other than the Loans and any Indebtedness held exclusively by Subsidiaries) of the Borrower or any Restricted Subsidiary in an aggregate outstanding principal amount exceeding the Threshold Amount.
“ Material Restricted Subsidiary ” means any Material Subsidiary that is a Restricted Subsidiary.
“ Material Subsidiary ” means any Subsidiary other than an Immaterial Subsidiary.
“ Maturity Date ” means, as the context may require:
 
(1)	with respect to Revolving Facility Commitments existing on the Closing Date and Loans and Letters of Credit in respect thereof, May 4, 2023;	
 
(2)	with respect to any Refinancing Term Loans, the final maturity date specified therefor in the applicable Refinancing Amendment; and	
 
(3)	with respect to any Extended Commitments and Loans and Letters of Credit in respect thereof, the final maturity date specified therefor in the applicable Extension Amendment.	
“ Maximum Rate ” has the meaning assigned to such term in Section 10.09.
“ Minority Investment ” means any Person other than a Subsidiary in which the Borrower or any Restricted Subsidiary owns any Equity Interests.
“ MLPFSI ” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.
 
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“ MNPI ” means any material Nonpublic Information regarding the Borrower, any of its Affiliates and their respective Subsidiaries that has not been disclosed to the Lenders generally (other than Lenders who elect not to receive such information). For purposes of this definition “material Nonpublic Information” means Nonpublic Information that would reasonably be expected to be material to a decision by any Lender to assign or acquire any Term Loans or to enter into any of the transactions contemplated thereby.
“ Moody’s ” means Moody’s Investors Service, Inc.
“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower or any Restricted Subsidiary or any ERISA Affiliate (other than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414) is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.
“ Net Cash Proceeds ” means, with respect to the sale, incurrence or issuance of any Indebtedness by the Borrower or any Restricted Subsidiary, the excess, if any of:
 
 	(a)	the sum of the cash and Cash Equivalents received by the Borrower and its Restricted Subsidiaries in connection with such incurrence or issuance over	
 
 	(b)	taxes paid or payable as a result thereof, fees (including investment banking fees, attorneys’ fees, accountants’ fees, underwriting fees and discounts), commissions, costs and other out-of-pocket expenses and other customary expenses, incurred by the Borrower and its Restricted Subsidiaries in connection with such sale, incurrence or issuance.	
“ Net Income ” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.
“ Net Orderly Liquidation Value ” means, with respect to Eligible Inventory, the net appraised liquidation value thereof (expressed as a percentage of the Cost of such Inventory) as determined from time to time by an Acceptable Appraiser in accordance with Section 5.07.
“ New York Courts ” has the meaning assigned to such term in Section 10.15.
“ Non-Consenting Lender ” has the meaning assigned to such term in Section 2.19(3).
“ Non-Loan Party ” means any Subsidiary of the Borrower that is not a Loan Party.
“ Non-U.S. Subsidiary ” means any Subsidiary that not a U.S. Subsidiary.
 
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“ Not Otherwise Applied ” means, with reference to the amount of any net cash proceeds or fair market value of other assets received from Permitted Equity Issuances or capital contributions that is proposed to be applied to a particular use or transaction, that such amount was not previously applied in determining the permissibility of a transaction under this Agreement (including, for the avoidance of doubt, any Cure Amounts and any Excluded Contributions) where such permissibility was (or may have been) contingent on the receipt or availability of such amount.
“ Note ” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit I hereto or otherwise in form and substance reasonably acceptable to the Administrative Agent and the Borrower, evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Loans made by such Lender.
“ NYFRB ” means the Federal Reserve Bank of New York.
“ NYFRB Rate ” means, for any day, the Federal Funds Effective Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“ Obligations ” means all amounts owing to any Agent, any Issuing Bank or any Lender, any Qualified Counterparty pursuant to the terms of this Agreement, any other Loan Document or any Specified Hedge Agreement and all Cash Management Obligations owing to any Cash Management Bank, including all interest and expenses accrued or accruing (or that would, absent the commencement of an insolvency or liquidation proceeding, accrue) after the commencement by or against any Loan Party or other Restricted Subsidiary of any proceeding under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law naming such Loan Party as the debtor in such proceeding, in accordance with and at the rate specified in this Agreement, whether or not the claim for such interest or expense is allowed or allowable as a claim in such proceeding.
“ Organizational Documents ” means,
 
(1)	with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction);	
 
(2)	with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); and	
 
(3)	with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.	
 
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“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“ Other Taxes ” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).
“ Overadvance ” has the meaning assigned to such term in Section 2.01(2).
“ P aragraph IV Certification Notice ” means the notice of certification required by 21 U.S.C. § 355(b)(3) or 21 U.S.C. § 355(j)(2)(B).
“ Paragraph IV Proceeding ” means an infringement Proceeding filed pursuant to 35 U.S.C. § 271(e)(2) with respect to a product controlled by the Borrower or any of the Subsidiaries.
“ Parent Entity ” means any direct or indirect parent of the Borrower.
“ Participant ” has the meaning assigned to such term in Section 10.04(4)(a).
“ Participant Register ” has the meaning assigned to such term in Section 10.04(4).
“ Payment Conditions ” means, and will be deemed to be satisfied with respect to any particular action as to which the satisfaction of the Payment Conditions is being determined if, after giving effect to the taking of such action, (1) no Designated Event of Default has occurred and is continuing immediately prior or after giving effect thereto, (2) Specified Excess Availability for each day in the 30-day period prior to such action and on the date of such proposed action would exceed the greater of (a) 12.5% of the Line Cap then in effect and (b) $31.25 million, in any such case, on a Pro Forma Basis, and (3) the Fixed Charge Coverage Ratio as of the end of the most recent Test Period would be at least 1.0 to 1.0 on a Pro Forma Basis giving effect to the subject action; provided that compliance with the Fixed Charge Coverage Ratio will not be required if after giving effect to the taking of such action, Specified Excess Availability would exceed the greater of (i) 17.5% of the Line Cap then in effect and (ii) $43.75 million, on a Pro Forma Basis.
“ Payment in Full ” means the payment in full of the Obligations (other than Obligations in respect of Specified Hedge Agreements, Cash Management Obligations and contingent indemnification and reimbursement obligations that are not yet due and payable and for which no claim has been asserted), the expiration, termination or cash collateralization (on terms reasonably satisfactory to the applicable Issuing Bank) of all Letters of Credit and the termination of all commitments hereunder and “ Paid in Full ” has a correlative meaning.
 
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“ Payment Office ” means the office of the Administrative Agent located at 10 S. Dearborn St., L2 floor, Chicago, IL 60603 or such other office as the Administrative Agent may designate to the Borrower and the Lenders from time to time.
“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA, or any successor thereto.
“ Perfection Certificate ” means the Perfection Certificate with respect to the Loan Parties in a form substantially similar to that delivered on the Closing Date.
“ Permit ” means any license, franchise, approval, authorization or clearances issued by a Governmental Authority and required for the conduct of its business of the Borrower or its Restricted Subsidiaries as currently conducted.
“ Permitted Acquisition ” means any acquisition of all or substantially all the assets of, or a majority of the Equity Interests in, or merger, consolidation or amalgamation with, a Person or any acquisition of assets constituting a business unit, line of business, division or facility of another Person or any Exclusive License (or any subsequent investment made in a Person, division or line of business previously acquired in a Permitted Acquisition), in each case if (1) no Event of Default is continuing (or in the case of a Limited Condition Transaction, no Specified Event of Default is continuing) immediately prior to making such Investment or would result therefrom; and (2) immediately after giving effect thereto, the Borrower is in compliance with Sections 5.10 and 6.09.
“ Permitted Additional Indebtedness ” means Indebtedness of the Borrower or any Restricted Subsidiary in the form of term loans or notes; provided that:
 
(1)	any Permitted Additional Indebtedness shall not mature, or have scheduled amortization, prior to the date that is 91 days after the Latest Maturity Date of the Loans at the time of incurrence thereof; provided that this clause (1) shall not apply to the incurrence of any such Indebtedness constituting a bridge facility to the incurrence of any other Indebtedness, so long as the Indebtedness into which such bridge facility is to be converted or exchanged satisfies the requirements of this clause (1) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges;	
 
(2)	if such Permitted Additional Indebtedness is incurred by a Loan Party, it is not guaranteed by any Person other than a Loan Party;	
 
(3)	if such Permitted Additional Indebtedness incurred by a Loan Party is secured it shall be Junior Lien Debt or secured on a pari passu basis with the Liens securing the Initial Term Loans and:	
 
 	(i)	such Indebtedness is not secured by any assets or property that does not constitute Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender); and	
 
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 	(ii)	the security agreements relating to such assets or property are substantially similar to or the same as the applicable Collateral Documents (as determined in good faith by a Responsible Officer of the Borrower);	
 
(4)	if such Permitted Additional Indebtedness is secured, the holders of such Permitted Additional Indebtedness or a Debt Representative acting on behalf of the holders of such Permitted Additional Indebtedness has become party to or is otherwise subject to the provisions of an Intercreditor Agreement (as such Intercreditor Agreement may be amended in a manner reasonably acceptable to the Administrative Agent, such Debt Representative and the Borrower), which results in such holders or Debt Representative having rights to share in the Collateral on a junior lien basis; and	
 
(5)	the terms and conditions of such Indebtedness (a) are substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Indebtedness than, those applicable to the Loans (except for covenants applicable only to periods after the Latest Maturity Date of the Loans at the time of incurrence) and (b) solely to the extent that any terms and conditions applicable to any such Indebtedness are not substantially the same as, or are materially more restrictive on the Borrower and the Restricted Subsidiaries than, those then applicable to the Loans, shall otherwise reflect customary market terms and conditions, including with respect to high yield debt securities to the extent applicable, at the time of such incurrence of such Indebtedness ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent in good faith at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material covenants and events of default of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (5) shall be conclusive evidence that such Indebtedness satisfies this clause (5) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided that this clause (5) will not apply to (v) terms addressed in the preceding clauses (1) through (4), (w) interest rate, rate floors, fees, funding discounts and other pricing terms, (x) redemption, prepayment or other premiums, or (y) optional prepayment or redemption terms; provided further that the Borrower will promptly deliver to the Administrative Agent final copies of the definitive credit documentation relating to such Indebtedness (unless the Borrower is bound by a confidentiality obligation with respect thereto, in which case the Borrower will deliver a reasonably detailed description of the material terms and conditions of such Indebtedness in lieu thereof).	
“ Permitted Amendment ” means any Incremental Facility Amendment, Refinancing Amendment or Extension Amendment.
“ Permitted Bond Hedge Transaction ” means any call or capped call option (or substantively equivalent derivative transaction) on the Borrower’s common Capital Stock or the common Capital Stock of any direct or indirect parent of the Borrower (or other securities or property following a merger event or other change of the common Capital Stock of Borrower or
 
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such parent) purchased by the Borrower or any direct or indirect parent thereof in connection with the issuance of any Convertible Indebtedness; provided , that the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by the Borrower from the sale of any related Permitted Warrant Transaction, does not exceed the net proceeds received by the Borrower from the sale of such Convertible Indebtedness issued in connection with the Permitted Bond Hedge Transaction. For the avoidance of doubt, those certain bond hedge transactions entered into on June 25, 2015 and June 26, 2015 with Royal Bank of Canada, as amended or modified, constitute Permitted Bond Hedge Transactions.
“ Permitted Convertible Indebtedness Call Transaction ” means any Permitted Bond Hedge Transaction and any Permitted Warrant Transaction.
“ Permitted Cure Securities ” means any Capital Stock of the Borrower other than Disqualified Stock.
“ Permitted Debt ” has the meaning assigned thereto in Section 6.01.
“ Permitted Equity Issuances ” means any sale or issuance of any Qualified Equity Interests of the Borrower or any direct or indirect parent of the Borrower.
“ Permitted Family Entity ” means any Person in which any combination of B.U. Patel, Tushar Patel, Chirag Patel, Chintu Patel, their respective spouses, any immediate or extended family member of the foregoing, the respective estates, heirs, family members, and/or the spouses, former spouses, executors, administrators, trustees, legatees or distributes of any of the foregoing (1) are the direct or indirect owners, beneficiaries (whether income, fixed or contingent), officers, directors, trustees or managers and, in each case, are entitled to all of the economic rights and interests in such Person, or (2) Control such Person.
“ Permitted Holders ” means each of:
 
(1)	the Investors;	
 
(2)	any member of the Management Group (or any controlled Affiliate thereof);	
 
(3)	any group (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of which Persons described in the foregoing clauses (1) or (2) are members; provided that, without giving effect to the existence of such group or any other group, the Persons described in clauses (1) and (2), collectively, Beneficially Own Equity Interests representing 50% or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Amneal Inc. (determined on a fully diluted basis but without giving effect to contingent voting rights that have not yet vested) then held by such group; and	
 
(4)	any Permitted Parent.	
“ Permitted Investment ” has the meaning assigned to such term in Section 6.04.
 
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“ Permitted Investor ” means:
 
(1)	each Investor;	
 
(2)	each of their respective Affiliates and investment managers;	
 
(3)	any fund or account managed by any of the Persons described in clause (1) or (2) of this definition;	
 
(4)	any employee benefit plan of the Borrower or any of its Subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan; and	
 
(5)	investment vehicles of members of management of the Borrower that invest in, acquire or trade commercial loans but excluding natural persons.	
“ Permitted Junior Secured Refinancing Debt ” means any Credit Agreement Refinancing Indebtedness that is secured on a junior basis to the Loans.
“ Permitted Liens ” has the meaning assigned to such term in Section 6.02.
“ Permitted Parent ” means any Parent Entity for so long as it is Controlled by one or more Persons that are Permitted Holders pursuant to clause (1), (2) or (3) of the definition thereof.
“ Permitted Refinancing Indebtedness ” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, “ Refinance ”) the Indebtedness being Refinanced (the “ Refinanced Debt ”); provided that:
 
(1)	the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Debt ( plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses) and any existing commitments unutilized thereunder being terminated in connection with such Refinancing;	
 
(2)	other than with respect to a Refinancing of Indebtedness initially incurred pursuant to Section 6.01(3) (other than the Impax Convertible Notes) or Section 6.01(4), the final maturity date of such Permitted Refinancing Indebtedness is equal to or later than the final maturity date of the Refinanced Debt and the Weighted Average Life to Maturity of the Permitted Refinancing Indebtedness is greater than or equal to the Weighted Average Life to Maturity of the Refinanced Debt;	
 
(3)	if the Refinanced Debt constitutes Junior Financing:	
 
 	(a)	such Permitted Refinancing Indebtedness is (i) unsecured or (ii) Junior Lien Debt that is permitted hereunder at the time of incurrence;	
 
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 	(b)	to the extent such Refinanced Debt is subordinated in right of payment to any Obligations under this Agreement, such Permitted Refinancing Indebtedness is subordinated in right of payment to such Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Refinanced Debt; and	
 
 	(c)	such Permitted Refinancing Indebtedness has the same obligors as the Refinanced Debt (unless any such additional obligors are also Loan Parties);	
 
(4)	(i) to the extent such Refinanced Debt is secured by Liens, such Permitted Refinancing Indebtedness is either unsecured or is not secured by any Liens that do not secure such Refinanced Debt, (ii) to the extent such Refinanced Debt is secured by Liens that are subordinated to the Liens securing the Obligations, such Permitted Refinancing Indebtedness is secured by Liens that are subordinated to the Liens securing the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Refinanced Debt and (iii) to the extent such Refinanced Debt is unsecured, such Permitted Refinancing Indebtedness is unsecured; provided that, with respect to a refinancing of the Term Loan Obligations, the Liens, if any, securing such Permitted Refinancing Indebtedness will be on terms not materially less favorable to the Lenders than those contained in the documentation governing the Term Loan Credit Agreement, as determined in good faith by a Responsible Officer of the Borrower;	
 
(5)	the terms and conditions of such Permitted Refinancing Indebtedness (a) are substantially identical to, or, taken as a whole, not more favorable to the lenders or holders providing such Permitted Refinancing Indebtedness than, those applicable to such Refinanced Debt (except for covenants applicable only to periods after the Latest Maturity Date of the Loans at the time of incurrence) and (b) solely to the extent that any terms and conditions applicable to any such Permitted Refinancing Indebtedness are not substantially the same as, or are materially more restrictive on the Borrower and the Restricted Subsidiaries than, those then applicable to the Refinanced Debt, shall otherwise reflect customary market terms and conditions at the time of such incurrence, including with respect to high yield debt securities to the extent applicable ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent in good faith at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Permitted Refinancing Indebtedness, together with a reasonably detailed description of the material covenants and events of default of such Permitted Refinancing Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (5) shall be conclusive evidence that such Permitted Refinancing Indebtedness satisfies this clause (5) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided , further that this clause (5) will not apply to (w) terms addressed in the other clauses of this “Permitted Refinancing Indebtedness” definition, (x) interest rate, rate floors, fees, funding discounts and other pricing terms, (y) redemption, prepayment or other premiums or (z) optional prepayment or redemption terms; and	
 
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(6)	to the extent such Refinanced Debt is Permitted Junior Secured Refinancing Debt, such Permitted Refinancing Indebtedness is secured only by assets that constitute Collateral and pursuant to one or more security agreements permitted by and subject to any applicable Intercreditor Agreements (as such Intercreditor Agreements may be amended in a manner reasonably acceptable to the Administrative Agent, the applicable Debt Representatives and the Borrower); and	
 
(7)	to the extent such Refinanced Debt is (a) Ratio Debt, such Permitted Refinancing Indebtedness shall be required to satisfy the requirements of clauses (2) – (4) of the definition of “Permitted Additional Indebtedness” as if such Permitted Refinancing Indebtedness were also Permitted Additional Indebtedness or (b) Refinancing Term Loans, such Permitted Refinancing Indebtedness shall be subject to the FILO Intercreditor Provisions.	
Indebtedness constituting Permitted Refinancing Indebtedness will not cease to constitute Permitted Refinancing Indebtedness solely as a result of the subsequent extension of the Latest Maturity Date after the date of original incurrence thereof.
“ Permitted Warrant Transaction ” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) on the Borrower’s common Capital Stock or the common Capital Stock of any direct or indirect parent of the Borrower (or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent) and/or cash (in an amount determined by reference to the price of such common Capital Stock) sold by the Borrower or any direct or indirect parent thereof substantially concurrently with any purchase by the Borrower of a related Permitted Bond Hedge Transaction. For the avoidance of doubt, those certain warrant transactions entered into on June 25, 2015 and June 26, 2015 with Royal Bank of Canada, as amended or modified, constitute Permitted Warrant Transactions.
“ Person ” means any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company, government, individual or family trust, Governmental Authority or other entity of whatever nature.
“ PIPE Investment ” means the redemption by certain existing equityholders of the Borrower of a portion of their equity interests in the Borrower in exchange for shares of common stock in Amneal Inc., and the sale of such shares in a private transaction to certain institutional investors including TPG Improv Holdings, L.P. and funds affiliated with Fidelity Management & Research Company pursuant to the Share Purchase Agreement, dated as of October 17, 2017, between Amneal Holdings and the purchasers party thereto.
“ PIPE Registration Statement ” means the registration statement of Amneal, Inc. (f/k/a Atlas Holdings, Inc.) on Form S-1 filed with the SEC on March 7, 2018.
“ Plan ” means any “employee pension benefit plan” as defined in Section 3(2) of ERISA (other than a Multiemployer Plan) that is (1) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA; and (2) either (a) sponsored or maintained (at the time of determination or at any time within the five years prior thereto) by the
 
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Borrower or any of its Subsidiaries or any ERISA Affiliate or (b) in respect of which the Borrower or any of its Subsidiaries or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“ Platform ” has the meaning assigned to such term in Section 10.17(1).
“ Pledged Collateral ” means “ Pledged Collateral ” as defined in the Collateral Agreement.
“ Prime Rate ” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“ Pro Forma Basis ”, “ Pro Forma ” and “ Pro Forma Effect ” mean, with respect to compliance with any test or covenant or calculation hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.08.
“ Products in Development ” means drug products that, as of the Closing Date, (a) are in development or (b) the Borrower or any of the Subsidiaries does not yet sell, offer for sale, import, promote, market, distribute or otherwise commercialize.
“ Projections ” means all projections (including financial estimates, financial models, forecasts, other financial projections and other forward-looking information) furnished to the Lenders or the Administrative Agent by or on behalf of the Borrower, Impax or any of their respective Subsidiaries on or prior to the Closing Date.
“ Protective Advances ” has the meaning assigned to such term in Section 2.01(3).
“ Public Company Costs ” means costs relating to compliance with the Sarbanes-Oxley Act of 2002, as amended (or similar Laws in any other applicable jurisdiction), and other expenses arising out of or incidental to the Borrower’s (or any Parent Entity’s) status as a public reporting company, including costs, fees and expenses (including legal, accounting and other professional fees) relating to compliance with provisions of the Securities Act and the Exchange Act (or similar Laws in any other applicable jurisdiction), the rules of national securities exchange companies with listed equity securities, directors’ compensation, fees and expense reimbursement, shareholder meetings and reports to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees relating to the foregoing.
“ Public Lender ” has the meaning assigned to such term in Section 10.17(2).
 
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“ Qualified Counterparty ” means any counterparty to any Specified Hedge Agreement that, at the time such Specified Hedge Agreement was entered into or, if later, on the Closing Date, was an Agent, an Arranger, a Lender or an Affiliate of the foregoing, whether or not such Person subsequently ceases to be an Agent, an Arranger, a Lender or an Affiliate of the foregoing.
“ Qualified Equity Interests ” means any Equity Interests other than Disqualified Stock.
“ Qualified Receivables Factoring ” means any Factoring Transaction that meets the following conditions:
 
(1)	such Factoring Transaction is non-recourse to, and does not obligate, the Borrower or any Restricted Subsidiary, or their respective properties or assets (other than Securitization Assets) in any way other than pursuant to Standard Securitization Undertakings;	
 
(2)	the Board of Directors of the Borrower has determined in good faith that such Qualified Receivables Factoring (including financing terms, covenants, termination events and other provisions) is, in the aggregate, economically fair and reasonable to the Borrower and the Restricted Subsidiaries;	
 
(3)	all sales, conveyances, assignments and/or contributions of Securitization Assets by the Borrower or any Restricted Subsidiary are made at fair market value (as determined in good faith by the Borrower), and	
 
(4)	such Factoring Transaction (including financing terms, covenants, termination events (if any) and other provisions thereof) are market terms at the time such Factoring Transaction is first entered into (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings.	
The grant of a security interest (other than a precautionary grant) in any Securitization Assets of the Borrower or any of its Restricted Subsidiaries to secure any Indebtedness shall not be deemed a Qualified Receivables Factoring.
“ Qualified Receivables Financing ” means any Receivables Financing that meets the following conditions:
 
(1)	the Board of Directors of the Borrower has determined in good faith that such Qualified Receivables Financing (including financing terms, covenants, termination events and other provisions) is, in the aggregate, economically fair and reasonable to the Borrower and the Restricted Subsidiaries;	
 
(2)	all sales, conveyances, assignments or contributions of Securitization Assets by the Borrower or any Restricted Subsidiary to the Receivables Subsidiary are made at fair market value; and	
 
(3)	the financing terms, covenants, termination events and other provisions thereof are market terms at the time such Receivables Financing is first entered into (as determined in good faith by a Responsible Officer of the Borrower) and may include Standard Securitization Undertakings.	
 
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The grant of a security interest (other than a precautionary grant) in any Securitization Assets of the Borrower or any Restricted Subsidiary (other than a Receivables Subsidiary) to secure any Indebtedness will not be deemed a Qualified Receivables Financing.
“ Qualified Receivables Transaction ” means a Qualified Receivables Factoring or a Qualified Receivables Financing.
“ Quarterly Financial Statements ” has the meaning assigned to such term in Section 5.04(2).
“ Ratio Amount ” means an aggregate principal amount that, after giving Pro Forma effect to the incurrence thereof, in accordance with Section 1.08, would not result in:
 
(1)	with respect to Ratio Debt to be secured on a pari passu basis with the Initial Term Loans, the First Lien Net Leverage Ratio for the applicable Test Period being greater than (a) the Closing Date First Lien Net Leverage Ratio or (b) the First Lien Net Leverage Ratio immediately prior to such incurrence;	
 
(2)	with respect to any Ratio Debt to be secured on a junior basis to the Initial Term Loans, the Total Net Leverage Ratio for the applicable Test Period being greater than (a) the Closing Date Total Net Leverage Ratio or (b) the Total Net Leverage Ratio immediately prior to such incurrence; and	
 
(3)	with respect to any Ratio Debt that is unsecured (or not secured by Collateral), the Total Net Leverage Ratio for the applicable Test Period being greater than 6.00 to 1.00.	
“ Ratio Debt ” has the meaning assigned to such term in Section 6.01.
“ Ratio Debt Cap ” means, as of the date of measurement, the sum of (1) $100 million (less the aggregate principal amount of all Indebtedness incurred prior to such date in reliance on this clause (1)) and (2) the Ratio Amount.
“ RBC ” means Royal Bank of Canada.
“ Real Property ” means, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee or leased by any Loan Party, together with, in each case, all easements, hereditaments and appurtenances relating thereto, and all improvements and appurtenant fixtures incidental to the ownership or lease thereof.
“ Reasonable Credit Judgment ” means reasonable credit judgment (from the perspective of an asset-based lender) exercised in good faith in accordance with customary business practices for comparable asset-based lending transactions based upon its consideration of any factor that it reasonably believes:
 
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(1)	could materially adversely affect the quantity, quality, mix or value of Collateral (including any applicable Laws that may inhibit collection of a receivable), the enforceability or priority of the Administrative Agent’s or Collateral Agent’s liens thereon, or the amount that the Administrative Agent, the Collateral Agent, the Lenders or the Issuing Banks could receive in liquidation of any Collateral;	
 
(2)	in the case of any collateral report or financial information delivered by any Loan Party, such collateral report or financial information is incomplete, inaccurate or misleading in any material respect; or	
 
(3)	creates an Event of Default.	
In exercising such judgment, the Administrative Agent may consider any factors that could materially increase the credit risk of lending to the Borrower on the security of the Collateral. Any Reserve established or modified by the Administrative Agent shall have a reasonable relationship to circumstances, conditions, events or contingencies which are the basis for such Reserve, as reasonably determined, without duplication, by the Administrative Agent in good faith; provided that circumstances, conditions, events or contingencies existing or arising prior to the Initial Borrowing Base Date and, in each case, disclosed in writing in any field examination or appraisal delivered to the ABL Administrative Agent in connection herewith or otherwise known to the Administrative Agent, in either case, prior to the Initial Borrowing Base Date, shall not be the basis for any establishment of any Reserves after the Initial Borrowing Base Date, unless such circumstances, conditions, events or contingencies shall have changed in a material respect since the Initial Borrowing Base Date.
“ Receivables Financing ” means any transaction or series of transactions that may be entered into by the Borrower or any Restricted Subsidiary pursuant to which the Borrower or any Restricted Subsidiaries may sell, assign, contribute, convey or otherwise transfer Securitization Assets to (1) a Receivables Subsidiary (in the case of a transfer by the Borrower or any Restricted Subsidiary that is not a Receivables Subsidiary) or (2) any other Person (in the case of a transfer by a Receivables Subsidiary) and, in either case, may grant a security interest in, any Securitization Assets of the Borrower or any of its Subsidiaries.
“ Receivables Repurchase Obligation ” means any obligation of a seller of Securitization Assets in a Qualified Receivables Transaction to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a Securitization Asset or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“ Receivables Subsidiary ” means a Wholly Owned Subsidiary of the Borrower (or another Person formed solely for the purposes of engaging in a Qualified Receivables Financing with the Borrower or any Restricted Subsidiary and to which the Borrower or any Restricted Subsidiary transfers Securitization Assets) which engages in no activities other than in connection with the financing of Securitization Assets of the Borrower or its Subsidiaries, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Borrower (as provided below) as a Receivables Subsidiary and:
 
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(1)	no portion of the Indebtedness or any other obligations (contingent or otherwise):	
 
 	(a)	is guaranteed by the Borrower or any Restricted Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings);	
 
 	(b)	is recourse to or obligates the Borrower or any Restricted Subsidiary in any way other than pursuant to Standard Securitization Undertakings; or	
 
 	(c)	subjects any property or asset of the Borrower or any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;	
 
(2)	with which neither the Borrower nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than on terms which the Borrower reasonably believes to be no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Borrower, other than with respect to Standard Securitization Undertakings; and	
 
(3)	to which neither the Borrower nor any other Restricted Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.	
Any such designation by the Board of Directors of the Borrower will be evidenced to the Administrative Agent by filing with the Administrative Agent a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and a certificate of a Responsible Officer of the Borrower certifying that such designation complied with the foregoing conditions.
“ Recipient ” means the Administrative Agent and any Lender, as applicable.
“ Refinance ” has the meaning assigned to such term in the definition of “ Permitted Refinancing Indebtedness ,” and the terms “ Refinanced ” and “ Refinancing ” will have correlative meanings.
“ Refinanced Debt ” has the meaning assigned to such term in the definition of “ Permitted Refinancing Indebtedness ”.
“ Refinancing Amendment ” means an amendment, in accordance with the terms of Section 2.22, to this Agreement and, as necessary, each other Loan Document (which may, at the option of the Administrative Agent and the Borrower, be in the form of an amendment and restatement of this Agreement or such other Loan Document, as applicable) executed by each of (1) the Borrower; (2) the Administrative Agent; and (3) with respect to an amendment (or an amendment and restatement) of this Agreement, each Lender that agrees to provide any portion of the Refinancing Term Loans in accordance with Section 2.22.
“ Refinancing Term Lender ” means each Lender that holds an Refinancing Term Loan.
 
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“ Refinancing Term Loan Commitment ” means, with respect to each Refinancing Term Lender, the commitment of such Refinancing Term Lender to make Refinancing Term Loans as set forth in the applicable Refinancing Amendment.
“ Refinancing Term Loans ” has the meaning assigned to such term in Section 2.22(1).
“ Register ” has the meaning assigned to such term in Section 10.04(2)(d).
“ Registered Equivalent Notes ” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same Guarantees and collateral provisions) issued by the same issuer in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“ Regulation U ” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“ Regulation X ” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“ Reinvestment Deferred Amount ” has the meaning assigned to such term in the Term Loan Credit Agreement.
“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
“ Release ” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating in, into, upon, onto or through the Environment.
“ Report ” means reports prepared by the Administrative Agent, the Collateral Agent or another Person showing the results of appraisals, field examinations or audits pertaining to the Loan Parties’ assets from information furnished by or on behalf of the Loan Parties, after the Administrative Agent or Collateral Agent has exercised its rights of inspection pursuant to this Agreement, which Report may be distributed to the Lenders by the Administrative Agent, subject to the provisions of Section 10.16.
“ Reportable Event ” means any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30 day notice period referred to in Section 4043(c) of ERISA has been waived, with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).
“ Required Financial Statements ” has the meaning assigned to such term in Section 5.04(2).
 
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“ Required Lenders ” means, at any time (1) prior to the Discharge of ABL Claims, the Required Revolving Lenders and (2) after the Discharge of ABL Claims, the Required Term Lenders.
“ Required Revolving Lenders ” means, at any time, Lenders having (1) Revolving Facility Credit Exposure and (2) Available Unused Commitments that, taken together, represent more than 50.0% of the sum of (a) all Revolving Facility Credit Exposure and (b) the total Available Unused Commitments at such time. The Revolving Facility Credit Exposure and Available Unused Commitments of any Defaulting Lender will be disregarded in determining the Required Revolving Lenders; provided that subject to the Borrower’s right to replace Defaulting Lenders as set forth herein:
 
 	(a)	the Commitment of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender (it being understood that waivers or other modifications of any conditions precedent, covenants, mandatory prepayments, mandatory Commitment reductions, Defaults or Events of Default shall not constitute an increase or extension of any Commitment, a reduction of the rate of interest on any Loan or a forgiveness of the principal amount of any Loan); and	
 
 	(b)	any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender pursuant to clauses (i) through (vii) of Section 10.08(2) that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender.	
“ Required Term Lenders ” means, at any time, Refinancing Term Lenders having Refinancing Term Loans outstanding that, taken together, represent more than 50.0% of the sum of all Refinancing Term Loans outstanding at such time. The Refinancing Term Loans of any Defaulting Lender will be disregarded in determining the Required Term Lenders; provided that, subject to the Borrower’s right to replace Defaulting Lenders as set forth herein:
 
 	(a)	the Commitment of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender (it being understood that waivers or other modifications of any conditions precedent, covenants, mandatory prepayments, mandatory Commitment reductions, Defaults or Events of Default shall not constitute an increase or extension of any Commitment, a reduction of the rate of interest on any Loan or a forgiveness of the principal amount of any Loan); and	
 
 	(b)	any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender pursuant to clauses (i) through (vii) of Section 10.08(2) that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender.	
 
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“ Reserves ” means, without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves (including banking services reserves, landlord lien reserves, customer credit liabilities reserves, customer deposits reserves, reserves for Obligations under Specified Hedge Agreements and reserves against Eligible Accounts, Eligible Inventory and Eligible Cash) that the Administrative Agent from time to time determines in its Reasonable Credit Judgment as being appropriate to reflect:
 
(1)	the impediments to the Administrative Agent’s ability to realize upon the Collateral included in the Borrowing Base in accordance with the Loan Documents;	
 
(2)	claims and liabilities that will need to be satisfied, or will dilute the amounts received by holders of Loans, in connection with the realization upon such Collateral; or	
 
(3)	criteria, events, conditions, contingencies or risks that adversely affect any component of the Borrowing Base, the Collateral included therein or the validity or enforceability of the Loan Documents or any material remedies of the Administrative Agent, the Collateral Agent, each Issuing Bank and each Lender under the Loan Documents with respect to such Collateral.	
The establishment or increase of any Reserve will be limited to the exercise by the Administrative Agent of Reasonable Credit Judgment, upon at least five (5) Business Days’ prior written notice to the Borrower (which notice will include a reasonably detailed description of the Reserve being established); provided that upon such notice, the Borrower will not be permitted to borrow so as to exceed the Borrowing Base after giving effect to such new or modified Reserves. During such five (5) Business Day period, the Administrative Agent will, if requested, discuss any such new or modified Reserve with the Borrower, and the Borrower may take such action as may be required so that the event, condition or matter that is the basis for such new or modified Reserve no longer exists or exists in a manner that would result in the establishment of a lower Reserve, in each case, in a manner and to the extent reasonably satisfactory to the Administrative Agent. Notwithstanding anything to the contrary herein:
 
 	(a)	the amount of any such Reserve will have a reasonable relationship to the event, condition or other matter that is the basis for such Reserve,	
 
 	(b)	no Reserves will be duplicative of other reserves or items that are otherwise addressed, excluded or already accounted for through eligibility criteria (including collection/advance rates) and	
 
 	(c)	no reserves shall be imposed on the first five percent (5%) of dilution of Eligible Accounts and thereafter no dilution reserve shall exceed one percent (1%) for each incremental whole percentage in dilution over five percent (5%), provided that dilution reserves may reflect fractional percentages in dilution.	
“ Responsible Officer ” means, with respect to any Loan Party, the chief executive officer, president, vice president, secretary, assistant secretary or any Financial Officer of such Loan Party or other similar officer or Person performing similar functions of a Loan Party and, as to any document delivered on the Closing Date, any secretary or assistant secretary of a Loan Party, designated in writing by or on behalf of the Borrower to the Administrative Agent from
 
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time to time. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party will be conclusively presumed to have been authorized by all necessary corporate, partnership or other action on the part of such Loan Party and such Responsible Officer will be conclusively presumed to have acted on behalf of such Loan Party. Unless otherwise specified, all references herein to a “Responsible Officer” shall refer to a Responsible Officer of the Borrower.
“ Restricted Payment ” means any (1) dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any of its Restricted Subsidiaries (other than dividends or other distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the Person paying such dividends or distributions) and (2) payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of (a) the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any Equity Interest of the Borrower or any of the Restricted Subsidiaries or (b) any return of capital to the Borrower’s equityholders, partners or members (or the equivalent Persons thereof); provided that (i) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, current or former officers, directors, managers, employees, consultants and independent contractors of the Borrower, any Restricted Subsidiary or any direct or indirect parent thereof, or their respective estates, heirs, family members, spouses, former spouses, successors, executors, administrators, trustees, legatees or distributees in connection with a repurchase of Equity Interests of the Borrower or such parent entity and (ii) any payment(s) of principal (not in excess of the stated principal amount thereof), interest, fees, reimbursement obligations, charges, costs, expenses, indemnities and other amounts in respect of Convertible Indebtedness, in each case will not constitute a Restricted Payment; provided further that notwithstanding anything herein to the contrary, any payment in cash included in the settlement amount due upon conversion in excess of the stated principal amount of any Convertible Indebtedness shall constitute a Restricted Payment for all purposes hereunder.
“ Restricted Subsidiary ” means any Subsidiary of a Person other than an Unrestricted Subsidiary of such Person. Unless otherwise indicated in this Agreement, all references to Restricted Subsidiaries will mean Restricted Subsidiaries of the Borrower.
“ Revolving Facility ” means the Revolving Facility Commitments (including any Incremental Commitments) and the extensions of credit made hereunder by the Revolving Lenders.
“ Revolving Facility Borrowing ” means a Borrowing comprised of Revolving Loans.
“ Revolving Facility Claims ” has the meaning assigned to the term “ABL Claims” in the Closing Date Intercreditor Agreement, but assuming, solely for purposes of this definition, that the principal amount of any Refinancing Term Loans and any interest, fees, attorneys’ fees, costs, expenses, indemnities and other Obligations relating thereto do not constitute “ABL Claims”.
 
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“ Revolving Facility Commitment ” means, with respect to a Lender, the commitment of such Lender to make Revolving Loans pursuant to Section 2.01, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Facility Credit Exposure hereunder, as such commitment may be (1) reduced from time to time pursuant to Section 2.08, (2) reduced or increased from time to time pursuant to assignments by or to such Lender under Section 10.04 or (3) increased from time to time under Section 2.21. The initial amount of each Lender’s Revolving Facility Commitment is set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender has assumed its Revolving Facility Commitment, as applicable. The initial aggregate amount of the Lenders’ Revolving Facility Commitments is $500.0 million.
“ Revolving Facility Credit Exposure ” means, at any time, the sum of:
 
(1)	the aggregate principal amount of the Revolving Loans outstanding at such time; and	
 
(2)	the Revolving L/C Exposure at such time.	
The Revolving Facility Credit Exposure of any Revolving Lender at any time will be, subject to adjustment as expressly provided in Section 2.24, the product of (a) such Revolving Lender’s Revolving Facility Percentage and (b) the aggregate Revolving Facility Credit Exposure of all Revolving Lenders, collectively, at such time.
“ Revolving Facility Percentage ” means, with respect to any Revolving Lender, the percentage of the total Revolving Facility Commitments represented by such Lender’s Revolving Facility Commitment. If the Revolving Facility Commitments have terminated or expired, the Revolving Facility Percentages will be determined based upon the Revolving Facility Commitments most recently in effect, giving effect to any assignments pursuant to Section 10.04.
“ Revolving L/C Exposure ” means at any time the sum of (1) the aggregate undrawn face amount of all Letters of Credit outstanding at such time (the “ L/C Amount ”) and (2) the aggregate principal amount of all L/C Disbursements that have not yet been reimbursed or which have not been paid through a Revolving Loan at such time. The Revolving L/C Exposure of any Revolving Lender at any time will mean its Revolving Facility Percentage of the aggregate Revolving L/C Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the International Standard Practices, International Chamber of Commerce No. 590, such Letter of Credit will be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time will be deemed to be the stated amount of such Letter of Credit in effect at such time; provided that, with respect to any Letter of Credit that by its terms or the terms of any document related thereto provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit will be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time; provided further that, with respect to any Letter of Credit that by its terms or the terms of any document related thereto provides for one or more automatic decreases in the stated amount thereof, the amount of such Letter of Credit will be deemed to be the maximum stated amount of such Letter of Credit as in effect at such time.
 
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“ Revolving Lender ” means each Lender with a Revolving Facility Commitment or outstanding Revolving Facility Credit Exposure.
“ Revolving Loans ” has the meaning assigned to such term in Section 2.01(1) and will include any Overadvances and Protective Advances.
“ RP Payment Conditions ” means, and will be deemed to be satisfied with respect to any particular action as to which the satisfaction of the RP Payment Conditions is being determined if, after giving effect to the taking of such action, (1) no Designated Event of Default has occurred and is continuing immediately prior or after giving effect thereto, (2) Specified Excess Availability for each day in the 30-day period prior to such action and on the date of such proposed action would exceed the greater of (a) 15% of the Line Cap then in effect and (b) $37.5 million, in any such case, on a Pro Forma Basis, and (3) the Fixed Charge Coverage Ratio as of the end of the most recent Test Period would be at least 1.0 to 1.0 on a Pro Forma Basis giving effect to the subject action; provided that compliance with the Fixed Charge Coverage Ratio will not be required if after giving effect to the taking of such action, Specified Excess Availability would exceed the greater of (i) 20% of the Line Cap then in effect and (ii) $50 million, on a Pro Forma Basis.
“ S&P ” means Standard & Poor’s Ratings Services or any successor entity thereto.
“ Sale Leaseback Transaction ” means a sale leaseback transaction with respect to all or any portion of any real property owned by the Borrower or any Restricted Subsidiary.
“ Sanctioned Country ” shall mean, at any time, a country, region or territory that is subject to comprehensive Sanctions (at the time of the Agreement, the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria).
“ Sanctioned Person ” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union, any EU member state, Her Majesty’s Treasury of the United Kingdom, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person.
“ Sanctions ” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom.
“ SEC ” means the Securities and Exchange Commission or any successor thereto.
“ Secured Parties ” means the collective reference to the “Secured Parties” as defined in the Collateral Agreement.
 
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“ Securities Act ” means the Securities Act of 1933, as amended.
“ Securitization Assets ” means accounts receivable, royalty or other revenue streams, other rights to payment, including with respect to rights of payment pursuant to the terms of Joint Ventures (in each case, whether now existing or arising in the future), and any assets related thereto, including all collateral securing any of the foregoing, all contracts and all guarantees or other obligations in respect of any of the foregoing, proceeds of any of the foregoing and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with non-recourse, asset securitization or factoring transactions and any Hedge Agreements entered into by the Borrower or any such Restricted Subsidiary in connection with such assets subject to a Qualified Receivables Transaction.
“ Security Documents ” means the Collateral Agreement and each of the security agreements and other instruments and documents executed and delivered by any Loan Party pursuant thereto or pursuant to Section 5.10.
“ Short Term Advances ” has the meaning assigned to such term in the definition of “Indebtedness”.
“ Similar Business ” means any business, the majority of whose revenues are derived from (1) business or activities conducted by the Borrower and its Restricted Subsidiaries on the Closing Date, (2) any business that is a natural outgrowth or reasonable extension, development or expansion of any such business or any business similar, reasonably related, incidental, complementary or ancillary to any of the foregoing or (3) any business that in the Borrower’s good faith business judgment constitutes a reasonable diversification of businesses conducted by the Borrower and its Restricted Subsidiaries.
“ Specified Acquisition Agreement Representations ” means such of the representations and warranties made by or with respect to Impax and its Subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or its Affiliates) have the right (taking into account any applicable cure provisions) to terminate its (or their) obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement or the failure of an Acquisition Agreement Representation to be true and correct results in a failure of a condition precedent to the Borrower’s (or its affiliates’) obligations to consummate the Acquisition in the Acquisition Agreement.
“ Specified Event of Default ” means any Event of Default under Section 8.01(2), 8.01(3), 8.01(8) or 8.01(9).
“ Specified Excess Availability ” shall mean the sum of (i) Excess Availability and (ii) the amount by which the Borrowing Base at such time exceeds the Revolving Facility Commitments, up to an amount not to exceed 2.5% of Revolving Facility Commitments.
“ Specified Hedge Agreement ” means any Hedge Agreement entered into or assumed between or among the Borrower or any Restricted Subsidiary and any Qualified Counterparty and designated by the Qualified Counterparty and the Borrower in writing to the Administrative Agent as a “Specified Hedge Agreement” under this Agreement (but only if such Hedge Agreement has not been designated as a “Specified Hedge Agreement” under the Term Loan Credit Agreement).
 
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“ Specified Hedge Obligations ” means all amounts owing to any Qualified Counterparty under any Specified Hedge Agreement.
“ Specified IP Subsidiary ” means a wholly-owned Restricted Subsidiary of the Borrower that:
 
(1)	owns no assets other than Transferred IP and cash or Cash Equivalents necessary to support the business set forth in clause (2) of this definition;	
 
(2)	conducts no business other than the licensing, development, promotion, marketing, and supply of the Transferred IP; and	
 
(3)	is prohibited from incurring any Indebtedness and/or Liens under its Organizational Documents.	
“ Specified Representations ” means the representations and warranties of the Borrower set forth in the following sections of this Agreement:
 
(1)	Section 3.01(1) and (4) (but solely with respect to its organizational existence and organizational power and authority as to the execution, delivery and performance of this Agreement, the Collateral Agreement and any applicable Intellectual Property Security Agreements (as defined in the Collateral Agreement) and the extensions of credit hereunder);	
 
(2)	Section 3.02(1) (but solely with respect to its authorization of this Agreement, the Collateral Agreement and any applicable Intellectual Property Security Agreements (as defined in the Collateral Agreement);	
 
(3)	Section 3.02(2)(c) (but solely with respect to non-conflict of its entry into and performance of this Agreement and the other Loan Documents with its certificate or article of incorporation or other applicable Organizational Document);	
 
(4)	Section 3.03 (but solely with respect to this Agreement, the Collateral Agreement and any applicable Intellectual Property Security Agreements (as defined in the Collateral Agreement);	
 
(5)	Section 3.08(2) (but solely with respect to use of proceeds on the Closing Date);	
 
(6)	Section 3.09;	
 
(7)	Section 3.14(1) (but solely with respect to the creation, validity, attachment and perfection of the Liens granted by it in the Collateral on the Closing Date (subject to Permitted Liens and subject to the Certain Funds Provisions));	
 
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(8)	Section 3.16; and	
 
(9)	Section 3.19.	
“ Specified Tender Offer ” means the offer to be commenced by Impax on or following the Closing Date to holders to repurchase for cash all of the outstanding Impax Convertible Notes, or any portion thereof, pursuant to Section 4.10 of the Impax Indenture.
“ Specified Transaction ” means any Investment that results in a Person becoming a Restricted Subsidiary, any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, any Permitted Acquisition, any Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or a facility or any parcels of or interests (including leasehold interests) in real property and all improvements and fixtures thereon or any Disposition of a business unit, line of business or division or a facility or any parcels of or interests (including leasehold interests) in real property and all improvements and fixtures thereon (including any buyout or conversion of an operating lease to a capital lease) of the Borrower or a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise, or any incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), Restricted Payment or Incremental Facility that by the terms of this Agreement requires such test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”
“ Standard Securitization Undertakings ” means representations, warranties, covenants, indemnities and Guarantees of performance entered into by the Borrower or any Restricted Subsidiary of the Borrower that a Responsible Officer of the Borrower has determined in good faith to be customary in a Receivables Financing including those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Receivables Repurchase Obligation will be deemed to be a Standard Securitization Undertaking.
“ Standby Letter of Credit ” has the meaning assigned to such term in Section 2.05(1).
“ Statutory Reserve Rate ” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Federal Reserve Board to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D). Such reserve percentage shall include those imposed pursuant to Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
 
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“ Subagent ” has the meaning assigned to such term in Section 9.02.
“ Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company or other entity of which (1) Equity Interests having ordinary voting power (other than Equity Interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors of such corporation, partnership, limited liability company or other entity are at the time owned by such Person; or (2) more than 50.0% of the Equity Interests are at the time owned by such Person. Unless otherwise indicated in this Agreement, all references to Subsidiaries will mean Subsidiaries of the Borrower.
“ Subsidiary Loan Parties ” means: (1) each Wholly Owned U.S. Subsidiary of the Borrower on the Closing Date (other than any Excluded Subsidiary) and (2) each Wholly Owned U.S. Subsidiary (other than any Excluded Subsidiary) of the Borrower that becomes, or is required pursuant to Section 5.10 to become, a party to the Collateral Agreement after the Closing Date.
“ Supermajority Lenders ” means, as of any date of determination, Lenders that would constitute the Required Revolving Lenders if the percentage “50.0%” contained in the definition thereof were changed to “66-2/3%”.
“ Swap Termination Value ” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (1) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (2) for any date prior to the date referenced in clause (1), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).
“ Tax Receivable Agreement ” means the Tax Receivable Agreement, dated as of the Closing Date, among Amneal Inc., the Borrower, and the other parties from time to time party thereto, as amended, amended and restated, supplemented or otherwise modified from time to time in any manner that is not materially adverse to the interests of the Administrative Agent or the Lenders.
“ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding) or similar charges imposed by any Governmental Authority and any and all interest and penalties related thereto.
“ Term Agent ” means JPM, as administrative agent and collateral agent under the Term Loan Credit Agreement, and its successors and assigns in such capacities.
“ Term Incremental Amount ” means an aggregate principal amount that, after giving Pro Forma effect to the incurrence thereof, in accordance with Section 1.08, would not result in:
 
(1)	with respect to Indebtedness to be secured on a pari passu basis with the Initial Term Loans, the First Lien Net Leverage Ratio for the applicable Test Period being greater than (a) the Closing Date First Lien Net Leverage Ratio or (b) the First Lien Net Leverage Ratio immediately prior to such incurrence;	
 
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(2)	with respect to Indebtedness to be secured on a junior basis to the Initial Term Loans, the Total Net Leverage Ratio for the applicable Test Period being greater than (a) the Closing Date Total Net Leverage Ratio or (b) the Total Net Leverage Ratio immediately prior to such incurrence; and	
 
(3)	with respect to Indebtedness that is unsecured, the Total Net Leverage Ratio for the applicable Test Period being greater than 6.00 to 1.00.	
“ Term Loan Claims ” means the “ Term Loan Claims ” as defined in the Closing Date Intercreditor Agreement.
“ Term Loan Credit Agreement ” means the Term Loan Credit Agreement, dated as of the Closing Date, among the Borrower, the lenders party thereto and JPM, as administrative agent and collateral agent, initially in respect of $2,700.0 million of term loans made available on the Closing Date, as such document may be amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof.
“ Term Loan Credit Agreement Refinancing Indebtedness ” means “ Credit Agreement Refinancing Indebtedness ” as defined in the Term Loan Credit Agreement.
“ Term Loan Documents ” means the Term Loan Credit Agreement and the other “Loan Documents” under and as defined in the Term Loan Credit Agreement, as each such document may be amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof.
“ Term Loan Obligations ” means the “ Obligations ” as defined in the Term Loan Credit Agreement.
“ Term Loan Security Documents ” means the “ Security Documents ” as defined in the Term Loan Credit Agreement.
“ Term Priority Collateral ” means “ Term Loan Priority Collateral ” as defined in the Closing Date Intercreditor Agreement.
“ Test Period ” means, at any time, (1) with respect to the Borrower, the four consecutive fiscal quarters of the Borrower most recently ended (in each case taken as one accounting period) for which the Required Financial Statements have been or are required to be delivered pursuant to Section 5.04(1) or 5.04(2) and (2) in the case of any Person other than the Borrower, the period of four consecutive fiscal quarters most closely corresponding to the period set forth in clause (1).
“ Threshold Amount ” means the greater of (1) $80 million and (2) 12.5% of TTM Consolidated EBITDA as of the applicable date of determination.
 
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“ Total Net Leverage Ratio ” means, with respect to any Test Period, the ratio of (a) Consolidated Total Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the Borrower for such Test Period.
“ Trade Letter of Credit ” has the meaning assigned to such term in Section 2.05(1).
“ Transaction Costs ” means all fees, costs and expenses related to the Transactions.
“ Transaction Documents ” means the Acquisition Documents, the Loan Documents and the Term Loan Documents.
“ Transactions ” means, collectively, the transactions to occur pursuant to the Transaction Documents, including:
 
(1)	the consummation of the Acquisition;	
 
(2)	the consummation of the Contribution;	
 
(3)	the execution and delivery of the Loan Documents, the creation of the Liens pursuant to the Security Documents and the initial borrowings hereunder;	
 
(4)	the execution and delivery of the Term Loan Documents, the creation of the Liens pursuant to the Term Loan Security Documents and the initial borrowings under the Term Loan Credit Agreement;	
 
(5)	the Closing Date Refinancing;	
 
(6)	the undertaking of one or more Existing Notes LM Transactions or Specified Tender Offers;	
 
(7)	the PIPE Investment;	
 
(8)	the Impax Transactions; and	
 
(9)	the payment of all Transaction Costs.	
“ Transferred IP ” has the meaning assigned to such term in Section 6.04(30)(b).
“ TTM Consolidated EBITDA ” means, as of any date of determination, the Consolidated EBITDA of the Borrower on a Pro Forma Basis for the four consecutive fiscal quarters most recently ended prior to such date for which financial statements have been furnished or are required to have been furnished to the Lenders hereunder (or, in the case of a determination date that occurs prior to the first such delivery, for the four consecutive fiscal quarters ended as of December 31, 2017).
“ Trust Account ” means any accounts or trusts used solely to hold Trust Funds.
 
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“ Trust Funds ” means cash, Cash Equivalents or other assets comprised of:
 
(1)	funds used for payroll and payroll taxes, wages and other employee benefit payments to or for the benefit of such Loan Party’s or any of its Restricted Subsidiaries’ employees;	
 
(2)	all taxes required to be collected, remitted or withheld (including federal and state withholding taxes (including the employer’s share thereof)); or	
 
(3)	any other funds which the Borrower or any of its Restricted Subsidiaries holds in trust or as an escrow or fiduciary for another person which is not a Restricted Subsidiary of the Borrower.	
“ Type ” means, when used in respect of any Loan or Borrowing, the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes of this definition, the term “Rate” means Adjusted LIBO Rate or ABR, as applicable.
“ U.S. Subsidiary ” means any Subsidiary of the Borrower that is organized under the laws of the United States or any political subdivision thereof, and “ U.S. Subsidiaries ” means any two or more of them. Unless otherwise indicated in this Agreement, all references to U.S. Subsidiaries will mean U.S. Subsidiaries of the Borrower.
“ U.S. Tax Compliance Certificate ” has the meaning specified in Section 2.17(5).
“ Uniform Commercial Code ” or “ UCC ” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
“ Unrestricted Cash ” means, as of any date, all cash and Cash Equivalents of the Borrower or any of its Restricted Subsidiaries as of such date that would not appear as “restricted” on the Required Financial Statements (unless such appearance is related to a restriction in favor of any Agent for the benefit of the Secured Parties or an agent under the Term Loan Credit Agreement for the benefit of the secured parties thereunder), determined on a consolidated basis in accordance with GAAP, determined based upon the most recent month-end financial statements available internally as of the date of determination, and calculated on a Pro Forma Basis.
“ Unrestricted Subsidiary ” means (1) each Receivables Subsidiary and (2) any Subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided that the Borrower will only be permitted to so designate a new Unrestricted Subsidiary after the Closing Date or subsequently re-designate any such Unrestricted Subsidiary as a Restricted Subsidiary (by written notice to the Administrative Agent) if (a) no Designated Event of Default has occurred and is continuing or would result therefrom and (b) the Borrower is in Pro Forma compliance with the Payment Conditions.
 
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The designation of any Restricted Subsidiary as an Unrestricted Subsidiary will constitute an Investment for purposes of Section 6.04 at the date of designation in an amount equal to the fair market value of the Borrower’s or its Restricted Subsidiary’s (as applicable) Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary will constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time and a return on any Investment by the Borrower in Unrestricted Subsidiaries in an amount equal to the fair market value at the date of such designation of the Borrower’s or its Restricted Subsidiary’s (as applicable) Investment in such Subsidiary. Except as expressly set forth in this paragraph, no Investment will be deemed to exist or have been made, and no Indebtedness or Liens shall be deemed to have occurred, solely by virtue of a Subsidiary becoming an Excluded Subsidiary.
“ USA PATRIOT Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness as of any date, the number of years obtained by dividing (1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal (excluding nominal amortization), including payment at final maturity, in respect thereof by (b) the number of years (calculated to the nearest 1/12) that will elapse between such date and the making of such payment; by (2) the then outstanding principal amount of such Indebtedness.
“ Wholly Owned Subsidiary ” means, with respect to any Person, a Subsidiary of such Person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such Person or another Wholly Owned Subsidiary of such Person. Unless otherwise indicated in this Agreement, all references to Wholly Owned Subsidiaries will mean Wholly Owned Subsidiaries of the Borrower.
“ Wholly Owned U.S. Subsidiary ” means, with respect to any Person, a U.S. Subsidiary of such Person that is a Wholly Owned Subsidiary. Unless otherwise indicated in this Agreement, all references to Wholly Owned U.S. Subsidiaries will mean Wholly Owned U.S. Subsidiaries of the Borrower.
“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
 
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SECTION 1.02 Terms Generally . The definitions set forth or referred to in Section 1.01 will apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun will include the corresponding masculine, feminine and neuter forms. Unless the context requires otherwise:
 
(1)	the words “include,” “includes” and “including” will be deemed to be followed by the phrase “without limitation;”	
 
(2)	in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including;”	
 
(3)	the word “will” will be construed to have the same meaning and effect as the word “shall;”	
 
(4)	the word “incur” will be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” will have correlative meanings);	
 
(5)	the word “or” will be construed to mean “and/or;”	
 
(6)	any reference to any Person will be construed to include such Person’s legal successors and permitted assigns; and	
 
(7)	the words “asset” and “property” will be construed to have the same meaning and effect.	
All references herein to Articles, Sections, Exhibits and Schedules will be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context otherwise requires. Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document or organizational document of the Loan Parties means such document as amended, restated, amended and restated, supplemented or otherwise modified from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document). Any reference to any law will include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation means, unless otherwise specified, such law or regulation as amended, modified or supplemented from time to time. Whenever this Agreement refers to the “knowledge” of Impax or any Loan Party, such reference will be construed to mean the knowledge of the chief executive officer, president, chief financial officer, treasurer or controller of such Person.
SECTION 1.03 Accounting Terms; GAAP; Fair Market Value . Except as otherwise expressly provided herein, all terms of an accounting or financial nature will be construed in accordance with GAAP, as in effect from time to time; provided that, notwithstanding anything to the contrary herein, all accounting or financial terms used herein will be construed, and all financial computations pursuant hereto will be made, without giving effect to any election under Statement of Financial Accounting Standards Board Accounting Standards Codification 825-10 (or any other Statement of Financial Accounting Standards Board Accounting Standards Codification having a similar effect) to value any
 
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Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value,” as defined therein. In the event that any Accounting Change (as defined below) occurs and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then upon the written request of the Borrower or the Administrative Agent (acting upon the request of the Required Lenders), the Borrower, the Administrative Agent and the Lenders will enter into good faith negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Change with the desired result that the criteria for evaluating the Borrower’s financial condition will be the same after such Accounting Change as if such Accounting Change had not occurred; provided that, until so amended, calculation of financial covenants, standards or terms in this Agreement will be computed in accordance with GAAP in effect prior to such Accounting Change until the effective date of such amendment. “ Accounting Change ” means (1) any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or (2) any change in the application of GAAP by the Borrower (including through the adoption of IFRS). All determinations of fair market value under a Loan Document will be made by a Responsible Officer of the Borrower in good faith and if such determination is supported by an opinion of an Independent Financial Advisor, such determination will be conclusive for all purposes under the Loan Documents or related to the Obligations.
SECTION 1.04 Effectuation of Transfers . Each of the representations and warranties of the Borrower contained in this Agreement (and all corresponding definitions) is made after giving effect to the Transactions, unless the context otherwise requires.
SECTION 1.05 Currencies . Unless otherwise specifically set forth in this Agreement, monetary amounts are in Dollars. Notwithstanding anything to the contrary herein, no Default or Event of Default will arise as a result of any limitation or threshold set forth in Dollars being exceeded solely as a result of changes in currency exchange rates.
SECTION 1.06 Required Financial Statements . With respect to the determination of the First Lien Net Leverage Ratio, the Total Net Leverage Ratio, the Fixed Charge Coverage Ratio or any other financial ratio or under any other applicable provision of the Loan Documents (including the definition of Immaterial Subsidiary) made on or prior to the date on which Required Financial Statements have been delivered for March 31, 2018, such calculation will be determined for the period of four consecutive fiscal quarters ended December 31, 2017, and calculated on a Pro Forma Basis.
SECTION 1.07 Certifications . Any certificate or other writing required hereunder or under any other Loan Document to be certified by any officer or other authorized representative (including any Responsible Officer) of any Person will be deemed to be executed and delivered by such officer, other authorized representative or Responsible Officer solely in such individual’s capacity as an officer, other authorized representative or Responsible Officer of such Person and not in such officer’s or other authorized representative’s individual capacity and without any personal liability.
SECTION 1.08 Pro Forma Calculations .
 
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(1)	Notwithstanding anything to the contrary herein, financial ratios shall be calculated in the manner prescribed by this Section 1.08; provided that, notwithstanding anything to the contrary in clauses (2), (3) or (4) of this Section 1.08, when calculating any financial ratio for purposes of (a) determining Applicable Margins and pricing grid step-downs, (b) calculations of mandatory prepayments, (c) determining compliance with any financial covenant (including any financial covenant under this Agreement) and (d) any provisions related to the foregoing, the events described in this Section 1.08 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.	
 
(2)	For purposes of calculating the First Lien Net Leverage Ratio, the Total Net Leverage Ratio, the Fixed Charge Coverage Ratio or any other financial ratio, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been made (a) during the applicable Test Period or (b) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.08 then the financial ratios shall be calculated to give pro forma effect thereto in accordance with this Section 1.08.	
 
(3)	Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer and may include, for the avoidance of doubt, the amount of cost savings, operating expense reductions and, synergies projected by the Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such Test Period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period but, for the avoidance of doubt, subject to the limitations set forth in clause (g) of the definition of “Consolidated EBITDA” set forth herein) relating to such Specified Transaction, net of the amount of actual benefits realized during such period from such actions (such cost savings and synergies, “Specified Transaction Adjustments”); provided , that	
 
 	(a)	such Specified Transaction Adjustments are reasonably identifiable and quantifiable in the good faith judgment of a Responsible Officer of the Borrower,	
 
 	(b)	such actions are taken, committed to be taken or reasonably anticipated to be taken no later than twenty four (24) months after the date of such Specified Transaction, and	
 
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 	(c)	no amounts shall be added pursuant to this clause (3) to the extent duplicative of any amounts that are otherwise added back in calculating Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period.	
 
(4)	In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of a financial covenant (in each case, other than Indebtedness incurred or repaid under any revolving credit facility (including, for the avoidance of doubt, the Revolving Facility) in the ordinary course of business for working capital purposes), (a) during the applicable Test Period or (b) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then each financial ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.	
SECTION 1.09 LCA Election . Notwithstanding anything in this Agreement or any other Loan Document to the contrary, when (1) calculating any applicable ratio in connection with incurrence of Indebtedness (other than the making of any Revolving Loans or the issuance of any Letters of Credit), the creation of Liens, the making of any disposition, the making of an Investment, the designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or the repayment of Indebtedness or (2) determining compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, in each case of the preceding clauses (1) and (2) in connection with a Limited Condition Transaction, the date of determination of such ratio and determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “ LCA Election ”), be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “ LCA Test Date ”). If on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof), with such ratios and other provisions being calculated as if such Limited Condition Transaction or other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date for which financial statements are available, the Borrower could have taken such action on the relevant LCA Test Date in compliance with the applicable ratios or other provisions, such ratios or provisions shall be deemed to have been complied with, unless a Specified Event of Default shall be continuing on the date such Limited Condition Transaction is consummated. For the avoidance of doubt, (a) if any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA) or other provisions at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed to have been exceeded or breached solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (b) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions, unless on such date a Specified Event of Default shall be continuing. If the Borrower has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent
 
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calculation of any ratio or basket availability (other than for the purposes of determining actual compliance (and not Pro Forma compliance or compliance on a Pro Forma Basis) with the Financial Performance Covenant upon the occurrence and during the continuance of a Covenant Trigger Event) with respect to any other Specified Transaction on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. Notwithstanding anything in this Agreement or any Loan Document to the contrary, if the Borrower or any Restricted Subsidiary (i) incurs Indebtedness, creates Liens, makes dispositions, makes investments, makes Restricted Payments, designates any Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or repays any Indebtedness in connection with any Limited Condition Transaction under a ratio-based basket and (ii) incurs Indebtedness, creates Liens, makes dispositions, makes Investments, makes Restricted Payments, designates any Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or repays any Indebtedness in connection with such Limited Condition Transaction under a non-ratio-based basket (which shall occur within five Business Days of the events in the preceding clause (i) above), then the applicable ratio will be calculated with respect to any such action under the applicable ratio-based basket without regard to any such action under such non-ratio-based basket made in connection with such Limited Condition Transaction.
ARTICLE II
The Credits
SECTION 2.01 Commitments . Subject to the terms and conditions set forth herein:
 
(1)	Revolving Loans .	
 
 	(a)	Each Lender severally (and not jointly) agrees to make loans (“ Revolving Loans ”) to the Borrower in Dollars from time to time during the Availability Period in amounts not to exceed such Lender’s Revolving Facility Percentage of the Borrowing Base, and in an aggregate principal amount that will not result in (i) such Lender’s Revolving Facility Credit Exposure exceeding such Lender’s Revolving Facility Commitment or (ii) the total Revolving Facility Credit Exposure exceeding the total Revolving Facility Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.	
 
 	(b)	Notwithstanding the foregoing, on the Closing Date only the following Revolving Loans will be made available:	
 
 	(i)	Revolving Loans in an amount not exceed $100.0 million for working capital related purposes; plus	
 
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 	(ii)	Revolving Loans in an amount to replace or backstop the Existing Letters of Credit and refinance any existing revolving credit facilities of the Borrower, Impax or their respective subsidiaries;	
 
(2)	Overadvances . Insofar as the Borrower may request and the Administrative Agent may be willing in its sole discretion (but with absolutely no obligation) to (i) make Revolving Loans to the Borrower, on behalf of the Revolving Lenders, at a time when the Revolving Facility Credit Exposure exceeds, or would exceed with the making of any such Revolving Loan, the Borrowing Base (any such Loan being herein referred to individually as an “ Overadvance ”) or (ii) deem the amount of Revolving Loans outstanding that are in excess of the Borrowing Base to be Overadvances, and the Administrative Agent will enter such Overadvances as debits in the applicable Loan Account. All Overadvances shall be ABR Loans, will be repaid on demand, will be secured by the Collateral and will bear interest as provided in this Agreement for ABR Revolving Loans generally. Any Overadvance made pursuant to the terms hereof will be made to the Borrower by all Lenders ratably in accordance with their respective Revolving Facility Percentages. Overadvances in the aggregate amount of $10.0 million or less may, unless a Default or Event of Default has occurred and is continuing, be made in the sole discretion of the Administrative Agent; provided that the Required Revolving Lenders may at any time revoke the Administrative Agent’s authorization to make future Overadvances; provided that no existing Overadvances will be subject to such revocation and any such revocation must be in writing and will become effective prospectively upon the Administrative Agent’s receipt thereof. Overadvances in an aggregate amount of more than $10.0 million but less than $25.0 million may, unless a Default or Event of Default has occurred and is continuing, be made with the consent of the Required Revolving Lenders. Overadvances in an aggregate amount of $25.0 million or more and Overadvances to be made after the occurrence and during the continuation of a Default or Event of Default will require the consent of all Revolving Lenders. No Overadvance shall result in a Default due to Borrower’s failure to comply with Section 2.01 for so long as such Overadvance remains outstanding in accordance with the terms of this Section 2.01(2), but solely with respect to the amount of such Overadvance. The making of an Overadvance on any one occasion shall not obligate the Administrative Agent to make any Overadvance on any other occasion. The foregoing notwithstanding, in no event, unless otherwise consented to by all Revolving Lenders will:	
 
 	(a)	any Overadvances be outstanding for more than 90 consecutive days;	
 
 	(b)	the Administrative Agent or Lenders make any additional Overadvances unless 30 days or more have expired since the last date on which any Overadvances were outstanding; or	
 
 	(c)	will the Administrative Agent make Revolving Loans on behalf of Lenders under this Section 2.01(2) to the extent such Revolving Loans would cause a Lender’s share of the Revolving Facility Credit Exposure to exceed such Lender’s Revolving Facility Commitment or cause the aggregate Revolving Facility Commitments to be exceeded.	
 
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(3)	Protective Advances . Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent, in its sole, discretion (but with absolutely no obligation), may make Revolving Loans to the Borrower on behalf of all Lenders, so long as the aggregate amount of such Revolving Loans will not exceed 5.0% of the Borrowing Base, if the Administrative Agent, in its Reasonable Credit Judgment, deems that such Revolving Loans are necessary or desirable to:	
 
 	(a)	preserve or protect all or any portion of the Collateral;	
 
 	(b)	enhance the likelihood or maximize the amount of repayment of the Loans and the other Obligations; or	
 
 	(c)	pay any other amount chargeable to or required to be paid by the Borrower pursuant to this Agreement including payments of reimbursable expenses and other sums payable under the Loan Documents (such Revolving Loans, “ Protective Advances ”);	
provided that (i) in no event will the Revolving Facility Credit Exposure exceed the aggregate Revolving Facility Commitments and (ii) the Required Revolving Lenders under the Revolving Facility may at any time revoke the Administrative Agent’s authorization to make future Protective Advances; provided , further , that any such revocation must be in writing and will become effective prospectively upon the Administrative Agent’s receipt thereof and existing Protective Advances will not be subject to thereto.
Each applicable Lender will be obligated to advance to the Borrower its Revolving Facility Percentage of each Protective Advance made in accordance with this Section 2.01(3). If Protective Advances are made in accordance with the preceding sentence, then all Revolving Lenders will be bound to make, or permit to remain outstanding, such Protective Advances based upon their Revolving Facility Percentages in accordance with the terms of this Agreement. All Protective Advances will be repaid by the Borrower on demand, will be secured by the Collateral and will bear interest as provided in this Agreement for Revolving Loans generally. All Protective Advances shall be ABR Loans, will be repaid on demand, will be secured by the Collateral and will bear interest as provided in this Agreement for ABR Revolving Loans generally. At any time that there is Excess Availability and the conditions precedent set forth in Section 4.02 have been satisfied, the Administrative Agent may request the Revolving Lenders to make a Revolving Loan to repay a Protective Advance.
SECTION 2.02 Loans and Borrowings .
 
(1)	Each Loan will be made as part of a Borrowing consisting of Loans of the same Type made by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it will not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender will be responsible for any other Lender’s failure to make Loans as required.	
 
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(2)	Subject to Section 2.14, each Borrowing will be comprised entirely of ABR Loans or Eurocurrency Revolving Loans as the Borrower may request in accordance herewith. Each Lender at its option may make any ABR Loan or Eurocurrency Revolving Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option will not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement and such Lender will not be entitled to any amounts payable under Section 2.15 or 2.17 solely in respect of increased costs resulting from such exercise and existing at the time of such exercise.	
 
(3)	At the commencement of each Interest Period for any Eurocurrency Revolving Facility Borrowing, such Borrowing will be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. At the time that each ABR Revolving Facility Borrowing is made, such Borrowing will be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that an ABR Revolving Facility Borrowing may be in an aggregate amount that is equal to the entire unused available balance of the Revolving Facility Commitments or that is required to finance the reimbursement of an L/C Disbursement as contemplated by Section 2.05(5). Borrowings of more than one Type may be outstanding at the same time; provided that there will not at any time be more than ten Eurocurrency Revolving Facility Borrowings outstanding.	
 
(4)	Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.	
SECTION 2.03 Requests for Borrowings .
 
(1)	To request a Revolving Facility Borrowing, (a) with respect to any initial ABR Borrowing on the Closing Date, the Borrower will deliver to the Administrative Agent a Borrowing Request not later than 2:00 p.m., New York City time, one Business Day before the anticipated Closing Date (or at such later date or time as the Administrative Agent may agree), requesting that the Lenders make the Loans on the Closing Date; provided that such Borrowing Request may be conditioned upon occurrence of the Closing Date and (b) with respect to any other Borrowing, the Borrower will notify the Administrative Agent of such request by telephone, if arrangements for doing so have been approved by the Administrative Agent, (i) in the case of a Eurocurrency Revolving Facility Borrowing, not later than 2:00 p.m., New York City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an ABR Borrowing, not later than 1:00 p.m., New York City time, on the date of the proposed Borrowing (or in each case, at such later date or time as the Administrative Agent may agree). Each such telephonic Borrowing Request will be irrevocable and will be confirmed promptly by hand delivery, facsimile or e mail to the Administrative Agent of a written Borrowing Request substantially in the form of Exhibit D-1 and signed by the Borrower.	
 
(2)	Each such telephonic and written Borrowing Request will specify the following information in compliance with Section 2.02:	
 
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 	(a)	the aggregate amount of the requested Borrowing, which amount will not exceed Excess Availability;	
 
 	(b)	the date of such Borrowing, which will be a Business Day;	
 
 	(c)	whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Revolving Facility Borrowing;	
 
 	(d)	in the case of a Eurocurrency Revolving Facility Borrowing, the initial Interest Period to be applicable thereto, which will be a period contemplated by the definition of the term “Interest Period;”	
 
 	(e)	if the Borrowing Base contains Eligible Cash, the amount of Eligible Cash as of the close of business on the Business Day prior to the date such Borrowing Request is delivered; and	
 
 	(f)	the location and number of the Borrower’s account to which funds are to be disbursed.	
 
(3)	Disbursement . The Borrower hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of each Loan requested pursuant to this Section 2.03. The proceeds of each Revolving Loan requested under this Section 2.03 will be disbursed by the Administrative Agent in immediately available funds and in the same form as received from the Lenders, in the case of a borrowing on the Closing Date permitted under Section 2.01(1), in accordance with the terms of the written disbursement letter from the Borrower and, in the case of each Borrowing after the Closing Date, by wire transfer to such bank account as may be agreed upon by the Borrower and the Administrative Agent, from time to time or elsewhere if pursuant to a written direction from the Borrower. If at any time any Loan is funded in excess of the amount requested by the Borrower, the Borrower agrees to repay the excess to the Administrative Agent immediately upon notice thereof to the Borrower from the Administrative Agent.	
 
(4)	If no election as to the Type of Revolving Facility Borrowing is specified, then the requested Revolving Facility Borrowing will be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Revolving Facility Borrowing, then the Borrower will be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Administrative Agent will advise the Lenders of the details thereof and of the amount of each such Lender’s Loan to be made as part of the requested Borrowing.	
SECTION 2.04 [Reserved] .
SECTION 2.05 Letters of Credit .
 
(1)	General . Subject to the terms and conditions set forth herein, the Borrower may request the issuance of (a) trade letters of credit in Dollars in support of trade obligations of the Borrower or any Subsidiary Loan Party incurred in the ordinary course of business (such letters of credit issued for such purposes, “ Trade Letters of Credit ”) and (b) standby	
 
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 	letters of credit in Dollars issued for any other lawful purposes of the Borrower or any Subsidiary Loan Party (such letters of credit issued for such purposes, “ Standby Letters of Credit ”) for its own account or for the account of any Subsidiary in a form reasonably acceptable to the applicable Issuing Bank, at any time and from time to time during the Availability Period and prior to the date that is five (5) Business Days prior to the Maturity Date. “ Letters of Credit ” will include Trade Letters of Credit and Standby Letters of Credit and the Existing Letters of Credit. Each Existing Letter of Credit will be deemed to have been issued under this Section 2.05 on the Closing Date. The Borrower unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the support of any Subsidiary’s obligations as provided in the first sentence of this paragraph, the Borrower will be fully responsible for the reimbursement of L/C Disbursements in accordance with the terms hereof, the payment of interest thereon and the payment of fees due under Section 2.12(2) to the same extent as if it were the sole account party in respect of such Letter of Credit (the Borrower hereby irrevocably waiving to the fullest extent permitted by law any defenses (other than payment or performance) that might otherwise be available to it as a guarantor or surety of the obligations of such Subsidiary that is an account party in respect of any such Letter of Credit).	
 
(2)	Notice of Issuance, Amendment, Renewal, Extension .	
 
 	(a)	To request the issuance of a Letter of Credit (or the amendment, extension, reinstatement or renewal (other than an automatic extension in accordance with paragraph (3) of this Section 2.05) of an outstanding Letter of Credit), the Borrower will deliver by hand or facsimile (or transmit by e-mail, if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent no later than three Business Days in advance of the requested date of issuance, amendment or extension (or such shorter period as the Administrative Agent and the Issuing Bank in their sole discretion may agree) a Letter of Credit Request requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, extended, reinstated or renewed, and specifying the date of issuance, amendment, extension, reinstatement or renewal (which will be a Business Day), the date on which such Letter of Credit is to expire (which will comply with paragraph (3) of this Section 2.05), the amount of such Letter of Credit, the name and address of the beneficiary thereof, whether such Letter of Credit constitutes a Standby Letter of Credit or a Trade Letter of Credit, and such other information as is necessary to issue, amend, extend, reinstate or renew such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower will also submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement will control. A Letter of Credit will be issued, amended, extended, reinstated or renewed only if (and upon issuance, amendment, extension, reinstatement or renewal of each Letter of Credit the Borrower will be deemed to represent and warrant that), after giving effect to such issuance, amendment, extension, reinstatement or renewal:	
 
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 	(i)	the Revolving L/C Exposure will not exceed the Letter of Credit Sublimit; and	
 
 	(ii)	the Revolving Facility Credit Exposure will not exceed the Line Cap.	
 
 	(b)	Notwithstanding anything to the contrary contained herein, the Issuing Bank will not issue (or be obligated to issue) any Letter of Credit if:	
 
 	(i)	the proceeds of such Letter of Credit would be made available to any Person (A) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the time of such funding, is the subject of country-wide or territory-wide Sanctions or (B) in any manner that would result in a violation of any Sanctions by any party to this Agreement;	
 
 	(ii)	any order, judgment or decree of any Governmental Authority or arbitrator by its terms purports to enjoin or restrain the Issuing Bank from issuing such Letter of Credit;	
 
 	(iii)	any applicable Law or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank prohibits or shall request that the Issuing Bank refrain from the issuance of letters of credit generally;	
 
 	(iv)	such Letter of Credit imposes upon the Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date;	
 
 	(v)	such Letter of Credit imposes upon the Issuing Bank any unreimbursed loss, cost or expense that was not applicable on the Closing Date and that the Issuing Bank in good faith deems material to it;	
 
 	(vi)	the issuance of such Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally; or	
 
 	(vii)	any Lender is at such time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of cash collateral in accordance herewith in an amount to be agreed between the Borrower and each applicable Issuing Bank (but in any event not to exceed 105%) of the outstanding amount of the applicable Letters of Credit, reasonably satisfactory to such Issuing Bank with the Borrower or such Lender to eliminate such Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.24(1)) with respect to such Defaulting Lender arising from either such Letter of Credit then proposed to be issued or such Letter of Credit and all other L/C Obligations as to which such Issuing Bank has actual or potential Fronting Exposure.	
 
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(3)	Expiration Date .	
 
 	(a)	Each Standby Letter of Credit will expire at or prior to the close of business on the earlier of (i) the date one year (unless otherwise agreed upon by the Administrative Agent and the Issuing Bank in their sole discretion) after the date of issuance of such Standby Letter of Credit (or, in the case of any extension of the expiration date thereof (whether automatic or by amendment), one year (unless otherwise agreed upon by the Administrative Agent and the Issuing Bank in their sole discretion) after such extension) and (ii) the date that is five Business Days prior to the Maturity Date; provided that any Standby Letter of Credit with a one-year tenor may provide for the automatic extension thereof for additional one-year periods (which will in no event extend beyond the date referred to in the preceding clause (ii)) so long as such Standby Letter of Credit permits the Issuing Bank to prevent any such extension at least once in each 12-month period (commencing with the date of issuance of such Standby Letter of Credit) by giving prior notice to the beneficiary thereof within a time period during such 12-month period to be agreed upon at the time such Standby Letter of Credit is issued; provided , further , that if the Issuing Bank and the Administrative Agent each consent in their sole discretion, the expiration date of any Standby Letter of Credit may extend beyond the date referred to in clause (ii) above if cash collateralized or backstopped pursuant to arrangements reasonably acceptable to the relevant Issuing Bank; and, provided , further , that (A) if any such Standby Letter of Credit is issued after the date that is 30 days prior to the Maturity Date, the Borrower will, upon the request of the applicable Issuing Bank, provide cash collateral pursuant to documentation reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank in an amount equal to 103% of the face amount of each such Standby Letter of Credit on or prior to such date of issuance (or such later date as the Administrative Agent and the Issuing Bank may agree) and (B) each Revolving Lender’s participation in any undrawn Letter of Credit that is outstanding on the Maturity Date will terminate on the Maturity Date.	
 
 	(b)	Each Trade Letter of Credit will expire on the earlier of (A) 180 days after such Trade Letter of Credit’s date of issuance or (B) the date that is five Business Days prior to the Maturity Date.	
 
(4)	Participations . By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount or extending the expiration date thereof) and without any further action on the part of the applicable Issuing Bank or the Revolving Lenders, such Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s Revolving Facility Percentage of the aggregate amount available to be drawn under such Letter of Credit. Each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, its Revolving Facility Percentage of each L/C Disbursement made	
 
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 	by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (5) of this Section 2.05, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and will not be affected by any circumstance whatsoever, including any amendment, extension, reinstatement or renewal of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the Commitments, and that each such payment will be made without any offset, abatement, withholding or reduction whatsoever. Each Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s Revolving Facility Percentage of the aggregate amount available to be drawn under such Letter of Credit at each time such Lender’s Commitment is amended pursuant to this Agreement.	
 
(5)	Reimbursement .	
 
 	(a)	If the applicable Issuing Bank makes any L/C Disbursement in respect of a Letter of Credit, the Borrower will reimburse such L/C Disbursement by paying to the Administrative Agent an amount equal to such L/C Disbursement not later than 2:00 p.m., New York City time, on the first Business Day after the Borrower receives notice under paragraph (8) of this Section 2.05 of such L/C Disbursement (or the second Business Day, if such notice is received after 12:00 noon, New York City time), together with accrued interest thereon from the date of such L/C Disbursement at the rate applicable to ABR Loans; provided that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with an ABR Revolving Facility Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligations to make such payment will be discharged and replaced by the resulting ABR Revolving Facility Borrowing.	
 
 	(b)	If the Borrower fails to reimburse any L/C Disbursement when due, then the Administrative Agent will promptly notify the applicable Issuing Bank and each other Revolving Lender of the applicable L/C Disbursement, the payment then due from the Borrower in respect thereof and, in the case of a Revolving Lender, such Lender’s Revolving Facility Percentage thereof. Promptly following receipt of such notice, each Revolving Lender will pay to the Administrative Agent its Revolving Facility Percentage of the payment then due from the Borrower in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 will apply, mutatis mutandis , to the payment obligations of the Revolving Lenders), and the Administrative Agent will promptly pay to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders. Any payment made by a Revolving Lender pursuant to this paragraph (5) to reimburse an Issuing Bank for any L/C Disbursement (other than the funding of an ABR Revolving Loan as contemplated above) will not constitute a Loan and will not relieve the Borrower of its obligations to reimburse such L/C Disbursement.	
 
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 	(c)	Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to paragraph (5)(a), the Administrative Agent will distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to paragraph (5)(b) to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear.	
 
(6)	Obligations Absolute . The obligations of the Borrower to reimburse L/C Disbursements as provided in paragraph (5) of this Section 2.05 will be absolute, unconditional and irrevocable, and will be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of:	
 
 	(a)	any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein or herein;	
 
 	(b)	any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect;	
 
 	(c)	any payment by the applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; or	
 
 	(d)	any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.05, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.	
 
(7)	Limited Liability . None of the Administrative Agent, the Lenders, any Issuing Bank, or any of their Related Parties, will have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit by the respective Issuing Bank or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms, or any consequence arising from causes beyond the control of such Issuing Bank, the use that may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith; or any of the circumstances referred to in clauses (a), (b) or (c) of Section 2.05(6); provided that the foregoing will not be construed to excuse the applicable Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive, damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are determined by a final and binding decision of a court of competent jurisdiction to have been caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in	
 
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 	the absence of gross negligence, bad faith or willful misconduct on the part of the applicable Issuing Bank, such Issuing Bank will be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.	
 
(8)	Disbursement Procedures . The applicable Issuing Bank will, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank will promptly notify the Administrative Agent and the Borrower in writing (or by telephone confirmed by facsimile or e-mail) of any such demand for payment under a Letter of Credit and whether such Issuing Bank has made or will make an L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice will not relieve the Borrower of its obligations to reimburse such Issuing Bank and/or the Revolving Lenders with respect to any such L/C Disbursement.	
 
(9)	Interim Interest . If an Issuing Bank for any Letter of Credit makes any L/C Disbursement, then, unless the Borrower reimburses such L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid amount thereof will bear interest, for each day from and including the date such L/C Disbursement is made to but excluding the date that the Borrower reimburses such L/C Disbursement, at the rate per annum then applicable to ABR Revolving Loans and such interest shall be due and payable on the date when such reimbursement is made; provided that, if such L/C Disbursement is not reimbursed by the Borrower when due pursuant to paragraph (5) of this Section 2.05, then Section 2.13(3) will apply. Interest accrued pursuant to this paragraph will be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (5) of this Section 2.05 to reimburse such Issuing Bank will be for the account of such Revolving Lender to the extent of such payment.	
 
(10)	Replacement of an Issuing Bank . An Issuing Bank may be replaced at any time by written agreement between the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent will notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement becomes effective, the Borrower will pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12. From and after the effective date of any such replacement, (a) the successor Issuing Bank will have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued by it thereafter and (b) references herein to the term “Issuing Bank” will be deemed to include such successor or any previous Issuing Bank, or such successor and all previous Issuing Banks, as the context will require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank will remain a party hereto and will continue to have all the rights and obligations of such Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement but will not be required to issue additional Letters of Credit.	
 
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(11)	Cash Collateralization . If any Event of Default occurs and is continuing, (a) in the case of an Event of Default described in Section 8.01(8) or (9), on the Business Day, or (b) in the case of any other Event of Default, on the third Business Day, in each case, following the date on which the Borrower receives notice from the Administrative Agent demanding the deposit of cash collateral pursuant to this paragraph (11), the Borrower will deposit in an account with or at the direction of the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders, an amount in cash to be agreed between the Borrower and each applicable Issuing Bank (but in any event not to exceed 105% of the Revolving L/C Exposure as of such date); provided that upon the occurrence of any Event of Default with respect to the Borrower described in Section 8.01(8) or (9), the obligation to deposit such cash collateral will become effective immediately, and such deposit will become immediately due and payable, without demand or other notice of any kind. Each such deposit pursuant to this paragraph will be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Administrative Agent will have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments will be made at the option and sole discretion of (i) for so long as an Event of Default is continuing, the Administrative Agent and (ii) at any other time, the Borrower, in each case, in Cash Equivalents and at the risk and expense of the Borrower, such deposits will not bear interest. Interest or profits, if any, on such investments will accumulate in such account. Moneys in such account will be applied by the Administrative Agent to reimburse each Issuing Bank for L/C Disbursements for which such Issuing Bank has not been reimbursed and, to the extent not so applied, will be held for the satisfaction of the reimbursement obligations of the Borrower for the Revolving L/C Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of the Required Lenders, be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) will be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.	
 
(12)	Additional Issuing Banks . From time to time, the Borrower may, by notice to the Administrative Agent, designate any Lender (in addition to JPM and RBC) to act as an Issuing Bank; provided that such Lender agrees in its sole discretion to act as such and such Lender is reasonably satisfactory to the Administrative Agent as an Issuing Bank (such consent not to be unreasonably withheld, delayed or conditioned). Each such additional Issuing Bank will execute a counterpart of this Agreement and will thereafter be an Issuing Bank hereunder for all purposes. The Borrower may, in its sole discretion, request a Letter of Credit issuance from any Issuing Bank.	
 
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(13)	Reporting . Unless otherwise requested by the Administrative Agent, each Issuing Bank will (a) provide to the Administrative Agent copies of any notice received from the Borrower pursuant to Section 2.05(2) no later than the next Business Day after receipt thereof and (b) report in writing to the Administrative Agent as follows:	
 
 	(i)	periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations and all disbursements and reimbursements;	
 
 	(ii)	reasonably prior to each Business Day on which such Issuing Bank expects to issue, amend or extend any Letter of Credit, the date of such issuance, amendment or extension, and the aggregate face amount of the Letters of Credit to be issued, amended or extended by it and outstanding after giving effect to such issuance, amendment or extension occurred (and whether the amount thereof changed), and the Issuing Bank will be permitted to issue, amend or extend such Letter of Credit if the Administrative Agent will not have advised the Issuing Bank that such issuance, amendment or extension would not be in conformity with the requirements of this Agreement;	
 
 	(iii)	on each Business Day on which such Issuing Bank makes any L/C Disbursement, the date of such L/C Disbursement and the amount of such L/C Disbursement;	
 
 	(iv)	on any Business Day on which the Borrower fails to reimburse an L/C Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount of such L/C Disbursement; and	
 
 	(v)	on any other Business Day, such other information with respect to the outstanding Letters of Credit issued by such Issuing Bank as the Administrative Agent reasonably requests, including but not limited to prompt verification of such information as may be requested by the Administrative Agent.	
Unless the Administrative Agent otherwise agrees, the failure of any Issuing Bank (other than the Administrative Agent or any affiliate thereof acting as an Issuing Bank) to comply with the provisions of this clause (13) with respect to any letter of credit will result in such letter of credit not being deemed a “Letter of Credit” hereunder and under the other Loan Documents.
 
(14)	Reallocation . If the Maturity Date in respect of any tranche of Revolving Facility Commitments occurs prior to the expiration of any Letter of Credit, then (i) if one or more other tranches of Revolving Facility Commitments in respect of which the Maturity Date shall not have occurred are then in effect, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Lenders to purchase participations therein and to make Revolving Loans and	
 
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 	payments in respect thereof pursuant to Section 2.05(5)) under (and ratably participated in by Lenders pursuant to) the Revolving Facility Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolving Facility Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be reallocated); provided , in no event shall such reallocation cause a Lender’s share of the Revolving Facility Commitment to exceed such Lender’s Commitment, and (ii) to the extent not reallocated pursuant to the immediately preceding clause (i), the Borrower shall cash collateralize any such Letter of Credit in accordance with Section 2.05(11). If, for any reason, such cash collateral is not provided or reallocation does not occur, the Revolving Lenders under the maturing tranche shall continue to be responsible for their participating interests in the Letters of Credit. Except to the extent of reallocations of participations pursuant to clause (i) of the second preceding sentence, the occurrence of a Maturity Date with respect to a given tranche of Revolving Facility Commitments shall have no effect upon (and shall not diminish) the percentage participations of the Revolving Lenders in any Letter of Credit issued before such Maturity Date. Commencing with the Maturity Date of any tranche of Revolving Facility Commitments, the sublimit for Letters of Credit shall be agreed with the Lenders under the extended tranches.	
SECTION 2.06 Funding of Borrowings .
 
(1)	Each Lender will make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 10:00 a.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided that same-day ABR Loans will be made by each Lender on the proposed date thereof by wire transfer of immediately available funds by 3:00 p.m., New York City time. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower as specified in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the reimbursement of an L/C Disbursement and reimbursements as provided in Section 2.05(5) will be remitted by the Administrative Agent to the applicable Issuing Bank.	
 
(2)	Unless the Administrative Agent has received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (1) of this Section 2.06 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent at (a) in the case of such Lender, the greater of (i) the Federal Funds Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (b) in the case of the Borrower, the interest rate applicable to ABR Loans at such time. If such Lender pays such amount to the Administrative Agent then such amount will constitute such Lender’s Loan included in such Borrowing.	
 
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SECTION 2.07 Interest Elections .
 
(1)	Each Borrowing initially will be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving Facility Borrowing, will have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Revolving Facility Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.07. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion will be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion will be considered a separate Borrowing.	
 
(2)	To make an election pursuant to this Section 2.07 following the Closing Date, the Borrower will notify the Administrative Agent of such election by telephone (a) in the case of an election to convert to or continue a Eurocurrency Revolving Facility Borrowing, not later than 2:00 p.m., New York City time, three Business Days before the date of such election or (b) in the case of an election to convert to or continue an ABR Borrowing, not later than 1:00 p.m., New York City time, on such election date (which shall be a Business Day) (or in each case at such later date or time as the Administrative Agent may agree). Each such telephonic Interest Election Request will be confirmed promptly by hand delivery, facsimile transmission or e-mail to the Administrative Agent of a written Interest Election Request substantially in the form of Exhibit E and signed by the Borrower.	
 
(3)    (a)	Each telephonic and written Interest Election Request will be irrevocable and will specify the following information:	
 
 	(i)	the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below will be specified for each resulting Borrowing);	
 
 	(ii)	the effective date of the election made pursuant to such Interest Election Request, which will be a Business Day;	
 
 	(iii)	whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Revolving Facility Borrowing; and	
 
 	(iv)	if the resulting Borrowing is a Eurocurrency Revolving Facility Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which will be a period contemplated by the definition of “Interest Period.”	
 
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 	(b)	If any such Interest Election Request requests a Eurocurrency Revolving Facility Borrowing but does not specify an Interest Period, then the Borrower will be deemed to have selected a Eurocurrency Revolving Facility Borrowing having an Interest Period of one month’s duration.	
 
(4)	Promptly following receipt of an Interest Election Request, the Administrative Agent will advise each applicable Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.	
 
(5)	If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Revolving Facility Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period, such Borrowing will be automatically converted into or continued as an ABR Borrowing.	
 
(6)	Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means) of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing, (a) no outstanding Borrowing may be converted to or continued as a Eurocurrency Revolving Facility Borrowing and (b) unless repaid, each Eurocurrency Revolving Facility Borrowing will be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.	
SECTION 2.08 Termination and Reduction of Commitments .
 
(1)	Unless previously terminated, the Commitments will terminate on the Maturity Date.	
 
(2)	The Borrower may at any time terminate, or from time to time reduce, the Revolving Facility Commitments; provided that (i) each reduction of the Revolving Facility Commitments will be in an amount that is an integral multiple of $500,000 and not less than $1.0 million (or, if less, the remaining amount of the applicable Revolving Facility Commitments) and (ii) the Borrower will not terminate or reduce the Revolving Facility Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.11, the Revolving Facility Credit Exposure would exceed the lesser of the total Revolving Facility Commitments and the Borrowing Base.	
 
(3)	The Borrower will notify the Administrative Agent of any election to terminate or reduce the Revolving Facility Commitments under paragraph (2) of this Section 2.08 at least three Business Days prior to the date of such termination or reduction, specifying such election and the date thereof (or at such later date or time as the Administrative Agent may agree). Promptly following receipt of any notice, the Administrative Agent will advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section 2.08 will be irrevocable; provided that a notice of termination of the Revolving Facility Commitments delivered by the Borrower may state that such notice is revocable or conditioned upon the effectiveness of other credit facilities or a specified transaction, in which case such notice may be revoked or extended by the Borrower (by notice to the Administrative Agent on or prior to the specified termination date). Any termination or reduction of the Commitments will be permanent. Each reduction of the Commitments will be made ratably among the Lenders in accordance with their respective Commitments.	
 
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SECTION 2.09 Promise to Pay; Evidence of Debt .
 
(1)	The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Revolving Lender the then unpaid principal amount of each Revolving Loan on the Maturity Date.	
 
(2)	Any Lender may request that Loans made by it be evidenced by a Note. In such event, the Borrower will prepare, execute and deliver to such Lender a Note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent and reasonably acceptable to the Borrower.	
 
(3)	The Administrative Agent will maintain accounts in which it will record (a) the amount of each Loan to the Borrower made hereunder, the Type thereof and the Interest Period (if any) applicable thereto, (b) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (c) any amount received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof. The entries made in the accounts maintained pursuant to this paragraph (3) will be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of the Administrative Agent to maintain such accounts or any error therein will not in any manner affect the obligations of the Borrower to repay the Obligations in accordance with the terms of this Agreement.	
SECTION 2.10 Optional Repayment of Loans .
 
(1)	The Borrower will have the right at any time and from time to time to repay any Loan in whole or in part, without premium or penalty (but subject to Section 2.16), in an aggregate principal amount, (a) in the case of Eurocurrency Revolving Loans, that is an integral multiple of $100,000 and not less than $1.0 million, and (b) in the case of ABR Loans, that is an integral multiple of $100,000 and not less than $500,000, or, in each case, if less, the amount outstanding; provided that no portion of the principal of any Refinancing Term Loans may be prepaid prior to the Discharge of ABL Revolving Claims unless such prepayment is permitted under Section 6.11(1).	
 
(2)	Prior to any repayment of any Revolving Loans, the Borrower will select the Borrowing or Borrowings to be repaid and will notify the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) of such selection not later than 2:00 p.m., New York City time, (a) in the case of an ABR Borrowing, one Business Day before the anticipated date of such repayment and (b) in the case of a Eurocurrency Revolving Facility Borrowing, three Business Days before the anticipated date of such repayment (or in each case, at such later date or time as the Administrative Agent may agree). Each repayment of a Borrowing will be applied to the Revolving Loans included in the repaid Borrowing such that each Revolving Lender receives its ratable share of such repayment (based upon the respective Revolving Facility Credit Exposures of the Revolving Lenders at the time of such repayment). Repayments of Eurocurrency Revolving Facility Borrowings will be accompanied by accrued interest on the amount repaid, together with any amounts due under Section 2.16.	
 
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SECTION 2.11 Mandatory Repayment of Loans .
 
(1)	Except for Overadvances permitted under Section 2.01, in the event the aggregate amount of the Revolving Facility Credit Exposure exceeds the Line Cap at such time, then the Borrower will within three (3) Business Days repay outstanding Revolving Loans, and, if there remains an excess after paying all Revolving Loans, cash collateralize Letters of Credit (in accordance with Section 2.05(11)) in an aggregate amount equal to such excess, in each case with no reduction in commitments.	
 
(2)	In the event and on such occasion as the Revolving L/C Exposure exceeds the Letter of Credit Sublimit, the Borrower will within three (3) Business Days deposit cash collateral (in accordance with Section 2.05(11)) in an amount equal to such excess.	
 
(3)	Upon the occurrence and during the continuance of a Cash Dominion Period, all amounts in the Dominion Account shall be applied by the Administrative Agent pursuant to Section 5.11(2).	
SECTION 2.12 Fees .
 
(1)	The Borrower agrees to pay to the Administrative Agent, for the account of each Revolving Lender (other than any Defaulting Lender), a commitment fee (a “ Commitment Fee ”) on the average daily amount of the Available Unused Commitment of such Lender, which shall accrue at a rate per annum equal to the Applicable Commitment Fee Percentage during the period from and including the Closing Date to but excluding the earlier of the Maturity Date and any date on which the Commitments of all the Lenders are otherwise terminated as provided herein. Accrued Commitment Fees will be payable in arrears on the first (1 st ) Business Day after the end of each fiscal quarter of the Borrower, commencing with the fiscal quarter of the Borrower ending on June 30, 2018 and on each Maturity Date and any date on which the Commitments of all the Lenders are terminated as provided herein. All Commitment Fees will be computed on the basis of the actual number of days elapsed (including the first day but excluding the last day) in a year of 360 days.	
 
(2)	The Borrower agrees to pay to:	
 
 	(a)	the Administrative Agent for the account of each Revolving Lender (other than any Defaulting Lender, it being understood that at any time the Issuing Bank has Fronting Exposure to such Defaulting Lender, the L/C Participation Fee with respect to such Fronting Exposure will be payable to the Issuing Bank for its own account), a fee with respect to its participation in each outstanding Letter of Credit (an “ L/C Participation Fee ”) on the daily aggregate L/C Amount, which shall accrue at a rate per annum equal to the Applicable Margin for Eurocurrency Revolving Loans during the period from and including the Closing Date to but excluding the earlier of the Maturity Date and any date on which the	
 
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 	Commitments of all the Lenders are otherwise terminated as provided herein. Accrued L/C Participation Fees will be payable in arrears on the first (1 st ) Business Day after the end of each fiscal quarter of the Borrower, commencing with the fiscal quarter of the Borrower ending on June 30, 2018 and on each Maturity Date and any date on which the Commitments of all the Lenders are terminated as provided herein.	
 
 	(b)	each Issuing Bank, for its own account, (i) a fronting fee with respect to each Letter of Credit issued by such Issuing Bank at a rate per annum equal to the percentage separately agreed upon between the Borrower and such Issuing Bank (such rate per annum not to exceed 0.125%) on the daily L/C Amount with respect to such Letter of Credit, during the period from and including the date of issuance or extension (as applicable) of such Letter of Credit and to but excluding the date of termination of such Letter of Credit and (ii) such Issuing Bank’s customary issuance fees and customary documentary and processing fees and charges (collectively, “ Issuing Bank Fees ”). All L/C Participation Fees and Issuing Bank Fees that are payable in Dollars on a per annum basis will be computed on the basis of the actual number of days elapsed (including the first day but excluding the last day) in a year of 360 days. Issuing Bank Fees accrued will be payable in arrears on the first (1 st ) Business Day after the end of each fiscal quarter of the Borrower, commencing with the fiscal quarter of the Borrower ending on June 30, 2018 and on each Maturity Date and any date on which the Commitments of all the Lenders are terminated as provided herein.	
 
(3)	The Borrower agrees to pay to the Administrative Agent, for its own account, the “Agency Fee” in respect of the Revolving Facility set forth in the Agency Fee Letter at the times and on the terms specified therein or in such other amounts and at such other times as may be separately agreed in writing by the Administrative Agent and the Borrower from time to time (the “ Administrative Agent Fees ”).	
 
(4)	All Fees will be paid on the dates due and payable, in immediately available funds, to the Administrative Agent at the Payment Office for distribution, if and as appropriate, among the Lenders, except that Issuing Bank Fees will be paid directly to the applicable Issuing Banks. Once paid, none of the Fees will be refundable under any circumstances (except as expressly agreed between the Borrower and the Administrative Agent, including pursuant to the Agency Fee Letter).	
SECTION 2.13 Interest .
 
(1)	The Loans comprising each ABR Borrowing will bear interest at the ABR plus the Applicable Margin.	
 
(2)	The Loans comprising each Eurocurrency Revolving Facility Borrowing will bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.	
 
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(3)	Following the occurrence and during the continuation of a Specified Event of Default, the Borrower will pay interest on overdue amounts hereunder at a rate per annum equal to (a) in the case of overdue principal of, or interest on, any Loan, 2.0% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section 2.13 or (b) in the case of any other overdue amount, 2.0% plus the rate applicable to ABR Loans as provided in clause (1) of this Section 2.13.	
 
(4)	Accrued interest on each Loan will be payable by the Borrower in arrears (a) on each Interest Payment Date for such Loan; (b) on the applicable Maturity Date; and (c) upon termination of the Revolving Facility Commitments; provided that:	
 
 	(i)	interest accrued pursuant to paragraph (3) of this Section 2.13 will be payable on demand;	
 
 	(ii)	in the event of any repayment or prepayment of any Loan (other than a repayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid will be payable on the date of such repayment or prepayment; and	
 
 	(iii)	in the event of any conversion of any Eurocurrency Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan will be payable on the effective date of such conversion.	
 
(5)	All interest hereunder will be computed on the basis of a year of 360 days, except that interest computed by reference to the ABR at times when the ABR is based on the prime rate will be computed on the basis of a year of 365 days (or 366 days in a leap year), and, in each case, will be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable ABR, Adjusted LIBO Rate or LIBO Rate will be determined by the Administrative Agent, and such determination will be conclusive absent manifest error.	
SECTION 2.14 Alternate Rate of Interest .
 
(1)	If prior to the commencement of any Interest Period for a Eurocurrency Revolving Facility Borrowing:	
 
 	(a)	the Administrative Agent determines (which determination will be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; or	
 
 	(b)	the Administrative Agent is advised by the Required Revolving Lenders and the Required Term Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;	
 
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 	then the Administrative Agent will give notice thereof to the Borrower and the Lenders by telephone, facsimile transmission or e-mail as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (a) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a Eurocurrency Revolving Facility Borrowing will be ineffective and such Borrowing will be converted to or continued as on the last day of the Interest Period applicable thereto an ABR Borrowing, and (b) if any Borrowing Request requests a Eurocurrency Revolving Facility Borrowing, such Borrowing will be made as an ABR Borrowing.	
 
(2)	If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (1)(a) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (1)(a) have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment (or amendment and restatement) to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate); provided that, if such alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 10.08, such amendment (or amendment and restatement) shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Revolving Lenders or the Required Term Lenders (as applicable) stating that such Required Revolving Lenders or Required Term Lenders (as applicable) object to such amendment (or amendment and restatement); provided that any such objection will only be effective with respect to the Revolving Loans or the Refinancing Term Loans (as applicable). Until an alternate rate of interest shall be determined in accordance with this clause (2) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.11(2), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a Eurocurrency Revolving Facility Borrowing will be ineffective and (y) if any Borrowing Request requests a Eurocurrency Revolving Facility Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement	
 
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SECTION 2.15 Increased Costs .
 
(1)	If any Change in Law:	
 
 	(a)	imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or Issuing Bank;	
 
 	(b)	imposes on any Lender or Issuing Bank or the London interbank market any other condition (other than Taxes) affecting this Agreement or Eurocurrency Revolving Loans made by such Lender or any Letter of Credit or participation therein; or	
 
 	(c)	subjects any Recipient to any Taxes (other than (i) Indemnified Taxes and (ii) Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or deposits, reserves, other liabilities or capital attributable thereto;	
and the result of any of the foregoing is to increase the cost to such Lender of making or maintaining any Eurocurrency Revolving Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered.
 
(2)	If any Lender or Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy or liquidity), then from time to time the Borrower will pay to such Lender or such Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.	
 
(3)	A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (1) or (2) of this Section 2.15 will be delivered to the Borrower and will be conclusive absent manifest error. The Borrower will pay such Lender or Issuing Bank, as applicable, the amount shown as due on any such certificate within ten days after receipt thereof.	
 
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(4)	Promptly after any Lender or any Issuing Bank has determined that it will make a request for increased compensation pursuant to this Section 2.15, such Lender or Issuing Bank will notify the Borrower thereof. Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 2.15 will not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower will not be required to compensate a Lender or an Issuing Bank pursuant to this Section 2.15 for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or Issuing Bank, as applicable, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided , further , that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above will be extended to include the period of retroactive effect thereof.	
SECTION 2.16 Break Funding Payments . Except as otherwise set forth herein, the Borrower will compensate each Lender for the actual out-of-pocket loss, cost and expense (excluding loss of anticipated profits) attributable to the following events:
 
(1)	the payment of any principal of any Eurocurrency Revolving Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default);	
 
(2)	the conversion of any Eurocurrency Revolving Loan other than on the last day of the Interest Period applicable thereto;	
 
(3)	the failure to borrow, convert, continue or prepay any Eurocurrency Revolving Loan on the date specified in any notice delivered pursuant hereto; or	
 
(4)	the assignment of any Eurocurrency Revolving Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19.	
A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.16 will be delivered to the Borrower and will be conclusive absent manifest error. The Borrower will pay such Lender the amount shown as due on any such certificate within ten days after receipt thereof.
SECTION 2.17 Taxes .
 
(1)	Any and all payments by or on account of any obligation of any Loan Party hereunder will be made free and clear of and without deduction for any Indemnified Taxes; provided that if a Loan Party is required to deduct any Indemnified Taxes from such payments, then (a) the sum payable will be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.17) the Administrative Agent or any Lender, as applicable, receives an amount equal to the amount it would have received had no such deductions been made; (b) such Loan Party will make such deductions; and (c) such Loan Party will timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.	
 
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(2)	In addition, the Loan Parties will pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.	
 
(3)	Each Loan Party will, jointly and severally, indemnify the Administrative Agent and each Lender, within ten days after written demand therefor, for the full amount of any Indemnified Taxes paid by the Administrative Agent or such Lender (other than as a result of the Administrative Agent’s or any Lender’s gross negligence or willful misconduct) on or with respect to any payment by or on account of any obligation of such Loan Party hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.17) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to such Loan Party by a Lender, or by the Administrative Agent on its own behalf or on behalf of a Lender, will be conclusive absent manifest error.	
 
(4)	As soon as practicable after any payment of Indemnified Taxes by a Loan Party to a Governmental Authority, such Loan Party will deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.	
(5)
 
 	(a)	Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document will deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, will deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 2.17(5)(b), 2.17(5)(c) and 2.17(6) below) will not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.	
 
 	(b)	Without limiting the effect of Section 2.17(5)(a) above, each Foreign Lender will deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two original copies of whichever of the following is applicable:	
 
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 	(i)	in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States of America is a party, (A) with respect to payments of interest under any Loan Document, executed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (B) with respect to any other applicable payments under any Loan Document, Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;	
 
 	(ii)	duly completed copies of Internal Revenue Service Form W-8ECI (or any subsequent versions thereof or successors thereto);	
 
 	(iii)	in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code, (A) a certificate substantially in the form of the applicable Exhibit G to the effect that such Foreign Lender is not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code; (2) a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3) or Section 881(c)(3)(B) of the Code; or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (B) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any subsequent versions thereof or successors thereto);	
 
 	(iv)	to the extent a Foreign Lender is not the beneficial owner, executed copies of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner; or	
 
 	(v)	any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.	
 
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In addition, in each of the foregoing circumstances, each Foreign Lender will deliver such forms, if legally entitled to deliver such forms, promptly upon the obsolescence, expiration or invalidity of any form previously delivered by such Foreign Lender. Each Foreign Lender will promptly notify the Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the United States of America or other taxing authorities for such purpose). In addition, each Lender that is not a Foreign Lender will deliver to the Borrower and the Administrative Agent two copies of Internal Revenue Service Form W-9 (or any subsequent versions thereof or successors thereto) on or before the date such Lender becomes a party and upon the expiration of any form previously delivered by such Lender. Notwithstanding any other provision of this paragraph, a Lender will not be required to deliver any form pursuant to this paragraph (5) that such Lender is not legally able to deliver;
 
 	(c)	JPM in its capacity as the Administrative Agent (and any Person succeeding the Administrative Agent upon assignment or succession under Section 9.09, if applicable) will also deliver, to the Borrower, on or prior to the execution and delivery of this Agreement, (i) two duly completed copies of Internal Revenue Service form W-9 with respect to any amounts payable to JPM for its own account (or other withholding certification as appropriate) and (ii) if applicable, two duly completed copies of Internal Revenue Service Form W-8IMY certifying that it is a “U.S. branch” and that the payments it receives for the account of others are not effectively connected with the conduct of its trade or business in the United States and that it is using such form as evidence of its agreement with the Borrower to be treated as a United States person with respect to such payments, with the effect that the Borrower can make payments to JPM (acting as the Administrative Agent) without deduction or withholding of any taxes imposed by the United States.	
 
(6)	If a payment made to a Recipient under any Loan Document would be subject to a Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient will deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (6), “FATCA” will include any amendments made to FATCA after the date of this Agreement.	
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it will update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
 
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(7)	If the Administrative Agent or any Lender determines, in its sole discretion, exercised in good faith, that it has received a refund (including a credit in lieu of a refund) of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which such Loan Party has paid additional amounts pursuant to this Section 2.17, it will pay over reasonably promptly such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.17 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender (including any Taxes imposed with respect to such refund) as is determined by the Administrative Agent or such Lender in good faith, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay as soon as reasonably practicable the amount paid over to such Loan Party ( plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent, such Issuing Bank or such Lender is required to repay such refund to such Governmental Authority. This Section 2.17(7) will not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to its Taxes which it deems, in good faith, to be confidential) to the Loan Parties or any other Person.	
 
(8)	Each party’s obligations under this Section 2.17 will survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.	
 
(9)	For purposes of this Section 2.17, the term “applicable law” includes FATCA and the term “Lender” includes any Issuing Bank.	
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs .
 
(1)	Unless otherwise specified, the Borrower will make each payment required to be made by it hereunder (whether of principal, interest, fees, reimbursement of L/C Disbursements or otherwise) prior to 2:00 p.m., New York City time, at the Payment Office, except payments to be made directly to the applicable Issuing Bank as expressly provided herein and except that (unless the Borrower, the Administrative Agent and the applicable Persons otherwise agree) payments pursuant to Sections 2.15, 2.16, 2.17 and 10.05 will be made directly to the Persons entitled thereto, on the date when due. All payments shall be in immediately available funds, without condition or deduction for any defense, recoupment, set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. The Administrative Agent will distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof and will make settlements with the Lenders with respect to other payments at the times and in the manner provided in this Agreement. Except as otherwise provided herein, if any	
 
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 	payment hereunder is due on a day that is not a Business Day, the date for payment will be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon will be payable for the period of such extension. Any payment required to be made by the Administrative Agent hereunder will be deemed to have been made by the time required if the Administrative Agent, at or before such time, has taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.	
 
(2)	[Reserved].	
 
(3)	Except as otherwise provided in this Agreement, if (a) at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed L/C Disbursements, interest and fees and other Obligations then due from the Borrower hereunder or (b) at any time during a Cash Dominion Period (including in connection with any termination of the Revolving Facility Commitments pursuant to Section 8.01) and the Administrative Agent or the Collateral Agent receives proceeds of Collateral, such funds will be applied,	
 
 	(i)	first , toward payment of any expenses, fees and indemnities due to the Agents and each Issuing Bank hereunder;	
 
 	(ii)	second , toward payment of interest and fees then due from the Borrower hereunder with respect to any Revolving Facility Credit Exposure, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties;	
 
 	(iii)	third , toward payment of unreimbursed L/C Disbursements, Protective Advances and Overadvances then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal, unreimbursed L/C Disbursements, Protective Advances and Overadvances then due to such parties;	
 
 	(iv)	fourth , toward payment of other principal then due from the Borrower hereunder with respect to any Revolving Facility Credit Exposure, ratably among the parties entitled thereto in accordance with the amounts of such principal then due to such parties;	
 
 	(v)	fifth , if an Event of Default has occurred and is continuing, to cash collateralize Letters of Credit issued for the account of the Borrower or any Subsidiary in accordance with Section 2.05(11);	
 
 	(vi)	sixth , to pay any other Obligations (excluding any (x) Obligations with respect to Refinancing Term Loans, (y) Cash Management Obligations or (z) Specified Hedge Obligations) ratably among the parties thereto in accordance with such amounts so owed them;	
 
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 	(vii)	seventh , to payment of obligations pursuant to Specified Hedge Agreements then due from the Borrower or any Subsidiary Loan Party, ratably among the parties entitled thereto in accordance with the amounts of obligations under such Specified Hedge Agreements then due to such parties;	
 
 	(viii)	eighth , to payment of Cash Management Obligations of the Borrower or any Subsidiary Loan Party then due from the Borrower or such Subsidiary Loan Party, ratably among the parties entitled thereto in accordance with the amounts of such Cash Management Obligations then due to such parties;	
 
 	(ix)	ninth , to payment of all other Obligations (other than those relating to Refinancing Term Loans) of the Borrower then due and payable, ratably among the parties entitled thereto in accordance with the amounts of such Obligations then due to such parties;	
 
 	(x)	tenth , toward payment of interest then due from the Borrower hereunder with respect to the Refinancing Term Loans, ratably among the parties entitled thereto in accordance with the amounts of interest then due to such parties;	
 
 	(xi)	eleventh , toward payment of principal then due from the Borrower hereunder with respect to the Refinancing Term Loans, ratably among the parties entitled thereto in accordance with the amounts of such principal then due to such parties; and	
 
 	(xii)	twelfth, to payment of all other Obligations of the Borrower then due and payable with respect to the Refinancing Term Loans, ratably among the parties entitled thereto in accordance with the amounts of such Obligations then due to such parties;	
provided that the application of such proceeds at all times will be subject to the application of proceeds provisions contained in any applicable Intercreditor Agreement.
 
(4)	Except as otherwise provided in this Agreement and subject to express priorities set forth in Section 2.18(3) above, if any Lender, by exercising any right of set-off or counterclaim or otherwise, obtains payment in respect of any principal of or interest on any of its Revolving Loans or participations in L/C Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in L/C Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion will purchase (for cash at face value) participations in the Revolving Loans and participations in L/C Disbursements of other Lenders to the extent necessary so that the benefit of all such payments will be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations in L/C Disbursements; provided that (a) if any such	
 
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 	participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations will be rescinded and the purchase price restored to the extent of such recovery, without interest, and (b) the provisions of this paragraph (4) will not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in L/C Disbursements to any assignee or participant other than to the Borrower or any other Subsidiary or Affiliate thereof (as to which the provisions of this paragraph (4) apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.	
 
(5)	Subject to the priorities set forth in Section 2.18(3) above, if any Lender, by exercising any right of set-off or counterclaim or otherwise, obtains payment in respect of any principal of or interest on any of its Refinancing Term Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Refinancing Term Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion will purchase (for cash at face value) participations in the Refinancing Term Loans of other Lenders to the extent necessary so that the benefit of all such payments will be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Refinancing Term Loans; provided that (a) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations will be rescinded and the purchase price restored to the extent of such recovery, without interest, and (b) the provisions of this paragraph (5) will not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Refinancing Term Loans to any assignee or participant other than to the Borrower or any other Subsidiary or Affiliate thereof (as to which the provisions of this paragraph (5) apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.	
 
(6)	Unless the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as applicable, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank	
 
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with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
 
(7)	If any Lender fails to make any payment required to be made by it pursuant to Section 2.05(4) or (5), 2.06(2) or 2.18(6), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.	
SECTION 2.19 Mitigation Obligations; Replacement of Lenders .
 
(1)	If any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender will use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or assign its rights and obligations hereunder to another of its offices, branches or Affiliates if, in the reasonable judgment of such Lender, such designation or assignment (a) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as applicable, in the future and (b) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any material respect. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.	
 
(2)	If any Lender requests compensation under Section 2.15 or is a Defaulting Lender, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.04), all its interests, rights and obligations under this Agreement to an assignee that assumes such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (a) the Borrower shall have received the prior written consent of the Administrative Agent and the Issuing Bank, which consent shall not unreasonably be withheld, to the extent the consent of such Person would be required under Section 10.04 for an assignment of Loans or Commitments to such Person, (b) such Lender has received payment of an amount equal to the outstanding principal of its Loans and funded participations in L/C Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and (c) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments. No action by or consent of the Defaulting Lender will be necessary in connection with such removal or assignment. In connection with any such assignment, the Borrower, the Administrative Agent, the Defaulting Lender and the replacement Lender will otherwise comply with Section 10.04; provided that if such Defaulting	
 
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 	Lender does not comply with Section 10.04 within three Business Days after the Administrative Agent’s or the Borrower’s request, compliance with Section 10.04 will not be required to effect such assignment. Nothing in this Section 2.19 will be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender.	
 
(3)	If any Lender (such Lender, a “ Non-Consenting Lender ”) has failed to consent to a proposed amendment, waiver, discharge or termination that, pursuant to the terms of Section 10.08, requires the consent of such Lender and with respect to which the Required Lenders have granted their consent, then the Borrower will have the right (unless such Non-Consenting Lender grants such consent) at its sole expense, to replace such Non-Consenting Lender by deeming such Non-Consenting Lender to have assigned its Loans and its Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent and the Issuing Bank to the extent the consent of such Person would be required under Section 10.04 for an assignment of Loans or Commitments to such Person; provided that (a) all Obligations of the Borrower owing to such Non-Consenting Lender (including accrued Fees and any amounts due under Section 2.15, 2.16 or 2.17) being removed or replaced will be paid in full to such Non-Consenting Lender concurrently with such assignment and (b) such Non-Consenting Lender will have received payment of an amount equal to the principal amount thereof plus accrued and unpaid interest thereon. No action by or consent of the Non-Consenting Lender will be necessary in connection with such removal or assignment, which will be immediately and automatically effective upon payment of such purchase price. In connection with any such assignment, the Borrower, the Administrative Agent, such Non-Consenting Lender and the replacement Lender will otherwise comply with Section 10.04; provided that if such Non-Consenting Lender does not comply with Section 10.04 within three Business Days after the Administrative Agent’s or the Borrower’s request therefor, compliance with Section 10.04 will not be required to effect such assignment.	
SECTION 2.20 Illegality . If any Lender reasonably determines that any change in law has made it unlawful, or if any Governmental Authority has asserted after the Closing Date that it is unlawful, for any Lender or its applicable lending office to make or maintain any Eurocurrency Revolving Loans, then, upon notice thereof by such Lender to the Borrower through the Administrative Agent, any obligations of such Lender to make or continue Eurocurrency Revolving Loans or to convert ABR Borrowings to Eurocurrency Revolving Facility Borrowings will be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower will upon demand from such Lender (with a copy to the Administrative Agent), either convert all Eurocurrency Revolving Facility Borrowings of such Lender to ABR Borrowings, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Revolving Facility Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans. Upon any such prepayment or conversion, the Borrower will also pay accrued interest on the amount so prepaid or converted.
 
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SECTION 2.21 Incremental Facilities .
 
(1)	Notice . At any time and from time to time, on one or more occasions, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent, increase the Revolving Facility Commitments (each such increase, an “ Incremental Revolving Facility Increase ” or “ Incremental Facility ”, and such additional Revolving Facility Commitments, the “ Incremental Commitments ”).	
 
(2)	Ranking . Any Incremental Commitments will (a) rank pari passu in right of payment with the Revolving Facility Claims and (b) be secured by the Collateral on a pari passu basis with the Revolving Facility Claims.	
 
(3)	Size . The principal amount of commitments in respect of Incremental Revolving Facility Increases received pursuant to this Section 2.21 will not exceed, in the aggregate, an amount equal to $200,000,000.	
Each Incremental Revolving Facility Increase received pursuant to this Section 2.21 will be in an integral multiple of $1.0 million and in a minimum aggregate principal amount of $10.0 million (or such lesser minimum amount approved by the Administrative Agent); provided that such amount may be less than such minimum amount or integral multiple amount without the Administrative Agent’s consent if such amount represents all of the remaining availability in respect of Incremental Revolving Facility Increases available pursuant to this Section 2.21 at such time.
 
(4)	Incremental Lenders . Incremental Facilities may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide any Incremental Facility), or any Additional Lender (collectively, the “ Incremental Lenders ”); provided that the Administrative Agent and each Issuing Bank at the time of effectiveness of such Incremental Facility shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to any Additional Lender’s provision of such Incremental Facility if such consent by such Person would be required under Section 10.04 for an assignment of Commitments or Loans to such Additional Lender. The existing Lenders will not have any right to participate in any arrangement of, and will not have any right of first refusal or other right to provide all or any portion of, any Incremental Facility except to the extent the Borrower and the arrangers thereof, if any, in their discretion, choose to invite or include any such existing Lender (which may or may not apply to all existing Lenders and may or may not be pro rata among existing Lenders). Final allocations in respect of any Incremental Facilities will be made by the Borrower together with the arrangers thereof, if any, in their discretion, in accordance with this Section 2.21.	
 
(5)	Incremental Facility Amendments; Use of Proceeds . Each Incremental Facility will become effective pursuant to an amendment (which may, at the option of the Administrative Agent and the Borrower, be in the form of an amendment and restatement) (each, an “ Incremental Facility Amendment ”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, the Administrative Agent and, with respect to any amendment (or amendment and restatement) of this Agreement, each Incremental Lender providing such Incremental Facility. Incremental Facility Amendments may, without the consent of any other Lenders, effect such	
 
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 	amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.21. The Administrative Agent will promptly notify each Lender as to the effectiveness of each Incremental Facility Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Facility Amendment, this Agreement and the other Loan Documents, as applicable, will be deemed amended (or amended and restated) to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facility evidenced thereby. This Section 2.21 shall supersede any provisions in Section 2.18 or 10.08 to the contrary. The Borrower and its Restricted Subsidiaries may use the proceeds of the Incremental Facility for any purpose not prohibited by this Agreement.	
 
(6)	Conditions . The initial availability of any Incremental Facility will be subject solely to the following conditions, subject, for the avoidance of doubt, to Section 1.09, measured on the date of the initial incurrence under (or, as applicable, pursuant to Section 1.09, receipt of commitments with respect to) any such Incremental Facility:	
 
 	(a)	no Event of Default shall have occurred and be continuing on the date such Incremental Facility is incurred or would exist immediately after giving effect thereto; provided that the condition set forth in this clause (a) may be waived or not required (other than with respect to any Specified Event of Default) by the Persons providing such Incremental Facility in connection with a Permitted Acquisition or other Investment permitted hereunder;	
 
 	(b)	the representations and warranties in the Loan Documents will be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be accurate in all respects) immediately prior to, and immediately after giving effect to, the incurrence of such Incremental Facility; provided that the condition set forth in this clause (b) may be waived or not required (other than with respect to the Specified Representations) in connection with a Permitted Acquisition or other Investment permitted hereunder; and	
 
 	(c)	such other conditions (if any) as may be required by the Incremental Lenders providing such Incremental Facility, unless such other conditions are waived by such Incremental Lenders.	
 
(7)	Terms . Any Incremental Facility will be on the terms set forth in the Loan Documents, as amended by the applicable Incremental Facility Amendment; provided that (a) any Incremental Commitments will (x) rank pari passu in right of payment with the Revolving Facility Claims (y) be secured by Collateral on a pari passu basis with the Revolving Facility Claims and (z) be on terms and pursuant to documentation applicable to the Revolving Facility Commitments and will form a part of the existing Revolving Facility; provided that Applicable Margin and Applicable Commitment Fees, in each case, applicable to Revolving Facility Commitments and the Revolving Loans may be increased without the consent of any Lender, in connection with the incurrence of any Incremental Commitments such that the Applicable Margin and the Applicable	
 
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 	Commitment Fee Percentage of the Revolving Facility Commitments are identical to those of any Incremental Commitments; provided , further , that any commitment, arrangement, upfront or similar fees for such Incremental Commitments will be as determined by a Responsible Officer of the Borrower and the lenders providing such Incremental Commitments and (b) no Incremental Commitments may mature prior to the Maturity Date with respect to the Revolving Facility Commitments existing on the Closing Date.	
 
(8)	Reallocation . Upon each Incremental Revolving Facility Increase in accordance with this Section 2.21:	
 
 	(a)	each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Lender providing a portion of such increase, and each such Incremental Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Lender will equal the percentage of the aggregate Revolving Facility Commitments of all Lenders represented by such Lender’s Revolving Facility Commitment; and	
 
 	(b)	the Administrative Agent may, in consultation with the Borrower, take any and all actions as may be reasonably necessary to ensure that, after giving effect to such Lender’s Incremental Commitments, the percentage of the aggregate Revolving Facility Commitments held by each Lender (including each such Incremental Lender) will equal the percentage of the aggregate Revolving Facility Commitments of all Lenders represented by such Lender’s Revolving Facility Commitment, which may be accomplished, at the discretion of the Administrative Agent following consultation with the Borrower, by:	
 
 	(i)	requiring any outstanding Loans to be prepaid with the proceeds of a new Borrowing;	
 
 	(ii)	causing non-increasing Lenders to assign portions of their outstanding Loans to Incremental Revolving Lenders; or	
 
 	(iii)	a combination of the foregoing.	
SECTION 2.22 Refinancing Amendments .
 
(1)	Refinancing Term Loans . At any time after the Closing Date, the Borrower may obtain from any Lender or any Additional Lender, at its election, Credit Agreement Refinancing Indebtedness in the form of term loans under a new term loan facility hereunder (“ Refinancing Term Loans ”) pursuant to a Refinancing Amendment. All Refinancing Term Loans shall be secured on a pari passu basis with the Revolving Facility Claims; provided that (a) any payments in respect thereof shall be subordinated as required by this Agreement, including (without limitation) as set forth in Section 2.18(3) and (b) such Refinancing Term Loans shall be subject to the FILO Intercreditor Provisions.	
 
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(2)	Refinancing Amendments . The effectiveness of any Refinancing Amendment will be subject only to the satisfaction on the date thereof of such of the conditions as may be requested by the providers of the Refinancing Term Loans. The Administrative Agent will promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement will be deemed amended (or amended and restated, as applicable) to the extent (but only to the extent) necessary to reflect the existence and terms of the Refinancing Term Loans incurred pursuant thereto (including any amendments necessary to treat the term loans subject thereto as Refinancing Term Loans).	
 
(3)	Required Consents . Any Refinancing Amendment may, without the consent of any Person other than the Administrative Agent, the Borrower and the Lenders or Additional Lenders providing the applicable Refinancing Term Loans, effect such amendments (or amendments and restatements) to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22. This Section 2.22 supersedes any provisions in Section 10.08 to the contrary. The transactions contemplated by this Section 2.22 will not require the consent of any other Lender or any other Person, and the requirements of any provision of this Agreement (including Sections 2.11 and 2.18) or any other Loan Document that may otherwise prohibit any transaction contemplated by this Section 2.22 will not apply to any of the transactions effected pursuant to this Section 2.22.	
 
(4)	Providers of Refinancing Term Loans . Refinancing Term Loans may be provided by any existing Lender (it being understood that no existing Lender shall have an obligation to make all or any portion of any Refinancing Term Loan) or by any Additional Lender. It is understood that any Lender approached to provide all or a portion of Refinancing Term Loans may elect or decline, in its sole discretion, to provide such Refinancing Term Loans (it being understood that there is no obligation to approach any existing Lenders to provide any Refinancing Term Loans).	
SECTION 2.23 Extensions of Loans and Revolving Commitments .
 
(1)	Extension Offers . Pursuant to one or more offers (each, an “ Extension Offer ”) made from time to time by the Borrower to all Lenders of Revolving Loans or all Refinancing Term Lenders (and with respect to any Extension Offer each Lender may, in its sole discretion, choose whether to accept or reject such Extension Offer), with a like Maturity Date, the Borrower may extend the Maturity Date of each such Lender’s Loans or Revolving Facility Commitments and otherwise modify the terms of such Loans or Revolving Facility Commitments pursuant to the terms of the relevant Extension Offer, including by increasing the interest rate or fees payable in respect to such Revolving Facility Commitments (each, an “ Extension, ” and each group of Loans or Revolving Facility Commitments so extended, as well as the original Loans or Revolving Facility Commitments not so extended, being a “ tranche ”). Each Extension Offer will specify	
 
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 	the minimum amount of Revolving Facility Commitments with respect to which an Extension Offer may be accepted, which will be an integral multiple of $1.0 million and an aggregate principal amount that is not less than $10.0 million (or (a) if less, the aggregate principal amount of such Revolving Facility Commitments or (b) such lesser minimum amount as is approved by the Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed), and will be made on a pro rata basis to all Lenders having Revolving Facility Commitments with a like Maturity Date. If the aggregate outstanding principal amount of Loans and Revolving Facility Commitments (calculated on the face amount thereof) in respect of which Lenders have accepted an Extension Offer exceeds the maximum aggregate principal amount of Loans and Revolving Facility Commitments offered to be extended pursuant to an Extension Offer, then the Loans and Revolving Facility Commitments of such Lenders will be extended ratably up to such maximum amount based on the Revolving Facility Commitments of or the principal amounts (but not to exceed actual holdings of record) with respect to which the Lenders that have accepted such Extension Offer. There is no requirement that any Extension Offer or Extension Amendment (defined as follows) be subject to any “most favored nation” pricing provisions. The terms of an Extension Offer will be determined by the Borrower and an Extension Offer may contain one or more conditions to its effectiveness, including that a minimum amount of Loans or Revolving Facility Commitments or any or all applicable tranches be tendered.	
 
(2)	Extension Amendments . The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents (which may, at the option of the Administrative Agent and the Borrower, be in the form of an amendment and restatement of this Agreement or such Loan Document, as applicable) (an “ Extension Amendment ”) with the Borrower as may be necessary in order to establish new tranches in respect of Extended Commitments (and related Extended Loans) and such amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches, in each case, on terms consistent with this Section 2.23. This Section 2.23 supersedes any provisions in Section 2.18 or 10.08 to the contrary. Except as otherwise set forth in an Extension Offer, there will be no conditions to the effectiveness of an Extension Amendment. Extensions will not constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.	
 
(3)	Terms of Extension Offers and Extension Amendments . The terms of any Extended Commitments (and related Extended Loans) will be set forth in an Extension Offer and as agreed between the Borrower and the Extending Lenders accepting such Extension Offer; provided that:	
 
 	(a)	the final maturity date of such Extended Loans will be no earlier than the Latest Maturity Date applicable to the Revolving Loans or Revolving Facility Commitments subject to such Extension Offer;	
 
 	(b)	any Extended Loans or Revolving Facility Commitments may participate on a pro rata basis or less than pro rata basis (but not greater than a pro rata basis) in mandatory prepayments of Loans or mandatory terminations of Revolving Facility Commitments;	
 
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 	(c)	such Extended Loans or Revolving Facility Commitments are not secured by any assets or property that does not constitute Collateral;	
 
 	(d)	such Extended Loans or Revolving Facility Commitments are not guaranteed by any Person other than a Subsidiary Loan Party; and	
 
 	(e)	the other terms and conditions applicable to the Extended Loans or Extended Commitments are (i) substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Extended Loans or Extended Commitments than those applicable to the Revolving Loans or Revolving Facility Commitments subject to such Extension Offer (except for covenants applicable only to periods after the Latest Maturity Date of the Revolving Loans or Revolving Facility Commitments subject to such Extension Offer) ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Extended Loans or Extended Commitments together with a reasonably detailed description of the material covenants and event of default of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (d) shall be conclusive evidence that such Indebtedness satisfies this clause (d) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided that this clause (d) will not apply to (v) terms addressed in the preceding clauses (a) through (c), (x) interest rate, rate floors, fees, funding discounts and other pricing terms, (y) redemption, prepayment or other premiums, or (z) optional prepayment or redemption terms.	
Any Extended Term Loans will constitute a separate tranche of Term Loans from the Term Loans held by Lenders that did not accept the applicable Extension Offer and such Extended Term Loans shall also be subject to the requirements set forth in Section 2.22 with regards to the terms and conditions applicable to Refinancing Term Loans.
 
(4)	Required Consents . No consent of any Lender or any other Person will be required to effectuate any Extension, other than the consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), the Borrower and each Extending Lender participating in such Extension with respect to one or more of its Loans or Revolving Facility Commitments. The transactions contemplated by this Section 2.23 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Loans or Extended Commitments on such terms as may be set forth in the relevant Extension Offer) will not require the consent of any other Lender or any other Person, and the requirements of any provision of this Agreement (including Sections 2.18 and 10.08) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.23 will not apply to any of the transactions effected pursuant to this Section 2.23.	
 
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SECTION 2.24 Defaulting Lenders .
 
(1)	Adjustments . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:	
 
 	(a)	Waivers and Amendments . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement is restricted as set forth in Section 10.08.	
 
 	(b)	Reallocation of Payments . Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise), will be applied at such time or times as may be determined by the Administrative Agent as follows:	
 
 	(i)	first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;	
 
 	(ii)	second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder;	
 
 	(iii)	third , if so determined by the Administrative Agent or requested by the Issuing Bank, to be held as cash collateral for future funding obligations of such Defaulting Lender of any participation in any Letter of Credit;	
 
 	(iv)	fourth , as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent;	
 
 	(v)	fifth , if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Revolving Loans under this Agreement;	
 
 	(vi)	sixth , to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Banks against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;	
 
 	(vii)	seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Loan Parties as a result of any judgment of a court of competent jurisdiction obtained by the Loan Parties against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and	
 
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 	(viii)	eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;	
provided that if such payment is a payment of the principal amount of any Loans or L/C Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, such payment will be applied solely to pay the Loans of, and L/C Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting Lender. Any payments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.24(1)(b) will be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
 
 	(c)	Certain Fees . Such Defaulting Lender (i) will not be entitled to receive any Commitment Fee pursuant to Section 2.12(1) or otherwise for any period during which that Lender is a Defaulting Lender (and the Borrower will not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender) and (ii) will not be entitled to receive any L/C Participation Fee pursuant to Section 2.12(2) or otherwise for any period during which that Lender is a Defaulting Lender (although the Borrower will be required to pay any such L/C Participation Fee that otherwise would have been required to have been paid to such Defaulting Lender to the non-Defaulting Lenders or Issuing Banks, in accordance with (and to the extent of) any reallocation of Fronting Exposure to non-Defaulting Lenders or as may be retained by the Issuing Bank as cash collateral in accordance herewith, as the case may be).	
 
 	(d)	Reallocation of Applicable Percentages to Reduce Fronting Exposure . During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.05, the “ Revolving Facility Percentage ” of each non-Defaulting Lender will be computed without giving effect to the Commitment of such Defaulting Lender; provided , that, each such reallocation will be given effect only to the extent such that the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit will not exceed the positive difference, if any, of (i) the Revolving Facility Commitment of such non-Defaulting Lender minus (ii) the aggregate outstanding amount of the Revolving Loans of such Defaulting Lender.	
 
 	(e)	Elimination of Remaining Fronting Exposure . At any time that there exists a Defaulting Lender and the reallocation described in clause (d) above cannot, or can only partially, be effected, promptly upon the request of the Administrative Agent or any Issuing Bank, the Borrower will (without prejudice to any right or remedy available to it hereunder or under law) deliver cash collateral in an amount to be agreed between the Borrower and each applicable Issuing Bank, but no greater than 105% of the outstanding amount of the applicable Letters of	
 
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 	Credit to the Administrative Agent in accordance with the procedures set forth in Section 2.05(11) in an amount sufficient to cover all Fronting Exposure of the Revolving Facility L/C Exposure (after giving effect to Section 2.24(1)(d)) which will be held as security for the reimbursement obligations of the Borrower with respect to the Revolving Facility L/C Exposure.	
 
(2)	Defaulting Lender Cure . If the Borrower, the Administrative Agent and the Issuing Banks agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), such Lender will, to the extent applicable, purchase that portion of outstanding Revolving Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their Revolving Facility Percentages (without giving effect to Section 2.24(1)(d)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided , further , that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.	
 
(3)	Termination of Defaulting Lender . The Borrower may terminate the unused amount of the Commitment of any Lender that is a Defaulting Lender upon not less than three Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 2.24(1)(b) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that such termination shall not be deemed to be a waiver or release of any claims any Loan Party, any Agent, any Issuing Bank or any Lender may have against such Defaulting Lender.	
ARTICLE III
Representations and Warranties
To induce the Lenders to make any extension of credit hereunder on or after the Closing Date, the Borrower, with respect to itself and each of the Restricted Subsidiaries, represents and warrants (i) on the Closing Date solely to the extent set forth in Section 4.01(12) and (ii) thereafter, on the date of any Borrowing or any other extension of credit hereunder to the extent otherwise required hereunder (and subject, for the avoidance of doubt, to Section 1.09), each of the following to each Agent and to each of the Lenders:
SECTION 3.01 Organization; Powers . The Borrower and each Loan Party:
 
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(1)	is a Person duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (to the extent such status or an analogous concept applies to such an organization or in such jurisdiction);	
 
(2)	has all requisite corporate or other organizational power and authority to own its property and assets and to carry on its business as now conducted;	
 
(3)	is qualified to do business in each jurisdiction where such qualification is required, except where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect; and	
 
(4)	has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents to which it is a party and each other agreement or instrument contemplated thereby to which it is a party.	
SECTION 3.02 Authorization; No Contravention .
 
(1)	The execution, delivery and performance by the Loan Parties of each of the Loan Documents to which it is a party have been duly authorized by all necessary corporate or other organizational action.	
 
(2)	The execution, delivery and performance by each Loan Party of each Loan Document to which such Loan Party is a party and the consummation of the Transactions will not:	
 
 	(a)	result in a breach or contravention of, or the creation of any Lien (other than any Liens created by the Loan Documents and Permitted Lien) upon the property or assets of such Loan Party or any of the Restricted Subsidiaries under (i) any Contractual Obligation to which such Loan Party is a party or affecting such Loan Party or the properties or assets of such Loan Party or any of its Restricted Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property or assets is subject;	
 
 	(b)	violate applicable Law; or	
 
 	(c)	contravene the terms of its Organizational Documents;	
except with respect to clauses (a) and (b) of this Section 3.02(2) as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 3.03 Enforceability . This Agreement has been duly executed and delivered by the Borrower and constitutes, and each other Loan Document when executed and delivered by each Loan Party that is party thereto will constitute, a legal, valid and binding obligation of such Loan Party enforceable against each such Loan Party in accordance with its terms, subject to:
 
(1)	the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws (including Debtor Relief Laws) affecting creditors’ rights generally;	
 
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(2)	general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);	
 
(3)	implied covenants of good faith and fair dealing; and	
 
(4)	any foreign laws, rules and regulations as they relate to pledges of Equity Interests in Non-U.S. Subsidiaries.	
SECTION 3.04 Governmental Approvals . No material action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, except for:
 
(1)	filings necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties;	
 
(2)	filings which may be required under Environmental Laws;	
 
(3)	filings as may be required under the Exchange Act and applicable stock exchange rules in connection therewith;	
 
(4)	such as have been made or obtained and are in full force and effect (except to the extent not required to be obtained, taken, given or made or in full force and effect pursuant to the Security Documents);	
 
(5)	such actions, consents, approvals, registrations or filings the failure of which to be obtained or made would not reasonably be expected to have a Material Adverse Effect.	
SECTION 3.05 Title to Properties; Liens . Each of the Borrower and the Subsidiary Loan Parties has valid fee simple title to, or valid leasehold interests in, or easements or other limited property interests in, all of its Real Properties and valid title to its personal property and assets, in each case, except for Permitted Liens or defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes, in each case, except where the failure to have such title, interest or easement would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All such properties and assets are free and clear of Liens, other than Permitted Liens.
SECTION 3.06 Subsidiaries . Schedule 3.06 sets forth as of the Closing Date and after giving effect to the Transactions, the name and jurisdiction of incorporation, formation or organization of the Borrower and each Restricted Subsidiary and, as to each Restricted Subsidiary, the percentage of each class of Equity Interests owned by the Borrower or by any other Subsidiary of the Borrower.
 
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SECTION 3.07 Litigation; Compliance with Laws.
 
(1)	There are no actions, suits or proceedings, or, to the knowledge of the Borrower, investigations at law or in equity or by or on behalf of any Governmental Authority or in arbitration now pending, or, to the knowledge of the Borrower, threatened in writing against or affecting the Borrower or any Restricted Subsidiary or any business, property or rights (including any studies, tests or preclinical or clinical trials) of any such Person (excluding any actions, suits or proceedings arising under or relating to any Environmental Laws, which are subject to Section 3.13, but including in respect of any Health Care Law), in each case, which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.	
 
(2)	To the knowledge of the Borrower, none of the Borrower, any Restricted Subsidiary or their respective properties or assets is in violation of (nor will the continued operation of their material properties and assets as currently conducted violate) any law, rule or regulation (including any zoning, building, ordinance, code or approval, or any building permit, but excluding any Environmental Laws, which are subject to Section 3.13) or any restriction of record or agreement affecting any property, or is in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.	
 
(3)	Each of the Borrower and its Restricted Subsidiaries have, and they and their products are in conformance with, all authorizations, approvals, licenses, permits, certificates, or exemptions required by the FDA or other Governmental Authority under the Healthcare Laws (the “ Healthcare Permits ”) to conduct their businesses as currently conducted or as reasonably anticipated, except where a failure to have or conform with such Healthcare Permits would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the Borrower nor its Restricted Subsidiaries have received any written notice from the FDA or any other Governmental Authority that it is considering materially limiting, suspending, or revoking any Healthcare Permit (nor, to the knowledge of the Borrower, are any such actions threatened). The Borrower and its Restricted Subsidiaries have made all material notifications, modifications, submissions, and reports required to be made to the FDA or any other Governmental Authority under the Healthcare Permits and Healthcare Laws, and to the knowledge of the Borrower, all such notifications, modifications, submissions, or reports were true, complete, and correct in all material respects.	
 
(4)	In the past two years: (i) all products manufactured, tested, investigated, marketed, sold or distributed by or on behalf of the Borrower and its Restricted Subsidiaries have been and are in compliance in all material respects with all applicable Healthcare Laws and any other applicable Laws; (ii) neither the Borrower nor its Restricted Subsidiaries have received any written warning letter or other written notice regarding a material violation of any Healthcare Laws, nor are they subject to any continuing material obligation arising under any warning letter or other notice of material violation of any Healthcare Laws; and (iii) except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, no product manufactured, marketed, sold or distributed by or on behalf of the Borrower and its Restricted Subsidiaries has been seized, withdrawn, recalled, subject to a detention order, safety alert or suspension by the FDA or other Governmental Authority and, to the knowledge of the Borrower, there are no facts or circumstances (including pending or threatened proceedings) reasonably likely to cause any of the foregoing.	
 
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(5)	Neither the Borrower nor its Restricted Subsidiaries nor, to the knowledge of the Borrower, any of their respective officers, directors, employees, agents or contractors have been excluded or debarred from any federal healthcare program (including without limitation Medicare or Medicaid).	
SECTION 3.08 Federal Reserve Regulations .
 
(1)	None of the Borrower or any Restricted Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.	
 
(2)	No part of the proceeds of any Loan or Letter of Credit will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund Indebtedness originally incurred for such purpose or (ii) for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.	
SECTION 3.09 Investment Company Act . None of the Borrower or any Subsidiary Loan Party is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
SECTION 3.10 Use of Proceeds . The Borrower shall use the proceeds of the Revolving Loans, and may request the issuance of Letters of Credit, for working capital and other general corporate purposes (including for capital expenditures, Permitted Investments, Restricted Payments and the repayment or refinancing of Indebtedness, in each case to the extent not prohibited hereunder and any other uses not prohibited by the Loan Documents).
SECTION 3.11 Tax Returns . Except as set forth on Schedule 3.11:
 
(1)	Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each of the Borrower and the Restricted Subsidiaries has filed or caused to be filed all federal, state, local and non-U.S. Tax returns required to have been filed by it; and	
 
(2)	Each of the Borrower and the Restricted Subsidiaries has timely paid or caused to be timely paid (a) all Taxes shown to be due and payable by it on the returns referred to in clause (1) of this Section 3.11 and (b) all other Taxes or assessments (or made adequate provision (in accordance with GAAP) for the payment of all Taxes due) with respect to all periods or portions thereof ending on or before the Closing Date, which Taxes, if not paid or adequately provided for, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, in each case except Taxes or assessments that are being contested in good faith by appropriate proceedings and for which, if applicable, the Borrower or any Restricted Subsidiary (as the case may be) has set aside on its books adequate reserves in accordance with GAAP.	
 
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SECTION 3.12 No Material Misstatements .
 
(1)	All written factual information and written factual data (other than the Projections, estimates and information of a general economic or industry specific nature) concerning the Borrower or any Restricted Subsidiary that has been made available to the Administrative Agent or the Lenders, directly or indirectly, by or on behalf of the Borrower or any Restricted Subsidiary in connection with the Transactions, when taken as a whole and after giving effect to all supplements and updates provided thereto, is correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made.	
 
(2)	The Projections that have been made available to the Administrative Agent or the Lenders by or on behalf of the Borrower in connection with the Transactions, when taken as a whole, have been prepared in good faith based upon assumptions that are believed by the Borrower to be reasonable at the time made and at the time delivered to the Administrative Agent or the Lenders, it being understood by the Administrative Agent and the Lenders that:	
 
 	(a)	the Projections are merely a prediction as to future events and are not to be viewed as facts;	
 
 	(b)	the Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower or Impax;	
 
 	(c)	no assurance can be given that any particular Projections will be realized; and	
 
 	(d)	actual results may differ and such differences may be material.	
SECTION 3.13 Environmental Matters . Except as set forth on Schedule 3.13 or as to matters that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
 
(1)	each of the Borrower and the Restricted Subsidiaries is in compliance with all Environmental Laws (including having obtained and complied with all permits, licenses and other approvals required under any Environmental Law for the operation of its business);	
 
(2)	none of the Borrower or any Restricted Subsidiary has received notice of or is subject to any pending, or to the Borrower’s knowledge, threatened action, suit or proceeding alleging a violation of, or liability under, any Environmental Law that remains outstanding or unresolved;	
 
(3)	to the Borrower’s knowledge, no Hazardous Material is located at, on or under any property currently or formerly owned, operated or leased by the Borrower or any Restricted Subsidiary and no Hazardous Material has been generated, owned, treated, stored, handled or controlled by the Borrower or any Restricted Subsidiary and transported to or Released at any location which, in each case, described in this clause (3), would reasonably be expected to result in liability to the Borrower or any Restricted Subsidiary; and	
 
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(4)	there are no agreements in which the Borrower or any Restricted Subsidiary has expressly assumed or undertaken responsibility for any known or reasonably anticipated liability or obligation of any other Person arising under or relating to Environmental Laws or Hazardous Materials.	
SECTION 3.14 Security Documents .
 
(1)	Except as otherwise contemplated hereunder or under any other Loan Documents, the Collateral Agreement is effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties) legal and valid Liens on the Collateral described therein; and when financing statements in appropriate form are filed in the offices specified on Schedule III to the Collateral Agreement, a short form grant of security interest in Intellectual Property Rights (in substantially the form of Exhibit II to the Collateral Agreement (for trademarks), Exhibit III to the Collateral Agreement (for patents) or Exhibit IV to the Collateral Agreement (for copyrights)) is properly filed in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the Pledged Collateral described in the Collateral Agreement is delivered to the Collateral Agent, the Liens on the Collateral granted pursuant to the Collateral Agreement will constitute fully perfected Liens on all right, title and interest of the grantors in such Collateral in which (and to the extent) a security interest can be perfected under Article 9 of the Uniform Commercial Code, in each case prior to and superior in right of the Lien of any other Person (subject to Permitted Liens).	
 
(2)	Notwithstanding anything herein (including this Section 3.14) or in any other Loan Document to the contrary, neither the Borrower nor any other Loan Party makes any representation or warranty (a) as to the effects of perfection or non-perfection, the priority or enforceability of any pledge of or security interest in any Excluded Assets or (b) as to the effects of perfection or non-perfection, the priority or enforceability of any pledge of or security interest in any Equity Interests of any Non-U.S. Subsidiary, or as to the rights and remedies of the Agents or any Lender with respect thereto, under foreign law.	
SECTION 3.15 Location of Real Property and Leased Premises .
 
(1)	Schedule 3.15(1) correctly identifies, in all material respects, as of the Closing Date, all material Real Property owned in fee by the Loan Parties. As of the Closing Date, the Loan Parties own in fee all the Real Property set forth as being owned by them on Schedule 3.15(1).	
 
(2)	Schedule 3.15(2) lists correctly in all material respects, as of the Closing Date, all material Real Property leased by any Loan Party and the addresses thereof. As of the Closing Date, the Loan Parties have in all material respects valid leases in all material Real Property set forth as being leased by them on Schedule 3.15(2).	
 
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SECTION 3.16 Solvency . On the Closing Date, after giving effect to the consummation of the Transactions, including the Borrowing of the Loans hereunder, if applicable, and after giving effect to the application of the proceeds of such Loans, if applicable:
 
(1)	the fair value of the assets of the Borrower and its Restricted Subsidiaries, on a consolidated basis, exceeds their debts and liabilities (subordinated, contingent or otherwise), on a consolidated basis;	
 
(2)	the present fair saleable value of the property of the Borrower and its Restricted Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities (subordinated, contingent or otherwise), on a consolidated basis, as such debts and other liabilities become absolute and matured;	
 
(3)	the Borrower and its Restricted Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities (subordinated, contingent or otherwise), on a consolidated basis, as such liabilities become absolute and matured; and	
 
(4)	the Borrower and its Restricted Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital.	
For purposes of this Section 3.16, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.
SECTION 3.17 Financial Statements; No Material Adverse Effect .
 
(1)	The consolidated balance sheets of the Borrower and its consolidated subsidiaries and of Impax and its consolidated subsidiaries as at December 31, 2017, and related statements of operations and cash flows of the Borrower and its consolidated subsidiaries and Impax and its consolidated set forth in the PIPE Registration Statement fairly present in all material respects the financial condition of each of the Borrower and Impax, as applicable, and their respective Subsidiaries as of the dates thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein.	
 
(2)	The unaudited pro forma condensed combined financial information and explanatory notes of Amneal Inc. set forth in the PIPE Registration Statement, prepared after giving effect to the Transactions as if the Transactions had occurred on December 31, 2017 (in the case of such balance sheet) or at the beginning of such period (in the case of the statement of operations), copies of which have heretofore been furnished to the Administrative Agent, have been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated financial position of Amneal Inc. and its Subsidiaries as of December 31, 2017 and their estimated results of operations for the period covered thereby.	
 
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(3)	Since December 31, 2017, there has been no event that has had, or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.	
 
(4)	The forecasts of consolidated balance sheets and income statements of the Borrower and its Subsidiaries which have been furnished to the Administrative Agent prior to the Closing Date, when taken as a whole, have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable at the time furnished, it being understood that (i) no forecasts are to be viewed as facts, (ii) any forecasts are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower, Impax and their respective Subsidiaries and Affiliates, (iii) no assurance can be given that any particular forecasts will be realized and (iv) actual results may differ and such differences may be material.	
SECTION 3.18 Insurance . Schedule 3.18 sets forth a true, complete and correct description of all material insurance maintained by or on behalf of the Borrower or any Restricted Subsidiary as of the Closing Date. As of such date, such insurance is in full force and effect.
SECTION 3.19 USA PATRIOT Act; Anti-Corruption; Sanctions .
 
(1)	To the extent applicable, each of the Borrower and the Restricted Subsidiaries is in compliance, in all material respects, with the USA PATRIOT Act.	
 
(2)	No part of the proceeds of the Loans will be used by the Borrower or any of the Restricted Subsidiaries, directly or indirectly, (i) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of Anti-Corruption Laws, or (ii) in any manner that would result in the violation of any applicable Sanctions.	
 
(3)	None of the Borrower or any Restricted Subsidiary, nor any of their respective directors or officers, nor, to the knowledge of the Borrower or any Restricted Subsidiary, any of their respective agents and employees, is any of the following:	
 
 	(a)	a Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing effective September 24, 2001 (the “ Executive Order ”);	
 
 	(b)	a Person owned or Controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;	
 
 	(c)	a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any laws with respect to terrorism or money laundering;	
 
 	(d)	a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or	
 
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 	(e)	a Sanctioned Person.	
 
(4)	The Borrower and the Restricted Subsidiaries, and their respective officers and directors, and, to the knowledge of the Borrower or any Restricted Subsidiary, their respective employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that could reasonably be expected to result in the Borrower or any Restricted Subsidiary being designated as a Sanctioned Person.	
 
(5)	The Borrower has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance in all material respects by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.	
SECTION 3.20 Intellectual Property Rights; Licenses, Etc . Except as would not reasonably be expected to have a Material Adverse Effect:
 
(1)	the Borrower and each Restricted Subsidiary owns, or possesses the right to use, all of the patents, patent rights, inventions, know-how, trademarks, service marks, trade names, copyrights or mask works, domain names, trade secrets and other intellectual property rights (collectively, “ Intellectual Property Rights ”) that are reasonably necessary for the operation of their respective businesses (provided the foregoing shall not be construed as a warranty with respect to non-infringement of third party intellectual property rights);	
 
(2)	to the knowledge of the Borrower or any Restricted Subsidiary, neither the Borrower nor any of the Restricted Subsidiaries nor any Intellectual Property Rights, product, process, method, substance, part or other material now made, used, employed, sold or offered for sale by the Borrower or the Restricted Subsidiaries, nor the business of the Borrower or any of the Restricted Subsidiaries is infringing upon, misappropriating or otherwise violating Intellectual Property Rights of any Person, but excluding any (i) infringement of any Intellectual Property Rights caused by the filing of any abbreviated new drug application for a product filed with the FDA pursuant to §505(j) of the United States Federal Food, Drug, and Cosmetic Act, as amended from time to time (the “FFDCA”) or by the filing of any new drug application for a product filed with the FDA pursuant to §505(b)(2) of the FFDCA and (ii) infringement of any Intellectual Property Rights alleged pursuant to a Paragraph IV Proceeding for which a Paragraph IV Certification Notice has been made; and	
 
(3)	no claim or litigation (including any cease and desist letters) regarding any of the foregoing in (1) or (2) is pending or, to the knowledge of the Borrower, threatened. The representations set forth in Section 3.20(2) and this Section 3.20(3) are the only representations given by the Borrower (including on behalf of its Restricted Subsidiaries) with respect to non-infringement of Intellectual Property Rights.	
 
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SECTION 3.21 Employee Benefit Plans . Except as would not reasonably be expected to have a Material Adverse Effect, the Borrower and each of its ERISA Affiliates are in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, would reasonably be expected to have a Material Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, the present value of all accumulated benefit obligations under all Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plans, in the aggregate.
SECTION 3.22 Labor Matters . Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (1) there are no strikes or other labor disputes against any of the Borrower or its Restricted Subsidiaries pending or, to the knowledge of the Borrower, threatened and (2) hours worked by and payment made based on hours worked to employees of each of the Borrower or its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Laws dealing with wage and hour matters.
SECTION 3.23 Borrowing Base Certificate . At the time of delivery of each Borrowing Base Certificate, assuming that any eligibility criteria that requires the approval or satisfaction of the Administrative Agent has been approved by or is satisfactory to the Administrative Agent, each material Account reflected therein as eligible for inclusion in the Borrowing Base is an Eligible Account, the material Inventory reflected therein as eligible for inclusion in the Borrowing Base constitutes Eligible Inventory and the cash and Cash Equivalents reflected therein as eligible for inclusion in the Borrowing Base constitute Eligible Cash.
ARTICLE IV
Conditions of Lending
SECTION 4.01 Closing Date Conditions Precedent . The obligations of (a) the Lenders to make Loans and (b) any Issuing Bank to issue Letters of Credit or amend, extend, reinstate or renew Letters of Credit hereunder (each, a “ Credit Event ”) is subject solely to the satisfaction or waiver by the Administrative Agent, of the following conditions precedent:
 
(1)	Loan Documents . The Administrative Agent shall have received (a) this Agreement duly executed and delivered by a Responsible Officer of the Borrower, (b) the Collateral Agreement duly executed and delivered by a Responsible Officer of the Borrower and its Restricted Subsidiaries that are Subsidiary Loan Parties (including the related short form grants of security interest in Intellectual Property Rights duly executed and delivered by a Responsible Officer of each applicable Loan Party) and (c) an acknowledgment to the Closing Date Intercreditor Agreement duly executed and delivered by a Responsible Officer of the Borrower and its Restricted Subsidiaries that are Subsidiary Loan Parties.	
 
(2)	Borrowing Request . On or prior to the Closing Date, the Administrative Agent shall have received a Borrowing Request.	
 
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(3)	Acquisition Transactions . Prior to or substantially concurrently with the initial extension of credit hereunder on the Closing Date:	
 
 	(a)	the Acquisition will be consummated pursuant to the Acquisition Agreement, and no provision thereof shall have been amended, modified or waived, and no consent shall have been given thereunder, in each case in any manner materially adverse to the interests of the Lenders without the prior written consent of the Arrangers (it being understood and agreed that any modification, amendment, consent or waiver of the definition of “Impax Material Adverse Effect” contained in the Acquisition Agreement as in effect on October 17, 2017 shall be deemed to be materially adverse to the interests of the Lenders); and	
 
 	(b)	the Closing Date Refinancing will be consummated.	
 
(4)	Fees . Payment of all (a) Fees required to be paid on the Closing Date pursuant to the Fee Letters and (b) reasonable (and reasonably documented) out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, in each case to the extent invoiced in reasonable detail at least three (3) Business Days prior to the Closing Date (except as otherwise reasonably agreed by the Borrower).	
 
(5)	Solvency Certificate . The Administrative Agent shall have received a solvency certificate substantially in the form attached hereto as Exhibit C.	
 
(6)	Closing Date Certificates . The Administrative Agent shall have received such certificates of good standing from the applicable secretary of state (or other similar Governmental Authority) of the jurisdiction of organization of the Borrower and its Restricted Subsidiaries that are Subsidiary Loan Parties as of the Closing Date, customary resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and its Restricted Subsidiaries that are Subsidiary Loan Parties as of the Closing Date evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which it is a party or is to be a party on the Closing Date, the Organizational Documents of each such Loan Party and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that the conditions specified in clauses (3), (9) and (12) of this Section 4.01 have been or substantially concurrent with the initial extension of credit hereunder on the Closing Date will be satisfied;	
 
(7)	Legal Opinions . The Administrative Agent shall have received a customary legal opinion of Latham & Watkins LLP, special counsel to the Loan Parties.	
 
(8)	Pledged Equity Interests . Except as otherwise agreed by the Administrative Agent, the Borrower shall have confirmed to the Administrative Agent that prior to or substantially concurrently with the initial extension of credit hereunder on the Closing Date, the Term Agent shall have received (a) to the extent delivered to the Borrower pursuant to the terms of the Closing Date Refinancing and constituting Collateral, the certificates representing the Equity Interests (if such Equity Interests are certificated) of the Borrower	
 
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 	and its Wholly Owned U.S. Subsidiaries that are Material Subsidiaries and (b) to the extent delivered to the Borrower pursuant to the terms of the Acquisition Agreement and constituting Collateral, the certificates representing the Equity Interests (if such Equity Interests are certificated) of Impax and its Wholly Owned U.S. Subsidiaries that are Material Subsidiaries, in each case to the extent such Equity Interests are required to be pledged pursuant to the Collateral Agreement, together with a customary stock power for each such certificate executed in blank.	
 
(9)	No Material Adverse Effect . Since the date of the Acquisition Agreement, there shall not have been any change, effect, event, circumstance, occurrence or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect (as defined in the Acquisition Agreement as in effect on October 17, 2017).	
 
(10)	Registration Statement . The Registration Statement (as defined in the Acquisition Agreement as of October 17, 2017) shall have been declared effective under the Securities Act (as defined in the Acquisition Agreement as of October 17, 2017).	
 
(11)	Know Your Customer and Other Required Information . All outstanding documentation and other information about the Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, as has been reasonably requested in writing by the Administrative Agent at least ten (10) Business Days prior to the Closing Date, will be provided not later than the date that is two (2) Business Days prior to the Closing Date.	
 
(12)	Representations and Warranties . Subject to the Certain Funds Provisions, the Specified Acquisition Agreement Representations and Specified Representations will be true and correct in all material respects; provided that the failure of a Specified Acquisition Agreement Representation to be true and correct will not result in a failure of a condition precedent under this Article IV unless such failure results in a failure of a condition precedent to the Borrower’s (or its Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement or such failure gives the Borrower the right (taking into account any applicable cure provisions) to terminate its obligations under the Acquisition Agreement.	
There are no conditions, implied or otherwise, to the making of the initial extension of credit on the Closing Date other than as set forth in the preceding clauses (1) through (12) and upon satisfaction or waiver by the Administrative Agent of such conditions the initial Credit Extension on the Closing Date, if any, will be made by the Lenders. For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
 
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SECTION 4.02 All Credit Events After the Closing Date . Except as set forth in Section 2.21(6), 2.22(2) and 2.23(2) and subject to Section 1.09, each Credit Event after the Closing Date is subject solely to the satisfaction or waiver of the following conditions precedent:
 
(1)	The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with Section 2.03(4)) or, in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance of such Letter of Credit (and if requested by such Issuing Bank, a letter of credit application) as required by Section 2.05(2).	
 
(2)	The representations and warranties set forth in the Loan Documents will be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of such date, as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties will be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date).	
 
(3)	At the time of and immediately after any Borrowing or issuance, amendment, extension or renewal of a Letter of Credit (other than an amendment, extension not beyond the Maturity Date, or renewal of a Letter of Credit without any increase in the stated amount thereof), as applicable, no Default or Event of Default shall have occurred and be continuing or would result therefrom.	
 
(4)	At the time after such Borrowing or issuance, amendment, extension or renewal of a Letter of Credit, as applicable, the sum of, without duplication, of Revolving Loans, unreimbursed drawings under Letters of Credit and the face amount of undrawn amount of outstanding Letters of Credit does not exceed the Line Cap.	
Each such Credit Event occurring after the Closing Date will be deemed to constitute a representation and warranty by the Borrower on the date of such Credit Event as to the matters specified in paragraphs (2), (3) and (4) of this Section 4.02.
There are no conditions, implied or otherwise, to the making of Loans after the Closing Date other than as set forth in the preceding clauses (1) through (4) of Section 4.02 and upon satisfaction or waiver of such conditions Loans will be made by the Lenders and any applicable Letters of Credit will be issued, amended, extended or renewed.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this Agreement is in effect and until the Commitments have been terminated and the Obligations have been Paid in Full, unless the Required Lenders otherwise consent in writing, the Borrower will, and will cause each Restricted Subsidiary, to:
 
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SECTION 5.01 Existence; Businesses and Properties .
 
(1)	Preserve, renew and keep in full force and effect its legal existence under the Laws of the jurisdiction of its incorporation or organization, except:	
 
 	(a)	in the case of a Restricted Subsidiary, where the failure to do so would not reasonably be expected to have a Material Adverse Effect; or	
 
 	(b)	in connection with a transaction permitted under Section 6.05.	
 
(2)	(a) Do or cause to be done all things reasonably necessary to lawfully obtain, preserve, renew, extend and keep in full force and effect the permits, franchises, authorizations, Intellectual Property Rights, licenses and rights with respect thereto material to the normal conduct of its business (including the Permits) and (b) maintain and preserve all property necessary to the normal conduct of its business and keep such property in good repair, working order and condition (ordinary wear and tear and casualty or condemnation excepted), in each case, except:	
 
 	(i)	as expressly permitted by this Agreement;	
 
 	(ii)	such as may expire, be abandoned or lapse in the ordinary course of business; or	
 
 	(iii)	where the failure to do so would not reasonably be expected to have a Material Adverse Effect.	
SECTION 5.02 Insurance .
 
(1)	Maintain, with insurance companies that the Borrower reasonably believes in good faith to be financially sound and reputable at the time the relevant coverage is placed or renewed, or with a Captive Insurance Subsidiary, insurance (including property, casualty and general liability) in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Borrower and the Restricted Subsidiaries) and against such risks as are customarily maintained by similarly situated Persons engaged in the same or similar businesses operating in the same or similar locations, and cause, as is appropriate and customary and, with respect to jurisdictions outside of the United States, to the extent available and customary in such jurisdictions, the Collateral Agent (a) to be listed as an additional insured on liability policies or (b) in the case of property and casualty policies, contain a loss payable clause or endorsement listing the Collateral Agent as a co-loss payee thereon. The Borrower will furnish to the Administrative Agent or Collateral Agent, upon reasonable written request, information in reasonable detail as to the insurance so maintained. Notwithstanding the foregoing, it is understood and agreed that no Loan Party will be required to maintain flood insurance unless any material Real Property owned by it is required to be so insured pursuant to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of 1968, and the regulations promulgated thereunder, because such material Real Property is located in an area which has been identified by the Secretary of Housing and Urban Development as a “special flood hazard area.”	
 
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(2)	Use commercially reasonable efforts upon the Administrative Agent’s reasonable written request to: (a) if insurance is procured from insurance companies, obtain certificates and endorsements reasonably acceptable to the Administrative Agent with respect to property and casualty insurance; (b) cause each property and casualty insurance policy referred to in this Section 5.02 and procured from an insurance company to provide that it shall not be cancelled, modified or not renewed (i) by reason of nonpayment of premium except upon not less than 10 days’ prior written notice thereof by the insurer to the Administrative Agent (giving the Administrative Agent the right to cure defaults in the payment of premiums) or (ii) for any other reason except upon not less than 30 days’ prior written notice thereof by the insurer to the Administrative Agent; and (c) promptly deliver to the Administrative Agent a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Administrative Agent, including an insurance binder) together with evidence reasonably satisfactory to the Administrative Agent of payment of the premium therefor.	
SECTION 5.03 Taxes . Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, pay and discharge promptly when due and payable all Taxes imposed upon it or its income or profits or in respect of its property, before the same becomes delinquent or in default; provided that such payment and discharge will not be required with respect to any Tax if (1) the validity or amount thereof is being contested in good faith by appropriate proceedings and (2) the Borrower or any affected Restricted Subsidiary, as applicable, has set aside on its books reserves in accordance with GAAP with respect thereto.
SECTION 5.04 Financial Statements, Reports, etc . Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
 
(1)	within 90 days following the end of each fiscal year, commencing with the fiscal year ended December 31, 2018, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of its operations during such fiscal year and, in each case, commencing with the fiscal year ending December 31, 2019, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity will be prepared in accordance with GAAP, audited by any independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity date) (the applicable financial statements delivered pursuant to this clause (1) being the “ Annual Financial Statements ”);	
 
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(2)	for the first three fiscal quarters of each fiscal year, commencing with the fiscal quarter ended March 31, 2018,	
 
 	(a)	within 71 days following the Closing Date, for the fiscal quarter ending March 31, 2018, (i) (A) a consolidated balance sheet for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) as of the close of such fiscal quarter and (B) the consolidated results of its operations and cash flows for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year and (ii) (A) a consolidated balance sheet for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries), as of the close of such fiscal quarter and (B) the consolidated results of operations and cash flows for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year;	
 
 	(b)	for the fiscal quarter ending June 30, 2018, within 45 days of such fiscal quarter end,	
 
 	(i)	(A) a consolidated balance sheet for the Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated statement of operations and cash flows for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries for the period from the Closing Date to such fiscal quarter end) during such fiscal quarter and the then-elapsed portion of the fiscal year; and	
 
 	(ii)	an unaudited pro forma condensed combined statement of operations for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries) during such fiscal quarter (which pro forma financial statements will be certified by a Responsible Officer of the Borrower on behalf of the Borrower as having been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated results of operations of the Borrower and its Restricted Subsidiaries during such fiscal quarter end); and	
 
 	(c)	for each such fiscal quarter thereafter, within 45 days of such fiscal quarter end, (A) a consolidated balance sheet for the Borrower and the Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated results of operations and cash flows for the Borrower and the Restricted Subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year and, commencing with the fiscal quarter ending September 30, 2019, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year,	
 
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in each case (other than the preceding clause (ii)), certified by a Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and the Restricted Subsidiaries (or Impax and its Restricted Subsidiaries, as applicable) on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “ Quarterly Financial Statements ” and, together with the Annual Financial Statements, the “ Required Financial Statements ”).
 
(3)	no later than five (5) days after the delivery of any Required Financial Statements, a certificate of a Financial Officer of the Borrower:	
 
 	(a)	certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;	
 
 	(b)	upon the occurrence and during the continuance of a Covenant Trigger Event, setting forth in reasonable detail calculations of the Fixed Charge Coverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of the fiscal year or fiscal quarter, as applicable;	
 
 	(c)	certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” and	
 
 	(d)	certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary;	
 
(4)	promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable, and in any case not otherwise required to be delivered to the Administrative Agent pursuant to any Loan Document;	
 
(5)	within 60 days following the end of each fiscal year, commencing with the fiscal year ending December 31, 2018, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget” ), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; provided that no Budget will be required to be delivered with respect to the fiscal year ending December 31, 2018;	
 
(6)	upon the reasonable written request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10, as applicable;	
 
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(7)	promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender) in writing;	
 
(8)	promptly upon reasonable written request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and	
 
(9)	a Borrowing Base Certificate from the Borrower on the Initial Borrowing Base Date and, thereafter, as soon as available but in any event on or before the 20th day after the end of each calendar month (or, if such date is not a Business Day, the next succeeding Business Day) (or on a more frequent basis at the discretion of the Borrower; provided that once a more frequent basis is elected it must be continued for no less than 30 days after the date of such election), with such supplemental information and supporting materials as the Administrative Agent may reasonably request and with supplemental information regarding the amount of Eligible Cash held with institutions other than the Administrative Agent being provided to the Administrative Agent on a bi-weekly basis (or, at any time that no Loans are then outstanding and the aggregate stated amounts of all then-outstanding Letters of Credit is less than $10 million, on a monthly basis); provided, that after the occurrence and during the continuance of an Increased Reporting Period, the Borrower shall be required to deliver a Borrowing Base Certificate on a weekly basis. Notwithstanding the foregoing, the Administrative Agent may not require the Borrower to deliver a Borrowing Base Certificate more frequently than weekly, and in the case of such weekly reporting the Borrowing Base Certificate will be due on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day) calculated as of the close of business on Saturday of the immediately preceding calendar week.	
Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of any Parent Entity or (2) the Borrower’s (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to a Parent Entity, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are prepared in accordance with GAAP and accompanied by a report and opinion of any independent public
 
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accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity date). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its Subsidiaries so long as such financial statements include a reasonably detailed presentation (which need not be audited), either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower.
Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically in accordance with Section 10.01(5).
SECTION 5.05 Litigation and Other Notices . Furnish to the Administrative Agent (which will promptly thereafter furnish to the Lenders) written notice of the following promptly after any Responsible Officer of the Borrower obtains actual knowledge thereof:
 
(1)	any Default or Event of Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto;	
 
(2)	the filing or commencement of, or any written threat or notice of intention of any Person to file or commence, or any material development in, any action, suit, litigation, investigation, administrative action or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against the Borrower or any of the Restricted Subsidiaries, as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, or which alleges (and as to which an adverse determination against the Borrower or any of the Restricted Subsidiaries is reasonably likely to result in) material violations of Healthcare Laws;	
 
(3)	the occurrence of any ERISA Event that, together with all other ERISA Events that have occurred, would reasonably be expected to have a Material Adverse Effect;	
 
(4)	any material change in accounting policies or financial reporting practices by any Loan Party with respect to the Borrower’s Accounts and Inventory or which otherwise could reasonably be expected to affect the calculation of the Borrowing Base or Reserves;	
 
(5)	the Borrower’s receipt of any: (i) written notice from the FDA or other Governmental Authority that it is limiting, suspending, adversely modifying or revoking any Healthcare Permit that could reasonably be expected to have a Material Adverse Effect; (ii) a written warning letter from the FDA; or (iii) other written notice from the FDA or other Governmental Authority that any product manufactured, marketed, developed, sold or distributed by or on behalf of the Borrower and its Restricted Subsidiaries is subject to, or proceedings have been commenced seeking, the material seizure, withdrawal, recall, suspension or detention by the FDA or other Governmental Authority; and	
 
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(6)	any seizure, detention, suspension or recall of, or any voluntary withdrawal or recall of, or any response or commitment to the FDA or any Governmental Authority to withdraw or recall, any product manufactured, marketed, developed, sold or distributed by or on behalf of the Borrower and its Subsidiaries which could reasonably be expected to have a Material Adverse Effect.	
SECTION 5.06 Compliance with Laws . Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property and assets (including ERISA and Health Care Laws), except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; provided that this Section 5.06 will not apply to Environmental Laws, which are the subject of Section 5.09, or laws related to Taxes, which are the subject of Section 5.03. The Borrower will, and will cause each of its Subsidiaries to, maintain in effect and enforce policies and procedures reasonably designed to ensure compliance by the Borrower, its Subsidiaries and the respective directors, officers, employees and agents of the foregoing with Anti-Corruption Laws and applicable Sanctions.
SECTION 5.07 Maintaining Records; Access to Properties and Inspections; Appraisals .
 
(1)	Permit any Persons designated by the Administrative Agent to visit and inspect the financial records and the properties of the Borrower or any Restricted Subsidiary at reasonable times, upon reasonable prior written notice from the Administrative Agent to the Borrower, and as often as reasonably requested, to make extracts from and copies of such financial records, and permit any Persons designated by the Administrative Agent, upon reasonable prior written notice from the Administrative Agent to the Borrower, to discuss the affairs, finances and condition of the Borrower or any Restricted Subsidiary with the officers thereof and independent accountants therefor (subject to such accountant’s policies and procedures); provided that the Administrative Agent may not exercise such rights more often than two times during any calendar year unless an Event of Default is continuing and only one such time will be at the Borrower’s expense; and provided , further , that when an Event of Default is continuing, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Borrower’s independent accountants.	
 
(2)	Upon the Administrative Agent’s written request, the Loan Parties will permit any Person designated by the Administrative Agent to conduct, at the Borrower’s expense, one (1) field examination in any calendar year (with one (1) additional field examination at the expense of the Lenders or the Administrative Agent in such calendar year), in each case at reasonable business times and upon reasonable prior notice to the Borrower; provided , however , that notwithstanding the foregoing, (a) at any time on or after a Collateral Test Triggering Event, any Person designated by the Administrative Agent may carry out, at	
 
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 	the Borrower’s expense, two (2) such field examinations in such calendar year, and (b) at any time during the continuation of a Designated Event of Default, any Person designated by the Administrative Agent may carry out, at the Borrower’s expense, such field examinations as frequently as determined by the Administrative Agent in its Reasonable Credit Judgment. The Loan Parties will reasonably cooperate with the Administrative Agent and such Persons in the conduct of such field examinations.	
 
(3)	Upon the Administrative Agent’s written request, the Loan Parties will permit any Acceptable Appraiser designated by the Administrative Agent to conduct, at the Borrower’s expense, one (1) inventory appraisal of the Collateral in any calendar year (and one (1) additional inventory appraisal of the Collateral at the expense of the Lenders or the Administrative Agent in such calendar year), in each case at reasonable business times and upon reasonable prior notice to the Borrower; provided , however , that notwithstanding the foregoing limitations (a) at any time on or after a Collateral Test Triggering Event, an Acceptable Appraiser designated by the Administrative Agent may carry out, upon the Administrative Agent’s written request and at the Borrower’s expense, two (2) such inventory appraisals in such calendar year, and (b) at any time during the continuation of a Designated Event of Default, an Acceptable Appraiser designated by the Administrative Agent may carry out, upon the Administrative Agent’s written request and at the Borrower’s expense, such inventory appraisals as frequently as determined by the Administrative Agent in its Reasonable Credit Judgment. The Loan Parties will reasonably cooperate with the Administrative Agent and such Acceptable Appraiser in the conduct of such appraisals. In addition, the Loan Parties will have the right (but not the obligation), at their expense, at any time and from time to time to provide the Administrative Agent with additional appraisals or updates thereof of any or all of the Collateral from any Acceptable Appraiser prepared in a form and on a basis reasonably satisfactory to the Administrative Agent, in which case such appraisals or updates shall be used in connection with the determination of the Net Orderly Liquidation Value and the calculation of the Borrowing Base hereunder. With respect to each appraisal made pursuant to this Section 5.07(3) after the Closing Date, (i) the Administrative Agent and the Loan Parties will each be given a reasonable amount of time to review and comment on a draft form of the appraisal prior to its finalization and (ii) any adjustments to the Net Orderly Liquidation Value or the Borrowing Base hereunder as a result of such appraisal shall be reflected in the Borrowing Base Certificate delivered immediately succeeding such appraisal.	
 
(4)	Notwithstanding anything to the contrary in this Agreement (including Sections 5.04(7), 5.05 and 5.07) or any other Loan Document, none of the Loan Parties or any of the Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter with any Disqualified Institution or other competitor to the Borrower or any of its Subsidiaries or that (1) constitutes non-financial trade secrets or non-financial proprietary information, (2) in respect of which disclosure is prohibited by law or any binding agreement, (3) is subject to attorney-client or similar privilege or constitutes attorney work product or (4) creates an unreasonably excessive expense or burden on the Borrower or any of its Subsidiaries.	
 
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SECTION 5.08 Use of Proceeds . Use the proceeds of the Revolving Loans and request issuance of Letters of Credit solely for working capital and other general corporate purposes (including for capital expenditures, Permitted Investments, Restricted Payments and the repayment or refinancing of Indebtedness, in each case to the extent not prohibited hereunder, and any other uses not prohibited by the Loan Documents).
SECTION 5.09 Compliance with Environmental Laws . Comply, and make reasonable efforts to cause all lessees and other Persons occupying its fee- owned Real Properties to comply, with all Environmental Laws applicable to its operations and properties, and obtain and renew all material authorizations and permits required pursuant to Environmental Law for its operations and properties, in each case in accordance with Environmental Laws, except, in each case, to the extent the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.10 Further Assurances; Additional Security .
 
(1)	If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:	
 
 	(i)	deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;	
 
 	(ii)	to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);	
 
 	(iii)	to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and	
 
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 	(iv)	except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral Agent, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.	
 
(2)	Furnish to the Collateral Agent within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) written notice of any change in any Loan Party’s:	
 
 	(a)	legal name;	
 
 	(b)	type of organization;	
 
 	(c)	location (determined as provided in UCC Section 9-307); or	
 
 	(d)	jurisdiction of organization;	
except, in the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion.
The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
 
(3)	Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrower, and provide to the Collateral Agent, from time to time upon Collateral Agent’s reasonable written request, evidence as to the perfection and priority of the Liens created by the Security Documents (subject to Permitted Liens).	
 
(4)	Notwithstanding anything to the contrary,	
 
 	(a)	the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;	
 
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 	(b)	neither the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the Term Priority Collateral, the Borrower and the Term Agent); and	
 
 	(c)	(i) no actions will be required (A) outside of the United States in order to create or perfect any security interest in any assets located outside of the United States, (B) in any non-United States jurisdiction or (C) under the laws of any non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States law security or pledge agreements, non-United States law mortgages or deeds or non-United States intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.	
SECTION 5.11 Cash Management Systems; Application of Proceeds of Accounts .
 
(1)	As soon as practicable and in any event within 120 days after the Closing Date (or such longer period as may be consented to by the Administrative Agent in its reasonable discretion):	
 
 	(a)	enter into Control Agreements in form reasonably satisfactory to the Administrative Agent, with the Collateral Agent and any bank with which the Borrower or any Subsidiary Loan Party maintains a DDA (other than any Excluded Account) (a “ Blocked Account ”) covering each such Blocked Account maintained with such bank; provided that if the applicable Loan Party shall not have entered into a Control Agreement with respect to any such DDA (other than any Excluded Account) within such 120 day period (or such later date as the Administrative Agent shall reasonably agree), such DDA shall be closed and all funds therein transferred to a Deposit Account at the Administrative Agent, an Affiliate of the Administrative Agent, or another financial institution that has executed a Control Agreement; and	
 
 	(b)	ensure that all cash, checks, proceeds of collections of Accounts and other amounts received by or on behalf of the Borrower or any Subsidiary Loan Party are deposited promptly upon receipt in accordance with historical practices into a DDA maintained in the name of the Borrower or such Subsidiary Loan Party.	
Notwithstanding anything herein to the contrary, the provisions of Section 5.11(1)(a) will not apply to any deposit account that is acquired by a Loan Party in connection with a Permitted Acquisition or other Investment permitted under this Agreement prior to the date that is 120 days (or such later date as may be consented to by the Administrative Agent in its reasonable discretion) following the date of such Permitted Acquisition or other Investment, and the
 
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balances held in such deposit accounts at the date of such Permitted Acquisition or other Investment shall not be counted toward the amount set forth in clause (1) of the definition of “Excluded Account” until the end of such 120 day period (or later period, if applicable; provided that if the applicable Loan Party shall not have entered into a Control Agreement with respect to any such deposit account (other than any Excluded Account) within such 120 day period (or such later date as the Administrative Agent shall reasonably agree), all funds therein will be transferred to a Deposit Account at the Administrative Agent, an Affiliate of the Administrative Agent, or another financial institution that has executed a Control Agreement).
 
(2)	Each such Control Agreement will require, during a Cash Dominion Period and upon receipt by the Borrower of written notice thereof by the Administrative Agent, an ACH or wire transfer no less frequently than once per Business Day of all available cash balances and cash receipts, including the then contents or then entire ledger balance of each Blocked Account net of such minimum balance (not to exceed $100,000 per account), if any, required by the bank at which such Blocked Account is maintained to an account specified by the Administrative Agent (which account will be established with, and at all times under the sole dominion of and subject to the control of, the Collateral Agent) (the “ Dominion Account ”). All collected amounts received in the Dominion Account shall be distributed and applied on a daily basis to the repayment of all Loans outstanding under this Agreement and to the payment of all other Obligations then due and owing pursuant to the waterfall set forth in Section 2.18(3); provided that amounts applied pursuant to subclauses (iv) and (v) thereof will be applied:	
 
 	(a)	first, to ABR loans;	
 
 	(b)	second, to Eurocurrency Revolving Loans; and	
 
 	(c)	third, to the cash collateralization of Letters of Credit;	
with any excess, unless an Event of Default shall have occurred and be continuing, to be remitted to the Borrower.
 
(3)	At any time after the occurrence and during the continuance of a Cash Dominion Period as to which the Administrative Agent has notified the Borrower, any cash or Cash Equivalents owned by the Borrower or any Subsidiary Loan Party are deposited to any account, held or invested in any manner, otherwise than in a Blocked Account subject to a Control Agreement (or a DDA which is swept daily to such Blocked Account), the Administrative Agent will be entitled to require the Borrower or any Subsidiary Loan Party to close such account and have all funds therein transferred to a Blocked Account;	
provided that the foregoing will not apply to cash or Cash Equivalents constituting Term Priority Collateral required to be deposited in a blocked account in favor of the lenders under the Term Loan Credit Agreement pursuant to the terms of the Term Loan Credit Agreement; provided , further , that the foregoing will not apply to cash or Cash Equivalents deposited, held or invested in any of the following:
 
 	(a)	any Excluded Account; or	
 
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 	(b)	de minimis cash or cash equivalents from time to time inadvertently misapplied by the Borrower or any Restricted Subsidiary.	
 
(4)	The Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Administrative Agent of a Control Agreement within one hundred twenty (120) days (or such later date as the Administrative Agent may agree) of opening any new DDA or Blocked Account, which Control Agreement (for the avoidance of doubt) will be subject to the first sentence of Section 5.11(2); provided that such new DDA or Blocked Account shall not be permitted to be funded until a Control Agreement in respect of such new DDA or Blocked Account has been executed and delivered to the Administrative Agent; provided , further , that the Loan Parties may close DDAs or Blocked Accounts or open new DDAs that are Excluded Accounts without executing or delivering any Control Agreement.	
 
(5)	Anything to the contrary notwithstanding, so long as (i) no Event of Default has occurred and is continuing and (ii) no Cash Dominion Period is then in effect, the Loan Parties will have full and complete access to, and may direct the manner of disposition of, funds in the Blocked Accounts.	
 
(6)	Any amounts held or received in the Dominion Account (including all interest and other earnings with respect thereto, if any) at any time (i) after this Agreement and the Commitments have been terminated and the Obligations have been Paid in Full and all Letters of Credit have expired, terminated or been cash collateralized on terms satisfactory to the applicable Issuing Bank or (ii) when all Events of Default have been cured and no Cash Dominion Period is then in effect, in each case will be remitted to the Loan Parties as the Borrower may direct.	
SECTION 5.12 Post-Closing Matters . Deliver to Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, the items described on Schedule 5.12 hereof on or before the dates specified with respect to such items on Schedule 5.12 (or, in each case, such later date as may be agreed to by Administrative Agent in its reasonable discretion or, with respect to matters relating primarily to the Term Priority Collateral, in the reasonable discretion of the Term Agent). All representations and warranties contained in this Agreement and the other Loan Documents will be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described on Schedule 5.12 within the time periods specified thereon, rather than as elsewhere provided in any of the Loan Documents).
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as this Agreement is in effect and until the Commitments have been terminated and the Obligations have been Paid in Full, unless the Required Lenders otherwise consent in writing, it will not and will not permit any Restricted Subsidiary to:
 
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SECTION 6.01 Indebtedness . Issue, incur or assume any Indebtedness; provided that the Borrower and the Restricted Subsidiaries may issue, incur or assume Permitted Additional Indebtedness so long as immediately after giving effect to the issuance, incurrence or assumption of such Permitted Additional Indebtedness, the aggregate outstanding principal amount of such Permitted Additional Indebtedness does not exceed the Ratio Debt Cap (“ Ratio Debt ”).
The foregoing limitation will not apply to (collectively, “ Permitted Debt ”):
 
(1)	(a) Indebtedness created under the Loan Documents (including Indebtedness created under Incremental Facilities, Refinancing Term Loans and Extended Commitments), (b) Specified Hedge Obligations and (c) Credit Agreement Refinancing Indebtedness;	
 
(2)	(a) Indebtedness incurred pursuant to the Term Loan Credit Agreement (including all Incremental Term Loans, Refinancing Term Loans and Extended Term Loans, in each case, as defined in the Term Loan Credit Agreement); (b) any Incremental Equivalent Term Debt; (c) Specified Hedge Obligations (as defined in the Term Loan Credit Agreement); and (d) Term Loan Credit Agreement Refinancing Indebtedness; provided that the aggregate outstanding principal amount, including all Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to this clause (2) (and any successive Permitted Refinancing Indebtedness thereof), as of the date any such Indebtedness is incurred, does not exceed the sum of;	
 
 	(i)	$2,700.0 million; plus	
 
 	(ii)	Closing Date EBITDA; plus	
 
 	(iii)	the Term Incremental Amount;	
provided that:
(A) if the Borrower incurs any Indebtedness under the preceding clause (ii) on the same date that it incurs Indebtedness under the preceding clause (iii), then the Term Incremental Amount will be calculated without regard to any incurrence of Indebtedness under the preceding clause (ii);
(B) unless the Borrower elects otherwise, any Incremental Term Loans or Incremental Equivalent Term Debt will be deemed incurred first as Term Incremental Amount to the extent permitted, with any balance incurred under the preceding clause (ii); and
(C) the Borrower may classify, and may later reclassify, any Incremental Term Loans or Incremental Equivalent Term Debt as incurred as, and in reliance on, the preceding clause (ii), the Term Incremental Amount, or both, on the date of incurrence or thereafter, to the extent permitted on the date of classification (or the date of any such reclassification);
 
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(3)	Indebtedness existing on the Closing Date (other than Indebtedness described in clause (1) or (2) above), including the Impax Convertible Notes;	
 
(4)	any (a) Attributable Indebtedness relating to any transactions and (b) Capital Lease Obligations and other Indebtedness with respect to mortgage financings and purchase money Indebtedness to finance all or any part of the purchase, lease, construction, installation, repair or improvement of property (real or personal), plant or equipment or other fixed or capital assets and Indebtedness arising from the conversion of the obligations of the Borrower or any Restricted Subsidiary under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness of the Borrower or such Restricted Subsidiary, in an aggregate outstanding principal amount incurred pursuant to this clause (4), including all Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to this clause (4) (and any successive Permitted Refinancing Indebtedness), not to exceed the greater of (i) $160.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA of the Borrower on a Pro Forma Basis as of the applicable date of determination, in each case determined as of the time of incurrence; provided that such Indebtedness is incurred within 270 days after the purchase, lease, construction, installation, repair or improvement of the property that is the subject of such Indebtedness; provided further that for the purposes of determining compliance with this Section 6.01(4), Attributable Indebtedness and Capital Lease Obligations will not be deemed to arise from any Sale Leaseback Transaction that is originally treated under GAAP as an operating lease at the time such Sale Leaseback Transaction is consummated but is subsequently treated under GAAP as a capital lease;	
 
(5)	Indebtedness (including obligations in respect of letters of credit or bank Guarantees, bankers’ acceptances or similar instruments) in respect of workers’ compensation, health, disability or other employee benefits (whether to current or former employees) or property, casualty or liability insurance or self-insurance in respect of such items, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance;	
 
(6)	Indebtedness constituting indemnification obligations, earn-outs, milestones, royalties, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Transactions, a commercial or license agreement, any Permitted Investment or the disposition of any business, assets or Restricted Subsidiaries not prohibited by this Agreement;	
 
(7)	intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries to the extent such Indebtedness is not prohibited by Section 6.04 (without regard to Section 6.04(14));	
 
(8)	Indebtedness pursuant to Hedge Agreements;	
 
(9)	Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion Guarantees and similar obligations and instruments, in each case, provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;	
 
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(10)	Guarantees of Indebtedness permitted to be incurred under this Agreement to the extent such Guarantees are not prohibited by the provisions of Section 6.04 (without regard to Section 6.04(14)); provided that, if the Indebtedness being guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Obligations on terms at least as favorable to the Lenders;	
 
(11)	Indebtedness	
 
 	(a)	of any Person that becomes a Restricted Subsidiary after the Closing Date pursuant to a Permitted Investment, which Indebtedness is (i) existing at the time such Person becomes a Restricted Subsidiary, (ii) not incurred in contemplation of such Person becoming a Restricted Subsidiary and (iii) non-recourse to the Borrower or any other Restricted Subsidiary (other than any Person that becomes a Subsidiary in connection with the foregoing and its Subsidiaries);	
 
 	(b)	issued, incurred or assumed in connection with any Permitted Investment so long as (i) in the case of any such issued or incurred Indebtedness, immediately after giving effect to such issuance or incurrence, such Indebtedness would be permitted to be incurred as Ratio Debt and (ii) in the case of any such assumed Indebtedness, such Indebtedness was not incurred in anticipation of such Permitted Investment;	
provided that the outstanding principal amount of such Indebtedness issued, incurred or assumed by Restricted Subsidiaries that are not Guarantors pursuant to this clause (11)(b) does not exceed the greater of (A) $125.0 million and (B) an amount equal to the Equivalent Percentage of the amount set forth in clause (A)  multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of incurrence; and
 
 	(c)	all Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to the preceding clauses (11)(a) and (11)(b) (and any successive Permitted Refinancing Indebtedness);	
 
(12)	Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;	
 
(13)	Indebtedness (a) supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit, (b) in respect of letters of credit in an aggregate face amount at any time outstanding not to exceed the greater of (i) $25.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA of the Borrower on a Pro Forma Basis as of the applicable date of determination, in each case determined as of the time of incurrence, and (c) in respect of letters of credit that are cash collateralized;	
 
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(14)	Contribution Indebtedness;	
 
(15)	Indebtedness consisting of (a) the financing of insurance premiums or (b) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;	
 
(16)	Indebtedness incurred in connection with a Qualified Receivables Transaction that is not recourse (except for Standard Securitization Undertakings) to the Borrower or any Restricted Subsidiary other than a Receivables Subsidiary in an aggregate principal amount not to exceed $50.0 million, measured at any time, with respect to a Qualified Receivables Financing, by the aggregate amount of such Indebtedness under such Qualified Receivables Financing that was incurred during the term of this Agreement, whether or not such Indebtedness remains outstanding at such time, and with respect to a Qualified Receivables Factoring, by the aggregate amount of such Indebtedness under such Qualified Receivables Factoring that was incurred during the term of this Agreement and remains outstanding at such time;	
 
(17)	Cash Management Obligations and other Indebtedness in respect of Cash Management Services, and netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and other cash management and similar arrangements entered into in the ordinary course of business;	
 
(18)	Indebtedness issued to any future, current or former officers, directors, managers, employees, consultants and independent contractors of the Borrower or any Restricted Subsidiary or any direct or indirect parent thereof, or their respective estates, heirs, family members, spouses, former spouses, executors, administrators, trustees, legatees or distributees, in each case to finance the purchase or redemption of Equity Interests of the Borrower (or any Parent Entity) permitted by Section 6.07;	
 
(19)	Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate outstanding principal amount of such Indebtedness, together with any Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to this clause (19) (and any successive Permitted Refinancing Indebtedness), not to exceed the greater of (a) $50.0 million and (b) an amount equal to the Equivalent Percentage of the amount set forth in clause (a) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of incurrence;	
 
(20)	[Reserved];	
 
(21)	Indebtedness of any Non-U.S. Subsidiaries or Non-Loan Parties (a) in an aggregate outstanding principal amount, together with any Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to this clause (21) (and any successive Permitted Refinancing Indebtedness), not exceed the greater of (i) $100.0 million and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of incurrence and (b) consisting of working capital or other local lines of credit that are not secured by any Collateral and non-recourse to the Loan Parties;	
 
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(22)	obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in the ordinary course of business and not in connection with the borrowing of money;	
 
(23)	Indebtedness representing deferred compensation or other similar arrangements incurred by the Borrower or any Restricted Subsidiary (a) in the ordinary course of business or (b) in connection with the Transactions or any Permitted Investment;	
 
(24)	any Permitted Refinancing Indebtedness incurred to Refinance Incremental Equivalent Term Debt or Indebtedness incurred under clauses (2), (3), (4), (11), (13)(b), (14), (19), (21), this clause (24) or clause (28) of this Section 6.01;	
 
(25)	customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;	
 
(26)	Indebtedness incurred by the Borrower or any Restricted Subsidiary in connection with bankers’ acceptances, discounted bills of exchange, warehouse receipts or similar facilities or the discounting or factoring of receivables for credit management purposes, in each case incurred or undertaken in the ordinary course of business;	
 
(27)	any Permitted Convertible Indebtedness Call Transaction entered into in connection with any Convertible Indebtedness otherwise permitted to be incurred under this Section 6.01;	
 
(28)	additional Indebtedness in an aggregate outstanding principal amount, including all Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant this clause (28) (and any successive Permitted Refinancing Indebtedness), not to exceed the greater of (a) $225.0 million and (b) an amount equal to the Equivalent Percentage of the amount set forth in clause (a)  multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of incurrence	
 
(29)	unsecured Indebtedness of the Borrower or any Restricted Subsidiary so long as (a) immediately after giving Pro Forma Effect to the incurrence of such Indebtedness the Payment Conditions are satisfied and (b) the final maturity date of such Indebtedness is no earlier than the Latest Maturity Date, and any Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to this clause (29) (and any successive Permitted Refinancing Indebtedness); and	
 
(30)	all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (1) through (29) above.	

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For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories of Permitted Debt or is entitled to be incurred (in whole or in part) as Ratio Debt, the Borrower may, in its sole discretion, at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant at the time of incurrence or at such later time (as applicable); provided that all Indebtedness outstanding under the Loan Documents and the Term Loan Credit Agreement and any Permitted Refinancing thereof will be deemed to have been incurred in reliance on the exception in clauses (1) and (2), respectively, of the definition of “Permitted Debt” and shall not be permitted to be reclassified pursuant to this paragraph. All unsecured Permitted Debt originally incurred under clause (4), (11)(b), (19), (21) or (28) of the definition of Permitted Debt will be automatically reclassified as Ratio Debt on the first date on which such Indebtedness would have been permitted to be incurred as Ratio Debt. The accrual of interest, the accretion of accreted value, amortization of original issue discount, the payment of interest or dividends in the form of additional Indebtedness with the same terms (including any pay-in-kind interest) and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies, will not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.01. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date will be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP. Guarantees of, or obligations in respect of letters of credit relating to Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness will not be included in the determination of such amount of Indebtedness; provided that the incurrence of the Indebtedness represented by such Guarantee or letter of credit, as the case may be, was in compliance with this Section 6.01. Any incurrence of Permitted Refinancing Debt with respect to any Refinanced Debt that was incurred in reliance on a dollar or Equivalent Percentage basket (and not subsequently reclassified) shall not, for the avoidance of doubt, reload any such dollar or Equivalent Percentage based basket.
For purposes of determining compliance with any Dollar-denominated (or Equivalent Percentage, if greater) restriction on the incurrence of Indebtedness, the Dollar equivalent principal amount of Indebtedness denominated in a currency other than Dollars shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed or first incurred (whichever yields the lower Dollar equivalent), in the case of revolving credit debt; provided that if such Indebtedness is incurred to Refinance other Indebtedness denominated in a currency other than Dollars, and such refinancing would cause the applicable Dollar-denominated (or Equivalent Percentage, if greater) restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated (or Equivalent Percentage, if greater) restriction will be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced ( plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses in connection therewith).
Any Indebtedness permitted to be incurred under this Section 6.01 may, at the option of the Borrower, be Convertible Indebtedness.
 
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SECTION 6.02 Liens . Create, incur, assume or permit to exist any Lien that secures obligations under any Indebtedness on any property or assets at the time owned by it, except the following (collectively, “ Permitted Liens ”):
 
(1)	Liens securing Indebtedness incurred in accordance with Sections 6.01(1) or 6.01(2), including Liens on the Collateral securing obligations in respect of any Permitted Junior Secured Refinancing Debt and all Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness; provided that, in the case of Indebtedness incurred in accordance with Section 6.01(2), the applicable Liens are subject to the Closing Date Intercreditor Agreement or other Intercreditor Agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the Closing Date Intercreditor Agreement as determined in good faith by a Responsible Officer of the Borrower;	
 
(2)	Liens securing Indebtedness existing on the Closing Date; provided that such Liens only secure the obligations that they secure on the Closing Date (and any Permitted Refinancing Indebtedness in respect of such obligations permitted by Section 6.01) and do not apply to any other property or assets of the Borrower or any Restricted Subsidiary other than replacements, additions, accessions and improvements thereto and products thereof and customary security deposits; provided further , that individual financings of equipment or other assets provided by a lender may be cross collateralized to other financings of equipment or other assets financed by such lender;	
 
(3)	Liens securing Indebtedness incurred in accordance with Sections 6.01(4); provided that such Liens only extend to the assets financed with such Indebtedness (and any replacements, additions, accessions and improvements thereto and products thereof and customary security deposits); provided further , that individual financings of equipment or other assets provided by a lender may be cross collateralized to other financings of equipment or other assets financed by such lender;	
 
(4)	Liens on Securitization Assets sold, conveyed, assigned or otherwise transferred or purported to be sold, conveyed, assigned or otherwise transferred in connection with a Qualified Receivables Transaction permitted pursuant to Section 6.01(16);	
 
(5)	Liens on assets of Non-Loan Parties securing Indebtedness incurred in accordance with Section 6.01(19) or (21);	
 
(6)	[Reserved];	
 
(7)	(a) Liens on property or Equity Interests of a Person at the time such Person becomes a Restricted Subsidiary if such Liens were not created in connection with, or in contemplation of, such other Person becoming a Restricted Subsidiary and (b) Liens on property at the time the Borrower or a Restricted Subsidiary acquired such property, including any acquisition by means of a merger or consolidation with or into the Borrower or any of the Restricted Subsidiaries, if such Liens were not created in connection with, or in contemplation of, such acquisition;	
 
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(8)	Liens on property or assets of any Restricted Subsidiary that is not a Guarantor and on any Excluded Assets securing Indebtedness in an aggregate principal amount not to exceed $100,000,000;	
 
(9)	Liens for Taxes, assessments or other governmental charges or levies that are not overdue for a period of more than 60 days or that are not yet delinquent or that are being contested in compliance with Section 5.03;	
 
(10)	Liens disclosed by any title insurance policies delivered on or subsequent to the Closing Date and any replacement, extension or renewal of any such Liens (so long as the Indebtedness and other obligations secured by such replacement, extension or renewal Liens are permitted by this Agreement); provided that such replacement, extension or renewal Liens do not cover any property other than the property that was subject to such Liens prior to such replacement, extension or renewal ( plus any replacements, additions, accessions and improvements thereto and products thereof);	
 
(11)	Liens securing any judgments or orders that do not constitute an Event of Default under Section 8.01(10) and notices of lis pendens or similar notices and associated rights related to litigation being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Borrower or any affected Restricted Subsidiary has set aside on its books reserves in accordance with GAAP with respect thereto;	
 
(12)	Liens imposed by law, including landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other like Liens arising in the ordinary course of business securing obligations that are not overdue by more than 60 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Borrower or a Restricted Subsidiary has set aside on its books reserves in accordance with GAAP;	
 
(13)	(a) pledges and deposits and other Liens made in the ordinary course of business in compliance with any workers’ compensation, health, disability or other similar employee benefits, unemployment insurance and other similar laws or regulations and other insurance-related obligations (including in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (b) pledges and deposits and other Liens securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary;	
 
(14)	deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, stay, customs, surety and appeal bonds, performance and return of money bonds, bids, leases, government contracts, trade contracts, agreements with utilities, and other obligations of a like nature (including letters of credit in lieu of any such bonds or to support the issuance thereof) incurred by the Borrower or any Restricted Subsidiary in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;	
 
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(15)	survey exceptions and such matters as an accurate survey would disclose, easements, trackage rights, leases (other than Capital Lease Obligations), licenses, special assessments, rights of way, covenants, conditions, restrictions (including zoning restrictions), and declarations on or with respect to the use of Real Property, encroachments, protrusions, servicing agreements, development agreements, site plan agreements and other encumbrances and title defects or irregularities that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole;	
 
(16)	any interest or title of a lessor, sublessor, licensor or sublicensor or secured by a lessor’s, sublessor’s, licensor’s or sublicensor’s interest under any leases, subleases, licenses or sublicenses entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;	
 
(17)	Liens that are contractual rights of set-off relating to (a) the establishment of depository relations with banks or other deposit-taking financial institutions in the ordinary course of business, (b) pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary or (c) purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business;	
 
(18)	Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights;	
 
(19)	leases or subleases, licenses or sublicenses (including with respect to Intellectual Property Rights and software) (or other agreement under which the Borrower or any Restricted Subsidiary has granted rights to end users to access and use the Borrower’s or any Restricted Subsidiary’s products, technologies or services) granted to others in the ordinary course of business that do not interfere in any material respect with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;	
 
(20)	Liens (a) solely on any cash earnest money deposits made by the Borrower or any Restricted Subsidiary in connection with any letter of intent or other agreement in respect of any Permitted Investment and (b) incurred in connection with escrow arrangements or other similar agreements relating to an acquisition or Investment permitted hereunder;	
 
(21)	the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;	
 
(22)	purported Liens evidenced by precautionary Uniform Commercial Code financing statements or similar public filings;	
 
(23)	Liens on Equity Interests or assets of any joint venture (a) securing obligations of such joint venture or (b) pursuant to the relevant joint venture agreement or arrangement;	
 
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(24)	Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;	
 
(25)	Liens on securities that are the subject of repurchase agreements constituting Cash Equivalents under clause (4) of the definition thereof;	
 
(26)	Liens (a) securing insurance premium financing arrangements and (b) securing obligations to insurance companies with respect to insurable liabilities incurred in the ordinary course of business;	
 
(27)	Liens on vehicles or equipment of the Borrower or any of the Restricted Subsidiaries granted in the ordinary course of business;	
 
(28)	Liens on property or assets used to defease or to satisfy and discharge Indebtedness; provided that such defeasance or satisfaction and discharge is not prohibited by this Agreement;	
 
(29)	Liens:	
 
 	(a)	of a collection bank arising under Section 4-208 or 4-210 of the Uniform Commercial Code, or any comparable or successor provision, on items in the course of collection;	
 
 	(b)	attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business; or	
 
 	(c)	in favor of banking or other financial institutions or entities, or electronic payment service providers, arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking or finance industry;	
 
(30)	Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit entered into in the ordinary course of business issued or created for the account of such Person to facilitate the purchase, shipment, processing or storage of such inventory or other goods;	
 
(31)	Liens securing Ratio Debt, Term Loan Credit Agreement Refinancing Indebtedness or Indebtedness incurred in accordance with Section 6.01(11)(b), in each case, to be secured on a pari passu basis with the Initial Term Loans; provided that after giving Pro Forma Effect to the incurrence of such Indebtedness, the First Lien Net Leverage Ratio measured as of the date of initial incurrence of such Indebtedness is (a) less than or equal to the Closing Date First Lien Net Leverage Ratio or (b) the First Lien Net Leverage Ratio immediately prior to such incurrence; provided that a Debt Representative acting on behalf of the holders of such Indebtedness will become party to or otherwise subject to the provisions of the Closing Date Intercreditor Agreement and/or a Junior Lien Intercreditor Agreement, as applicable;	
 
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(32)	Liens securing Ratio Debt, Credit Agreement Refinancing Indebtedness or Indebtedness incurred in accordance with Section 6.01(11)(b), in each case, that constitutes Junior Lien Debt; provided that, after giving Pro Forma Effect to the incurrence of such Indebtedness, the Total Net Leverage Ratio measured as of the date of initial incurrence of such Junior Lien Debt is less than or equal to (a) the Closing Date Total Net Leverage Ratio or (b) the Total Net Leverage Ratio immediately prior to such incurrence; provided that a Debt Representative acting on behalf of the holders of such Indebtedness will become party to or otherwise subject to the provisions of the Closing Date Intercreditor Agreement and/or a Junior Lien Intercreditor Agreement, as applicable;	
 
(33)	Liens securing Indebtedness or other obligations in an aggregate outstanding principal amount not to exceed the greater of (a) $150.0 million and (b) an amount equal to the Equivalent Percentage of the amount in the preceding clause (a) multiplied by TTM Consolidated EBITDA, as of the applicable date of determination, in each case determined as of the time of initial attachment of such lien;	
 
(34)	Liens in favor of the Borrower or a Loan Party securing any Indebtedness permitted to be incurred under Section 6.01;	
 
(35)	[Reserved];	
 
(36)	Liens (a) on cash advances in favor of the seller of any property to be acquired in a Permitted Investment, (b) consisting of an agreement to Dispose of any property, (c) arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods in the ordinary course of business or (d) imposed by law or incurred pursuant to customary reservations or retentions of title (including contractual Liens in favor of sellers and suppliers of goods) incurred in the ordinary course of business;	
 
(37)	Liens in respect of cash collateralization of letters of credit;	
 
(38)	(a) ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries are located, (b) deposits of cash with the owner or lessor of premises leased and operated by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business and (c) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole;	
 
(39)	Liens deemed to exist in connection with Permitted Investments in repurchase agreements and reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts maintained in the ordinary course of business and not for speculative purposes;	
 
(40)	the modification, replacement, renewal or extension of any Lien permitted by this Section  6.02 ; provided that the Lien does not extend to any additional property other than property that is affixed or incorporated into the property covered by such Lien and replacements, improvements, proceeds and products thereof; provided , further that the modification, replacement, renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section  6.01 ;	
 
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(41)	Liens securing Permitted Refinancing Indebtedness (but without reloading any dollar or Equivalent Percentage based basket); provided that:	
 
 	(i)	such Indebtedness being Refinanced was permitted by Section 6.01 and was secured by a Lien permitted by this Section 6.02,	
 
 	(ii)	such Permitted Refinancing Indebtedness is permitted by Section 6.01, and	
 
 	(iii)	the Lien does not extend to any additional property other than property that is affixed or incorporated into the property covered by such Lien and replacements, improvements, proceeds and products thereof, and	
 
(42)	Liens securing amounts owing to any Qualified Counterparty (as defined in the Term Loan Credit Agreement) under any Specified Hedge Agreement (as defined in the Term Loan Credit Agreement), which amounts are secured under the Term Loan Documents; provided that, in each case, the applicable Liens are subject to the Closing Date Intercreditor Agreement or other Intercreditor Agreement substantially consistent with and no less favorable to the Lenders in any material respect than the Closing Date Intercreditor Agreement as determined in good faith by a Responsible Officer of the Borrower.	
For purposes of determining compliance with this Section 6.02, in the event that any Lien (or any portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may, in its sole discretion, at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such Lien (or any portion thereof) in any manner that complies with this covenant on the date such Lien is incurred or such later time, as applicable; provided that all Liens created pursuant to the Loan Documents will be deemed to have been incurred in reliance on Section 6.02(1) above and shall not be permitted to be reclassified pursuant to this paragraph.
SECTION 6.03 [Reserved] .
SECTION 6.04 Investments, Loans and Advances . Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make any loans or advances to or Guarantees of the obligations of, or make any investment or any other interest in (in each case, excluding any (i) Short Term Advances and (ii) acquisitions of or licenses under intellectual property or related tangible assets used or useful in a business permitted under Section 6.09) (each, a “ Investment ”), any other Person, except the following (collectively, “ Permitted Investments ”):
 
(1)	the Transactions (including payment of the purchase consideration under the Acquisition Agreement);	
 
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(2)	(a) payroll advances in the ordinary course of business and (b) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary	
 
 	(i)	for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes,	
 
 	(ii)	in connection with such Person’s purchase of Equity Interests of the Borrower (or any Parent Entity); provided that, to the extent such loans or advances are made in cash, the amount of such loans and advances used to acquire such Equity Interests shall be contributed to the Borrower in cash, and	
 
 	(iii)	for any other purpose; provided that the aggregate principal amount outstanding under this clause (iii) shall not exceed the greater of (A) $20.0 million and (B) an amount equal to the Equivalent Percentage of the amount set forth in clause (A) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Investment;	
 
(3)	Investments in Joint Ventures, Unrestricted Subsidiaries or Similar Businesses that do not exceed in the aggregate at any time outstanding the greater of (i) $200 million and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Investment;	
 
(4)	Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;	
 
(5)	Investments of any Person that becomes a Restricted Subsidiary on or after the date hereof (or of a Person merged, consolidated or amalgamated with or into a Restricted Subsidiary); provided that any such Investment (a) exists at the time such person becomes (or merges, consolidates or amalgamates with or into) a Restricted Subsidiary and (b) is not made in anticipation of such Person becoming a Restricted Subsidiary (or such merger, consolidation or amalgamation);	
 
(6)	Investments	
 
 	(a)	by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; and	
 
 	(b)	by the Borrower or any Restricted Subsidiary in a Person if, as a result of such Investment, (i) such Person becomes a Restricted Subsidiary or (ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Borrower or any Restricted Subsidiary;	
 
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provided that Investments made after the Closing Date pursuant to this Section  6.04(6) by a Person that is a Loan Party on the date such Investment is made in any Person that on the date of such Investment is not a Loan Party (or does not become a Loan Party as a result thereof) shall not exceed, in the aggregate at any time outstanding, the greater of (i) $155.0 million and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Investment;
 
(7)	[Reserved];	
 
(8)	Cash Equivalents and, to the extent not made for speculative purposes, Investment Grade Securities or Investments that were Cash Equivalents or Investment Grade Securities when made;	
 
(9)	Investments arising out of the receipt by the Borrower or any of the Restricted Subsidiaries of promissory notes and other non-cash consideration in connection with any Disposition permitted under Section 6.06;	
 
(10)	(a) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy, workout, recapitalization or reorganization of, or in settlement of delinquent obligations of, or other disputes with, the issuer of such Investment or an Affiliate thereof and (b) Investments consisting of accounts or notes receivable, security deposits and prepayments and other credits granted or made in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and others, including in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, such account debtors and others, in each case in the ordinary course of business;	
 
(11)	Investments (including debt obligations and Equity Interests) (a) upon a foreclosure with respect to any secured Investments or other transfer of title with respect to any secured Investment in default, (b) in satisfaction of judgments against other Persons and (c) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;	
 
(12)	Hedge Agreements;	
 
(13)	Investments existing on or contractually committed as of the Closing Date and, with respect to each such Investment in an amount in excess of $25.0 million, set forth on Schedule 6.04, and any modification, replacements, refinancings, refunds, extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (13) is not increased at any time above the amount of such Investments existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);	
 
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(14)	Investments consisting of Indebtedness (including, for the avoidance of doubt, Guarantees) permitted under Section 6.01, Permitted Liens, mergers, dissolutions, liquidations and consolidations permitted under Section 6.05, Dispositions permitted under Section 6.06 and Restricted Payments permitted under Section 6.07;	
 
(15)	[Reserved];	
 
(16)	acquisitions of obligations of one or more future, present or former employees, managers, officers, directors, consultants or contractors (or spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Restricted Subsidiaries or any direct or indirect parent thereof, in connection with such employee’s, manager’s, officer’s, director’s, consultant’s or contractor’s acquisition of Equity Interests of the Borrower or any direct or indirect parent thereof, so long as no cash is actually advanced by the Borrower or any Restricted Subsidiary to such Persons in connection with the acquisition of any such obligations;	
 
(17)	Guarantees of operating leases or of other obligations that do not constitute Indebtedness, in each case, entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;	
 
(18)	Investments to the extent that payment for such Investments is made with Equity Interests of the Borrower or any Parent Entity or the proceeds from the issuance thereof;	
 
(19)	the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, or exercise, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Bond Hedge Transaction; the issuance of, entry into, performance of obligations under, or repurchase, redemption, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any related Permitted Warrant Transaction; and the issuance of, entry into performance of obligations under (including any payments of interest), conversion, exercise, repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Convertible Indebtedness, in each case, whether in cash, common Capital Stock of Borrower or any direct or indirect parent of Borrower or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent and whether in whole or in part and including by netting or set-off;	
 
(20)	Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;	
 
(21)	[Reserved];	
 
(22)	advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or any Restricted Subsidiary;	
 
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(23)	Investments, including loans and advances, to any Person so long as the Borrower or any Restricted Subsidiary (as applicable) would otherwise be permitted to make a Restricted Payment in such amount to such Person; provided that the amount of any such Investment will be deemed to be a Restricted Payment under the appropriate clause of Section 6.07 for all purposes of this Agreement;	
 
(24)	Investments consisting of the leasing, subleasing, licensing or sublicensing of Intellectual Property Rights in the ordinary course of business or the contribution of Intellectual Property Rights pursuant to joint marketing arrangements with other Persons;	
 
(25)	Investments (a) consisting of purchases or acquisitions of inventory, supplies, materials, equipment, contract rights or Intellectual Property Rights in each case in the ordinary course of business and (b) made in the ordinary course of business in connection with obtaining, maintaining or renewing client contracts or similar arrangements and loans or advances made to distributors in the ordinary course of business;	
 
(26)	Investments in assets useful in the business of the Borrower or any Restricted Subsidiary made with (or in an amount equal to) any Reinvestment Deferred Amount or Below Threshold Asset Sale Proceeds; provided that if the underlying Asset Sale was with respect to assets of the Borrower or a Subsidiary Loan Party, then such Investment shall be consummated by the Borrower or a Subsidiary Loan Party;	
 
(27)	any Investment in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person, in each case in connection with a Qualified Receivables Financing, including Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Receivables Financing or any related Indebtedness;	
 
(28)	intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries;	
 
(29)	Investments that are made with Excluded Contributions that are Not Otherwise Applied;	
 
(30)	Investments	
 
 	(a)	made in furtherance of collaboration, development, promotion, marketing, supply, research or similar arrangements with respect to pharmaceutical or other therapeutic products, diagnostic products or medical device businesses products, including payments for shared development costs, reimbursements for product development or for patent, regulatory, manufacturing or commercialization expenses, or other payments or Investments paid to a Person in the pharmaceutical industry with a view toward developing the Borrower’s or any Restricted Subsidiary’s business in the ordinary course of business and in a manner consistent with standard business practices;	
 
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 	(b)	constituting (i) any customary upfront milestone, marketing, revenue sharing, royalty, profit sharing or other funding payment in the ordinary course of business to another Person in connection with obtaining a right to receive royalty or other payments in the future, (ii) Exclusive Licenses from a Restricted Subsidiary that is not a Loan Party to a Loan Party of rights to a drug or other biologic or therapeutic products, diagnostic products, delivery technologies, medical devices or biotechnology businesses or (iii) transfers of Intellectual Property Rights (“ Transferred IP ”) to a Specified IP Subsidiary; provided that (x) such transfers do not, individually or in the aggregate, materially impair the Loan Parties’ ability to pay their obligations under the Loan Documents as when due and (y) except as otherwise agreed by the Collateral Agent, prior to such transfer (or at such later date as the Collateral Agent may agree), the Borrower shall pledge (or cause to be pledged) 100% of the issued and outstanding Equity Interests (other than any voting Equity Interests of any non-U.S. Subsidiary or any FSHCO in excess of 65% of the issued and outstanding voting Equity Interests of such non-U.S. Subsidiary or FSHCO) of such Specified IP Subsidiary to the Collateral Agent for the benefit of the Secured Parties under (and in accordance with) the Collateral Agreement; or	
 
 	(c)	consisting of the licensing (or equivalent thereof), acquisition, sale or contribution of Intellectual Property Rights or proprietary materials pursuant to pharmaceutical or therapeutic product licensing, collaboration, development, promotion, marketing, supply, research or similar arrangements with other Persons made in the ordinary course of business or not exceeding at any time outstanding an aggregate principal amount of the greater of (i) $60 million and (ii) an amount equal to the Equivalent Percentage of the amount in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of incurrence;	
 
(31)	Investments; provided that both immediately before such Investment is made and immediately after giving Pro Forma Effect to the making of such Investment, the Payment Conditions are satisfied; and	
 
(32)	Investments that do not exceed the greater of (i) $320.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Investment.	
For purposes of determining compliance with this Section 6.04, (x) the amount of any Investment at any time shall be the amount of cash and the fair market value of other property actually invested (measured at the time made), without adjustment for subsequent changes in the value of such Investment, net of any return, whether a return of capital, interest, dividend or otherwise, with respect to such Investment and (y) in the event that any Investment (or any portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may, in its sole discretion, at the time such Investment is made, divide, classify or reclassify, or at any later time divide, classify or reclassify, such Investment (or any portion thereof) in any manner that complies with this Section 6.04 on the date such Investment is made or such later time, as applicable.
 
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To the extent any Investment in any Person is made in compliance with this Section 6.04 in reliance on a category above that is subject to a Dollar-denominated restriction on the making of Investments and, subsequently, such Person returns to the Borrower, any other Loan Party or, to the extent applicable, any Restricted Subsidiary all or any portion of such Investment (in the form of a dividend, distribution, liquidation or otherwise but excluding intercompany Indebtedness), such return shall be deemed to be credited to the Dollar-denominated category against which the Investment is then charged (but in any event not in an amount that would result in the aggregate Dollar amount able to be invested in reliance on such category to exceed such Dollar-denominated restriction).
The amount set forth in Section 6.07(14) and clause (1)(f) of Section 6.11 (without duplication) may, in lieu of Restricted Payments or prepayments, repayments, redemptions, purchases, defeasances or satisfactions of any Junior Financings, as applicable, be utilized by the Borrower or any Restricted Subsidiary to make or hold any Investments without regards to this Section 6.04.
SECTION 6.05 Fundamental Changes . Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person:
 
(1)	any Restricted Subsidiary may merge or consolidate with the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that	
 
 	(a)	the Borrower will be the continuing or surviving Person, and	
 
 	(b)	such merger or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;	
 
(2)	any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary, liquidate, dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders, taken as a whole;	
 
(3)	any merger the sole purpose of which is to reincorporate or reorganize (i) any U.S. Subsidiary in another jurisdiction in the U.S. or (ii) any Non-U.S. Subsidiary in the U.S. or any other jurisdiction shall be permitted;	
 
(4)	so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that	
 
 	(a)	the Borrower will be the continuing or surviving Person, or	
 
 	(b)	if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “ Successor Borrower ”),	
 
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 	(i)	the Successor Borrower will be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia;	
 
 	(ii)	the Successor Borrower will expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;	
 
 	(iii)	each Guarantor, unless it is party to such merger or consolidation, will have confirmed that its Guarantee of the Obligations pursuant to the Collateral Agreement will apply to, and the Secured Obligations (as defined in the Collateral Agreement) will include, the Successor Borrower’s Obligations; and	
 
 	(iv)	the Borrower will have delivered to the Administrative Agent (A) an officer’s certificate stating that such merger or consolidation complies with this Agreement and (B) an opinion of counsel, including customary organization, due execution, no conflicts and enforceability opinions with respect to the Successor Borrower, in each case to the extent reasonably requested by the Administrative Agent;	
it being agreed that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; and
 
(5)	subject to clauses (1) and (4) above, transactions the purpose of which is to effect a Permitted Investment (other than pursuant to Section 6.04(14)) or a Disposition permitted pursuant to Section 6.06 (other than pursuant to Section 6.06(5) or a Disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries); and	
 
(6)	the Transactions.	
SECTION 6.06 Dispositions . Make any Disposition, except:
 
(1)	Dispositions of obsolete, damaged, worn out, used or surplus property (including for purposes of recycling) in the ordinary course of business or Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;	
 
(2)	Dispositions of inventory and goods held for sale in the ordinary course of business;	
 
(3)	Dispositions of property to the extent that (a) such property is exchanged for credit against the purchase price of similar replacement property or (b) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property; provided that to the extent the property being transferred constitutes Collateral such replacement property shall constitute Collateral;	
 
(4)	Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (a) the transferee thereof must be a Loan Party or (b) to the extent constituting an Investment, such Investment must be a Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04 (other than Section 6.04(14));	
 
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(5)	Dispositions consisting of Investments permitted under Section 6.04 (other than Section 6.04(14)), transactions permitted under Section 6.05 (other than Section 6.05(5)) or Restricted Payments permitted under Section 6.07 (other than Section 6.07(4)) or consisting of Permitted Liens;	
 
(6)	Dispositions of property pursuant to Sale Leaseback Transactions, provided that (i) no Event of Default has occurred and is continuing or would result therefrom (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing) and (ii) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;	
 
(7)	Dispositions of Cash Equivalents (or Investments that were Cash Equivalents when made); provided , that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;	
 
(8)	leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole, provided , that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;	
 
(9)	Dispositions of property subject to any Casualty Event;	
 
(10)	Dispositions; provided that	
 
 	(a)	at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing), no Event of Default has occurred and is continuing or would result therefrom; and	
 
 	(b)	with respect to any Disposition pursuant to this clause (10) for a purchase price in excess of the greater of (i) $25.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided , however , that for the purposes of this clause (b) each of the following will be deemed to be cash,	
 
 	(i)	any liabilities (as shown on the Borrower’s or any Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;	
 
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 	(ii)	any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or any Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition;	
 
 	(iii)	any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause	
 
 	(iii)	that is at that time outstanding, not in excess of the greater of (A) $25.0 million and (B) an amount equal to the Equivalent Percentage of the amount set forth in clause (A) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and	
 
 	(iv)	such Disposition shall be for no less than the fair market value of such property at the time of such Disposition (or, if earlier, the definitive documentation or other Contractual Obligation with respect to such Disposition is entered into by the Borrower or any Restricted Subsidiary (as applicable);	
; provided further that if any such Disposition pursuant to this clause (10) decreases the Borrowing Base by an amount equal to or greater than $25.0 million after giving effect to such Disposition on a Pro Forma Basis, the Borrower shall deliver a pro forma Borrowing Base Certificate prior to the date of such Disposition (or such later date as the Administrative Agent may agree, in its reasonable discretion);
 
(11)	Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements among, the joint venture parties set forth in joint venture or similar agreements or arrangements;	
 
(12)	Dispositions or discounts of accounts receivable and related assets in connection with the collection or compromise thereof;	
 
(13)	Dispositions (including issuances or sales) of Equity Interests in, or Indebtedness owing to, or of other securities of, an Unrestricted Subsidiary;	
 
(14)	Dispositions constituting any exchange of like property (excluding any boot thereon) for use in any business conducted by the Borrower or any of the Restricted Subsidiaries, to the extent allowable under Section 1031 of the Code (or comparable or successor provision); provided that to the extent the property being transferred constitutes Collateral, such replacement property shall constitute Collateral;	
 
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(15)	the unwinding of any Hedge Agreement;	
 
(16)	Dispositions of assets in connection with the closing or sale of a facility, including Dispositions of inventory, fee or leasehold interests in the premises of such facility, equipment and fixtures located at such premises, and the books and records relating to the operations of such facility; provided that as to each and all such sales and closings, (a) no Event of Default shall have occurred and be continuing or shall result therefrom and (b) such Dispositions shall be for no less than fair market value at the time of such Disposition;	
 
(17)	the sale, assignment or other transfer of Securitization Assets to (a) a Receivables Subsidiary in a Qualified Receivables Financing or (b) any other Person in a Qualified Receivables Factoring;	
 
(18)	(i) settlement of litigation concerning Intellectual Property Rights, or (ii) the lease, sublease, license or sublicense of Intellectual Property Rights outside the United States or (iii) the lapse, abandonment, discontinuance of the use or maintenance of any Intellectual Property Rights, in each case of (i), (ii) and (iii), if the Borrower or any Restricted Subsidiary determines in its reasonable business judgment that it would not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;	
 
(19)	Disposition of any property or asset with a fair market value not to exceed either (a) the greater of (i) $10.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, with respect to any transaction or series of related transactions or (b) the greater of (i) $50.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, in the aggregate for all such transactions in any fiscal year;	
 
(20)	Disposition of assets acquired in a Permitted Investment that the Borrower determines will not be used or useful in the business of the Borrower and its Restricted Subsidiaries;	
 
(21)	Dispositions of pipeline, marketed or other assets required by regulatory authorities in connection with the Transactions, any Permitted Acquisition or other investment permitted hereunder;	
 
(22)	any Disposition(s) in connection with licensing of Intellectual Property Rights to any Non-Loan Party Restricted Subsidiary or Non-Loan Party Restricted Subsidiaries in connection with bona fide tax planning purposes as determined in good faith by the Borrower; provided , that the Collateral and the Lenders are not adversely affected in any material respect by such Disposition(s);	
 
(23)	Dispositions, including leases, subleases, licenses or sublicenses, of Products in Development in jurisdictions outside the United States; provided , that (a) such disposition does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole and (b) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;	
 
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(24)	the Transactions; and	
 
(25)	the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, or exercise, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Bond Hedge Transaction; the issuance of, entry into, performance of obligations under, or repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any related Permitted Warrant Transaction; and the issuance of, entry into performance of obligations under (including any payments of interest), conversion, exercise, repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Convertible Indebtedness, in each case, whether in cash, common Capital Stock of Borrower or any direct or indirect parent of Borrower or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent and whether in whole or in part and including by netting or set-off.	
To the extent any Collateral is Disposed of as expressly permitted (or not prohibited) by this Section  6.05 to any Person other than a Loan Party, such Collateral will be Disposed of free and clear of the Liens created by the Loan Documents, and, without limiting, and subject to, the provisions of Section 9.11, the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower or deemed appropriate in order to evidence or effect the foregoing.
SECTION 6.07 Restricted Payments . Declare or make, directly or indirectly, any Restricted Payment, other than the declaration or making of the following:
 
(1)	Restricted Payments to the Borrower or any Restricted Subsidiary (or, in the case of any non-Wholly Owned Restricted Subsidiary, to the Borrower, any Restricted Subsidiary and each other owner of Equity Interests of such non-Wholly Owned Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary) according to their relative ownership interests);	
 
(2)	the declaration and making of any Restricted Payments payable solely in the form of Equity Interests (other than Disqualified Stock) of the Borrower;	
 
(3)	Restricted Payments to consummate the Transactions (including payments in respect of dissenting shares, which, for the avoidance of doubt, may be made after the Closing Date), to pay any amounts pursuant to the Acquisition Agreement or the Specified Tender Offer;	
 
(4)	to the extent constituting a Restricted Payment or Restricted Payments, mergers, dissolutions, liquidations and consolidations permitted under Section 6.05 (other than a merger or consolidation involving the Borrower) or transactions permitted under Section 6.08 (other than Section 6.08(9));	
 
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(5)	repurchases of Equity Interests (a) deemed to occur upon exercise of options, warrants or similar rights if such Equity Interests represent a portion of the exercise price of such options or warrants or similar rights or (b) in consideration of withholding or similar taxes payable by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the exercise of stock options or the vesting of any equity awards;	
 
(6)	Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities) (or to allow any direct or indirect parent entity to purchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities)) held directly or indirectly by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any Parent Entity upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any management, employee or director equity plan, management, employee or director stock option or profits interest plan or any other management, employee or director benefit plan or other agreement or arrangement (including any separation, stock subscription, shareholder, partnership or similar agreement) in an aggregate amount after the Closing Date, together with the aggregate amount of loans and advances to any Parent Entity made pursuant to Section 6.04(23) in lieu of Restricted Payments permitted by this clause (6), not to exceed $25 million in any fiscal year with any unused amounts in any fiscal year being carried over to succeeding fiscal years; provided that such amount in any fiscal year may be increased by,	
 
 	(a)	the amount of net proceeds of any key man life insurance policies received by the Borrower or any Restricted Subsidiary after the Closing Date;	
 
 	(b)	to the extent contributed in cash to the common equity of the Borrower and Not Otherwise Applied, the proceeds from the sale of Equity Interests of the Borrower or any direct or indirect parent thereof (other than Disqualified Stock, Excluded Contributions or Cure Amounts), in each case to any future, present or former employee, manager, officer director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof that occurs after the Closing Date; and	
 
 	(c)	the amount of any cash bonuses or other compensation otherwise payable to any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower or any of its Restricted Subsidiaries or any Parent Entity that are foregone in return for the receipt of Equity Interests of the Borrower or any of its Restricted Subsidiaries or any direct or indirect parent thereof;	
 
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(7)	Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire (or permit any direct or indirect parent entity to acquire) Equity Interests of the Borrower or any direct or indirect parent thereof in an aggregate amount per fiscal year not to exceed the greater of (a) $25.0 million and (b) an amount equal to the Equivalent Percentage of the amount set forth in clause (a) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Restricted Payment;	
 
(8)	Restricted Payments the proceeds of which will be used to pay or finance (or permit any Parent Entity to pay or finance):	
 
 	(a)	distributions made pursuant to Section 4.01(b) of the LLC Agreement;	
 
 	(b)	operating, overhead, legal, accounting and other professional fees costs and expenses (including directors’ fees and expenses and Public Company Costs) and other ordinary course overhead costs and operational expenses (including administrative, legal, accounting, filing and similar expenses provided by third parties), in each case to the extent related to any such Parent Entity’s separate existence as a holding company or attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;	
 
 	(c)	franchise taxes and other fees, taxes and expenses in connection with (i) the ownership of the Borrower or any Restricted Subsidiary or (ii) the maintenance of the Borrower’s or any such parent entity’s corporate or legal existence;	
 
 	(d)	to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted under Sections 6.08(3), (5), (7), (16), (17), (19) and (21), in each case to the extent such payments are due at the time of such Restricted Payment;	
 
 	(e)	any Permitted Investment; provided that (i) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (ii) the Borrower will, immediately following the closing thereof, cause (A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary (which shall be a Restricted Subsidiary to the extent required by Section  6.04 ) or (B) the merger (to the extent permitted in Section  6.05 ) of the Person formed or acquired with or into the Borrower or a Subsidiary (which shall be a Restricted Subsidiary to the extent required by Section  6.04 ) in order to consummate such Investment;	
 
 	(f)	costs, fees and expenses related to any equity or debt offering expressly permitted by this Agreement or any Permitted Investment, whether or not consummated; and	
 
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 	(g)	(i) customary salary, bonus and other benefits payable to future, present or former employees, managers, officers, directors, consultants or contractors (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (ii) payments permitted under Sections 6.08(7);	
 
(9)	Restricted Payments to pay (or permit any direct or indirect parent entity to pay) cash in lieu of the issuance of fractional Equity Interests in connection with the exercise of warrants, upon the conversion or exchange of Equity Interests of any such Person, in connection with any merger, consolidation, amalgamation or other business combination, or in connection with any dividend, distribution, split or combination of Equity Interests or any Permitted Investment;	
 
(10)	[Reserved];	
 
(11)	the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Borrower) of Equity Interests (other than Disqualified Stock) of the Borrower or any Parent Entity or from the substantially concurrent contribution of common equity capital to the Borrower, in each case that are Not Otherwise Applied, other than (a) Excluded Contributions and (b) Cure Amounts;	
 
(12)	Restricted Payments that are made with Excluded Contributions that are Not Otherwise Applied;	
 
(13)	Restricted Payments of Investments in one or more Unrestricted Subsidiaries;	
 
(14)	Restricted Payments (the proceeds of which may be utilized by any Parent Entity) in an aggregate amount not to exceed, when taken together with any prepayments, repayments, redemptions, purchases, defeasances or satisfactions made under clause (1)(f) of Section  6.11, the greater of (i) $125.0 million and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Restricted Payment; provided , in each case, that no Event of Default shall have occurred and be continuing either immediately before, or after, giving Pro Forma effect to, such Restricted Payment;	
 
(15)	Restricted Payments; provided that both immediately prior to and after giving Pro Forma Effect to such Restricted Payment, the RP Payment Conditions are satisfied; and	
 
(16)	the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, or exercise, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Bond Hedge Transaction; the issuance of, entry into, performance of obligations under, or repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the	
 
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 	satisfaction of any condition that would permit or require any of the foregoing, any related Permitted Warrant Transaction; and the issuance of, entry into performance of obligations under (including any payments of interest), conversion, exercise, repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Convertible Indebtedness, in each case, whether in cash, common Capital Stock of Borrower or any direct or indirect parent of Borrower or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent and whether in whole or in part and including by netting or set-off.	
The amount set forth in Section 6.07(14) may (without duplication), in lieu of Restricted Payments, be utilized by the Borrower or any Restricted Subsidiary to (i) make or hold any Investments without regards to Section 6.04 or (ii) prepay, repay redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof any Junior Financing without regards to Section 6.11.
SECTION 6.08 Transactions with Affiliates . Engage in any transaction with any Affiliate of the Borrower, except that this Section 6.08 will not prohibit:
 
(1)	any transactions between or among the Borrower or any of the Restricted Subsidiaries or any Person that becomes a Restricted Subsidiary as a result of such transaction;	
 
(2)	any transactions on terms substantially as favorable to the Borrower or such Restricted Subsidiary (as applicable) as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate (as determined by the Borrower in good faith);	
 
(3)	the Transactions (including the issuance or conversion of Equity Interests in connection therewith) and the payment of fees and expenses (including the Transaction Costs) related to the Transactions;	
 
(4)	the issuance, transfer or conversion of Equity Interests (other than Disqualified Stock) of the Borrower or any Parent Entity not constituting a Change in Control;	
 
(5)	employment and severance arrangements and confidentiality agreements among the Borrower, any of its Subsidiaries or any direct or indirect parent thereof and any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof in the ordinary course of business and transactions pursuant to equity plans, stock option or profits interest plan or any other equity or benefit plan or other similar agreement or arrangement (including to the extent set forth in any separation, stock subscription, shareholder, partnership or similar agreement);	
 
(6)	the licensing of Intellectual Property Rights in the ordinary course of business to permit the commercial exploitation of Intellectual Property Rights between or among the Borrower, its Affiliates or its Restricted Subsidiaries;	
 
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(7)	the payment of fees, reasonable out-of-pocket costs and expenses to, and indemnities provided to or on behalf of, any officers, directors, managers, employees, consultants or contractors of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or any such parent’s separate existence;	
 
(8)	any other transaction, agreement, instrument or arrangement as in effect as of the Closing Date and, with respect to each such transaction, agreement, instrument or arrangement involving aggregate payments or consideration in excess of $25.0 million, set forth on Schedule 6.08, or any amendment thereto (so long as any such amendment is not materially adverse to the Lenders, taken as a whole, as compared to the applicable transaction, agreement, instrument or arrangement as in effect on the Closing Date);	
 
(9)	any Restricted Payments permitted under Section 6.07, transactions permitted under Sections 6.05 and Investments permitted under Section 6.04;	
 
(10)	(a) the Tax Receivable Agreement or transactions thereunder or (b) payments by the Borrower, any Subsidiary or any direct or indirect parent thereof pursuant to reasonable tax sharing arrangements between or among such Persons;	
 
(11)	any transactions in which the Borrower or any of the Restricted Subsidiaries, as the case may be, delivers to the Administrative Agent a letter from an Independent Financial Advisor stating that such transaction is fair to the Borrower or any such Restricted Subsidiary, as applicable, from a financial point of view or meets the requirements of clause (2) of this Section  6.08 (without giving effect to the parenthetical phrase at the end thereof);	
 
(12)	any transaction or series of related transactions with consideration valued (as determined in good faith by the Borrower) at less than the greater of (a) $20.0 million and (b) an amount equal to the Equivalent Percentage of the amount set forth in clause (a) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of consummating such transaction(s);	
 
(13)	investments by the Investors in securities of the Borrower or any Parent Entity or Indebtedness of the Borrower, any Parent Entity or any of the Restricted Subsidiaries so long as (a) the investment is being offered generally to other investors on the same or more favorable terms and (b) any such investment constitutes less than 5.0% of the proposed or outstanding issue amount of such class of securities; provided , that any investments in debt securities by any Debt Fund Affiliates shall not be subject to the limitation in this clause (b);	
 
(14)	payments to or from, and transactions with, Joint Ventures (to the extent any such Joint Venture is only an Affiliate as a result of Investments by the Borrower and the Restricted Subsidiaries in such Joint Venture);	
 
(15)	transactions between or among the Borrower or its Subsidiaries effected as part of any Qualified Receivables Transaction permitted hereunder;	
 
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(16)	the payment of reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to shareholders of the Borrower or any Parent Entity pursuant to the stockholders agreement or the registration and participation rights agreement entered into on the Closing Date in connection therewith;	
 
(17)	the payment of any dividend or distribution or consummation of any redemption within sixty (60) days after the date of declaration thereof or the giving of a redemption notice related thereto, if at the date of declaration or notice such payment would have complied with the provisions of this Agreement;	
 
(18)	transactions between or among the Borrower, any of its Restricted Subsidiaries or any direct or indirect parent thereof and any Person, a director of which Person is also a director of the Borrower or any Parent Entity of the Borrower; provided , however , that such director abstains from voting as a director of the Borrower or such Parent Entity, as the case may be, on any matter involving such other Person and such Person is not an Affiliate of the Borrower for any reason other than such director’s acting in such capacity;	
 
(19)	payments, loans (or cancellation of loans) or advances to any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) that are approved in good faith by a majority of the Disinterested Directors of the Borrower, any of its applicable Restricted Subsidiaries or any applicable direct or indirect parent of the foregoing;	
 
(20)	any purchase by any Parent Entity of the Equity Interests of the Borrower and the issuance, sale or transfer of Equity Interests of the Borrower to any Parent Entity and capital contributions by any Parent Entity to the Borrower (and payment of reasonable out-of-pocket expenses incurred in connection therewith);	
 
(21)	the existence of, or the performance by the Borrower or any of its Subsidiaries of its obligations under the terms of, any customary registration rights agreement to which such Person or any Parent Entity is a party or becomes a party in the future; and	
 
(22)	transactions approved by a majority of the Disinterested Directors of the Borrower or any applicable Parent Entity.	
SECTION 6.09 Business of the Borrower and its Subsidiaries . Engage in any material line of business substantially different from those lines of business conducted or proposed to be conducted by the Borrower and its Restricted Subsidiaries on the Closing Date (after giving effect to the Transactions) and any business that is similar, corollary, ancillary, incidental or complementary or related to, or a reasonable extension, development or expansion of, the businesses conducted or proposed to be conducted by the Borrower and its Restricted Subsidiaries on the Closing Date (after giving effect to the Transactions), including any Similar Business.
 
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SECTION 6.10 Burdensome Agreements . Enter or permit any Material Restricted Subsidiary to enter into any Contractual Obligation (other than the Loan Documents, the Term Loan Documents or the Impax Convertible Notes) that by its terms restricts (I) with respect to any such Material Restricted Subsidiary that is not a Guarantor, Restricted Payments from such Material Restricted Subsidiary to the Borrower or any other Loan Party, as applicable, that is a direct or indirect parent of such Restricted Subsidiary or (II) with respect to the Borrower or any such Material Restricted Subsidiary that is a Loan Party, the granting of Liens by such Material Restricted Subsidiary pursuant to the Security Documents; provided that the foregoing clauses (I) and (II) will not apply to any Contractual Obligations that:
 
(1)	(a) exist on the Closing Date and are to the extent such Contractual Obligation relates to any security with a value exceeding $25.0 million, listed on Schedule 6.10 and (b) to the extent Contractual Obligations permitted by clause (a) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted Refinancing of such Indebtedness so long as (to the extent not otherwise permitted by this Section  6.10 ) such Refinancing does not materially expand the scope of such Contractual Obligation with respect to restrictions described in the preceding clauses (I) or (II);	
 
(2)	are (a) binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary or (b) acquired in connection with a Permitted Investment, so long as, in each case, such Contractual Obligations were not entered into in contemplation of such Person becoming a Restricted Subsidiary or such Permitted Investment, in each case as such Contractual Obligations may be amended, restated, supplemented, modified extended renewed or replaced, so long as such amendment, restatement, supplement, modification, extension, renewal or replacement does not expand in any material respect the scope of any restriction contemplated by this Section 6.10 contained therein;	
 
(3)	represent Indebtedness of a Restricted Subsidiary that is not a Loan Party;	
 
(4)	are customary restrictions and conditions that arise in connection with (a) any Lien (other than Liens on Collateral) permitted by Section 6.02, and relate to the property permitted to be subject to such Lien, or (b) any Disposition pending consummation of such Disposition and solely with respect to the assets (including Equity Interests) subject to such Disposition;	
 
(5)	are customary provisions in joint venture or similar agreements relating to the applicable joint venture;	
 
(6)	are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 6.01, but solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness and the proceeds and products thereof;	
 
(7)	are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto;	
 
(8)	comprise restrictions imposed by any agreement relating to secured Indebtedness permitted under Section 6.01 to the extent that such restrictions apply only to the property or assets securing such Indebtedness;	
 
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(9)	are (a) customary provisions restricting subletting or assignment of any lease governing a leasehold interest or (b) customary net worth provisions contained in Real Property leases entered into by Restricted Subsidiaries, so long as a Responsible Officer of the Borrower has determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the Borrower and the other Restricted Subsidiaries to meet their ongoing obligations;	
 
(10)	are customary provisions restricting assignment of any Contractual Obligation entered into in the ordinary course of business;	
 
(11)	are customary provisions contained in leases or licenses of Intellectual Property Rights and other similar agreements entered into in the ordinary course of business;	
 
(12)	are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;	
 
(13)	arise in connection with cash or other deposits permitted under Section 6.02;	
 
(14)	comprise restrictions in any Indebtedness permitted pursuant to Section 6.01 that are, taken as a whole, in the good faith judgment of the Borrower, no more restrictive with respect to the Borrower or any Restricted Subsidiary than customary market terms for agreements governing Indebtedness of such type or otherwise reasonably acceptable to the Administrative Agent, so long as the Borrower shall have determined in good faith that such restrictions will not affect its obligation or ability to make any payments required hereunder;	
 
(15)	apply by reason of any applicable Law, rule, regulation or order or are required by any Governmental Authority having or purporting to have jurisdiction over the Borrower or any Restricted Subsidiary;	
 
(16)	customary restrictions contained in Indebtedness permitted to be incurred pursuant to Sections 6.01(4) and (11)(a), and any Permitted Refinancing Indebtedness in respect of the foregoing;	
 
(17)	consist of any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) above, so long as such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Borrower, not materially more restrictive with respect to such Lien, dividend and other payment restrictions, taken as a whole, than those contained in the Lien, dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; or	
 
(18)	are encumbrances or restrictions applicable to a Receivables Subsidiary in connection with a Qualified Receivables Financing that, in the good faith determination of the Borrower, are necessary or advisable to effect such Qualified Receivables Financing.	
 
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SECTION 6.11 Limitation on Payments and Modifications of Certain Indebtedness; Amendments of Certain Documents .
 
(1)	Prepayments of Junior Financing . Prepay, repay, redeem, purchase, defease or otherwise satisfy prior to scheduled maturity thereof any Junior Financing, except:	
 
 	(a)	the refinancing thereof with the Net Cash Proceeds of, or in exchange for, any Permitted Refinancing Indebtedness;	
 
 	(b)	the conversion or exchange of any Junior Financing into or for Equity Interests (other than Disqualified Stock) of the Borrower or any Parent Entity;	
 
 	(c)	the prepayment repayment, redemption, purchase, defeasance or satisfaction of any of Indebtedness of the Borrower or any of its Restricted Subsidiaries owed to the Borrower or any of its Restricted Subsidiaries;	
 
 	(d)	the prepayment, repayment, redemption, purchase, defeasance or satisfaction of any Junior Financing with the proceeds of (i) any other Junior Financing or (ii) any Qualified Equity Interests or any cash contribution to the common equity capital of the Borrower after the Closing Date (other than any Cure Amount or Excluded Contribution) that is Not Otherwise Applied; provided that such prepayment, repayment, redemption, purchase, defeasance or satisfaction is made within 60 days after receipt of such proceeds and no Event of Default has occurred and is continuing;	
 
 	(e)	payments or distributions in respect of all or any portion of such Junior Financing with the proceeds contributed directly or indirectly to the Borrower by any Parent Entity from the issuance, sale or exchange by any Parent Entity of Equity Interests (other than Disqualified Stock, Cure Amounts or Excluded Contributions) made within eighteen (18) months prior thereto and Not Otherwise Applied;	
 
 	(f)	prepayments, repayments, redemptions, purchases, defeasances or satisfactions of any Junior Financing in an aggregate amount not to exceed, when taken together with any Restricted Payments made under Section 6.07(14)(a), the greater of (i) $125 million and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such prepayment, repayment, redemption, purchase, defeasance or satisfaction; provided , in each case, that no Event of Default shall have occurred and be continuing or shall result therefrom;	
 
 	(g)	prepayments, repayments, redemptions, purchases, defeasances or satisfactions, of any Junior Financing so long as immediately prior to and after giving Pro Forma Effect to such prepayment, repayment, redemption, purchase, defeasance or satisfaction, the RP Payment Conditions are satisfied; or	
 
 	(h)	any Specified Tender Offer;	
 
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provided , however , that each of the following shall be permitted: payments of regularly scheduled principal and interest (including default interest and any “AHYDO” catch-up payment) on Junior Financing, fees related to Junior Financing, indemnity and expense reimbursement payments in connection with Junior Financing, and mandatory prepayments, mandatory redemptions and mandatory purchases of any Junior Financing (including any principal, premium or interest with respect thereto), in each case pursuant to the terms of the applicable Junior Financing Documentation.
The amount set forth in clause (1)(f) of this Section 6.11 (without duplication) may be, in lieu of prepayments, repayments, redemptions, purchases, defeasances or satisfactions of any Junior Financing, be utilized by the Borrower or any Restricted Subsidiary to (i) make or hold any Investments without regards to Section 6.04 or (ii) make Restricted Payments without regards to Section 6.07.
 
(2)	Amendments to Junior Financing Documentation . Amend, modify or change in any manner without the consent of the Administrative Agent, any Junior Financing Documentation in a manner that is materially adverse to the interests of the Lenders (taken as a whole), in each case other than as a result of a Permitted Refinancing thereof; provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to any such amendment, modification or change, together with a reasonably detailed description of the material terms and conditions of such amendment, modification or change or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (2) shall be conclusive evidence that such amendment, modification or change satisfies this clause (2) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees); or	
 
(3)	Amendments to Organization Documents . Amend, modify or change its certificate or articles of incorporation or formation (including by the filing or modification of any certificate or articles of designation), certificate of formation, limited liability company agreement or by-laws (or the equivalent organizational documents), as applicable, in each case, in any manner materially adverse to the interests of the Lenders (taken as a whole); provided that, in each case, a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to any such amendment, modification or change, together with a reasonably detailed description of the material terms and conditions of such amendment, modification or change or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (3) shall be conclusive evidence that such amendment, modification or change satisfies such requirement unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees).	
 
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SECTION 6.12 Use of Proceeds . The Borrower shall not use, and the Borrower shall procure that its Subsidiaries and its or their respective directors, officers, employees and, to the Borrower’s knowledge, agents shall not use, the proceeds of the Loans (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in or with any Sanctioned Country, or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto
SECTION 6.13 Financial Performance Covenant . Upon the occurrence and during the continuance of a Covenant Trigger Event, the Borrower will maintain a Fixed Charge Coverage Ratio of not less than 1.0 to 1.0 measured at the time of occurrence of such Covenant Trigger Event (as of the last day of the Test Period ending immediately prior to the date on which such Covenant Trigger Event has commenced), and on the last day of each subsequent Test Period ending during the continuance of such Covenant Trigger Event.
ARTICLE VII
[Reserved]
ARTICLE VIII
Events of Default
SECTION 8.01 Events of Default . In case of the happening of any of the following events (each, an “ Event of Default ”):
 
(1)	any representation or warranty made by the Borrower or any other Loan Party herein or in any other Loan Document or any certificate or document required to be delivered pursuant hereto or thereto proves to have been false or misleading in any material respect when so made; provided that the failure of any Specified Acquisition Agreement Representation to be true and correct will not result in a Default or an Event of Default, unless such failure results in a failure of a condition precedent to the Borrower’s (or its Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement or such failure gives the Borrower (or its Affiliates) the right (taking into account any applicable cure provisions) to terminate its (or their) obligations under the Acquisition Agreement;	
 
(2)	default is made in the payment of any principal of any Loan or the reimbursement of any L/C Disbursement when and as the same becomes due and payable, whether at the due date thereof, at a date fixed for prepayment thereof, by acceleration thereof or otherwise;	
 
(3)	default is made in the payment of any interest on any Loan or in the payment of any fee (other than an amount referred to in clause (2) of this Section 8.01), when and as the same becomes due and payable, and such default continues unremedied for a period of five (5) Business Days;	
 
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(4)	default is made in the due observance or performance by the Borrower or any Restricted Subsidiary of any covenant, condition or agreement contained in (a) Section 5.01(1) (with respect to the Borrower only), 5.05(1) or in Article VI (in each case solely to the extent applicable to such Person), (b) Section 5.11 but only if such default continues unremedied for a period of five (5) Business Days or (c) Section 5.04(9) and such default continues unremedied for a period of five (5) Business Days (or, after the occurrence and during the continuance of an Increased Reporting Period, two (2) Business Days) following notice thereof from the Administrative Agent to the Borrower;	
 
(5)	default is made in the due observance or performance by the Borrower or any Restricted Subsidiary of any covenant, condition or agreement contained in any Loan Document (other than those specified in clauses (1), (2), (3) and (4) of this Section 8.01), in each case solely to the extent applicable to such Person, and such default continues unremedied for a period of 30 days after the earlier of (x) receipt of written notice thereof from the Administrative Agent to the Borrower and (y) the date on which an executive officer of the Borrower becomes aware of such default;	
 
(6)	(a) (i) any event or condition occurs (other than, with respect to Indebtedness under any Hedge Agreement, termination events or equivalent events pursuant to the terms of such Hedge Agreement that do not result from a default thereunder by a Loan Party or Restricted Subsidiary) that (A) results in any Material Indebtedness becoming due prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (ii) the Borrower or any Restricted Subsidiary fails to pay the principal of any Material Indebtedness at the stated final maturity thereof and (b) such event, condition or failure is unremedied and is not waived or cured by the holders of such Indebtedness prior to any acceleration of the Loans pursuant to this Section 8.01; provided that this clause (6) will not apply to any (A) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of all or a portion of the property or assets securing such Indebtedness or (B) any redemption, repurchase, conversion, exercise or settlement (or the occurrence of any event or satisfaction of any condition giving rise to or permitting any of the foregoing) with respect to any Convertible Indebtedness pursuant to its terms unless such redemption, repurchase, conversion or settlement (or occurrence, giving rise to, or permitting any of the foregoing) results from a default thereunder or an event of the type that constitutes an Event of Default thereunder;	
 
(7)	a Change in Control occurs;	
 
(8)	an involuntary proceeding is commenced or an involuntary petition is filed in a court of competent jurisdiction seeking:	
 
 	(a)	relief in respect of the Borrower or any of the Material Restricted Subsidiaries, or of a substantial part of the property or assets of the Borrower or any Material Restricted Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal, state or foreign bankruptcy, insolvency, receivership or similar law;	
 
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 	(b)	the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of the Material Restricted Subsidiaries or for a substantial part of the property or assets of the Borrower or any Restricted Subsidiary; or	
 
 	(c)	the winding up or liquidation of the Borrower or any Material Restricted Subsidiary (except, in the case of any Material Restricted Subsidiary, in a transaction permitted by Section 6.05) and such proceeding or petition continues undismissed for 60 days or an order or decree approving or ordering any of the foregoing is entered;	
 
(9)	the Borrower or any Material Restricted Subsidiary:	
 
 	(a)	voluntarily commences any proceeding or files any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal, state or foreign bankruptcy, insolvency, receivership or similar law;	
 
 	(b)	consents to the institution of, or fails to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (8) of this Section 8.01;	
 
 	(c)	applies for or consents to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of the Material Restricted Subsidiaries or for a substantial part of the property or assets of the Borrower or any Material Restricted Subsidiary;	
 
 	(d)	files an answer admitting the material allegations of a petition filed against it in any such proceeding;	
 
 	(e)	makes a general assignment for the benefit of creditors; or	
 
 	(f)	becomes unable or admits in writing its inability or fails generally to pay its debts as they become due;	
 
(10)	the Borrower or any Restricted Subsidiary fails to pay one or more final judgments for the payment of money aggregating in excess of the Threshold Amount (to the extent not covered by insurance or other indemnity obligation), which such judgment(s) are not satisfied, vacated, discharged, stayed, bonded pending appeal or effectively waived or stayed for a period of 60 consecutive days;	
 
(11)	an ERISA Event occurs with respect to any Plan or Multiemployer Plan, and such ERISA Event, together with all other such ERISA Events, if any, is reasonably expected to have a Material Adverse Effect; or	
 
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(12)	(a) any material provision of the Loan Documents, taken as a whole, at any time after their execution and delivery and prior the Payment In Full of the Obligations, for any reason other than as expressly permitted under a Loan Document (including as a result of a transaction permitted under Section 6.05), ceases to be, or is asserted in writing by the Borrower or any Restricted Subsidiary not to be, for any reason, a legal, valid and binding obligation of any party thereto, (b) any security interest purported to be created by any Security Document and to extend to assets that are included in the Borrowing Base or otherwise are not immaterial to the Borrower and the Restricted Subsidiaries, when taken as a whole, on a consolidated basis ceases to be, or is asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected security interest in the Collateral covered thereby, except to the extent that any such loss of validity or perfection results from (i) the limitations of foreign laws, rules and regulations or the application thereof, or (ii) the failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under a Security Document or to file Uniform Commercial Code continuation statements or take any other action and except to the extent that such loss is covered by a lender’s title insurance policy and the Collateral Agent is reasonably satisfied with the credit of such insurer or (c) the Guarantees pursuant to the Security Documents by any Material Restricted Subsidiary Guarantor of any of the Obligations cease to be in full force and effect (other than in accordance with the terms hereof or thereof, including the release of such Person as provided for under the Loan Documents and the Payment in Full of the Obligations) or are asserted in writing by the Borrower or any other Subsidiary Loan Party not to be in effect or not to be legal, valid and binding obligations, except in the cases of clauses (b) and (c), in connection with an Asset Sale permitted by this Agreement;	
then, (i) upon the occurrence of any such Event of Default (other than an Event of Default with respect to the Borrower described in clause (8) or (9) of this Section 8.01) and at any time thereafter during the continuance of such Event of Default, the Administrative Agent, at the request of the Required Lenders, will, by notice to the Borrower, take any or all of the following actions, at the same or different times: (A) terminate forthwith the Commitments, (B) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, will become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding; (C) if the Loans have been declared due and payable pursuant to clause (B) above, demand cash collateral pursuant to Section 2.05(11); and (D) exercise all rights and remedies granted to it under any Loan Document and all of its rights under any other applicable law or in equity, and (ii) in any event with respect to the Borrower described in clause (8) or (9) of this Section 8.01, the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, will automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for cash collateral to the full extent permitted under Section 2.05(11), without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding; provided that,
 
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notwithstanding any of the foregoing, (w) upon the occurrence of and during the continuance of an Event of Default under Section 8.01(2) or (3) with respect to the Refinancing Term Loans, the Administrative Agent, at the request of the Required Term Lenders, will, by notice to the Borrower, declare the Refinancing Term Loans then outstanding to be forthwith due and payable in whole or in part pursuant to the foregoing clause (B), (x) upon the acceleration of the Revolving Loans hereunder, the principal of the Refinancing Term Loans then outstanding, together with accrued interest thereon and all other Obligations accrued in respect thereof, shall be automatically due and payable in whole immediately and all Refinancing Term Loan Commitments shall automatically terminate, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, (y) upon the acceleration of the Refinancing Term Loans hereunder, the principal of the Revolving Loans then outstanding, together with accrued interest thereon and all other Obligations accrued in respect thereof, shall be automatically due and payable in whole immediately and all Commitments shall automatically terminate, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower and (z) except as expressly set forth herein (including, without limitation, in the FILO Intercreditor Provisions), no Refinancing Term Lender shall have any right to affirmatively exercise any remedy with respect to the Collateral upon the occurrence and during the continuance of an Event of Default until the Discharge of ABL Revolving Claims.
SECTION 8.02 Right to Cure . Notwithstanding anything to the contrary contained in Section 8.01, in the event that the Borrower fails (or, but for the operation of this Section 8.02, would fail) to comply with the requirements of the Financial Performance Covenant, until the expiration of the tenth Business Day subsequent to the date the Required Financial Statements are required to be delivered pursuant to Section 5.04(1) or (2) for the applicable fiscal quarter, the Borrower shall have the right to issue Permitted Cure Securities for cash ( provided that, if such Permitted Cure Securities are not in the form of common equity, the terms of such Permitted Cure Securities must be reasonably acceptable to the Administrative Agent) or otherwise receive cash contributions to the capital of the Borrower, and, in each case, to contribute any such cash to the capital of the Borrower (collectively, the “ Cure Right ”) and, upon the receipt by the Borrower of such cash (the “ Cure Amount ”) pursuant to the exercise by the Borrower of such Cure Right, the Financial Performance Covenant shall be recalculated giving effect to a pro forma adjustment by which Consolidated EBITDA shall be increased with respect to such applicable fiscal quarter and any Test Period that contains such quarter, solely for the purpose of measuring the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal to the Cure Amount. The resulting increase to Consolidated EBITDA from the application of a Cure Amount shall not result in any adjustment to Consolidated EBITDA or any other financial definition for any purpose under this Agreement other than for purposes of calculating the Financial Performance Covenant and there shall be no pro forma or other reduction in Indebtedness from the application of a Cure Amount for purposes of calculating the Financial Performance Covenant unless such Cure Amount is actually applied to prepay Indebtedness. In each four fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is not exercised and the Cure Right may not be exercised more than five times during the term of this Agreement and, for purposes of this Section 8.02, the Cure Amount shall be no greater than the amount required for purposes of complying with the Financial Performance Covenant. If, after giving effect to the adjustments in this Section 8.02, the Borrower shall then be in compliance with the requirements of the
 
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Financial Performance Covenant, the Borrower shall be deemed to have satisfied the requirements of the Financial Performance Covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach of the Financial Performance Covenant and any related default that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding the foregoing, after the occurrence of an Event of Default under the Financial Performance Covenant, the Borrower shall not be able to request the making of any Loan or the issuance or renewal of any Letter of Credit until receipt by the Borrower of the Cure Amount.
ARTICLE IX
The Agents
SECTION 9.01 Appointment .
 
(1)	Each Lender (in its capacities as a Lender and on behalf of itself and its Affiliates as potential counterparties to Hedge Agreements) and each Issuing Bank hereby irrevocably designates and appoints the entity named as Administrative Agent in the heading of this Agreement and its permitted successors and assigns to serve as administrative agent under this Agreement and the other Loan Documents, as applicable, including as the Collateral Agent for such Lender and the other applicable Secured Parties under the applicable Security Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacities, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are delegated to the Administrative Agent under this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. Without limiting the foregoing, each Lender and each Issuing Bank authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents.	
 
(2)	Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent; additionally, each Lender and each Issuing Bank agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and transactions contemplated hereby. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the Internal Revenue Service or any other Governmental	
 
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 	Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. For the avoidance of doubt, the Borrower shall not have liability for the actions of the Administrative Agent pursuant to the immediately preceding sentence.	
 
(3)	In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, (a) the Administrative Agent (irrespective of whether the principal of any Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of any or all of the Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Agents and any Subagents allowed in such judicial proceeding and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and (b) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under the Loan Documents. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding.	
SECTION 9.02 Delegation of Duties . The Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of the agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent may also from time to time, when the Administrative Agent deems it to be necessary or desirable, appoint one or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a “ Subagent ”)
 
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with respect to all or any part of the Collateral; provided that no such Subagent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Administrative Agent. Should any instrument in writing from the Borrower or any other Loan Party be reasonably required by any Subagent so appointed by the Administrative Agent to more fully or certainly vest in and confirm to such Subagent such rights, powers, privileges and duties, the Borrower shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon reasonable written request by the Administrative Agent. If any Subagent, or successor thereto, shall die, become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Subagent, to the extent permitted by law, shall automatically vest in and be exercised by the Administrative Agent until the appointment of a new Subagent. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent, attorney-in-fact or Subagent that it selects in accordance with the foregoing provisions of this Section 9.02 in the absence of the Administrative Agent’s gross negligence or willful misconduct.
SECTION 9.03 Exculpatory Provisions . None of the Administrative Agent, its Affiliates or any of their respective officers, directors, employees, agents or attorneys-in-fact shall be (1) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence or willful misconduct) or (2) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, and (b) the Administrative Agent shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into:
 
 	(i)	any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document;	
 
 	(ii)	the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith;	
 
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 	(iii)	the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default;	
 
 	(iv)	the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents;	
 
 	(v)	the value or the sufficiency of any Collateral; or	
 
 	(vi)	the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.	
SECTION 9.04 Reliance by Administrative Agent . The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) or conversation believed in good faith by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed in good faith by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to any Credit Event, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or the Issuing Bank prior to such Borrowing. The Administrative Agent may consult with legal counsel (including counsel to the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all or other Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all or other Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.
 
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SECTION 9.05 Notice of Default . The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all or other Lenders); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.
SECTION 9.06 Non-Reliance on Agents and Other Lenders . Each Lender expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates have made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
SECTION 9.07 Indemnification . The Lenders agree to indemnify each Agent and each Issuing Bank, in each case in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), in the amount of its pro rata share (based on its aggregate Revolving Facility Credit Exposure and, in the case of the indemnification of each Agent, unused Commitments hereunder; provided that the aggregate principal amount of L/C Disbursements owing to any Issuing Bank shall be considered to be owed to the Revolving Lenders ratably in accordance with their respective Revolving Facility Credit Exposure) (determined at the time such indemnity is sought), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent or such Issuing Bank in any way relating to or arising out of the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or
 
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the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent or such Issuing Bank under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the Administrative Agent’s or such Issuing Bank’s gross negligence or willful misconduct. The failure of any Lender to reimburse the Administrative Agent or any Issuing Bank, as the case may be, promptly upon demand for its ratable share of any amount required to be paid by the Lenders to the Administrative Agent or such Issuing Bank, as the case may be, as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse the Administrative Agent or such Issuing Bank, as the case may be, for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse the Administrative Agent or such Issuing Bank, as the case may be, for such other Lender’s ratable share of such amount. The agreements in this Section 9.07 shall survive the payment of the Loans and all other amounts payable hereunder.
SECTION 9.08 Agent in Its Individual Capacity . Each Agent and its Affiliates may make loans to, accept deposits from, and generally engage in any kind of business with any Loan Party as though the Administrative Agent were not the Administrative Agent. With respect to its Loans made or renewed by it and with respect to any Letter of Credit issued, or Letter of Credit participated in by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include each Agent in its individual capacity.
SECTION 9.09 Successor Agent . The Administrative Agent may resign as Administrative Agent upon thirty days’ notice to the Lenders and the Borrower. Any such resignation by the Administrative Agent hereunder shall also constitute its resignation as an Issuing Bank, in which case the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit hereunder and (y) shall maintain all of its rights as Issuing Bank with respect to any Letters of Credit issued by it prior to the date of such resignation. If the Administrative Agent resigns as the Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless a Specified Event of Default shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the reference to the resigning Administrative Agent means such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If no successor agent has accepted appointment as Administrative Agent by the date that is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring
 
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Administrative Agent’s resignation will nevertheless thereupon become effective, and the Required Lenders will thereafter perform all the duties of such Administrative Agent hereunder or under any other Loan Document until such time, if any, as the Required Lenders and the Issuing Banks appoint a successor Administrative Agent which shall (unless a Specified Event of Default shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed). After any retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 9.09 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.
SECTION 9.10 Arrangers; Co-Syndication Agents; Co-Documentation Agents . None of the Arrangers, Co-Syndication Agents or Co-Documentation Agents will have any duties, responsibilities or liabilities hereunder in their respective capacities as such.
SECTION 9.11 Collateral and Guaranty Matters .
 
(1)	Each of the Lenders (including in its capacity as a potential Qualified Counterparty or Cash Management Bank) and the other Secured Parties irrevocably appoints and authorizes the Administrative Agent and the Collateral Agent to be the agent for and representative of the Lenders with respect to the Collateral Agreement, the Collateral and the Security Documents, together with such powers and discretion as are reasonably incidental thereto; provided that neither the Administrative Agent nor the Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of any Cash Management Obligations or Obligations with respect to any Specified Hedge Agreement.	
 
(2)	Each Agent, each Lender and each other Secured Party agrees that:	
 
 	(a)	Liens on any property granted to or held by an Agent in favor of any Secured Party under any Loan Document will be automatically released,	
 
 	(i)	upon Payment in Full and the termination of the Commitments;	
 
 	(ii)	at the time the property subject to such Lien is Disposed (or to be Disposed) as part of, or in connection with, any transfer permitted under the Loan Documents to any Person that is not (and is not required to be) a Loan Party,	
 
 	(iii)	if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under the Collateral Agreement pursuant to clause (c) below;	
 
 	(iv)	subject to Section 10.08, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders; or	
 
 	(v)	upon such property becoming an Excluded Asset or Excluded Equity Interest.	
 
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 	(b)	it will release or subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(3);	
 
 	(c)	if any Subsidiary Loan Party ceases to be a Subsidiary in a transaction permitted hereunder, is not a Material Subsidiary or as a result of a transaction permitted hereunder becomes an Excluded Subsidiary (in each case, as certified in writing by a Responsible Officer), and the Borrower notifies the Administrative Agent in writing that it wishes such Guarantor to be released from its obligations under the Collateral Agreement and, upon request of the Administrative Agent or the Collateral Agent, as applicable, provides the Administrative Agent and the Collateral Agent certifications that such Subsidiary Loan Party is not a Material Subsidiary or has become an Excluded Subsidiary (as applicable), it will release (or evidence the release) of (i) such Subsidiary Loan Party from its obligations under the Collateral Agreement and the other Loan Documents and (ii) any Liens granted by such Subsidiary or Liens on the Equity Interests of such Subsidiary; and	
 
 	(d)	the Administrative Agent and the Collateral Agent will exclusively exercise the rights and remedies under the Loan Documents, and neither the Lenders nor any other Secured Party will exercise such rights and remedies (other than the Required Lenders through the Administrative Agent); provided that the foregoing shall not preclude any Lender from exercising any right of set-off in accordance with the provisions of Section 10.06 or enforcing compliance with the provisions set forth in clauses (i) through (vi) of Section 10.08(2) or from exercising rights and remedies (other than the enforcement of Collateral) with respect to any payment default after the occurrence of the Maturity Date with respect to any Term Loans made by it or filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law.	
Each Agent agrees that it will take such action and execute any such documents as may be reasonably requested by the Borrower in connection with any of the foregoing releases or any such subordination. Each of the Collateral Agent and the Administrative Agent shall be entitled to rely exclusively on an officers certificate of the Borrower confirming that such release or subordination (as applicable) is permitted hereunder. Each Lender and each Secured Party irrevocably authorizes each Administrative Agent to take such action and execute any such document and consents to such reliance. No Agent will be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or contained in any certificate prepared or delivered by the Borrower or any Loan Party in connection with the Collateral or compliance with the terms set forth above or in a Loan Document, nor shall any Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
 
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Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under, the Loan Documents. Notwithstanding anything to the contrary set forth herein, any execution and delivery of documents by any Agent pursuant to this Section 9.11 shall be without recourse to or warranty by such Agent and at the Borrower’s expense; and such documents shall be reasonably acceptable to such Agent and the Borrower.
 
(3)	Anything contained in any of the Loan Documents to the contrary notwithstanding, each Agent, each Lender and each Secured Party hereby agree that:	
 
 	(a)	no Lender or other Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Collateral Agreement or any other Loan Document, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Loan Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties in accordance with the terms hereof and thereof, and all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof;	
 
 	(b)	in the event of a foreclosure or similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the U.S. Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the U.S. Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Collateral Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities), shall be entitled, upon instructions from the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Collateral Agent at such sale or other disposition;	
 
 	(c)	no provision of any Loan Documents shall require the creation, perfection or maintenance of pledges of or security interests in, or the obtaining of title insurance or abstracts with respect to, any Excluded Assets, any Excluded Equity Interests and any other particular assets, if and for so long as, in the reasonable judgment of the Collateral Agent, the cost of creating, perfecting or maintaining such pledges or security interests in such other particular assets or obtaining title insurance or abstracts in respect of such other particular assets is excessive in view of the fair market value of such assets or the practical benefit to the Lenders afforded thereby as reasonably determined by a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the ABL Priority Collateral, the Borrower and the ABL Agent);	
 
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 	(d)	the Collateral Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of title insurance and surveys with respect to particular assets (including extensions beyond the Closing Date for the creation or perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that creation or perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents;	
 
 	(e)	no actions required by the Laws of any non-U.S. jurisdiction shall be required in order to create any security interests in any assets or to perfect such security interests (including any intellectual property registered in any non-U.S. jurisdiction) (it being understood that there shall be no security agreements or pledge agreements governed under the Laws of any non-U.S. jurisdiction);	
 
 	(f)	no control agreements shall be required with respect to assets requiring perfection through control agreements or perfection by “control” (as defined in the Uniform Commercial Code); and	
 
 	(g)	the provisions of Section 5.10(4) of this Agreement and Sections 4.01(4) and 4.01(6) of the Collateral Agreement shall supersede any other provision of a Loan Document to the contrary.	
SECTION 9.12 Certain ERISA Matters .
 
(1)	Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, solely for the benefit of, the Administrative Agent, the Arrangers and the Bookrunners and their respective Affiliates (the “Relevant Parties”), and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:	
(a) such Lender is not using “plan assets” of one or more Benefit Plans in connection with the Loans, the Letter of Credit or the Commitments;
(b) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable, and the conditions of such exemptions are satisfied will continue to be satisfied, with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letter of Credit, the Commitments and this Agreement;
 
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(c) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letter of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letter of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied, and the conditions of such exemption are satisfied and will continue to be satisfied, with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letter of Credit, the Commitments and this Agreement; or
(d) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
 
(2)	In addition, (I) unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (II) if such sub-clause (i) is not true with respect to a Lender and such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Relevant Parties, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that:	
(a) none of the Relevant Parties is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, or any of the other Loan Documents);
(b) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21, as amended from time to time) and is a bank, an insurance carrier, a registered investment adviser, a registered broker-dealer or other person that has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), as amended from time to time;
(c) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letter of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies;
(d) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letter of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder; and
 
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(e) no fee or other compensation is being paid directly to any Relevant Party for investment advice (as opposed to other services) in connection with the Loans, the Letter of Credit, the Commitments or this Agreement.
 
(3)	Each of the Administrative Agent, the Lead Arrangers and the Bookrunners hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letter of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letter of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letter of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.	
For purposes of this Section 9.12, the following definitions apply to each of the capitalized terms below:
“ Benefit Plan ” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, to which Section 4975 of the Code applies or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“ PTE ” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
ARTICLE X
Miscellaneous
SECTION 10.01 Notices; Communications .
 
(1)	Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 10.01(2)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or e-mail, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, in each case, as follows:	
 
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 	(a)	if to any Loan Party, the Administrative Agent or any Issuing Bank as of the Closing Date, to the address, facsimile number, e-mail address or telephone number specified for such Person on Schedule 10.01; and	
 
 	(b)	if to any other Lender or Issuing Bank, to the address, facsimile number, e-mail address or telephone number specified in its Administrative Questionnaire.	
 
(2)	Notices and other communications to the Lenders and any Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or any Issuing Bank pursuant to Article II if such Lender or any Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Notices sent by e-mail shall be deemed to have been given when sent and confirmation of transmission received (except that, if not sent during normal business hours for the recipient, such e-mail shall be deemed to have been given at the opening of business on the next Business Day for the recipient).	
 
(3)	Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received. Notices sent by facsimile shall be deemed to have been given when sent and confirmation of transmission received (except that, if not sent during normal business hours for the recipient, such notice shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in Section 10.01(2) shall be effective as provided in such Section 10.01(2).	
 
(4)	Any party hereto may change its address, facsimile number or e-mail address for notices and other communications hereunder by notice to the other parties hereto.	
 
(5)	Documents required to be delivered hereunder may be delivered electronically (including as set forth in Section 10.17) and if so delivered, shall be deemed to have been delivered on the date (a) on which the Borrower posts such documents or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.01 or (b) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that (i) the Borrower shall notify the Administrative Agent (by facsimile or e-mail) of the posting of any such documents and, upon the Administrative Agent’s written request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents and (ii) upon reasonable written	
 
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 	request by the Administrative Agent, the Borrower shall also provide a hard copy to the Administrative Agent of any such document; provided , further , that any documents posted for which a link is provided after normal business hours for the recipient shall be deemed to have been given at the opening of business on the next Business Day. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Loan Parties with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.	
SECTION 10.02 Survival of Agreement . All covenants, agreements, representations and warranties made by the Loan Parties herein, in the other Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and each Issuing Bank and shall survive the making by the Lenders of the Loans, the execution and delivery of the Loan Documents and the issuance of the Letters of Credit, regardless of any investigation made by such Persons or on their behalf, and shall continue in full force and effect until the Obligations are Paid in Full, the Commitments are terminated and any outstanding Letters of Credit are expired, terminated or cash collateralized on terms reasonably satisfactory to the applicable Issuing Bank(s) in accordance herewith. Without prejudice to the survival of any other agreements contained herein, indemnification and reimbursement obligations contained herein (including pursuant to Sections 2.15, 2.17 and 10.05) shall survive the payment in full of the principal and interest hereunder, the expiration of the Letters of Credit and the termination of the Commitments or this Agreement.
SECTION 10.03 Binding Effect . This Agreement shall become effective when it has been executed by the Borrower and the Administrative Agent and when the Administrative Agent has received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the Borrower, the Subsidiary Loan Parties, each Agent, each Issuing Bank, each Lender and their respective permitted successors and assigns.
SECTION 10.04 Successors and Assigns .
 
(1)	The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (a) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void), except to any Successor Borrower pursuant to Section 6.05 and (b) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 10.04. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (3) of this Section 10.04) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, any Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement or the other Loan Documents.	
 
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(2)	(a) Subject to the conditions set forth in paragraph (2)(b) of this Section 10.04, any Lender may assign to one or more assignees (other than a natural person, a Disqualified Institution or a Defaulting Lender) (each, an “ Assignee ”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, delayed or conditioned) of:	
 
 	(i)	the Borrower; provided that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if a Specified Event of Default with respect to the Borrower has occurred and is continuing; provided, further , that such consent shall be deemed to have been given if the Borrower has not responded within ten (10) Business Days after delivery of a written request therefor by the Administrative Agent; and	
 
 	(ii)	the Administrative Agent and each Issuing Bank; provided that no consent of the Administrative Agent or any Issuing Bank will be required for an assignment of all or any portion of Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and	
 
 	(b)	Assignments shall be subject to the following additional conditions:	
 
 	(i)	except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitments or Loans, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $2,500,000 , unless each of the Borrower and the Administrative Agent otherwise consent; provided that (1) no such consent of the Borrower shall be required if a Specified Event of Default with respect to the Borrower has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds (with simultaneous assignments to or by two or more Approved Funds being treated as one assignment for purposes of meeting the minimum assignment amount requirement), if any;	
 
 	(ii)	the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and, shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent);	
 
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 	(iii)	the Assignee, if it shall not already be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and any tax forms required to be delivered pursuant to Section 2.17;	
 
 	(iv)	the Assignee will not be the Borrower or any of the Borrower’s Affiliates or Subsidiaries; and	
 
 	(v)	the Assignor shall deliver to the Administrative Agent any Note issued to it with respect to the assigned Loan.	
 
 	(c)	Subject to acceptance and recording thereof pursuant to paragraph (2)(e) of this Section 10.04, from and after the effective date specified in each Assignment and Acceptance the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such Assignment and Acceptance). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (4) of this Section 10.04 to the extent such participation would be permitted by such Section 10.04(4).	
 
 	(d)	The Administrative Agent, acting for this purpose as the Administrative Agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount (and stated interest with respect thereto) of the Loans and Revolving L/C Exposure owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, the Issuing Bank and any Lender (but solely, in the case of a Lender, entries with respect to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. This clause (d) and Section 2.09 shall be construed so that all Refinancing Term Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related Treasury regulations (or any other relevant or successor provisions of the Code or of such Treasury regulations).	
 
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 	(e)	Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Assignee, the Assignee’s completed Administrative Questionnaire (unless the Assignee shall already be a Lender hereunder), all applicable tax forms, any Note outstanding with respect to the assigned Loan (or other documentation (including an affidavit of loss and indemnitee agreement) reasonably acceptable to the Borrower in lieu thereof), the processing and recordation fee referred to in paragraph (2)(b)(ii) of this Section 10.04 and any written consent to such assignment required by paragraph (2) of this Section 10.04, the Administrative Agent promptly shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment, whether or not evidenced by a promissory note, shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph (2)(e).	
 
(3)	By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows:	
 
 	(a)	such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that its Revolving Facility Commitment, and the outstanding balances of its Revolving Loans, in each case, without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance;	
 
 	(b)	except as set forth in clause (a) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Restricted Subsidiary or the performance or observance by the Borrower or any Restricted Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto;	
 
 	(c)	the Assignee represents and warrants that it is legally authorized to enter into such Assignment and Acceptance;	
 
 	(d)	the Assignee confirms that it has received a copy of this Agreement, together with copies of the most recent Required Financial Statements delivered pursuant to Section 5.04, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance;	
 
 	(e)	the Assignee will independently and without reliance upon the Administrative Agent or the Collateral Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement;	
 
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 	(f)	the Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms of this Agreement, together with such powers as are reasonably incidental thereto; and	
 
 	(g)	the Assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.	
 
(4)	(a) Any Lender may, without the consent of the Administrative Agent or, subject to Section 10.04(8), the Borrower, sell participations to one or more banks or other entities (other than any Disqualified Institution) (a “ Participant ”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided that	
 
 	(i)	such Lender’s obligations under this Agreement shall remain unchanged;	
 
 	(ii)	such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and	
 
 	(iii)	the Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.	
Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents; provided that (A) such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to Section 10.04(1)(a) or clauses (i), (ii), (iii), (iv), (v) or (vi) of the first proviso to Section 10.08(2) and (2) directly affects such Participant and (B) no other agreement with respect to amendment, modification or waiver may exist between such Lender and such Participant. Subject to clause (4)(b) of this Section 10.04, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (in each case subject to the requirements thereof and the delivery of any documentation required thereunder) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (2) of this Section 10.04. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.06 as though it were a Lender; provided that such
 
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Participant shall be subject to Section 2.18(5) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Each Lender shall indemnify the Loan Parties for any Taxes (including any additions to Tax) attributable to or resulting from such Lender’s failure to comply with the provisions of this Section 10.04(4)(a) relating to the maintenance of a Participant Register.
 
 	(b)	A Participant shall not be entitled to receive any greater payment under Section 2.15, 2.16 or 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. A Participant shall not be entitled to the benefits of Section 2.17 to the extent such Participant fails to comply with Section 2.17(5) as though it were a Lender.	
 
(5)	Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.	
 
(6)	The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (5) of this Section 10.04; provided that such Lender will have delivered for exchange any Notes previously issued with respect to the applicable Loans (or other documentation (including an affidavit of loss and indemnitee agreement) reasonably acceptable to the Borrower in lieu thereof).	
 
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(7)	If the Borrower wishes to replace the Loans or Commitments with ones having different terms, it shall have the option, with the consent of the Administrative Agent and, where relevant, each Issuing Bank, and subject to at least three Business Days’ advance notice to the Lenders, instead of repaying the Loans or reducing or terminating the Commitments to be replaced, to (i) require the Lenders to assign such Loans or Commitments to the Administrative Agent or its designees and (ii) amend the terms thereof in accordance with Section 10.08 (with such replacement, if applicable, being deemed to have been made pursuant to Section 10.08(5)). Pursuant to any such assignment, all Loans and Commitments to be replaced shall be purchased at par (allocated among the Lenders in the same manner as would be required if such Loans were being optionally prepaid or such Commitments were being optionally reduced or terminated by the Borrower), accompanied by payment of any accrued interest and fees thereon and any amounts owing pursuant to Section 10.05(2); provided that, for the avoidance of doubt, the Administrative Agent shall not be required to purchase such Loans and Commitments to be replaced unless it has agreed to purchase such Loans and Commitments in its sole discretion. By receiving such purchase price, the Lenders shall automatically be deemed to have assigned the Loans or Commitments pursuant to the terms of the form of Assignment and Acceptance attached hereto as Exhibit A, and accordingly no other action by such Lenders shall be required in connection therewith. The provisions of this paragraph (7) are intended to facilitate the maintenance of the perfection and priority of existing security interests in the Collateral during any such replacement.	
 
(8)	Notwithstanding the foregoing, no assignment may be made or participation sold to a Disqualified Institution without the prior written consent of the Borrower; provided that, in connection with a participation, the Lenders shall have received a list of the Disqualified Institutions prior to the execution of such participation right. To the extent that any assignment is purported to be made or participation is purported to be sold to a Disqualified Institution (notwithstanding this clause (8) or otherwise), such Disqualified Institution shall be required immediately (and in any event within five (5) Business Days) to assign all Loans and Commitments then owned by such Disqualified Institution to another Lender (other than a Defaulting Lender) or another Assignee in accordance with this Section 10.04 or unwind such participation, as applicable (and the Borrower shall be entitled to seek specific performance in any applicable court of law or equity to enforce this sentence).	
SECTION 10.05 Expenses; Indemnity .
 
(1)	If the Transactions are consummated and the Closing Date occurs, the Borrower agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent, the Arrangers (and, in the case of enforcement of this Agreement, each Lender) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement and the other Loan Documents (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this	
 
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 	Agreement or the other Loan Documents) or in connection with the administration of this Agreement or the other Loan Documents and any amendments, modifications or waivers of the provisions hereof or thereof, including the reasonable, documented and invoiced fees and out-of-pocket charges and disbursements of a single counsel for the Administrative Agent and the Arrangers (which shall be Simpson Thacher and Bartlett LLP), one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for each such group of affected Persons similarly situated.	
 
(2)	The Borrower agrees to indemnify the Administrative Agent, each Arranger, each Lender, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling Persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such Person being called an “ Indemnitee ”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced out-of-pocket fees and expenses (limited to reasonable and documented legal fees of a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the applicable Indemnitees affected by such conflict informs the Borrower of such conflict and has retained, or thereafter retains, its own counsel, of an additional counsel for each group of affected Indemnitees similarly situated taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of:	
 
 	(a)	the execution, delivery or administration of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby;	
 
 	(b)	the use of the proceeds of the Loans; or	
 
 	(c)	any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based in contract, tort or any other theory, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by the Borrower or any of their Restricted Subsidiaries or Affiliates or creditors (and including any investigation, preparation for, or defense of any pending or threatened claim, litigation, investigation or proceeding);	
provided that no Indemnitee will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it: (i) has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (B) a material breach of the obligations of such Indemnitee under the Loan Documents or (ii) relates to any proceeding between or among Indemnitees other than (A) claims against Administrative Agent or
 
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Arrangers or their respective Affiliates, in each case, in their capacity or in fulfilling their role as the agent or arranger or any other similar role under the Revolving Facility (excluding their role as a Lender) to the extent such Persons are otherwise entitled to receive indemnification under this Section 10.05(2) or (B) claims arising out of any act or omission on the part of the Borrower or its Restricted Subsidiaries.
 
(3)	Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related out-of-pocket expenses, including reasonable, documented and invoiced fees and out-of-pocket charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest where the applicable Indemnitees affected by such conflict informs the Borrower of such conflict, an additional counsel for each group of affected Indemnitees similarly situated, taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result any claim related in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any Restricted Subsidiaries would reasonably be expected to be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.	
 
(4)	Any indemnification or payments required by the Loan Parties under this Section 10.05 shall not apply with respect to (a) Taxes other than (x) any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim and (y) expenses related to the enforcement of Section 2.17 or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.15 or 2.17.	
 
(5)	To the fullest extent permitted by applicable law, no Indemnitee or Loan Party shall assert, and each hereby waives, any claim against any Indemnitee or Loan Party, as applicable, nor will any Indemnitee, Loan Party or any of their respective Affiliates be liable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Letter of Credit, any Loan or the use of the proceeds thereof. No Indemnitee, Loan Party or any of their respective Affiliates shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions	
 
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 	contemplated hereby or thereby; provided that, nothing in this clause (5) shall relieve any Loan Party of any obligation it may otherwise have hereunder to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.	
 
(6)	The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.	
SECTION 10.06 Right of Set-off .
 
(1)	If an Event of Default shall have occurred and be continuing, each Revolving Lender and each Issuing Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other Indebtedness at any time owing by such Revolving Lender or such Issuing Bank to or for the credit or the account of the Borrower or any Subsidiary Loan Party against any and all of the Obligations (except to the extent relating to Refinancing Term Loans) of the Borrower or any Subsidiary Loan Party now or hereafter existing under this Agreement or any other Loan Document held by such Revolving Lender or such Issuing Bank, irrespective of whether or not such Revolving Lender or such Issuing Bank shall have made any demand under this Agreement or such other Loan Document and although such Obligations may be unmatured. The rights of each Revolving Lender and each Issuing Bank under this Section 10.06(1) are in addition to other rights and remedies (including other rights of set-off) that such Revolving Lender or such Issuing Bank may have, but may be exercised only at the direction of the Administrative Agent or the Required Lenders.	
 
(2)	After the Discharge of ABL Revolving Claims, if an Event of Default shall have occurred and be continuing, each Refinancing Term Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other Indebtedness at any time owing by such Refinancing Term Lender to or for the credit or the account of the Borrower or any Subsidiary Loan Party against any and all of the Obligations (to the extent relating to the Refinancing Term Loans) of the Borrower or any Subsidiary Loan Party now or hereafter existing under this Agreement or any other Loan Document held by such Refinancing Term Lender, irrespective of whether or not such Refinancing Term Lender shall have made any demand under this Agreement or such other Loan Document and although such Obligations may be unmatured. The rights of each Refinancing Term Lender under this Section 10.06(2) are in addition to other rights and remedies (including other rights of set-off) that such Refinancing Term Lender may have, but may be exercised only at the direction of the Administrative Agent or the Required Term Lenders and only after the Discharge of ABL Revolving Claims.	
 
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SECTION 10.07 Applicable Law . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (EXCEPT FOR CONFLICTS OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).
SECTION 10.08 Waivers; Amendment .
 
(1)	No failure or delay of the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of each Agent, each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (2) of this Section 10.08, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.	
 
(2)	Subject to Section 2.14(2) and 10.08(12) below, except as otherwise set forth in this Agreement (or the applicable Loan Documents), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except:	
 
 	(a)	as provided in Sections 2.21, 2.22, 2.23 and 10.20;	
 
 	(b)	in the case of this Agreement, pursuant to an agreement or agreements in writing signed by the Borrower and the Required Lenders; and	
 
 	(c)	in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto, the Administrative Agent (with the consent of the Required Lenders) and the Borrower;	
provided, however , that, except as expressly provided in Sections 2.14(2), 2.21, 2.22, 2.23 and 10.20, no such agreement will:
 
 	(i)	decrease, forgive, waive or excuse the principal amount of, or any interest on, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any	
 
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 	Letter of Credit beyond the Maturity Date, without the prior written consent of each Lender directly and adversely affected thereby, except as provided in Section 2.05(3) with respect to the expiration of Letters of Credit (it being understood that waivers or other modifications of any conditions precedent, covenants, mandatory prepayments, mandatory commitment reductions, default interest, Defaults or Events of Default shall not constitute a decrease, forgiveness, waiver or excuse of the principal amount of, or any interest on, or an extension of the final maturity of, or a decrease the rate of interest on, any Loan or L/C Disbursement or an extension of the stated expiration of any Letter of Credit beyond the Maturity Date);	
 
 	(ii)	increase or extend the Commitment or Refinancing Term Loan Commitment of any Lender or decrease, forgive, waive or excuse the Commitment Fees or L/C Participation Fees or other fees of any Lender, Agent or Issuing Bank without the prior written consent of such Lender, Agent or Issuing Bank (it being understood that waivers or other modifications of conditions precedent, covenants, mandatory prepayments, mandatory commitment reductions, default interest, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments or Refinancing Term Loan Commitments shall not constitute an increase or extension of the Commitments or Refinancing Term Loan Commitments of any Lender or a decrease, forgiveness, waiver or excuse of any such fees);	
 
 	(iii)	extend any date on which payment of principal or interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender directly and adversely affected thereby (it being understood that waivers or other modifications of any conditions precedent, covenants, mandatory prepayments, mandatory commitment reductions, default interest, Defaults or Events of Default shall not constitute an extension of any date on which payment of principal or interest on any Loan, L/C Disbursement or any Fee is due);	
 
 	(iv)	amend the provisions of Section 2.18(3), (4) or (5) of this Agreement, Section 5.02 of the Collateral Agreement or any analogous provision of any other Loan Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby or the relative priorities of such payments, without the prior written consent of each Lender directly and adversely affected thereby;	
 
 	(v)	change the definition of the term “Borrowing Base” or any component definition thereof if as a result thereof the amounts available to be borrowed by the Borrower would be increased, or increase any of the percentages set forth in the definition of “Borrowing Base”, without the prior written consent of the Supermajority Lenders; provided that, for the avoidance of doubt, the foregoing shall not limit the ability of the Administrative Agent to implement, change or eliminate any Reserves in its Reasonable Credit Judgment as permitted hereunder without the prior written consent of any Lenders;	
 
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 	(vi)	amend or modify the provisions of this Section 10.08 or the definition of the term “Supermajority Lenders”, “Required Lenders”, “Required Revolving Lenders” or “Required Term Lenders”, as the case may be, or any other provision hereof specifying the number or percentage of Supermajority Lenders, Required Lenders, Required Revolving Lenders or Required Term Lenders, as the case may be, required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each applicable Lender; or	
 
 	(vii)	subordinate or release the liens on all or substantially all of the Collateral or all or substantially all of the aggregate value of the Guarantees (other than in connection with any transfer or other release of Collateral or of the relevant Guarantor permitted by the Loan Documents), without the prior written consent of each Lender;	
provided , further , that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or an Issuing Bank hereunder without the prior written consent of the Administrative Agent or such Issuing Bank acting as such at the effective date of such agreement, as applicable.
Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 10.08 and any consent by any Lender pursuant to this Section 10.08 shall bind any assignee of such Lender.
 
(3)	Without the consent of any Lender or Issuing Bank, the Loan Parties and the Administrative Agent may enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, in each case to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.	
 
(4)	No Lender consent is required to effect any amendment or supplement to any Intercreditor Agreement that is:	
 
 	(a)	for the purpose of adding the holders of Junior Lien Debt or Indebtedness secured on a pari passu basis with the Liens securing the Initial Term Loans, Permitted Junior Secured Refinancing Debt (or a Debt Representative with respect thereto) as parties thereto, as expressly contemplated by the terms of such Intercreditor Agreement (it being understood that any such amendment or supplement may make such other changes to the applicable Intercreditor Agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing), or	
 
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 	(b)	expressly contemplated by any Intercreditor Agreement.	
 
(5)	This Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Loans and the Letters of Credit and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders; provided that after giving effect to such new credit facilities (and each incurrence of Indebtedness thereunder), in no event shall the total Revolving Facility Credit Exposure (plus any such Indebtedness under a new facility permitted under this section (5)) exceed the Line Cap (subject to the Administrative Agent’s authority, in its sole discretion, to make Overadvances under Section 2.01(2) or Protective Advances under Section 2.01(3));	
 
(6)	Notwithstanding anything in this Section 10.08 to the contrary, the Borrower may enter into Incremental Facility Amendments in accordance with Section 2.21, Refinancing Amendments in accordance with Section 2.22, and Extension Amendments in accordance with Section 2.23, and such Incremental Facility Amendments, Refinancing Amendments and Extension Amendments shall be effective to amend the terms of this Agreement and the other applicable Loan Documents, in each case, without any further action or consent of any other party to any Loan Document.	
 
(7)	[Reserved].	
 
(8)	Notwithstanding anything to the contrary herein or any other Loan Document other than as set forth in the definition of “Required Revolving Lenders” or “Required Term Lenders”, no Defaulting Lender or Disqualified Institution will have any right to approve or disapprove any amendment, waiver or consent hereunder and any amendment, waiver or consent which by its terms requires the consent of all Lenders, the Required Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than any Defaulting Lenders or Disqualified Institutions.	
 
(9)	Notwithstanding anything in this Agreement or any other Loan Document to the contrary, any amendment or waiver that by its terms affects the rights or duties of Lenders holding Loans or Commitments of a particular tranche (but not the Lenders holding Loans or Commitments of any other tranche) will require only the requisite percentage in interest of the affected Lenders that would be required to consent thereto if such Lenders were the only Lenders.	
 
(10)	Notwithstanding anything in this Agreement or any other Loan Document to the contrary, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrower and the Administrative Agent.	
 
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(11)	Prior to the Discharge of ABL Revolving Claims, any amendment, modification, termination or waiver of or consent with respect to any provision of this Agreement solely affecting the Refinancing Term Lenders will be in writing and signed by the Administrative Agent and the Required Term Lenders. Prior to the Discharge of ABL Revolving Claims, it is understood that no Term Lender will have any voting or consent rights under, or with respect to, any Loan Document other than as expressly provided herein.	
 
(12)	Notwithstanding anything in this Agreement or any other Loan Document to the contrary, the Administrative Agent, with the consent of the Borrower, may amend, modify or supplement any Loan Document without the consent of any Lender or the Required Lenders in order to correct, amend or cure any ambiguity, inconsistency or defect or correct any typographical error or other manifest error in any Loan Document, and such amendment, modification or supplement shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof.	
 
(13)	In addition, notwithstanding anything to the contrary herein or any other Loan Document, the Collateral Agreement, each of the other Security Documents and any related documents may be in a form reasonably determined by the Administrative Agent and the Borrower and may be, together with this Agreement, amended and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment or waiver is delivered in order (a) to comply with local Law or advice of local counsel, (b) to cure ambiguities or defects (as reasonably determined by the Administrative Agent and the Borrower) or (c) to cause such Security Document or other document to be consistent with this Agreement and the other Loan Documents	
SECTION 10.09 Interest Rate Limitation . Notwithstanding anything herein to the contrary, if at any time the applicable interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the “ Charges ”), as provided for herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any Lender, shall exceed the maximum lawful rate (the “ Maximum Rate ”) that may be contracted for, charged, taken, received or reserved by such Lender in accordance with applicable law, the rate of interest payable hereunder, together with all Charges payable to such Lender, shall be limited to the Maximum Rate; provided that such excess amount shall be paid to such Lender on subsequent payment dates to the extent not exceeding the legal limitation. In no event will the total interest received by any Lender exceed the amount which it could lawfully have received and any such excess amount received by any Lender will be applied to reduce the principal balance of the Loans or to other amounts (other than interest) payable hereunder to such Lender, and if no such principal or other amounts are then outstanding, such excess or part thereof remaining will be paid to the Borrower.
 
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SECTION 10.10 Entire Agreement . This Agreement, the other Loan Documents and the agreements regarding certain Fees referred to herein constitute the entire contract between the parties relative to the subject matter hereof. Any previous agreement among or representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents. Notwithstanding the foregoing, the Fee Letters shall survive the execution and delivery of this Agreement and remain in full force and effect. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any party other than the parties hereto and thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents.
SECTION 10.11 WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11.
SECTION 10.12 Severability . In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.13 Counterparts . This Agreement may be executed in one or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract, and shall become effective as provided in Section 10.03. Delivery of an executed counterpart to this Agreement by facsimile or other electronic transmission (e.g., “PDF” or “TIFF”) shall be as effective as delivery of a manually signed original.
SECTION 10.14 Headings . Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 10.15 Jurisdiction; Consent to Service of Process .
 
(1)	Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the	
 
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 	Borough of Manhattan) and any appellate court from any thereof (collectively, “ New York Courts ”), in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents or the transactions relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such Federal (to the extent permitted by law) or New York State court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any other Loan Document shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction, except that each of the Loan Parties agrees that it will not bring any such action or proceeding in any court other than New York Courts (it being acknowledged and agreed by the parties hereto that any other forum would be inconvenient and inappropriate in view of the fact that more of the Lenders who would be affected by any such action or proceeding have contacts with the State of New York than any other jurisdiction).	
 
(2)	Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.	
SECTION 10.16 Confidentiality . Each of the Lenders, each Issuing Bank and each of the Agents agrees (and agrees to cause each of its Related Parties) to use all information provided to it by or on behalf of the Borrower, Impax or their respective Restricted Subsidiaries under the Loan Documents or otherwise in connection with the Acquisition or the Transactions solely for the purposes of the transactions contemplated by this Agreement and the other Loan Documents and shall not publish, disclose or otherwise divulge such information (other than information that
 
(1)	has become generally available to the public other than as a result of a disclosure by such Person or its Related Parties;	
 
(2)	has been independently developed by such Lender, such Issuing Bank or the Administrative Agent without violating this Section 10.16 or relying on such information; or	
 
(3)	was available to such Lender, such Issuing Bank or the Administrative Agent from a third party having, to such Person’s knowledge, no obligations of confidentiality to the Borrower or any other Loan Party);	
 
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and shall not reveal the same other than to its directors, trustees, officers, employees and advisors with a need to know or to any Person that approves or administers the Revolving Facility or any Refinancing Term Loans on behalf of such Lender or any numbering, administration or settlement service providers (so long as each such Person shall have been instructed to keep the same confidential in accordance with this Section 10.16 and, with respect to its directors, trustees, officers, employees and advisors, to the extent within its control, such Lender or Agent, as applicable, will be responsible for any such Person’s non-compliance with this Section 10.16), except:
 
 	(a)	to the extent necessary to comply with law or any legal process or the requirements of any Governmental Authority, the National Association of Insurance Commissioners or of any securities exchange on which securities of the disclosing party or any Affiliate of the disclosing party are listed or traded, in which case such Person agrees, to the extent practicable and not prohibited by applicable law, to inform you promptly thereof prior to disclosure or, if not practicable prior to disclosure and not prohibited by law, promptly after disclosure;	
 
 	(b)	as part of normal reporting or review procedures to, or examinations by, Governmental Authorities or any bank accountants or bank regulatory authority exercising examination or regulatory authority, in which case (except with respect to any audit or examination conducted by any such bank accountant or bank regulatory authority) such Person agrees, to the extent practicable and not prohibited by applicable law, to inform you promptly thereof prior to disclosure or, if not practicable prior to disclosure and not prohibited by law, promptly after disclosure;	
 
 	(c)	to its parent companies, Affiliates or auditors (so long as each such Person shall have been instructed to keep the same confidential in accordance with this Section 10.16 and, to the extent within its control, such Lender or Agent will be responsible for any such Person’s non-compliance with this Section 10.16);	
 
 	(d)	in order to enforce its rights under any Loan Document in a legal proceeding;	
 
 	(e)	to any pledgee or assignee under Section 10.04(5) or any other prospective assignee of, or prospective Participant in, any of its rights under this Agreement (so long as such Person shall have been instructed to keep the same confidential in accordance with this Section 10.16);	
 
 	(f)	to any direct or indirect contractual counterparty in Hedge Agreements or such contractual counterparty’s professional advisor (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be bound by the provisions of this Section 10.16); and	
 
 	(g)	with the prior written consent of the Borrower; and	
 
 	(h)	to any rating agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake to preserve the confidentiality of any confidential information relating to the Loan Parties received by it from such Person.	
 
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Notwithstanding the foregoing, no such information shall be disclosed to a Disqualified Institution that constitutes a Disqualified Institution at the time of such disclosure without the Borrower’s prior written consent.
SECTION 10.17 Platform; Borrower Materials . The Borrower hereby acknowledges that (1) the Administrative Agent or the Arrangers will make available to the Lenders and the Issuing Bank materials or information provided by or on behalf of the Borrower hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “ Platform ”) and (2) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “ Public Lender ”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that:
 
 	(a)	all the Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “PUBLIC” shall appear prominently on the first page thereof;	
 
 	(b)	by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Bank and the Lenders to treat the Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws;	
 
 	(c)	all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and	
 
 	(d)	the Administrative Agent and the Arrangers shall be entitled to treat the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”	
Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC” unless the Borrower notifies the Administrative Agent that any such document contains MNPI: (1) the Loan Documents, (2) any notification of changes in the terms of the Loans, (3) any notification of the identity of Disqualified Institutions and (4) all information delivered pursuant to clauses (1), (2), (3) and (9) of Section 5.04.
SECTION 10.18 [Reserved] .
SECTION 10.19 USA PATRIOT Act Notice . Each Lender that is subject to the USA PATRIOT Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the USA PATRIOT Act.
 
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SECTION 10.20 Intercreditor Agreements .
 
(1)	The parties hereto acknowledge and agree that any provision of any Loan Document to the contrary notwithstanding, prior to the discharge in full of all Term Loan Claims, the Loan Parties shall not be required to act or refrain from acting under any Loan Document with respect to the Term Loan Priority Collateral in any manner that would result in a “Default” or “Event of Default” (as defined in any Term Loan Document) under the terms and provisions of the Term Loan Documents.	
 
(2)	Each Secured Party:	
 
 	(a)	consents to the subordination of Liens on Term Priority Collateral provided for in the Closing Date Intercreditor Agreement,	
 
 	(b)	agrees that it will be bound by and will take no actions contrary to the provisions of the Closing Date Intercreditor Agreement; and	
 
 	(c)	authorizes and instructs the Administrative Agent to enter into the Closing Date Intercreditor Agreement as ABL Agent (as defined in the Intercreditor Agreement) and on behalf of such Lender. The foregoing provisions are intended as an inducement to the lenders under the Term Loan Credit Agreement to extend credit and such lenders are intended third party beneficiaries of such provisions and the provisions of the Closing Date Intercreditor Agreement.	
 
(3)	Each Secured Party:	
 
 	(a)	authorizes and instructs the Administrative Agent to enter into any Junior Lien Intercreditor Agreement in the form attached hereto or in such other form as may be satisfactory to the Administrative Agent and agrees that it will be bound by and will take no actions contrary to the provisions of any Junior Lien Intercreditor Agreement;	
 
 	(b)	agrees that the Administrative Agent may from time to time enter into a modification of the Closing Date Intercreditor Agreement or any Junior Lien Intercreditor Agreement, as the case may be, so long as the Administrative Agent reasonably determines that such modification is consistent with the terms of this Agreement and agrees that it will be bound by and will take no actions contrary to any such Intercreditor Agreement (as so modified); and	
 
 	(c)	pursuant to the express terms of the Intercreditor Agreements, in the event of any conflict or inconsistency between the provisions of the Intercreditor Agreements and this Agreement, the provisions of the Intercreditor Agreements shall govern and control.	
SECTION 10.21 No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (1) (a) the arranging and other services regarding this Agreement
 
221

provided by the Agents, the Lenders and the Arrangers are arm’s-length commercial transactions between the Borrower, on the one hand, and the Agents and the Arrangers, on the other hand, (b) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate and (c) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (2) (a) each Agent, each Lender and each Arranger each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any other Person and (b) none of the Agents or Arrangers has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (3) the Agents, the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and none of the Agents or any Arranger has any obligation to disclose any of such interests to the Borrower or any of its Affiliates. The Borrower agrees that it will not assert any claim against any Agent, Arranger or their respective Affiliates based on an alleged breach of fiduciary duty by such party in connection with this Agreement and the transactions contemplated hereby.
SECTION 10.22 Private-Side Information Contacts . Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “ Private Investor ” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States federal and state securities Laws, to make reference to information that is not made available through the “ Public Investor ” portion of the Platform and that may contain MNPI with respect to the Borrower, any of its Affiliates, their respective Subsidiaries or their respective securities for purposes of United States federal or state securities laws. In the event that any Public Lender has determined for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (1) other Lenders may have availed themselves of such information and (2) neither the Borrower nor the Administrative Agent has (a) any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Loan Documents and (b) any duty to disclose such information to such Public Lender or to use such information on behalf of such Public Lender, and shall not be liable for the failure to so disclose or use, such information.
SECTION 10.23 Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
 
(1)	the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and	
 
222

(2)	the effects of any Bail-In Action on any such liability, including, if applicable:	
 
 	(a)	a reduction in full or in part or cancellation of any such liability;	
 
 	(b)	a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or	
 
 	(c)	the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority	
SECTION 10.24 Incorporation by Reference . The FILO Intercreditor Provisions are hereby incorporated by reference in this Agreement and apply to each Refinancing Term Lender, and to all Refinancing Term Loans at any time incurred or outstanding hereunder, as fully as if set forth herein in their entirety. Each Refinancing Term Lender, by extending Refinancing Term Loans or acquiring same by assignment, agrees to be bound by the FILO Intercreditor Provisions.
[ Remainder of page intentionally left blank ]
 
223

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

AMNEAL PHARMACEUTICALS LLC, as the Borrower	
		
By:	 	/s/ Chintu Patel	
	 	Name: Chintu Patel	
	 	Title: President	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

			
JPMORGAN CHASE BANK, N.A., as a Lender, Issuing Bank, Administrative Agent and Collateral Agent	
		
By:	 	/s/ James A. Knight	
	 	Name: James A. Knight	
	 	Title: Executive Director	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

			
Bank of America, N.A., as a Lender	
		
By:	 	/s/ Daniel K. Clancy	
	 	Name: Daniel K. Clancy	
	 	Title: Senior Vice President	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

			
ROYAL BANK OF CANADA, as a Lender and an Issuing Bank	
		
By:	 	/s/ Pierre Noriega	
	 	Name: Pierre Noriega	
	 	Title: Authorized Signatory	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

			
Bank of the West , as a Lender	
		
By:	 	/s/ Harry Yergey	
	 	Name: Harry Yergey
Title: Managing Director	
		
By:	 	/s/ Michael Weinert	
	 	Name: Michael Weinert
Title: Director	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

			
Capital One, National Association, as a Lender	
		
By:	 	/s/ Osvaldo Velázquez	
	 	Name: Osvaldo Velázquez	
	 	Title: Duly Authorized Signatory	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

			
SunTrust Bank, as a Lender [and Issuing Bank]	
		
By:	 	/s/ Virginia S. Singletary	
	 	Name: Virginia S. Singletary	
	 	Title: Vice President	

			
GOLDMAN SACHS BANK USA, as a Lender	
		
By:	 	/s/ Annie Carr	
	 	Name: Annie Carr	
	 	Title: Authorized Signatory	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

			
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender	
		
By:	 	/s/ Eric Chico	
	 	Name: Eric Chico	
	 	Title: Duly Authorized Signatory	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

			
[ Citizens Bank, N.A. ], as a Lender	
		
By:	 	/s/ Ryan K. Gass	
	 	Name: Ryan K. Gass	
	 	Title: Associate Portfolio Manager	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

			
U.S. BANK NATIONAL ASSOCIATION, as a Lender	
		
By:	 	/s/ Rod Swenson	
	 	Name: Rod Swenson	
	 	Title: Vice President	
 
[Amneal Pharmaceuticals - ABL Credit Agreement]

			
MUFG Union Bank, N.A., as a Lender	
		
By:	 	/s/ John McDevitt	
	 	Name: John McDevitt	
	 	Title: Director	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

			
State Bank of India, New York branch, as a Lender	
		
By:	 	/s/ Manoranjan Panda	
	 	Name: Manoranjan Panda	
	 	Title: VP and Head (CMC)	
 
[Amneal Pharmaceuticals – ABL Credit Agreement]

EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance (this “ Assignment and Acceptance ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 1 Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Documents or the Transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by [the][any] Assignor.
 
 	1.	Assignor[s] :                                                      	

1  	For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.	
2  	For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.	
3	Select as appropriate.	
4	Include bracketed language if there are either multiple Assignors or multiple Assignees.	
 
1

 	2.	Assignee[s] :                                                      	
[and is an Affiliate/Approved Fund of [identify Lender] 5 ]
 
 	3.	Borrower : Amneal Pharmaceuticals LLC, a Delaware limited liability company	
 
 	4.	Administrative Agent : JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement.	
 
 	5.	Credit Agreement : Revolving Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified and in effect from time to time), by, among others, the Borrower, the Subsidiary Loan Parties party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent.	
 
 	6.	Assigned Interest[s] :	

Assignor[s]6	  	Assignee[s]7	  	Facility
Assigned8	  	Amount of
Assignor’s
Commitment /
Loans9	  	Amount of
Commitment
/ Loans
Assigned10	  	Percentage of
Assignor’s
Commitment
/Loans
Assigned11	  	Resulting
Commitment
/ Loans
Amount for
Assignor	  	Resulting
Commitment
/ Loans
Amount for
Assignee	
	  		  		  	$                 	  	$                 	  	                  %	  	$                 	  	$                 	
	  		  		  	$                 	  	$                 	  	                 %	  	$                 	  	$                 	
	  		  		  	$                 	  	$                 	  	                 %	  	$                 	  	$                 	
 
 	7.	[ Trade Date :                                                       ] 12	
Effective Date:                                                   , 20           [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

5	Select as applicable.	
6	List each Assignor, as appropriate.	
7	List each Assignee, as appropriate.	
8  	Fill in appropriate terminology for each applicable type of facility under the Credit Agreement that is being assigned under this Assignment, i.e., Revolving Facility Commitments.	
9  	Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.	
10	Subject to minimum amount requirements pursuant to Section 10.04(2) of the Credit Agreement.	
11	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.	
12  	To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date.	
 
2

[[The] [Each] Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which [the] [each] Assignee designates one or more Credit Contacts to whom all syndicate-level information (which may contain material non-public information about any Parent Entity, the Borrower, their respective Subsidiaries or their respective securities for purposes of United States federal or state securities laws) will be made available and who may receive such information in accordance with [the] [each] Assignee’s compliance procedures and applicable laws, including United States federal and state securities laws.] 13
The terms set forth in this Assignment and Acceptance are hereby agreed to:

ASSIGNOR	
[NAME OF ASSIGNOR]	
	
By:                                                                     	
Name:	
Title:	
	
ASSIGNEE	
[NAME OF ASSIGNEE]	
	
By:                                                                     	
Name:	
Title:	

13	To be included if applicable.	
 
3

	
[Consented to and] 14 Accepted:	
	
JPMORGAN CHASE BANK, N.A. as
Administrative Agent, Collateral Agent and Issuing Bank]	
	
By:                                                                     	
Name:	
Title:	
	
[                      ], as Issuing Bank	
	
By:                                                                     	
Name:	
Title:	
	
[Consented to:] 15	
	
AMNEAL PHARMACEUTICALS LLC, as Borrower	
	
By:                                                                     	
Name:	
Title:	

14	To the extent required under Section 10.04(2) of the Credit Agreement	
15	To the extent required under Section 10.04(2) of the Credit Agreement.	
 
4

ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, as the Borrower, the Subsidiary Loan Parties party thereto from time to time, the Lenders party thereto from time to time, and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent.
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ACCEPTANCE
1. Representations and Warranties .
1.1 Assignor[s] . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and (iv) it [is] [is not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Loan Parties or any other Person obligated in respect of any Loan Document, (iv) any requirements under applicable law for the Assignee to become a lender under the Credit Agreement or to charge interest at the rate set forth therein from time to time or (v) the performance or observance by the Loan Parties or any other Person of any of their respective obligations under any Loan Document.
1.2 Assignee[s] . [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is not a Disqualified Institution, (iii) it meets all the requirements to be an Assignee under the Credit Agreement (subject to such consents, if any, as may be required under Section 10.04(2) of the Credit Agreement), (iv) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (v) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (vi) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.04 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase [the][such] Assigned Interest on the basis of which it has made such analysis and decision, (vii) it has, independently and without reliance on the Administrative Agent, any Arranger, the Collateral Agent, or any other Lender and their respective Related Parties, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and
 
5

Acceptance and to purchase [the][such] Assigned Interest, and (viii) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, any Arranger, the Collateral Agent or their respective Related Parties, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued up to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions . This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be construed in accordance with and governed by the laws of the State of New York.
4. [ Fees . This Assignment and Acceptance shall be delivered to the Administrative Agent with a processing and recordation fee of $3,500.00.]
5. Administrative Questionnaire . If the Assignee is not a Lender, annexed hereto as Exhibit A is a completed administrative questionnaire, in form and substance satisfactory to the Administrative Agent, providing such information (including credit contact information and wiring instructions) of the Assignee as the Administrative Agent may reasonably require.
 
6

Exhibit A
Administrative Questionnaire
[provided by Administrative Agent]
 
7

EXHIBIT B
[FORM OF]
BORROWING BASE CERTIFICATE
[DATE]
The undersigned hereby certifies, solely in the undersigned’s capacity as a Responsible Officer of the Borrower, on behalf of the Borrower and not in the undersigned’s individual or personal capacity and without any personal liability, that pursuant to, and in accordance with, the terms and provisions of that certain Revolving Credit Agreement dated as of May 4, 2018 (as amended, amended and restated, supplemented, or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, as the Borrower, the Subsidiary Loan Parties from time to time party thereto, the Lenders party thereto from time to time and JPMORGAN CHASE BANK, N.A., as the Administrative Agent and Collateral Agent, the Borrower is executing and delivering to the Administrative Agent this Borrowing Base Certificate accompanied by such supporting data as the Administrative Agent has requested in accordance with the terms of the Credit Agreement (collectively referred to as the “ Certificate ”). Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement. The Borrower represents and warrants to the Administrative Agent that (i) this Certificate is true and correct in all material respects, (ii) this Certificate is based on information contained in the Borrower’s own financial accounting records and (iii) the amounts set forth in this Certificate are determined in accordance with the Credit Agreement.

AMNEAL PHARMACEUTICALS LLC	
	
By:                                                                   	
Name:	
Title:	
	
[Attachment]	
 
8

EXHIBIT C
[FORM OF]
SOLVENCY CERTIFICATE
[      ], 2018
Pursuant to Section 4.01(5) of the Revolving Credit Agreement, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Subsidiary Loan Parties from time to time party thereto, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent, the undersigned, solely in the undersigned’s capacity as a Responsible Officer of the Borrower, hereby certifies, on behalf of Borrower and not in the undersigned’s individual or personal capacity and without personal liability, that, to his knowledge, as of the Closing Date, after giving effect to the Transactions (including the making of the Loans under the Credit Agreement on the Closing Date (if any) and the application of the proceeds thereof):
 
(1)	the fair value of the assets of the Borrower and its Restricted Subsidiaries, on a consolidated basis, exceeds their debts and liabilities, subordinated, contingent or otherwise, on a consolidated basis;	
 
(2)	the present fair saleable value of the property of the Borrower and its Restricted Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, on a consolidated basis, as such debts and other liabilities become absolute and matured;	
 
(3)	the Borrower and its Restricted Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, on a consolidated basis, as such liabilities become absolute and matured; and	
 
(4)	the Borrower and its Restricted Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital.	
For purposes of this Solvency Certificate, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
The undersigned is familiar with the business and financial position of the Borrower and its Restricted Subsidiaries. In reaching the conclusions set forth in this Solvency Certificate, the undersigned has made such investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the business proposed to be conducted by the Borrower and its Restricted Subsidiaries after consummation of the Transactions.
[ Signature Page Follows ]

IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate behalf of Borrower and not in the undersigned’s individual or personal capacity and without personal liability, as of the date first stated above.

AMNEAL PHARMACEUTICALS LLC	
	
By:                                                               	
Name:	
Title:	
 
[Signature Page to ABL Solvency Certificate]

EXHIBIT D-1
[FORM OF]
BORROWING REQUEST
 
To:	JPMorgan Chase Bank, N.A.,	
as Administrative Agent for
the Lenders referred to below
[●], 20     
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented, waived or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, as the Borrower, the Subsidiary Loan Parties from time to time party thereto, the Lenders party thereto from time to time and JPMORGAN CHASE BANK, N.A., as the Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
The undersigned hereby gives you notice pursuant to Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit Agreement, and in that connection sets forth below the terms on which such Borrowing is requested to be made:

Date of Borrowing	  		
		
(which shall be a Business Day)	  		

Principal Amount of Borrowing	  		

Type of Borrowing 16	  		

Interest Period and the last day thereof 17	  		

(in the case of a Eurocurrency Revolving Facility Borrowing)	
		
Account Number and Location	  		

Eligible Cash as of the Business Day prior to the date such Borrowing Request is delivered (if the Borrowing Base contains Eligible Cash)	
	  	 	
[remainder intentionally left blank]

16	Specify an ABR Borrowing or a Eurocurrency Revolving Facility Borrowing.	
17  	The initial Interest Period applicable to a Eurocurrency Revolving Facility Borrowing shall be subject to the definition of “Interest Period”.	

			
AMNEAL PHARMACEUTICALS LLC	

By:	 	 	
			
        Name:	 		
        Title:	 		
 
[Signature Page to ABL Borrowing Request]

EXHIBIT D-2
[FORM OF]
LETTER OF CREDIT REQUEST
Dated      18     
JPMorgan Chase Bank, N.A., as Administrative Agent, under the Revolving Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented, waived or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, as the Borrower, the Subsidiary Loan Parties from time to time party thereto, the Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent.
JPMorgan Chase Bank, N.A., as Administrative Agent
under the Credit Agreement
                 19                       
                                         
                                         ]
Attention: [                              ]
[[               20             ], as Issuing Bank
under the Credit Agreement

                                        ]
Attention: [                                  ]
Ladies and Gentlemen:
Pursuant to Section 2.05 of the Credit Agreement, the undersigned hereby requests that the Issuing Lender referred to above issue a [Trade] [Standby] Letter of Credit for the account of the undersigned on      21      (the “ Date of Issuance ”) which Letter of Credit shall be denominated in Dollars and shall be in the aggregate stated amount of      22      .
For purposes of this Letter of Credit Request, unless otherwise defined herein, all capitalized terms used herein which are defined in the Credit Agreement shall have the respective meaning provided therein.    

18  	Date of Letter of Credit Request.	
19  	Insert address of Administrative Agent.	
20	Insert name and address of Issuing Bank.	
21	Date of issuance which shall be a Business Day that is at least three (3) Business Days after the date hereof (or such shorter period as the Administrative Agent and the Issuing Bank in their sole discretion may agree).	
22	Aggregate initial stated amount of the Letter of Credit.	

The beneficiary of the requested Letter of Credit will be      23        , and such Letter of Credit will have a stated expiration date of      24      .
We hereby certify that:
 
 	(A)	all representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects), as of the time of the [issuance][amendment][extension][renewal] requested hereby, with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date);	
 
 	(B)	at the time of, and after giving effect to, the [issuance][amendment][extension][renewal] requested hereby, as applicable, no Default or Event of Default has occurred and is continuing nor would such a Default or Event of Default result therefrom; and	
 
 	(C)	at the time of, and after giving effect to, the [issuance][amendment][extension][renewal] requested hereby, as applicable, the sum of, without duplication, Revolving Loans, unreimbursed drawings under Letters of Credit and the face amount of undrawn amount of outstanding Letters of Credit does not exceed the Line Cap.	

23	Insert name and address of beneficiary.	
24	Insert the last date upon which drafts may be presented which may not be later than (i) in the case of Standby Letters of Credit, earlier of (x) the date one year (unless otherwise agreed upon by the Administrative Agent and the Issuing Bank in their sole discretion) after the date of issuance of such Standby Letter of Credit (or, in the case of any extension thereof, one year (unless otherwise agreed upon by the Administrative Agent and the Issuing Bank in their sole discretion) after such renewal or extension) and (y) the date that is five Business Days prior to the Maturity Date and (ii) in the case of Trade Letters of Credit, the earlier of (x) 180 days after such Trade Letter of Credit’s date of issuance or (y) the date that is five Business Days prior to the Maturity Date.	

			
AMNEAL PHARMACEUTICALS LLC	
		
By:	 	                          	
	 	Name:	
	 	Title:	

EXHIBIT E
[FORM OF]
INTEREST ELECTION REQUEST
 
To:	JPMorgan Chase Bank, N.A.,	
as Administrative Agent
for the Lenders referred to below
[ •], 201[ • ] 25
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement dated as of May 4, 2018 (as amended, amended and restated, supplemented, waived or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, as the Borrower, the Subsidiary Loan Parties from time to time party thereto, the Lenders party thereto from time to time and JPMORGAN CHASE BANK, N.A., as the Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
This notice constitutes a notice of conversion or notice of continuation, as applicable, under Section 2.07 of the Credit Agreement, and Borrower hereby irrevocably notifies the Administrative Agent of the following information with respect to the conversion or continuation requested hereby:
a. The Borrowing to which this Interest Election Request applies is [ • ] 26 ;
b. The effective date of the election (which shall be a Business Day) made pursuant to this Interest Election Request is [ • ], 201[• ];
c. The resulting Borrowing is to be [an ABR Borrowing][a Eurocurrency Revolving Facility Borrowing][; and]
[d. The Interest Period applicable to the resulting Borrowing after giving effect to such election is [ • ]] 27 .

25  	Administrative Agent must be notified as indicated in Section 2.07 of the Credit Agreement in the case of an election to convert to or continue a Eurocurrency Revolving Facility Borrowing election, not later than 2:00 p.m. New York City time, three Business Days before the effective date of such election or, in the case of an election to convert to or continue an ABR Borrowing, not later than 1:00 p.m., New York City time, on the effective date of such election (or in each case such later date or time as the Administrative Agent may agree).	
26  	If different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information specified pursuant to (d) below shall be specified for each resulting Borrowing).	
27  	Include this clause (d) if the resulting Borrowing is a Eurocurrency Revolving Facility Borrowing. Such Interest Period shall be subject to the definition of “Interest Period”. In the case of a Eurocurrency Revolving Facility Borrowing that does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.	

			
AMNEAL PHARMACEUTICALS LLC	
		
By:	 	 	
	 	Name:	
	 	Title:	

EXHIBIT F
[RESERVED]

EXHIBIT G-1
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Revolving Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Subsidiary Loan Parties from time to time party thereto, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.17(5)(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]	
		
By:	 	 	
	 	Name:	
	 	Title:	
Date:                 , 20[         ]

EXHIBIT G-2
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Revolving Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Subsidiary Loan Parties from time to time party thereto, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.17(5)(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]	
		
By:	 	 	
	 	Name:	
	 	Title:	
Date:             , 20[         ]

EXHIBIT G-3
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Revolving Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Subsidiary Loan Parties from time to time party thereto, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.17(5)(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v)none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]	
		
By:	 	 	
	 	Name:	
	 	Title:	
Date:                     , 20[         ]

EXHIBIT G-4
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Revolving Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Subsidiary Loan Parties from time to time party thereto, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.17(5)(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv)none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]	
		
By:	 	 	
	 	Name:	
	 	Title:	
Date:                 , 20[         ]

EXHIBIT H
[FORM OF] JUNIOR LIEN INTERCREDITOR AGREEMENT
[attached]

EXHIBIT H
[FORM OF]
JUNIOR LIEN INTERCREDITOR AGREEMENT
Dated as of [    ], 20[    ]
among
JPMORGAN CHASE BANK, N.A.,
as the Initial First Lien Representative and Initial First Lien Collateral Agent for the Initial First
Lien Secured Parties,
[        ],
as the Initial Second Lien Representative for the Initial Second Lien Secured Parties,
[        ],
as the Initial Second Lien Collateral Agent for the Initial Second Lien Secured Parties
and
each additional Representative and Collateral Agent from time to time party hereto
and acknowledged and agreed to by
AMNEAL PHARMACEUTICALS LLC,
as the Company
and the other Grantors referred to herein

TABLE OF CONTENTS

Page	 	
SECTION 1. Definitions	  	 	1	 	
			
1.1	  	Defined Terms	  	 	1	 	
1.2	  	Terms Generally	  	 	15	 	
		
SECTION 2. Lien Priorities	  	 	15	 	
			
2.1	  	Relative Priorities	  	 	15	 	
2.2	  	Prohibition on Contesting Liens; No Marshalling	  	 	16	 	
2.3	  	No New Liens	  	 	16	 	
2.4	  	Similar Liens and Agreements	  	 	18	 	
2.5	  	Perfection of Liens	  	 	18	 	
		
SECTION 3. Enforcement	  	 	18	 	
			
3.1	  	Exercise of Remedies	  	 	18	 	
3.2	  	Actions Upon Breach; Specific Performance	  	 	22	 	
		
SECTION 4. Payments	  	 	23	 	
			
4.1	  	Application of Proceeds	  	 	23	 	
4.2	  	Payments Over	  	 	23	 	
		
SECTION 5. Other Agreements	  	 	25	 	
			
5.1	  	Releases	  	 	25	 	
5.2	  	Insurance and Condemnation Awards	  	 	27	 	
5.3	  	Amendments to First Lien Loan Documents and Second Lien Loan Documents	  	 	27	 	
5.4	  	Confirmation of Subordination in Second Lien Collateral Documents	  	 	29	 	
5.5	  	Gratuitous Bailee/Agent for Perfection	  	 	29	 	
5.6	  	When Discharge of Obligations Deemed to Not Have Occurred	  	 	31	 	
5.7	  	Purchase Right	  	 	32	 	
5.8	  	Designation of Hedging/Bank Product Obligations	  				
		
SECTION 6. Insolvency or Liquidation Proceedings	  	 	34	 	
			
6.1	  	Finance and Sale Issues	  	 	34	 	
6.2	  	Relief from the Automatic Stay	  	 	35	 	
6.3	  	Adequate Protection	  	 	35	 	
6.4	  	No Waiver	  	 	36	 	
6.5	  	Avoidance Issues	  	 	38	 	
6.6	  	Reorganization Securities	  	 	38	 	
6.7	  	Post-Petition Interest	  	 	38	 	
 
i

							
6.8  	  	Waiver	  	 	38	 	
6.9  	  	Separate Grants of Security and Separate Classification	  	 	39	 	
6.10	  	Effectiveness in Insolvency or Liquidation Proceedings	  	 	39	 	
		
SECTION 7. Reliance; Waivers; Etc.	  	 	40	 	
			
7.2  	  	No Warranties or Liability	  	 	40	 	
		
SECTION 3. Enforcement	  	 	18	 	
			
7.1  	  	Reliance	  	 	40	 	
7.2  	  	No Warranties or Liability	  	 	40	 	
7.3  	  	No Waiver of Lien Priorities	  	 	41	 	
7.4  	  	Obligations Unconditional	  	 	43	 	
		
SECTION 8. Miscellaneous	  	 	43	 	
			
8.1  	  	Integration/Conflicts	  	 	44	 	
8.2  	  	Effectiveness; Continuing Nature of this Agreement; Severability	  	 	43	 	
8.3  	  	Amendments; Waivers	  	 	44	 	
8.4  	  	Information Concerning Financial Condition of the Grantors and their Subsidiaries	  	 	45	 	
8.5  	  	Subrogation	  	 	45	 	
8.6  	  	Application of Payments	  	 	46	 	
8.7  	  	Additional Debt Facilities	  	 	46	 	
8.8  	  	Submission to Jurisdiction; Certain Waivers	  	 	49	 	
8.9  	  	WAIVER OF JURY TRIAL	  	 	50	 	
8.10	  	Notices	  	 	50	 	
8.11	  	Further Assurances	  	 	51	 	
8.12	  	Agency Capacities	  	 	51	 	
8.13	  	GOVERNING LAW	  	 	51	 	
8.14	  	Binding on Successors and Assigns	  	 	51	 	
8.15	  	Section Headings	  	 	51	 	
8.16	  	Counterparts	  	 	51	 	
8.17	  	Authorization	  	 	52	 	
8.18	  	No Third Party Beneficiaries/Provisions Solely to Define Relative Rights	  	 	52	 	
8.19	  	No Indirect Actions	  	 	52	 	
EXHIBITS
Exhibit I - Joinder Agreement (Additional Second Lien Debt)
Exhibit II - Joinder Agreement (Additional First Lien Debt)
Exhibit III - Additional Debt Designation
 
ii

[SECOND] LIEN INTERCREDITOR AGREEMENT
[SECOND] LIEN INTERCREDITOR AGREEMENT dated as of [            ], 20[    ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”), among JPMORGAN CHASE BANK, N.A. (“ JPM ”), as administrative agent for the Initial First Lien Secured Parties (in such capacity and together with its successors from time to time in such capacity, and together with any Replacement First Lien Representative, the “ Initial First Lien Representative ” ) and collateral agent for the Initial First Lien Secured Parties (in such capacity and together with its successors from time to time and in such capacity, and together with any Replacement First Lien Collateral Agent, the “ Initial First Lien Collateral Agent ”), [INSERT NAME], as [INSERT CAPACITY] for the Initial Second Lien Secured Parties (in such capacity and together with its successors from time to time in such capacity, the “ Initial Second Lien Representative ”), [INSERT NAME], as collateral agent for the Initial Second Lien Secured Parties (in such capacity and together with its successors from time to time in such capacity, the “ Initial Second Lien Collateral Agent ”) and each additional First Lien Representative, First Lien Collateral Agent, Second Lien Representative and Second Lien Collateral Agent that from time to time becomes a party hereto pursuant to Section 8.7, and acknowledged and agreed to by AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “Company” ), and the other Grantors referred to below. Capitalized terms used in this Agreement have the meanings assigned to them in Section 1 below.
[INSERT APPROPRIATE RECITALS]
In consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Initial First Lien Representative (for itself and on behalf of the Initial First Lien Secured Parties), the Initial First Lien Collateral Agent (for itself and on behalf of the Initial First Lien Secured Parties), the Initial Second Lien Representative (for itself and on behalf of the Initial Second Lien Secured Parties), the Initial Second Lien Collateral Agent (for itself and on behalf of the Initial Second Lien Secured Parties), each additional First Lien Representative (for itself and on behalf of the Additional First Lien Secured Parties represented by it), each additional First Lien Collateral Agent (for itself and on behalf of the Additional First Lien Secured Parties represented by it), each additional Second Lien Representative (for itself and on behalf of the Additional Second Lien Secured Parties represented by it) and each additional Second Lien Collateral Agent (for itself and on behalf of the Additional Second Lien Secured Parties represented by it), intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions .
 
 	1.1	Defined Terms . As used in this Agreement, the following terms shall have the following meanings:	
“ Additional Collateral Agent ” means an Additional First Lien Collateral Agent and/or an Additional Second Lien Collateral Agent, as the context may require.
“ Additional Debt ” has the meaning set forth in Section 8.7.

“ Additional First Lien Collateral Agent ” has the meaning set forth in the definition of “First Lien Collateral Agent”.
“ Additional First Lien Debt ” means any Indebtedness and guarantees thereof that is incurred, issued or guaranteed by the Company and/or any other Grantor (other than the Initial First Lien Debt) which Indebtedness and guarantees are secured by the First Lien Collateral (or a portion thereof) on a basis senior to the Second Lien Obligations; provided , however , that with respect to any such Indebtedness incurred after the date hereof (i) such Indebtedness is permitted to be incurred, secured and guaranteed on such basis by each First Lien Document and Second Lien Document, (ii) unless already a party with respect to that Series of Additional First Lien Debt, each of the First Lien Representative and the First Lien Collateral Agent for the holders of such Indebtedness shall have become party to (A) this Agreement pursuant to, and by satisfying the conditions set forth in, Section 8.7 and (B) the First Lien Pari Passu Intercreditor Agreement pursuant to, and by satisfying, the conditions set forth therein; provided , further , that, if such Indebtedness will be the initial Additional First Lien Debt incurred by the Company or any other Grantor after the date hereof, then the Grantors, the Initial First Lien Representative, the Initial First Lien Collateral Agent, the First Lien Representative for such Indebtedness and the First Lien Collateral Agent for such Indebtedness shall have executed and delivered the First Lien Pari Passu Intercreditor Agreement and (iii) each of the other requirements of Section 8.7 shall have been complied with. The requirements of clause (i) of Section 8.7(e) shall be tested only as of (x) the date of execution of such Joinder Agreement, if pursuant to a commitment entered into at the time of such Joinder Agreement and (y) with respect to any later commitment or amendment to those terms to permit such Indebtedness, as of the date of such commitment and/or amendment. Additional First Lien Debt shall include any Registered Equivalent Notes and guarantees thereof by the Grantors issued in exchange therefor. For the avoidance of doubt, Indebtedness under a Replacement First Lien Credit Agreement shall not constitute Additional First Lien Debt.
“ Additional First Lien Documents ” means, with respect to any Series of Additional First Lien Debt, the loan agreements, promissory notes, indentures and other operative agreements evidencing or governing such Indebtedness, any document governing reimbursement obligations in respect of letters of credit issued pursuant to any Additional First Lien Documents and the First Lien Collateral Documents securing such Series of Additional First Lien Debt.
“ Additional First Lien Obligations ” means, with respect to any Series of Additional First Lien Debt, (a) all principal, interest (including any Post-Petition Interest), premium (if any), penalties, fees, expenses (including fees, expenses and disbursements of agents, professional advisors and legal counsel), indemnifications, reimbursements, damages and other liabilities, and guarantees of the foregoing amounts, in each case whether or not allowed or allowable in an Insolvency or Liquidation Proceeding, payable with respect to such Additional First Lien Debt, (b) all other amounts payable to the related Additional First Lien Secured Parties under the related Additional First Lien Documents (other than in respect of any Indebtedness not constituting Additional First Lien Debt), (c) any Hedging Obligations and Bank Product Obligations secured under the First Lien Collateral Documents securing such Series of Additional First Lien Debt and (d) any renewals or extensions of the foregoing.
 
2

“ Additional First Lien Representative ” has the meaning set forth in the definition of “First Lien Representative”.
“ Additional First Lien Secured Parties ” means, with respect to any Series of Additional First Lien Debt, the holders of such Indebtedness, the First Lien Representative with respect thereto, the First Lien Collateral Agent with respect thereto, any trustee or agent therefor under any related Additional First Lien Documents and the beneficiaries of each indemnification obligation undertaken by the Company or any other Grantor under any related Additional First Lien Documents and the holders of any other Additional First Lien Obligations secured by the First Lien Collateral Documents for such Series of Additional First Lien Debt.
“ Additional Obligations ” means the Additional First Lien Obligations and the Additional Second Lien Obligations.
“ Additional Representative ” means an Additional First Lien Representative and/or an Additional Second Lien Representative, as the context may require.
“ Additional Second Lien Collateral Agent ” has the meaning set forth in the definition of “Second Lien Collateral Agent”.
“ Additional Second Lien Debt ” means any Indebtedness and guarantees thereof that is incurred, issued or guaranteed by the Company and/or any Grantor (other than the Initial Second Lien Debt) which Indebtedness and guarantees are secured by the Second Lien Collateral (or a portion thereof) on a basis junior to the First Lien Obligations; provided , however , that with respect to any such Indebtedness incurred after the date hereof (i) such Indebtedness is permitted to be incurred, secured and guaranteed on such basis by each First Lien Document and Second Lien Document, (ii) unless already a party with respect to that Series of Additional Second Lien Debt, each of the Second Lien Representative and the Second Lien Collateral Agent for the holders of such Indebtedness shall have become party to (A) this Agreement pursuant to, and by satisfying the conditions set forth in, Section 8.7 and (B) the Second Lien Pari Passu Intercreditor Agreement pursuant to, and by satisfying, the conditions set forth therein; provided , further , that, if such Indebtedness will be the initial Additional Second Lien Debt incurred by the Company or any other Grantor after the date hereof, then the Grantors, the Initial Second Lien Representative, the Initial Second Lien Collateral Agent, the Second Lien Representative for such Indebtedness and the Second Lien Collateral Agent for such Indebtedness shall have executed and delivered the Second Lien Pari Passu Intercreditor Agreement and (iii) each of the other requirements of Section 8.7 shall have been complied with. The requirements of clause (i) shall be tested only as of (x) the date of execution of such Joinder Agreement, if pursuant to a commitment entered into at the time of such Joinder Agreement and (y) with respect to any later commitment or amendment to those terms to permit such Indebtedness, as of the date of such commitment and/or amendment. Additional Second Lien Debt shall include any Registered Equivalent Notes and guarantees thereof by the Grantors issued in exchange therefor.
“ Additional Second Lien Documents ” means, with respect to any Series of Additional Second Lien Debt, the loan agreements, promissory notes, indentures and other operative agreements evidencing or governing such Indebtedness, any document governing reimbursement obligations in respect of letters of credit issued pursuant to any Additional Second Lien Documents and the Second Lien Collateral Documents securing such Series of Additional Second Lien Debt.
 
3

“ Additional Second Lien Obligations ” means, with respect to any Series of Additional Second Lien Debt, (a) principal, interest (including any Post-Petition Interest), premium (if any), penalties, fees, expenses (including fees, expenses and disbursements of agents, professional advisors and legal counsel), indemnifications, reimbursements, damages and other liabilities, and guarantees of the foregoing amounts, in each case whether or not allowed or allowable in an Insolvency or Liquidation Proceeding, payable with respect to such Additional Second Lien Debt, (b) all other amounts payable to the related Additional Second Lien Secured Parties under the related Additional Second Lien Documents (other than in respect of any Indebtedness not constituting Additional Second Lien Debt), (c) subject to Section 5.7, any Hedging Obligations and Bank Product Obligations secured under the Second Lien Collateral Documents securing such Series of Additional Second Lien Debt and (d) any renewals or extensions of the foregoing.
“ Additional Second Lien Representative ” has the meaning set forth in the definition of “Second Lien Representative”.
“ Additional Second Lien Secured Parties ” means, with respect to any Series of Additional Second Lien Debt, the holders of such Indebtedness, the Second Lien Representative with respect thereto, the Second Lien Collateral Agent with respect thereto, any trustee or agent therefor under any related Additional Second Lien Documents and the beneficiaries of each indemnification obligation undertaken by the Company or any other Grantor under any related Additional Second Lien Documents and the holders of any other Additional Second Lien Obligations secured by the Second Lien Collateral Documents for such Series of Additional Second Lien Debt.
“ Affiliate ” means, as to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such Person or is a director or officer of such Person.
“ Bank Product Obligations ” means, all obligations and liabilities (whether direct or indirect, absolute or contingent, due or to become due or now existing or hereafter incurred) of the Company or any other Grantor, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise, which may arise under, out of, or in connection with any treasury, investment, depository, pooling, netting, overdraft, stored value card, purchase card (including so called “procurement card” or “P-card”, debit card, credit card, clearing house, wire transfer, cash management or automated clearing house transfers of funds services or any related services, to any Person permitted to be a secured party in respect of such obligations under the applicable First Lien Documents or Second Lien Documents.
“ Bankruptcy Case ” means a case under the Bankruptcy Code or any other Bankruptcy Law.
 
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“ Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“ Bankruptcy Law ” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.
“ Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close.
“ Collateral ” means, at any time, all assets and property of any Grantor in which the holders of First Lien Obligations under at least one Series of First Lien Obligations and the holders of Second Lien Obligations under at least one Series of Second Lien Obligations (or their Collateral Agents or Representatives) hold, purport to hold or are required to hold, a security interest at such time (or, in the case of the First Lien Obligations, are deemed pursuant to Article 2 to hold a security interest), including any property subject to Liens granted pursuant to Article 6 to secure both First Lien Obligations and Second Lien Obligations. If, at any time, any portion of the First Lien Collateral under one or more Series of First Lien Obligations does not constitute Second Lien Collateral under one or more Series of Second Lien Obligations, then such portion of such First Lien Collateral shall constitute Collateral only with respect to the Second Lien Obligations for which it constitutes Second Lien Collateral and shall not constitute Collateral for any Second Lien Obligations which do not have a security interest in such Collateral at such time.
“ Collateral Agent ” means any First Lien Collateral Agent and/or any Second Lien Collateral Agent, as the context may require.
“ Collateral Documents ” means the First Lien Collateral Documents and the Second Lien Collateral Documents.
“ Company ” shall have the meaning set forth in the Preamble to this Agreement.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.
“ Declined Liens ” has the meaning set forth in Section 2.3.
“ Designated First Lien Collateral Agent ” means (i) if at any time there is only one Series of First Lien Obligations with respect to which the Discharge of First Lien Obligations has not occurred, the First Lien Collateral Agent for the First Lien Secured Parties in such Series and (ii) at any time when clause (i) does not apply, the “Applicable Collateral Agent” (as defined in the First Lien Pari Passu Intercreditor Agreement) at such time.
“ Designated First Lien Representative ” means (i) if at any time there is only one Series of First Lien Obligations with respect to which the Discharge of First Lien Obligations has not occurred, the First Lien Representative for the First Lien Secured Parties in such Series and (ii) at any time when clause (i) does not apply, the “Applicable Representative” (as defined in the First Lien Pari Passu Intercreditor Agreement) at such time.
 
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“ Designated Second Lien Collateral Agent ” means (i) if at any time there is only one Series of Second Lien Obligations with respect to which the Discharge of Second Lien Obligations has not occurred, the Second Lien Collateral Agent for the Second Lien Secured Parties in such Series and (ii) at any time when clause (i) does not apply, the “Applicable Collateral Agent” (as defined in the Second Lien Pari Passu Intercreditor Agreement) at such time.
“ Designated Second Lien Representative ” means (i) if at any time there is only one Series of Second Lien Obligations with respect to which the Discharge of Second Lien Obligations has not occurred, the Second Lien Representative for the Second Lien Secured Parties in such Series and (ii) at any time when clause (i) does not apply, the “Applicable Representative” (as defined in the Second Lien Pari Passu Intercreditor Agreement) at such time.
“ Designation ” means a designation of Additional First Lien Debt, Additional Second Lien Debt or Indebtedness under a Replacement First Lien Credit Agreement in substantially the form of Exhibit III attached hereto.
“ DIP Financing ” has the meaning set forth in Section 6.1.
“ Discharge ” means, with respect to any Series of First Lien Obligations or Series of Second Lien Obligations, the date on which such Series of First Lien Obligations or Series of Second Lien Obligations, as the case may be, are no longer secured by, and no longer required to be secured by, the Collateral pursuant to the terms of the applicable First Lien Documents or Second Lien Documents. The term “ Discharged ” shall have a corresponding meaning.
“ Discharge of First Lien Obligations ” means, except to the extent otherwise provided in Section 5.6, the date on which the Discharge of Initial First Lien Obligations and the Discharge of each additional Series of First Lien Obligations has occurred; provided , that the Discharge of Initial First Lien Obligations shall be deemed not to have occurred if a Replacement First Lien Credit Agreement is entered into.
“ Discharge of Initial First Lien Obligations ” means, except to the extent otherwise provided in Section 5.6, the Discharge of all Initial First Lien Obligations.
“ Discharge of Second Lien Obligations ” means the date on which the Discharge of each Series of Second Lien Obligations has occurred.
“ Disposition ” has the meaning set forth in Section 5.1(b).
“ Enforcement Action ” means any action to:
(a) foreclose, execute, levy, or collect on, take possession or control of, sell or otherwise realize upon (judicially or non-judicially), or lease, license, or otherwise dispose of (whether publicly or privately), Collateral, or otherwise exercise or enforce remedial rights with respect to Collateral under the First Lien Documents or the Second Lien Documents, as
 
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applicable (including by way of setoff, recoupment, notification of a public or private sale or other disposition pursuant to the UCC or other applicable law, notification to account debtors, notification to depositary banks under deposit account control agreements, or exercise of rights under landlord consents, if applicable);
(b) solicit bids from third Persons, approve bid procedures for any proposed disposition of Collateral, conduct the liquidation or disposition of Collateral or engage or retain sales brokers, marketing agents, investment bankers, accountants, appraisers, auctioneers or other third Persons for the purposes of valuing, marketing, promoting or selling Collateral;
(c) receive a transfer of Collateral in satisfaction of Indebtedness or any other Obligation secured thereby;
(d) the taking of any action or the exercise of any right or remedy in respect of the collection on, set off against, marshaling of, injunction respecting or foreclosure on the Collateral or the proceeds thereof;
(e) the appointment of a receiver, receiver and manager or interim receiver of all or part of the Collateral; or
(f) otherwise enforce a security interest or exercise another right or remedy, as a secured creditor or otherwise, pertaining to the Collateral at law, in equity, or pursuant to the First Lien Documents or Second Lien Documents, as applicable (including the commencement of applicable legal proceedings or other actions with respect to all or any portion of the Collateral to facilitate the actions described in the preceding clauses, and exercising voting rights in respect of equity interests comprising Collateral).
An “Enforcement Action” will also include the Disposition of Collateral by any Grantor after the occurrence and during the continuation of an event of default under any of the First Lien Documents or the Second Lien Documents, as applicable, with the consent of the applicable First Lien Collateral Agent (or First Lien Secured Parties) or Second Lien Collateral Agent (or Second Lien Secured Parties).
For the avoidance of doubt, none of the following shall be deemed to constitute an Enforcement Action: (i) the exercise of rights pursuant to Section 5.11 of the Initial First Lien Credit Agreement (or any substantially similar provision in any Additional First Lien Document or Second Lien Document) by the Initial First Lien Representative or any other Secured Party during the continuance of a Cash Dominion Period (as defined in the Initial First Lien Credit Agreement, or any substantially similar definition in any Additional First Lien Document or Second Lien Document), including the notification of account debtors, depository institutions or any other Person to deliver proceeds of any Collateral to the applicable Secured Party in accordance with Section 5.11 of the Initial First Lien Credit Agreement (or any substantially similar provision in any Additional First Lien Document or Second Lien Document), (ii) the consent by the Initial First Lien Representative or any other Secured Party to a store closing sale, going out of business sale or other disposition by any Grantor of any of the Collateral, (iii) the reduction of advance rates or sub-limits by the Initial First Lien Representative or any other Secured Party, or (iv) the imposition of Reserves (as defined in the Initial First Lien Credit Agreement, or any substantially similar definition in any Additional First Lien Document or Second Lien Document) by the Initial First Lien Representative or any other Secured Party.
 
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“ Equity Release Proceeds ” shall have the meaning assigned to such term in Section 5.01(b)
“ First Lien Collateral ” means any “Collateral” as defined in any First Lien Document or any other assets of the Company or any other Grantor with respect to which a Lien is granted or purported to be granted or required to be granted pursuant to a First Lien Document as security for any First Lien Obligations and shall include any property or assets subject to replacement Liens or adequate protection Liens in favor of any First Lien Secured Party.
“ First Lien Collateral Agent ” means (i) in the case of any Initial First Lien Obligations or the Initial First Lien Secured Parties, the Initial First Lien Collateral Agent and (ii) in the case of any Additional First Lien Obligations and the Additional First Lien Secured Parties in respect thereof, the Person serving as collateral agent (or the equivalent) for such Additional First Lien Obligations and that is named as the First Lien Collateral Agent in respect of such Additional First Lien Obligations in the applicable Joinder Agreement (each, in the case of this clause (ii) together with its successors and assigns in such capacity, an “ Additional First Lien Collateral Agent ”).
“ First Lien Collateral Documents ” means the “Security Documents” or “Collateral Documents” (as defined in the applicable First Lien Documents) and any other agreement, document or instrument pursuant to which a Lien is granted securing any First Lien Obligations or pursuant to which any such Lien is perfected.
“ First Lien Debt ” means the Initial First Lien Debt and any Additional First Lien Debt.
“ First Lien Declined Liens ” has the meaning set forth in Section 2.3(a).
“ First Lien Documents ” means the Initial First Lien Documents and any Additional First Lien Documents.
“ First Lien Obligations ” means the Initial First Lien Obligations and any Additional First Lien Obligations.
“ First Lien Pari Passu Intercreditor Agreement ” means an agreement among each First Lien Representative and each First Lien Collateral Agent allocating rights among the various Series of First Lien Obligations, in substantially the form of Exhibit G to the Initial First Lien Credit Agreement.
“ First Lien Representative ” means (i) in the case of any Initial First Lien Obligations or the Initial First Lien Secured Parties, the Initial First Lien Representative and (ii) in the case of any Additional First Lien Obligations and the Additional First Lien Secured Parties thereunder each trustee, administrative agent, collateral agent, security agent and similar agent that is named as the First Lien Representative in respect of such Additional First Lien Obligations in the applicable Joinder Agreement (each, in the case of this clause (ii), an “ Additional First Lien Representative ”).
 
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“ First Lien Secured Parties ” means the Initial First Lien Secured Parties and any Additional First Lien Secured Parties.
“ Governmental Authority ” means any federal, state local or foreign court or governmental agency, authority, instrumentality or regulatory or legislative body.
“ Grantors ” means the Company and each Subsidiary or direct or indirect parent company of the Company which has granted a security interest pursuant to any Collateral Document to secure any Secured Obligations.
“ Hedge Agreements ” means a Swap Contract entered into by the Company or a Restricted Subsidiary with a counterparty as permitted under the First Lien Documents or the Second Lien Documents, as the case may be.
“ Hedging Obligations ” of any Person means any obligation of such Person pursuant to any Hedge Agreement.
“ Indebtedness ” means indebtedness in respect of borrowed money and indebtedness evidenced by bonds, debentures, notes or similar instruments, as well as reimbursement and other obligations in respect of letters of credit; for the avoidance of doubt, “Indebtedness” shall not include Hedging Obligations or Bank Product Obligations.
“ Initial First Lien Collateral Agent ” has the meaning set forth in the introductory paragraph to this Agreement.
“ Initial First Lien Credit Agreement ” means that certain REVOLVING CREDIT AGREEMENT, dated as of May 4, 2018, among AMNEAL PHARMACEUTICALS LLC, as the Borrower, the Lenders and other parties party thereto and JPMORGAN CHASE BANK, N.A., as administrative agent and collateral agent, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time and shall also include any Replacement First Lien Credit Agreement.
“ Initial First Lien Debt ” means the Indebtedness and guarantees thereof now or hereafter incurred pursuant to the Initial First Lien Documents.
“ Initial First Lien Documents ” means the Initial First Lien Credit Agreement and the other “Loan Documents” as defined in the Initial First Lien Credit Agreement and any other document or agreement entered into for the purpose of evidencing, governing, securing or perfecting the Initial First Lien Obligations.
“ Initial First Lien Obligations ” means the “Obligations” as defined in the Initial First Lien Credit Agreement.
“ Initial First Lien Representative ” has the meaning set forth in the introductory paragraph to this Agreement.
 
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“ Initial First Lien Secured Parties ” means the “Secured Parties” as defined in the Initial First Lien Credit Agreement.
“ Initial Second Lien Agreement ” means that certain [    ], dated as of [    ], among [    ].
“ Initial Second Lien Debt ” means the Indebtedness and guarantees thereof now or hereafter incurred pursuant to the Initial Second Lien Documents. Initial Second Lien Debt shall include any Registered Equivalent Notes and guarantees thereof by the Grantors issued in exchange thereof.
“ Initial Second Lien Documents ” means that certain Initial Second Lien Agreement and the other Loan Documents as defined in the Initial Second Lien Agreement and any other document or agreement entered into for the purpose of evidencing, governing, securing or perfecting the Initial Second Lien Obligations.
“ Initial Second Lien Obligations ” means the “Obligations” as defined in the Initial Second Lien Documents.
“ Initial Second Lien Representative ” has the meaning set forth in the introductory paragraph to this Agreement.
“ Initial Second Lien Secured Parties ” means the “Secured Parties” as defined in the Initial Second Lien Documents.
“ Insolvency or Liquidation Proceeding ” means:
(a) any voluntary or involuntary case or proceeding under the Bankruptcy Code with respect to any Grantor;
(b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Grantor or with respect to a material portion of their respective assets;
(c) any liquidation, dissolution, reorganization or winding up of any Grantor whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or
(d) any assignment for the benefit of creditors or any other marshaling of assets and liabilities of any Grantor.
“ Joinder Agreement ” means a supplement to this Agreement in the form of Exhibit I or Exhibit II hereto, as applicable, required to be delivered by a Representative and a Collateral Agent to each other then-existing Representative and Collateral Agent pursuant to Section 8.7 in order to include Additional First Lien Debt or Additional Second Lien Debt hereunder and to become the Representative or Collateral Agent, as the case may be, hereunder in respect thereof for the applicable Additional First Lien Secured Parties or applicable Additional Second Lien Secured Parties, as the case may be, under such Additional First Lien Debt or Additional Second Lien Debt.
 
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“ JPM ” has the meaning set forth in the introductory paragraph to this Agreement.
“ Lien ” means any lien (including, judgment liens and liens arising by operation of law), mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, call, trust (whether contractual, statutory, deemed, equitable, constructive, resulting or otherwise), UCC financing statement or other preferential arrangement having the practical effect of any of the foregoing, including any right of set-off or recoupment.
“ LC Cash Collateral ” has the meaning set forth in Section 5.7(b).
“ Obligations ” means all obligations of every nature of the Company and each other Grantor from time to time owed to any agent or trustee, the First Lien Secured Parties, the Second Lien Secured Parties or any of them or their respective Affiliates under the First Lien Documents or the Second Lien Documents whether for principal, interest, payments for early termination of hedge agreements, fees, expenses, indemnification or otherwise and all guarantees of any of the foregoing and including any interest and fees that accrue after the commencement by or against any Person of any proceeding under any Bankruptcy Law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“ Pay-Over Amount ” has the meaning set forth in Section 6.3(b).
“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“ Pledged Collateral ” has the meaning set forth in Section 5.5(a).
“ Post-Petition Interest ” means interest, fees, expenses and other charges that pursuant to the First Lien Documents or the Second Lien Documents, as applicable, continue to accrue after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest, fees, expenses and other charges are allowed or allowable under the Bankruptcy Law or in any such Insolvency or Liquidation Proceeding.
“ Purchase Date ” has the meaning set forth in Section 5.7(c).
“ Purchase Price ” has the meaning set forth in Section 5.7(b).
“ Purchasing Creditors ” has the meaning set forth in Section 5.7(c).
“ Recovery ” has the meaning set forth in Section 6.5.
 
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“ Refinance ” means, in respect of any Indebtedness, to refinance, extend, renew, defease, amend, modify, supplement, restructure, refund, replace or repay, or to issue other Indebtedness whether of the same principal amount or greater or lesser principal amount in exchange or replacement for such Indebtedness, in whole or in part. “ Refinanced ” and “ Refinancing ” shall have correlative meanings.
“ Registered Equivalent Notes ” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same guarantees and substantially the same collateral) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“ Replacement First Lien Collateral Agent ” means, in respect of any Replacement First Lien Credit Agreement, the collateral agent or person serving in similar capacity under the Replacement First Lien Credit Agreement.
“ Replacement First Lien Credit Agreement ” means any loan agreement, indenture or other agreement that (i) Refinances the Initial First Lien Credit Agreement so long as, after giving effect to such Refinancing, the agreement that was the Initial First Lien Credit Agreement immediately prior to such Refinancing is no longer secured and no longer required to be secured, by any of the First Lien Collateral and (ii) becomes the Initial First Lien Credit Agreement hereunder by designation as such pursuant to Section  8.7 .
“ Replacement First Lien Representative ” means, in respect of any Replacement First Lien Credit Agreement, the administrative agent, trustee or person serving in similar capacity under the Replacement First Lien Credit Agreement.
“ Representative ” means any First Lien Representative and/or any Second Lien Representative, as the context may require.
“ Responsible Officer ” means the chief executive officer, president, chief financial officer or treasurer of the Company or the applicable Grantor.
“ Restricted Subsidiaries ” has the meaning set forth in the Initial First Lien Credit Agreement and, after the Discharge of Initial First Lien Obligations, such term shall have the meaning set forth in any First Lien Documents then in effect.
“ SEC ” means the United States Securities and Exchange Commission and any successor agency thereto.
“ Second Lien Adequate Protection Payments ” has the meaning set forth in Section 6.3(b).
“ Second Lien Collateral ” means any “Collateral” as defined in any Second Lien Document or any other assets of the Company or any other Grantor with respect to which a Lien is granted or purported to be granted or required to be granted pursuant to a Second Lien Document as security for any Second Lien Obligation and shall include any property or assets subject to replacement Liens or adequate protection Liens in favor of any Second Lien Secured Party.
 
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“ Second Lien Collateral Agent ” means (i) in the case of any Initial Second Lien Obligations or the Initial Second Lien Secured Parties, the Initial Second Lien Collateral Agent and (ii) in the case of any Additional Second Lien Obligations and the Additional Second Lien Secured Parties thereunder, the Person serving as collateral agent (or the equivalent) for such Additional Second Lien Obligations and that is named as the Second Lien Collateral Agent in respect of such Additional Second Lien Obligations in the applicable Joinder Agreement (each, in the case of this clause (ii), together with its successors and assigns in such capacity, an “ Additional Second Lien Collateral Agent ”).
“ Second Lien Collateral Documents ” means the “Security Documents” or “Collateral Documents” (as defined in the applicable Second Lien Documents) and any other agreement, document or instrument pursuant to which a Lien is granted securing any Second Lien Obligations or pursuant to which any such Lien is perfected.
“ Second Lien Debt ” means the Initial Second Lien Debt and any Additional Second Lien Debt.
“ Second Lien Declined Liens ” has the meaning set forth in Section 2.3(b).
“ Second Lien Documents ” means the Initial Second Lien Documents and any Additional Second Lien Documents.
“ Second Lien Mortgage ” means each mortgage, deed of trust and any other document or instrument under which any Lien on real property owned or leased by any Grantor is granted to secure any Second Lien Obligations or under which rights or remedies with respect to any such Liens are governed.
“ Second Lien Obligations ” means the Initial Second Lien Obligations and any Additional Second Lien Obligations.
“ Second Lien Pari Passu Intercreditor Agreement ” means an agreement among each Second Lien Representative and each Second Lien Collateral Agent allocating rights among the various Series of Second lien Obligations.
“ Second Lien Representative ” means (i) in the case of the Initial Second Lien Obligations or the Initial Second Lien Secured Parties, the Initial Second Lien Representative and (ii) in the case of any Additional Second Lien Obligations and the Additional Second Lien Secured Parties in respect thereof, each trustee, administrative agent, collateral agent, security agent and similar agent that is named as the Second Lien Representative in respect of such Additional Second Lien Obligations in the applicable Joinder Agreement (each, in the case of this clause (ii), an “ Additional Second Lien Representative ”).
“ Second Lien Secured Parties ” means the Initial Second Lien Secured Parties and any Additional Second Lien Secured Parties.
“ Secured Obligations ” means the First Lien Obligations and/or the Second Lien Obligations, as the context may require.
 
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“ Secured Parties ” means the First Lien Secured Parties and/or the Second Lien Secured Parties, as the context may require.
“Series” means, (x) with respect to First Lien Debt or Second Lien Debt, all First Lien Debt or Second Lien Debt, as applicable, represented by the same Representative acting in the same capacity and (y) with respect to First Lien Obligations or Second Lien Obligations, all such obligations secured by same First Lien Collateral Documents or same Second Lien Collateral Documents, as the case may be. Notwithstanding the foregoing, the Initial First Lien Obligations shall constitute a single Series for purposes of this Agreement.
“ Short Fall ” has the meaning set forth in Section 6.3(b).
“ Standstill Period ” has the meaning set forth in Section 3.1(a).
“ Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company or other entity of which (1) Equity Interests having ordinary voting power (other than Equity Interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors of such corporation, partnership, limited liability company or other entity are at the time owned by such Person; or (2) more than 50.0% of the Equity Interests are at the time owned by such Person.
“ Swap Contract ” means (a) any and all interest rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options for forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including such obligations or liabilities under any Master Agreement.
“ Term/ABL Intercreditor Agreement ” means that certain ABL / Term Loan Intercreditor Agreement dated as of May 4, 2018, by and among the Initial First Lien Collateral Agent, the Initial First Lien Representative, and JPM, as administrative agent and collateral agent for the Initial Term Loan Credit Agreement (as described therein), and acknowledged by the Company and the other Grantors signatory thereto.
“ UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.
 
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“ Underlying Assets ” shall have the meaning assigned to such term in Section 5.01(b)
1.2 Terms Generally . The definitions of terms in this Agreement shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise:
(a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented, modified, renewed or extended and any reference herein to any statute or regulations shall include any amendment, renewal, extension or replacement thereof;
(b) any reference herein to any Person shall be construed to include such Person’s successors and assigns;
(c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof;
(d) all references herein to Sections shall be construed to refer to Sections of this Agreement; and
(e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
SECTION 2. Lien Priorities .
2.1 Relative Priorities . Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the Second Lien Obligations granted on the Collateral or of any Liens securing the First Lien Obligations granted on the Collateral and notwithstanding any provision of the UCC, or any other applicable law or the Second Lien Documents or any defect or deficiencies in, or failure to perfect or lapse in perfection of, or avoidance as a fraudulent conveyance or otherwise of, the Liens securing the First Lien Obligations, the subordination of such Liens to any other Liens, or any other circumstance whatsoever, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, each Second Lien Representative and each Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, hereby agrees that:
 
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(a) any Lien on the Collateral securing any First Lien Obligations now or hereafter held by or on behalf of any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Parties or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects and prior to any Lien on the Collateral securing any Second Lien Obligations; and
(b) any Lien on the Collateral securing any Second Lien Obligations now or hereafter held by or on behalf of any Second Lien Representative, any Second Lien Collateral Agent, any Second Lien Secured Parties or any agent or trustee therefor regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Collateral securing any First Lien Obligations. All Liens on the Collateral securing any First Lien Obligations shall be and remain senior in all respects and prior to all Liens on the Collateral securing any Second Lien Obligations for all purposes, whether or not such Liens securing any First Lien Obligations are subordinated to any Lien securing any other obligation of the Company, any other Grantor or any other Person.
2.2 Prohibition on Contesting Liens; No Marshalling . Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of each Second Lien Secured Party represented by it, and each First Lien Representative and each First Lien Collateral Agent, for itself and on behalf of each First Lien Secured Party represented by it, agrees that it will not (and hereby waives any right to) directly or indirectly contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the priority, validity, perfection, extent or enforceability of a Lien held, or purported to be held, by or on behalf of any of the First Lien Secured Parties in the First Lien Collateral or by or on behalf of any of the Second Lien Secured Parties in the Second Lien Collateral, as the case may be, or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party to enforce this Agreement, including the provisions of this Agreement relating to the priority of the Liens securing the First Lien Obligations as provided in Sections 2.1 and 3.1. Until the Discharge of First Lien Obligations, no Second Lien Representative, Second Lien Collateral Agent or Second Lien Secured Party will assert any marshaling, appraisal, valuation or other similar right that may otherwise be available to a junior secured creditor.
2.3 No New Liens . So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the parties hereto agree that the Company shall not, and shall not permit any other Grantor to:
(a) grant or permit any additional Liens on any asset or property to secure any Second Lien Obligation unless it has granted or concurrently grants a Lien on such asset or property to secure the First Lien Obligations, the parties hereto agreeing that any such Lien shall be subject to Section 2.1; provided that this provision will not be violated with respect to any particular Series of First Lien Obligations if the First Lien Documents in respect thereof prohibit the applicable First Lien Collateral Agent from accepting a Lien on such asset or property or such First Lien Collateral Agent otherwise expressly declines to accept a Lien on such asset or property (any such prohibited or declined Liens with respect to a particular Series of First Lien Obligations, a “ First Lien Declined Lien ”); or
 
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(b) grant or permit any additional Liens on any asset or property to secure any First Lien Obligations unless it has granted or concurrently grants a Lien on such asset or property to secure the Second Lien Obligations; provided that this provision will not be violated with respect to any particular Series of Second Lien Obligations if the Second Lien Documents in respect thereof prohibit the applicable Second Lien Collateral Agent from accepting a Lien on such asset or property or such Second Lien Collateral Agent otherwise expressly declines to accept a Lien on such asset or property (any such prohibited or declined Liens with respect to a particular Series of Second Lien Obligations, a “ Second Lien Declined Lien ” and, together with the First Lien Declined Liens, the “ Declined Liens ”).
If any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Secured Party shall hold any Lien on any assets or property of any Grantor securing any Second Lien Obligations that are not also subject to a first-priority Lien, (other than, with respect to any Series of First Lien Obligations, a First Lien Declined Lien with respect thereto), securing all First Lien Obligations under the First Lien Collateral Documents, then such Second Lien Representative, Second Lien Collateral Agent or Second Lien Secured Party shall notify the Designated First Lien Representative promptly upon becoming aware thereof and, unless such Grantor shall promptly grant a similar Lien, other than any such Lien that would constitute a Declined Lien with respect to any Series of First Lien Obligations, on such assets or property to each First Lien Collateral Agent as security for the First Lien Obligations represented by it, such Second Lien Representative, Second Lien Collateral Agent and Second Lien Secured Parties shall be deemed to hold and have held such Lien for the benefit of each First Lien Representative, First Lien Collateral Agent and the other First Lien Secured Parties, other than any First Lien Secured Parties whose First Lien Documents prohibit them from taking such Liens, as security for the First Lien Obligations. To the extent that the foregoing provisions are not complied with for any reason, without limiting any other rights and remedies available to any First Lien Representative, First Lien Collateral Agent and/or the First Lien Secured Parties, each Second Lien Representative and each Second Lien Collateral Agent, on behalf of the Second Lien Secured Parties represented by it, agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.2.
Notwithstanding anything in this Agreement to the contrary, prior to the Discharge of First Lien Obligations, cash and cash equivalents may be pledged to secure First Lien Obligations consisting of reimbursement obligations in respect of letters of credit issued pursuant to the First Lien Documents without granting a Lien thereon to secure any other First Lien Obligations or any other Second Lien Obligations.
 
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2.4 Similar Liens and Agreements . Except as provided in Section 2.3, the parties hereto agree that it is their intention that the First Lien Collateral and the Second Lien Collateral be identical. In furtherance of the foregoing and of Section 8.11, the parties hereto agree, subject to the other provisions of this Agreement:
(a) upon request by any First Lien Collateral Agent or any Second Lien Collateral Agent, to cooperate in good faith (and to direct their respective counsel to cooperate in good faith) from time to time in order to determine the specific items included in the First Lien Collateral and the Second Lien Collateral and the steps taken to perfect their respective Liens thereon and the identity of the respective parties obligated under the First Lien Documents and the Second Lien Documents; and
(b) that the documents and agreements creating or evidencing the First Lien Collateral and the Second Lien Collateral and guarantees for the First Lien Obligations and the Second Lien Obligations, subject to Section 2.3, shall be in all material respects the same forms of documents other than with respect to the first lien and the second lien nature of the Obligations thereunder.
2.5 Perfection of Liens . Except for the arrangements contemplated by Section 5.5, none of the First Lien Representatives, First Lien Collateral Agents or the First Lien Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Collateral for the benefit of the Second Lien Representatives, the Second Lien Collateral Agents or the Second Lien Secured Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Lien Secured Parties on the one hand and the Second Lien Secured Parties on the other hand and such provisions shall not impose on the First Lien Representatives, First Lien Collateral Agents, the First Lien Secured Parties, the Second Lien Representatives, the Second Lien Collateral Agents, the Second Lien Secured Parties or any agent or trustee therefor any obligations in respect of the disposition of proceeds of any Collateral which would conflict with prior-perfected claims therein in favor of any other Person or any order or decree of any court or Governmental Authority or any applicable law.
SECTION 3. Enforcement .
3.1 Exercise of Remedies .
(a) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Second Lien Representatives, the Second Lien Collateral Agents and the Second Lien Secured Parties:
(1) will not commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Designated Second Lien Representative and/or the Designated Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any or all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of (i) the date on which a Second Lien Representative declared the existence of any Event of Default under (and as defined in) any Second Lien Document and
 
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demanded the repayment of all the principal amount of any Second Lien Obligations thereunder; and (ii) the date on which the First Lien Representatives received notice from such Second Lien Representative of such declarations of such Event of Default and demand for payment (the “ Standstill Period ”); provided , further , that notwithstanding anything herein to the contrary, in no event shall any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Secured Party exercise any rights or remedies with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, any First Lien Representative, any First Lien Collateral Agent or the applicable First Lien Secured Parties shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Designated Second Lien Representative);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party or any other exercise by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise (including any Enforcement Action initiated by or supported by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party); and
(3) subject to their rights under clause (a)(1) above will not object to the forbearance by any First Lien Representative, any First Lien Collateral Agent or the First Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral,
in each case so long as any proceeds received by any First Lien Representative in excess of those necessary to achieve a Discharge of First Lien Obligations are distributed in accordance with Section 4.1.
(b) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agents and the First Lien Secured Parties shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt, except that Second Lien Representatives shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party; provided that any proceeds received by any First Lien Representative in excess of those necessary to achieve a Discharge of any First Lien Obligations are distributed in accordance with Section 4.1. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with
 
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respect to the Collateral, the First Lien Representatives, First Lien Collateral Agents and the First Lien Secured Parties may enforce the provisions of the First Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion in compliance with any applicable law and without consultation with any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party and regardless of whether any such exercise is adverse to the interest of any Second Lien Secured Party. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, any Second Lien Representative, any Second Lien Collateral Agent and any Second Lien Secured Party may:
(1) file a claim or statement of interest with respect to the Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Obligations, or the rights of any First Lien Representative, any First Lien Collateral Agent or the First Lien Secured Parties to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateral;
(3) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second Lien Secured Parties, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
 
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(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations.
Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral or Equity Release Proceeds in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Representative or such Second Lien Collateral Agent and Second Lien Secured Parties represented by it are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Second Lien Collateral Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurred.
(d) Subject to Sections 3.1(a) and (c) and Section 6.3(b):
(1) each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, agrees that such Second Lien Representative or such Second Lien Collateral Agent and such Second Lien Secured Parties represented by it will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, hereby waives any and all rights such Second Lien Representative or such Second Lien Collateral Agent or such Second Lien Secured Parties represented by it may have as a junior lien creditor or otherwise to object to the manner in which any First Lien Representative, any First Lien Collateral Agent or other First Lien Secured Party seeks to enforce or collect the First Lien Obligations or Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of any First Lien Representative, any First Lien Collateral Agent or other First Lien Secured Party is adverse to the interest of any Second Lien Secured Party; and
 
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(3) each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in this Agreement, the Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Second Lien Obligations in accordance with the terms of the Second Lien Documents and applicable law (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor or otherwise taking any action that is inconsistent with the terms of this Agreement); provided that in the event that any Second Lien Secured Party becomes a judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Second Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) in the same manner as the other Liens securing the Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party of the required payments of interest, principal and other amounts owed in respect of the Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of them or as a result of any other violation by any Second Lien Secured Party of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies any First Lien Representative, any First Lien Collateral Agent or other First Lien Secured Party may have with respect to the First Lien Collateral.
3.2 Actions Upon Breach; Specific Performance . If any Second Lien Secured Party, in contravention of the terms of this Agreement, in any way takes, or attempts to or threatens to take, any action with respect to the Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement), or fails to take any action required by this Agreement, this Agreement shall create an irrebutable presumption and admission by such Second Lien Secured Party that relief against such Second Lien Secured Party by injunction, specific performance and/or other appropriate equitable relief is necessary to prevent irreparable harm to the First Lien Secured Parties, it being understood and agreed by each Second Lien Representative and each Second Lien Collateral Agent, on behalf of each Second Lien Secured
 
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Party represented by it, that (i) the First Lien Secured Parties’ damages from actions of any Second Lien Secured Party may at that time be difficult to ascertain and may be irreparable and (ii) each Second Lien Secured Party waives any defense that the Grantors and/or the First Lien Secured Parties cannot demonstrate damage and/or be made whole by the awarding of damages. Each of the First Lien Representatives and/or First Lien Collateral Agents may demand specific performance of this Agreement. Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense which might be asserted to bar the remedy of specific performance in any action which may be brought by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party. No provision of this Agreement shall constitute or be deemed to constitute a waiver by any First Lien Representative or any First Lien Collateral Agent on behalf of itself and the First Lien Secured Parties represented by it of any right to seek damages from any Person in connection with any breach or alleged breach of this Agreement.
SECTION 4. Payments .
4.1 Application of Proceeds . So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, any Collateral or any proceeds thereof received in connection with any Enforcement Action or other exercise of remedies by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party shall be applied by the First Lien Collateral Agents or the First Lien Representatives, as applicable, to the First Lien Obligations in such order as specified in the relevant First Lien Documents (including the Term/ABL Intercreditor Agreement, to the extent then in effect) and, if then in effect, the First Lien Pari Passu Intercreditor Agreement; provided , that any non-cash Collateral or non-cash proceeds will be held by the applicable First Lien Collateral Agent as Collateral unless the failure to apply such amounts would be commercially unreasonable. Upon the Discharge of First Lien Obligations, each First Lien Collateral Agent shall (x) unless a Discharge of Second Lien Obligations has already occurred, deliver any proceeds of Collateral or Equity Release Proceeds held by it to the Designated Second Lien Collateral Agent, to be applied by the Designated Second Lien Collateral Agent and the other Second Lien Collateral Agents or Second Lien Representatives, as applicable, to the applicable Second Lien Obligations in such order as specified in the applicable Second Lien Collateral Documents and, if then in effect, the Second Lien Pari Passu Intercreditor Agreement and (y) if a Discharge of Second Lien Obligations has already occurred, deliver such proceeds of Collateral or Equity Release Proceeds to the Grantors, their successors or assigns, or to whomever may be lawfully entitled to receive the same.
4.2 Payments Over .
(a) So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, any Collateral or any proceeds thereof received by any Second Lien Representative, Second Lien Collateral Agent or any other Second Lien Secured Party in connection with any Enforcement Action or other exercise of any right or remedy relating to the Collateral in contravention of this Agreement in all
 
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cases shall be segregated and held in trust and forthwith paid over to the Designated First Lien Collateral Agent for the benefit of the First Lien Secured Parties in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The Designated First Lien Collateral Agent is hereby authorized to make any such endorsements as agent for the Second Lien Representatives, Second Lien Collateral Agents or any such other Second Lien Secured Party. This authorization is coupled with an interest and is irrevocable until the Discharge of First Lien Obligations.
(b) So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, any Collateral or proceeds thereof received by any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Secured Party in connection with any Enforcement Action or other exercise of any right or remedy relating to the Collateral not in contravention of this Agreement shall be segregated and held in trust and forthwith paid over to the Designated First Lien Collateral Agent for the benefit of the First Lien Secured Parties in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct; provided that with respect to Collateral this Section 4.2(b) shall only be applicable if the exercise of such right or remedy by any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Secured Party has the effect of discharging the Lien of any First Lien Representative or First Lien Collateral Agent on such Collateral. The Designated First Lien Collateral Agent is hereby authorized to make any such endorsements as agent for the Second Lien Representatives, the Second Lien Collateral Agents or any such other Second Lien Secured Party. This authorization is coupled with an interest and is irrevocable until the Discharge of First Lien Obligations.
(c) So long as the Discharge of First Lien Obligations has not occurred, if in any Insolvency or Liquidation Proceeding any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party shall receive any distribution of money or other property in respect of the Collateral (including any assets or proceeds subject to Liens that have been avoided or otherwise invalidated) such money or other property shall be segregated and held in trust and forthwith paid over to the Designated First Lien Collateral Agent for the benefit of the First Lien Secured Parties in the same form as received, with any necessary endorsements. Any Lien received by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party in respect of any of the Second Lien Obligations in any Insolvency or Liquidation Proceeding shall be subject to the terms of this Agreement.
(d) Each Second Lien Representative and Second Lien Collateral Agent, for and on behalf of itself and each applicable Second Lien Secured Party, expressly acknowledges and agrees that (i) as of the date hereof, the Initial First Lien Credit Agreement includes a revolving commitment, that in the ordinary course of business the Initial First Lien Representative under the Initial First Lien Credit Agreement and the Initial First Lien Secured Parties will apply payments and make advances thereunder, and that no application of any Payment Collateral or Cash Collateral (each such term as defined in the Term/ABL Intercreditor Agreement, as in
 
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effect on the date hereof, and whether or not subsequently in effect) or the release of any Lien by the Initial First Lien Collateral Agent upon any portion of the Collateral in connection with a permitted disposition under the Initial First Lien Credit Agreement shall constitute an exercise of remedies prohibited under this Agreement; (ii) subject to the limitations set forth herein, the amount of the Initial First Lien Obligations that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, and that the terms of the Initial First Lien Obligations may be modified, extended or amended from time to time, and that the aggregate amount of the Initial First Lien Obligations may be increased and, subject to Section 8.7, replaced or Refinanced, in each event, without notice to or consent by the Second Lien Secured Parties and without affecting the provisions hereof; and (iii) all Payment Collateral or Cash Collateral (each such term as defined in the Term/ABL Intercreditor Agreement, as in effect on the date hereof, and whether or not subsequently in effect) received by any Initial First Lien Representative or Initial First Lien Collateral Agent may be applied, reversed, reapplied, credited, or reborrowed, in whole or in part, to the Initial First Lien Obligations at any time.
SECTION 5. Other Agreements .
5.1 Releases .
(a) If in connection with any Enforcement Action by any First Lien Representative or any First Lien Collateral Agent or any other exercise of any First Lien Representative’s or any First Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of First Lien Obligations, such First Lien Collateral Agent, for itself or on behalf of any of the First Lien Secured Parties, releases any of its Liens on any part of the Collateral or such First Lien Representative, for itself or on behalf of any of the First Lien Secured Parties, releases any Grantor from its obligations under its guaranty of the First Lien Obligations, then the Liens, if any, of each Second Lien Collateral Agent, for itself or for the benefit of the Second Lien Secured Parties, on such Collateral, and the obligations of such Grantor under its guaranty of the Second Lien Obligations, shall be automatically, unconditionally and simultaneously released. If in connection with any Enforcement Action or other exercise of rights and remedies by any First Lien Representative or any First Lien Collateral Agent, in each case prior to the Discharge of First Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such First Lien Collateral Agent releases its Lien on the property or assets of such Person, then the Liens of each Second Lien Collateral Agent with respect to the property or assets of such Person will be automatically released to the same extent as the Liens of such First Lien Collateral Agent. Each Second Lien Representative and each Second Lien Collateral Agent, for itself or on behalf of any Second Lien Secured Parties represented by it, shall promptly execute and deliver to the First Lien Representatives, First Lien Collateral Agents or such Grantor such termination statements, releases and other documents as any First Lien Representative, First Lien Collateral Agent or such Grantor may request to effectively confirm the foregoing releases.
 
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(b) If in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Grantor (collectively, a “ Disposition ” ) permitted under the terms of the First Lien Documents and not expressly prohibited under the terms of the Second Lien Documents (other than in connection with an Enforcement Action or other exercise of any First Lien Representative’s and/or First Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by Section 5.1(a) above), any First Lien Collateral Agent, for itself or on behalf of any of the First Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any First Lien Representative, for itself or on behalf of any of the First Lien Secured Parties represented by it, releases any Grantor from its obligations under its guaranty of the First Lien Obligations, in each case other than in connection with, or following, the Discharge of First Lien Obligations, then the Liens, if any, of each Second Lien Collateral Agent, for itself or for the benefit of the Second Lien Secured Parties represented by it, on such Collateral, and the obligations of such Grantor under its guaranty of the Second Lien Obligations, shall be automatically, unconditionally and simultaneously released; provided that any proceeds of any such equity interests foreclosed upon where the First Lien Collateral Agent releases its Lien on the assets of such Person on which another Series of Obligations holds a Lien on any of the assets of such Person (any such assets, the “ Underlying Assets ”) which Lien is released as provided in this sentence (any such Proceeds being referred to herein as “ Equity Release Proceeds ” regardless of whether or not such other Series of Obligations holds a Lien on such equity interests so disposed of) shall be applied pursuant to Section 2.01 hereof. Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of each Second Lien Secured Party represented by it, shall promptly execute and deliver to the First Lien Representatives, the First Lien Collateral Agents or such Grantor such termination statements, releases and other documents as any First Lien Representative, First Lien Collateral Agent or such Grantor may request to effectively confirm such release.
(c) Until the Discharge of First Lien Obligations occurs, each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, hereby irrevocably constitutes and appoints the Designated First Lien Collateral Agent and any officer or agent of the Designated First Lien Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Second Lien Representative, such Second Lien Collateral Agent and such Second Lien Secured Parties or in the Designated First Lien Collateral Agent’s own name, from time to time in the Designated First Lien Collateral Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Section 5.1, including any endorsements or other instruments of transfer or release. This power is coupled with an interest and is irrevocable until the Discharge of First Lien Obligations.
 
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(d) Until the Discharge of First Lien Obligations occurs, to the extent that any First Lien Collateral Agent, any First Lien Representative or First Lien Secured Parties (i) have released any Lien on Collateral or any Grantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new Liens or additional guarantees from any Grantor, then each Second Lien Collateral Agent, for itself and for the Second Lien Secured Parties represented by it, shall be granted a Lien on any such Collateral (except to the extent such Lien represents a Second Lien Declined Lien with respect to the Second Lien Debt represented by such Second Lien Collateral Agent), subject to the lien subordination provisions of this Agreement, and each Second Lien Representative, for itself and for the Second Lien Secured Parties represented by it, shall be granted an additional guaranty, as the case may be.
5.2 Insurance and Condemnation Awards . Unless and until the Discharge of First Lien Obligations has occurred, the First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the First Lien Documents, to adjust settlement for any insurance policy covering the Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) affecting the Collateral. Unless and until the Discharge of First Lien Obligations has occurred, and subject to the rights of the Grantors under the First Lien Documents, all proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of condemnation) if in respect of the Collateral shall be paid to the Designated First Lien Collateral Agent for the benefit of the First Lien Secured Parties pursuant to the terms of the First Lien Documents (including for purposes of cash collateralization of letters of credit) and, thereafter, if a Discharge of First Lien Obligations has occurred, and subject to the rights of the Grantors under the Second Lien Documents, to the Designated Second Lien Collateral Agent for the benefit of the Second Lien Secured Parties to the extent required under the Second Lien Documents and then, and if a Discharge of Second Lien Obligations has occurred, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. Until the Discharge of First Lien Obligations has occurred, if any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment in contravention of this Agreement, then it shall segregate and hold in trust and forthwith pay such proceeds over to the Designated First Lien Collateral Agent in accordance with the terms of Section 4.2.
5.3 Amendments to First Lien Documents and Second Lien Documents .
(a) The First Lien Documents of any Series may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their terms and the First Lien Debt of any Series may be Refinanced subject to Section  8.7 without notice to, or the consent of, any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party, all without affecting the lien subordination or other provisions of this Agreement to the extent the terms and conditions of such amendment, supplement, modification meet any applicable requirements set forth in the Second Lien Documents; provided that any such amendment, restatement, amendment and restatement, supplement, modification or Refinancing is not inconsistent with the terms of this Agreement and, in the case of a Refinancing, the holders of such Refinancing debt (directly or through their agent) bind themselves in a writing addressed to each Second Lien Collateral Agent to the terms of this Agreement.
 
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(b) The Second Lien Documents of any Series may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their terms and the Second Lien Debt of any Series may be Refinanced subject to Section  8.7 without notice to, or the consent of, any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party, all without affecting the lien subordination or other provisions of this Agreement to the extent the terms and conditions of such amendment, supplement, modification meet any applicable requirements set forth in the First Lien Documents; provided that any such amendment, restatement, amendment and restatement, supplement, modification or Refinancing is not inconsistent with the terms of this Agreement and, in the case of any Refinancing, the holders of such Refinancing debt (directly or through their agent) bind themselves in a writing addressed to each First Lien Collateral Agent to the terms of this Agreement.
(c) In the event any First Lien Collateral Agent or the applicable First Lien Secured Party and the relevant Grantor enter into any amendment, waiver or consent in respect of any of the First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First Lien Collateral Document or changing in any manner the rights of the applicable First Lien Collateral Agent, such First Lien Secured Parties, the Company or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of a Second Lien Collateral Document without the consent of any Second Lien Representative, Second Lien Collateral Agent, any other Second Lien Secured Party, the Company or any other Grantor and without any action by any Second Lien Representative, any Second Lien Collateral Agent, any other Second Lien Secured Party, the Company or any other Grantor, provided that:
(i) no such amendment, waiver or consent shall have the effect
of:
(A) removing assets subject to the Lien of the Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required by Section  5.1 and provided that there is a corresponding release of the Liens securing the First Lien Obligations on such removed assets;
(B) imposing duties on any Second Lien Collateral Agent or any Second Lien Representative without its consent;
(C) permitting other Liens on the Collateral not permitted under the terms of the Second Lien Documents or SECTION 6 ; or
(D) being prejudicial to the interests of the Second Lien Secured Parties to a greater extent than the First Lien Secured Parties (other than by virtue of their relative priority and the rights and obligations hereunder); and
 
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(ii) notice of such amendment, waiver or consent shall have been given by the Company to each Second Lien Collateral Agent within ten Business Days after the effective date of such amendment, waiver or consent.
5.4 Confirmation of Subordination in Second Lien Collateral Documents . The Company agrees that each Second Lien Collateral Document shall include the following language (or language to similar effect approved by the Designated First Lien Collateral Agent):
“Notwithstanding anything herein to the contrary, the lien and security interest granted to the [collateral agent] pursuant to this Agreement and the exercise of any right or remedy by the [collateral agent] hereunder are subject to the provisions of the Intercreditor Agreement, dated as of [                    ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Second Lien Intercreditor Agreement” ), among JPMORGAN CHASE BANK, N.A., as Initial First Lien Representative, JPMORGAN CHASE BANK, N.A., as Initial First Lien Collateral Agent, [ ], as Initial Second Lien Representative, [ ], as Initial Second Lien Collateral Agent and certain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Second Lien Intercreditor Agreement and this Agreement, the terms of the Second Lien Intercreditor Agreement shall govern and control.”
In addition, the Company agrees that each Second Lien Mortgage covering any Collateral shall contain such other language as the Designated First Lien Collateral Agent may reasonably request to reflect the subordination of such Second Lien Mortgage to the First Lien Collateral Documents covering such Collateral.
5.5 Gratuitous Bailee/Agent for Perfection .
(a) Each First Lien Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral” ) as collateral agent for the First Lien Secured Parties and as gratuitous bailee for the Second Lien Collateral Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee thereof solely for the purpose of perfecting the security interest granted under the First Lien Documents and the Second Lien Documents, respectively, subject to the terms and conditions of this Section 5.5. Solely with respect to any deposit accounts under the control (within the meaning of Section 9-104 of the UCC) of any First Lien Collateral Agent, such First Lien Collateral Agent agrees to also hold control over such deposit accounts as gratuitous agent for the Second Lien Collateral Agents, subject to the terms and conditions of this Section 5.5.
 
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(b) No First Lien Collateral Agent shall have any obligation whatsoever to the other First Lien Secured Parties, the Second Lien Representatives, the Second Lien Collateral Agents or the Second Lien Secured Parties to ensure that the Pledged Collateral is genuine or owned by any of the Grantors, to perfect the security interests of the Second Lien Collateral Agent or the Second Lien Secured Parties or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.5. The duties or responsibilities of any First Lien Collateral Agent under this Section 5.5 shall be limited solely to holding the Pledged Collateral as bailee (and with respect to deposit accounts, agent) in accordance with this Section 5.5 and delivering the Pledged Collateral upon a Discharge of First Lien Obligations as provided in paragraph (d) below.
(c) No First Lien Collateral Agent or any other First Lien Secured Party shall have by reason of the First Lien Collateral Documents, the Second Lien Collateral Documents, this Agreement or any other document a fiduciary relationship in respect of any Second Lien Representative or any other Second Lien Secured Party and the Second Lien Representatives, the Second Lien Collateral Agents and the Second Lien Secured Parties hereby waive and release the First Lien Collateral Agents and the other First Lien Secured Parties from all claims and liabilities arising pursuant to any First Lien Collateral Agent’s role under this Section 5.5 as gratuitous bailee and gratuitous agent with respect to the Pledged Collateral. It is understood and agreed that the interests of the First Lien Collateral Agents and the other First Lien Secured Parties, on the one hand, and the Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties on the other hand, may differ and the First Lien Collateral Agents and the other First Lien Secured Parties shall be fully entitled to act in their own interest without taking into account the interests of the Second Lien Representatives, the Second Lien Collateral Agents or other Second Lien Secured Parties.
(d) Upon the Discharge of First Lien Obligations, each First Lien Collateral Agent shall deliver the remaining Pledged Collateral in its possession (if any) together with any necessary endorsements (which endorsement shall be without recourse and without any representation or warranty), (x) unless a Discharge of Second Lien Obligations has not already occurred, to the Designated Second Lien Collateral Agent and (y) if a Discharge of Second Lien Obligations has already occurred, to the Company or to whomever may be lawfully entitled to receive the same. Following the Discharge of First Lien Obligations, each First Lien Collateral Agent further agrees to take all other action reasonably requested by any Second Lien Collateral Agent at the expense of the Company in connection with the Second Lien Collateral Agents obtaining a first-priority security interest in the Collateral. After the Discharge of First Lien Obligations has occurred, upon the Discharge of Second Lien Obligations, each Second Lien Collateral Agent shall deliver the remaining Pledged Collateral in its possession (if any) together with any necessary endorsements (which endorsement shall be without recourse and without any representation or warranty), to the Company or to whomever may be lawfully entitled to receive the same.
 
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5.6 When Discharge of Obligations Deemed to Not Have Occurred .
(a) If, at any time after the Discharge of First Lien Obligations has occurred or contemporaneously therewith, the Company enters into any Refinancing of any First Lien Document evidencing a First Lien Obligation which Refinancing is permitted by the Second Lien Documents, then such Discharge of First Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken as a result of the occurrence of such first Discharge of First Lien Obligations), and, from and after the date on which the Additional First Lien Representative and Additional First Lien Collateral Agent in respect of such Refinancing each becomes a party to this Agreement in accordance with Section 8.7(b), the obligations under such Refinancing of the applicable First Lien Document shall automatically be treated as First Lien Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the Additional First Lien Representative and the Additional First Lien Collateral Agent under such new First Lien Documents shall be a First Lien Representative and First Lien Collateral Agent, respectively, for all purposes of this Agreement and this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. Upon receipt of a designation from the Company in accordance with Section 8.7(b)(2), each Second Lien Representative and Second Lien Collateral Agent shall promptly (x) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Company or such Additional First Lien Representative and/or such Additional First Lien Collateral Agent shall reasonably request in order to provide to such Additional First Lien Representative and such Additional First Lien Collateral Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (y) deliver to such Additional First Lien Collateral Agent any Pledged Collateral held by it together with any necessary endorsements (or otherwise allow such Additional First Lien Collateral Agent to obtain control of such Pledged Collateral). If the Additional First Lien Obligations under the Additional First Lien Documents in respect of such Refinancing are secured by assets of the Grantors constituting Collateral that do not also secure the Second Lien Obligations, then the Second Lien Obligations shall be secured at such time by a second priority Lien on such assets to the same extent provided in the Second Lien Collateral Documents and this Agreement except to the extent, with respect to any Series of Second Lien Obligations, such Lien on such assets constitutes a Second Lien Declined Lien. This Section 5.6(a) shall survive termination of this Agreement.
(b) If, at any time after the Discharge of Second Lien Obligations has occurred or contemporaneously therewith, the Company enters into any Refinancing of any Second Lien Document evidencing a Second Lien Obligation which Refinancing is permitted by the First Lien Documents, then such Discharge of Second Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken as a result of the occurrence of such first Discharge of Second Lien Obligations), and, from and after the date on which the Additional Second Lien Representative and Additional Second Lien Collateral Agent in respect of such Refinancing each becomes a party to this Agreement in accordance with Section 8.7(b), the obligations under such Refinancing of the applicable Second Lien
 
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Document shall automatically be treated as Second Lien Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the Additional Second Lien Representative and the Additional Second Lien Collateral Agent under such new Second Lien Documents shall be a Second Lien Representative and Second Lien Collateral Agent, respectively, for all purposes of this Agreement and this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. Upon receipt of a designation from the Company in accordance with Section 8.7(b)(2), each First Lien Representative and First Lien Collateral Agent shall promptly enter into such documents and agreements (including amendments or supplements to this Agreement) as the Company or such Additional Second Lien Representative and/or such Additional Second Lien Collateral Agent shall reasonably request in order to provide to such Additional Second Lien Representative and such Additional Second Lien Collateral Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement. If the Additional Second Lien Obligations under the Additional Second Lien Documents in respect of such Refinancing are secured by assets of the Grantors constituting Collateral that do not also secure the First Lien Obligations, then the First Lien Obligations shall be secured at such time by a first priority Lien on such assets to the same extent provided in the First Lien Collateral Documents and this Agreement except to the extent, with respect to any Series of First Lien Obligations, such Lien on such assets constitutes a First Lien Declined Lien. This Section 5.6(b) shall survive termination of this Agreement.
5.7 Purchase Right .
(a) Without prejudice to the enforcement of any of the First Lien Secured Parties’ remedies under the First Lien Documents, this Agreement, at law or in equity or otherwise, the First Lien Secured Parties agree that, if there is (i) an acceleration of any of the First Lien Obligations in accordance with the terms of the applicable First Lien Documents, (ii) a payment default under any First Lien Document that has not been cured or waived by the applicable First Lien Secured Parties within 60 days of the occurrence thereof or (iii) the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor (each, a “ Purchase Event ”), then the Second Lien Secured Parties (on a pro rata basis based on their outstanding Second Lien Obligations, unless otherwise agreed among such Second Lien Secured Parties) may purchase, by submitting a notice (a “ Purchase Notice ”) within fifteen (15) Business Days of any such Purchase Event, the entire aggregate amount (but not less than the entirety) of outstanding First Lien Obligations (including unfunded commitments under any Initial First Lien Document) at the Purchase Price.
(b) The “Purchase Price” will equal the sum of (1) the full amount of all First Lien Obligations then outstanding and unpaid at par (including principal, accrued but unpaid interest and fees and any other unpaid amounts, including breakage costs and, in the case of any secured hedging obligations, the amount that would be payable by the relevant Grantor thereunder if such Grantor were to terminate the hedge agreement in respect thereof on the date of the purchase or, if not terminated, an amount determined by
 
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the relevant First Lien Secured Party to be necessary to collateralize its credit risk arising out of such agreement, but excluding any prepayment penalties or premiums, (2) the cash collateral (the “ LC Cash Collateral ”) to be furnished to the First Lien Secured Parties providing letters of credit under the First Lien Documents in such amounts (not to exceed 103% thereof) as such First Lien Secured Parties determine is reasonably necessary to secure such First Lien Secured Parties in connection with any such outstanding and undrawn letters of credit and (3) all accrued and unpaid fees, expenses and other amounts (including attorneys’ fees and expenses) owed to the First Lien Secured Parties under or pursuant to the First Lien Documents on the date of purchase.
(c) The Second Lien Secured Parties desiring to purchase all the First Lien Obligations (the “ Purchasing Creditors ”) will deliver a Purchase Notice to the Designated First Lien Representative that (i) is signed by the Purchasing Creditors; (ii) states that it is a Purchase Notice under this Section 5.7; (iii) states that each Purchasing Creditor is irrevocably electing to purchase, in accordance with this Section 5.7, the percentage of all of the Purchase Obligations stated in the Purchase Notice for that Purchasing Creditor, which percentages must aggregate exactly 100% for all Purchasing Creditors; (iv) represents and warrants that the Purchase Notice is in conformity with the Second Lien Documents and any other binding agreement among Second Lien Secured Parties; and (v) designates a date on which the purchase will occur (the “ Purchase Date ”), that is (x) at least five but not more than ten Business Days after the Designated First Lien Representative’s receipt of the Purchase Notice, and (y) not more than twenty-five Business Days after the Purchase Event. Upon the Designated First Lien Representative’s receipt of an effective Purchase Notice conforming to this Section 5.7, the Purchasing Creditors will be irrevocably obligated to purchase, and the First Lien Secured Parties will be irrevocably obligated to sell, the First Lien Obligations in accordance with and subject to this Section 5.7.
(d) On the Purchase Date, (i) the Purchasing Creditors and the Designated First Lien Representative will execute and deliver an assignment agreement in form and substance satisfactory to the Designated First Lien Representative, (ii) the Purchasing Creditors will pay the Purchase Price to the Designated First Lien Representative by wire transfer of immediately available funds, (iii) the Purchasing Creditors will deposit with the Designated First Lien Representative or its designee by wire transfer of immediately available funds, the LC Cash Collateral and (iv) each of the Purchasing Creditors will execute and deliver to the Designated First Lien Representative a waiver and release of all claims arising out of this Agreement, the relationship between the First Lien Secured Parties and the Second Lien Secured Parties in connection with the First Lien Documents and the Second Lien Documents, and the transactions contemplated hereby as a result of exercising the purchase option contemplated by this Section 5.7.
(e) Promptly after the closing of the purchase of all First Lien Obligations pursuant to this Section 5.7, the Designated First Lien Representative will distribute the Purchase Price to the First Lien Secured Parties in accordance with the terms of the First Lien Documents. The Designated First Lien Representative will apply the LC Cash Collateral to reimburse the First Lien Secured Parties providing letters of
 
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credit for drawings under such letters of credit, any customary fees charged by the issuer in connection with such draws, and facing or similar fees. When all such letters of credit have been cancelled with the consent of the beneficiary thereof, expired, or been fully drawn, and after all payments from the account described above have been made, any remaining cash collateral will be returned to the Purchasing Creditors, as their interests appear. If for any reason the LC Cash Collateral is less than the amount owing with respect to such letters of credit, then the Purchasing Creditors will, in proportion to their interests determined as of the time of demand for such reimbursement, promptly reimburse the Designated First Lien Representative (who will then pay the applicable First Lien Secured Parties) the amount of the deficiency.
(f) Each First Lien Secured Party will retain all rights to indemnification provided in the relevant First Lien Documents for all claims and other amounts relating to periods prior to the purchase of the First Lien Obligations pursuant to this Section 5.7.
(g) The purchase and sale of the First Lien Obligations under this Section 5.7 will be without recourse and without representation or warranty of any kind by the First Lien Secured Parties, except that the First Lien Secured Parties shall severally and not jointly represent and warrant to the Second Lien Secured Parties that on the date of such purchase, immediately before giving effect to the purchase;
(1) the principal of and accrued and unpaid interest on the First Lien Obligations, and the fees and expenses thereof owed to the respective First Lien Secured Parties, are as stated in any assignment agreement prepared in connection with the purchase and sale of the First Lien Obligations; and
(2) each First Lien Secured Party owns the First Lien Obligations purported to be owned by it free and clear of any Liens (other than participation interests not prohibited by the First Lien Documents, in which case the Purchase Price will be appropriately adjusted so that the Second Lien Secured Parties do not pay amounts represented by participation interests to the extent that the Second Lien Secured Parties expressly assume the obligations under such participation interests).
SECTION 6. Insolvency or Liquidation Proceedings .
6.1 Finance and Sale Issues . Until the Discharge of First Lien Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and any First Lien Representative shall desire to permit the use of “Cash Collateral” (as such term is defined in Section 363(a) of the Bankruptcy Code), on which such First Lien Representative, such First Lien Collateral Agent or any other creditor has a Lien or to permit the Company or any other Grantor to obtain financing, whether from the First Lien Secured Parties or any other Person under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law ( “DIP Financing” ), then each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, will not object to such Cash Collateral use or DIP Financing, including any proposed orders for such Cash
 
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Collateral use and/or DIP Financing which are acceptable to any First Lien Representative) and to the extent the Liens securing the First Lien Obligations are subordinated to or pari passu with such DIP Financing, each Second Lien Collateral Agent will subordinate its Liens in the Collateral to the Liens securing such DIP Financing (and all Obligations relating thereto) and each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, will not request adequate protection or any other relief in connection therewith (except as expressly agreed by the Designated First Lien Representative or to the extent permitted by Section 6.3). No Second Lien Secured Party may provide DIP Financing to the Company or any other Grantor secured by Liens equal or senior in priority to the Liens securing any First Lien Obligations; provided that if no First Lien Secured Party offers to provide DIP Financing to the extent permitted under this Section 6.1 on or before the date of the hearing to approve DIP Financing, then a Second Lien Secured Party may seek to provide DIP Financing (which DIP Financing shall consist solely of additional financing and shall not include any rollup of the Second Lien Obligations) secured by Liens equal or senior in priority to the Liens securing any First Lien Obligations, and the First Lien Secured Parties may object thereto. Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, agrees that it will not seek consultation rights in connection with, and it will not object to or oppose, a motion to sell, liquidate or otherwise dispose of Collateral under Section 363 of the Bankruptcy Code if the requisite First Lien Secured Parties have consented to such sale, liquidation or other disposition. Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, further agrees that it will not directly or indirectly oppose or impede entry of any order in connection with such sale, liquidation or other disposition, including orders to retain professionals or set bid procedures in connection with such sale, liquidation or disposition, if the requisite First Lien Secured Parties have consented to (i) such retention of professionals and bid procedures in connection with such sale, liquidation or disposition of such assets and (ii) the sale, liquidation or disposition of such assets, in which event the Second Lien Secured Parties will be deemed to have consented to the sale or disposition of Collateral pursuant to Section 363(f) of the Bankruptcy Code and such motion does not impair the rights of the Second Lien Secured Parties under Section 363(k) of the Bankruptcy Code.
6.2 Relief from the Automatic Stay . Until the Discharge of First Lien Obligations has occurred, each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, agrees that none of them shall: (i) seek (or support any other Person seeking) relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, without the prior written consent of the First Lien Representatives or (ii) oppose (or support any other Person in opposing) any request by any First Lien Representative or First Lien Collateral Agent for relief from such stay.
 
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6.3 Adequate Protection .
(a) Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, agrees that none of them shall contest (or support any other Person contesting):
(1) any request by any First Lien Representative, any First Lien Collateral Agent or other First Lien Secured Party for adequate protection under any Bankruptcy Law; or
(2) any objection by any First Lien Representative, any First Lien Collateral Agent or other First Lien Secured Party to any motion, relief, action or proceeding based on such First Lien Representative, First Lien Collateral Agent or First Lien Secured Party claiming a lack of adequate protection.
(b) Notwithstanding the foregoing provisions in this Section 6.3, in any Insolvency or Liquidation Proceeding:
(1) if the First Lien Secured Parties (or any subset thereof) are granted adequate protection in the form of additional collateral in connection with any Cash Collateral use or DIP Financing, then each Second Lien Collateral Agent, for itself or on behalf of any of the Second Lien Secured Parties represented by it, may seek or request adequate protection in the form of a Lien on such additional collateral, which Lien will be subordinated to the Liens securing the First Lien Obligations and such Cash Collateral use or DIP Financing (and all Obligations relating thereto) on the same basis as the other Liens securing the Second Lien Obligations are so subordinated to the First Lien Obligations under this Agreement; and
(2) the Second Lien Representatives, the Second Lien Collateral Agents and Second Lien Secured Parties shall only be permitted to seek adequate protection with respect to their rights in the Collateral in any Insolvency or Liquidation Proceeding in the form of (A) additional collateral; provided that as adequate protection for the First Lien Obligations, each First Lien Collateral Agent, on behalf of the First Lien Secured Parties represented by it, is granted a Lien on such additional collateral, which Lien shall be senior to the Lien of the applicable Second Lien Representatives, Second Lien Collateral Agents and Second Lien Secured Parties on the same basis as the other Liens of the Second Lien Secured Parties on the Collateral; (B) replacement Liens on the Collateral; provided that as adequate protection for the First Lien Obligations, each First Lien Collateral Agent, on behalf of the First Lien Secured Parties represented by it, is granted replacement Liens on the Collateral, which Liens shall be senior to the Lien of the applicable Second Lien Representatives, Second Lien Collateral Agents and Second Lien Secured Parties on the same basis as the other Liens of the Second Lien Secured Parties on the Collateral; (C) an administrative expense claim; provided that as adequate protection for the First Lien Obligations, each First Lien Representative, on behalf of the First Lien Secured Parties represented by it, is granted an administrative expense claim which is senior and prior to the
 
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administrative expense claim of the Second Lien Representatives and the other Second Lien Secured Parties; and (D) cash payments with respect to interest on the Second Lien Obligations; provided that (1) as adequate protection for the First Lien Obligations, each First Lien Representative, on behalf of the First Lien Secured Parties represented by it, is granted cash payments with respect to interest on the First Lien Obligation represented by it and (2) such cash payments do not exceed an amount equal to the interest accruing on the principal amount of Second Lien Obligations outstanding on the date such relief is granted at the interest rate under the applicable Second Lien Documents and accruing from the date the applicable Second Lien Representative is granted such relief. If any Second Lien Secured Party receives Post-Petition Interest and/or adequate protection payments in an Insolvency or Liquidation Proceeding (“ Second Lien Adequate Protection Payments ”) and the First Lien Secured Parties do not receive payment in full in cash of all First Lien Obligations upon the effectiveness of the plan of reorganization for, or conclusion of, that Insolvency or Liquidation Proceeding, then each Second Lien Secured Party shall pay over to the First Lien Secured Parties an amount (the “ Pay-Over Amount ”) equal to the lesser of (i) the Second Lien Adequate Protection Payments received by such Second Lien Secured Party and (ii) the amount of the short-fall (the “ Short Fall ”) in payment in full in cash of the First Lien Obligations; provided that to the extent any portion of the Short Fall represents payments received by the First Lien Secured Parties in the form of promissory notes, equity or other property equal in value to the cash paid in respect of the Pay-Over Amount, the First Lien Secured Parties shall, upon receipt of the Pay-Over Amount, transfer those promissory notes, equity or other property, equal in value to the cash paid in respect of the Pay-Over Amount, to the applicable Second Lien Secured Parties pro rata in exchange for the Pay-Over Amount. Notwithstanding anything herein to the contrary, the First Lien Secured Parties shall not be deemed to have consented to, and expressly retain their rights to object to, the grant of adequate protection in the form of cash payments to the Second Lien Secured Parties made pursuant to this Section 6.3(b).
(c) Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties represented by it, agrees that notice of a hearing to approve DIP Financing or use of Cash Collateral on an interim basis shall be adequate if delivered to such Second Lien Representative and Second Lien Collateral Agent at least two (2) Business Days in advance of such hearing and that notice of a hearing to approve DIP Financing or use of Cash Collateral on a final basis shall be adequate if delivered to such Second Lien Representative and Second Lien Collateral Agent at least fifteen (15) days in advance of such hearing.
6.4 No Waiver . Subject to Section 6.7(b), nothing contained herein shall prohibit or in any way limit any First Lien Representative or any other First Lien Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by any Second Lien Representative or any other Second Lien Secured Party, including the seeking by any Second Lien Representative or any other Second Lien Secured Party of adequate protection or the asserting by any Second Lien Representative or any other Second Lien Secured Party of any of its rights and remedies under the Second Lien Documents or otherwise.
 
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6.5 Avoidance Issues . If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company or any other Grantor any amount paid in respect of First Lien Obligations (a “ Recovery ”), then such First Lien Secured Party shall be entitled to a reinstatement of its First Lien Obligations with respect to all such recovered amounts on the date of such Recovery, and from and after the date of such reinstatement the Discharge of First Lien Obligations shall be deemed not to have occurred for all purposes hereunder. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. This Section 6.5 shall survive termination of this Agreement.
6.6 Reorganization Securities . If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a plan of reorganization, arrangement, compromise or liquidation or similar dispositive restructuring plan, both on account of First Lien Obligations and on account of Second Lien Obligations, then, to the extent the debt obligations distributed on account of the First Lien Obligations and on account of the Second Lien Obligations are secured by Liens upon the same property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
6.7 Post-Petition Interest .
(a) None of any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party shall oppose or seek to challenge any claim by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of First Lien Obligations consisting of Post-Petition Interest to the extent of the value of the Lien of the First Lien Collateral Agents on behalf of the First Lien Secured Parties on the Collateral or any other First Lien Secured Party’s Lien, without regard to the existence of the Liens of the Second Lien Collateral Agents on behalf of the Second Lien Secured Parties on the Collateral.
(b) None of any First Lien Representative, First Lien Collateral Agent or any other First Lien Secured Party shall oppose or seek to challenge any claim by any Second Lien Representative, Second Lien Collateral Agent or any other Second Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of Second Lien Obligations consisting of Post-Petition Interest to the extent of the value of the Lien of the Second Lien Collateral Agents on behalf of the Second Lien Secured Parties on the Collateral (after taking into account the amount of all First Lien Obligations (including as described in Section 6.9)).
6.8 Waiver . Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, waives any claim it may hereafter have against any First Lien Secured Party arising out of the election of any First Lien Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or out of any cash collateral or financing arrangement or out of any grant of a security interest in connection with the Collateral in any Insolvency or Liquidation Proceeding so long as such actions are not in express contravention of the terms of this Agreement.
 
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6.9 Separate Grants of Security and Separate Classification . Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, and each First Lien Representative and each First Lien Collateral Agent, for itself and on behalf of the First Lien Secured Parties represented by it, acknowledges and agrees that:
(a) the grants of Liens pursuant to the First Lien Collateral Documents and the Second Lien Collateral Documents constitute two separate and distinct grants of Liens; and
(b) because of, among other things, their differing rights in the Collateral, the Second Lien Obligations are fundamentally different from the First Lien Obligations and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency or Liquidation Proceeding.
To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Lien Secured Parties and the Second Lien Secured Parties in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then each of the parties hereto hereby acknowledges and agrees that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Collateral (with the effect being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring all claims held by the Second Lien Secured Parties), the First Lien Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing (or that would be owing if there were such separate classes of senior and junior secured claims) in respect of Post-Petition Interest, including any additional interest payable pursuant to the First Lien Documents, arising from or related to a default, which is disallowed as a claim in any Insolvency or Liquidation Proceeding) before any distribution is made in respect of the claims held by the Second Lien Secured Parties with respect to the Collateral, with each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, hereby acknowledging and agreeing to turn over to the Designated First Lien Collateral Agent, for itself and on behalf of the First Lien Secured Parties, Collateral or proceeds of Collateral otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Lien Secured Parties.
6.10 Effectiveness in Insolvency or Liquidation Proceedings . The Parties acknowledge that this Agreement is a “subordination agreement” under section 510(a) of the Bankruptcy Code, which will be effective before, during and after the commencement of an Insolvency or Liquidation Proceeding. All references in this Agreement to any Grantor will include such Person as a debtor-in-possession and any receiver or trustee for such Person in an Insolvency or Liquidation Proceeding.
 
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SECTION 7. Reliance; Waivers; Etc.
7.1 Reliance . Other than any reliance on the terms of this Agreement, each First Lien Representative and each First Lien Collateral Agent, on behalf of itself and the First Lien Secured Parties represented by it, acknowledges that it and such First Lien Secured Parties have, independently and without reliance on any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into each of the First Lien Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the First Lien Documents or this Agreement. Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, acknowledges that it and such Second Lien Secured Parties have, independently and without reliance on any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into each of the Second Lien Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the Second Lien Documents or this Agreement.
7.2 No Warranties or Liability . Each First Lien Representative and each First Lien Collateral Agent, on behalf of itself and the First Lien Secured Parties represented by it, acknowledges and agrees that no Second Lien Representative or other Second Lien Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Second Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. Except as otherwise provided herein, the Second Lien Secured Parties will be entitled to manage and supervise their respective extensions of credit under the Second Lien Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate. Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, acknowledges and agrees that no First Lien Representative or other First Lien Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the First Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. Except as otherwise provided herein, the First Lien Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under the First Lien Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate. The Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties shall have no duty to the First Lien Representatives, the First Lien Collateral Agents or any of the other First Lien Secured Parties, and the First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties shall have no duty to the Second Lien Representatives, the Second Lien Collateral Agents or any of the other Second Lien Secured Parties, to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Company or any other Grantor (including the First Lien Documents and the Second Lien Documents), regardless of any knowledge thereof which they may have or be charged with.
 
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7.3 No Waiver of Lien Priorities .
(a) No right of the First Lien Secured Parties, the First Lien Representatives, the First Lien Collateral Agents or any of them to enforce any provision of this Agreement or any First Lien Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Secured Party, First Lien Representative or First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Documents or any of the Second Lien Documents, regardless of any knowledge thereof which any other First Lien Representative, First Lien Collateral Agent or any First Lien Secured Party, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Documents and subject to the provisions of Sections 5.3 and 8.7), the First Lien Secured Parties, the First Lien Representatives, the First Lien Collateral Agents and any of them may, at any time and from time to time in accordance with the First Lien Documents and/or applicable law, without the consent of, or notice to, any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party, without incurring any liabilities to any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by any First Lien Representative, any First Lien Collateral Agent or any of the other First Lien Secured Parties, the First Lien Obligations or any of the First Lien Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Secured Parties, the First Lien Representatives or the First Lien Collateral Agents, or any liability incurred directly or indirectly in respect thereof;
 
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(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, also agrees that the First Lien Secured Parties, the First Lien Representatives and the First Lien Collateral Agents shall have no liability to such Second Lien Representative, such Second Lien Collateral Agent or any such Second Lien Secured Parties, and such Second Lien Representative and such Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, hereby waives any claim against any First Lien Secured Party, any First Lien Representative or any First Lien Collateral Agent arising out of any and all actions which the First Lien Secured Parties, any First Lien Representative or any First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral.
Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, agrees that the First Lien Secured Parties, the First Lien Representatives and the First Lien Collateral Agents have no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to any First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
 
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7.4 Obligations Unconditional . All rights, interests, agreements and obligations of the First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties and the Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties, respectively, hereunder shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any First Lien Documents or any Second Lien Documents;
(b) except as otherwise expressly set forth in this Agreement, any change in the time, manner or place of payment of, or in any other terms of, all or any of the First Lien Obligations or Second Lien Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of any First Lien Document or any Second Lien Document;
(c) except as otherwise expressly set forth in this Agreement, any exchange of any security interest in any Collateral or any other collateral, or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the First Lien Obligations or Second Lien Obligations or any guaranty thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Grantor; or
(e) any other circumstances which otherwise might constitute a defense available to, or a discharge of, the Company or any other Grantor in respect of any First Lien Representative, any First Lien Collateral Agent, the First Lien Obligations, any First Lien Secured Party, any Second Lien Representative, any Second Lien Collateral Agent, the Second Lien Obligations or any Second Lien Secured Party in respect of this Agreement.
SECTION 8. Miscellaneous .
8.1 Integration/Conflicts . This Agreement, the First Lien Documents and the Second Lien Documents represent the entire agreement of the Grantors, the First Lien Secured Parties and the Second Lien Secured Parties with respect to the subject matter hereof and thereof, and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof and thereof. There are no promises, undertakings, representations or warranties by the First Lien Secured Parties or the Second Lien Secured Parties relative to the subject matter hereof and thereof not expressly set forth or referred to herein or therein. In the event of any conflict between the provisions of this Agreement and the provisions of the First Lien Documents or the Second Lien Documents, the provisions of this Agreement shall govern and control.
 
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8.2 Effectiveness; Continuing Nature of this Agreement; Severability . This Agreement shall become effective when executed and delivered by the parties hereto. This is a continuing agreement of lien subordination and the First Lien Secured Parties may continue, at any time and without notice to any Second Lien Representative or any other Second Lien Secured Party, to extend credit and other financial accommodations and lend monies to or for the benefit of the Company or any Grantor constituting First Lien Obligations in reliance hereon. Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, hereby waives any right it may have under applicable law to revoke this Agreement or any of the provisions of this Agreement. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to those of the invalid, illegal or unenforceable provisions. All references to the Company or any other Grantor shall include the Company or such Grantor as debtor and debtor- in-possession and any receiver, trustee or similar person for the Company or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding. This Agreement shall terminate and be of no further force and effect:
(a) with respect to any First Lien Representative and any First Lien Collateral Agent, the First Lien Secured Parties represented by it and their First Lien Obligations, on the date on which the First Lien Obligations of such First Lien Secured Parties are Discharged, subject to Sections 5.6 and 6.5; and
(b) with respect to any Second Lien Representative and any Second Lien Collateral Agent, the Second Lien Secured Parties represented by it and their Second Lien Obligations, on the date on which the Second Lien Obligations of such Second Lien Secured Parties are Discharged, subject to Sections 5.6 and 6.5;
provided , however , that in each case, such termination shall not relieve any such party of its obligations incurred hereunder prior to the date of such termination.
8.3 Amendments; Waivers .
(a) No amendment, modification or waiver of any of the provisions of this Agreement shall be deemed to be made unless the same shall be in writing signed on behalf of each party hereto or its authorized agent and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time. Notwithstanding the foregoing, the Company and the other Grantors shall not have any right to consent to or approve any amendment, modification or waiver of any provision of this Agreement except to the extent their rights are directly and adversely affected.
 
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(b) Notwithstanding the foregoing, without the consent of any First Lien Secured Party or Second Lien Secured Party, any Representative and Collateral Agent may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section  8.7 and upon such execution and delivery, such Representative and Collateral Agent and the Additional First Lien Secured Parties and Additional First Lien Obligations or Additional Second Lien Secured Parties or Additional Second Lien Obligations of the Series for which such Representative and Collateral Agent is acting shall be subject to the terms hereof.
(c) Notwithstanding the foregoing, without the consent of any other Representative, Collateral Agent or First Lien Secured Party, the Designated First Lien Representative may effect amendments and modifications to this Agreement to the extent necessary to reflect any incurrence of any Additional First Lien Obligations or Additional Second Lien Obligations in compliance with this Agreement.
8.4 Information Concerning Financial Condition of the Grantors and their Subsidiaries . The First Lien Representatives, the First Lien Collateral Agents and the First Lien Secured Parties, on the one hand, and the Second Lien Representatives, the Second Lien Collateral Agents and the Second Lien Secured Parties, on the other hand, shall each be responsible for keeping themselves informed of (a) the financial condition of the Grantors and their Subsidiaries and all endorsers and/or guarantors of the First Lien Obligations or the Second Lien Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First Lien Obligations or the Second Lien Obligations. The First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties shall have no duty to advise the Second Lien Representatives, the Second Lien Collateral Agents or any other Second Lien Secured Party of information known to it or them regarding such condition or any such circumstances or otherwise. In the event the First Lien Representatives, the First Lien Collateral Agents or any of the other First Lien Secured Parties, in its or their sole discretion, undertakes at any time or from time to time to provide any such information to any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party, it or they shall be under no obligation:
(a) to make, and the First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties shall not make, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided;
(b) to provide any additional information or to provide any such information on any subsequent occasion;
(c) to undertake any investigation; or
(d) to disclose any information, which pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.
8.5 Subrogation . With respect to the value of any payments or distributions in cash, property or other assets that any of the Second Lien Representatives, the Second Lien Collateral Agents or the other Second Lien Secured Parties pays over to any of the First Lien Representatives, the First Lien Collateral Agents or the other First Lien Secured Parties under the
 
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terms of this Agreement, such Second Lien Secured Parties, Second Lien Representatives and Second Lien Collateral Agents shall be subrogated to the rights of such First Lien Representatives, First Lien Collateral Agents and First Lien Secured Parties; provided that each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, hereby agrees not to assert or enforce any such rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of First Lien Obligations has occurred. The Company and the other Grantors each acknowledges and agrees that the value of any payments or distributions in cash, property or other assets received by any Second Lien Representative, Second Lien Collateral Agent or other Second Lien Secured Party that are paid over to any First Lien Representative, First Lien Collateral Agent or other First Lien Secured Party pursuant to this Agreement shall not reduce any of the Second Lien Obligations.
8.6 Application of Payments . All payments received by any First Lien Representative, First Lien Collateral Agent or other First Lien Secured Party may be applied, reversed and reapplied, in whole or in part, to such part of the First Lien Obligations provided for in the First Lien Documents (subject to the First Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement, in each case if then in effect). Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, agrees to any extension or postponement of the time of payment of the First Lien Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security which may at any time secure any part of the First Lien Obligations and to the addition or release of any other Person primarily or secondarily liable therefor.
8.7 Additional Debt Facilities .
(a) To the extent, but only to the extent, permitted by the provisions of the First Lien Documents and the Second Lien Documents and Section 5.3, the Company may (x) incur or issue and sell one or more series or classes of Indebtedness that the Company designates as Additional First Lien Debt and/or one or more series or classes of Indebtedness that the Company designates as Additional Second Lien Debt (each, “ Additional Debt ”) or (y) incur Indebtedness under any Replacement First Lien Credit Agreement that is secured on an equal and ratable basis with the Liens (other than any First Lien Declined Liens), which shall be Additional First Lien Obligations.
Any such series or class of Additional First Lien Debt may be secured by a first-priority, senior Lien on the Collateral, in each case under and pursuant to the First Lien Collateral Documents for such Series of Additional First Lien Debt, if and subject to the condition that, unless such Indebtedness is part of an existing Series of Additional First Lien Debt represented by a First Lien Representative and First Lien Collateral Agent already party to this Agreement, the First Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect), the Additional First Lien Representative and the Additional First Lien Collateral Agent of any such Additional First Lien Debt each becomes a party to this Agreement, the First Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect) by satisfying the conditions set forth in clauses (1) through (3) of paragraph (b) of this
 
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Section 8.7. Any Indebtedness and other Initial First Lien Obligations under any Replacement First Lien Credit Agreement may be secured by Liens on an equal and ratable basis, in each case under and pursuant to the Initial First Lien Documents, if and subject to the condition that the Replacement First Lien Representative and Replacement First Lien Collateral Agent, acting on behalf of the holders of such Initial First Lien Obligations, each becomes a party to this Agreement, the First Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect) by satisfying the conditions set forth in clauses (1) through (3) of paragraph (b) of this Section 8.7. Upon any Additional First Lien Representative and Additional First Lien Collateral Agent, or Replacement First Lien Representative and Replacement First Lien Collateral Agent, as the case may be, so becoming a party hereto and becoming a party to the First Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect) in accordance with the terms thereof, all Additional First Lien Obligations of such Series or all Initial First Lien Obligations under any Replacement First Lien Credit Agreement, as applicable, shall also be entitled to be so secured by a senior Lien on the Collateral in accordance with the terms hereof and thereof.
Any such series or class of Additional Second Lien Debt may be secured by a second-priority, subordinated Lien on the Collateral, in each case under and pursuant to the relevant Second Lien Collateral Documents for such Series of Additional Second Lien Debt, if and subject to the condition, unless such Indebtedness is part of an existing Series of Additional Second Lien Debt represented by a Second Lien Representative and Second Lien Collateral Agent already party to this Agreement, the Second Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect), the Additional Second Lien Representative and Additional Second Lien Collateral Agent of any such Additional Second Lien Debt each becomes a party to this Agreement, the Second Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect) by satisfying the conditions set forth in clauses (1) through (3) of paragraph (b) of this Section 8.7. Upon any Additional Second Lien Representative and Additional Second Lien Collateral Agent so becoming a party hereto and becoming a party to the Second Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect) in accordance with the terms thereof, all Additional Second Lien Obligations of such Series shall also be entitled to be so secured by a subordinated Lien on the Collateral in accordance with the terms hereof and thereof.
(b) In order for an Additional Representative and an Additional Collateral Agent, or, in the case of a Replacement First Lien Credit Agreement, the Replacement First Lien Representative and the Replacement First Lien Collateral Agent in respect thereof, to become a party to this Agreement:
(1) such Additional Representative and such Additional Collateral Agent or such Replacement First Lien Representative and such Replacement First Lien Collateral Agent shall have executed and delivered to each other then-existing Representative (A) a Joinder Agreement substantially in the form of Exhibit I hereto (if such Representative is an Additional Second Lien
 
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Representative and such Collateral Agent is an Additional Second Lien Collateral Agent) or Exhibit II hereto (if such Representative is an Additional First Lien Representative and such Collateral Agent is an Additional First Lien Collateral Agent or in the case of a Replacement First Lien Credit Agreement) (with such changes as may be reasonably approved by the Designated First Lien Representative and such Representative and such Collateral Agent) pursuant to which (x) such Additional Representative becomes a Representative hereunder, such Additional Collateral Agent becomes a Collateral Agent hereunder and the related First Lien Secured Parties or Second Lien Secured Parties, as applicable, become subject hereto and bound hereby or (y) such Replacement First Lien Representative becomes the Initial First Lien Representative hereunder and such Replacement First Lien Collateral Agent becomes the Initial First Lien Collateral Agent hereunder, such Replacement First Lien Credit Agreement becomes the Initial First Lien Credit Agreement hereunder and such Initial First Lien Obligations and holders of such Initial First Lien Obligations become subject hereto and bound hereby and (B) a joinder agreement to the Term/ABL Intercreditor Agreement (if then in effect) in the form required thereby or such other form as may be acceptable to the parties thereto;
(2) the Company shall have delivered a Designation to each other then-existing Collateral Agent substantially in the form of Exhibit III hereto, pursuant to which a Responsible Officer of the Company shall (A) identify the Indebtedness to be designated as Additional First Lien Obligations, Additional Second Lien Obligations, or Initial First Lien Obligations, as applicable, and the initial aggregate principal amount of such Indebtedness, (B) specify the name and address of the applicable Additional Representative and Additional Collateral Agent or the Replacement First Lien Representative and Replacement First Lien Collateral Agent, (C) certify that such Additional Debt or Initial First Lien Obligations is permitted to be incurred, secured and guaranteed by each First Lien Document and Second Lien Document and that the conditions set forth in this Section 8.7 are satisfied with respect to such Additional Debt or Initial First Lien Obligations, as applicable and (D) in the case of a Replacement First Lien Credit Agreement, expressly state that such agreement giving rise to the new Indebtedness satisfies the requirements of a Replacement First Lien Credit Agreement and is designated as a Replacement First Lien Credit Agreement; and
(3) the Company shall have delivered to each other Collateral Agent true, complete and certified copies of each of the First Lien Documents or Second Lien Documents, as applicable, relating to such Additional First Lien Debt, Additional Second Lien Debt, or the Replacement First Lien Credit Agreement, as applicable.
(c) The Additional Second Lien Documents or Additional First Lien Documents, as applicable, relating to such Additional Obligations shall provide that each of the applicable Secured Parties with respect to such Additional Obligations will be subject to and bound by the provisions of this Agreement in its capacity as a holder of such Additional Obligations.
 
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(d) Upon the execution and delivery of a Joinder Agreement by an Additional First Lien Representative and an Additional First Lien Collateral Agent or an Additional Second Lien Representative and an Additional Second Lien Collateral Agent or the Replacement First Lien Representative and the Replacement First Lien Collateral Agent, in each case, in accordance with this Section 8.7, each other Representative and Collateral Agent shall acknowledge receipt thereof by countersigning a copy thereof and returning the same to such Additional First Lien Representative and such Additional First Lien Collateral Agent or such Additional Second Lien Representative and such Additional Second Lien Collateral Agent or the Replacement First Lien Representative and the Replacement First Lien Collateral Agent, as the case may be; provided that the failure of any Representative or Collateral Agent to so acknowledge or return the same shall not affect the status of such Additional Obligations as Additional First Lien Obligations or Additional Second Lien Obligations, or a Replacement First Lien Credit Agreement, as the case may be, if the other requirements of this Section 8.7 are complied with.
(e) With respect to any incurrence, issuance or sale of Indebtedness after the date hereof under the Additional First Lien Documents or Additional Second Lien Documents of a Series of Additional First Lien Debt or Series of Additional Second Lien Debt whose Representative and Collateral Agent is already each a party to this Agreement, the Term/ABL Intercreditor Agreement (if then in effect) and the First Lien Pari Passu Intercreditor Agreement or Second Lien Pari Passu Intercreditor Agreement, as applicable, the requirements of Section 8.7(b) shall not be applicable and such Indebtedness shall automatically constitute Additional First Lien Debt or Additional Second Lien Debt so long as (i) such Indebtedness is permitted to be incurred, secured and guaranteed by each First Lien Document and Second Lien Document and (ii) the provisions of paragraph (c) above have been complied with; provided , further , however that with respect to any such Indebtedness incurred, issued or sold pursuant to the terms of any Additional First Lien Documents or Additional Second Lien Documents of such existing Series of Additional First Lien Debt or Additional Second Lien Debt as such terms existed on the date the Representative and Collateral Agent for such Series of Additional First Lien Debt or Additional Second Lien Debt executed the Joinder Agreement, the requirements of clause (i) of this paragraph (e) shall be tested only as of (x) the date of execution of such Joinder Agreement, if pursuant to a commitment entered into at the time of such Joinder Agreement and (y) with respect to any later commitment or amendment to those terms to permit such Indebtedness, as of the date of such commitment and/or amendment.
8.8 Submission to Jurisdiction; Certain Waivers . Each of the Company, each other Grantor, and each Representative and each Collateral Agent, on behalf of itself and the applicable Secured Parties for whom it is acting, hereby irrevocably and unconditionally:
(a) submits, for itself and its property to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each such party
 
49

hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each such party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that each Collateral Agent and each Representative may otherwise have to bring any action or proceeding against the Borrower or any Grantor or its properties in the courts of any jurisdiction;
(b) waives, to the fullest extent it may legally and effectively do so (i) any objection it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a) of this Section 8.8 and (ii) the defense of an inconvenient forum to the maintenance of such action or proceeding; and
(c) consents to service of process in the manner provided for notices in Section 8.10. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
8.9 WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
8.10 Notices . All notices to the Second Lien Secured Parties and the First Lien Secured Parties permitted or required under this Agreement shall be sent to the applicable Second Lien Representative and the applicable First Lien Representative, respectively. Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be personally served or sent by facsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of facsimile, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed. For the purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name on the signature pages hereto or in the Joinder Agreement pursuant to which it becomes a party hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.
 
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8.11 Further Assurances . Each First Lien Representative and each First Lien Collateral Agent, on behalf of itself and the First Lien Secured Parties represented by it, each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, and the Company and each other Grantor, agree that each of them shall take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as any First Lien Representative and First Lien Collateral Agent or any Second Lien Representative and Second Lien Collateral Agent may reasonably request to effectuate the terms of and the Lien priorities contemplated by this Agreement.
8.12 Agency Capacities . Except as expressly provided herein, JPM is acting in the capacity of Initial First Lien Representative and Initial First Lien Collateral Agent solely for the Initial First Lien Secured Parties. Except as expressly provided herein, each other Representative and Collateral Agent is acting in the capacity of Representative and Collateral Agent, respectively, solely for the Secured Parties under the First Lien Documents or Second Lien Documents for which it is the named Representative or Collateral Agent, as the case may be, in the applicable Joinder Agreement.
8.13 GOVERNING LAW . THIS AGREEMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE), SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.14 Binding on Successors and Assigns . This Agreement shall be binding upon the First Lien Representatives, the First Lien Collateral Agents, the other First Lien Secured Parties, the Second Lien Representatives, the Second Lien Collateral Agents, the other Second Lien Secured Parties, the Company and the other Grantors, and their respective successors and assigns. If any of the First Lien Representatives, the First Lien Collateral Agents, the Second Lien Representatives or the Second Lien Collateral Agents resigns or is replaced pursuant to the First Lien Documents or the Second Lien Documents, as applicable, its successor shall be deemed to be a party to this Agreement and shall have all the rights of, and be subject to all the obligations of, this Agreement. No provision of this Agreement will inure to the benefit of a trustee, debtor-in-possession, creditor trust or other representative of an estate or creditor of any Grantor, including where any such trustee, debtor-in-possession, creditor trust or other representative of an estate is the beneficiary of a Lien securing Collateral by virtue of the avoidance of such Lien in an Insolvency or Liquidation Proceeding.
8.15 Section Headings . Section headings and the Table of Contents used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
8.16 Counterparts . This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission (e.g. “pdf” or “tif” format) shall be effective as delivery of a manually executed counterpart hereof.
 
51

8.17 Authorization . By its signature, each Person executing this Agreement, on behalf of such party or Grantor but not in his or her personal capacity as a signatory, represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement.
8.18 No Third Party Beneficiaries/Provisions Solely to Define Relative Rights . This Agreement and the rights and benefits hereof shall inure to the benefit of each of the parties hereto and its respective successors and assigns and shall inure to the benefit of each of the First Lien Secured Parties and the Second Lien Secured Parties. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties on the one hand and the Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties on the other hand. Nothing herein shall be construed to limit the relative rights and obligations as among the First Lien Secured Parties or as among the Second Lien Secured Parties; as among the First Lien Secured Parties, such rights and obligations are governed by, and any provisions herein regarding them are therefore subject to, the provisions of the First Lien Pari Passu Intercreditor Agreement and as among the Second Lien Secured Parties, such rights and obligations are governed by, and any provisions herein regarding them are therefore subject to, the provisions of the Second Lien Pari Passu Intercreditor Agreement ( provided that, solely as among any Initial Second Lien Secured Parties party to the Initial First Lien Credit Agreement, the Initial Second Lien Documents shall define the relative rights and priorities of such Second Lien Secured Parties (as among each other) with respect to the Collateral (including, without limitation, as to waterfalls, voting rights and intercreditor provisions contained therein as applicable among such First Lien Secured Parties)). Nothing herein shall be construed to limit the relative rights and obligations as among the parties to the Term/ABL Intercreditor Agreement; as among such Persons, such rights and obligations are governed by, and any provisions herein regarding them are therefore subject to, the provisions of the Term/ABL Intercreditor Agreement. Other than as set forth in Section 8.3, none of the Company, any other Grantor or any other creditor thereof shall have any rights hereunder and neither the Company nor any Grantor may rely on the terms hereof. Nothing in this Agreement is intended to or shall impair the obligations of the Company or any other Grantor, which are absolute and unconditional, to pay the First Lien Obligations and the Second Lien Obligations as and when the same shall become due and payable in accordance with their terms.
8.19 No Indirect Actions . Unless otherwise expressly stated, if a party may not take an action under this Agreement, then it may not take that action indirectly, or support any other Person in taking that action directly or indirectly. “Taking an action indirectly” means taking an action that is not expressly prohibited for the party but is intended to have substantially the same effects as the prohibited action.
8.20 Additional Grantors . In the event any Subsidiary shall have granted a Lien on any of its assets to secure any Secured Obligations, the Company shall cause such Subsidiary, if not already a signatory hereto, to execute an acknowledgment hereto as a “Grantor” in form and substance reasonably satisfactory to each Collateral Agent (which may include an additional counterpart signature page to this Agreement). The execution and delivery of any such acknowledgment shall not require the consent of any other party hereto. The rights and obligations of each party hereto shall remain in full force and effect notwithstanding the acknowledgment of any new Grantor as a party to this Agreement.
[Remainder of this page intentionally left blank]
 
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IN WITNESS WHEREOF, the parties hereto have executed this [Second] Lien Intercreditor Agreement as of the date first written above.

JPMORGAN CHASE BANK, N.A.,	
as Initial First Lien Representative and as Initial	
First Lien Collateral Agent
 	
By:                                                                                                   	
Name:	
Title:
 	
By:                                                                                                   	
Name:	
Title:
 	
[NOTICE ADDRESS]	
[                                ]	
as Initial Second Lien Representative and Initial	
Second Lien Collateral Agent
 	
By:                                                                                                   	
Name:	
Title:	
	
[NOTICE ADDRESS]	

	
Acknowledged and Agreed to by:	
	
AMNEAL PHARMACEUTICALS LLC
 	
By:                                                                                             	
Name:	
Title:
 	
[NOTICE ADDRESS]
 	
GRANTORS:	
[INSERT NAME OF OTHER GRANTORS]
 	
By:                                                                                             	
Name:	
Title:
 	
[NOTICE ADDRESS]	

Exhibit I to the
Second Lien Intercreditor Agreement
[FORM OF] SECOND LIEN JOINDER AGREEMENT NO. [ ] dated as of [ ], 20[ ] to the SECOND LIEN INTERCREDITOR AGREEMENT dated as of [     ], 20[ ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Second Lien Intercreditor Agreement ”), among JPMORGAN CHASE BANK, N.A., as Initial First Lien Representative and Initial First Lien Collateral Agent, [INSERT NAME], as Initial Second Lien Representative, [INSERT NAME], as Initial Second Lien Collateral Agent and the additional Representatives from time to time a party thereto, and acknowledged and agreed to by AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “ Company ”), certain subsidiaries of the Company (each a “ Grantor ”).
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Second Lien Intercreditor Agreement.
As a condition to the ability of the Company to incur Additional Second Lien Debt and to secure such Additional Second Lien Debt and related Additional Second Lien Obligations with a lien on the Collateral and to have such Additional Second Lien Debt and related Additional Second Lien Obligations guaranteed by the Grantors, in each case under and pursuant to the applicable Additional Second Lien Documents, each of the Additional Second Lien Representative and the Additional Second Lien Collateral Agent in respect of such Additional Second Lien Debt and related Additional Second Lien Obligations is required to become a Representative and Collateral Agent, respectively, under, and the Additional Second Lien Secured Parties in respect thereof are required to become subject to and bound by, the Second Lien Intercreditor Agreement. Section 8.7 of the Second Lien Intercreditor Agreement provides that such Additional Second Lien Representative and Additional Second Lien Collateral Agent may become a Representative and Collateral Agent, respectively, under, and such Additional Second Lien Secured Parties may become subject to and bound by, the Second Lien Intercreditor Agreement pursuant to the execution and delivery by the Additional Second Lien Representative and Additional Second Lien Collateral Agent of an instrument in the form of this Joinder Agreement and the satisfaction of the other conditions set forth in Section 8.7 of the Second Lien Intercreditor Agreement. The undersigned Additional Second Lien Representative (the “ New Representative ”) and Additional Second Lien Collateral Agent (the “ New Collateral Agent ”) are executing this Joinder Agreement in accordance with the requirements of the Second Lien Intercreditor Agreement.
Accordingly, the New Representative and the New Collateral Agent agree as follows:
In accordance with Section 8.7 of the Second Lien Intercreditor Agreement, the New Representative and the New Collateral Agent by their signatures below become a Second Lien Representative and a Second Lien Collateral Agent, respectively, under, and the related Additional Second Lien Secured Parties represented by it become subject to and bound by, the Second Lien Intercreditor Agreement with the same force and effect as if the New Representative and the New Collateral Agent had originally been named therein as a Second Lien Representative and a Second Lien Collateral Agent, respectively, and each of the New Representative and the New Collateral Agent, on behalf of itself and the Additional Second Lien Secured Parties represented by it, hereby agrees to all the terms and provisions of the Second
 
Exhibit I – Page 1

Lien Intercreditor Agreement applicable to it as a Second Lien Representative and a Second Lien Collateral Agent, respectively, and to the Additional Second Lien Secured Parties represented by it as Second Lien Secured Parties. Each reference to a “Representative” or “Second Lien Representative” in the Second Lien Intercreditor Agreement shall be deemed to include the New Representative, each reference to a “Collateral Agent” or “Second Lien Collateral Agent” in the Second Lien Intercreditor Agreement shall be deemed to include the New Collateral Agent and each reference to “Second Lien Secured Parties” shall include the Additional Second Lien Secured Parties represented by such New Representative and New Collateral Agent. The Second Lien Intercreditor Agreement is incorporated herein by reference.
Each of the New Representative and New Collateral Agent represents and warrants to the other Representatives, Collateral Agents and the other Secured Parties that (i) it has full power and authority to enter into this Joinder Agreement, in its capacity as [agent] [trustee], (ii) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms and the terms of the Second Lien Intercreditor Agreement and (iii) the Second Lien Documents relating to such Additional Second Lien Debt provide that, upon the New Representative’s and New Collateral Agent’s entry into this Agreement, the Additional Second Lien Secured Parties in respect of such Additional Second Lien Debt will be subject to and bound by the provisions of the Second Lien Intercreditor Agreement as Second Lien Secured Parties.
This Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Joinder Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Joinder Agreement.
Except as expressly supplemented hereby, the Second Lien Intercreditor Agreement shall remain in full force and effect.
THIS JOINDER AGREEMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS JOINDER AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Any provision of this Joinder Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and in the Second Lien Intercreditor Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to those of the invalid, illegal or unenforceable provisions.
 
Exhibit I – Page 2

All communications and notices hereunder shall be in writing and given as provided in Section 8.10 of the Second Lien Intercreditor Agreement. All communications and notices hereunder to the New Representative and the New Collateral Agent shall be given to it at the address set forth below its signature hereto.
[Remainder of this page intentionally left blank]
 
Exhibit I – Page 3

IN WITNESS WHEREOF, the New Representative and New Collateral Agent have duly executed this Joinder Agreement to the Second Lien Intercreditor Agreement as of the day and year first above written.

[NAME OF NEW REPRESENTATIVE],
as [                    ] for the holders of	
[                         ]
 	
By:                                                                                                   	
Name:	
Title:	
	
Address for notices:	

attention of:                                                                        	
Telecopy:                                                                             	
 
[NAME OF NEW COLLATERAL AGENT],
as [                    ] for the holders of	
[                             ]
 	
By:                                                                                                   	
Name:	
Title:	
 
Address for notices: 	

attention of:                                                                        	
Telecopy:                                                                             	
 
Receipt of the foregoing acknowledged:
[NAME OF APPLICABLE REPRESENTATIVE], as [Insert title of Representative]	

Exhibit I – Page 4

	
By:                                                                                                   	
Name:	
Title:
 	
Receipt of the foregoing acknowledged:	
[NAME OF APPLICABLE COLLATERAL	
AGENT],
as [Insert title of Collateral Agent]
 	
By:                                                                                                   	
Name:	
Title:	
 
Exhibit I – Page 5

Exhibit II to the
Second Lien Intercreditor Agreement
[FORM OF] FIRST LIEN JOINDER AGREEMENT NO. [ ] dated as of [ ], 20[ ] to the SECOND LIEN INTERCREDITOR AGREEMENT dated as of [    ], 20[ ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Second Lien Intercreditor Agreement ”), among JPMORGAN CHASE BANK, N.A., as Initial First Lien Representative and Initial First Lien Collateral Agent, [INSERT NAME], as Initial Second Lien Representative, [INSERT NAME], as Initial Second Lien Collateral Agent and the additional Representatives and Collateral Agents from time to time a party thereto, and acknowledged and agreed to by AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “ Company ”), certain subsidiaries and parent entities of the Company (each a “ Grantor ”).
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Second Lien Intercreditor Agreement.
As a condition to the ability of the Company to incur [Additional First Lien Debt][Initial First Lien Obligations under the Replacement First Lien Credit Agreement] after the date of the Second Lien Intercreditor Agreement and to secure such [Additional First Lien Debt and related Additional First Lien Obligations][Initial First Lien Obligations] with a lien on the Collateral and to have such [Additional First Lien Debt and related Additional First Lien Obligations][Initial First Lien Obligations] guaranteed by the Grantors, in each case under and pursuant to the [applicable Additional First Lien Documents][Initial First Lien Documents], each of the [Additional First Lien Representative and the Additional First Lien Collateral Agent in respect of such Additional First Lien Debt and related Additional First Lien Obligations][Replacement First Lien Representative and Replacement First Lien Collateral Agent] is required to become [a Representative and Collateral Agent][the Initial First lien Representative and the Initial First Lien Collateral Agent], respectively, under, and the [Additional First Lien Secured Parties][Initial First Lien Secured Parties] in respect thereof are required to become subject to and bound by, the Second Lien Intercreditor Agreement. Section 8.7 of the Second Lien Intercreditor Agreement provides that such [Additional First Lien Representative and Additional First Lien Collateral Agent may become a Representative and Collateral Agent][Replacement First Lien Representative and Replacement First Lien Collateral Agent may become the Initial First Lien Representative and Initial First Lien Collateral Agent], respectively, under, and such [Additional First Lien Secured Parties][Initial First Lien Secured Parties] may become subject to and bound by, the Second Lien Intercreditor Agreement, pursuant to the execution and delivery by the [Additional First Lien Representative and Additional First Lien Collateral Agent][Replacement First Lien Representative and Replacement First Lien Collateral Agent] of an instrument in the form of this Joinder Agreement and the satisfaction of the other conditions set forth in Section 8.7 of the Second Lien Intercreditor Agreement. The undersigned [Additional First Lien Representative][Replacement First Lien Representative] (the “ New Representative ”) and [Additional First Lien Collateral Agent][Replacement First Lien Collateral Agent] (the “ New Collateral Agent ”) are executing this Joinder Agreement in accordance with the requirements of the Second Lien Intercreditor Agreement.
 
Exhibit II – Page 1

Accordingly, the New Representative and the New Collateral Agent agree as follows:
In accordance with Section 8.7 of the Second Lien Intercreditor Agreement, the New Representative and the New Collateral Agent by their signatures below become a [First Lien Representative and a First Lien Collateral Agent][the Initial First Lien Representative and the Initial First Lien Collateral Agent], respectively, under, and the related [Additional First Lien][Initial First Lien] Secured Parties represented by it become subject to and bound by, the Second Lien Intercreditor Agreement with the same force and effect as if the New Representative and the New Collateral Agent had originally been named therein [a First Lien Representative and a First Lien Collateral Agent][the Initial First Lien Representative and the Initial First Lien Collateral Agent], respectively, and each of the New Representative and the New Collateral Agent, on behalf of itself and the [Additional First Lien][Initial First Lien] Secured Parties represented by it, hereby agrees to all the terms and provisions of the Second Lien Intercreditor Agreement applicable to it as [a First Lien Representative and a First Lien Collateral Agent][the Initial First Lien Representative and Initial First Lien Collateral Agent], respectively, and to the [Additional First Lien][Initial First Lien] Secured Parties represented by it as [First Lien Secured Parties][Initial First Lien Secured Parties]. Each reference to a [“ Representative ” or “ First Lien Representative ”][“ Initial First Lien Representative ”] in the Second Lien Intercreditor Agreement shall be deemed to [include][refer] the New Representative, each reference to a [“ Collateral Agent ” or “ First Lien Collateral Agent ”][“ Initial First Lien Collateral Agent ”] in the Second Lien Intercreditor Agreement shall be deemed to [include][refer] the New Collateral Agent and each reference to [“First Lien Secured Parties”][“Initial First Lien Secured Parties’] shall include the [Additional First Lien Secured Parties][Initial First Lien Secured Parties] represented by such New Representative and New Collateral Agent. The Second Lien Intercreditor Agreement is hereby incorporated herein by reference.
Each of the New Representative and New Collateral Agent represents and warrants to the other Representatives, Collateral Agents and the other Secured Parties that (i) it has full power and authority to enter into this Joinder Agreement, in its capacity as [agent] [trustee], (ii) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of the Second Lien Intercreditor Agreement and (iii) the [First Lien Documents relating to such Additional First Lien Debt provide][Replacement First Lien Credit Agreement provides] that, upon the New Representative’s and New Collateral Agent’s entry into this Agreement, the [Additional First Lien][Initial First Lien] Secured Parties in respect of such [Additional First Lien Debt][Initial First Lien Obligations] will be subject to and bound by the provisions of the Second Lien Intercreditor Agreement as [First Lien Secured Parties][Initial First Lien Secured Parties].
This Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Joinder Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Joinder Agreement.
Except as expressly supplemented hereby, the Second Lien Intercreditor Agreement shall remain in full force and effect.
 
Exhibit II – Page 2

THIS JOINDER AGREEMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS JOINDER AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Any provision of this Joinder Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and in the Second Lien Intercreditor Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to those of the invalid, illegal or unenforceable provisions.
All communications and notices hereunder shall be in writing and given as provided in Section  8.10 of the Second Lien Intercreditor Agreement. All communications and notices hereunder to the New Representative and the New Collateral Agent shall be given to it at the address set forth below its signature hereto.
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Exhibit II – Page 3

IN WITNESS WHEREOF, the New Representative and the New Collateral Agent have duly executed this Joinder Agreement to the Second Lien Intercreditor Agreement as of the day and year first above written.

[NAME OF NEW REPRESENTATIVE],
as [                    ] for the holders of	
[                        ]
 	
By:                                                                                                   	
Name:	
Title:
 	
Address for notices:	

attention of:                                                                        	
Telecopy:                                                                             	
 
[NAME OF NEW COLLATERAL AGENT],
as [                    ] for the holders of	
[                        ]
 	
By:                                                                                                   	
Name:	
Title:	
	
Address for notices:	

attention of:                                                                        	
Telecopy:                                                                             	
 
Receipt of the foregoing acknowledged:	
[NAME OF APPLICABLE REPRESENTATIVE],
as [Insert title of Representative]
 	
By:                                                                                                   	
Name:	
Title:	
 
Exhibit II – Page 4

	
Receipt of the foregoing acknowledged:	
[NAME OF APPLICABLE COLLATERAL	
AGENT],
as [Insert title of Collateral Agent ]
 	
By:                                                                                                   	
Name:	
Title:	
 
Exhibit II – Page 5

Exhibit III to the
Second Lien Intercreditor Agreement
[FORM OF] DEBT DESIGNATION NO. [ ] (this “ Designation ”) dated as of [ ], 20[ ] with respect to the SECOND LIEN INTERCREDITOR AGREEMENT dated as of [    ], 20[ ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Second Lien Intercreditor Agreement ”), among JPMORGAN CHASE BANK, N.A., as Initial First Lien Representative and Initial First Lien Collateral Agent for the Initial First Lien Secured Parties, [    ], as Initial Second Lien Representative, [    ], as Initial Second Lien Collateral Agent and the additional Representatives and Collateral Agent from time to time a party thereto, and acknowledged and agreed to by AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “ Company ”), and certain subsidiaries and parent entities of the Company (each a “ Grantor ”).
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Second Lien Intercreditor Agreement.
This Designation is being executed and delivered in order to designate [additional][replacement] secured Obligations of the Company and the Grantors as [Additional First Lien Debt][Additional Second Lien Debt][Initial First Lien Obligations under the Replacement First Lien Credit Agreement] entitled to the benefit of and subject to the terms of the Second Lien Intercreditor Agreement.
The undersigned, the duly appointed [ specify title of Responsible Officer ] of the Company hereby certifies on behalf of the Company that:
 
 	1.	[ Insert name of the Company or other Grantor ] intends to incur Indebtedness (the “ Designated Obligations ”) in the initial aggregate principal amount of [        ] pursuant to the following agreement: [ describe credit/loan agreement indenture or other agreement giving rise to Additional First Lien Debt or Additional Second Lien Debt, as the case may be ][ Replacement Credit Agreement ] (the “ Designated Agreement ”) which will be [Additional First Lien Obligations][Additional Second Lien Obligations][Initial First Lien Obligations] for purposes of the Second Lien Intercreditor Agreement.	
 
 	2.	The incurrence of the Designated Obligations is permitted by each applicable First Lien Document and Second Lien Document.	
 
 	3.	Conform the following as applicable; Pursuant to and for the purposes of Section 8.7 of the Second Lien Intercreditor Agreement, (i) the Designated Agreement is hereby designated as [an “Additional First Lien Document”] [an “Additional Second Lien Document”][the “Replacement First Lien Credit Agreement”] [and][,] (ii) the Designated Obligations are hereby designated as [“Additional First Lien Obligations”] [“Additional Second Lien Obligations”][“Initial First Lien Obligations] [ insert for Replacement Credit Agreements only: and (iii) the Designated Agreement satisfies the requirements of a Replacement Credit Agreement].	
 
Exhibit III – Page 1

 	4.	a. The name and address of the [Representative][Replacement First Lien Representative] for such Designated Obligations is:	
[Insert name and all capacities; Address]
Telephone:                         
Fax:                                  
Email:                             
b. The name and address of the [Collateral Agent][Replacement First Lien Collateral Agent] for such Designated Obligations is:
[Insert name and all capacities; Address]
Telephone:                                  
Fax:                                  
Email:                             
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Exhibit III – Page 2

IN WITNESS WHEREOF, the Company has caused this Designation to be duly executed by the undersigned Responsible Officer as of the day and year first above written.

AMNEAL PHARMACEUTICALS LLC	

By:	 	 	
	 	Name:	
	 	Title:	
 
Exhibit III – Page 3

EXHIBIT I
[FORM OF]
NOTE

$ [      ] .00	  	[        ], 20 [    ]	
FOR VALUE RECEIVED, the undersigned, promises to pay [          ] (hereinafter, together with its successors in title and assigns, the “ Lender ”), the principal sum of [          ] DOLLARS ($ [          ] .00), or, if less, the aggregate unpaid principal balance of the Loan made by the Lender to or for the account of the Borrower pursuant to the Credit Agreement (as hereafter defined), with interest, fees, expenses and costs at the rate and payable in the manner stated in the Credit Agreement. As used herein, the “Credit Agreement” means and refers to that certain Revolving Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Borrower ”), the Subsidiary Loan Parties from time to time party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent under the Loan Documents, and each Lender and other party from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
This is a “Note” to which reference is made in the Credit Agreement and is subject to all terms and provisions thereof. This Note is also entitled to the benefits of the Guarantee under the Collateral Agreement and is secured by the Collateral. The principal of, and interest on, this Note shall be payable at the times, in the manner, and in the amounts as provided in the Credit Agreement and shall be subject to prepayment and acceleration as provided therein. The Administrative Agent’s books and records concerning the Loan, the accrual of interest and fees thereon, and the repayment of such Loan, shall be prima facie evidence of the indebtedness to the Lender hereunder, absent manifest error.
No delay or omission by the Administrative Agent or the Lender in exercising or enforcing any of the Administrative Agent’s or Lender’s powers, rights, privileges, remedies, or discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver of any Event of Default shall operate as a waiver of any other Event of Default, nor as a continuing waiver.
The Borrower waives presentment, demand, notice, and protest, and also waives any delay on the part of the holder hereof. The Borrower assents to any extension or other indulgence (including, without limitation, the release or substitution of Collateral) permitted by the Administrative Agent, the Collateral Agent and/or the Lender with respect to this Note and/or any Collateral Document or any extension or other indulgence with respect to any other liability or any collateral given to secure any other liability of the Borrower or any other Person obligated on account of this Note.

This Note shall be binding upon the Borrower and upon its successors, assigns, and representatives, and shall inure to the benefit of the Lender and its successors, endorsees and assigns.
The Borrower agrees that any action or proceeding arising out of or relating to this Note or for recognition or enforcement of any judgment, may be brought in the courts of the state of New York sitting in New York City in the Borough of Manhattan or of any United States federal court sitting in the Borough of Manhattan, and any appellate court from any thereof, and by execution and delivery of this Note, the Borrower and the Lender each consent, for itself and in respect of its property, to the exclusive jurisdiction of those courts. To the fullest extent permitted by applicable law, the Borrower irrevocably waives any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Note in the courts of the state of New York sitting in New York City in the Borough of Manhattan or of the United States federal court sitting in the Borough of Manhattan, and any appellate court from any thereof.
THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
The Borrower makes the following waiver knowingly, voluntarily, and intentionally, and understands that the Administrative Agent and the Lender, in the establishment and maintenance of their respective relationship with the Borrower contemplated by this Note, are each relying thereon. THE BORROWER, AND THE LENDER BY ITS ACCEPTANCE HEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY).
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IN WITNESS WHEREOF, the undersigned has caused this Note to be duly executed and delivered by its duly authorized officer as of the date first above written.

AMNEAL PHARMACEUTICALS LLC , as	
Borrower	

By:	 	 	
	 	Name:	
	 	Title:	
[SIGNATURE PAGE TO NOTE]

											
LOANS AND PAYMENTS
 	
Date	  	Amount
of Loan	  	Maturity
Date	  	Payments of
Principal/Interest	  	Principal
Balance
of Note	  	Name of Person
Making this
Notation	

EXHIBIT J
FILO INTERCREDITOR PROVISIONS
[attached]

EXHIBIT J
FILO INTERCREDITOR PROVISIONS
Section 1 Definitions .
In this Exhibit J (the “ FILO Intercreditor Provisions ”), capitalized terms used but not defined herein shall have the meanings assigned thereto in the Agreement to which this Exhibit is attached. In addition, the following terms shall have the following meanings:
“ Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto.
“ Bankruptcy Law ” means the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors as now or hereafter in effect.
“ Collateral Proceeds ” means any proceeds, dividends, distributions or other payments (whether in cash, securities or other property) in respect of, or in substitution or exchange for, any Collateral or any Liens or claims on, based on or otherwise arising from or with respect to any Collateral (including claims in any Insolvency or Liquidation Proceeding), or from any sale or other disposition of any Collateral or any liquidation, foreclosure or similar transaction with respect to any Collateral.
“ Insolvency or Liquidation Proceeding ” means (a) any voluntary or involuntary case or proceeding under any Bankruptcy Law with respect to any Loan Party, (b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Loan Party or with respect to any of its assets, (c) any liquidation, dissolution, reorganization or winding up of any Loan Party whether voluntary or involuntary and whether or not involving insolvency or bankruptcy or (d) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Loan Party.
“ Refinancing Term Loan Obligations ” means all present or future loans, advances, debts, liabilities and obligations (whether or not performance is then required or contingent, or such amounts are liquidated or determinable) owing by any Loan Party to any Term Loan Claimholder in respect of any Refinancing Term Loan, whether or not evidenced by a Note, arising under the Agreement or any of the other Loan Documents, including all principal, interest, fees, expenses, charges, indemnities and other amounts (including interest, fees, expenses and other amounts accrued or incurred on and after the filing of a petition initiating any Insolvency or Liquidation Proceeding, whether or not such interest or fees are deemed to accrue, or such expenses or other amounts are incurred, after the filing of such petition and whether or not allowed or allowable as a claim in such proceeding).
“ Revolving Facility Claimholder ” means, at any relevant time, the holders of Revolving Facility Claims at such time, including without limitation the Revolving Lenders and the Administrative Agent and the Collateral Agent to the extent it is owed any Revolving Facility Claims by any Loan Party.
 
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“ Term Loan Claimholder ” means, at any relevant time, the holders of Refinancing Term Loan Obligations at such time, including without limitation the Refinancing Term Loan Lenders and the Administrative Agent and the Collateral Agent to the extent it is owed any Refinancing Term Loan Obligations by any Loan Party.
Section 2 Agreements Among Claimholders .
(a) In any Insolvency or Liquidation Proceeding, the Revolving Facility Claimholders may seek adequate protection in the form of current post-petition interest payments, incurred fees and expenses, or other cash payments. If, in any Insolvency or Liquidation Proceeding, the Revolving Facility Claimholders and the Term Loan Claimholders as a group are granted adequate protection in the form of current post-petition interest payments, incurred fees and expenses, or other cash payments, then the Term Loan Claimholders agree that the Revolving Facility Claimholders shall be entitled to receive all such payments until they have actually received the full amount of post-petition interest, fees, and expenses owed or to be owed thereto as of the date of each such payment(s), before any distribution from, or in respect of, any such post-petition payments may be made to the Term Loan Claimholders, with the Term Loan Claimholders hereby acknowledging and agreeing to turn over to the Revolving Facility Claimholders any Collateral Proceeds (including proceeds of post-petition assets) otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Term Loan Claimholders.
(b) In any Insolvency or Liquidation Proceeding, the Term Loan Claimholders shall be entitled to vote on any proposed plan under Chapter 11 of the Bankruptcy Code, but agree they shall not support any plan inconsistent with the payment priorities set forth in the Agreement. The Term Loan Claimholders further agree that they will not raise any objection to, oppose, or otherwise take any action that could hinder, delay, interfere with, or impede the approval and confirmation of any plan under Chapter 11 of the Bankruptcy Code that is supported or proposed by the Required Lenders.
(c) The Term Loan Claimholders agree that in any Insolvency or Liquidation Proceeding, their claims in respect of the Collateral or otherwise would not be “substantially similar” to those of the Revolving Facility Claimholders, as such term is utilized in Section 1122(a) of the Bankruptcy Code, and, therefore, shall be placed into a separate class of creditors from those of the Revolving Facility Claimholders for voting and all other purposes under any proposed plan under Chapter 11 of the Bankruptcy Code and will in any case not raise any objection to, oppose or otherwise take action that could interfere with such treatment of their claims in such manner. The Term Loan Claimholders further agree that they will not vote to accept any proposed plan under Chapter 11 of the Bankruptcy Code that does not so separately classify their claims from those of the Revolving Facility Claimholders (except to the extent they are otherwise expressly instructed to do so by the Required Lenders or their agent).
(d) If, notwithstanding the foregoing clause (c), in any Insolvency or Liquidation Proceeding, it is held that the claims of the Revolving Facility Claimholders and Term Loan Claimholders in respect of the Collateral constitute only one secured claim (rather than separate classes of secured claims) or are placed in the same class for voting or distribution
 
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purposes, then the Revolving Facility Claimholders shall be entitled to receive, in addition to Collateral Proceeds distributed to them from, or in respect of, principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest, fees, costs, premium and other charges, irrespective of whether all or any portion of the claim for such amounts is allowed or allowable in such Insolvency or Liquidation Proceeding pursuant to Section 502 or Section 506(b) of the Bankruptcy Code or otherwise, until the Discharge of ABL Revolving Claims, before any distribution of Collateral Proceeds is made in respect of the claims held by the Term Loan Claimholders, with the Term Loan Claimholders hereby acknowledging and agreeing to promptly turn over to the Administrative Agent for distribution to the Revolving Facility Claimholders in accordance with Section 2.18(3) of the Agreement any Collateral Proceeds otherwise received or receivable by them, without offset, defense, deduction or counterclaim of any kind, nature or description to the extent necessary to effectuate the intent of this sentence, until the Discharge of ABL Revolving Claims, even if such turnover has the effect of reducing the claim or recovery of the Term Loan Claimholders.
(e) If (i) any Revolving Facility Claims are determined to be unsecured in part for purposes of Section 506(a) of the Bankruptcy Code or otherwise, but would not have been deemed unsecured in part for such purposes, or would have been deemed to be unsecured in part by a lesser amount for such purposes, or (ii) any payments received in respect of any Revolving Facility Claims are voided, set aside or otherwise required to be returned, but would not have been voided, set aside or otherwise required to be returned, in either case if the Refinancing Term Loans had been subject to a separate junior lien on the Collateral, and any payment or distribution is made in respect of the Collateral to or for the benefit or account of the Term Loan Claimholders, such payment or distribution shall be held in trust for the benefit of Revolving Facility Claimholders up to an amount equal to the additional amount that would have been paid, payable or distributed in respect of the Revolving Facility Claims, or not voided, set aside or otherwise required to be returned, if such separate junior lien had existed, and shall be promptly transferred or delivered to the Administrative Agent for application to the Revolving Facility Claims in the manner provided in Section 2.18(3) of the Agreement.
(f) Anything contained herein to the contrary notwithstanding, the Term Loan Claimholders shall not be entitled to share in or receive any Collateral Proceeds or any liens or claims on, based on or otherwise arising from or with respect to any Collateral (including claims in any Insolvency or Liquidation Proceeding), until the Discharge of ABL Revolving Claims (or to the extent that the aggregate amount of the Revolving Facility Claims and Refinancing Term Loan Obligations then outstanding exceeds the aggregate value of the Collateral (net of prior liens and encumbrances) so that no portion of the claims of the Revolving Facility Claimholders in such Insolvency or Liquidation Proceeding shall be deemed an unsecured claim as a result of such excess; provided that in no such event shall the Term Loan Claimholders be entitled to receive any payments in cash with respect to the foregoing (other than post-petition interest) until the Discharge of ABL Revolving Claims).
(g) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Lien on any Collateral securing any Revolving Facility Claims, and any Refinancing Term Loan Obligations and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, any other applicable law or any Loan Document, or any other circumstance whatsoever, the Collateral Agent, for itself and on behalf of the Revolving
 
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Facility Claimholders and the Term Loan Claimholders, agrees that Liens on any Collateral securing any Revolving Facility Claims and any Refinancing Term Loan Obligations shall be of equal priority, but shall, for the avoidance of doubt, be subject in all cases to Section 2.18(3) of the Agreement and to these FILO Intercreditor Provisions.
Section 3 Exercise of Remedies .
(a) So long as the Discharge of ABL Revolving Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Borrower or any other Loan Party:
(i) the Term Loan Claimholders:
(A) will not, independently without the express consent and, if requested by the Administrative Agent or the Required Lenders, a joinder by the Required Lenders (or the Administrative Agent on their behalf), exercise or seek to exercise any rights or remedies (including any right of set-off or recoupment) with respect to any Collateral (including the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Term Loan Claimholders and/or the Administrative Agent is a party) or institute or commence (or join with any other Person, other than the Required Lenders, in commencing) any enforcement, collection, execution, levy or foreclosure action or proceeding (including any Insolvency or Liquidation Proceeding) with respect to any Lien held by it or for its benefit under the Security Documents or otherwise;
(B) will not contest, protest or object to any foreclosure proceeding or action brought by the Revolving Facility Claimholders or the Administrative Agent, on behalf of any or all of the Revolving Facility Claimholders, or any other exercise by the Revolving Facility Claimholders, or the Administrative Agent, on behalf of any or all of the Revolving Facility Claimholders, of any rights and remedies relating to the Collateral or otherwise under the Security Documents, applicable law or otherwise, provided that the respective interests of the Term Loan Claimholders attach to the proceeds thereof, subject to the relative priorities described in Section 2.18(3) of the Agreement;
(C) will not object to the forbearance by the Revolving Facility Claimholders, or the Administrative Agent, on behalf of the Revolving Facility Claimholders, or the refusal of the Revolving Facility Claimholders, or the Administrative Agent, on behalf of the Revolving Facility Claimholders, to consent to any requested act by the Term Loan Claimholders, or from the Revolving Facility Claimholders, or the Administrative Agent, on behalf of the Revolving Facility Claimholders, bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral; and
 
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(D) will not, independently, without the express written consent and, if required by the Administrative Agent or the Required Lenders, a joinder by the Required Lenders, file, pursuant to Section 109 or 303 of the Bankruptcy Code or otherwise, a petition in order to commence an Insolvency or Liquidation Proceeding against any Borrower and/or any other Loan Party (an “ Involuntary Insolvency Proceeding ”). In the event that any Revolving Facility Claimholder or the Administrative Agent, acting on behalf of the Revolving Facility Claimholders, files a petition with the bankruptcy court pursuant to Section 109 of the Bankruptcy Code in order to commence an Involuntary Insolvency Proceeding, the Term Loan Claimholders agree that they will not oppose such petition or support any Person opposing such petition;
(E) shall not (and hereby waive any right to) take any action to challenge, contest or support any other Person in contesting or challenging, directly or indirectly, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, perfection, priority or enforceability of a Lien securing all or any portion of any Revolving Facility Claims held (or purported to be held) by or on behalf of the any Revolving Facility Claimholders (or Administrative Agent or Collateral Agent on behalf thereof) or any agent or trustee therefor in any Collateral.
(ii) Subject to Section 4 of these FILO Intercreditor Provisions, the Revolving Lenders and the Administrative Agent, acting on behalf of the Revolving Facility Claimholders, shall have the exclusive right to enforce rights, exercise remedies (including set-off and the right to credit bid their debt) and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Term Loan Claimholders or the Administrative Agent, acting on behalf of the Term Loan Claimholders; except, however, that, if requested by the Administrative Agent, the Term Loan Claimholders shall join and shall otherwise support any such action taken by the Revolving Facility Claimholders; provided, that
(A) in any Insolvency or Liquidation Proceeding commenced by or against any Borrower or any other Loan Party, the Term Loan Claimholders may file a proof of claim or statement of interest with respect to the Refinancing Term Loan Obligations;
(B) the Term Loan Claimholders may join in any action undertaken by the Revolving Facility Claimholders in order to preserve or protect the Lien of the Collateral Agent on the Collateral; and
(C) the Term Loan Claimholders shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Term Loan Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of these FILO Intercreditor Provisions.
 
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In exercising rights and remedies with respect to the Collateral, the Revolving Lenders and the Collateral Agent, on behalf of the Revolving Facility Claimholders, may enforce the provisions of the Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. The Term Loan Claimholders agree that the Revolving Facility Claimholders are not acting as the agent of the Term Loan Claimholders and do not otherwise owe them any fiduciary duty, and may instead act for all purposes in a manner that maximizes the interests of the Revolving Facility Claimholders. Such exercise and enforcement shall include the rights of an agent appointed by the Required Lenders to sell or otherwise dispose of Collateral upon foreclosure, or to consent to the sale or other disposition of Collateral by or on behalf of any Loan Party, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(b) The Refinancing Term Lenders agree that they will not take or receive any Collateral Proceeds in connection with the exercise of any right or remedy (including set-off or recoupment) with respect to any Collateral, and that any Collateral or Collateral Proceeds taken or received by the Collateral Agent, for the benefit of the Term Loan Claimholders, will be paid over to, or held by, the Collateral Agent for the benefit of the Revolving Facility Claimholders, unless and until the Discharge of ABL Revolving Claims occurs. Without limiting the generality of the foregoing, unless and until the Discharge of ABL Revolving Claims occurs, except as expressly provided in Section 3(a)(ii) of these FILO Intercreditor Provisions, the sole right of the Term Loan Claimholders with respect to the Collateral is for the Collateral Agent to hold a Lien on the Collateral to secure the Refinancing Term Loan Obligations owing to them pursuant to the Loan Documents for the period and to the extent granted therein.
(c) Subject to the proviso in clause (ii) of Section 3(a) and Section 3(d) of these FILO Intercreditor Provisions, the Refinancing Term Lenders agree that (i) the Term Loan Claimholders will not take any action that would hinder, delay or impede or object to any exercise of remedies of the Revolving Facility Claimholders (or the Collateral Agent on behalf of any or all of the Revolving Facility Claimholders or in accordance with the directions of the Required Lenders) under the Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise, and whether by the Administrative Agent on behalf of the Revolving Facility Claimholders or by any Loan Party with the consent of the Required Lenders, and (ii) the Refinancing Term Lenders hereby waive any and all rights they may have as a secured creditor or otherwise to object to the manner or order in which the Revolving Loan Claimholders (or the Administrative Agent on behalf of the Revolving Loan Claimholders) seek to enforce or collect the Revolving Facility Claims or the Liens granted in any of the Collateral.
(d) The Refinancing Term Lenders hereby acknowledge and agree that no covenant, agreement or restriction contained in the Loan Documents shall be deemed to restrict in any way the rights and remedies of the Revolving Facility Claimholders with respect to the Collateral as set forth in the Agreement (including, without limitation, these FILO Intercreditor Provisions) and the other Loan Documents.
 
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(e) If any Term Loan Claimholder, contrary to the Agreement (including, without limitation, these FILO Intercreditor Provisions) commences or participates in any action or proceeding against any Loan Party or the Collateral, the Administrative Agent, the Collateral Agent or the Revolving Lenders may interpose in the name of the Revolving Facility Claimholders the making of the Agreement (including, without limitation, these FILO Intercreditor Provisions) as a defense or dilatory plea.
(f) Should any Term Loan Claimholder, contrary to the Agreement (including, without limitation, these FILO Intercreditor Provisions), in any way take, or attempt or threaten to take, any action with respect to the Collateral (including any attempt to realize upon or enforce any remedy with respect to the Agreement (including, without limitation, these FILO Intercreditor Provisions)), or fail to take any action required by these FILO Intercreditor Provisions, the Administrative Agent, the Collateral Agent or the Revolving Lenders (in its own name or in the name of a Loan Party) may obtain relief against such Term Loan Claimholder by injunction, specific performance and/or other appropriate equitable relief, it being understood and agreed by the Term Loan Claimholders that (i) the Revolving Facility Claimholders’ damages from such actions may be difficult to ascertain and may be irreparable, and (ii) the Term Loan Claimholders waive any defense that the Revolving Facility Claimholders cannot demonstrate damage or can be made whole by the awarding of damages and any requirement for the posting of a bond.
Section 4 Insolvency and Liquidation Proceedings .
(a) Use of Cash Collateral and Financing Issues . Until the Discharge of ABL Revolving Claims has occurred, if any Borrower or any other Loan Party shall be subject to any Insolvency or Liquidation Proceeding and the Required Lenders, or the Administrative Agent, acting on behalf of the Revolving Facility Claimholders, shall desire to permit or consent to the use of cash collateral on which the Revolving Loan Claimholders or any other creditor has a Lien or to permit, consent to or provide any Borrower or any other Loan Party obtaining financing, (including under the Agreement) under Section 363 or Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (each, a “ DIP Financing ”), then the Term Loan Claimholders and the Administrative Agent, acting on behalf of the Term Loan Claimholders, (A) agree that they will raise no objection to such use of cash collateral or DIP Financing, nor support any other Person objecting to, such use of cash collateral or DIP Financing and will not request any form of adequate protection or any other relief in connection therewith (except as agreed by the Administrative Agent, acting on behalf of the Revolving Facility Claimholders, or to the extent expressly permitted by Section 4(d) of these FILO Intercreditor Provisions) and, (i) to the extent the Liens securing the Revolving Facility Claims are subordinated to any such DIP Financing provided by the Revolving Lenders, the Term Loan Claimholders agree that the Collateral Agent may subordinate the Liens in the Collateral to the extent held for the benefit of the Term Loan Claimholders to (x) the Liens securing such DIP Financing (and all obligations relating thereto), (y) any adequate protection Liens provided to the Collateral Agent on behalf of the Revolving Facility Claimholders or any of them (or any other agent on their behalf) and (z) any “carveout” for professional or United States Trustee fees agreed to by the Revolving Lenders or the Administrative Agent (or any other agent), acting on behalf of the Revolving Facility Claimholders and (ii) to the extent the Liens securing the Revolving Facility Claims are pari passu with any such DIP Financing provided by the Revolving Lenders, the Term Loan Claimholders agree that the Administrative Agent may subordinate any Liens or payments with respect to the Collateral or other receipt of any Collateral Proceeds to the extent held for the benefit of the Term Loan Claimholders to (x) any Lien securing or payment to, receipt by, or
 
J-7

rights of, the holders of such DIP Financing (and all obligations relating thereto), (y) the Collateral Agent on behalf of the Revolving Facility Claimholders in connection with any adequate protection Liens provided to the Collateral Agent on behalf of the Revolving Facility Claimholders or any of them (or any other agent on their behalf) and (z) any “carveout” for professional or United States Trustee fees agreed to by the Revolving Lenders or the Administrative Agent (or any other agent), acting on behalf of the Revolving Facility Claimholders; and (B) agree that notice received two (2) calendar days prior to the entry of an order approving such usage of cash collateral or approving such DIP Financing shall be adequate notice. If any Loan Party shall be subject to any Insolvency or Liquidation Proceeding, the Term Loan Claimholders agree that (other than with respect to any DIP Financing provided by any or all of the Revolving Lenders or consented to by the Required Lenders in accordance with the immediately preceding sentence and except as otherwise may be instructed by the Required Lenders) they will not consent to provide or participate in, or otherwise support, any DIP Financing that, pursuant to Section 364(d) of the Bankruptcy Code or otherwise, would be secured by a lien on any portion of the Collateral that is senior or equal to (and not subject to Section 2.18(3) of the Agreement in the same manner as the Refinancing Term Loan Obligations) the lien of the Collateral Agent for the benefit of the any or all of the Revolving Facility Claimholders (or any other agent acting on their behalf) on the Collateral. The Term Loan Claimholders further agree that, except as otherwise instructed by Required Facility Claimholders, they will join in or otherwise support any objection filed by the Revolving Lenders to any proposed DIP Financing by any Person that would be secured by a lien on any portion of the Collateral that is senior or equal to the liens of the Collateral Agent held for the benefit of the Revolving Facility Claimholders on the Collateral.
(b) Sale Issues . The Term Loan Claimholders agree that they will not raise any objection to or oppose a sale or other disposition of any Collateral (including any post-petition assets subject to liens in favor of the Lenders or the Collateral Agent on behalf of any Lenders or any other agent) free and clear of its Liens or other claims under Section 363 or 1129 of the Bankruptcy Code if the Required Lenders under the Agreement have consented to such sale or disposition of such assets, so long as the interests of the Term Loan Claimholders in the Collateral (and any post-petition assets subject to liens in favor of the Lenders or the Collateral Agent on behalf of Lenders or any other agent) attach to the proceeds thereof, subject to the terms of the Agreement (including, without limitation, these FILO Intercreditor Provisions). If requested by the Required Lenders in connection therewith, the Term Loan Claimholders shall affirmatively consent to such a sale or disposition and take such other action as may be required in connection therewith.
(c) Relief from the Automatic Stay . Until the Discharge of ABL Revolving Claims has occurred, the Term Loan Claimholders agree that none of them shall (i) seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, without the prior written consent of, and, if required by Agent or the Required Lenders, a joinder in any such action by, the Required Lenders, or (ii) oppose any request by any Revolving Facility Claimholder (or the Administrative Agent on behalf of any Revolving Facility Claimholder) to seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral.
 
J-8

(d) Adequate Protection .
(i) The Term Loan Claimholders agree that none of them shall contest (or support any other person contesting) (A) any request by the Revolving Facility Claimholders or the Administrative Agent, acting on behalf of the Revolving Facility Claimholders, for adequate protection or (B) any objection by the Revolving Facility Claimholders to any motion, relief, action or proceeding based on the Revolving Facility Claimholders claiming a lack of adequate protection. In any Insolvency or Liquidation Proceeding, the Term Loan Claimholders may not, without the express written consent of, or joinder by, the Required Lenders, independently seek adequate protection in respect of the Refinancing Term Loan Obligations. In the event the Revolving Facility Claimholders seek or request adequate protection in respect of Revolving Facility Claims and such adequate protection is granted in the form of additional collateral, then the Term Loan Claimholders agree that any payments in respect of any Lien on such additional collateral securing the Refinancing Term Loan Obligations and any other receipt of Collateral Proceeds with respect thereto shall be subordinated to the rights in respect of such Liens securing the Revolving Facility Claims and any DIP Financing (and all obligations relating thereto) and to any other Liens granted to the Revolving Facility Claimholders (or the Collateral Agent or any other agent for the benefit of any or all of Revolving Facility Claimholders) as adequate protection, any payment or other receipt of Collateral Proceeds with respect to any of the foregoing and any rights with respect thereto, in each case on the same basis as set forth in Section 2.18(3) of the Agreement.
(ii) Similarly, if the Revolving Facility Claimholders and the Term Loan Claimholders are granted adequate protection in the form of an administrative expense or superpriority claim, then the Term Loan Claimholders agree that any payment or other receipt with respect to any of the foregoing will be subordinated in all respects to any payment or other receipt with respect to any of the foregoing and any rights with respect thereto of the Revolving Facility Claimholders in such superpriority claim.
(e) No Waiver . Nothing contained herein shall prohibit or in any way limit the Revolving Facility Claimholders or the Administrative Agent, acting on behalf of the Revolving Facility Claimholders, from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by the Term Loan Claimholders in violation of the Agreement (including, without limitation, these FILO Intercreditor Provisions), including the seeking by the Term Loan Claimholders or the Administrative Agent, acting on behalf of the Term Loan Claimholders, of adequate protection or the asserting by the Term Loan Claimholders or the Administrative Agent, acting on behalf of the Term Loan Claimholders, of any of its rights and remedies under the Loan Documents or otherwise without the express written consent of the Required Lenders; provided, however, that this Section 4(e) shall not limit the rights of the Term Loan Claimholders under the proviso in Section 3(a)(ii) or under Section 4(d) or Section 4(h), in each case of these FILO Intercreditor Provisions.
 
J-9

(f) Avoidance Issues . In addition to any other rights provided to the Revolving Facility Claimholders hereunder (including Section 2(e) of these FILO Intercreditor Provisions), if any Revolving Facility Claimholder is required in any Insolvency or Liquidation Proceeding, or otherwise, to turn over or otherwise pay to the estate of any Borrower or any other Loan Party any amount in respect of a Revolving Facility Claim (a “ Recovery ”), then such Revolving Facility Claimholders shall be entitled to a reinstatement of Revolving Facility Claims with respect to all such recovered amounts. If the Agreement (including, without limitation, these FILO Intercreditor Provisions) shall have been terminated prior to such Recovery, the Agreement (including, without limitation, these FILO Intercreditor Provisions), shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. Collateral or Collateral Proceeds received by the Term Loan Claimholders or the Administrative Agent, acting on behalf of the Term Loan Claimholders, after the Discharge of ABL Revolving Claims and prior to the reinstatement of such Revolving Facility Claims shall be delivered to the Revolving Lenders upon such reinstatement.
(g) Reorganization Securities . If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a plan of reorganization or similar dispositive restructuring plan, both on account of Revolving Facility Claims and on account of Refinancing Term Loan Obligations, then, to the extent the debt obligations distributed on account of the Revolving Facility Claims and on account of the Refinancing Term Loan Obligations are secured by Liens upon the same property, the provisions of the Agreement (including, without limitation, these FILO Intercreditor Provisions) will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
(h) Post-Petition Claims .
(i) Neither the Term Loan Claimholders nor the Administrative Agent, acting on behalf of the Term Loan Claimholders, shall oppose or seek to challenge any claim by the Revolving Facility Claimholders or the Administrative Agent, acting on behalf of the Revolving Facility Claimholders, for allowance in any Insolvency or Liquidation Proceeding of Revolving Facility Claims consisting of post-petition interest, fees, costs, charges or expenses to the extent of the value of the Collateral subject to the Lien of the Administrative Agent to secure the Revolving Facility Claims, without regard to the existence of the Lien of the Administrative Agent to secure the Refinancing Term Loan Obligations.
(ii) Neither the Revolving Facility Claimholders nor the Administrative Agent, acting on behalf of the Revolving Facility Claimholders shall oppose or seek to challenge any claim by the Term Loan Claimholders or the Administrative Agent, acting on behalf of the Term Loan Claimholders, for allowance in any Insolvency or Liquidation Proceeding of Refinancing Term Loan Obligations consisting of post-petition interest, fees, costs, charges or expenses to the extent of the value of the Term Loan Claimholders’ Lien on the Collateral (after taking into account the Revolving Facility Claims).
 
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(i) Waiver . The Term Loan Claimholders waive any claim they may hereafter have against the Revolving Facility Claimholders arising out of the election of the Revolving Facility Claimholders or the Administrative Agent, acting on behalf of the Revolving Facility Claimholders, of the application of Section 1111(b)(2) of the Bankruptcy Code, or out of any cash collateral or financing arrangement or out of any grant of a security interest in connection with the Collateral in any Insolvency or Liquidation Proceeding.
(j) Expense Claims . Neither the Term Loan Claimholders nor the Administrative Agent, acting on behalf of the Term Loan Claimholders, will (i) contest the payment of fees, expenses or other amounts to any Revolving Facility Claimholder or the Administrative Agent, acting on behalf of the Revolving Facility Claimholders, under Section 506(b) of the Bankruptcy Code or otherwise to the extent provided for in the Agreement (including, without limitation, these FILO Intercreditor Provisions) or (ii) assert or enforce, at any time prior to the Discharge of ABL Revolving Claims, any claim under Section 506(c) of the Bankruptcy Code senior to or on parity with the Revolving Facility Claims for costs or expenses of preserving or disposing of any Collateral.
(k) Other Matters . To the extent that any Term Loan Claimholder or the Administrative Agent, acting on behalf of the Term Loan Claimholders, has or acquires rights under Section 361, Section 363 or Section 364 of the Bankruptcy Code with respect to any of the Collateral, the Term Loan Claimholders agree not to assert any of such rights without the prior written consent of the Required Lenders; provided that if requested by the Required Lenders, the Refinancing Term Lenders shall timely exercise such rights in the manner requested by the Required Lenders, including any rights to payments in respect of such rights.
(l) Effectiveness in Insolvency or Liquidation Proceedings . Sections 1 through Section 4 of these FILO Intercreditor Provisions, which the parties hereto expressly acknowledge is a “subordination agreement” under Section 510(a) of the Bankruptcy Code, shall be effective before, during and after the commencement of an Insolvency or Liquidation Proceeding. All references in such Sections to any Loan Party shall include such Person as a debtor-in-possession and any receiver or trustee for such Person in any Insolvency or Liquidation Proceeding.
 
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Schedule 1.01(1)
Existing Letters of Credit

Letter of Credit Number	  	Issuing Bank	  	Current Amount	  	Renewal Date	  	Beneficiary	
6644/S25975	  	RBC	  	$337,575.39	  	2/28/2018 (auto renews)	  	AREP Ft. Wash LLC	

Schedule 1.01(2)
Collateral Locations
The locations listed on Schedule 3.15(1) and Schedule 3.15(2) are incorporated herein by reference.
Third Party Locations :

Third Party Name	  	Third Party Address	
		
Catalent Pharma Solutions, Inc.	  	1100 Enterprise Drive, Winchester, KY	
		
Reed-Lane, Inc.	  	359 Newark Pompton Turnpike, Wayne, NJ	
		
UPS	  	1910 Danielson Place, Memphis, TN	
		
Halo Pharmaceuticals, Inc.	  	30 N. Jefferson Road, Whippany, NJ 07981	
		
Phillips Plastics Corporation	  	428 Technology Drive East, Menomonie, WI 54751	

Schedule 2.01
Commitments
					
Lender	  	Revolving Facility
Commitment	 	
JPMorgan Chase Bank, N.A.	  	$	90,000,000	 	
Bank of America, N.A.	  	$	60,000,000	 	
Royal Bank of Canada	  	$	20,000,000	 	
Bank of the West	  	$	50,000,000	 	
Capital One, N.A.	  	$	50,000,000	 	
SunTrust Bank	  	$	50,000,000	 	
Goldman Sachs Bank USA	  	$	50,000,000	 	
Wells Fargo Bank, National Association	  	$	50,000,000	 	
Citizens Bank, N.A.	  	$	25,000,000	 	
U.S. Bank National Association	  	$	25,000,000	 	
MUFG Union Bank, N.A.	  	$	25,000,000	 	
State Bank of India	  	$	25,000,000	 	
	  	 	 	 	
Total:	  	$	500,000,000	 	

Schedule 3.06
Subsidiaries

Owner	  	Subsidiary	  	Type of
Organization	  	Jurisdiction
of
Organization / Formation	  	% of
Equity
Interests
Owned	 	
AMNEAL PHARMACEUTICALS LLC	  	UK Holding Company Limited	  	Private Company Limited By Shares	  	England and Wales	  	 	100	% 	
AMNEAL PHARMACEUTICALS LLC	  	AMNEAL PHARMACEUTICALS OF NEW YORK, LLC	  	Limited Liability Company	  	Delaware	  	 	100	% 	
AMNEAL PHARMACEUTICALS LLC	  	Amneal Biosciences LLC	  	Limited Liability Company	  	Delaware	  	 	100	% 	
AMNEAL PHARMACEUTICALS LLC	  	Amneal-Agila, LLC	  	Limited Liability Company	  	Delaware	  	 	100	% 	
AMNEAL PHARMACEUTICALS LLC	  	Impax Laboratories, LLC	  	Limited Liability Company	  	Delaware	  	 	100	% 	
AMNEAL PHARMACEUTICALS LLC	  	Amneal Pharmaceuticals Dutch Holding Company, LLC	  	Limited Liability Company	  	Delaware	  	 	100	% 	
AMNEAL PHARMACEUTICALS LLC	  	Amneal Pharmaceuticals Holding Cooperatief U.A.	  	Cooperative	  	Netherlands	  	 	99	% 	
Amneal Pharmaceuticals Dutch Holding Company, LLC	  	Amneal Pharmaceuticals Holding Cooperatief U.A.	  	Cooperative	  	Netherlands	  	 	1	% 	
UK Holding Company Limited	  	Amneal Pharma Holding GmbH	  	Gesellschaft mit beschränkter Haftung	  	Switzerland	  	 	100	% 	

											
Owner	  	Subsidiary	  	Type of
Organization	  	Jurisdiction
of
Organization / Formation	  	% of
Equity
Interests
Owned	 	
Amneal Pharma Holding GmbH	  	Bioeq Pharma GmbH	  	Gesellschaft mit beschränkter Haftung	  	Germany	  	 	100	% 	
Amneal Pharma Holding GmbH	  	Amneal Singapore	  	Private Company With Limited Liability	  	Singapore	  	 	100	% 	
Amneal Pharma Holding GmbH	  	Amneal Netherlands BV	  	Besloten Vennootschap	  	Netherlands	  	 	100	% 	
Amneal Pharma Holding GmbH	  	Amneal Pharma Co GmbH	  	Gesellschaft mit beschränkter Haftung	  	Switzerland	  	 	100	% 	
Amneal Pharma Holding GmbH	  	Amneal Ireland Ltd.	  	Private Company Limited By Shares	  	Ireland	  	 	100	% 	
Amneal Pharma Holding GmbH	  	Amneal Pharma UK Holdings Ltd.	  	Private Company Limited By Shares	  	England and Wales	  	 	60	% 	
Bioeq Pharma GmbH	  	Amneal Deutschland GmbH	  	Gesellschaft mit beschränkter Haftung	  	Germany	  	 	100	% 	
Amneal Singapore	  	RAKS Pharma Pvt Ltd.	  	Private Limited Company	  	India	  	 	100	% 	
Amneal Singapore	  	Amneal Pharmaceuticals Co.	  	Private Limited Company	  	India	  	 	100	% 	
Amneal Pharma Co GmbH	  	Amneal Pharma Europe Ltd.	  	Private Company Limited By	  	Ireland	  	 	100	% 	

									
Owner	  	Subsidiary	  	Type of
Organization	  	Jurisdiction
of
Organization / Formation	  	% of
Equity
Interests
Owned	
Amneal Pharma UK Holdings Ltd.	  	Creo Pharma Holdings Ltd	  	Private Company Limited By Shares	  	England and Wales	  	100%	
Amneal Pharmaceuticals Co	  	Amneal Oncology Pvt Ltd.	  	Private Limited Company	  	India	  	100%	
Creo Pharma Holdings Ltd	  	Creo Pharma Ltd	  	Private Company Limited By Shares	  	England and Wales	  	100%	
Impax Laboratories, LLC	  	Impax Laboratories USA, LLC	  	Limited Liability Company	  	California	  	100%	
Impax Laboratories, LLC	  	Prohealth Biotech, Inc.	  	Corporation	  	Taiwan	  	100%	
Impax Laboratories, LLC	  	Mountain, LLC	  	Limited Liability Company	  	Delaware	  	100%	
Impax Laboratories, LLC	  	Trail Services, LLC	  	Limited Liability Company	  	Delaware	  	100%	
Impax Laboratories, LLC	  	Amedra Pharmaceuticals LLC	  	Limited Liability Company	  	Delaware	  	100%	
Impax Laboratories, LLC	  	Impax Laboratories Ireland Limited	  	Private Company Limited By Shares	  	Ireland	  	100%	
Impax Laboratories Ireland Limited	  	Impax Holdings LLC	  	Limited Liability Company	  	Delaware	  	100%	
Impax Laboratories Ireland Limited	  	Impax Laboratories (Netherlands) CV	  	Commanditaire Vennootschap	  	Netherlands	  	99.99%	
Impax Holdings LLC	  	Impax Laboratories (Netherlands) CV	  	Commanditaire Vennootschap	  	Netherlands	  	0.01%	

Schedule 3.11
Taxes
None.

Schedule 3.13
Environmental Matters
None.

Schedule 3.15(1)
Owned Material Real Property

 	  	Grantor	  	Address/City/State/Zip Code	  	County	  	State	
1.	  	Impax Laboratories, LLC	  	30831 Huntwood Ave., Hayward, CA, 94544	  	Alameda	  	CA	
					
2.	  	Impax Laboratories, LLC	  	31145 San Antonio St., Hayward, CA, 94544	  	Alameda	  	CA	
					
3.	  	Impax Laboratories, LLC	  	31153 San Antonio St., Hayward, CA, 94544	  	Alameda	  	CA	
					
4.	  	Impax Laboratories, LLC	  	1490 Crocker Ave., Hayward, CA, 94544	  	Alameda	  	CA	

Schedule 3.15(2)
Leased Material Real Property

 	  	Grantor	  	Address/City/State/Zip Code	  	County	  	State	
1.	  	AMNEAL PHARMACEUTICALS LLC	  	118 Beaver Trail, Glasgow, KY 42141	  	Barren	  	KY	
					
2.	  	AMNEAL PHARMACEUTICALS LLC	  	40 Aberdeen Drive, Glasgow, KY 42141	  	Barren	  	KY	
					
3.	  	AMNEAL PHARMACEUTICALS LLC	  	39–49 Colonial Drive, Piscataway, NJ 08854	  	Middlesex	  	NJ	
					
4.	  	AMNEAL PHARMACEUTICALS LLC	  	One New England Ave., Piscataway, NJ 08854	  	Middlesex	  	NJ	
					
5.	  	AMNEAL PHARMACEUTICALS LLC	  	1 Murray Road, East Hanover, NJ 07936	  	Morris	  	NJ	
					
6.	  	AMNEAL PHARMACEUTICALS LLC	  	1041 U.S. Highway 202/206 Building J, Bridgewater, NJ 08807	  	Somerset	  	NJ	
					
7.	  	AMNEAL PHARMACEUTICALS LLC	  	131 Chambers Brook Road & 65 Readington Road, Branchburg, NJ 08876	  	Somerset	  	NJ	
					
8.	  	AMNEAL PHARMACEUTICALS LLC	  	19 Readington Road, Branchburg, NJ 08876	  	Somerset	  	NJ	
					
9.	  	AMNEAL PHARMACEUTICALS LLC	  	20 New England Avenue, Piscataway, NJ 08854	  	Middlesex	  	NJ	
					
10.	  	AMNEAL PHARMACEUTICALS LLC	  	21 Colonial Drive, Piscataway, NJ 08854	  	Middlesex	  	NJ	
					
11.	  	AMNEAL PHARMACEUTICALS LLC	  	400 Crossing Boulevard, Suite 300, Bridgewater, NJ 08807	  	Somerset	  	NJ	
					
12.	  	AMNEAL PHARMACEUTICALS LLC	  	400 Crossing Boulevard, Bridgewater, NJ 08807	  	Somerset	  	NJ	
					
13.	  	AMNEAL PHARMACEUTICALS LLC	  	209 Mclean Boulevard, Paterson, NJ 07504	  	Passaic	  	NJ	
					
14.	  	AMNEAL PHARMACEUTICALS LLC	  	360 Moreland Road, Commack, NY 11725	  	Suffolk	  	NY	

									
 	  	Grantor	  	Address/City/State/Zip Code	  	County	  	State	
15.	  	AMNEAL PHARMACEUTICALS LLC	  	280 Newport Center Drive, Newport Beach, CA 92660	  	Orange	  	CA	
					
16.	  	AMNEAL PHARMACEUTICALS LLC	  	1045 Centennial Avenue, Piscataway, NJ 08854	  	Middlesex	  	NJ	
					
17.	  	AMNEAL PHARMACEUTICALS OF NEW YORK, LLC	  	50 Horseblock, Yaphank, NY 11980	  	Suffolk	  	NY	
					
18.	  	AMNEAL PHARMACEUTICALS OF NEW YORK, LLC	  	75 Adams Avenue, Hauppauge, NY 11788	  	Suffolk	  	NY	
					
19.	  	Impax Laboratories, LLC	  	1502 Crocker Ave., Hayward, CA 94544	  	Alameda	  	CA	
					
20.	  	Impax Laboratories, LLC	  	30941 San Clemente St., Hayward, CA 94544	  	Alameda	  	CA	
					
21.	  	Impax Laboratories, LLC	  	31047 Genstar Rd., Hayward, CA 94544	  	Alameda	  	CA	
					
22.	  	Impax Laboratories, LLC	  	1837 Whipple Rd., Hayward, CA 94544	  	Alameda	  	CA	
					
23.	  	Impax Laboratories, LLC	  	31387 Medallion Dr., Hayward, CA 94544	  	Alameda	  	CA	
					
24.	  	Impax Laboratories, LLC	  	100 Somerset Corporate Blvd., Somerset Corporate Center, Building I Bridgewater, NJ 08807	  	Somerset	  	NJ	
					
25.	  	Impax Laboratories, LLC	  	31780 Hayman Street, Hayward, CA 94544	  	Alameda	  	CA	
					
26.	  	Impax Laboratories, LLC	  	602 Office Center Drive, Fort Washington, PA 19034	  	Montgomery	  	PA	

Schedule 3.18
Insurance
AMNEAL PHARMACEUTICALS LLC Insurance Information

Line of Coverage	  	Carrier	  	Policy Number	  	Policy Term	
 	  	 	  	 	  	 	
Products Liability	
				
Products Liability	  	Federal Insurance Company	  	3587-55-30	  	8/1/2017 – 8/1/2018	
	  	(Chubb)	  		  		
				
India – Products/HCT	  	Chubb	  	92923152	  	8/1/2017 – 8/1/2018	
				
Excess Products Liability	  	Ironshore Specialty	  	001056406	  	8/1/2017 – 8/1/2018	
	  	Insurance Co. (AJ Renner)	  		  		
				
Excess Products Liability	  	Columbia Casualty	  	ADE 4031975349	  	8/1/2017 – 8/1/2018	
	  	Company (CNA)	  		  		
				
Excess Products Liability	  	Llyods (Life Science Risk)	  	LSR-XS-00256-17	  	8/1/2017 – 8/1/2018	
				
Excess Products Liability	  	National Fire & Marine /	  	42-XSF-301436-03	  	8/1/2017 – 8/1/2018	
	  	Berkshire Hathaway	  		  		
	
Property and Cargo	
				
Commercial Property	  	Great Northern Insurance	  	3589-58-53	  	8/1/2017 – 8/1/2018	
Coverage	  	Company (Chubb)	  		  		
				
Spain – Property	  	Chubb	  	33220474	  	8/1/2017 – 8/1/2018	
				
Switzerland – Property	  	Chubb	  	33220474	  	8/1/2017 – 8/1/2018	
				
Cargo	  	Llyod’s of London	  	MARCW1700186	  	8/1/2017 – 8/1/2018	
				
Cargo	  	Llyod’s of London	  	MARCW1700188	  	8/1/2017 – 8/1/2018	
			
	  	Management Liability	  		
				
Directors & Officers /	  	U.S. Specialty Insurance Co.	  	14-MGU-17-A40834	  	8/1/2017 – 8/1/2018	
Employment Practices	  	(HCC Global)	  		  		
				
Ireland Local D&O Policy	  	HCC Int’l Ins. Co. Plc	  	16G132240100	  	8/1/2017 – 8/1/2018	
	  	(HCCI)	  		  		
				
Australia	  	HCC Int’l Ins. Co	  	16G151290100	  	8/1/2017 – 8/1/2018	
				
Switzerland	  	HCC Int’l Ins. Co	  	16G143340100	  	8/1/2017 – 8/1/2018	
				
Fiduciary Liability	  	Chubb	  		  	8/1/2017 – 8/1/2018	
				
Employed Lawyers	  	Federal Insurance Co.	  	8225-4108	  	8/1/2017 – 8/1/2018	
				
Crime	  	Chubb Ins. Co. of NJ	  	8225-4107	  	8/1/2017 – 8/1/2018	
				
Special Crime	  	Chubb Ins. Co. of NJ	  	8225-4107	  	8/1/2017 – 8/1/2018	
			
	  	Primary and Excess Casualty	  		
				
General Liability Coverage	  	Great Northern Insurance Company (Chubb)	  	3589-58-53	  	8/1/2017 – 8/1/2018	
				
Business Auto Coverage	  	Travelers Indemnity Co. of America	  	HE-CAP 1D751229 IND 17	  	8/1/2017 – 8/1/2018	
				
Workers Compensation &	  	Charter Oak Fire Insurance	  	HC20-UB 162D6142 17	  	8/1/2017 – 8/1/2018	
Employers Liability	  	Co. (Travelers)	  		  		
				
Lead Umbrella Liability	  	Chubb Insurance Company	  	7986-82-14	  	8/1/2017 – 8/1/2018	
	  	of New Jersey	  		  		
				
Excess Umbrella Liability	  	Navigators Insurance Co.	  	NY17FXR712189IV	  	8/1/2017 – 8/1/2018	
				
Foreign / Exporters	  	Great Northern Insurance Company (Chubb)	  	3589-58-53	  	8/1/2017 – 8/1/2018	
Package (included in	  		  		  		
Domestic Package)	  		  		  		
				
India – General Liability	  	Chubb	  	92923151	  	8/1/2017 – 8/1/2018	
(Locally Admitted Policy)	  		  		  		

							
Spain – General Liability	  	Chubb	  	27341587	  	8/1/2017 – 8/1/2018	
(Locally Admitted Policy)	  		  		  		
				
Switzerland – General	  	Chubb	  	33228970	  	8/1/2017 – 8/1/2018	
Liability	  		  		  		
				
UK – Package	  	Chubb	  		  	8/1/2017 – 8/1/2018	
				
Ireland – Package	  	Chubb	  	36033648	  	8/1/2017 – 8/1/2018	
				
Pollution	  	Illinois Union Insurance Co.	  	PPL G27169296-001	  	8/1/2017 – 8/1/2018	
	  	(ACE)	  		  		
				
Surety Bond – Nevada	  	Fidelity & Deposit Company	  	[Various Policy Numbers]	  	[Various Policy
Numbers]	
State Board of Pharmacy	  	of Maryland	  		  		
Impax Laboratories, LLC Insurance Information

Line of Coverage	  	Carrier	  	Policy Number	  	Policy Term	
 	  	 	  	 	  	 	
Products Liability	
				
Primary Products Liability	  	Berkshire Hathaway	  	42-PCL-302802-02	  	8/1/2017-8/1/2018	
	  	Specialty	  		  		
				
Excess Products Liability	  	Ironshore	  	437407	  	8/1/2017-8/1/2018	
				
Excess Products Liability	  	Chubb Custom	  	7996-52-33	  	8/1/2017-8/1/2018	
				
Excess Products Liability	  	Life Science Risk (Lloyds)	  	LSR-XS-00272-17	  	8/1/2017-8/1/2018	
				
Excess Products Liability	  	Navigators	  	PH17LEX611141NV	  	8/1/2017-8/1/2018	
				
Products Recall	  	Liberty Surplus Insurance	  	GCM20004090 117	  	8/1/2017-8/1/2018	
	  	Company	  		  		
				
Excess Products Recall	  	Crum & Forster Specialty	  	RCE 102773	  	8/1/2017-8/1/2018	
	  	Ins. Co.	  		  		
				
Excess Products Recall	  	Berkeley Assurance	  	BGCP007702	  	8/1/2017-8/1/2018	
	
Property and Marine Cargo	
				
Commercial Property	  	Zurich	  	PPR9261394-10	  	9/1/2017-8/1/2018	
Coverage	  		  		  		
				
Excess California	  	Endurance	  	ESP30000448500	  	9/1/2017-9/1/2018	
Earthquake	  		  		  		
				
Excess California	  	Everest Indemnity	  	8400005377-171	  	9/1/2017-9/1/2018	
Earthquake	  		  		  		
				
Excess California	  	United Specialty	  	RDF100794	  	9/1/2017-9/1/2018	
Earthquake	  		  		  		
				
Excess California	  	Evanston	  	MKLV10XP002281	  	9/1/2017-9/1/2018	
Earthquake	  		  		  		
				
Excess California	  	United Specialty	  	RDF100792	  	9/1/2017-9/1/2018	
Earthquake	  		  		  		
				
Excess California	  	General Security Indemnity	  	TR0001486-03804-17	  	9/1/2017-9/1/2018	
Earthquake	  		  		  		
				
Excess California	  	Everest Indemnity	  	840005375-171	  	9/1/2017-9/1/2018	
Earthquake	  		  		  		
				
Excess California	  	United National	  	DIX0000275	  	9/1/2017-9/1/2018	
Earthquake	  		  		  		
				
Ocean/Air Cargo—Marine	  	Falvey	  	MC-30185	  	8/1/2017-8/1/2018	
	
Management Liability	
				
Primary Directors &
Officers	  	National Union Fire Insurance Company of
Pittsburg (AIG)	  	01-771-83-11	  	8/1/2017-8/1/2018	
				
Excess Directors & Officers	  	Endurance	  	DOX10009654201	  	8/1/2017-8/1/2018	

							
				
Excess Directors &	  	XL Specialty	  	ELU151385-17	  	8/1/2017-8/1/2018	
Officers	  		  		  		
				
Excess Directors &	  	Argonaut	  	MLX 7602095-01	  	8/1/2017-8/1/2018	
Officers	  		  		  		
				
Directors & Officers-Side
A DIC	  	National Union Fire
Insurance Company of	  	01-773-13-01	  	8/1/2017-8/1/2018	
	  	Pittsburg (AIG)	  		  		
				
Employment Practices	  	Continental Casualty	  	596475906	  	8/1/2017-8/1/2018	
	  	Company (CNA)	  		  		
				
	  	National Union Fire	  		  		
Fiduciary Liability	  	Insurance Company of	  	01-767-84-16	  	8/1/2017-8/1/2018	
	  	Pittsburg (AIG)	  		  		
				
	  	National Union Fire	  		  		
Primary Crime	  	Insurance Company of	  	01-767-84-15	  	8/1/2017-8/1/2018	
	  	Pittsburg (AIG)	  		  		
				
Excess Crime	  	ACE American Insurance	  	DOX G23684494 004	  	8/1/2017-8/1/2018	
	  	Company (Chubb)	  		  		
	
Primary and Excess Casualty	
				
General Liability Coverage	  	Great Northern Insurance	  	3598-32-17	  	8/1/2017-8/1/2018	
	  	Company (Chubb)	  		  		
				
Business Auto Coverage	  	Great Northern Insurance	  	9949-99-05	  	8/1/2017-8/1/2018	
	  	Company (Chubb)	  		  		
				
Workers Compensation	  	Federal Insurance Company	  	(18)7172-55-04	  	8/1/2017-8/1/2018	
	  	(Chubb)	  		  		
				
International Package	  	ACE American Insurance	  	PHFD3837154A 002	  	8/1/2017-8/1/2020	
	  	Company (Chubb)	  		  		
				
Lead Umbrella Liability	  	Federal Insurance Company	  	(18)7987-58-17	  	8/1/2017-8/1/2018	
	  	(Chubb)	  		  		
				
Excess Umbrella Liability	  	Continental Insurance Company (CNA)	  	6011609135	  	8/1/2017-8/1/2018	

Schedule 5.12
Post-Closing Matters
None.

Schedule 6.04
Investments
Investments in Non-U.S. Subsidiaries 1 :

Loan Party	  	Investment Type	  	Non-U.S. Subsidiary	  	Amount	 	
AMNEAL PHARMACEUTICALS LLC	  	Distribution	  	APHC, LLC	  	 	$108,063,478	 	
AMNEAL PHARMACEUTICALS LLC	  	Loan	  	Amneal Pharma Holding GmbH	  	 	$388,261,434	 	
AMNEAL PHARMACEUTICALS LLC	  	ECB Loan	  	Amneal Pharmaceuticals Co	  	 	$  93,753,279	 	
AMNEAL PHARMACEUTICALS LLC	  	ECB Loan	  	RAKS Pharma Pvt Ltd.	  	 	$  27,573,260	 	
AMNEAL PHARMACEUTICALS LLC	  	Loan	  	Amneal Ireland Ltd.	  	 	$  84,478,024	 	

1	Note: Excludes Investments in aggregate principal amount less than $25 million.	

Schedule 6.08
Transactions with Affiliates
The transactions listed in the “Certain Related Parties and Related Party Transactions” section of the Atlas Holdings, Inc. Form S-1 Registration Statement filed with the Securities and Exchange Commission on March 7, 2018 are incorporated herein by reference.

Schedule 6.10
Burdensome Agreements
None.

Schedule 10.01
Notice Information
If to the Borrower or another Guarantor :
[c/o] AMNEAL PHARMACEUTICALS LLC
400 Crossing Boulevard, 3rd Floor
Bridgewater, NJ 08807
Attn: Bryan M. Reasons, Chief Financial Officer
Telephone: (732) 595-4575
Facsimile No.: (732) 595-4753
Email Address: bryan.reasons@impaxlabs.com
With a copy (which shall not constitute notice) to:
[c/o] AMNEAL PHARMACEUTICALS LLC
400 Crossing Boulevard, 3rd Floor
Bridgewater, NJ 08807
Attn: Sheldon Hirt, General Counsel
Telephone: (908) 947-3137
Facsimile No.: (908) 947-3144
Email Address: shirt@amneal.com
With a copy (which shall not constitute notice) to:
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Attn: Jesse Sheff
Telephone: (212) 906-4524
Facsimile No.: (212) 751-4864
Email Address: jesse.sheff@lw.com
If to the Administrative Agent or Lenders :
JPMorgan Chase Bank, N.A.
Middle Market Loan and Agency
10 S. Dearborn St. L2 floor Chicago, IL 60603
Attention: Omolola Eneh
Facsimile: 1-844-490-5663
Telephone: 312-954-1007
Email: omolola.eneh@chase.com

EXHIBIT 10.3
EXECUTION VERSION

 
$2,700,000,000
TERM LOAN CREDIT AGREEMENT,
dated as of May 4, 2018,
among
AMNEAL PHARMACEUTICALS LLC,
as the Borrower,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent, and
JPMORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A. and
RBC CAPITAL MARKETS,
as Bookrunners and Arrangers

 

TABLE OF CONTENTS

 	  	 	  	Page	 	
ARTICLE I	 	
	
Definitions	 	
			
SECTION 1.01.	  	Defined Terms	  	 	1	 	
SECTION 1.02.	  	Terms Generally	  	 	77	 	
SECTION 1.03.	  	Accounting Terms; GAAP; Fair Market Value	  	 	78	 	
SECTION 1.04.	  	Effectuation of Transfers	  	 	78	 	
SECTION 1.05.	  	Currencies	  	 	78	 	
SECTION 1.06.	  	Required Financial Statements	  	 	78	 	
SECTION 1.07.	  	Certifications	  	 	79	 	
SECTION 1.08.	  	Pro Forma Calculations	  	 	79	 	
SECTION 1.09.	  	LCA Election	  	 	80	 	
	
ARTICLE II	 	
	
The Credits	 	
			
SECTION 2.01.	  	Term Loans and Borrowings	  	 	81	 	
SECTION 2.02.	  	Request for Borrowing	  	 	82	 	
SECTION 2.03.	  	Funding of Borrowings	  	 	83	 	
SECTION 2.04.	  	Interest Elections	  	 	83	 	
SECTION 2.05.	  	Promise to Pay; Evidence of Debt	  	 	85	 	
SECTION 2.06.	  	Repayment of Term Loans	  	 	85	 	
SECTION 2.07.	  	Optional Prepayment of Term Loans	  	 	86	 	
SECTION 2.08.	  	Mandatory Prepayment of Term Loans	  	 	86	 	
SECTION 2.09.	  	Fees	  	 	91	 	
SECTION 2.10.	  	Interest	  	 	91	 	
SECTION 2.11.	  	Alternate Rate of Interest	  	 	92	 	
SECTION 2.12.	  	Increased Costs	  	 	93	 	
SECTION 2.13.	  	Break Funding Payments	  	 	94	 	
SECTION 2.14.	  	Taxes	  	 	94	 	
SECTION 2.15.	  	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	  	 	98	 	
SECTION 2.16.	  	Mitigation Obligations; Replacement of Lenders	  	 	100	 	
SECTION 2.17.	  	Illegality	  	 	101	 	
SECTION 2.18.	  	Incremental Facilities	  	 	102	 	
SECTION 2.19.	  	Refinancing Term Loans	  	 	105	 	
SECTION 2.20.	  	Extensions of Term Loans	  	 	106	 	
SECTION 2.21.	  	Repricing Transaction	  	 	108	 	

							
ARTICLE III	 	
	
Representations and Warranties	 	
			
SECTION 3.01.	  	Organization; Powers	  	 	109	 	
SECTION 3.02.	  	Authorization; No Contravention	  	 	109	 	
SECTION 3.03.	  	Enforceability	  	 	110	 	
SECTION 3.04.	  	Governmental Approvals	  	 	110	 	
SECTION 3.05.	  	Title to Properties; Liens	  	 	110	 	
SECTION 3.06.	  	Subsidiaries	  	 	111	 	
SECTION 3.07.	  	Litigation; Compliance with Laws	  	 	111	 	
SECTION 3.08.	  	Federal Reserve Regulations	  	 	111	 	
SECTION 3.09.	  	Investment Company Act	  	 	111	 	
SECTION 3.10.	  	Use of Proceeds	  	 	112	 	
SECTION 3.11.	  	Tax Returns	  	 	112	 	
SECTION 3.12.	  	No Material Misstatements	  	 	112	 	
SECTION 3.13.	  	Environmental Matters	  	 	113	 	
SECTION 3.14.	  	Security Documents	  	 	113	 	
SECTION 3.15.	  	Location of Real Property and Leased Premises	  	 	114	 	
SECTION 3.16.	  	Solvency	  	 	114	 	
SECTION 3.17.	  	Financial Statements; No Material Adverse Effect	  	 	115	 	
SECTION 3.18.	  	Insurance	  	 	115	 	
SECTION 3.19.	  	USA PATRIOT Act; Anti-Corruption; Sanctions	  	 	115	 	
SECTION 3.20.	  	Intellectual Property Rights; Licenses, Etc.	  	 	116	 	
SECTION 3.21.	  	Employee Benefit Plans	  	 	117	 	
SECTION 3.22.	  	Labor Matters	  	 	117	 	
	
ARTICLE IV	 	
	
Conditions of Lending	 	
			
SECTION 4.01.	  	Conditions Precedent	  	 	117	 	
	
ARTICLE V	 	
	
Affirmative Covenants	 	
			
SECTION 5.01.	  	Existence; Businesses and Properties	  	 	120	 	
SECTION 5.02.	  	Insurance	  	 	120	 	
SECTION 5.03.	  	Taxes	  	 	121	 	
SECTION 5.04.	  	Financial Statements, Reports, etc.	  	 	121	 	
SECTION 5.05.	  	Litigation and Other Notices	  	 	125	 	
SECTION 5.06.	  	Compliance with Laws	  	 	125	 	
SECTION 5.07.	  	Maintaining Records; Access to Properties and Inspections	  	 	125	 	
SECTION 5.08.	  	Use of Proceeds	  	 	126	 	
SECTION 5.09.	  	Compliance with Environmental Laws	  	 	126	 	
SECTION 5.10.	  	Further Assurances; Additional Security	  	 	126	 	
SECTION 5.11.	  	Credit Ratings	  	 	128	 	
SECTION 5.12.	  	Post-Closing Matters	  	 	128	 	
 
ii

							
ARTICLE VI	 	
	
Negative Covenants	 	
SECTION 6.01.	  	Indebtedness	  	 	129	 	
SECTION 6.02.	  	Liens	  	 	134	 	
SECTION 6.03.	  	[Reserved]	  	 	140	 	
SECTION 6.04.	  	Investments, Loans and Advances	  	 	140	 	
SECTION 6.05.	  	Fundamental Changes	  	 	145	 	
SECTION 6.06.	  	Dispositions	  	 	147	 	
SECTION 6.07.	  	Restricted Payments	  	 	151	 	
SECTION 6.08.	  	Transactions with Affiliates	  	 	155	 	
SECTION 6.09.	  	Business of the Borrower and its Subsidiaries	  	 	157	 	
SECTION 6.10.	  	Burdensome Agreements	  	 	157	 	
SECTION 6.11.	  	Limitation on Payments and Modifications of Certain Indebtedness; Amendments of Certain Documents	  	 	159	 	
SECTION 6.12.	  	Use of Proceeds	  	 	162	 	
	
ARTICLE VII	 	
	
[Reserved]	 	
	
ARTICLE VIII	 	
	
Events of Default	 	
			
SECTION 8.01.	  	Events of Default	  	 	162	 	
	
ARTICLE IX	 	
	
The Agents	 	
			
SECTION 9.01.	  	Appointment	  	 	166	 	
SECTION 9.02.	  	Delegation of Duties	  	 	167	 	
SECTION 9.03.	  	Exculpatory Provisions	  	 	168	 	
SECTION 9.04.	  	Reliance by Administrative Agent	  	 	169	 	
SECTION 9.05.	  	Notice of Default	  	 	169	 	
SECTION 9.06.	  	Non-Reliance on Agents and Other Lenders	  	 	169	 	
SECTION 9.07.	  	Indemnification	  	 	170	 	
SECTION 9.08.	  	Agent in Its Individual Capacity	  	 	170	 	
SECTION 9.09.	  	Successor Agent	  	 	171	 	
SECTION 9.10.	  	Arrangers	  	 	171	 	
SECTION 9.11.	  	Collateral and Guaranty Matters	  	 	171	 	
SECTION 9.12.	  	Certain ERISA Matters	  	 	174	 	
 
iii

							
ARTICLE X	 	
	
Miscellaneous	 	
			
SECTION 10.01.	  	Notices; Communications	  	 	177	 	
SECTION 10.02.	  	Survival of Agreement	  	 	178	 	
SECTION 10.03.	  	Binding Effect	  	 	178	 	
SECTION 10.04.	  	Successors and Assigns	  	 	179	 	
SECTION 10.05.	  	Expenses; Indemnity	  	 	187	 	
SECTION 10.06.	  	Right of Set-off	  	 	189	 	
SECTION 10.07.	  	Applicable Law	  	 	190	 	
SECTION 10.08.	  	Waivers; Amendment	  	 	190	 	
SECTION 10.09.	  	Interest Rate Limitation	  	 	195	 	
SECTION 10.10.	  	Entire Agreement	  	 	195	 	
SECTION 10.11.	  	WAIVER OF JURY TRIAL	  	 	195	 	
SECTION 10.12.	  	Severability	  	 	195	 	
SECTION 10.13.	  	Counterparts	  	 	196	 	
SECTION 10.14.	  	Headings	  	 	196	 	
SECTION 10.15.	  	Jurisdiction; Consent to Service of Process	  	 	196	 	
SECTION 10.16.	  	Confidentiality	  	 	197	 	
SECTION 10.17.	  	Platform; Borrower Materials	  	 	198	 	
SECTION 10.18.	  	[Reserved]	  	 	199	 	
SECTION 10.19.	  	USA PATRIOT Act Notice	  	 	199	 	
SECTION 10.20.	  	Intercreditor Agreements	  	 	199	 	
SECTION 10.21.	  	No Advisory or Fiduciary Responsibility	  	 	200	 	
SECTION 10.22.	  	Private-Side Information Contacts	  	 	200	 	
SECTION 10.23.	  	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	  	 	201	 	
 
iv

			
Exhibits and Schedules	
		
Exhibit A	  	Form of Assignment and Acceptance	
Exhibit B	  	Form of Solvency Certificate	
Exhibit C	  	Form of Borrowing Request	
Exhibit D	  	Form of Interest Election Request	
Exhibit E	  	Form of Non-Debt Fund Affiliate Assignment and Acceptance	
Exhibit F	  	U.S. Tax Compliance Certificate	
Exhibit G	  	Form of Pari Passu Intercreditor Agreement	
Exhibit H	  	Form of Junior Lien Intercreditor Agreement	
Exhibit I	  	Form of Note	
Exhibit J	  	Dutch Auction Procedures	
Exhibit K	  	Form of Escrow Agreement	
		
Schedule 2.01	  	Commitments	
Schedule 3.06	  	Subsidiaries	
Schedule 3.11	  	Taxes	
Schedule 3.13	  	Environmental Matters	
Schedule 3.15(1)	  	Owned Material Real Property	
Schedule 3.15(2)	  	Leased Material Real Property	
Schedule 3.18	  	Insurance	
Schedule 5.12	  	Post-Closing Matters	
Schedule 6.04	  	Investments	
Schedule 6.08	  	Transactions with Affiliates	
Schedule 6.10	  	Burdensome Agreements	
Schedule 10.01	  	Notice Information	
 
v

TERM LOAN CREDIT AGREEMENT, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”), by and among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “ Borrower ”), the Lenders party hereto from time to time and JPMORGAN CHASE BANK, N.A. (“ JPM ”), as administrative agent (in such capacity, and as further defined in Section 1.01, the “ Administrative Agent ”), and as collateral agent (in such capacity, and as further defined in Section 1.01, the “ Collateral Agent ”).
RECITALS
 
(1)	Pursuant to the Business Combination Agreement, dated as of October 17, 2017 (such agreement, including all exhibits and schedules thereto, each as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Acquisition Agreement ”), by and among Impax (as defined herein), Atlas Holdings, Inc., a Delaware corporation which on the Closing Date will change its name to Amneal Pharmaceuticals, Inc. (“ Amneal Inc. ”), and the Borrower, Amneal Inc. will directly or indirectly (a) acquire (the “ Acquisition ”) all of the Capital Stock of Impax and (b) contribute (the “ Contribution ”) all of the Capital Stock of Impax to the Borrower.	
 
(2)	In connection with the consummation of the Acquisition, (a) the Lenders have agreed to extend credit to the Borrower in the form of Term Loans on the Closing Date in an aggregate principal amount of $2,700.0 million, (b) certain financial institutions have agreed to extend credit to the Borrower in the form of revolving loans and letters of credit under the ABL Credit Agreement (as defined herein) and (c) the proceeds of the Term Loans and any ABL Loans (as defined herein) will be applied on the Closing Date to (i) consummate the Acquisition, the Closing Date Refinancing and the other Transactions (including the Specified Tender Offer, which shall be consummated with the portion of the Term Loans deposited into the Escrow Account (as defined herein)) and (ii) pay the Transaction Costs (as defined herein).	
AGREEMENT
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms . As used in this Agreement, the following terms have the meanings specified below:
“ ABL Claims ” means the “ ABL Claims ” as defined in the Closing Date Intercreditor Agreement.
“ ABL Credit Agreement ” means the Revolving Credit Agreement, dated as of the Closing Date, among the Borrower, the lenders party thereto and JPM, as administrative agent and collateral agent, as such document may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“ ABL Credit Agreement Refinancing Indebtedness ” means “ Credit Agreement Refinancing Indebtedness ” as defined in the ABL Credit Agreement.
“ ABL Extended Revolving Commitments ” means “ Extended Loans ” as defined in the ABL Credit Agreement.
“ ABL Facility ” means the “ Revolving Facility ” and any “ Incremental Facility ,” each as defined in the ABL Credit Agreement.
“ ABL Incremental Facilities ” means any “ Incremental Facility ” as defined in the ABL Credit Agreement.
“ ABL Loan Documents ” means the ABL Credit Agreement and the other “ Loan Documen ts” as defined in the ABL Credit Agreement, as each such document may be amended, restated, amended and restated, supplemented or otherwise modified.
“ ABL Loans ” means any “ Loans ” as defined in the ABL Credit Agreement.
“ ABL Obligations ” means the “ Obligations ” as defined in the ABL Credit Agreement.
“ ABL Other Loans ” means “ Refinancing Term Loans ” as defined in the ABL Credit Agreement.
“ ABL Priority Collateral ” means the “ ABL Priority Collateral ” as defined in the Closing Date Intercreditor Agreement.
“ ABL Priority Collateral Asset Sale ” means any Asset Sale that consists of or includes the disposition of ABL Priority Collateral outside the ordinary course of business.
“ ABL Security Documents ” means the “ Security Documents ” as defined in the ABL Credit Agreement.
“ ABR ” means, for any day, a fluctuating rate per annum equal to the highest of:
(1) the NYFRB Rate in effect on such day plus  1 ⁄ 2 of 1%;
(2) the Prime Rate in effect on such day;
(3) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day; and
(4) 1.00% per annum.
 
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Any change in the ABR due to a change in the NYFRB Rate, the Prime Rate or the Adjusted LIBO Rate will be effective from and including the effective date of such change in the NYFRB Rate, the Prime Rate or the Adjusted LIBO Rate, as the case may be. If the ABR is being used as an alternate rate of interest pursuant to Section 2.11 hereof, then the ABR shall be the greater of clauses (1), (2) and (4) above and shall be determined without reference to clause (3) above. For the avoidance of doubt, if the ABR as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“ ABR Borrowing ” means a Borrowing comprised of ABR Loans.
“ ABR Loan ” means any Term Loan bearing interest at a rate determined by reference to the ABR.
“ Acquisition ” has the meaning assigned to such term in the recitals hereto.
“ Acquisition Agreement ” has the meaning assigned to such term in the recitals hereto.
“ Acquisition Documents ” means the collective reference to the Acquisition Agreement, all exhibits and schedules thereto and all agreements expressly contemplated thereby, each as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“ Additional Lender ” means the banks, financial institutions and other institutional lenders and investors (other than natural persons and any Disqualified Institution) that become Lenders in connection with an Incremental Term Loan or Refinancing Term Loan; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to any Additional Lender to the extent its consent would be required under Section 10.04 for an assignment of Term Loans to such Additional Lender.
“ Adjusted LIBO Rate ” means, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“ Administrative Agent ” means JPM, in its capacity as administrative agent for itself and the Lenders hereunder, and any duly appointed successor in such capacity.
“ Administrative Agent Fees ” has the meaning assigned to such term in Section 2.09(1).
“ Administrative Questionnaire ” means a customary Administrative Questionnaire in a form supplied by the Administrative Agent.
“ Affiliate ” means, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. No Person (other than the Borrower or any Subsidiary of the Borrower) in whom a Receivables Subsidiary makes an Investment in connection with a Qualified Receivables Financing will be deemed to be an Affiliate of the Borrower or any of its Subsidiaries solely by reason of such Investment.
 
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“ Affiliated Lender ” means, at any time, any Lender that is an Investor or an Affiliate of an Investor at such time, excluding in any case (a) the Borrower or any of its Subsidiaries and (b) any natural person.
“ Agency Fee Letter ” means the Agency Fee Letter, dated November 6, 2017, by and among the Borrower, JPM, BANA and MLPFSI, as amended and in effect from time to time and including any joinders thereto.
“ Agents ” means the Administrative Agent and the Collateral Agent, in their respective capacities as such.
“ Agreement ” has the meaning assigned to such term in the introductory paragraph hereof.
“ All-In Yield ” means, as to any Indebtedness or Term Loans of any Class, the yield thereof, whether in the form of interest rate, margin, OID, upfront fees, an increase due to an Adjusted LIBO Rate floor or ABR floor (with such increased amount being equated to interest margins for purposes of determining any increase to the Applicable Margin); provided that (1) OID will be measured with reference to the Term Loan proceeds received by the Borrower (and not with reference to any price at which Term Loans are assigned), (2) OID and upfront fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of its incurrence of the applicable Indebtedness) and (3) “All-In Yield” shall not include any arrangement fees, structuring fees, underwriting fees, commitment fees, ticking fees or any other fees similar to the foregoing in each case to the extent not paid or payable generally to all applicable lenders.
“ Amneal Holdings ” means Amneal Holdings, LLC, a Delaware limited liability company.
“ Amneal Inc. ” has the meaning assigned to such term in the recitals hereto.
“ Annual Financial Statements ” has the meaning assigned to such term in Section 5.04(1).
“ Anti-Corruption Laws ” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Borrower or the Restricted Subsidiaries from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, and other similar legislation in any other jurisdictions (as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced).
“ Applicable Margin ” means:
 
(1)	with respect to any Initial Term Loans made on the Closing Date, (a) as of the Closing Date, (x) for ABR Loans, 2.50% and (y) for Eurocurrency Loans, 3.50% and (b)	
 
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following delivery of the Required Financial Statements for the fiscal quarter ending September 30, 2018, the percentage per annum determined in accordance with the pricing grid set forth below, based on the First Lien Net Leverage Ratio for the most recent fiscal quarter ending on the date prior to the first day of each fiscal quarter of the Borrower:

First Lien Net Leverage
Ratio	 	Applicable Margin For
ABR Loans	 	 	Applicable Margin for
Eurocurrency Loans	 	
Category 1: Greater than 3.00 to 1.00	 	 	2.50	% 	 	 	3.50	% 	
Category 2: Less than or equal to 3.00 to 1.00	 	 	2.25	% 	 	 	3.25	% 	
For purposes of the foregoing, each change in the Applicable Margin under this clause (1) resulting from a change in the First Lien Net Leverage Ratio shall be effective during the period commencing on and including the date of delivery to the Administrative Agent pursuant to Section 5.04(1) or 5.04(2) of the Required Financial Statements indicating such change and ending on the date immediately preceding the effective date of the next such change; provided that the First Lien Net Leverage Ratio shall be deemed to be in Category 1, at the option of the Administrative Agent or at the request of the Required Lenders, if the Borrower fails to deliver the Required Financial Statements required to be delivered by it pursuant to Section 5.04(1) or 5.04(2) or the certificate of a Financial Officer of the Borrower required pursuant to Section 5.04(3) during the period from the expiration of the time for delivery thereof until such Required Financial Statements and such certificate are delivered;
 
(2)	with respect to any Incremental Term Loans, the “Applicable Margin” set forth in the Incremental Facility Amendment establishing the terms thereof;	
 
(3)	with respect to any Refinancing Term Loans, the “Applicable Margin” set forth in the Refinancing Amendment establishing the terms thereof; and	
 
(4)	with respect to any Extended Term Loans, the “Applicable Margin” set forth in the Extension Amendment establishing the terms thereof.	
“ Approved Fund ” means, with respect to any Lender any fund that is administered, advised or managed by:
 
 	(a)	such Lender;	
 
 	(b)	any Affiliate of such Lender; or	
 
 	(c)	any entity or an Affiliate of an entity that administers, advises or manages such Lender.	
“ Arranger ” means each of JPM, BANA and RBC.
 
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“ Arranger Fee Letter ” means the Amended and Restated Fee Letter, dated November 6, 2017, by and among the Borrower, JPM, BANA, MLPFSI and RBC, as amended and in effect from time to time and including any joinders thereto.
“ Asset Sale ” means any Casualty Event or any sale, transfer or other disposition (including any Sale Leaseback Transaction) to any Person of any asset or assets of the Borrower or any Restricted Subsidiary, other than any disposition of any Securitization Assets.
“ Assignee ” has the meaning assigned to such term in Section 10.04(2).
“ Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an Assignee, and accepted by the Administrative Agent and the Borrower (if required by Section 10.04), substantially in the form of Exhibit A or such other form that is approved by the Administrative Agent and reasonably satisfactory to the Borrower.
“ Attributable Indebtedness ” means, on any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“ Available Amount ” means, as of any date, an amount, not less than zero, determined on a cumulative basis, equal to the sum, without duplication, of:
 
(1)	the greater of (a) $165.0 million and (b) an amount equal to the Equivalent Percentage of the amount in the preceding clause (a) multiplied by TTM Consolidated EBITDA as of the applicable date of determination; plus	
 
(2)	50% of Consolidated Net Income of the Borrower for the period (taken as one accounting period) from the first day of the fiscal quarter during which the Closing Date occurs to the end of the Borrower’s most recently ended fiscal quarter for which Required Financial Statements have been or are required to be delivered (or in the case such Consolidated Net Income is a deficit, minus 100% of such deficit); provided that if such amount as so determined would be less than zero, such amount shall be deemed to be zero; plus	
 
(3)	the cumulative amount of cash proceeds and the fair market value of property (other than cash) received by the Borrower or any Parent Entity in connection with the sale or issuance of Equity Interests of the Borrower or any Parent Entity after the Closing Date and on or prior to such date (including upon exercise of warrants or options or in connection with a Permitted Acquisition or other Permitted Investment) which, with respect to proceeds or property received in connection with the sale or issuance of Equity Interests of a Parent Entity, have been contributed to the capital of the Borrower or exchanged for Equity Interest of the Borrower, other than the proceeds of Disqualified Stock, Excluded Contributions, Cure Amounts, or equity used to incur Contribution Indebtedness and, in each case, Not Otherwise Applied; plus	
 
(4)	100% of the aggregate amount of cash contributions to the capital of the Borrower and the fair market value of property other than cash contributed to the capital of the Borrower after the Closing Date, other than the proceeds of Disqualified Stock, Excluded Contributions, Cure Amounts, or equity used to incur Contribution Indebtedness and, in each case, Not Otherwise Applied; plus	
 
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(5)	100% of the aggregate principal amount of any Indebtedness (including the liquidation preference or maximum fixed repurchase price, as the case may be, of any Disqualified Stock) of the Borrower or any Restricted Subsidiary issued after the Closing Date (other than Indebtedness (including Disqualified Stock) issued to the Borrower or a Restricted Subsidiary), which has been converted into or exchanged for Equity Interests (other than Disqualified Stock) of the Borrower or any Parent Entity; plus	
 
(6)	100% of the aggregate amount of cash (and the fair market value of property other than cash) received by the Borrower or any Restricted Subsidiary after the Closing Date from (a) the sale, transfer or other disposition (other than to the Borrower or any Restricted Subsidiary) of the Equity Interests of any Unrestricted Subsidiary or Minority Investment to the extent such Investments were made in reliance on the Available Amount or (b) any dividend or other distribution (including any payment on intercompany Indebtedness) by any such Unrestricted Subsidiary or Minority Investment to the extent any such Investments were made in reliance on the Available Amount; plus	
 
(7)	in the event any Unrestricted Subsidiary or Minority Investment becomes a Restricted Subsidiary or any Unrestricted Subsidiary or Minority Investment has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Borrower or any Restricted Subsidiary, the lesser of (a) the fair market value of the Investments of the Borrower and the Restricted Subsidiaries in such Unrestricted Subsidiary or Minority Investment at the time such Unrestricted Subsidiary or Minority Investment becomes a Restricted Subsidiary or at the time of such merger, consolidation, amalgamation, transfer or liquidation (or of the assets transferred or conveyed, as applicable) and (b) the fair market value of the original Investments by the Borrower and the Restricted Subsidiaries in such Unrestricted Subsidiary or Minority Investment, in each case, solely to the extent such Investments were made in reliance on the Available Amount and as determined by a Responsible Officer of the Borrower in good faith; plus	
 
(8)	the returns (including repayments of principal and payments of interest), profits, distributions, returns of capital and similar amounts received in cash or Cash Equivalents by the Borrower or any Restricted Subsidiary on Investments made by the Borrower or any Restricted Subsidiary in reliance on the Available Amount pursuant to Section 6.04(3) (including as a result of any termination or unwinding of such Investments) not in excess of the amount of such Investments; plus	
 
(9)	any mandatory prepayment declined by a Lender; minus	
 
(10)	the use of such Available Amount since the Closing Date.	
“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
 
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“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“ BANA ” means Bank of America, N.A.
“ Below Threshold Asset Sale Proceeds ” means the cash proceeds of Asset Sales involving aggregate consideration of $25.0 million or less.
“ Beneficial Owner ” has the meaning given to that term in Rule 13d-3 and Rule 13d-5 under the Exchange Act. The terms “ Beneficially Owns ” and “ Beneficially Owned ” have a corresponding meaning.
“ Big Boy Letter ” means (1) a letter from a Lender acknowledging that:
 
 	(a)	an Affiliated Lender may have information regarding the Borrower and its Subsidiaries, their ability to perform the Obligations or any other material information that has not previously been disclosed to the Administrative Agent and the Lenders (which may include MNPI) (“ Excluded Information ”),	
 
 	(b)	the Excluded Information may not be available to such Lender,	
 
 	(c)	such Lender has independently and without reliance on any other party made its own analysis and determined to assign Term Loans to or buy Term Loans from, as the case may be, an Affiliated Lender pursuant to Section 10.04 notwithstanding its lack of knowledge of the Excluded Information and	
 
 	(d)	such Lender waives and releases any claims it may have against the Administrative Agent, such Affiliated Lender, the Borrower, its Subsidiaries and their respective Affiliates with respect to the nondisclosure of the Excluded Information; or	
 
(2)	a letter otherwise in form and substance reasonably satisfactory to such Affiliated Lender and assigning Lender.	
“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.
“ Board of Directors ” means, as to any Person, the board of directors, board of managers or other governing body of such Person, or if such Person is owned or managed by a single entity, the board of directors, board of managers or other governing body of such entity, and the term “ directors ” means members of the Board of Directors.
“ Borrower ” has the meaning assigned to such term in the recitals to this Agreement.
“ Borrower Materials ” has the meaning assigned to such term in Section 10.17(1).
 
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“ Borrowing ” means a group of Term Loans of a single Type made on a single date under a single Term Facility and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect.
“ Borrowing Request ” means a request by the Borrower in accordance with the terms of Section 2.02 and substantially in the form of Exhibit C.
“ Budget ” has the meaning assigned to such term in Section 5.04(5).
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided that when used in connection with a Eurocurrency Loan, the term “Business Day” also excludes any day on which banks are not open for dealings in deposits in the London interbank market.
“ Capital Expenditures ” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases) incurred by the Borrower and the Restricted Subsidiaries during such period that, in accordance with GAAP, are or should be included in “additions to property, plant or equipment” or similar items reflected in the consolidated statement of cash flows of the Borrower and its Restricted Subsidiaries for such period; provided that Capital Expenditures will not include:
 
(1)	expenditures to the extent they are made with (a) Equity Interests of any Parent Entity or (b) proceeds of the issuance of Equity Interests (other than Disqualified Stock) of, or a cash capital contribution to, the Borrower after the Closing Date;	
 
(2)	expenditures with proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Borrower and its Restricted Subsidiaries;	
 
(3)	interest capitalized during such period;	
 
(4)	expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third party (excluding the Borrower and any Restricted Subsidiary) and for which none of the Borrower or any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other Person (whether before, during or after such period);	
 
(5)	the book value of any asset owned by the Borrower or any Restricted Subsidiary prior to or during such period to the extent that such book value is included as a Capital Expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that any expenditure necessary in order to permit such asset to be reused will be included as a Capital Expenditure during the period that such expenditure is actually made;	

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(6)	the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (a) used or surplus equipment traded in at the time of such purchase or (b) the proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business;	
 
(7)	Investments in respect of any Permitted Acquisitions;	
 
(8)	the Acquisition; or	
 
(9)	the purchase of property, plant or equipment to the extent purchased with the proceeds of Asset Sales that are not applied to prepay Term Loans pursuant to Section 2.08.	
“ Capital Lease Obligations ” means, with respect to any Person, at the time any determination thereof is to be made, the obligations of such Person to pay rent or other amounts under any lease of (or other similar arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP (excluding the footnotes thereto) and, for purposes hereof, the amount of such obligations at any time will be the capitalized amount thereof at such time determined in accordance with GAAP.
“ Capital Leases ” means all leases that have been or are required to be, in accordance with GAAP as in effect on the Closing Date, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capital Lease shall be the amount thereof accounted for as a liability in accordance with GAAP as in effect on the Closing Date.
“ Capital Stock ” means:
 
(1)	in the case of a corporation, corporate stock;	
 
(2)	in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;	
 
(3)	in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and	
 
(4)	any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.	
“ Captive Insurance Subsidiary ” means any Subsidiary that is subject to regulation as an insurance company (or any Subsidiary thereof).
“ Cash Equivalents ” means:
 
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(1)	Dollars, Canadian dollars, Japanese yen, pounds sterling, euros or the national currency of any participating member of the European Union or, in the case of any Non-U.S. Subsidiary, any local currencies held by it from time to time in the ordinary course of business and not for speculation;	
 
(2)	direct obligations of the United States of America, the United Kingdom or any member of the European Union or any agency thereof or obligations guaranteed by the United States of America, the United Kingdom or any member of the European Union or any agency thereof, in each case, with maturities not exceeding two years;	
 
(3)	time deposits, eurodollar time deposits, certificates of deposit and money market deposits, in each case, with maturities not exceeding one year from the date of acquisition thereof, demand deposits, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any commercial bank having capital, surplus and undivided profits of not less than $250.0 million (or the foreign currency equivalent thereof);	
 
(4)	repurchase obligations for underlying securities of the types described in clauses (2) and (3) above and clause (6) below entered into with a bank meeting the qualifications described in clause (3) above;	
 
(5)	commercial paper or variable or fixed rate notes maturing not more than one year after the date of acquisition issued by a corporation rated at least “P-1” by Moody’s or “A-1” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency);	
 
(6)	securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, having one of the two highest rating categories obtainable from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized rating agency);	
 
(7)	Indebtedness issued by Persons with a rating of at least “A 2” by Moody’s or “A” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency), in each case, with maturities not exceeding one year from the date of acquisition, and marketable short-term money market and similar securities having a rating of at least “P-2” or “A-2” from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized rating agency);	
 
(8)	Investments in money market funds with average maturities of 12 months or less from the date of acquisition that are rated “Aaa3” by Moody’s and “AAA” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency);	
 
(9)	instruments equivalent to those referred to in clauses (1) through (8) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above customarily utilized in the countries where any such Restricted Subsidiary is located or in which such Investment is made;	
 
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(10)	shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (1) through (9) above; and	
 
(11)	solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited to make in accordance with applicable law.	
“ Casualty Event ” means any event that gives rise to the receipt by the Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
“ Certain Funds Provisions ” has the meaning given to such term in the Commitment Letter.
A “ Change in Control ” will be deemed to occur if:
 
(1)	at any time a “change of control” (or comparable event) occurs under the ABL Credit Agreement or the documentation governing any Permitted Refinancing Indebtedness in respect of the foregoing, in each case, if any Indebtedness is outstanding under such agreement; or	
 
(2)	any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act, but excluding any employee benefit plan of such Person and its subsidiaries and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Permitted Holders, acquires, directly or indirectly, Beneficial Ownership of Equity Interests representing more than 35% of the aggregate ordinary voting power (determined on a fully diluted basis but without giving effect to contingent voting rights that have not yet vested) represented by the issued and outstanding Equity Interests of Amneal Inc. and the percentage of the aggregate ordinary voting power so held is greater than the percentage of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Amneal Inc. Beneficially Owned, directly or indirectly, in the aggregate by the Permitted Holders, taken together (determined on a fully diluted basis but without giving effect to contingent voting rights that have not yet vested) unless, in the case of this clause (2), the Permitted Holders have the right or the ability by voting power, contract or otherwise to elect or designate for election a majority of the board of directors of Amneal Inc.; or	
 
(3)	Amneal Inc. fails to Control the Borrower.	
“ Change in Law ” means:
 
(1)	the adoption of any law, rule or regulation after the Closing Date;	
 
(2)	any change in law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date; or	
 
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(3)	compliance by any Lender (or, for purposes of Section 2.12(2), by any lending office of such Lender or by such Lender’s holding company, if any) with any written request, guideline or directive (whether or not having the force of law) of any Governmental Authority, made or issued after the Closing Date; provided that, notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives promulgated thereunder or issued in connection therewith and (b) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case pursuant to Basel III, in each case will be deemed to be a “Change in Law,” regardless of the date enacted, adopted, promulgated or issued.	
“ Charges ” has the meaning assigned to such term in Section 10.09.
“ Class ” means, with respect to a Term Facility, (a) when used with respect to Lenders, the Lenders under such Term Facility, and (b) when used with respect to Term Loans or Borrowings, Term Loans or Borrowings under such Term Facility.
“ Closing Date ” means May 4, 2018.
“ Closing Date EBITDA ” means $619,791,601.
“ Closing Date First Lien Net Leverage Ratio ” means 4.20 to 1.00.
“ Closing Date Intercreditor Agreement ” means the ABL / Term Loan Intercreditor Agreement, dated as of the Closing Date, by and among the Administrative Agent, the Collateral Agent and JPM, as administrative agent and collateral agent under the ABL Credit Agreement, and acknowledged by the Loan Parties, as amended, restated, amended and restated, supplemented or otherwise modified from time to time pursuant to the terms hereof and thereof.
“ Closing Date Refinancing ” means the repayment of the debt and termination of the commitments under the Existing Credit Facilities and release of all Liens and security interests related thereto.
“ Closing Date Total Net Leverage Ratio ” means 4.20 to 1.00.
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Collateral ” means the “ Collateral ” as defined in the Collateral Agreement and also includes all other property that is subject to any Lien in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to any Security Document; provided that, for the avoidance of doubt, the Collateral will not include any Excluded Assets.
“ Collateral Agent ” means JPM, in its capacity as Collateral Agent for itself and the other Secured Parties, and any duly appointed successor in that capacity.
“ Collateral Agreement ” means the Term Loan Guarantee and Collateral Agreement dated as of the Closing Date, among the Loan Parties party thereto and the Collateral Agent, as amended, amended and restated, supplemented or otherwise modified from time to time.
 
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“ Commitment ” means, with respect to each Lender, the commitment of such Lender to make Term Loans as set forth on Schedule 2.01. On the Closing Date, the aggregate amount of Commitments is $2,700.0 million.
“ Commitment Letter ” means that certain Amended and Restated Commitment Letter, dated as of November 6, 2017, by and among the Borrower, JPM, BANA, MLPFSI and RBC and including any joinders thereto.
“ Consolidated Amortization Expense ” means, with respect to any Person for any Test Period, the amortization expense of such Person and its Restricted Subsidiaries for such Test Period, including the amortization of deferred financing fees or costs for such Test Period, determined on a consolidated basis in accordance with GAAP.
“ Consolidated Cash Interest Expense ” means, with respect to any Person and its Restricted Subsidiaries (on a consolidated basis) for any Test Period, the sum of: (1) cash consolidated interest expense (less cash interest income) for such period plus (2) all cash dividend payments (excluding items eliminated in consolidation) on any series of Disqualified Stock made during such period.
“ Consolidated Debt ” means, as of any date of determination, the sum (without duplication) of the aggregate principal amount of all Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on such date consisting of Indebtedness for borrowed money, unreimbursed obligations in respect of drawn letters of credit (to the extent not cash collateralized), Capital Lease Obligations, Indebtedness obligations evidenced by bonds, debentures, notes or similar instruments and obligations with respect to Disqualified Stock, determined on a consolidated basis in accordance with GAAP (but excluding the effects of the application of purchase accounting in connection with the Transactions, any Permitted Acquisition or any other investment permitted hereunder), based upon the most recent fiscal quarter for which Required Financial Statements have been or are required to have been delivered; provided , that Consolidated Debt will include any Convertible Indebtedness to the extent of the aggregate principal amount thereof; provided , further , that Consolidated Debt shall not include any Indebtedness in respect of:
 
(1)	any Qualified Receivables Transaction;	
 
(2)	any letter of credit, except to the extent of unreimbursed obligations in respect of drawn letters of credit ( provided that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Debt until three business days after such amount is drawn (it being understood that any borrowing, whether automatic or otherwise, to fund such reimbursement shall be counted)); or	
 
(3)	obligations under Hedge Agreements.	
 
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“ Consolidated Depreciation Expense ” means, with respect to any Person for any Test Period, the depreciation expense of such Person and its Restricted Subsidiaries for such Test Period, determined on a consolidated basis in accordance with GAAP.
“ Consolidated EBITDA ” means, with respect to any Person for any Test Period, Consolidated Net Income of such Person and its Restricted Subsidiaries for such Test Period, adjusted by:
 
(1)	adding thereto, in each case, only to the extent deducted (and not added back) in determining such Consolidated Net Income and without duplication:	
 
 	(a)	Consolidated Interest Expense for such Test Period;	
 
 	(b)	Consolidated Amortization Expense for such Test Period;	
 
 	(c)	Consolidated Depreciation Expense for such Test Period;	
 
 	(d)	Consolidated Tax Expense for such Test Period;	
 
 	(e)	the amount of any restructuring, severance, relocation, consolidation, integration, remediation or similar items or reserves in such Test Period (whether or not characterized as such in accordance with GAAP), including items or reserves incurred or taken in connection with (i) Permitted Acquisitions and other Permitted Investments after the Closing Date and (ii) severance and the consolidation or closing of any facilities after the Closing Date;	
 
 	(f)	the amount of costs relating to signing, retention and completion bonuses, relocation expenses, recruiting expenses, costs and expenses incurred in connection with any strategic or new initiatives, transition costs, consolidation and closing costs for facilities, business optimization expenses and new systems design and implementation costs;	
 
 	(g)	the amount of “run-rate” cost savings, operating expense reductions and synergies related to the Transactions, any Specified Transaction or any other restructuring, cost saving initiative or other initiative that are projected by such Person in good faith to result from actions taken, committed to be taken or expected to be taken no later than 24 months after the end of such Test Period (which amounts will be determined by such Person in good faith and calculated on a Pro Forma Basis as though such amounts had been realized on the first day of such Test Period), net of the amount of actual benefits realized during such Test Period from such actions; provided, that the amounts added back pursuant to this clause (g) shall not exceed 25% of Consolidated EBITDA after giving effect to this clause (g);	
 
 	(h)	any costs or expenses incurred in such Test Period pursuant to or in connection with or resulting from any management equity plan, profits interest or stock option plan or any other management or employee benefit plan or agreement or any post-employment benefit plans or agreements or any grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other similar rights or any stock subscription, stockholders or partnership agreement;	
 
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 	(i)	any net loss from disposed, abandoned, closed or discontinued operations;	
 
 	(j)	cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any Test Period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (2) below for any previous Test Period and not added back;	
 
 	(k)	any non-cash charges or expenses reducing Consolidated Net Income for such Test Period (provided that if any such non-cash item represents an accrual or reserve for potential cash items in any future Test Period, (i) such Person may determine not to add back such non-cash item in the current Test Period and (ii) to the extent such Person does decide to add back such non-cash item, the cash payment in respect thereof in such future Test Period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior Test Period);	
 
 	(l)	all charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of Equity Interests held by officers or employees of such Person and all losses, charges and expenses related to payments made to holders of options or other derivative Equity Interests in the common equity of such Person or any direct or indirect parent thereof in connection with, or as a result of, any distribution being made to equity holders of such Person or any direct or indirect parent thereof, which payments are being made to compensate such option holders as though they were equity holders at the time of, and entitled to share in, such distribution;	
 
 	(m)	the amount of any expenses paid on behalf of any member of the board of directors or reimbursable to such member of the board of directors;	
 
 	(n)	all judgments, liabilities, obligations, damages of any kind, including liquidated damages, settlement amounts, losses, fines, costs, fees, expenses (including reasonable attorneys’ fees and disbursements), penalties and interest and other charges or expenses in connection with any lawsuit or other proceeding against such Person and its Subsidiaries; provided, that the amounts added back pursuant to this clause (n) shall not exceed 15% of Consolidated EBITDA prior to giving effect to this clause (n);	
 
 	(o)	losses or discounts on any sale of receivables, Securitization Assets and related assets in connection with any Qualified Receivables Transaction;	
 
 	(p)	earn-outs and contingent consideration obligations (including to the extent accounted for as bonuses and other compensation), payments in respect of dissenting shares, and purchase price adjustments, made by such Person during such Test Period, in each case, in connection with an investment or acquisition permitted hereunder;	
 
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 	(q)	the amount of any contingent payments in connection with the licensing of Intellectual Property Rights or other assets;	
 
 	(r)	any extraordinary, non-recurring or unusual costs items; and	
 
 	(s)	other adjustments consistent with Regulation S-X; and	
(2) subtracting therefrom, in each case only to the extent (and in the same proportion) included or added in determining such Consolidated Net Income and without duplication:
 
 	(a)	the aggregate amount of all non-cash items increasing Consolidated Net Income (other than (i) the accrual of revenue or recording of receivables in the ordinary course of business and (ii) the reversal of any accrual of a reserve referred to in the parenthetical in clause (1)(k) of this definition (other than any such reversal that results from a cash payment subtracted from Consolidated EBITDA)) for such Test Period;	
 
 	(b)	any extraordinary, non-recurring or unusual gains; and	
 
 	(c)	any net income from disposed, abandoned, closed or discontinued operations.	
Notwithstanding the foregoing, Consolidated EBITDA of the Borrower (i) for the fiscal quarter ended March 31, 2017, shall be deemed to be $124,962,967, (ii) for the fiscal quarter ended June 30, 2017, shall be deemed to be $146,611,301, (iii) for the fiscal quarter ended September 30, 2017, shall be deemed to be $179,033,361, and (iv) for the fiscal quarter ended December 31, 2017, shall be deemed to be $169,183,972, as such amounts may be adjusted pursuant to Pro Forma adjustments permitted by this Agreement.
“ Consolidated First Lien Net Debt ” means, as of any date, the Initial Term Loans and any other Consolidated Debt outstanding as of such date that is Pari Passu Lien Debt, minus all Unrestricted Cash as of such date in an aggregate amount not to exceed $150,000,000, in each case, determined based upon the most recent fiscal quarter for which Required Financial Statements have been or are required to have been delivered; provided that for purposes of calculating the amount of Consolidated First Lien Net Debt with respect to any Indebtedness being incurred in reliance on compliance with any financial ratio-based incurrence test, Unrestricted Cash will not include any proceeds received from such Indebtedness. For the avoidance of doubt, Indebtedness under the ABL Credit Agreement will constitute Consolidated First Lien Net Debt.
“ Consolidated Interest Expense ” means, with respect to any Person for any Test Period, the total consolidated interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, including , without duplication:
 
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(1)	imputed interest on Capital Lease Obligations and Attributable Indebtedness of such Person and its Restricted Subsidiaries for such Test Period;	
 
(2)	commissions, discounts and other fees, charges and expenses owed by such Person and its Restricted Subsidiaries with respect to letters of credit securing financial obligations, bankers’ acceptance financing and receivables financings for such Test Period;	
 
(3)	pay-in-kind interest payments, amortization and write-offs of deferred financing fees, debt issuance costs, debt discount, or premium, commissions and other financing fees and expenses (including expensing of any bridge, commitment or other financing fees) incurred by such Person and its Restricted Subsidiaries for such Test Period including net costs under Hedge Agreements dealing with interest rates and any commitment fees payable thereunder and all discounts, commissions, fees and other similar charges associated with any Qualified Receivables Transaction;	
 
(4)	cash contributions to any employee stock ownership plan or similar trust made by such Person and its Restricted Subsidiaries to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than such Person or a wholly-owned Subsidiary) in connection with Indebtedness incurred by such plan or trust for such Test Period;	
 
(5)	all interest paid or payable with respect to discontinued operations of such Person and its Restricted Subsidiaries for such Test Period;	
 
(6)	the interest portion of any deferred payment obligations of such Person and its Restricted Subsidiaries for such Test Period; and	
 
(7)	all interest on any Indebtedness of such Person and its Restricted Subsidiaries that is (a) Indebtedness of others secured by any Lien on property owned or acquired by such Person or its Subsidiaries, whether or not the obligations secured thereby have been assumed, but limited to the fair market value of such property or (b) contingent obligations of such Person or its Subsidiaries in respect of Indebtedness;	
provided that Consolidated Interest Expense shall be calculated after giving effect to Hedge Agreements related to interest rates (including associated costs), but excluding unrealized gains and losses with respect to such Hedge Agreements; provided further that when determining Consolidated Interest Expense in respect of any Test Period ending prior to the first anniversary of the Closing Date, Consolidated Interest Expense will be calculated by multiplying the aggregate Consolidated Interest Expense accrued since the Closing Date by 365 and then dividing such product by the number of days from and including the Closing Date to and including the last day of such Test Period. For purposes of this definition, interest on Capital Lease Obligations will be deemed to accrue at the interest rate reasonably determined by a Responsible Officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligations in accordance with GAAP.
“ Consolidated Net Income ” means, with respect to any Person for any Test Period, the Net Income of such Person and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such consolidated net income (to the extent otherwise included therein), without duplication:
 
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(1)	the Net Income for such Test Period of any Person that is not a Subsidiary, or that is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that the Borrower’s or any Restricted Subsidiary’s equity in the Net Income of such Person shall be included in the Consolidated Net Income of the Borrower for such Test Period up to the aggregate amount of dividends or distributions or other payments in respect of such equity that are actually paid in cash (or to the extent converted into cash) by such Person to the Borrower or a Restricted Subsidiary, in each case, in such Test Period, to the extent not already included therein (subject in the case of dividends, distributions or other payments in respect of such equity made to a Restricted Subsidiary to the limitations contained in clause (2) below);	
 
(2)	solely with respect to the calculation of Available Amount and Excess Cash Flow, (a) the Net Income of any Subsidiary of such Person during such Test Period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is not permitted by operation of the terms of its Organizational Documents or any agreement, instrument or requirement of Law applicable to such Subsidiary during such Test Period; provided that Consolidated Net Income of such Person shall be increased by the amount of dividends or distributions or other payments that are actually paid to such Person or its Restricted Subsidiaries in respect of such Test Period and (b) the Net Income of any Person for the period prior to it becoming a Subsidiary;	
 
(3)	any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized by such Person or any of its Restricted Subsidiaries during such Test Period upon any asset sale or other disposition of any Equity Interests of any Person (other than any dispositions in the ordinary course of business) by such Person or any of its Restricted Subsidiaries;	
 
(4)	gains and losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP for such Test Period;	
 
(5)	earnings (or losses), including any impairment charge, resulting from any reappraisal, revaluation or write-up (or write-down) of assets during such Test Period;	
 
(6)	(a) unrealized gains and losses with respect to Hedge Agreements for such Test Period pursuant to the application of Accounting Standards Codification 815 (Derivatives and Hedging) and (b) any after-tax effect of income (or losses) for such Test Period that result from the early extinguishment of (i) Indebtedness, (ii) obligations under any Hedge Agreements or (iii) other derivative instruments;	
 
(7)	any extraordinary, non-recurring or unusual gain (or extraordinary, non-recurring or unusual loss), together with any related provision for taxes on any such gain (or the tax effect of any such loss), recorded or recognized by such Person or any of its Restricted Subsidiaries during such Test Period;	
 
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(8)	the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such Test Period;	
 
(9)	any after-tax gains (or losses) on disposal of disposed, abandoned or discontinued operations for such Test Period;	
 
(10)	effects of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in the inventory, property and equipment, software, goodwill, other intangible assets, in-process research and development, deferred revenue, debt and unfavorable or favorable lease line items in such Person’s consolidated financial statements pursuant to GAAP for such Test Period resulting from the application of purchase accounting in relation to the Transactions or any acquisition consummated prior to the Closing Date and any Permitted Acquisition or other investment or the amortization or write-off of any amounts thereof, net of taxes, for such Test Period;	
 
(11)	any non-cash compensation charge or expense (including any deferred non-cash compensation expense) for such Test Period, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights and any cash charges or expenses associated with the rollover, acceleration or payout of Equity Interests by, or to, management of the such Person or any of its Restricted Subsidiaries in connection with the Transactions;	
 
(12)	(a) Transaction Costs incurred during such Test Period (including, for the avoidance of doubt, any charges, costs or expenses pursuant to or in connection with or resulting from any Existing Notes LM Transaction or Specified Tender Offer) and (b) any fees and expenses incurred during such Test Period, or any amortization thereof for such Test Period, in connection with any acquisition (other than the Transactions), investment, disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt or equity instrument (in each case, including any such transaction whether consummated on, after or prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring costs incurred during such Test Period as a result of any such transaction;	
 
(13)	any expenses, charges or losses for such Test Period that are covered by indemnification or other reimbursement provisions in connection with any investment, Permitted Acquisition or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement, to the extent actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); and	
 
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(14)	to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses for such Test Period with respect to liability or casualty events or business interruption.	
“ Consolidated Tax Expense ” means, with respect to any Person for any Test Period, taxes based on gross receipts, income, profits or capital, franchise, excise or similar taxes, and foreign withholding taxes, of such Person and its Restricted Subsidiaries for such Test Period, including (1) penalties and interest related thereto and (2) tax distributions made to any direct or indirect holders of Equity Interests of such Person in respect of any such taxes.
“ Consolidated Total Assets ” means, as of any date, the total assets of the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, determined based upon the most recent month-end financial statements available internally as of the date of determination, and calculated on a Pro Forma Basis.
“ Consolidated Total Net Debt ” means, as of any date, the Consolidated Debt outstanding as of such date minus all Unrestricted Cash as of such date in an aggregate amount not to exceed $150,000,000, in each case, determined based upon the most recent financial statements available internally as of the date of determination; provided that for purposes of calculating the Consolidated Total Net Debt with respect to any Indebtedness being incurred in reliance on compliance with any financial ratio-based incurrence test, Unrestricted Cash will not include any proceeds received from such Indebtedness.
“ continuing ” means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“ Contribution ” has the meaning assigned to such term in the recitals hereto.
“ Contribution Indebtedness ” means Indebtedness in an aggregate outstanding principal amount not to exceed an amount equal to 100% of the net cash proceeds and the fair market value of property (other than cash) received by the Borrower from Permitted Equity Issuances or as a contribution to its common equity capital, in each case, after the Closing Date and on or prior to the date of such incurrence (other than Excluded Contributions, Cure Amounts and sales of Equity Interests to the Borrower or any of its Subsidiaries) that are Not Otherwise Applied.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “ Controlling ” and “ Controlled ” will have correlative meanings.
 
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“ Convertible Indebtedness ” means (1) the Impax Convertible Notes and (2) any Indebtedness of a Loan Party (which may be Guaranteed by other Loan Parties) permitted to be incurred hereunder that is either (a) convertible into common Capital Stock of the Borrower or of any direct or indirect parent thereof (or other applicable securities or property following a merger event or other change of the common Capital Stock of the Borrower) (and cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of such common Capital Stock or such other securities) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common Capital Stock of the Borrower or of any direct or indirect parent thereof and/or cash (in an amount determined by reference to the price of such common Capital Stock).
“ Credit Agreement Refinanced Debt ” has the meaning assigned to it in the definition of “Credit Agreement Refinancing Indebtedness.”
“ Credit Agreement Refinancing Indebtedness ” means secured or unsecured Indebtedness of the Borrower in the form of term loans or notes; provided that:
 
(1)	such Indebtedness is incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, Indebtedness (“ Credit Agreement Refinanced Debt ”) that is either Term Loans or other Credit Agreement Refinancing Indebtedness;	
 
(2)	such Indebtedness is in an original aggregate principal amount not greater than the principal amount of the Credit Agreement Refinanced Debt ( plus (a) the amount of unpaid, accrued or capitalized interest, penalties, premiums (including tender premiums), defeasance costs and other similar amounts payable with respect thereto and (b) underwriting discounts, fees, commissions, costs, expenses and other similar amounts payable with respect to such Credit Agreement Refinancing Indebtedness);	
 
(3)	(a) the Weighted Average Life to Maturity of such Indebtedness is equal to or longer than the remaining Weighted Average Life to Maturity of the Credit Agreement Refinanced Debt, and (b) the final maturity date of such Credit Agreement Refinancing Indebtedness may not be earlier than the Latest Maturity Date;	
 
(4)	such Indebtedness may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments hereunder;	
 
(5)	such Indebtedness will rank pari passu or junior in right of payment to the Credit Agreement Refinanced Debt;	
 
(6)	such Indebtedness is not secured by any assets or property of the Borrower or any Restricted Subsidiary that does not constitute Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender);	
 
(7)	such Indebtedness is not guaranteed by any Person other than a Guarantor;	
 
(8)	if such Indebtedness is secured:	
 
 	(a)	it shall be secured on a pari passu “equal and ratable” basis with, or on a junior basis to, the Liens that secure the Credit Agreement Refinancing Indebtedness;	
 
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 	(b)	the security agreements relating to such Indebtedness are substantially similar to or the same as the applicable Security Documents (as determined in good faith by a Responsible Officer of the Borrower);	
 
 	(c)	if such Indebtedness is Pari Passu Lien Debt, a Debt Representative acting on behalf of the holders of such Indebtedness has become party to or is otherwise subject to the provisions of a Pari Passu Intercreditor Agreement and, if applicable, the Closing Date Intercreditor Agreement; and	
 
 	(d)	if such Indebtedness is Junior Lien Debt, a Debt Representative, acting on behalf of the holders of such Indebtedness, has become party to or is otherwise subject to the provisions of a Junior Lien Intercreditor Agreement and, if applicable, the Closing Date Intercreditor Agreement; and	
 
(9)	the terms and conditions of such Indebtedness (a) are substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Indebtedness than, those applicable to such Credit Agreement Refinanced Debt (except for covenants applicable only to periods after the Latest Maturity Date of the Initial Term Loans at the time of incurrence) and (b) solely to the extent that any terms and conditions applicable to any such Credit Agreement Refinanced Debt are not substantially the same as, or are materially more restrictive on the Borrower and the Restricted Subsidiaries than, those then applicable to the Credit Agreement Refinanced Debt, shall otherwise reflect customary market terms and conditions, including with respect to high yield debt securities to the extent applicable, at the time of such incurrence of such Credit Agreement Refinancing Indebtedness ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Credit Agreement Refinancing Indebtedness, together with a reasonably detailed description of the material covenants and events of default of such Credit Agreement Refinancing Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (9) shall be conclusive evidence that such Indebtedness satisfies this clause (9) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided that this clause (9) will not apply to (v) terms addressed in the preceding clauses (1) through (8), (w) interest rate, rate floors, fees, funding discounts and other pricing terms, (x) redemption, prepayment or other premiums, or (y) optional prepayment or redemption terms; provided further that the Borrower will promptly deliver to the Administrative Agent final copies of the definitive credit documentation relating to such Indebtedness (unless the Borrower is bound by a confidentiality obligation with respect thereto, in which case the Borrower will deliver a reasonably detailed description of the material terms and conditions of such Indebtedness in lieu thereof).	
Credit Agreement Refinancing Indebtedness will include any Registered Equivalent Notes issued in exchange therefor.
 
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“ Cure Amount ” means the amount of cash contributions to the capital of the Borrower made pursuant to Section 8.02 of the ABL Credit Agreement.
“ Current Assets ” means, as of any date, all assets (other than Cash Equivalents or other cash equivalents) that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries as “current assets” (other than amounts related to current or deferred Taxes based on income or profits), determined based upon the most recent month-end financial statements available internally as of the date of determination, and calculated on a Pro Forma Basis.
“ Current Liabilities ” means, as of any date, all liabilities that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries as “current liabilities,” other than:
 
(1)	the current portion of any Indebtedness;	
 
(2)	accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due and unpaid);	
 
(3)	accruals for current or deferred Taxes based on income or profits;	
 
(4)	accruals, if any, of transaction costs resulting from the Transactions; and	
 
(5)	accruals of any costs or expenses related to (a) severance or termination of employees prior to the Closing Date or (b) bonuses, pension and other post-retirement benefit obligations;	
in each case, determined based upon the most recent month-end financial statements available internally as of the date of determination, and calculated on a Pro Forma Basis.
“ Debt Fund Affiliate ” means:
 
(1)	any Affiliate of a Permitted Investor (other than the Borrower or any of its Subsidiaries) that is a bona fide debt fund or investment vehicle that has the principal purpose of investing in, acquiring or trading commercial loans, bonds or similar extensions of credit in the ordinary course and that exercises investment discretion independent from the private equity business of such Permitted Investor; and	
 
(2)	any investment fund or account of a Permitted Investor managed by third parties (including by way of a managed account, a fund or an index fund in which a Permitted Investor has invested) that is not organized or used primarily for the purpose of making equity investments,	
in each case in clauses (1) and (2) above, with respect to which any Investor or Permitted Investor does not, directly or indirectly, possess the power to direct or cause the direction of the investment policies of such entity.
 
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“ Debt Representative ” means, with respect to any Pari Passu Lien Debt or Junior Lien Debt, the lenders or other holders of such Indebtedness or the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“ Default ” means any event or condition which, but for the giving of notice, lapse of time or both, would constitute an Event of Default.
“ Defaulting Lender ” means any Lender that:
 
(1)	has refused (without retraction) or failed to (a) fund its portion of any Borrowing or (b) pay to any Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due;	
 
(2)	has notified the Borrower or any Agent that it does not intend to comply with its funding obligations under any Loan Document, or has made a public statement to that effect;	
 
(3)	has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations under any Loan Document ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (3) upon receipt of such written confirmation by the Administrative Agent and the Borrower); or	
 
(4)	has, or has a direct or indirect parent company that has, (i) become insolvent or the subject of a proceeding under any voluntary or involuntary case under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.	
 
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Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (1) through (4) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Borrower and each Lender.
“ Designated Non-Cash Consideration ” means the fair market value of non-cash consideration received by the Borrower or any Restricted Subsidiary in connection with an Asset Sale that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.
“ Disinterested Director ” means, with respect to any Person and transaction, a member of the Board of Directors of such Person who does not have any material direct or indirect financial interest in or with respect to such transaction.
“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (excluding Liens, but including any sale or issuance of Equity Interests in a Restricted Subsidiary and any sale leaseback transactions of a Loan Party) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“ Disqualified Institution ” means:
 
(1)	those entities identified by or on behalf of the Borrower in writing to the Administrative Agent, from time to time prior to or after the completion of general syndication, as competitors of the Borrower or its Subsidiaries or Impax or its Subsidiaries;	
 
(2)	those banks, financial institutions, other institutional lenders and other persons identified in writing by or on behalf of the Borrower or Impax to the Arrangers from time to time prior to October 17, 2017;	
 
(3)	those banks, financial institutions, other institutional lenders and other persons identified in writing by or on behalf of the Borrower to the Arrangers after October 17, 2017 if such designation is reasonably acceptable to the Arrangers; and	
 
(4)	any clearly identifiable (solely on the basis of the similarity of its name or as identified in writing by or on behalf of the Borrower) Affiliate of the entities described in the preceding clauses (1), (2) and (3) (other than, with respect to this clause (4), any bona fide Debt Fund Affiliates thereof).	
Notwithstanding the foregoing, each Loan Party and the Lenders acknowledge and agree that (i) the Administrative Agent will not have any responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Institution and the Administrative Agent will have no liability with respect to or arising out of any assignment or participation of Term Loans to a Disqualified Institution and (ii) any written notice of a Disqualified Institution shall be deemed not delivered and not effective unless delivered by or on behalf of the Borrower to the Administrative Agent by email to JPMDQ_Contact@jpmorgan.com and shall only become effective, as of and following, two (2) Business Days after such delivery.
 
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“ Disqualified Stock ” means, with respect to any Person, any Equity Interests of such Person that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is redeemable or exchangeable at the option of the holder thereof), or upon the happening of any event or condition:
 
(1)	mature or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale are subject to the prior Payment in Full and the termination of the Commitments);	
 
(2)	is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part;	
 
(3)	provides for the scheduled payments of dividends in cash; or	
 
(4)	is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in each case, prior to the date that is 91 days after the earlier of:	
 
 	(a)	the Latest Maturity Date at the time of issuance; and	
 
 	(b)	the date on which the Term Loans and all other Obligations (other than Obligations in respect of Specified Hedge Agreements and contingent indemnification and reimbursement obligations that are not yet due and payable and for which no claim has been asserted) are Paid in Full and the Commitments are terminated;	
provided that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided , further , that if such Equity Interests are issued pursuant to any plan for the benefit of any future, current or former officers, directors, managers, employees, consultants or independent contractors of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof, or their respective estates, heirs, family members, spouses, former spouses, successors, executors, administrators, trustees, legatees or distributees, such Equity Interests will not constitute Disqualified Stock solely because they may be required to be repurchased by the Borrower or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of any such Person’s termination, death or disability; and provided , further , that any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of any Equity Interests that is not Disqualified Stock will not be deemed to be Disqualified Stock. For the avoidance of doubt, any Convertible Indebtedness or any Permitted Convertible Indebtedness Call Transaction will not be deemed to be Disqualified Stock.
“ Dollars ” or “ $ ” means lawful money of the United States of America.
 
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“ Dutch Auction Procedures ” means, with respect to a purchase of Term Loans in a Dutch auction, Dutch auction procedures as set forth on Exhibit J or as reasonably agreed upon by the Borrower and the Administrative Agent.
“ EEA Financial Institution ” means:
 
(1)	any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority;	
 
(2)	any entity established in an EEA Member Country which is a parent of an institution described in clause (1) of this definition; or	
 
(3)	any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (1) or (2) of this definition and is subject to consolidated supervision with its parent.	
“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“ EEA Resolution Authority ” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ Enterprise Transformative Event ” means any merger, acquisition, Investment, dissolution, liquidation, consolidation or Disposition, in each case, by the Borrower or any Restricted Subsidiary that is either (1) not permitted by the terms of any Loan Document immediately prior to the consummation of such transaction or (2) if permitted by the terms of the Loan Documents immediately prior to the consummation of such transaction, would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility under the Loan Documents for the continuation or expansion of their combined operations following such consummation, as reasonably determined by the Borrower acting in good faith.
“ Environment ” means ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna.
“ Environmental Laws ” means all applicable laws (including common law), statutes, rules, regulations, codes, ordinances, orders, binding agreements and final, binding decrees or judgments, in each case, promulgated or entered into by or with any Governmental Authority, relating in any way to the Environment, preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to occupational health and safety matters (to the extent relating to the environment or exposure to Hazardous Materials).
“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock, any Convertible Indebtedness and any Permitted Warrant Transaction).
 
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“ Equivalent Percentage ” means, as of any date of determination, with respect to any Dollar amount, the percentage of TTM Consolidated EBITDA of the Borrower for the four quarters ended December 31, 2017 that such Dollar amount represents, rounded to the nearest one tenth of 1%. For purposes of calculating Equivalent Percentage, TTM Consolidated EBITDA of the Borrower for the four quarters ended December 31, 2017 will be deemed to be the Closing Date EBITDA.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, and any final regulations promulgated and the rulings issued thereunder.
“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower or any of its Subsidiaries, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ ERISA Event ” means:
 
(1)	a Reportable Event, or the requirements of Section 4043(b) of ERISA apply, with respect to a Plan;	
 
(2)	a withdrawal by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower or the Borrower, any ERISA Affiliate that is treated as a termination under Section 4062(e) of ERISA;	
 
(3)	a complete or partial withdrawal by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, any ERISA Affiliate from a Multiemployer Plan, receipt of written notification by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, any ERISA Affiliate concerning the imposition of Withdrawal Liability or written notification that a Multiemployer Plan is, or is expected to be, insolvent or endangered or in critical status within the meaning of Section 305 of ERISA;	
 
(4)	the provision by a Plan administrator or the PBGC of notice of intent to terminate a Plan, to appoint a trustee to administer a Plan, the treatment of a Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a Plan or Multiemployer Plan;	
 
(5)	the incurrence by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan, other than for the payment of plan contributions or PBGC premiums due but not delinquent under Section 4007 of ERISA;	
 
(6)	the application for a minimum funding waiver under Section 302(c) of ERISA with respect to a Plan;	
 
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(7)	the imposition of a lien under Section 303(k) of ERISA with respect to any Plan; and	
 
(8)	a determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA).	
“ Escrow Account ” has the meaning specified in the Escrow Agreement.
“ Escrow Agent ” means JPMorgan Chase Bank, N.A., together with its successors and assigns in such capacity.
“ Escrow Agreement ” means the Escrow Agreement substantially in the form of Exhibit K among the Borrower, the Administrative Agent and the Escrow Agent, as such may be amended, amended and restated supplemented, waived or otherwise modified from time to time in accordance with its terms and this Agreement.
“ Escrowed Funds ” has the meaning assigned to such term in Section 2.01(1).]
“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“ Eurocurrency Borrowing ” means a Borrowing comprised of Eurocurrency Loans.
“ Eurocurrency Loan ” means any Term Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
“ Event of Default ” has the meaning assigned to such term in Section 8.01.
“ Excess Cash Flow ” means, for any Excess Cash Flow Period, an amount equal to the excess of:
 
(1)	the sum, without duplication of:	
 
 	(a)	the Consolidated Net Income of the Borrower for such period; plus	
 
 	(b)	all non-cash charges of the Borrower or any Restricted Subsidiary that were deducted in calculating such Consolidated Net Income, but excluding any such non-cash charges representing an accrual or reserve for potential cash items in any future period and excluding amortization of a prepaid cash item that was paid in a prior period; plus	
 
 	(c)	decreases in Working Capital of the Borrower for such period, if any, (other than any such decreases arising from acquisitions or Dispositions by the Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting); plus	
 
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 	(d)	an amount equal to the aggregate net non-cash loss on Dispositions by the Borrower and the Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; plus	
 
 	(e)	the amount deducted as tax expense in determining Consolidated Net Income to the extent in excess of cash taxes paid in such period, plus	
 
 	(f)	cash receipts in respect of Hedge Agreements during such period to the extent not otherwise included in such Consolidated Net Income; over	
 
(2)	the sum, without duplication, of:	
 
 	(a)	an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (but excluding any non-cash credit to the extent representing the reversal of an accrual or reserve described in clause (1)(b) above) and cash charges excluded by virtue of clauses (1) through (14) of the definition of “Consolidated Net Income”; plus	
 
 	(b)	the amount of Capital Expenditures or acquisitions of Intellectual Property Rights accrued or made in cash during such period to the extent not financed with the proceeds of Funded Debt; plus	
 
 	(c)	the aggregate amount of all principal payments of Indebtedness of the Borrower and the Restricted Subsidiaries (including (1) the principal component of payments in respect of Capital Lease Obligations, (2) the amount of any scheduled repayment of Term Loans pursuant to Section 2.06 and (3) the amount of a mandatory prepayment of Term Loans pursuant to Section 2.08 to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase) to the extent such prepayments or repayments are not funded with the proceeds of Funded Debt or made in reliance on any basket calculated by reference to the Available Amount, excluding (i) all other prepayments of Term Loans or payments of other Indebtedness described in Section 2.08(2)(b) and (ii) any prepayment of revolving loans to the extent there is not an equivalent permanent reduction in commitments thereunder, plus	
 
 	(d)	an amount equal to the aggregate net non-cash gain on Dispositions by the Borrower and the Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income and the net cash loss on Dispositions to the extent otherwise added to arrive at Consolidated Net Income; plus	
 
 	(e)	increases in Working Capital for such period (other than any such increases arising from acquisitions or Dispositions by the Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting); plus	
 
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 	(f)	cash payments by the Borrower and the Restricted Subsidiaries actually made during such period to the extent not financed with the proceeds of Funded Debt in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries (other than Indebtedness) to the extent such payments are not expensed during such period or are not deducted in calculating Consolidated Net Income for such period (and so long as there has not been any reduction in respect of such payments in arriving at Consolidated Net Income for such period); plus	
 
 	(g)	without duplication of amounts deducted pursuant to clauses (h) and (i) below in prior periods, cash payments made by the Borrower and its Restricted Subsidiaries in respect of Permitted Investments (including Permitted Acquisitions) made during such period to the extent that such Investments were not financed with the proceeds of Funded Debt, not deducted in calculating Consolidated Net Income and not made in reliance on any basket calculated by reference to the Available Amount; plus	
 
 	(h)	cash payments made by the Borrower in respect of Restricted Payments actually paid (and permitted to be paid) during such period, in each case to the extent such Restricted Payments were not financed with the proceeds of Funded Debt; plus	
 
 	(i)	the aggregate amount of cash expenditures actually made by the Borrower and its Restricted Subsidiaries during such period to the extent not financed with the proceeds of Funded Debt (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such fiscal year or are not deducted in calculating Consolidated Net Income (and so long as there has not been any reduction in respect of such expenditures in arriving at Consolidated Net Income for such period); plus	
 
 	(j)	to the extent such were not deducted in calculating Consolidated Net Income for such period, the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower or any of the Restricted Subsidiaries during such period that are made in connection with any prepayment of any principal of Indebtedness to the extent such prepayment of principal reduced Excess Cash Flow pursuant to clause (2)(c) above or reduced the mandatory prepayment required by Section 2.08(2)(a); plus	
 
 	(k)	without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries within 365 days after the end of such period pursuant to binding contracts (to the extent not financed with the proceeds of Funded Debt, the “Contract Consideration”) entered into prior to or during such period relating to Permitted Investments, cash Capital Expenditures or acquisitions of Intellectual Property Rights to be consummated; provided that, to the extent the aggregate amount actually utilized to finance such Permitted Investments, Capital Expenditures or acquisitions of Intellectual Property Rights during any period is less than the Contract Consideration that reduced Excess Cash Flow for the prior period, the amount of such shortfall shall be added to the calculation of Excess Cash Flow for such period; plus	
 
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 	(l)	the amount of cash taxes paid or tax reserves set aside in such period or payable (without duplication) in such period (including, for the avoidance of doubt, distributions made pursuant to Section 4.01(b) of the LLC Agreement), to the extent they exceed the amount of tax expense deducted in calculating Consolidated Net Income for such period; plus	
 
 	(m)	cash expenditures actually made in cash in respect of Hedge Agreements during such period to the extent not deducted in calculating Consolidated Net Income.	
“ Excess Cash Flow Period ” means each fiscal year of the Borrower.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Excluded Assets ” means “ Excluded Assets ” as defined in the Collateral Agreement.
“ Excluded Contributions ” means, as of any date, the aggregate amount of the net cash proceeds and Cash Equivalents, together with the aggregate fair market value of other assets that are used or useful in a business permitted under Section 6.08, received by the Borrower after the Closing Date from:
 
(1)	contributions to its common equity capital; or	
 
(2)	the sale of Capital Stock of the Borrower;	
in each case, designated as Excluded Contributions pursuant to a certificate of a Responsible Officer of the Borrower on the date such contribution is made or such Capital Stock is sold, less the aggregate amount of Investments made pursuant to Section 6.04(29) and Restricted Payments made pursuant to Section 6.07(12), in each case prior to such date and Not Otherwise Applied; provided that the proceeds of Disqualified Stock and Cure Amounts will not be treated as Excluded Contributions.
“ Excluded Equity Interests ” means “ Excluded Equity Interests ” as defined in the Collateral Agreement.
“ Excluded Indebtedness ” means all Indebtedness not incurred in violation of Section 6.01 and any Credit Agreement Refinancing Indebtedness.
“ Excluded Subsidiary ” means any:
 
(1)	Immaterial Subsidiary;	
 
(2)	Subsidiary that is not a Wholly Owned Subsidiary of the Borrower or a Subsidiary Loan Party;	
 
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(3)	Unrestricted Subsidiary;	
 
(4)	Non-U.S. Subsidiary;	
 
(5)	direct or indirect U.S. Subsidiary of a Non-U.S. Subsidiary;	
 
(6)	FSHCO;	
 
(7)	Subsidiary that is prohibited or restricted by applicable Law or by a binding contractual obligation (including any Contractual Obligation) existing on the Closing Date or at the time of the acquisition or creation of such Subsidiary (and not incurred in contemplation of such acquisition or creation) from providing a Guarantee or if such Guarantee would require consent, approval, license or authorization of or from a Governmental Authority or a third party (other than a Loan Party or a controlled Affiliate of a Loan Party);	
 
(8)	special purpose securitization vehicle (or similar entity) including any Receivables Subsidiary or like special purpose entity;	
 
(9)	Subsidiary that is a not-for-profit organization;	
 
(10)	Captive Insurance Subsidiary;	
 
(11)	Subsidiary with respect to which, in the reasonable judgment of the Borrower in consultation with the Administrative Agent, the providing of a Guarantee would result in material adverse tax consequences as reasonably determined by the Borrower in consultation with the Administrative Agent; and	
 
(12)	Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent, in consultation with the Borrower, the cost or other consequences (including any adverse tax consequences) of providing a Guarantee would be excessive in view of the benefits to be obtained by the Lenders therefrom;	
provided that the Borrower, in its sole discretion, may cause any Subsidiary that otherwise qualifies as an “Excluded Subsidiary” to become a “Guarantor” in accordance with the definition thereof and thereafter such Subsidiary will not constitute an “Excluded Subsidiary” unless and until the Borrower elects otherwise.
“ Excluded Taxes ” means, with respect to any Recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder:
 
(1)	Taxes imposed on or measured by its net income (however denominated) or franchise Taxes imposed in lieu of net income Taxes, in each case, (a) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) that are Other Connection Taxes;	
 
(2)	any branch profits Tax or any similar Tax that is imposed by any jurisdiction described in clause (1) above;	
 
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(3)	any U.S. withholding Tax (including any backup withholding Tax) that is in effect and would apply to amounts payable hereunder to or for the account of a Recipient under the law applicable at the time such Recipient becomes a party to this Agreement (or in the case of a Lender, under the law applicable at the time such Lender changes its lending office), except to the extent that the Recipient’s assignor (if any), at the time of assignment (or such Lender immediately before it changed its lending office), was entitled to receive additional amounts from the Loan Party with respect to any U.S. withholding Tax pursuant to Section 2.14(1) or Section 2.14(3);	
 
(4)	Taxes that are attributable to such Lender’s or Administrative Agent’s failure to comply with Section 2.14(5) or Section 2.14(6); and	
 
(5)	any withholding Taxes imposed under FATCA.	
“ Exclusive License ” means, with respect to any drug or pharmaceutical product, any license to develop, commercialize, sell, market and promote such drug or pharmaceutical product and which provides for exclusive rights to develop, use, commercialize, sell, market, import and promote such drug or product within the United States; provided that an “Exclusive License” shall not include:
 
(1)	any license solely to distribute any such drug or product on an exclusive basis within any particular geographic region or territory,	
 
(2)	any licenses, which may be exclusive, solely to manufacture any such drug or product, and	
 
(3)	any license to manufacture, use, offer for sale or sell any authorized generic version of such drug or product; and “ Exclusively License ” shall have the correlative meaning.	
“ Executive Order ” has the meaning assigned to such term in Section 3.19(3)(a).
“ Existing Credit Facilities ” means:
 
(1)	that certain Revolving Credit Agreement, dated as of November 1, 2013 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) by, among others, the Borrower and Healthcare Financial Solutions, LLC (as successor in interest to General Electric Capital Corporation), as agent;	
 
(2)	that certain Credit Agreement dated as of November 1, 2013 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) by, among others, the Borrower and Healthcare Financial Solutions, LLC (as successor in interest to General Electric Capital Corporation), as agent; and	
 
(3)	those certain credit facilities of Impax and its Subsidiaries with respect to which the Acquisition Agreement requires the delivery of a payoff letter.	
 
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“ Existing Notes LM Transactions ” means a consent solicitation to holders of the Impax Convertible Notes, pursuant to which Impax shall solicit consents to make certain amendments to the Impax Indenture such that the Acquisition and the transaction contemplated in the Acquisition Agreement would not result in a default or event of default under the Impax Indenture in exchange for monetary consideration (including an offer (on terms to be agreed) to purchase the Impax Convertible Notes at a price equal to, if coupled with any consent fee included therein, par) and/or other changes to the Impax Indenture for the benefit of holders of Impax Convertible Notes.
“ Extended Term Commitments ” means the term commitments held by any Extending Term Lenders.
“ Extended Term Loan Installment Date ” has the meaning assigned to such term in Section 2.06(2).
“ Extended Term Loans ” means the Term Loans made pursuant to Extended Term Commitments.
“ Extending Term Lenders ” means each Lender accepting an Extension Offer.
“ Extension ” has the meaning assigned to such term in Section 2.20(1).
“ Extension Amendment ” has the meaning assigned to such term in Section 2.20(2).
“ Extension Offer ” has the meaning assigned to such term in Section 2.20(1).
“ Factoring Transaction ” means any transaction or series of transactions that may be entered into by the Borrower or any Restricted Subsidiary pursuant to which the Borrower or such Restricted Subsidiary may sell, convey, assign or otherwise transfer Securitization Assets (which may include a backup or precautionary grant of security interest in such Securitization Assets so sold, conveyed, assigned or otherwise transferred or purported to be so sold, conveyed, assigned or otherwise transferred) to any Person other than a Receivables Subsidiary.
“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
“ Federal Funds Effective Rate ” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate, provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.
“ Federal Reserve Board ” means the Board of Governors of the Federal Reserve System of the United States of America.
 
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“ Fee Letters ” means the Agency Fee Letter and the Arranger Fee Letter.
“ Fees ” means the Administrative Agent Fees and all other fees set forth in the Fee Letters payable to a Lender, the Administrative Agent or any Arranger, in each case, with respect to the Initial Term Loans.
“ Financial Covenant Default ” has the meaning assigned to such term in Section 8.01(6).
“ Financial Officer ” means, with respect to any Person, the chief financial officer, principal accounting officer, director of financial services, treasurer, assistant treasurer or controller of such Person or other similar officer or Person performing similar functions of such Person, designated in writing by or on behalf of the Borrower to the Administrative Agent from time to time. Any document delivered hereunder that is signed by a Financial Officer of a Loan Party will be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership or other action on the part of such Loan Party and such Financial Officer will be conclusively presumed to have acted on behalf of such Loan Party. Unless otherwise specified, all references herein to a “Financial Officer” shall refer to a Financial Officer of the Borrower.
“ First Lien Net Leverage Ratio ” means, with respect to any Test Period, the ratio of (1) Consolidated First Lien Net Debt outstanding as of the last day of such Test Period to (2) Consolidated EBITDA of the Borrower for such Test Period.
“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than the United States of America. For purposes of this definition, the United States of America, each state thereof and the District of Columbia will be deemed to constitute a single jurisdiction.
“ FSHCO ” means any direct or indirect U.S. Subsidiary that has no material assets other than Equity Interests (or Equity Interests and Indebtedness) in one or more Non-U.S. Subsidiaries or other FSHCOs.
“ Funded Debt ” means all Indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date.
“ GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession (but excluding the policies, rules and regulations of the SEC applicable only to public companies).
 
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Notwithstanding anything to the contrary above or in the definition of Capital Lease Obligations or Capital Expenditures, in the event of a change under GAAP (or the application thereof) requiring any leases to be capitalized that are not required to be capitalized as of the Closing Date, only those leases that would result or would have resulted in Capital Lease Obligations or Capital Expenditures on the Closing Date (assuming for purposes hereof that they were in existence on the Closing Date) will be considered capital leases and all calculations under this Agreement will be made in accordance therewith.
“ General Asset Sale Basket ” has the meaning assigned to such term in Section 6.06(10)(b).
“ Governmental Authority ” means any federal, state, local or foreign court or governmental agency, authority, instrumentality, regulatory or legislative body, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“ Guarantee ” of or by any Person (the “ guarantor ”) means:
 
(1)	any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect:	
 
 	(a)	to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take or pay or otherwise) or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligations;	
 
 	(b)	to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof;	
 
 	(c)	to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation;	
 
 	(d)	entered into for the purpose of assuring in any other manner the holders of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part); or	
 
 	(e)	as an account party in respect of any letter of credit, bank guarantee or other letter of credit guaranty issued to support such Indebtedness or other obligation; or	
 
(2)	any Lien on any assets of the guarantor securing any Indebtedness (or any existing right, contingent or otherwise, of the holder of Indebtedness to be secured by such a Lien) of any other Person, whether or not such Indebtedness or other obligation is assumed by the guarantor;	
 
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provided , that the term “Guarantee” will not include endorsements for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness).
The amount of any Guarantee will be deemed to be an amount equal to the stated or determinable amount of the related primary Indebtedness obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“ Guarantor ” means (1) each Subsidiary Loan Party; and (2) each Parent Entity or Restricted Subsidiary that the Borrower may elect in its sole discretion, from time to time, upon written notice to the Administrative Agent, to cause to Guarantee the Obligations (including by executing a supplement to the Collateral Agreement in substantially the form attached thereto), until such date that the Borrower has informed the Administrative Agent that it elects not to have such Person Guarantee the Obligations.
“ Hazardous Materials ” means all pollutants, contaminants, wastes, chemicals, materials, substances and constituents that are defined, listed or regulated under Environmental Law as hazardous or toxic, or words of similar import, or the Release or exposure to which would reasonably be expected to give rise to liability under any Environmental Law, including explosive or radioactive substances, petroleum or petroleum byproducts or distillates, friable asbestos or friable asbestos-containing materials, polychlorinated biphenyls or radon gas.
“ Health Care Laws ” means any Laws applicable to the research, development, manufacture, distribution, marketing, storage, transportation, use and sale of products controlled by the Borrower or any of the Subsidiaries, including without limitation, the federal Anti-kickback Statute (42 U.S.C. § 1320a-7b(b)), the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. §§ 3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the civil monetary penalty laws (42 U.S.C. § 1320a-7a), the federal Food, Drug & Cosmetic Act (21 U.S.C. §§ 301 et seq.), the federal Controlled Substances Act (21 U.S.C. § 801 et seq.), HIPAA, the Medicaid Drug Rebate Program (42 U.S.C. § 1396r-8), Medicare average sales price reporting (42 U.S.C. § 1395w-3a), the Public Health Service Act (42 U.S.C. § 256b), the federal TRICARE program (10 U.S.C. §1071 et seq.), the VA Federal Supply Schedule (38 U.S.C. § 8126), and the regulations promulgated pursuant to such laws, each as amended from time to time.
“ Hedge Agreement ” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions, in each case, not entered into for speculative purposes; provided that no phantom stock or similar plan providing for payments only on account of services provided by any future, current or former officers, directors, managers, employees, consultants or independent contractors of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof will be a Hedge Agreement. Notwithstanding the foregoing, agreements relating to any Permitted Convertible Indebtedness Call Transaction (and the obligations and transactions relating thereto) will not constitute a Hedge Agreement.
 
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“ IFRS ” means International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such board, or the SEC, as the case may be), as in effect from time to time.
“ Immaterial Subsidiary ” means, as of any date, any Subsidiary that (i) did not, as of the last day of the most recent fiscal quarter for which Required Financial Statements have been delivered, have assets with a value in excess of 5.0% of the Consolidated Total Assets or revenues representing in excess of 5.0% of total revenues of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters for which Required Financial Statements have been delivered, calculated on a consolidated basis in accordance with GAAP; and (ii) taken together with all Immaterial Subsidiaries as of the last day of the most recent fiscal quarter of the Borrower for which Required Financial Statements have been delivered, did not have assets with a value in excess of 10.0% of Consolidated Total Assets or revenues representing in excess of 10.0% of total revenues of the Borrower and the Restricted Subsidiaries on a consolidated basis for such four-quarter period.
“ Impacted Interest Period ” has the meaning assigned to it in the definition of “LIBO Rate.”
“ Impax ” means (1) prior to the Impax Conversion, Impax Laboratories, Inc., a Delaware corporation, and (2) after the consummation of the Impax Conversion, Impax Laboratories, LLC, a Delaware limited liability company.
“ Impax Conversion ” means the conversion of Impax Laboratories, Inc., a Delaware corporation, into Impax Laboratories, LLC, a Delaware limited liability company.
“ Impax Convertible Notes ” means those certain 2.00% Convertible Senior Notes due 2022 in an aggregate principal amount not to exceed $600 million, issued pursuant to the Impax Indenture.
“ Impax Indenture ” means the Indenture dated as of June 30, 2015 between Impax and Wilmington Trust, National Association (the “ Trustee ), as amended and supplemented by the First Supplemental Indenture, dated as of November 6, 2017 between Impax and the Trustee, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“ Impax Merger ” means the merger of K2 Merger Sub Corporation, a Delaware corporation, with and into Impax, with Impax surviving such merger.
“ Impax Transactions ” means the Impax Merger and the Impax Conversion.
“ Incremental Amount ” has the meaning assigned to such term in Section 2.18(3).
 
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“ Incremental Equivalent Term Debt ” means secured or unsecured Indebtedness of the Borrower in the form of term loans or notes; provided that:
 
(1)	the aggregate outstanding principal amount of such Incremental Equivalent Term Debt on any date that such Indebtedness is incurred pursuant to Section 6.01(1), will not, together with the aggregate principal amount of any Incremental Term Loans (or unfunded commitments with respect thereto) then outstanding, exceed the Incremental Amount; provided that:	
 
 	(a)	calculation of the Incremental Amount shall be made on Pro Forma Basis and evidenced by a certificate from a Responsible Officer of the Borrower demonstrating such calculation in reasonable detail;	
 
 	(b)	if the Borrower incurs any Incremental Equivalent Term Debt (or Indebtedness incurred under an Incremental Facility) using the Incremental Fixed Amount on the same date that it incurs Indebtedness using the Incremental Ratio Amount, the Incremental Ratio Amount will be calculated without regard to any incurrence of Indebtedness under the Incremental Fixed Amount;	
 
 	(c)	unless the Borrower elects otherwise, any Incremental Equivalent Term Debt will be deemed incurred first as Incremental Ratio Amount to the extent permitted, with any balance incurred under the Incremental Fixed Amount; and	
 
 	(d)	the Borrower may classify, and may later reclassify, any Incremental Equivalent Term Debt (or Indebtedness incurred under an Incremental Facility) as incurred as, and in reliance on, the Incremental Fixed Amount, Incremental Ratio Amount, or both, on the date of incurrence or thereafter, to the extent permitted on the date of classification (or the date of any such reclassification);	
 
(2)	any Incremental Equivalent Term Debt, (a) that is secured on a pari passu basis with the Initial Term Loans shall not mature prior to the Latest Maturity Date of the Initial Term Loans at the time of incurrence thereof, or have a shorter Weighted Average Life to Maturity than the Initial Term Loans at the time of incurrence thereof (without giving effect to any amortization or prepayments of the Initial Term Loans) or (b) that is unsecured or secured on a junior lien basis to the Initial Term Loans shall not mature, or have scheduled amortization, prior to the date that is 91 days after the Latest Maturity Date of the Initial Term Loans at the time of incurrence thereof; provided that this clause (2) shall not apply to the incurrence of any such Indebtedness constituting a bridge facility to the incurrence of any other Indebtedness, so long as the Indebtedness into which such bridge facility is to be converted or exchanged satisfies the requirements of this clause (2) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges;	
 
(3)	such Indebtedness is not guaranteed by any Person other than a Subsidiary Loan Party;	
 
(4)	if such Incremental Equivalent Term Debt is secured it shall be secured on a pari passu or junior lien basis to the Initial Term Loans and:	
 
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 	(i)	such Indebtedness is not secured by any assets or property that does not constitute Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender); and	
 
 	(ii)	the security agreements relating to such assets or property are substantially similar to or the same as the applicable Collateral Documents (as determined in good faith by a Responsible Officer of the Borrower);	
 
(5)	if such Incremental Equivalent Term Debt is secured on a pari passu basis with or junior lien basis to the Initial Term Loans, the holders of such Incremental Equivalent Term Debt or a Debt Representative acting on behalf of the holders of such Incremental Equivalent Term Debt has become party to or is otherwise subject to the provisions of an Intercreditor Agreement (as such Intercreditor Agreement may be amended in a manner reasonably acceptable to the Administrative Agent, such Debt Representative and the Borrower), which results in such holders or Debt Representative having rights to share in the Collateral on a pari passu or junior lien basis, as applicable;	
 
(6)	if such Incremental Equivalent Term Debt is in the form of term loans and is secured on a pari passu basis with the Initial Term Loans, then the provisions of Section 2.18(8) shall apply as if such Incremental Equivalent Term Debt were Incremental Term Loans;	
 
(7)	any mandatory prepayments of Incremental Equivalent Term Debt that is Pari Passu Lien Debt will be made on a pro rata basis or less than a pro rata basis (but not on a greater than pro rata basis except for prepayments with the proceeds of a refinancing and in respect of an earlier maturing tranche) with mandatory prepayments of the Initial Term Loans, and any mandatory prepayments of Incremental Equivalent Term Debt that is unsecured or that is Junior Lien Debt may not be made except to the extent that prepayments are made, to the extent required under the Initial Term Loans or any Pari Passu Lien Debt, first pro rata to the Initial Term Loans and any such Pari Passu Lien Debt; and	
 
(8)	the terms and conditions of such Indebtedness (a) are substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Indebtedness than, those applicable to the Initial Term Loans (except for covenants applicable only to periods after the Latest Maturity Date of the Initial Term Loans at the time of incurrence) and (b) solely to the extent that any terms and conditions applicable to any such Indebtedness are not substantially the same as, or are materially more restrictive on the Borrower and the Restricted Subsidiaries than, those then applicable to the Initial Term Loans, shall otherwise reflect customary market terms and conditions, including with respect to high yield debt securities to the extent applicable, at the time of such incurrence of such Indebtedness, ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material covenants and events of default of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (8) shall be conclusive evidence that such	
 
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 	Indebtedness satisfies this clause (8) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided that this clause (8) will not apply to (v) terms addressed in the preceding clauses (1) through (7), (w) interest rate, rate floors, fees, funding discounts and other pricing terms, (x) redemption, prepayment or other premiums, or (y) optional prepayment or redemption terms; provided further that the Borrower will promptly deliver to the Administrative Agent final copies of the definitive credit documentation relating to such Indebtedness (unless the Borrower is bound by a confidentiality obligation with respect thereto, in which case the Borrower will deliver a reasonably detailed description of the material terms and conditions of such Indebtedness in lieu thereof).	
Incremental Equivalent Term Debt will include any Registered Equivalent Notes issued in exchange therefor.
“ Incremental Facility ” has the meaning assigned to such term in Section 2.18(1).
“ Incremental Facility Amendment ” has the meaning assigned to such term in Section 2.18(5).
“ Incremental Fixed Amount ” means, as of the date of measurement, the sum of
 
(1)	Closing Date EBITDA of the Borrower, plus	
 
(2)	the aggregate principal amount of, without duplication, (i) any prepayments of Term Loans made pursuant to Section 2.07 , (ii) prepayments of ABL Loans made pursuant to Section 2.10 of the ABL Credit Agreement (if accompanied by a corresponding reduction of commitments), (iii) any voluntary prepayments, redemptions, repurchases and other permanent reductions of other Pari Passu Lien Debt (and, to the extent constituting revolving Indebtedness, accompanied by a corresponding reduction in commitments in respect thereof) (including loan buy-backs pursuant to Dutch auctions and open market purchases, in each case permitted hereunder, in the amount of the actual purchase price paid in cash) and (iv) any voluntary prepayment of Term Loans of a Non-Consenting Lender pursuant to a transaction permitted hereunder (in the amount of the actual purchase price paid in cash), and in each case in this clause (2), to the extent not funded with the proceeds of Funded Debt and other than any prepayments of Indebtedness incurred in reliance on clause (1) above; minus	
 
(3)	the aggregate principal amount of any Incremental Term Loans and Incremental Equivalent Term Debt incurred in reliance on the Incremental Fixed Amount.	
“ Incremental Lenders ” has the meaning assigned to such term in Section 2.18(5).
“ Incremental Ratio Amount ” means an aggregate principal amount that, after giving Pro Forma effect to the incurrence thereof, in accordance with Section 1.08, would not result in:
 
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(1)	with respect to an Incremental Facility or Incremental Equivalent Term Debt to be secured on a pari passu basis with the Initial Term Loans, the First Lien Net Leverage Ratio for the applicable Test Period being greater than (a) the Closing Date First Lien Net Leverage Ratio or (b) the First Lien Net Leverage Ratio immediately prior to such incurrence;	
 
(2)	with respect to any Incremental Facility or Incremental Equivalent Term Debt to be secured on a junior basis to the Initial Term Loans, the Total Net Leverage Ratio for the applicable Test Period being greater than (a) the Closing Date Total Net Leverage Ratio or (b) the Total Net Leverage Ratio immediately prior to such incurrence; and	
 
(3)	with respect to any Incremental Facility or Incremental Equivalent Term Debt that is unsecured, the Total Net Leverage Ratio for the applicable Test Period being greater than 6.00 to 1.00.	
“ Incremental Term Loan Installment Date ” has the meaning assigned to such term in Section 2.06(2).
“ Incremental Term Loans ” has the meaning assigned to such term in Section 2.18(1).
“ Indebtedness ” means, with respect to any Person, without duplication:
 
(1)	all obligations of such Person for borrowed money;	
 
(2)	all obligations of such Person evidenced by bonds, debentures, notes or similar instruments;	
 
(3)	all obligations of such Person under conditional sale or title retention agreements relating to property or assets purchased by such Person;	
 
(4)	all obligations of such Person issued or assumed as the deferred purchase price of property or services, to the extent the same would be required to be shown as a long-term liability on a balance sheet prepared in accordance with GAAP;	
 
(5)	all Capital Lease Obligations of such Person;	
 
(6)	all net payments that such Person would have to make in the event of an early termination, on the date Indebtedness of such Person is being determined, in respect of outstanding Hedge Agreements;	
 
(7)	the principal component of all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and bank guarantees;	
 
(8)	the principal component of all obligations of such Person in respect of bankers’ acceptances;	
 
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(9)	all Guarantees by such Person of Indebtedness described in clauses (1) through (8) above; and	
 
(10)	the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued dividends that have not increased the liquidation preference of such Disqualified Stock);	
provided that Indebtedness will not include:
 
 	(a)	trade payables, accrued expenses (including for payroll and other liabilities) and intercompany liabilities arising in the ordinary course of business;	
 
 	(b)	prepaid or deferred revenue arising in the ordinary course of business;	
 
 	(c)	purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase prices of an asset to satisfy unperformed obligations of the seller of such asset; or	
 
 	(d)	earn-out obligations until such obligations become a liability on the balance sheet of such Person in accordance with GAAP.	
The Indebtedness of any Person (i) will include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such Person in respect thereof and (ii) in the case of Restricted Subsidiaries that are not Loan Parties, will exclude loans and advances made by Loan Parties having a term not exceeding 364 days (inclusive of any roll over or extensions of terms) and made in the ordinary course of business (such loans and advances, “ Short Term Advances ”). The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Swap Termination Value thereof as of such date.
“ Indemnified Taxes ” means (1) all Taxes other than Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document; and (2) to the extent not otherwise described in clause (1), Other Taxes.
“ Indemnitee ” has the meaning assigned to such term in Section 10.05(2).
“ Independent Financial Advisor ” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged and that is independent of the Borrower and its Affiliates.
“ Initial Term Loan Installment Date ” has the meaning assigned to such term in Section 2.06(1).
“ Initial Term Loans ” has the meaning assigned to such term in Section 2.01(1).
“ Intellectual Property Rights ” has the meaning assigned to such term in Section 3.20(1).
 
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“ Intercreditor Agreement ” means the Closing Date Intercreditor Agreement, a Pari Passu Intercreditor Agreement or a Junior Lien Intercreditor Agreement that may be executed from time to time, as applicable.
“ Interest Election Request ” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.04 and substantially in the form of Exhibit D.
“ Interest Payment Date ” means (1) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Term Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing; and (2) with respect to any ABR Loan, the first Business Day after the end of each fiscal quarter of the Borrower commencing with the first Business Day after the end of the fiscal quarter of the Borrower ending on June 30, 2018.
“ Interest Period ” means, as to any Eurocurrency Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is one, two, three or six months thereafter (or, if agreed by all applicable Lenders, 12 months or a shorter period), as the Borrower may elect, or the date any Eurocurrency Borrowing is converted to an ABR Borrowing in accordance with Section 2.04 or repaid or prepaid in accordance with Section 2.06, 2.07 or 2.08; provided that:
 
(1)	if any Interest Period would end on a day other than a Business Day, such Interest Period will be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period will end on the next preceding Business Day;	
 
(2)	any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) will end on the last Business Day of the calendar month at the end of such Interest Period;	
 
(3)	no Interest Period will extend beyond the applicable Maturity Date;	
 
(4)	interest will accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period; and	
 
(5)	the initial Interest Period, commencing on the Closing Date, will end on June 29, 2018.	
“ Interpolated Rate ” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent in its reasonable discretion (which such determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time.
 
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“ Investment ” has the meaning assigned to such term in Section 6.04.
“ Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P (or reasonably equivalent ratings of another internationally recognized rating agency).
“ Investment Grade Securities ” means:
 
(1)	securities issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof (other than Cash Equivalents);	
 
(2)	securities that have an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Restricted Subsidiaries;	
 
(3)	corresponding instruments in countries other than the United States customarily utilized for high quality investments and in each case with maturities not exceeding two years from the date of acquisition; and	
 
(4)	investments in any fund that invests at least 95.0% of its assets in investments of the type described in clauses (1) and (2) above which fund may also hold immaterial amounts of cash pending investment or distribution.	
“ Investors ” means, collectively:
 
(1)	all direct and indirect members of Amneal Holdings as of the Closing Date after giving effect to the Transactions;	
 
(2)	B.U. Patel, Tushar Patel, Chirag Patel, Chintu Patel and/or their respective spouses, in their individual capacities and as direct or indirect owners, beneficiaries, officers, directors, trustees or managers of any Permitted Family Entities,	
 
(3)	all immediate and extended family members of B.U. Patel, Tushar Patel, Chirag Patel, Chintu Patel and/or their respective spouses and the respective estates, heirs, family members, spouses, former spouses, executors, administrators, trustees, legatees or distributees of any of the foregoing, in each case, who have been cleared by the Administrative Agent under its standard and customary “Know Your Customer” policies, and	
 
(4)	any Permitted Family Entities who have been cleared by the Administrative Agent under its standard and customary “Know Your Customer” policies.	
 
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“ Joint Venture ” means (1) any Person which would constitute an “equity method investee” of the Borrower or any of the Restricted Subsidiaries and (2) any Person in whom the Borrower or any of the Restricted Subsidiaries beneficially owns any Equity Interest that is not a Restricted Subsidiary (other than an Unrestricted Subsidiary).
“ JPM ” has the meaning assigned to such term in the introductory paragraph hereof.
“ Junior Financing ” means any Indebtedness permitted to be incurred hereunder that is contractually subordinated in right of payment to the Obligations or secured by Liens that are contractually subordinated to the Liens securing the Obligations (excluding, for the avoidance of doubt, the ABL Loans and any Indebtedness secured on a pari passu basis with the Liens that secure the ABL Loans) or any Permitted Refinancing Indebtedness in respect of any of the foregoing; provided that any Convertible Indebtedness will not constitute Junior Financing.
“ Junior Financing Documentation ” means the definitive documentation governing any Junior Financing.
“ Junior Lien Debt ” means any Indebtedness that is secured on a junior basis to the Liens that secure the Initial Term Loans (excluding, for the avoidance of doubt, the ABL Loans and any Indebtedness secured on a pari passu basis with the Liens that secure the ABL Loans).
“ Junior Lien Intercreditor Agreement ” means a “junior lien” intercreditor agreement substantially in the form attached hereto as Exhibit H (as the same may be modified in a manner satisfactory to the Administrative Agent, the applicable Debt Representative and the Borrower), or another lien subordination arrangement satisfactory to the Administrative Agent, the applicable Debt Representative and the Borrower. Upon the request of the Borrower, the Administrative Agent and Collateral Agent will execute and deliver a Junior Lien Intercreditor Agreement with one or more Debt Representatives (and acknowledged by the Loan Parties) for Indebtedness permitted hereunder that is permitted to be secured on a junior basis to the Term Loans.
“ Latest Maturity Date ” means, as of any date of determination, the latest Maturity Date of the Term Facilities in effect on such date.
“ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities and executive orders, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“ LCA Election ” has the meaning assigned to such term in Section 1.09.
“ LCA Test Date ” has the meaning assigned to such term in Section 1.09.
 
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“ Lender ” means each financial institution listed on Schedule 2.01 (other than any such Person that has ceased to be a party hereto pursuant to an Assignment and Acceptance in accordance with Section 10.04), as well as any Person that becomes a Lender hereunder pursuant to Section 10.04 and any Additional Lender.
“ lending office ” means, as to any Lender, the applicable branch, office or Affiliate of such Lender designated by such Lender to make Term Loans.
“ Letter of Credit ” has the meaning assigned to such term in the ABL Credit Agreement.
“ LIBO Rate ” means, with respect to any Eurocurrency Borrowing for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “ Impacted Interest Period ”) then the LIBO Rate shall be the Interpolated Rate.
“ LIBO Screen Rate ” means, for any day and time, with respect to any Eurocurrency Borrowing for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion); provided that if the LIBO Screen Rate as so determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.
“ Lien ” means, with respect to any asset (1) any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar encumbrance in or on such asset or (2) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event will an operating lease or an agreement to sell be deemed to constitute a Lien.
“ Limited Condition Transaction ” means any transaction permitted hereunder by the Borrower or one or more Restricted Subsidiaries the consummation of which is not conditioned on the availability of, or on obtaining, third party financing
“ LLC Agreement ” means that certain Third Amended and Restated Limited Liability Company Agreement of Amneal Pharmaceuticals LLC, dated as of the Closing Date, as such agreement may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance herewith and therewith.
“ Loan Documents ” means this Agreement, the Security Documents, the Closing Date Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement, the Escrow Agreement, any Note and, solely for the purposes of Sections 3.01, 3.02, and 8.01(3) hereof, the Fee Letters.
 
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“ Loan Parties ” means the Borrower and the Subsidiary Loan Parties.
“ Management Group ” means the group consisting of the directors, executive officers and other management personnel of the Borrower and the Restricted Subsidiaries on the Closing Date or any Parent Entity, or their respective estates, heirs, family members, spouses, former spouses, executors, administrators, trustees, legatees or distributees.
“ Margin Stock ” has the meaning assigned to such term in Regulation U.
“ Material Adverse Effect ” means a material adverse effect on:
 
(1)	the business, financial condition or results of operations, in each case, of the Borrower and the Restricted Subsidiaries (taken as a whole);	
 
(2)	the ability of the Borrower and the Guarantors (taken as a whole) to perform their payment obligations under the Loan Documents; or	
 
(3)	the rights and remedies of the Administrative Agent and the Lenders (taken as a whole) under the Loan Documents.	
“ Material Indebtedness ” means Indebtedness (other than the Term Loans and any Indebtedness held exclusively by Subsidiaries) of the Borrower or any Restricted Subsidiary in an aggregate outstanding principal amount exceeding the Threshold Amount.
“ Material Restricted Subsidiary ” means any Material Subsidiary that is a Restricted Subsidiary.
“ Material Subsidiary ” means any Subsidiary other than an Immaterial Subsidiary.
“ Maturity Date ” means, as the context may require:
 
(1)	with respect to Term Loans existing on the Closing Date, May 4, 2025;	
 
(2)	with respect to any Incremental Term Loans, the final maturity date specified therefor in the applicable Incremental Facility Amendment;	
 
(3)	with respect to any Refinancing Term Loans, the final maturity date specified therefor in the applicable Refinancing Amendment; and	
 
(4)	with respect to any Extended Term Loans, the final maturity date specified therefor in the applicable Extension Amendment.	
“ Maximum Rate ” has the meaning assigned to such term in Section 10.09.
“ Minority Investment ” means any Person other than a Subsidiary in which the Borrower or any Restricted Subsidiary owns any Equity Interests.
“ MLPFSI ” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.
 
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“ MNPI ” means any material Nonpublic Information regarding the Borrower, any of its Affiliates and their respective Subsidiaries that has not been disclosed to the Lenders generally (other than Lenders who elect not to receive such information). For purposes of this definition “material Nonpublic Information” means Nonpublic Information that would reasonably be expected to be material to a decision by any Lender to assign or acquire any Term Loans or to enter into any of the transactions contemplated thereby.
“ Moody’s ” means Moody’s Investors Service, Inc.
“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower or any Restricted Subsidiary or any ERISA Affiliate (other than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414) is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.
“ Net Cash Proceeds ” means:
 
(1)	the with respect to any Asset Sale, the excess, if any, of:	
 
 	(a)	the aggregate cash proceeds (using the fair market value of any Cash Equivalents) received by the Borrower or any Restricted Subsidiary in respect of any Asset Sale (including any cash received in respect of or upon the sale or other disposition of any Designated Non-Cash Consideration received in any Asset Sale and any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, and including any proceeds received as a result of unwinding any related Hedge Agreements in connection with such transaction but excluding the assumption by the acquiring Person of Indebtedness relating to the disposed assets or other consideration received in any other non-cash form), over	
 
 	(b)	the sum of:	
 
 	(i)	direct cash costs relating to such Asset Sale and the sale or disposition of such Designated Non-Cash Consideration (including legal, accounting and investment banking fees, brokerage and sales commissions, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees and restoration costs), and any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof (including taxes imposed on the distribution or repatriation of any such Net Cash Proceeds) (after taking into account any available tax credits or deductions and any tax sharing arrangements related thereto), amounts required to be applied to the repayment of principal, premium (if any) and interest on Indebtedness required to be paid as a result of such transaction (other than Indebtedness under the Loan Documents, Credit Agreement Refinancing Indebtedness, Pari Passu Lien Debt or Junior Lien Debt), any costs associated with unwinding any related Hedge Agreements in connection with such transaction;	
 
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 	(ii)	in the case of any Asset Sale by a non-wholly owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (ii)) attributable to minority interests and not available for distribution to or for the account of the Borrower or a wholly owned Restricted Subsidiary of the Borrower as a result thereof, and	
 
 	(iii)	any deduction of appropriate amounts to be provided by the Borrower or any of the Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Borrower or any of the Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, it being understood that such reserved amounts will be deemed to be “Net Cash Proceeds” to the extent and at the time of any reversal thereof (to the extent not applied to the satisfaction of any applicable liabilities in cash in a corresponding amount);	
provided that the definition of “Sale Leaseback Net Proceeds” shall apply for purposes of determining the “Net Cash Proceeds” of any Sale Leaseback Transaction; provided , further , that (i) no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Cash Proceeds unless such amount exceeds $20,000,000 and (ii) no such net cash proceeds shall constitute Net Cash Proceeds in any fiscal year until the aggregate amount of all such net cash proceeds (together with the aggregate amount of any Sale Leaseback Net Proceeds for such fiscal year (as determined without giving effect to the proviso in the last sentence of the definition thereof)) in such fiscal year exceeds $40,000,000 (and thereafter only net cash proceeds in excess of such amount(s) shall constitute Net Cash Proceeds); and
 
(2)	with respect to the sale, incurrence or issuance of any Indebtedness by the Borrower or any Restricted Subsidiary, the excess, if any of:	
 
 	(a)	the sum of the cash and Cash Equivalents received by the Borrower and its Restricted Subsidiaries in connection with such incurrence or issuance over	
 
 	(b)	taxes paid or payable as a result thereof, fees (including investment banking fees, attorneys’ fees, accountants’ fees, underwriting fees and discounts), commissions, costs and other out-of-pocket expenses and other customary expenses, incurred by the Borrower and its Restricted Subsidiaries in connection with such sale, incurrence or issuance.	
 
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“ Net Income ” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.
“ New York Courts ” has the meaning assigned to such term in Section 10.15.
“ Non-Consenting Lender ” has the meaning assigned to such term in Section 2.16(3).
“ Non-Debt Fund Affiliate ” means any Affiliated Lender other than a Debt Fund Affiliate.
“ Non-Debt Fund Affiliate Assignment and Acceptance ” has the meaning assigned to such term in Section 10.04(10)(b).
“ Non-Loan Party ” means any Subsidiary of the Borrower that is not a Loan Party.
“ Non-U.S. Subsidiary ” means any Subsidiary that not a U.S. Subsidiary.
“ Not Otherwise Applied ” means, with reference to the amount of any net cash proceeds or fair market value of other assets received from Permitted Equity Issuances or capital contributions that is proposed to be applied to a particular use or transaction, that such amount was not previously applied in determining the permissibility of a transaction under this Agreement (including, for the avoidance of doubt, any use of such amount to increase the Available Amount, any Cure Amounts and any Excluded Contributions) where such permissibility was (or may have been) contingent on the receipt or availability of such amount.
“ Note ” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit I hereto or otherwise in form and substance reasonably acceptable to the Administrative Agent and the Borrower, evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Term Loans made by such Lender.
“ NYFRB ” means the Federal Reserve Bank of New York.
“ NYFRB Rate ” means, for any day, the Federal Funds Effective Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“ Obligations ” means all amounts owing to any Agent, any Lender or Qualified Counterparty pursuant to the terms of this Agreement, any other Loan Document, or any Specified Hedge Agreement, including all interest and expenses accrued or accruing (or that would, absent the commencement of an insolvency or liquidation proceeding, accrue) after the
 
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commencement by or against any Loan Party or other Restricted Subsidiary of any proceeding under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law naming such Loan Party as the debtor in such proceeding, in accordance with and at the rate specified in this Agreement, whether or not the claim for such interest or expense is allowed or allowable as a claim in such proceeding.
“ Organizational Documents ” means,
 
(1)	with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction);	
 
(2)	with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); and	
 
(3)	with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.	
“ Other Applicable ECF Indebtedness ” has the meaning assigned to such term in clause (A) of Section 2.08(2).
“ Other Applicable Indebtedness ” has the meaning assigned to such term in Section 2.08(1)(a).
“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Term Loan or Loan Document).
“ Other Taxes ” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16).
“ P aragraph IV Certification Notice ” means the notice of certification required by 21 U.S.C. § 355(b)(3) or 21 U.S.C. § 355(j)(2)(B).
 
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“ Paragraph IV Proceeding ” means an infringement Proceeding filed pursuant to 35 U.S.C. § 271(e)(2) with respect to a product controlled by the Borrower or any of the Subsidiaries.
“ Parent Entity ” means any direct or indirect parent of the Borrower.
“ Pari Passu Intercreditor Agreement ” means a “pari passu” intercreditor agreement substantially in the form attached hereto as Exhibit G (as the same may be modified in a manner satisfactory to the Administrative Agent, the applicable Debt Representative and the Borrower), or another intercreditor arrangement reasonably satisfactory to the Administrative Agent, the applicable Debt Representative and the Borrower. Upon the request of the Borrower, the Administrative Agent and Collateral Agent will execute and deliver a Pari Passu Intercreditor Agreement with one or more Debt Representatives (and acknowledged by the Loan Parties) for Indebtedness permitted hereunder that is permitted to be secured on a pari passu basis with the Initial Term Loans.
“ Pari Passu Lien Debt ” means any Indebtedness that is secured on a pari passu basis with the Liens that secure the Initial Term Loans, and including the ABL Loans and any Indebtedness secured on a pari passu basis with Liens that secure the ABL Loans.
“ Participant ” has the meaning assigned to such term in Section 10.04(4)(a).
“ Participant Register ” has the meaning assigned to such term in Section 10.04(4)(a).
“ Payment in Full ” means the payment in full of the Obligations (other than Obligations in respect of Specified Hedge Agreements and contingent indemnification and reimbursement obligations that are not yet due and payable and for which no claim has been asserted), and the termination of all commitments hereunder and “ Paid in Full ” has a correlative meaning.
“ Payment Office ” means the office of the Administrative Agent located at 10 S. Dearborn St., L2 floor, Chicago, IL 60603 or such other office as the Administrative Agent may designate to the Borrower and the Lenders from time to time.
“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA, or any successor thereto.
“ Perfection Certificate ” means the Perfection Certificate with respect to the Loan Parties in a form substantially similar to that delivered on the Closing Date.
“ Permit ” means any license, franchise, approval, authorization or clearances issued by a Governmental Authority and required for the conduct of its business of the Borrower or its Restricted Subsidiaries as currently conducted.
 
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“ Permitted Acquisition ” means any acquisition of all or substantially all the assets of, or a majority of the Equity Interests in, or merger, consolidation or amalgamation with, a Person or any acquisition of assets constituting a business unit, line of business, division or facility of another Person or any Exclusive License (or any subsequent investment made in a Person, division or line of business previously acquired in a Permitted Acquisition), in each case if (1) no Event of Default is continuing (or in the case of a Limited Condition Transaction, no Specified Event of Default is continuing) immediately prior to making such Investment or would result therefrom; and (2) immediately after giving effect thereto, the Borrower is in compliance with Sections 5.10 and 6.09.
“ Permitted Additional Indebtedness ” means Indebtedness of the Borrower or any Restricted Subsidiary in the form of term loans or notes; provided that:
 
(1)	any Permitted Additional Indebtedness, (a) that is secured on a pari passu basis with the Initial Term Loans shall not mature prior to the Latest Maturity Date of the Initial Term Loans at the time of incurrence thereof, or have a shorter Weighted Average Life to Maturity than the Initial Term Loans at the time of incurrence thereof (without giving effect to any amortization or prepayments of the Initial Term Loans) or (b) that is unsecured (or not secured by Collateral) or secured on a junior lien basis to the Initial Term Loans shall not mature, or have scheduled amortization, prior to the date that is 91 days after the Latest Maturity Date of the Initial Term Loans at the time of incurrence thereof; provided that this clause (1) shall not apply to the incurrence of any such Indebtedness constituting a bridge facility to the incurrence of any other Indebtedness, so long as the Indebtedness into which such bridge facility is to be converted or exchanged satisfies the requirements of this clause (1) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges;	
 
(2)	if such Permitted Additional Indebtedness is incurred by a Loan Party, it is not guaranteed by any Person other than a Loan Party;	
 
(3)	if such Permitted Additional Indebtedness incurred by a Loan Party is secured it shall be secured on a pari passu or junior lien basis to the Initial Term Loans and:	
 
 	(i)	such Indebtedness is not secured by any assets or property that does not constitute Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender); and	
 
 	(ii)	the security agreements relating to such assets or property are substantially similar to or the same as the applicable Collateral Documents (as determined in good faith by a Responsible Officer of the Borrower);	
 
(4)	if such Permitted Additional Indebtedness is secured on a pari passu basis with or junior lien basis to the Initial Term Loans, the holders of such Permitted Additional Indebtedness or a Debt Representative acting on behalf of the holders of such Permitted Additional Indebtedness has become party to or is otherwise subject to the provisions of an Intercreditor Agreement (as such Intercreditor Agreement may be amended in a manner reasonably acceptable to the Administrative Agent, such Debt Representative and the Borrower), which results in such holders or Debt Representative having rights to share in the Collateral on a pari passu or junior lien basis, as applicable;	
 
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(5)	if such Permitted Additional Indebtedness incurred by a Loan Party is in the form of term loans and is secured on a pari passu basis with the Initial Term Loans, then the provisions of Section 2.18(8) shall apply as if such Permitted Additional Indebtedness were Incremental Term Loans; and	
 
(6)	the terms and conditions of such Indebtedness (a) are substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Indebtedness than, those applicable to the Initial Term Loans (except for covenants applicable only to periods after the Latest Maturity Date of the Initial Term Loans at the time of incurrence) and (b) solely to the extent that any terms and conditions applicable to any such Indebtedness are not substantially the same as, or are materially more restrictive on the Borrower and the Restricted Subsidiaries than, those then applicable to the Initial Term Loans, shall otherwise reflect customary market terms and conditions, including with respect to high yield debt securities to the extent applicable, at the time of such incurrence of such Indebtedness ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent in good faith at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material covenants and events of default of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (6) shall be conclusive evidence that such Indebtedness satisfies this clause (6) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided that this clause (6) will not apply to (v) terms addressed in the preceding clauses (1) through (5), (w) interest rate, rate floors, fees, funding discounts and other pricing terms,	
(x) redemption, prepayment or other premiums, or (y) optional prepayment or redemption terms; provided further that the Borrower will promptly deliver to the Administrative Agent final copies of the definitive credit documentation relating to such Indebtedness (unless the Borrower is bound by a confidentiality obligation with respect thereto, in which case the Borrower will deliver a reasonably detailed description of the material terms and conditions of such Indebtedness in lieu thereof).
“ Permitted Amendment ” means any Incremental Facility Amendment, Refinancing Amendment or Extension Amendment.
“ Permitted Bond Hedge Transaction ” means any call or capped call option (or substantively equivalent derivative transaction) on the Borrower’s common Capital Stock or the common Capital Stock of any direct or indirect parent of the Borrower (or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent) purchased by the Borrower or any direct or indirect parent thereof in connection with the issuance of any Convertible Indebtedness; provided , that the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by the Borrower from the sale of any related Permitted Warrant Transaction, does not exceed the net proceeds received by the Borrower from the sale of such Convertible Indebtedness issued in connection with the Permitted Bond Hedge Transaction. For the avoidance of doubt, those certain bond hedge transactions entered into on June 25, 2015 and June 26, 2015 with Royal Bank of Canada, as amended or modified, constitute Permitted Bond Hedge Transactions.
 
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“ Permitted Convertible Indebtedness Call Transaction ” means any Permitted Bond Hedge Transaction and any Permitted Warrant Transaction.
“ Permitted Debt ” has the meaning assigned thereto in Section 6.01.
“ Permitted Equity Issuances ” means any sale or issuance of any Qualified Equity Interests of the Borrower or any direct or indirect parent of the Borrower
“ Permitted Family Entity ” means any Person in which any combination of B.U. Patel, Tushar Patel, Chirag Patel, Chintu Patel, their respective spouses, any immediate or extended family member of the foregoing, the respective estates, heirs, family members, and/or the spouses, former spouses, executors, administrators, trustees, legatees or distributes of any of the foregoing (1) are the direct or indirect owners, beneficiaries (whether income, fixed or contingent), officers, directors, trustees or managers and, in each case, are entitled to all of the economic rights and interests in such Person, or (2) Control such Person.
“ Permitted Holders ” means each of:
 
(1)	the Investors;	
 
(2)	any member of the Management Group (or any controlled Affiliate thereof);	
 
(3)	any group (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of which Persons described in the foregoing clauses (1) or (2) are members; provided that, without giving effect to the existence of such group or any other group, the Persons described in clauses (1) and (2), collectively, Beneficially Own Equity Interests representing 50% or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Amneal Inc. (determined on a fully diluted basis but without giving effect to contingent voting rights that have not yet vested) then held by such group; and	
 
(4)	any Permitted Parent.	
“ Permitted Investment ” has the meaning assigned to such term in Section 6.04.
“ Permitted Investor ” means:
 
(1)	each Investor;	
 
(2)	each of their respective Affiliates and investment managers;	
 
(3)	any fund or account managed by any of the Persons described in clause (1) or (2) of this definition;	
 
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(4)	any employee benefit plan of the Borrower or any of its Subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan; and	
 
(5)	investment vehicles of members of management of the Borrower that invest in, acquire or trade commercial loans but excluding natural persons.	
“ Permitted Junior Secured Refinancing Debt ” means any Credit Agreement Refinancing Indebtedness that is secured on a junior basis to the Initial Term Loans.
“ Permitted Liens ” has the meaning assigned to such term in Section 6.02.
“ Permitted Parent ” means any Parent Entity for so long as it is Controlled by one or more Persons that are Permitted Holders pursuant to clause (1), (2) or (3) of the definition thereof.
“ Permitted Pari Passu Secured Refinancing Debt ” means any Credit Agreement Refinancing Indebtedness that is secured on a pari passu basis with the Initial Term Loans.
“ Permitted Refinancing Indebtedness ” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, “ Refinance ”) the Indebtedness being Refinanced (the “ Refinanced Debt ”); provided that:
 
(1)	the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Debt ( plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses) and any existing commitments unutilized thereunder being terminated in connection with such Refinancing;	
 
(2)	other than with respect to a Refinancing of Indebtedness initially incurred pursuant to Section 6.01(3) (other than the Impax Convertible Notes) or Section 6.01(4), the final maturity date of such Permitted Refinancing Indebtedness is equal to or later than the final maturity date of the Refinanced Debt and the Weighted Average Life to Maturity of the Permitted Refinancing Indebtedness is greater than or equal to the Weighted Average Life to Maturity of the Refinanced Debt;	
 
(3)	if the Refinanced Debt constitutes Junior Financing:	
 
 	(a)	such Permitted Refinancing Indebtedness is (i) unsecured or (ii) Junior Lien Debt that is permitted hereunder at the time of incurrence;	
 
 	(b)	to the extent such Refinanced Debt is subordinated in right of payment to any Obligations under this Agreement, such Permitted Refinancing Indebtedness is subordinated in right of payment to such Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Refinanced Debt; and	
 
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 	(c)	such Permitted Refinancing Indebtedness has the same obligors as the Refinanced Debt (unless any such additional obligors are also Loan Parties);	
 
(4)	(i) to the extent such Refinanced Debt is secured by Liens, such Permitted Refinancing Indebtedness is either unsecured or is not secured by any Liens that do not secure such Refinanced Debt, (ii) to the extent such Refinanced Debt is secured by Liens that are subordinated to the Liens securing the Obligations, such Permitted Refinancing Indebtedness is secured by Liens that are subordinated to the Liens securing the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Refinanced Debt and (iii) to the extent such Refinanced Debt is unsecured, such Permitted Refinancing Indebtedness is unsecured;	
 
(5)	the terms and conditions of such Permitted Refinancing Indebtedness (a) are substantially identical to, or, taken as a whole, not more favorable to the lenders or holders providing such Permitted Refinancing Indebtedness than, those applicable to such Refinanced Debt (except for covenants applicable only to periods after the Latest Maturity Date of the Initial Term Loans at the time of incurrence) and (b) solely to the extent that any terms and conditions applicable to any such Permitted Refinancing Indebtedness are not substantially the same as, or are materially more restrictive on the Borrower and the Restricted Subsidiaries than, those then applicable to the Refinanced Debt, shall otherwise reflect customary market terms and conditions at the time of such incurrence, including with respect to high yield debt securities to the extent applicable ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent in good faith at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Permitted Refinancing Indebtedness, together with a reasonably detailed description of the material covenants and events of default of such Permitted Refinancing Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (5) shall be conclusive evidence that such Permitted Refinancing Indebtedness satisfies this clause (4) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided , further that this clause (4) will not apply to (w) terms addressed in the other clauses of this “Permitted Refinancing Indebtedness” definition, (x) interest rate, rate floors, fees, funding discounts and other pricing terms, (y) redemption, prepayment or other premiums or (z) optional prepayment or redemption terms; and	
 
(6)	to the extent such Refinanced Debt is Permitted Pari Passu Secured Refinancing Debt or Permitted Junior Secured Refinancing Debt, in each case, such Permitted Refinancing Indebtedness is secured only by assets that constitute Collateral and pursuant to one or more security agreements permitted by and subject to any applicable Intercreditor Agreements (as such Intercreditor Agreements may be amended in a manner reasonably acceptable to the Administrative Agent, the applicable Debt Representatives and the Borrower); and	
 
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(7)	to the extent such Refinanced Debt is (a) Incremental Equivalent Term Debt, such Permitted Refinancing Indebtedness shall be subject to the terms of clauses (3) – (7) of the definition of “Incremental Equivalent Term Debt” as if such Permitted Refinancing Indebtedness were also Incremental Equivalent Term Debt or (b) Ratio Debt, such Permitted Refinancing Indebtedness shall be required to satisfy the requirements of clauses (2) – (5) of the definition of “Permitted Additional Indebtedness” as if such Permitted Refinancing Indebtedness were also Permitted Additional Indebtedness.	
Indebtedness constituting Permitted Refinancing Indebtedness will not cease to constitute Permitted Refinancing Indebtedness solely as a result of the subsequent extension of the Latest Maturity Date after the date of original incurrence thereof.
“ Permitted Warrant Transaction ” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) on the Borrower’s common Capital Stock or the common Capital Stock of any direct or indirect parent of the Borrower (or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent) and/or cash (in an amount determined by reference to the price of such common Capital Stock) sold by the Borrower or any direct or indirect parent thereof substantially concurrently with any purchase by the Borrower of a related Permitted Bond Hedge Transaction. For the avoidance of doubt, those certain warrant transactions entered into on June 25, 2015 and June 26, 2015 with Royal Bank of Canada, as amended or modified, constitute Permitted Warrant Transactions.
“ Person ” means any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company, government, individual or family trust, Governmental Authority or other entity of whatever nature.
“ PIPE Investment ” means the redemption by certain existing equityholders of the Borrower of a portion of their equity interests in the Borrower in exchange for shares of common stock in Amneal Inc., and the sale of such shares in a private transaction to certain institutional investors including TPG Improv Holdings, L.P. and funds affiliated with Fidelity Management & Research Company pursuant to the Share Purchase Agreement, dated as of October 17, 2017, between Amneal Holdings and the purchasers party thereto.
“ PIPE Registration Statement ” means the registration statement of Amneal, Inc. (f/k/a Atlas Holdings, Inc.) on Form S-1 filed with the SEC on March 7, 2018.
“ Plan ” means any “employee pension benefit plan” as defined in Section 3(2) of ERISA (other than a Multiemployer Plan) that is (1) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA; and (2) either (a) sponsored or maintained (at the time of determination or at any time within the five years prior thereto) by the Borrower or any of its Subsidiaries or any ERISA Affiliate or (b) in respect of which the Borrower or any of its Subsidiaries or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“ Platform ” has the meaning assigned to such term in Section 10.17(1).
 
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“ Pledged Collateral ” means “ Pledged Collateral ” as defined in the Collateral Agreement.
“ Prime Rate ” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“ Pro Forma Basis ”, “ Pro Forma ” and “ Pro Forma Effect ” mean, with respect to compliance with any test or covenant or calculation hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.08.
“ Products in Development ” means drug products that, as of the Closing Date, (a) are in development or (b) the Borrower or any of the Subsidiaries does not yet sell, offer for sale, import, promote, market, distribute or otherwise commercialize.
“ Projections ” means all projections (including financial estimates, financial models, forecasts, other financial projections and other forward-looking information) furnished to the Lenders or the Administrative Agent by or on behalf of the Borrower, Impax or any of their respective Subsidiaries on or prior to the Closing Date.
“ Public Company Costs ” means costs relating to compliance with the Sarbanes-Oxley Act of 2002, as amended (or similar Laws in any other applicable jurisdiction), and other expenses arising out of or incidental to the Borrower’s (or any Parent Entity’s) status as a public reporting company, including costs, fees and expenses (including legal, accounting and other professional fees) relating to compliance with provisions of the Securities Act and the Exchange Act (or similar Laws in any other applicable jurisdiction), the rules of national securities exchange companies with listed equity securities, directors’ compensation, fees and expense reimbursement, shareholder meetings and reports to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees relating to the foregoing.
“ Public Lender ” has the meaning assigned to such term in Section 10.17(2).
“ Purchasing Borrower Party ” means the Borrower or any Subsidiary of the Borrower that becomes an Assignee or Participant pursuant to Section 10.04(14).
“ Qualified Counterparty ” means any counterparty to any Specified Hedge Agreement that, at the time such Specified Hedge Agreement was entered into or, if later, on the Closing Date, was an Agent, an Arranger, a Lender or an Affiliate of the foregoing, whether or not such Person subsequently ceases to be an Agent, an Arranger, a Lender or an Affiliate of the foregoing.
 
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“ Qualified Equity Interests ” means any Equity Interests other than Disqualified Stock.
“ Qualified Receivables Factoring ” means any Factoring Transaction that meets the following conditions:
 
(1)	such Factoring Transaction is non-recourse to, and does not obligate, the Borrower or any Restricted Subsidiary, or their respective properties or assets (other than Securitization Assets) in any way other than pursuant to Standard Securitization Undertakings;	
 
(2)	the Board of Directors of the Borrower has determined in good faith that such Qualified Receivables Factoring (including financing terms, covenants, termination events and other provisions) is, in the aggregate, economically fair and reasonable to the Borrower and the Restricted Subsidiaries;	
 
(3)	all sales, conveyances, assignments and/or contributions of Securitization Assets by the Borrower or any Restricted Subsidiary are made at fair market value (as determined in good faith by the Borrower), and	
 
(4)	such Factoring Transaction (including financing terms, covenants, termination events (if any) and other provisions thereof) are market terms at the time such Factoring Transaction is first entered into (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings.	
The grant of a security interest (other than a precautionary grant) in any Securitization Assets of the Borrower or any of its Restricted Subsidiaries to secure any Indebtedness shall not be deemed a Qualified Receivables Factoring.
“ Qualified Receivables Financing ” means any Receivables Financing that meets the following conditions:
 
(1)	the Board of Directors of the Borrower has determined in good faith that such Qualified Receivables Financing (including financing terms, covenants, termination events and other provisions) is, in the aggregate, economically fair and reasonable to the Borrower and the Restricted Subsidiaries;	
 
(2)	all sales, conveyances, assignments or contributions of Securitization Assets by the Borrower or any Restricted Subsidiary to the Receivables Subsidiary are made at fair market value; and	
 
(3)	the financing terms, covenants, termination events and other provisions thereof are market terms at the time such Receivables Financing is first entered into (as determined in good faith by a Responsible Officer of the Borrower) and may include Standard Securitization Undertakings.	
The grant of a security interest (other than a precautionary grant) in any Securitization Assets of the Borrower or any Restricted Subsidiary (other than a Receivables Subsidiary) to secure any Indebtedness will not be deemed a Qualified Receivables Financing.
 
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“ Qualified Receivables Transaction ” means a Qualified Receivables Factoring or a Qualified Receivables Financing.
“ Quarterly Financial Statements ” has the meaning assigned to such term in Section 5.04(2).
“ Ratio Amount ” means an aggregate principal amount that, after giving Pro Forma effect to the incurrence thereof, in accordance with Section 1.08, would not result in:
 
(1)	with respect to Ratio Debt to be secured on a pari passu basis with the Initial Term Loans, the First Lien Net Leverage Ratio for the applicable Test Period being greater than (a) the Closing Date First Lien Net Leverage Ratio or (b) the First Lien Net Leverage Ratio immediately prior to such incurrence;	
 
(2)	with respect to any Ratio Debt to be secured on a junior basis to the Initial Term Loans, the Total Net Leverage Ratio for the applicable Test Period being greater than (a) the Closing Date Total Net Leverage Ratio or (b) the Total Net Leverage Ratio immediately prior to such incurrence; and	
 
(3)	with respect to any Ratio Debt that is unsecured (or not secured by Collateral), the Total Net Leverage Ratio for the applicable Test Period being greater than 6.00 to 1.00.	
“ Ratio Debt ” has the meaning assigned to such term in Section 6.01.
“ Ratio Debt Cap ” means, as of the date of measurement, the sum of (1) $100 million (less the aggregate principal amount of all Indebtedness incurred prior to such date in reliance on this clause (1)) and (2) the Ratio Amount.
“ RBC ” means Royal Bank of Canada.
“ Real Property ” means, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee or leased by any Loan Party, together with, in each case, all easements, hereditaments and appurtenances relating thereto, and all improvements and appurtenant fixtures incidental to the ownership or lease thereof.
“ Receivables Financing ” means any transaction or series of transactions that may be entered into by the Borrower or any Restricted Subsidiary pursuant to which the Borrower or any Restricted Subsidiaries may sell, assign, contribute, convey or otherwise transfer Securitization Assets to (1) a Receivables Subsidiary (in the case of a transfer by the Borrower or any Restricted Subsidiary that is not a Receivables Subsidiary) or (2) any other Person (in the case of a transfer by a Receivables Subsidiary) and, in either case, may grant a security interest in, any Securitization Assets of the Borrower or any of its Subsidiaries.
“ Receivables Repurchase Obligation ” means any obligation of a seller of Securitization Assets in a Qualified Receivables Transaction to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a Securitization Asset or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
 
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“ Receivables Subsidiary ” means a Wholly Owned Subsidiary of the Borrower (or another Person formed solely for the purposes of engaging in a Qualified Receivables Financing with the Borrower or any Restricted Subsidiary and to which the Borrower or any Restricted Subsidiary transfers Securitization Assets) which engages in no activities other than in connection with the financing of Securitization Assets of the Borrower or its Subsidiaries, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Borrower (as provided below) as a Receivables Subsidiary and:
 
(1)	no portion of the Indebtedness or any other obligations (contingent or otherwise):	
 
 	(a)	is guaranteed by the Borrower or any Restricted Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings);	
 
 	(b)	is recourse to or obligates the Borrower or any Restricted Subsidiary in any way other than pursuant to Standard Securitization Undertakings; or	
 
 	(c)	subjects any property or asset of the Borrower or any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;	
 
(2)	with which neither the Borrower nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than on terms which the Borrower reasonably believes to be no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Borrower, other than with respect to Standard Securitization Undertakings; and	
 
(3)	to which neither the Borrower nor any other Restricted Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.	
Any such designation by the Board of Directors of the Borrower will be evidenced to the Administrative Agent by filing with the Administrative Agent a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and a certificate of a Responsible Officer of the Borrower certifying that such designation complied with the foregoing conditions.
“ Recipient ” means the Administrative Agent and any Lender, as applicable.
“ Refinance ” has the meaning assigned to such term in the definition of “ Permitted Refinancing Indebtedness, ” and the terms “ Refinanced ” and “ Refinancing ” will have correlative meanings.
“ Refinanced Debt ” has the meaning assigned to such term in the definition of “ Permitted Refinancing Indebtedness. ”
 
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“ Refinancing Amendment ” means an amendment, in accordance with the terms of Section 2.19, to this Agreement and, as necessary, each other Loan Document (which may, at the option of the Administrative Agent and the Borrower, be in the form of an amendment and restatement of this Agreement or such other Loan Document, as applicable) executed by each of (1) the Borrower; (2) the Administrative Agent; and (3) with respect to an amendment (or an amendment and restatement) of this Agreement, each Lender that agrees to provide any portion of the Refinancing Term Loans in accordance with Section 2.19.
“ Refinancing Term Loan Installment Date ” has the meaning assigned to such term in Section 2.06(2).
“ Refinancing Term Loans ” means one or more Classes of Term Loans that result from a Refinancing Amendment.
“ Register ” has the meaning assigned to such term in Section 10.04(2)(d).
“ Registered Equivalent Notes ” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same Guarantees and collateral provisions) issued by the same issuer in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“ Regulation U ” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“ Regulation X ” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“ Reinvestment Deferred Amount ” has the meaning assigned to such term in Section 2.08(8).
“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
“ Release ” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating in, into, upon, onto or through the Environment.
“ Replaced Loans ” has the meaning assigned to such term in Section 10.08(7).
“ Replacement Loans ” has the meaning assigned to such term in Section 10.08(7).
“ Reportable Event ” means any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30 day notice period referred to in Section 4043(c) of ERISA has been waived, with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).
 
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“ Repricing Transaction ” means:
 
(1)	the incurrence by the Borrower or any of the other Restricted Subsidiary of any term loan Indebtedness (a) having an All-In Yield that is less than the All-In Yield for the Initial Term Loans of the respective Type, and (b) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, the outstanding principal of the Initial Term Loans, or	
 
(2)	any effective reduction in All-In Yield applicable to the Initial Term Loans (e.g. by way of amendment);	
provided that a Repricing Transaction will not include any event described in the preceding clause (1) or (2) above that (a) is not consummated for the primary purpose of lowering the All-In Yield applicable to the Initial Term Loans or (b) is consummated in connection with a Change in Control or Enterprise Transformative Event.
“ Required Financial Statements ” has the meaning assigned to such term in Section 5.04(2).
“ Required Lender Consent Items ” has the meaning assigned to such term in Section 10.04(12)(c).
“ Required Lenders ” means, at any time, Lenders having Term Loans outstanding and unused Commitments that, taken together, represent more than 50.0% of the sum of all Term Loans outstanding and Commitments at such time. The Term Loans and Commitments of any Defaulting Lenders will be disregarded in determining the Required Lenders; provided that, subject to the Borrower’s right to replace any Defaulting Lenders as set forth herein:
 
(1)	the Commitment of any Defaulting Lender may not be increased or extended, or the maturity of any of its Term Loans may not be extended, the rate of interest on any of its Term Loans may not be reduced and the principal amount of any of its Term Loans may not be forgiven, in each case without the consent of such Defaulting Lender (it being understood that waivers or other modifications of any conditions precedent, covenants, mandatory prepayments, mandatory Commitment reductions, Defaults or Events of Default shall not constitute an increase or extension of any Commitment, a reduction of the rate of interest on any Term Loan or a forgiveness of the principal amount of any Term Loan); and	
 
(2)	any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender pursuant to clauses (i) through (vi) of Section 10.08(2) that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender.	
“ Required Percentage ” means, with respect to any Excess Cash Flow Period, the percentage set forth in the table below based on First Lien Net Leverage Ratio determined as of the last day of such Excess Cash Flow Period:
 
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First Lien Net Leverage Ratio	  	Required
Percentage	 	
Greater than 3.70 to 1.00	  	 	50.0	% 	
Less than or equal to 3.70 to 1.00 but greater than 3.20 to 1.00	  	 	25.0	% 	
Less than or equal to 3.20 to 1.00	  	 	0	% 	
“ Responsible Officer ” means, with respect to any Loan Party, the chief executive officer, president, vice president, secretary, assistant secretary or any Financial Officer of such Loan Party or other similar officer or Person performing similar functions of a Loan Party and, as to any document delivered on the Closing Date, any secretary or assistant secretary of a Loan Party, designated in writing by or on behalf of the Borrower to the Administrative Agent from time to time. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party will be conclusively presumed to have been authorized by all necessary corporate, partnership or other action on the part of such Loan Party and such Responsible Officer will be conclusively presumed to have acted on behalf of such Loan Party. Unless otherwise specified, all references herein to a “Responsible Officer” shall refer to a Responsible Officer of the Borrower.
“ Restricted Payment ” means any (1) dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any of its Restricted Subsidiaries (other than dividends or other distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the Person paying such dividends or distributions) and (2) payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of (a) the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any Equity Interest of the Borrower or any of the Restricted Subsidiaries or (b) any return of capital to the Borrower’s equityholders, partners or members (or the equivalent Persons thereof); provided that (i) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, current or former officers, directors, managers, employees, consultants and independent contractors of the Borrower, any Restricted Subsidiary or any direct or indirect parent thereof, or their respective estates, heirs, family members, spouses, former spouses, successors, executors, administrators, trustees, legatees or distributees in connection with a repurchase of Equity Interests of the Borrower or such parent entity and (ii) any payment(s) of principal (not in excess of the stated principal amount thereof), interest, fees, reimbursement obligations, charges, costs, expenses, indemnities and other amounts in respect of Convertible Indebtedness, in each case will not constitute a Restricted Payment; provided further that notwithstanding anything herein to the contrary, any payment in cash included in the settlement amount due upon conversion in excess of the stated principal amount of any Convertible Indebtedness shall constitute a Restricted Payment for all purposes hereunder.
“ Restricted Subsidiary ” means any Subsidiary of a Person other than an Unrestricted Subsidiary of such Person. Unless otherwise indicated in this Agreement, all references to Restricted Subsidiaries will mean Restricted Subsidiaries of the Borrower.
“ S&P ” means Standard & Poor’s Ratings Services or any successor entity thereto.
 
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“ Sale Leaseback Net Proceeds ” means with respect to the sale component of any Sale Leaseback Transaction, the excess, if any, of (1) the sum of cash and Cash Equivalents received as purchase consideration in connection with such Sale Leaseback Transaction sale component pursuant to the applicable purchase and sale agreement over (2) the sum of (a) the out-of-pocket fees and expenses (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred or required to be paid by the Borrower or any Restricted Subsidiary in connection with such Sale Leaseback Transaction, (b) taxes (including transfer taxes) paid or reasonably estimated to be payable in connection therewith (including taxes imposed on the repatriation of any such Sale Leaseback Net Proceeds), and (c) any reserve for adjustment in respect of (i) the sale price of such asset or assets established in accordance with GAAP and (ii) any liabilities associated with such asset or assets and retained by the Borrower or any Restricted Subsidiary after such Sale Leaseback Transaction or any obligations payable by the Borrower or any Restricted Subsidiary in connection with such Sale Leaseback Transaction, including liabilities or obligations related to environmental matters, immediate repairs or deferred maintenance or against any indemnification obligations associated with such Sale Leaseback Transaction, it being understood that “Sale Leaseback Net Proceeds” shall include the amount of any reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in this clause (c); provided, that (i) no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Sale Leaseback Net Proceeds unless such amount exceeds $20,000,000 and (ii) no such net cash proceeds shall constitute Sale Leaseback Net Proceeds in any fiscal year until the aggregate amount of all such net cash proceeds (together with the aggregate amount of any Net Cash Proceeds described in clause (1) of the definition thereof for such fiscal year (as determined without giving effect to the second proviso in the last sentence of such clause (1))) in such fiscal year exceeds $40,000,000 (and thereafter only net cash proceeds in excess of such amount(s) shall constitute Sale Leaseback Net Proceeds).
“ Sale Leaseback Transaction ” means a sale leaseback transaction with respect to all or any portion of any real property owned by the Borrower or any Restricted Subsidiary.
“ Sanctioned Country ” shall mean, at any time, a country, region or territory that is subject to comprehensive Sanctions (at the time of the Agreement, the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria).
“ Sanctioned Person ” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union, any EU member state, Her Majesty’s Treasury of the United Kingdom, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person.
“ Sanctions ” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom.
 
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“ SEC ” means the Securities and Exchange Commission or any successor thereto.
“ Secured Parties ” means the collective reference to the “ Secured Parties ” as defined in the Collateral Agreement.
“ Securities Act ” means the Securities Act of 1933, as amended.
“ Securitization Assets ” means accounts receivable, royalty or other revenue streams, other rights to payment, including with respect to rights of payment pursuant to the terms of Joint Ventures (in each case, whether now existing or arising in the future), and any assets related thereto, including all collateral securing any of the foregoing, all contracts and all guarantees or other obligations in respect of any of the foregoing, proceeds of any of the foregoing and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with non-recourse, asset securitization or factoring transactions and any Hedge Agreements entered into by the Borrower or any such Restricted Subsidiary in connection with such assets subject to a Qualified Receivables Transaction.
“ Security Documents ” means the Collateral Agreement and each of the security agreements and other instruments and documents executed and delivered by any Loan Party pursuant thereto or pursuant to Section 5.10.
“ Short Term Advances ” has the meaning assigned to such term in the definition of “Indebtedness”.
“ Similar Business ” means any business, the majority of whose revenues are derived from (1) business or activities conducted by the Borrower and its Restricted Subsidiaries on the Closing Date, (2) any business that is a natural outgrowth or reasonable extension, development or expansion of any such business or any business similar, reasonably related, incidental, complementary or ancillary to any of the foregoing or (3) any business that in the Borrower’s good faith business judgment constitutes a reasonable diversification of businesses conducted by the Borrower and its Restricted Subsidiaries.
“ Specified Acquisition Agreement Representations ” means such of the representations and warranties made by or with respect to Impax and its Subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or its Affiliates) have the right (taking into account any applicable cure provisions) to terminate its (or their) obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement or the failure of an Acquisition Agreement Representation to be true and correct results in a failure of a condition precedent to the Borrower’s (or its affiliates’) obligations to consummate the Acquisition in the Acquisition Agreement.
“ Specified Event of Default ” means any Event of Default under Section 8.01(2), 8.01(3), 8.01(8) or 8.01(9).
 
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“ Specified Hedge Agreement ” means any Hedge Agreement entered into or assumed between or among the Borrower or any Restricted Subsidiary and any Qualified Counterparty and designated by the Qualified Counterparty and the Borrower in writing to the Administrative Agent as a “Specified Hedge Agreement” under this Agreement (but only if such Hedge Agreement has not been designated as a “Specified Hedge Agreement” under the ABL Credit Agreement).
“ Specified Hedge Obligations ” means all amounts owing to any Qualified Counterparty under any Specified Hedge Agreement.
“ Specified IP Subsidiary ” means a wholly-owned Restricted Subsidiary of the Borrower that:
 
(1)	owns no assets other than Transferred IP and cash or Cash Equivalents necessary to support the business set forth in clause (2) of this definition;	
 
(2)	conducts no business other than the licensing, development, promotion, marketing, and supply of the Transferred IP; and	
 
(3)	is prohibited from incurring any Indebtedness and/or Liens under its Organizational Documents.	
“ Specified Representations ” means the representations and warranties of the Borrower set forth in the following sections of this Agreement:
 
(1)	Section 3.01(1) and (4) (but solely with respect to its organizational existence and organizational power and authority as to the execution, delivery and performance of this Agreement, the Collateral Agreement and any applicable Intellectual Property Security Agreements (as defined in the Collateral Agreement) and the extensions of credit hereunder);	
 
(2)	Section 3.02(1) (but solely with respect to its authorization of this Agreement, the Collateral Agreement and any applicable Intellectual Property Security Agreements (as defined in the Collateral Agreement);	
 
(3)	Section 3.02(2)(c) (but solely with respect to non-conflict of its entry into and performance of this Agreement and the other Loan Documents with its certificate or article of incorporation or other applicable Organizational Document);	
 
(4)	Section 3.03 (but solely with respect to this Agreement, the Collateral Agreement and any applicable Intellectual Property Security Agreements (as defined in the Collateral Agreement);	
 
(5)	Section 3.08(2) (but solely with respect to use of proceeds on the Closing Date);	
 
(6)	Section 3.09;	
 
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(7)	Section 3.14(1) (but solely with respect to the creation, validity, attachment and perfection of the Liens granted by it in the Collateral on the Closing Date (subject to Permitted Liens and subject to the Certain Funds Provisions));	
 
(8)	Section 3.16; and	
 
(9)	Section 3.19.	
“ Specified Tender Offer ” means the offer to be commenced by Impax on or following the Closing Date to holders to repurchase for cash all of the outstanding Impax Convertible Notes, or any portion thereof, pursuant to Section 4.10 of the Impax Indenture.
“ Specified Tender Offer Prepayment Date ” has the meaning assigned to such term in Section 2.08(3).
“ Specified Transaction ” means any Investment that results in a Person becoming a Restricted Subsidiary, any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, any Permitted Acquisition, any Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or a facility or any parcels of or interests (including leasehold interests) in real property and all improvements and fixtures thereon or any Disposition of a business unit, line of business or division or a facility or any parcels of or interests (including leasehold interests) in real property and all improvements and fixtures thereon (including any buyout or conversion of an operating lease to a capital lease) of the Borrower or a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise, or any incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), Restricted Payment or Incremental Facility that by the terms of this Agreement requires such test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”
“ Standard Securitization Undertakings ” means representations, warranties, covenants, indemnities and Guarantees of performance entered into by the Borrower or any Restricted Subsidiary of the Borrower that a Responsible Officer of the Borrower has determined in good faith to be customary in a Receivables Financing including those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Receivables Repurchase Obligation will be deemed to be a Standard Securitization Undertaking.
“ Statutory Reserve Rate ” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Federal Reserve Board to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D). Such reserve percentage shall include those imposed pursuant to Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
 
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“ Subagent ” has the meaning assigned to such term in Section 9.02.
“ Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company or other entity of which (1) Equity Interests having ordinary voting power (other than Equity Interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors of such corporation, partnership, limited liability company or other entity are at the time owned by such Person; or (2) more than 50.0% of the Equity Interests are at the time owned by such Person. Unless otherwise indicated in this Agreement, all references to Subsidiaries will mean Subsidiaries of the Borrower.
“ Subsidiary Loan Parties ” means (1) each Wholly Owned U.S. Subsidiary of the Borrower on the Closing Date (other than any Excluded Subsidiary); and (2) each Wholly Owned U.S. Subsidiary (other than any Excluded Subsidiary) of the Borrower that becomes, or is required pursuant to Section 5.10 to become, a party to the Collateral Agreement after the Closing Date.
“ Swap Termination Value ” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (1) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (2) for any date prior to the date referenced in clause (1), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).
“ Tax Receivable Agreement ” means the Tax Receivable Agreement, dated as of the Closing Date, among Amneal Inc., the Borrower, and the other parties from time to time party thereto, as amended, amended and restated, supplemented or otherwise modified from time to time in any manner that is not materially adverse to the interests of the Administrative Agent or the Lenders.
“ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding) or similar charges imposed by any Governmental Authority and any and all interest and penalties related thereto.
“ Term Facility ” means the facility and commitments utilized in making Term Loans hereunder. Following the establishment of any Incremental Term Loans (other than an increase to an existing Term Facility), Refinancing Term Loans or Extended Term Loans, such Incremental Term Loans, Refinancing Term Loans or Extended Term Loans will be considered a separate Term Facility hereunder.
“ Term Loan Agent ” means “ Term Loan Agent ” as defined in the Closing Date Intercreditor Agreement.
 
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“ Term Loan Installment Date ” means, as the context requires, an Initial Term Loan Installment Date, an Incremental Term Loan Installment Date, a Refinancing Term Loan Installment Date or an Extended Term Loan Installment Date.
“ Term Loans ” means the Initial Term Loans, any Incremental Term Loans, any Refinancing Term Loans and any Extended Term Loans, collectively (or if the context so requires, any of them individually).
“ Term Priority Collateral ” means “ Term Loan Priority Collateral ” as defined in the Closing Date Intercreditor Agreement.
“ Test Period ” means, at any time, (1) with respect to the Borrower, the four consecutive fiscal quarters of the Borrower most recently ended (in each case taken as one accounting period) for which the Required Financial Statements have been or are required to be delivered pursuant to Section 5.04(1) or 5.04(2) and (2) in the case of any Person other than the Borrower, the period of four consecutive fiscal quarters most closely corresponding to the period set forth in clause (1).
“ Threshold Amount ” means the greater of (1) $80 million and (2) 12.5% of TTM Consolidated EBITDA as of the applicable date of determination.
“ Total Net Leverage Ratio ” means, with respect to any Test Period, the ratio of (a) Consolidated Total Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the Borrower for such Test Period.
“ Transaction Costs ” means all fees, costs and expenses related to the Transactions.
“ Transaction Documents ” means the Acquisition Documents, the ABL Loan Documents and the Loan Documents.
“ Transactions ” means, collectively, the transactions to occur pursuant to the Transaction Documents, including:
 
(1)	the consummation of the Acquisition;	
 
(2)	the consummation of the Contribution;	
 
(3)	the execution and delivery of the Loan Documents, the creation of the Liens pursuant to the Security Documents and the initial borrowings hereunder;	
 
(4)	the execution and delivery of the ABL Loan Documents, the creation of the Liens pursuant to the ABL Security Documents and the initial borrowings under the ABL Credit Agreement;	
 
(5)	the Closing Date Refinancing;	
 
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(6)	the undertaking of one or more Existing Notes LM Transactions or Specified Tender Offers;	
 
(7)	the PIPE Investment;	
 
(8)	the Impax Transactions; and	
 
(9)	the payment of all Transaction Costs.	
“ Transferred IP ” has the meaning assigned to such term in Section 6.04(30)(b).
“ TTM Consolidated EBITDA ” means, as of any date of determination, the Consolidated EBITDA of the Borrower on a Pro Forma Basis for the four consecutive fiscal quarters most recently ended prior to such date for which financial statements have been furnished or are required to have been furnished to the Lenders hereunder (or, in the case of a determination date that occurs prior to the first such delivery, for the four consecutive fiscal quarters ended as of December 31, 2017).
“ Type ” means, when used in respect of any Term Loan or Borrowing, the Rate by reference to which interest on such Term Loan or on the Term Loans comprising such Borrowing is determined. For purposes of this definition, the term “Rate” means Adjusted LIBO Rate or ABR, as applicable.
“ U.S. Subsidiary ” means any Subsidiary of the Borrower that is organized under the laws of the United States or any political subdivision thereof, and “ U.S. Subsidiaries ” means any two or more of them. Unless otherwise indicated in this Agreement, all references to U.S. Subsidiaries will mean U.S. Subsidiaries of the Borrower.
“ U.S. Tax Compliance Certificate ” has the meaning specified in Section 2.14(5).
“ Uniform Commercial Code ” or “ UCC ” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
“ Unrestricted Cash ” means, as of any date, all cash and Cash Equivalents of the Borrower or any of its Restricted Subsidiaries as of such date that would not appear as “restricted” on the Required Financial Statements (unless such appearance is related to a restriction in favor of any Agent for the benefit of the Secured Parties or an agent under the ABL Credit Agreement for the benefit of the secured parties thereunder), determined on a consolidated basis in accordance with GAAP, determined based upon the most recent month-end financial statements available internally as of the date of determination, and calculated on a Pro Forma Basis.
“ Unrestricted Subsidiary ” means (1) each Receivables Subsidiary and (2) any Subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided that the Borrower will only be permitted to so designate a new Unrestricted Subsidiary after the Closing Date or subsequently re-designate any such Unrestricted Subsidiary as a Restricted Subsidiary (by written notice to the Administrative Agent) if no Specified Event of Default has occurred and is continuing or would result therefrom.
 
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The designation of any Restricted Subsidiary as an Unrestricted Subsidiary will constitute an Investment for purposes of Section 6.04 at the date of designation in an amount equal to the fair market value of the Borrower’s or its Restricted Subsidiary’s (as applicable) Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary will constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time and a return on any Investment by the Borrower in Unrestricted Subsidiaries in an amount equal to the fair market value at the date of such designation of the Borrower’s or its Restricted Subsidiary’s (as applicable) Investment in such Subsidiary. Except as expressly set forth in this paragraph, no Investment will be deemed to exist or have been made, and no Indebtedness or Liens shall be deemed to have occurred, solely by virtue of a Subsidiary becoming an Excluded Subsidiary.
“ USA PATRIOT Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness as of any date, the number of years obtained by dividing (1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal (excluding nominal amortization), including payment at final maturity, in respect thereof by (b) the number of years (calculated to the nearest 1/12) that will elapse between such date and the making of such payment; by (2) the then outstanding principal amount of such Indebtedness.
“ Wholly Owned Subsidiary ” means, with respect to any Person, a Subsidiary of such Person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such Person or another Wholly Owned Subsidiary of such Person. Unless otherwise indicated in this Agreement, all references to Wholly Owned Subsidiaries will mean Wholly Owned Subsidiaries of the Borrower.
“ Wholly Owned U.S. Subsidiary ” means, with respect to any Person, a U.S. Subsidiary of such Person that is a Wholly Owned Subsidiary. Unless otherwise indicated in this Agreement, all references to Wholly Owned U.S. Subsidiaries will mean Wholly Owned U.S. Subsidiaries of the Borrower.
“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
 
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“ Working Capital ” means, with respect to the Borrower and its Subsidiaries on a consolidated basis as of any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination; provided that, for purposes of calculating Excess Cash Flow, increases or decreases in Working Capital will be calculated without regard to any changes in Current Assets or Current Liabilities as a result of (a) reclassification after the date hereof in accordance with GAAP of assets or liabilities, as applicable, between current and non-current or (b) the effects of purchase accounting.
“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02. Terms Generally . The definitions set forth or referred to in Section 1.01 will apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun will include the corresponding masculine, feminine and neuter forms. Unless the context requires otherwise,
 
(1)	the words “include,” “includes” and “including” will be deemed to be followed by the phrase “without limitation;”	
 
(2)	in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including;”	
 
(3)	the word “will” will be construed to have the same meaning and effect as the word “shall;”	
 
(4)	the word “incur” will be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” will have correlative meanings);	
 
(5)	the word “or” will be construed to mean “and/or;”	
 
(6)	any reference to any Person will be construed to include such Person’s legal successors and permitted assigns; and	
 
(7)	the words “asset” and “property” will be construed to have the same meaning and effect.	
All references herein to Articles, Sections, Exhibits and Schedules will be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context otherwise requires. Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document or organizational document of the Loan Parties means such document as amended, restated, amended and restated, supplemented or otherwise modified from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document). Any reference to any law will include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation means, unless otherwise specified, such law or regulation as amended, modified or supplemented from time to time. Whenever this Agreement refers to the “knowledge” of Impax or any Loan Party, such reference will be construed to mean the knowledge of the chief executive officer, president, chief financial officer, treasurer or controller of such Person.
 
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SECTION 1.03. Accounting Terms; GAAP; Fair Market Value . Except as otherwise expressly provided herein, all terms of an accounting or financial nature will be construed in accordance with GAAP, as in effect from time to time; provided that, notwithstanding anything to the contrary herein, all accounting or financial terms used herein will be construed, and all financial computations pursuant hereto will be made, without giving effect to any election under Statement of Financial Accounting Standards Board Accounting Standards Codification 825-10 (or any other Statement of Financial Accounting Standards Board Accounting Standards Codification having a similar effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value,” as defined therein. In the event that any Accounting Change (as defined below) occurs and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then upon the written request of the Borrower or the Administrative Agent (acting upon the request of the Required Lenders), the Borrower, the Administrative Agent and the Lenders will enter into good faith negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Change with the desired result that the criteria for evaluating the Borrower’s financial condition will be the same after such Accounting Change as if such Accounting Change had not occurred; provided that, until so amended, calculation of financial covenants, standards or terms in this Agreement will be computed in accordance with GAAP in effect prior to such Accounting Change until the effective date of such amendment. “ Accounting Change ” means (1) any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or (2) any change in the application of GAAP by the Borrower (including through the adoption of IFRS). All determinations of fair market value under a Loan Document will be made by a Responsible Officer of the Borrower in good faith and if such determination is supported by an opinion of an Independent Financial Advisor, such determination will be conclusive for all purposes under the Loan Documents or related to the Obligations.
SECTION 1.04. Effectuation of Transfers . Each of the representations and warranties of the Borrower contained in this Agreement (and all corresponding definitions) is made after giving effect to the Transactions, unless the context otherwise requires.
SECTION 1.05. Currencies . Unless otherwise specifically set forth in this Agreement, monetary amounts are in Dollars. Notwithstanding anything to the contrary herein, no Default or Event of Default will arise as a result of any limitation or threshold set forth in Dollars being exceeded solely as a result of changes in currency exchange rates.
SECTION 1.06. Required Financial Statements . With respect to the determination of the First Lien Net Leverage Ratio, the Total Net Leverage Ratio or under any other applicable provision of the Loan Documents (including the definition of Immaterial Subsidiary) made on or prior to the date on which Required Financial Statements have been delivered for the fiscal quarter ended March 31, 2018, such calculation will be determined for the period of four consecutive fiscal quarters ended December 31, 2017, and calculated on a Pro Forma Basis.
 
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SECTION 1.07. Certifications . Any certificate or other writing required hereunder or under any other Loan Document to be certified by any officer or other authorized representative (including any Responsible Officer) of any Person will be deemed to be executed and delivered by such officer, other authorized representative or Responsible Officer solely in such individual’s capacity as an officer, other authorized representative or Responsible Officer of such Person and not in such officer’s or other authorized representative’s individual capacity and without any personal liability.
SECTION 1.08. Pro Forma Calculations .
 
(1)	Notwithstanding anything to the contrary herein, financial ratios shall be calculated in the manner prescribed by this Section 1.08; provided that, notwithstanding anything to the contrary in clauses (2), (3) or (4) of this Section 1.08, when calculating any financial ratio for purposes of (a) determining Applicable Margins and pricing grid step-downs, (b) calculations of mandatory prepayments, (c) determining compliance with any financial covenant (including any financial covenant under the ABL Credit Agreement and (d) any provisions related to the foregoing, the events described in this Section 1.08 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.	
 
(2)	For purposes of calculating the First Lien Net Leverage Ratio, the Total Net Leverage Ratio or any other financial ratio, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been made (a) during the applicable Test Period or (b) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.08 then the financial ratios shall be calculated to give pro forma effect thereto in accordance with this Section 1.08.	
 
(3)	Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer and may include, for the avoidance of doubt, the amount of cost savings, operating expense reductions and, synergies projected by the Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such Test Period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period but, for the avoidance of doubt, subject to the limitations set forth in clause (g) of the definition of “Consolidated EBITDA” set forth herein) relating to such Specified Transaction, net of the amount of actual benefits realized during such period from such actions (such cost savings and synergies, “ Specified Transaction Adjustments ”); provided, that	
 
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 	(a)	such Specified Transaction Adjustments are reasonably identifiable and quantifiable in the good faith judgment of a Responsible Officer of the Borrower,	
 
 	(b)	such actions are taken, committed to be taken or reasonably anticipated to be taken no later than twenty four (24) months after the date of such Specified Transaction, and	
 
 	(c)	no amounts shall be added pursuant to this clause (3) to the extent duplicative of any amounts that are otherwise added back in calculating Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period.	
 
(4)	In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of a financial covenant (in each case, other than Indebtedness incurred or repaid under any revolving credit facility (including, for the avoidance of doubt, the ABL Facility) in the ordinary course of business for working capital purposes), (a) during the applicable Test Period or (b) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then each financial ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.	
SECTION 1.09. LCA Election . Notwithstanding anything in this Agreement or any other Loan Document to the contrary, when (1) calculating any applicable ratio in connection with incurrence of Indebtedness, the creation of Liens, the making of any disposition, the making of an Investment, the designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or the repayment of Indebtedness or (2) determining compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, in each case of the preceding clauses (1) and (2) in connection with a Limited Condition Transaction, the date of determination of such ratio and determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “ LCA Election ”), be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “ LCA Test Date ”). If on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof), with such ratios and other provisions being calculated as if such Limited Condition Transaction or other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date for which financial statements are available, the Borrower could have taken such action on the relevant LCA Test Date in compliance with the applicable ratios or other provisions, such ratios or provisions shall be deemed to have been complied with, unless a Specified Event of Default shall be continuing on the date such Limited Condition Transaction is consummated. For the avoidance of doubt, (a) if any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA) or other provisions at or prior to the consummation of the relevant Limited Condition Transaction,
 
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such ratios and other provisions will not be deemed to have been exceeded or breached solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (b) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions, unless on such date a Specified Event of Default shall be continuing. If the Borrower has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. Notwithstanding anything in this Agreement or any Loan Document to the contrary, if the Borrower or any Restricted Subsidiary (i) incurs Indebtedness, creates Liens, makes dispositions, makes investments, makes Restricted Payments, designates any Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or repays any Indebtedness in connection with any Limited Condition Transaction under a ratio-based basket and (ii) incurs Indebtedness, creates Liens, makes dispositions, makes Investments, makes Restricted Payments, designates any Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or repays any Indebtedness in connection with such Limited Condition Transaction under a non-ratio-based basket (which shall occur within five Business Days of the events in the preceding clause (i) above), then the applicable ratio will be calculated with respect to any such action under the applicable ratio-based basket without regard to any such action under such non-ratio-based basket made in connection with such Limited Condition Transaction.
ARTICLE II
The Credits
SECTION 2.01. Term Loans and Borrowings .
 
(1)	Subject to the terms and conditions set forth herein, each Lender severally agrees to make to the Borrower Term Loans denominated in Dollars equal to such Lender’s Commitment on the Closing Date (the “ Initial Term Loans ”). The failure of any Lender to make any Initial Term Loan required to be made by it will not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender will be responsible for any other Lender’s failure to make Initial Term Loans as required. Amounts paid or prepaid in respect of Initial Term Loans may not be reborrowed. A portion of the proceeds of the Initial Term Loans equal to the aggregate principal amount of the Impax Convertible Notes outstanding on the Closing Date shall be deposited by (or at the direction of) the Borrower into the Escrow Account (the “ Escrowed Funds ”).	
 
(2)	Subject to Sections 2.04(7) and 2.11, each Borrowing will be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may request in accordance herewith. Each Lender at its option may make any ABR Loan or Eurocurrency Loan by causing any	
 
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 	domestic or foreign branch or Affiliate of such Lender to make such Term Loan; provided that any exercise of such option will not affect the obligation of the Borrower to repay such Term Loan in accordance with the terms of this Agreement, and such Lender will not be entitled to any amounts payable under Section 2.12 or 2.14 solely in respect of increased costs resulting from, and existing at the time of, such exercise.	
 
(3)	Notwithstanding anything to the contrary contained herein, the funded portion of the Initial Term Loans (i.e., the amount advanced in cash to the Borrower on the Closing Date) will be equal to 99.50% of the principal amount of such Term Loan (it being agreed that the Borrower is obligated to repay 100.00% of the principal amount of the Initial Term Loans, the Initial Term Loans will amortize based on 100.00% of the principal amount of the Initial Term Loan and interest will accrue on 100.00% of the principal amount of the Initial Term Loan, in each case as provided herein).	
 
(4)	Notwithstanding any other provision of this Agreement, the Borrower will not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.	
SECTION 2.02. Request for Borrowing .
Subject to Section 4.01(2), the Borrower will deliver to the Administrative Agent a Borrowing Request not later than 12:00 p.m., New York City time, one Business Day prior to the anticipated Closing Date, requesting that the Lenders make Term Loans on the Closing Date (or such later date or time as the Administrative Agent may agree), which Borrowing Request may be conditioned on the consummation of the Acquisition. The Borrowing Request must specify:
 
(1)	the principal amount of Term Loans to be borrowed;	
 
(2)	the requested date of the Borrowing (which will be a Business Day);	
 
(3)	the Type of Term Loans to be borrowed;	
 
(4)	in the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable thereto, which will be a period contemplated by the definition of the term “Interest Period;” and	
 
(5)	the location and number of the Borrower’s account to which funds are to be disbursed (which, for the avoidance of doubt, may be provided by reference to a separate “funds flow” document).	
If no election as to the Type of Borrowing is specified in the applicable Borrowing Request, then the Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any Eurocurrency Borrowing is specified in the applicable Borrowing Request, then the Borrower will be deemed to have selected an Interest Period of one-month’s duration. Upon receipt of such Borrowing Request, the Administrative Agent will promptly notify each Lender thereof. The proceeds of the Term Loans requested under this Section 2.02 will be disbursed by the Administrative Agent in immediately available funds by wire transfer to such bank account or accounts as designated by the Borrower in the Borrowing Request.
 
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SECTION 2.03. Funding of Borrowings .
 
(1)	Each Lender will make each Term Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 10:00 a.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. Subject to the last sentence of Section 2.01(1), the Administrative Agent will make such Term Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower as specified in the Borrowing Request.	
 
(2)	Unless the Administrative Agent has received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (1) of this Section 2.03 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent, forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent at (a) in the case of such Lender, the greater of (i) the Federal Funds Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (b) in the case of the Borrower, the interest rate applicable to ABR Loans at such time. If such Lender pays such amount to the Administrative Agent then such amount will constitute such Lender’s Term Loan included in such Borrowing.	
SECTION 2.04. Interest Elections .
 
(1)	Subject to Section 2.02, each Borrowing initially will be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, will have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.04. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion will be allocated ratably among the Lenders holding the Term Loans comprising such Borrowing, and the Term Loans comprising each such portion will be considered a separate Borrowing; provided that the Term Loans comprising any Borrowing will be in an aggregate principal amount that is an integral multiple of $500,000 and not less than $1,000,000; provided further that there shall not be more than ten Eurocurrency Borrowings outstanding hereunder at any time.	
 
(2)	To make an election pursuant to this Section 2.04 following the Closing Date, the Borrower will notify the Administrative Agent of such election by telephone (a) in the case of an election to convert to or continue a Eurocurrency Borrowing, not later than 2:00 p.m., New York City time, three Business Days before the effective date of such	
 
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 	election or (b) in the case of an election to convert to or continue an ABR Borrowing, not later than 1:00 p.m., New York City time, on the date of such election (or in each case, at such later date or time as the Administrative Agent may agree). Each such telephonic Interest Election Request will be confirmed promptly by hand delivery, facsimile transmission or e-mail to the Administrative Agent of a written Interest Election Request.	
 
(3)	Each telephonic and written Interest Election Request will be irrevocable and will specify the following information:	
 
 	(a)	the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (c) and (d) below will be specified for each resulting Borrowing);	
 
 	(b)	the effective date of the election made pursuant to such Interest Election Request, which will be a Business Day;	
 
 	(c)	whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and	
 
 	(d)	if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which will be a period contemplated by the definition of “Interest Period.”	
 
(4)	If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the Borrower will be deemed to have selected a Eurocurrency Borrowing having an Interest Period of one month’s duration.	
 
(5)	Promptly following receipt of an Interest Election Request, the Administrative Agent will advise each applicable Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.	
 
(6)	If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing will be automatically converted into or continued an ABR Borrowing.	
 
(7)	Any portion of a Borrowing maturing or required to be repaid in less than one month may not be converted into or continued as a Eurocurrency Borrowing.	
 
(8)	Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means) of the Required Lenders, so notifies the Borrower, then, so long as such Event of Default is continuing, (a) no outstanding Borrowing may be converted to or continued as a Eurocurrency Borrowing and (b) unless repaid, each Eurocurrency Borrowing will be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.	
 
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SECTION 2.05. Promise to Pay; Evidence of Debt .
 
(1)	The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Term Loan of such Lender as provided in Section 2.06.	
 
(2)	Each Lender will maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to such Lender resulting from each Term Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.	
 
(3)	The Administrative Agent will maintain accounts in which it will record (a) the amount of each Term Loan made hereunder, the Type thereof and the Interest Period (if any) applicable thereto, (b) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (c) any amount received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.	
 
(4)	The entries made in the accounts maintained pursuant to paragraph (2) or (3) of this Section 2.05 will be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein will not in any manner affect the obligation of the Borrower to repay the Term Loans in accordance with the terms of this Agreement.	
 
(5)	Any Lender may request that Term Loans made by it be evidenced by a Note. In such event, the Borrower will prepare, execute and deliver to such Lender a Note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent and reasonably acceptable to the Borrower.	
SECTION 2.06. Repayment of Term Loans .
 
(1)	The Borrower will repay to the Administrative Agent for the ratable account of the Lenders on the last Business Day of each fiscal quarter of the Borrower, commencing with the last Business Day of the fiscal quarter of the Borrower ending on September 30, 2018, an aggregate principal amount equal to 0.25% of the aggregate principal amount of the Initial Term Loans outstanding on the Closing Date, which payments will be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.07 or 2.08, as applicable (each such date being referred to as an “ Initial Term Loan Installment Date ”);	
 
(2)	(a) In the event that any Incremental Term Loans are made, the Borrower will repay Borrowings consisting of Incremental Term Loans on the dates (each an “ Incremental Term Loan Installment Date ”) and in the amounts set forth in the applicable Incremental Facility Amendment, (b) in the event that any Refinancing Term Loans are made, the Borrower will repay Borrowings consisting of Refinancing Term Loans on the dates (each an “ Refinancing Term Loan Installment Date ”) and in the amounts set forth in the applicable Refinancing Amendment and (c) in the event that any Extended Term Loans are made, the Borrower will repay Borrowings consisting of Extended Term Loans on the dates (each an “ Extended Term Loan Installment Date ”) and in the amounts set forth in the applicable Extension Amendment; and	
 
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(3)	to the extent not previously paid, all outstanding Term Loans will be due and payable on the applicable Maturity Date;	
together, in each case, with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.
SECTION 2.07. Optional Prepayment of Term Loans . The Borrower may at any time and from time to time prepay the Term Loans in whole or in part, without premium or penalty (except as provided in Section 2.21 and subject to Section 2.13), in an aggregate principal amount, (1) in the case of Eurocurrency Loans, that is an integral multiple of $500,000 and not less than $1.0 million, and (2) in the case of ABR Loans, that is an integral multiple of $100,000 and not less than $1.0 million, or, in each case, if less, the amount outstanding. The Borrower will notify the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) of such election not later than 2:00 p.m., New York City time, (a) in the case of a Eurocurrency Borrowing, three Business Days before the anticipated date of such prepayment and (b) in the case of an ABR Borrowing, one Business Day before the anticipated date of such prepayment (or in each case, at such later date or time as the Administrative Agent may agree). Each such notice of prepayment will specify the prepayment date and the principal amount of each Borrowing (or portion thereof) to be prepaid. All prepayments under this Section 2.07 will be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment. Any such notice may be revocable or conditioned on a refinancing of all or any portion of a Term Facility. Any optional prepayments of Term Loans pursuant to this Section 2.07 will be applied to the remaining scheduled amortization payments as directed by the Borrower (or in the absence of such direction, in direct order of maturity) and, subject to the immediately succeeding sentence, will be applied ratably to the Term Loans included in the prepaid Borrowing. Notwithstanding anything in any Loan Document to the contrary (including Section 2.15), so long as no Specified Event of Default has occurred and is continuing, and no proceeds of any ABL Loans are used to consummate any such prepayment, the Borrower may prepay Term Loans of one or more Class on a non-pro rata basis at or below par in accordance with the Dutch Auction Procedures.
SECTION 2.08. Mandatory Prepayment of Term Loans .
 
(1)	Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:	
 
 	(a)	if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “ Other Applicable Indebtedness ”) with such Net Cash Proceeds, then the Borrower may	
 
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 	apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;	
 
 	(b)	for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and	
 
 	(c)	to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).	
 
(2)	Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:	
 
 	(a)	the Required Percentage of such Excess Cash Flow (if any); minus	
 
 	(b)	the sum of:	
 
 	(i)	voluntary prepayments of Term Loans and Pari Passu Lien Debt (including those made through debt buybacks and in the case of below-par buybacks in an amount equal to the discounted amount actually paid in cash in respect thereof), in each case other than revolving Indebtedness; and	
 
 	(ii)	loans under the ABL Credit Agreement, any ABL Incremental Facility or other revolving Pari Passu Lien Debt (to the extent accompanied by a corresponding reduction in the commitments);	
 
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in each case, (x) during such Excess Cash Flow Period or following the end of such Excess Cash Flow Period and prior to the date of delivery of such Financial Officer certificate ( provided that, with respect to any such amount following the end of such Excess Cash Flow Period, such amount is not included in any subsequent calculation pursuant to this clause (b)) and (y) to the extent such prepayments are not funded with the proceeds of Funded Debt; provided that no such payment shall be required if such amount is equal to or less than $15,000,000; provided , further , that:
(A) if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt with all or a portion of such Excess Cash Flow (any such Pari Passu Lien Debt, “ Other Applicable ECF Indebtedness ”), then the Borrower may apply such Excess Cash Flow to redeem, repurchase, repay or prepay Term Loans and Other Applicable ECF Indebtedness (in the case of any revolving facilities, to the extent accompanied by a permanent reduction of corresponding commitments) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(2) will be reduced accordingly;
(B) for purposes of the preceding clause (A), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable ECF Indebtedness outstanding at such time, with it being agreed that the portion of such Excess Cash Flow allocated to the Other Applicable ECF Indebtedness will not exceed the amount of such Excess Cash Flow required to be allocated to the Other Applicable ECF Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow will be allocated to the prepayment of the Term Loans in accordance with the terms hereof (to the extent such Excess Cash Flow would otherwise have been required to be so applied if such Other Applicable ECF Indebtedness was not then outstanding); and
 
 	(c)	to the extent the holders of Other Applicable ECF Indebtedness decline to have such indebtedness repurchased, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof (to the extent such Excess Cash Flow would otherwise have been required to be so applied if such Other Applicable ECF Indebtedness was not then outstanding).	
 
(3)	On the date that is the earlier of (x) 45 Business Days following the Closing Date and (y) the date of settlement of the Specified Tender Offer (such earlier date, the “ Specified Tender Offer Prepayment Date ”), the Borrower will prepay the Term Loans in an amount equal to the aggregate outstanding principal amount of any Impax Convertible Notes, if any, on the Specified Tender Offer Prepayment Date after giving effect to the Specified Tender Offer, if any.	
 
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(4)	The Borrower will apply 100% of the Net Cash Proceeds from the incurrence, issuance or sale by the Borrower or any Restricted Subsidiary of any Indebtedness that is not Excluded Indebtedness to the prepayment of Term Loans, on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.	
 
(5)	Except as may otherwise be set forth in any Permitted Amendment to the extent permitted by the terms hereof, (a) each prepayment of Term Loans pursuant to Section 2.08(1), (2), (3) and (4) will be applied ratably to each Class of Term Loans then outstanding, (b) with respect to each Class of Loans, each prepayment pursuant to Section 2.08(1), (2), (3) and (4) will be applied to the then remaining scheduled installments of principal thereof pursuant to Section 2.06 as directed by the Borrower (and absent such direction, in direct order of maturity), and (c) each such prepayment shall be paid to the Lenders in accordance with their respective proportionate shares (based on each such Lender’s participation in the Term Loans prepaid).	
 
(6)	Notwithstanding anything in this Section 2.08 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least two Business Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.08 (other than clauses (3) and (4) of this Section 2.08), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined will be retained by the Borrower and applied for any permitted purpose hereunder. Such prepayments will be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans.	
 
(7)	The Borrower will deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.08, (a) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (b) to the extent practicable, at least three (3) Business Days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and the principal amount of each Term Loan (or portion thereof) to be prepaid. Prepayment of the Term Loans pursuant to this Section 2.08 will be made without premium or penalty, accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment. No payments under Section 2.13 will be required in connection with a prepayment of Term Loans pursuant to this Section 2.08.	
 
(8)	With respect to any Net Cash Proceeds received with respect to any Asset Sale that gives rise to a prepayment event pursuant to Section 2.08(1), at the option of the Borrower, the Borrower may (in lieu of making a prepayment pursuant to Section 2.08(1)) elect to reinvest (directly, or through one or more of its Restricted Subsidiaries) an amount equal to all or any portion of such Net Cash Proceeds (the “ Reinvestment Deferred Amount ”) in assets used or useful for the business of the Borrower and its Restricted Subsidiaries (a) within eighteen (18) months following receipt of such Net Cash Proceeds or (b) if the Borrower or any of its Restricted Subsidiaries enters into a legally binding commitment to reinvest such Net Cash Proceeds within eighteen (18) months following receipt of such Net Cash Proceeds, no later than one hundred and eighty (180) days after the end of such eighteen month period.	
 
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(9)	Notwithstanding any provisions of this Section 2.08 to the contrary,	
 
 	(a)	to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith in consultation with the Administrative Agent that any or all of the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.08(1), (2) or (4) is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrower or the applicable Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation to the United States. Once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be effected promptly and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein; provided that the Borrower hereby agrees, and will cause any applicable Subsidiary, to promptly take all commercially reasonable actions required by applicable local law to permit any such repatriation; or	
 
 	(b)	to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith in consultation with the Administrative Agent that repatriation of any of or all the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to this Section 2.08 would have an adverse tax cost consequence,	
then in each case the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrower or the applicable Subsidiary without being repatriated. The non- application of Net Cash Proceeds as a consequence of this Section will not constitute an Event of Default under this Agreement. Such amounts shall not be deemed to be Net Cash Proceeds, regardless of whether the limitations set forth above in clauses (a) or (b) cease to apply after such initial determination.
For purposes of this Section 2.08(9), references to “law” mean, with respect to any Person, (A) the common law and any federal, state, local, foreign, multinational or international statutes, laws, treaties, judicial decisions, standards, rules and regulations, guidances, guidelines, ordinances, rules, judgments, writs, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, governmental agreements and governmental restrictions (including administrative or judicial precedents or authorities), in each case whether now or hereafter in effect, and (B) the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding (or purported to be binding) upon such Person, its Subsidiaries or any of its or their property or to which such Person, any of its Subsidiaries or any of its or their property is subject (or purported to be subject).
 
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SECTION 2.09. Fees .
 
(1)	The Borrower agrees to pay to the Administrative Agent, for its own account, the “Agency Fee” in respect of the Term Facility set forth in the Agency Fee Letter at the times and on the terms specified therein or in such other amounts and at such other times as may be separately agreed in writing by the Administrative Agent and the Borrower from time to time (the “ Administrative Agent Fees ”).	
 
(2)	All Fees will be paid on the dates due and payable, in immediately available funds, to the Administrative Agent at the Payment Office for distribution, if and as appropriate, among the Lenders. Once paid, none of the Fees will be refundable under any circumstances (except as expressly agreed between the Borrower and the Administrative Agent, including pursuant to the Agency Fee Letter).	
SECTION 2.10. Interest .
 
(1)	The Term Loans comprising each ABR Borrowing will bear interest at the ABR plus the Applicable Margin.	
 
(2)	The Term Loans comprising each Eurocurrency Borrowing will bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.	
 
(3)	Following the occurrence and during the continuation of a Specified Event of Default, the Borrower will pay interest on overdue amounts hereunder at a rate per annum equal to (a) in the case of overdue principal of, or interest on, any Term Loan, 2.0% plus the rate otherwise applicable to such Term Loan as provided in the preceding paragraphs of this Section 2.10 or (b) in the case of any other overdue amount, 2.0% plus the rate applicable to ABR Loans as provided in clause (1) of this Section 2.10.	
 
(4)	Accrued interest on each Term Loan will be payable in arrears (a) on each Interest Payment Date for such Term Loan and (b) on the applicable Maturity Date; provided that (i) interest accrued pursuant to paragraph (3) of this Section 2.10 will be payable on demand, (ii) in the event of any repayment or prepayment of any Term Loan, accrued interest on the principal amount repaid or prepaid will be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Loan prior to the end of the current Interest Period therefor, accrued interest on such Term Loan will be payable on the effective date of such conversion.	
 
(5)	All interest hereunder will be computed on the basis of a year of 360 days, except that interest computed by reference to the ABR at times when the ABR is based on the prime rate, will be computed on the basis of a year of 365 days (or 366 days in a leap year), and, in each case, will be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable ABR, Adjusted LIBO Rate or LIBO Rate will be determined by the Administrative Agent, and such determination will be conclusive absent manifest error.	
 
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SECTION 2.11. Alternate Rate of Interest .
 
(1)	If prior to the commencement of any Interest Period for a Eurocurrency Borrowing:	
 
 	(a)	the Administrative Agent determines (which determination will be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; or	
 
 	(b)	the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Term Loans included in such Borrowing for such Interest Period;	
then the Administrative Agent will give notice thereof to the Borrower and the Lenders by telephone, facsimile transmission or e-mail as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (a) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a Eurocurrency Borrowing will be ineffective and such Borrowing will be converted to or continued as on the last day of the Interest Period applicable thereto an ABR Borrowing and (b) if any Borrowing Request requests a Eurocurrency Borrowing, such Borrowing will be made as an ABR Borrowing.
 
(2)	If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (1)(a) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (1)(a) have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment (or amendment and restatement) to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate); provided that, if such alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 10.08, such amendment (or amendment and restatement) shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date	
 
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 	notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of any Class stating that such Required Lenders object to such amendment (or amendment and restatement); provided that any such objection will only be effective with respect to the applicable Class of Term Loans. Until an alternate rate of interest shall be determined in accordance with this clause (2) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.11(2), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a Eurocurrency Borrowing will be ineffective and (y) if any Borrowing Request requests a Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.	
SECTION 2.12. Increased Costs .
 
(1)	If any Change in Law:	
 
 	(a)	imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate);	
 
 	(b)	imposes on any Lender or the London interbank market any other condition (other than Taxes) affecting this Agreement or Eurocurrency Loans made by such Lender; or	
 
 	(c)	subjects any Recipient to any Taxes (other than (i) Indemnified Taxes and (ii) Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or deposits, reserves, other liabilities or capital attributable thereto;	
and the result of any of the foregoing is to increase the cost to such Lender of making or maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Term Loan) or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
 
(2)	If any Lender determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Term Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy or liquidity), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.	
 
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(3)	A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as applicable, as specified in paragraph (1) or (2) of this Section 2.12 will be delivered to the Borrower and will be conclusive absent manifest error. The Borrower will pay such Lender the amount shown as due on any such certificate within ten days after receipt thereof.	
 
(4)	Promptly after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.12, such Lender will notify the Borrower thereof. Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.12 will not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower will not be required to compensate a Lender pursuant to this Section 2.12 for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided , further , that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above will be extended to include the period of retroactive effect thereof.	
SECTION 2.13. Break Funding Payments . Except as otherwise set forth herein, the Borrower will compensate each Lender for the actual loss, cost and expense (excluding loss of anticipated profits) attributable to the following events:
 
(1)	the payment of any principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default);	
 
(2)	the conversion of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto;	
 
(3)	the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant hereto; or	
 
(4)	the assignment of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.16.	
A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.13 will be delivered to the Borrower and will be conclusive absent manifest error. The Borrower will pay such Lender the amount shown as due on any such certificate within ten days after receipt thereof.
SECTION 2.14. Taxes .
 
(1)	Any and all payments by or on account of any obligation of any Loan Party hereunder will be made free and clear of and without deduction for any Indemnified Taxes; provided that if a Loan Party is required to deduct any Indemnified Taxes from such payments, then (a) the sum payable will be increased as necessary so that after making all	
 
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 	required deductions (including deductions applicable to additional sums payable under this Section 2.14) the Administrative Agent or any Lender, as applicable, receives an amount equal to the amount it would have received had no such deductions been made, (b) such Loan Party will make such deductions and (c) such Loan Party will timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.	
 
(2)	In addition, the Loan Parties will pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.	
 
(3)	Each Loan Party will, jointly and severally, indemnify the Administrative Agent and each Lender, within ten days after written demand therefor, for the full amount of any Indemnified Taxes paid by the Administrative Agent or such Lender (other than as a result of the Administrative Agent’s or any Lender’s gross negligence or willful misconduct), on or with respect to any payment by or on account of any obligation of such Loan Party hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.14) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to such Loan Party by a Lender, or by the Administrative Agent on its own behalf or on behalf of a Lender, will be conclusive absent manifest error.	
 
(4)	As soon as practicable after any payment of Indemnified Taxes by a Loan Party to a Governmental Authority, such Loan Party will deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.	
(5)
 
 	(a)	Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document will deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, will deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 2.14(5)(b), 2.14(5)(c) and 2.14(6) below) will not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.	
 
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 	(b)	Without limiting the effect of Section 2.14(5)(a) above, each Foreign Lender will deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two original copies of whichever of the following is applicable:	
 
 	(i)	in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States of America is a party, (A) with respect to payments of interest under any Loan Document, executed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (B) with respect to any other applicable payments under any Loan Document, Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;	
 
 	(ii)	duly completed copies of Internal Revenue Service Form W-8ECI (or any subsequent versions thereof or successors thereto);	
 
 	(iii)	in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code, (A) a certificate substantially in the form of the applicable Exhibit F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3) or 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (B) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any subsequent versions thereof or successors thereto);	
 
 	(iv)	to the extent a Foreign Lender is not the beneficial owner, executed copies of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner; or	
 
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 	(v)	any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.	
In addition, in each of the foregoing circumstances, each Foreign Lender will deliver such forms, if legally entitled to deliver such forms, promptly upon the obsolescence, expiration or invalidity of any form previously delivered by such Foreign Lender. Each Foreign Lender will promptly notify the Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the United States of America or other taxing authorities for such purpose). In addition, each Lender that is not a Foreign Lender will deliver to the Borrower and the Administrative Agent two copies of Internal Revenue Service Form W-9 (or any subsequent versions thereof or successors thereto) on or before the date such Lender becomes a party and upon the expiration of any form previously delivered by such Lender. Notwithstanding any other provision of this paragraph, a Lender will not be required to deliver any form pursuant to this paragraph (5) that such Lender is not legally able to deliver.
 
 	(c)	JPM, in its capacity as the Administrative Agent (and any Person succeeding the Administrative Agent upon assignment or succession under Section 9.09, if applicable) will also deliver to the Borrower, on or prior to the execution and delivery of this Agreement, (i) two duly completed copies of Internal Revenue Service form W-9 with respect to any amounts payable to JPM for its own account (or other withholding certification as appropriate) and (ii) if applicable, two duly completed copies of Internal Revenue Service Form W-8IMY certifying that it is a “U.S. branch” and that the payments it receives for the account of others are not effectively connected with the conduct of its trade or business in the United States and that it is using such form as evidence of its agreement with the Borrower to be treated as a United States person with respect to such payments, with the effect that the Borrower can make payments to JPM (acting as the Administrative Agent) without deduction or withholding of any taxes imposed by the United States.	
 
(6)	If a payment made to a Recipient under any Loan Document would be subject to a Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient will deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative	
 
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 	Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (6), “FATCA” will include any amendments made to FATCA after the date of this Agreement.	
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it will update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
 
(7)	If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund (including a credit in lieu of a refund) of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which such Loan Party has paid additional amounts pursuant to this Section 2.14, it will pay over reasonably promptly such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.14 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender (including any Taxes imposed with respect to such refund) as is determined by the Administrative Agent or such Lender in good faith, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay as soon as reasonably practicable the amount paid over to such Loan Party ( plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This Section 2.14(7) will not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to its Taxes which it deems, in good faith, to be confidential) to the Loan Parties or any other Person.	
 
(8)	Each party’s obligations under this Section 2.14 will survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.	
 
(9)	For purposes of this Section 2.14, the term “applicable law” includes FATCA.	
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs .
 
(1)	Unless otherwise specified, the Borrower will make each payment required to be made by it hereunder (whether of principal, interest, fees or otherwise) prior to 2:00 p.m., New York City time, at the Payment Office, except that (unless the Borrower, the Administrative Agent and the applicable Persons otherwise agree) payments pursuant to Sections 2.12, 2.13, 2.14 and 10.05 will be made directly to the Persons entitled thereto, on the date when due. All payments shall be in immediately available funds, without	
 
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 	condition or deduction for any defense, recoupment, set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. The Administrative Agent will distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof and will make settlements with the Lenders with respect to other payments at the times and in the manner provided in this Agreement. Except as otherwise provided herein, if any payment hereunder is due on a day that is not a Business Day, the date for payment will be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon will be payable for the period of such extension. Any payment required to be made by the Administrative Agent hereunder will be deemed to have been made by the time required if the Administrative Agent, at or before such time, has taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.	
 
(2)	Except as otherwise provided in this Agreement, if (a) at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, interest and fees then due from the Borrower hereunder or (b) at any time an Event of Default shall have occurred and be continuing and the Administrative Agent will receive proceeds of Term Priority Collateral in connection with the exercise of remedies, such funds will be applied in accordance with Section 5.02 of the Collateral Agreement (subject to the application of proceeds provisions contained in the Intercreditor Agreement (as applicable)).	
 
(3)	Except as otherwise provided in this Agreement, if any Lender, by exercising any right of set-off or counterclaim or otherwise, obtains payment in respect of any principal of or interest on any of its Class of Term Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Class of Term Loans than the proportion received by any other Lender in such Class, then the Lender receiving such greater proportion will purchase (for cash at face value) participations in the Term Loans of such Class of other Lenders in such Class to the extent necessary so that the benefit of all such payments will be shared by the Lenders in such Class ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans of such Class; provided that (a) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations will be rescinded and the purchase price restored to the extent of such recovery, without interest, and (b) the provisions of this paragraph (3) will not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans to any assignee or participant. The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.	
 
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(4)	Unless the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.	
 
(5)	If any Lender fails to make any payment required to be made by it pursuant to Section 2.03(1) or 2.15(3), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under Section 2.03(1) or 2.15(3), as applicable, until all such unsatisfied obligations are fully paid.	
SECTION 2.16. Mitigation Obligations; Replacement of Lenders .
 
(1)	If any Lender requests compensation under Section 2.12, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14, then such Lender will use reasonable efforts to designate a different lending office for funding or booking its Term Loans hereunder or assign its rights and obligations hereunder to another of its offices, branches or Affiliates if, in the reasonable judgment of such Lender, such designation or assignment (a) would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.14, as applicable, in the future and (b) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any material respect. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.	
 
(2)	If any Lender requests compensation under Section 2.12 or is a Defaulting Lender, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14, then the Borrower may, at its sole expense, upon notice to such Lender and the Administrative Agent, either (a) prepay such Lender’s outstanding Term Loans hereunder in full on a non- pro rata basis without premium or penalty (including with respect to the processing and recordation fee referred to in Section 10.04(2)(b)(ii)) or (b) require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.04), all its interests, rights and obligations under this Agreement to an assignee that will assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) in the case of clause (b) above, the Borrower has received the prior written consent of the Administrative Agent, which consent will not unreasonably be withheld, if a consent by the Administrative Agent	
 
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 	would be required under Section 10.04 for an assignment of Term Loans to such assignee, (ii) such Lender has received payment of an amount equal to the outstanding principal of its Term Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.12 or payments required to be made pursuant to Section 2.14, such assignment will result in a reduction in such compensation or payments. No action by or consent of the Defaulting Lender will be necessary in connection with such removal or assignment. In connection with any such assignment, the Borrower, the Administrative Agent, the Defaulting Lender and the replacement Lender will otherwise comply with Section 10.04; provided that if such Defaulting Lender does not comply with Section 10.04 within three Business Days after the Administrative Agent’s or the Borrower’s request, compliance with Section 10.04 will not be required to effect such assignment. Nothing in this Section 2.16 will be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender.	
 
(3)	If any Lender (such Lender, a “ Non-Consenting Lender ”) has failed to consent to a proposed amendment, waiver, discharge or termination that, pursuant to the terms of Section 10.08, requires the consent of such Lender and with respect to which the Required Lenders have granted their consent, then the Borrower will have the right (unless such Non-Consenting Lender grants such consent) at its sole expense, to either (a) prepay such Lender’s outstanding Term Loans hereunder in full on a non- pro rata basis without premium or penalty (including with respect to the processing and recordation fee referred to in Section 10.04(2)(b)(ii)) or (b) replace such Non-Consenting Lender by deeming such Non-Consenting Lender to have assigned its Term Loans and its Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent if a consent by the Administrative Agent would be required under Section 10.04 for an assignment of Term Loans to such Assignee; provided that (i) all Obligations of the Borrower owing to such Non-Consenting Lender (including accrued Fees and any amounts due under Section 2.12, 2.13 or 2.14) being removed or replaced will be paid in full to such Non-Consenting Lender concurrently with such removal or assignment and (ii) in the case of clause (b) above, such Non-Consenting Lender will have received payment of an amount equal to the principal amount thereof plus accrued and unpaid interest thereon. No action by or consent of the Non-Consenting Lender will be necessary in connection with such removal or assignment, in the case of clause (b) above, which shall be immediately and automatically effective upon payment of such purchase price. In connection with any such assignment, the Borrower, the Administrative Agent, such Non-Consenting Lender and the replacement Lender will otherwise comply with Section 10.04; provided that if such Non-Consenting Lender does not comply with Section 10.04 within three Business Days after the Administrative Agent’s or the Borrower’s request, compliance with Section 10.04 will not be required to effect such assignment.	
SECTION 2.17. Illegality . If any Lender reasonably determines that any change in law has made it unlawful, or if any Governmental Authority has asserted after the Closing Date that it is unlawful, for any Lender or its applicable lending office to make or maintain any Eurocurrency Loans, then, upon notice thereof by such Lender to the Borrower
 
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through the Administrative Agent, any obligations of such Lender to make or continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency Borrowings will be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower will upon demand from such Lender (with a copy to the Administrative Agent), either convert all Eurocurrency Borrowings of such Lender to ABR Borrowings, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Term Loans. Upon any such prepayment or conversion, the Borrower will also pay accrued interest on the amount so prepaid or converted.
SECTION 2.18. Incremental Facilities .
 
(1)	Notice . At any time and from time to time, on one or more occasions, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent, increase the aggregate principal amount of any outstanding tranche of Term Loans or add one or more additional tranches of term loans under the Loan Documents (the “ Incremental Term Loans; ” each such increase or tranche, an “ Incremental Facility ”).	
 
(2)	Ranking . Incremental Facilities will rank either pari passu or junior in right of payment with the Initial Term Loans and will be either unsecured or secured by Liens that secure the Initial Term Loans on a pari passu or junior basis, in each case as set forth in the applicable Incremental Facility Amendment.	
 
(3)	Size . The aggregate principal amount of Incremental Facilities incurred pursuant to this Section 2.18 together with the aggregate principal amount of Incremental Equivalent Term Debt incurred pursuant to Section 6.01(1) will not exceed, in the aggregate, an amount equal to (a) the Incremental Fixed Amount plus (b) the Incremental Ratio Amount (the sum of the Incremental Fixed Amount and the Incremental Ratio Amount, the “ Incremental Amount ”). Calculation of the Incremental Amount shall be made on a Pro Forma Basis and evidenced by a certificate from a Responsible Officer of the Borrower demonstrating such calculation in reasonable detail. Each Incremental Facility Amendment executed in connection with an Incremental Facility will identify whether all or any portion of such Incremental Facility is being incurred pursuant to the Incremental Fixed Amount, the Incremental Ratio Amount or a combination thereof. If the Borrower incurs Indebtedness under an Incremental Facility (or Incremental Equivalent Term Debt) using the Incremental Fixed Amount on the same date that it incurs any such Indebtedness using the Incremental Ratio Amount, the Incremental Ratio Amount will be calculated without regard to any incurrence of indebtedness under the Incremental Fixed Amount. Unless the Borrower elects otherwise, each incurrence of Incremental Facility (or Incremental Equivalent Term Debt) will be deemed incurred first as Incremental Ratio Amount to the extent permitted, with any balance incurred under the Incremental Fixed Amount. The Borrower may classify, and may later reclassify, indebtedness incurred under an Incremental Facility (or any Incremental Equivalent Term Debt) as incurred as, and in reliance on, the Incremental Fixed Amount, Incremental Ratio Amount, or both, on the date of incurrence and thereafter, to the extent permitted on the date of classification (or the date of any such reclassification). Each Incremental Facility	
 
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 	will be in an integral multiple of $1,000,000 and in an aggregate principal amount that is not less than $10,000,000 (or such lesser minimum amount approved by the Administrative Agent in its reasonable discretion); provided that such amount may be less than such minimum amount or integral multiple amount without the Administrative Agent’s consent if such amount represents all the remaining availability under the Incremental Amount at such time.	
 
(4)	Incremental Lenders . Incremental Term Loans may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide Incremental Term Loans) or any Additional Lender. While existing Lenders may (but are not obligated unless invited and so elect) participate in any syndication of an Incremental Facility and may (but are not obligated unless invited and so elect) become lenders with respect thereto, the existing Lenders will not have any right to participate in any syndication of, and will not have any right of first refusal or other right to provide all or any portion of, any Incremental Facility or Incremental Term Loan except to the extent the Borrower and the arrangers thereof, if any, in their discretion, choose to invite or include any such existing Lender (which may or may not apply to all existing Lenders and may or may not be pro rata among existing Lenders). Final allocations in respect of any Incremental Facilities will be made by the Borrower together with the arrangers thereof, if any, in their discretion, in accordance with this Section 2.18.	
 
(5)	Incremental Facility Amendments; Use of Proceeds . Each Incremental Facility will become effective pursuant to an amendment (which may, at the option of the Administrative Agent and the Borrower, be in the form of an amendment and restatement) (each, an “ Incremental Facility Amendment ”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, the Administrative Agent and, with respect to any amendment (or amendment and restatement) of this Agreement, each Lender or Additional Lender providing such Incremental Facility (the “ Incremental Lenders ”). The Administrative Agent will promptly notify each Lender as to the effectiveness of each Incremental Facility Amendment. Incremental Facility Amendments may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.18 and to make an Incremental Term Loan fungible (including for tax purposes) with other Term Loans (subject to the limitations under paragraphs (7) and (8) of this Section 2.18). Without limiting the foregoing, an Incremental Facility Amendment may, without the consent of any other Lenders, (a) extend or add “call protection” to any existing tranche of Term Loans, including in the form of amendments to Section 2.21, and (b) amend the schedule of amortization payments relating to any existing tranche of Term Loans, including in the form of amendments to Section 2.06 ( provided , that any such amendment shall not decrease any amortization payment to any Lender that would have otherwise been payable to such Lender prior to the effectiveness of the applicable Incremental Facility Amendment), in the case of each clause (a) and (b), so that such Incremental Term Loans and the applicable existing Term Loans form the same Class of Term Loans; provided , that such amendments are not materially adverse to the existing Lenders (as determined in good faith by the Borrower). Each of the parties hereto hereby agrees that, upon the	
 
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 	effectiveness of any Incremental Facility Amendment, this Agreement and the other Loan Documents, as applicable, will be deemed amended (or amended and restated) to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facility and the Incremental Term Loans evidenced thereby. This Section 2.18 shall supersede any provisions in Section 2.15 or 10.08 to the contrary. The Borrower and its Restricted Subsidiaries may use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement.	
 
(6)	Conditions . The availability of Incremental Term Loans will be subject solely to the following conditions, subject, for the avoidance of doubt, to Section 1.09, measured on the date of the initial borrowing under (or, as applicable pursuant to Section 1.09, receipt of commitments with respect to) any such Incremental Facility:	
 
 	(a)	no Event of Default shall have occurred and be continuing on the date such Incremental Term Loans are incurred or would exist immediately after giving effect thereto; provided that the condition set forth in this clause (a) may be waived or not required (other than with respect to any Specified Event of Default) by the Persons providing such Incremental Facilities if the proceeds of the initial Borrowings under such Incremental Facilities will be used to finance, in whole or in part, a Permitted Acquisition or other Investment permitted hereunder;	
 
 	(b)	the representations and warranties in the Loan Documents will be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be accurate in all respects) immediately prior to, and immediately after giving effect to, the incurrence of such Incremental Term Loans; provided that the condition set forth in this clause (b) may be waived or not required (other than with respect to the Specified Representations) if the proceeds of the initial Borrowings under such Incremental Facilities will be used to finance, in whole or in part, a Permitted Acquisition or other Investment permitted hereunder; and	
 
 	(c)	such other conditions (if any) as may be required by the Incremental Lenders providing such Incremental Term Loans, unless such other conditions are waived by such Incremental Lenders;	
 
(7)	Terms . Each Incremental Facility Amendment will set forth the amount and terms of the relevant Incremental Facility. The terms of each Incremental Facility will be as agreed between the Borrower and the Incremental Lenders providing such Incremental Term Loans; provided that:	
 
 	(a)	the final maturity date of such Incremental Term Loans will be no earlier than the Latest Maturity Date of the Initial Term Loans;	
 
 	(b)	the Weighted Average Life to Maturity of such Incremental Term Loans will be no shorter than the longest remaining Weighted Average Life to Maturity of the Initial Term Loans;	
 
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 	(c)	such Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments of the Initial Term Loans (other than any repayment of such Incremental Term Loans at maturity or with the proceeds of Credit Agreement Refinancing Indebtedness);	
 
 	(d)	no Incremental Facility will be secured by any assets or property that does not constitute Collateral;	
 
 	(e)	no Incremental Facility will be guaranteed by any Person other than a Guarantor; and	
 
 	(f)	(i) any Incremental Facility will be on terms and conditions that are, taken as a whole, not materially more favorable to the lenders or holders providing such Indebtedness than, those applicable to the Initial Term Loans, as determined in good faith by a Responsible Officer of the Borrower (except for covenants applicable only to periods after the Latest Maturity Date of the Initial Term Loans at the time of incurrence) and (ii) solely to the extent that any terms and conditions applicable to any Incremental Term Loans are not consistent with those then applicable to the Initial Term Loans, such Incremental Term Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower.	
 
(8)	Pricing . The interest rate, fees and original issue discount for any Incremental Term Loans will be as determined by a Responsible Officer of the Borrower and the Incremental Lenders providing such Incremental Term Loans; provided that in the event that the All-In Yield applicable to any Incremental Term Loans that are secured on a pari passu basis with the Initial Term Loans exceeds the All-In Yield of the Initial Term Loans by more than 50 basis points, then the All-In Yield for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield of such Term Loans is equal to the All-In Yield of such Incremental Term Loans minus 50 basis points; provided , further , that any increase in the All-In Yield of the Term Loans due to an increase in an Adjusted LIBO Rate, LIBO Rate, LIBO Screen Rate or ABR, as applicable, “floor” on any Incremental Term Loan shall be effected solely through an increase in such “floor” (or an implementation thereof, as applicable) applicable to the Initial Term Loans.	
SECTION 2.19. Refinancing Term Loans .
 
(1)	Refinancing Term Loans . At any time after the Closing Date, the Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Term Loans, in the form of Refinancing Term Loans pursuant to a Refinancing Amendment.	
 
(2)	Refinancing Amendments . The effectiveness of any Refinancing Amendment will be subject only to the satisfaction on the date thereof of such of the conditions as may be requested by the providers of the Refinancing Term Loans. The Administrative Agent will promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any	
 
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 	Refinancing Amendment, this Agreement will be deemed amended (or amended and restated, as applicable) to the extent (but only to the extent) necessary to reflect the existence and terms of the Refinancing Term Loans incurred pursuant thereto (including any amendments necessary to treat the Term Loans subject thereto as Refinancing Term Loans).	
 
(3)	Required Consents . Any Refinancing Amendment may, without the consent of any Person other than the Administrative Agent, the Borrower and the Lenders or Additional Lenders providing Refinancing Term Loans, effect such amendments (or amendment and restatements) to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.19. This Section 2.19 supersedes any provisions in Section 2.15 or 10.08 to the contrary. The transactions contemplated by this Section 2.19 will not require the consent of any other Lender or any other Person, and the requirements of any provision of this Agreement (including Sections 2.08 and 2.15) or any other Loan Document that may otherwise prohibit any transaction contemplated by this Section 2.19 will not apply to any of the transactions effected pursuant to this Section 2.19.	
 
(4)	Providers of Refinancing Term Loans . Refinancing Term Loans may be provided by any existing Lender (it being understood that no existing Lender shall have an obligation to make all or any portion of any Refinancing Term Loan) or by any Additional Lender. Any Lender approached to provide all or a portion of Refinancing Term Loans may elect or decline, in its sole discretion, to provide such Refinancing Term Loans (it being understood that there is no obligation to approach any existing Lenders to provide Refinancing Term Loans).	
SECTION 2.20. Extensions of Term Loans .
 
(1)	Extension Offers . Pursuant to one or more offers (each, an “ Extension Offer ”) made from time to time by the Borrower to all Lenders of Term Loans of a particular Class with a like Maturity Date (and with respect to any Extension Offer each Lender may, in its sole discretion, choose whether to accept or reject such Extension Offer), the Borrower may extend such Maturity Date and otherwise modify the terms of such Term Loans pursuant to the terms set forth in an Extension Offer (each, an “ Extension ,” and each group of such Term Loans so extended, as well as any such Term Loans of the same Class not so extended, being a “ tranche ”). Each Extension Offer will specify the minimum amount of Term Loans with respect to which an Extension Offer may be accepted, which will be an integral multiple of $1.0 million and an aggregate principal amount that is not less than $10.0 million (or (a) if less, the aggregate principal amount of such Term Loans outstanding or (b) such lesser minimum amount as is approved by the Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed), and will be made on a pro rata basis to all Lenders of Term Loans of a particular Class with a like Maturity Date. If the aggregate outstanding principal amount of such Term Loans (calculated on the face amount thereof) in respect of which Lenders have accepted an Extension Offer exceeds the maximum aggregate principal amount of Term Loans offered to be extended pursuant to an Extension Offer, then the Term Loans	
 
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 	of such Lenders will be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer. There is no requirement that any Extension Offer or Extension Amendment (defined as follows) be subject to any “most favored nation” pricing provisions. The terms of an Extension Offer will be determined by the Borrower and an Extension Offer may contain one or more conditions to its effectiveness, including that a minimum amount of Term Loans or any or all applicable tranches be tendered.	
 
(2)	Extension Amendments . The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents (which may, at the option of the Administrative Agent and the Borrower, be in the form of an amendment and restatement of this Agreement or such Loan Document, as applicable) (an “ Extension Amendment ”) as may be necessary in order to establish new tranches in respect of Extended Term Loans and such amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches. This Section 2.20 supersedes any provisions of Section 2.15 or 10.08 to the contrary. Except as otherwise set forth in an Extension Offer, there will be no conditions to the effectiveness of an Extension Amendment. Extensions will not constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.	
 
(3)	Terms of Extension Offers and Extension Amendments . The terms of any Extended Term Loans will be set forth in an Extension Offer and as agreed between the Borrower and the Extending Term Lenders accepting such Extension Offer; provided that:	
 
 	(a)	the final maturity date of such Extended Term Loans will be no earlier than the Latest Maturity Date applicable to the Term Loans subject to such Extension Offer;	
 
 	(b)	the Weighted Average Life to Maturity of any such Extended Term Loans will be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans subject to such Extension Offer;	
 
 	(c)	any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in mandatory repayments or prepayments of Term Loans;	
 
 	(d)	such Extended Term Loans are not secured by any assets or property that does not constitute Collateral;	
 
 	(e)	such Extended Term Loans are not guaranteed by any Person other than a Subsidiary Loan Party; and	
 
 	(f)	the other terms and conditions applicable to the Extended Term Loans are (i) substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Extended Term Loans than, those applicable to the Term Loans subject to such Extension Offer (except for covenants applicable only to	
 
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 	periods after the Latest Maturity Date of the Initial Term Loans at the time of incurrence) ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Extended Term Loans together with a reasonably detailed description of the material covenants and event of default of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (f) shall be conclusive evidence that such Indebtedness satisfies this clause (f) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided that this clause (f) will not apply to (v) terms addressed in the preceding clauses (a) through (e), (x) interest rate, rate floors, fees, funding discounts and other pricing terms, (y) redemption, prepayment or other premiums, or (z) optional prepayment or redemption terms.	
Any Extended Term Loans will constitute a separate tranche of Term Loans from the Term Loans held by Lenders that did not accept the applicable Extension Offer.
 
(4)	Required Consents . No consent of any Lender or any other Person will be required to effectuate any Extension, other than the consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), the Borrower and the applicable Extending Term Lender(s). The transactions contemplated by this Section 2.20 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans on such terms as may be set forth in the relevant Extension Offer) will not require the consent of any other Lender or any other Person, and the requirements of any provision of this Agreement (including Sections 2.08 and 2.15) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.20 will not apply to any of the transactions effected pursuant to this Section 2.20.	
SECTION 2.21. Repricing Transaction . In the event that a Repricing Transaction is consummated during the period commencing on the Closing Date and ending prior to the date that is one year after the Closing Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with Initial Term Loans that are either repaid, converted or subjected to a pricing reduction in connection with such Repricing Transaction a fee in an amount equal to 1.00% of (a) in the case of a Repricing Transaction described in clause (1) of the definition thereof, the aggregate principal amount of all Initial Term Loans prepaid (or converted) in connection with such Repricing Transaction and (b) in the case of a Repricing Transaction described in clause (2) of the definition thereof, the aggregate principal amount of all Initial Term Loans outstanding on such date that are subject to an effective pricing reduction or a mandatory assignment pursuant to such Repricing Transaction. Such fees shall be earned, due and payable upon the date of the consummation of such Repricing Transaction.
 
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ARTICLE III
Representations and Warranties
To induce the Lenders to make any extension of credit hereunder on or after the Closing Date, the Borrower, with respect to itself and each of the Restricted Subsidiaries, represents and warrants (i) on the Closing Date solely to the extent set forth in Section 4.01(12) and (ii) on each date and to the extent otherwise required hereunder (and subject, for the avoidance of doubt, to Section 1.09), each of the following to each Agent and to each of the Lenders.
SECTION 3.01. Organization; Powers . The Borrower and each Loan Party:
 
(1)	is a Person duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (to the extent such status or an analogous concept applies to such an organization or in such jurisdiction);	
 
(2)	has all requisite corporate or other organizational power and authority to own its property and assets and to carry on its business as now conducted;	
 
(3)	is qualified to do business in each jurisdiction where such qualification is required, except where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect; and	
 
(4)	has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents to which it is a party and each other agreement or instrument contemplated thereby to which it is a party.	
SECTION 3.02. Authorization; No Contravention .
 
(1)	The execution, delivery and performance by the Loan Parties of each of the Loan Documents to which it is a party have been duly authorized by all necessary corporate or other organizational action.	
 
(2)	The execution, delivery and performance by each Loan Party of each Loan Document to which such Loan Party is a party and the consummation of the Transactions will not:	
 
 	(a)	result in a breach or contravention of, or the creation of any Lien (other than any Liens created by the Loan Documents and Permitted Lien) upon the property or assets of such Loan Party or any of the Restricted Subsidiaries under (i) any Contractual Obligation to which such Loan Party is a party or affecting such Loan Party or the properties or assets of such Loan Party or any of its Restricted Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property or assets is subject;	
 
 	(b)	violate applicable Law; or	
 
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 	(c)	contravene the terms of its Organizational Documents;	
except with respect to clauses (a) and (b) of this Section 3.02(2) as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 3.03. Enforceability . This Agreement has been duly executed and delivered by the Borrower and constitutes, and each other Loan Document when executed and delivered by each Loan Party that is party thereto will constitute, a legal, valid and binding obligation of such Loan Party enforceable against each such Loan Party in accordance with its terms, subject to:
 
(1)	the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws (including Debtor Relief Laws) affecting creditors’ rights generally;	
 
(2)	general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);	
 
(3)	implied covenants of good faith and fair dealing; and	
 
(4)	any foreign laws, rules and regulations as they relate to pledges of Equity Interests in Non-U.S. Subsidiaries.	
SECTION 3.04. Governmental Approvals . No material action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, except for:
 
(1)	filings necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties;	
 
(2)	filings which may be required under Environmental Laws;	
 
(3)	filings as may be required under the Exchange Act and applicable stock exchange rules in connection therewith;	
 
(4)	such as have been made or obtained and are in full force and effect (except to the extent not required to be obtained, taken, given or made or in full force and effect pursuant to the Security Documents);	
 
(5)	such actions, consents, approvals, registrations or filings the failure of which to be obtained or made would not reasonably be expected to have a Material Adverse Effect.	
SECTION 3.05. Title to Properties; Liens . Each of the Borrower and the Subsidiary Loan Parties has valid fee simple title to, or valid leasehold interests in, or easements or other limited property interests in, all of its Real Properties and valid title to its personal property and assets, in each case, except for Permitted Liens or defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes, in each case, except where the failure to have such title, interest or easement would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All such properties and assets are free and clear of Liens, other than Permitted Liens.
 
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SECTION 3.06. Subsidiaries . Schedule 3.06 sets forth as of the Closing Date and after giving effect to the Transactions, the name and jurisdiction of incorporation, formation or organization of the Borrower and each Restricted Subsidiary and, as to each Restricted Subsidiary, the percentage of each class of Equity Interests owned by the Borrower or by any other Subsidiary of the Borrower.
SECTION 3.07. Litigation; Compliance with Laws .
 
(1)	There are no actions, suits or proceedings, or, to the knowledge of the Borrower, investigations at law or in equity or by or on behalf of any Governmental Authority or in arbitration now pending, or, to the knowledge of the Borrower, threatened in writing against or affecting the Borrower or any Restricted Subsidiary or any business, property or rights (including any studies, tests or preclinical or clinical trials) of any such Person (excluding any actions, suits or proceedings arising under or relating to any Environmental Laws, which are subject to Section 3.13, but including in respect of any Health Care Law), in each case, which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.	
 
(2)	To the knowledge of the Borrower, none of the Borrower, any Restricted Subsidiary or their respective properties or assets is in violation of (nor will the continued operation of their material properties and assets as currently conducted violate) any law, rule or regulation (including any zoning, building, ordinance, code or approval, or any building permit, but excluding any Environmental Laws, which are subject to Section 3.13) or any restriction of record or agreement affecting any property, or is in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.	
SECTION 3.08. Federal Reserve Regulations .
 
(1)	None of the Borrower or any Restricted Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.	
 
(2)	No part of the proceeds of any Term Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund Indebtedness originally incurred for such purpose or (ii) for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.	
SECTION 3.09. Investment Company Act . None of the Borrower or any Subsidiary Loan Party is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
 
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SECTION 3.10. Use of Proceeds . The Borrower shall use the proceeds of the Term Loans made on the Closing Date to finance a portion of the Transactions (including the Specified Tender Offer, which shall be financed with the Escrowed Funds) and the Transaction Costs and, if applicable, make a prepayment in accordance with Section 2.08(3).
SECTION 3.11. Tax Returns . Except as set forth on Schedule 3.11:
 
(1)	Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each of the Borrower and the Restricted Subsidiaries has filed or caused to be filed all federal, state, local and non-U.S. Tax returns required to have been filed by it; and	
 
(2)	Each of the Borrower and the Restricted Subsidiaries has timely paid or caused to be timely paid (a) all Taxes shown to be due and payable by it on the returns referred to in clause (1) of this Section 3.11 and (b) all other Taxes or assessments (or made adequate provision (in accordance with GAAP) for the payment of all Taxes due) with respect to all periods or portions thereof ending on or before the Closing Date, which Taxes, if not paid or adequately provided for, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, in each case except Taxes or assessments that are being contested in good faith by appropriate proceedings and for which, if applicable, the Borrower or any Restricted Subsidiary (as the case may be) has set aside on its books adequate reserves in accordance with GAAP.	
SECTION 3.12. No Material Misstatements .
 
(1)	All written factual information and written factual data (other than the Projections, estimates and information of a general economic or industry specific nature) concerning the Borrower or any Restricted Subsidiary that has been made available to the Administrative Agent or the Lenders, directly or indirectly, by or on behalf of the Borrower or any Restricted Subsidiary in connection with the Transactions, when taken as a whole and after giving effect to all supplements and updates provided thereto, is correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made.	
 
(2)	The Projections that have been made available to the Administrative Agent or the Lenders by or on behalf of the Borrower in connection with the Transactions, when taken as a whole, have been prepared in good faith based upon assumptions that are believed by the Borrower to be reasonable at the time made and at the time delivered to the Administrative Agent or the Lenders, it being understood by the Administrative Agent and the Lenders that:	
 
 	(a)	the Projections are merely a prediction as to future events and are not to be viewed as facts;	
 
 	(b)	the Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower or Impax;	
 
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 	(c)	no assurance can be given that any particular Projections will be realized; and	
 
 	(d)	actual results may differ and such differences may be material.	
SECTION 3.13. Environmental Matters . Except as set forth on Schedule 3.13 or as to matters that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
 
(1)	the Borrower and each of the Restricted Subsidiaries are in compliance with all Environmental Laws (including having obtained and complied with all permits, licenses and other approvals required under any Environmental Law for the operation of its business);	
 
(2)	neither the Borrower nor any Restricted Subsidiary has received notice of or is subject to any pending, or to the Borrower’s knowledge, threatened action, suit or proceeding alleging a violation of, or liability under, any Environmental Law that remains outstanding or unresolved;	
 
(3)	to the Borrower’s knowledge, no Hazardous Material is located at, on or under any property currently or formerly owned, operated or leased by the Borrower or any Restricted Subsidiary and no Hazardous Material has been generated, owned, treated, stored, handled or controlled by the Borrower or any Restricted Subsidiary and transported to or Released at any location which, in each case, described in this clause (3), would reasonably be expected to result in liability to the Borrower or any Restricted Subsidiaries; and	
 
(4)	there are no agreements in which the Borrower or any Restricted Subsidiary has expressly assumed or undertaken responsibility for any known or reasonably anticipated liability or obligation of any other Person arising under or relating to Environmental Laws or Hazardous Materials.	
SECTION 3.14. Security Documents .
 
(1)	Except as otherwise contemplated hereunder or under any other Loan Documents, the Collateral Agreement is effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties) legal and valid Liens on the Collateral described therein; and when financing statements in appropriate form are filed in the offices specified on Schedule III to the Collateral Agreement, a short form grant of security interest in Intellectual Property Rights (in substantially the form of Exhibit II to the Collateral Agreement (for trademarks), Exhibit III to the Collateral Agreement (for patents) or Exhibit IV to the Collateral Agreement (for copyrights)) is properly filed in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the Pledged Collateral described in the Collateral Agreement is delivered to the Collateral Agent, the Liens on the Collateral granted pursuant to the Collateral Agreement will constitute fully perfected Liens on all right, title and interest of the grantors in such Collateral in which (and to the extent) a security interest can be perfected under Article 9 of the Uniform Commercial Code, in each case prior to and superior in right of the Lien of any other Person (subject to Permitted Liens).	
 
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(2)	Notwithstanding anything herein (including this Section 3.14) or in any other Loan Document to the contrary, neither the Borrower nor any other Loan Party makes any representation or warranty (a) as to the effects of perfection or non-perfection, the priority or enforceability of any pledge of or security interest in any Excluded Assets or (b) as to the effects of perfection or non-perfection, the priority or enforceability of any pledge of or security interest in any Equity Interests of any Non-U.S. Subsidiary, or as to the rights and remedies of the Agents or any Lender with respect thereto, under foreign law.	
SECTION 3.15. Location of Real Property and Leased Premises .
 
(1)	Schedule 3.15(1) correctly identifies, in all material respects, as of the Closing Date, all material Real Property owned in fee by the Loan Parties. As of the Closing Date, the Loan Parties own in fee all the Real Property set forth as being owned by them on Schedule 3.15(1).	
 
(2)	Schedule 3.15(2) lists correctly in all material respects, as of the Closing Date, all material Real Property leased by any Loan Party and the addresses thereof. As of the Closing Date, the Loan Parties have in all material respects valid leases in all material Real Property set forth as being leased by them on Schedule 3.15(2).	
SECTION 3.16. Solvency . On the Closing Date, after giving effect to the consummation of the Transactions, including the making of the Term Loans hereunder, and after giving effect to the application of the proceeds of the Term Loans:
 
(1)	the fair value of the assets of the Borrower and its Restricted Subsidiaries, on a consolidated basis, exceeds their debts and liabilities (subordinated, contingent or otherwise), on a consolidated basis;	
 
(2)	the present fair saleable value of the property of the Borrower and its Restricted Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities (subordinated, contingent or otherwise), on a consolidated basis, as such debts and other liabilities become absolute and matured;	
 
(3)	the Borrower and its Restricted Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities (subordinated, contingent or otherwise), on a consolidated basis, as such liabilities become absolute and matured; and	
 
(4)	the Borrower and its Restricted Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital.	
For purposes of this Section 3.16, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.
 
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SECTION 3.17. Financial Statements; No Material Adverse Effect .
 
(1)	The consolidated balance sheets of the Borrower and its consolidated subsidiaries and of Impax and its consolidated subsidiaries as at December 31, 2017, and related statements of operations and cash flows of the Borrower and its consolidated subsidiaries and Impax and its consolidated set forth in the PIPE Registration Statement fairly present in all material respects the financial condition of each of the Borrower and Impax, as applicable, and their respective Subsidiaries as of the dates thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein.	
 
(2)	The unaudited pro forma condensed combined financial information and explanatory notes of Amneal Inc. set forth in the PIPE Registration Statement, prepared after giving effect to the Transactions as if the Transactions had occurred on December 31, 2017 (in the case of such balance sheet) or at the beginning of such period (in the case of the statement of operations), copies of which have heretofore been furnished to the Administrative Agent, have been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated financial position of Amneal Inc. and its Subsidiaries as of December 31, 2017 and their estimated results of operations for the period covered thereby.	
 
(3)	Since December 31, 2017, there has been no event that has had, or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.	
 
(4)	The forecasts of consolidated balance sheets and income statements of the Borrower and its Subsidiaries which have been furnished to the Administrative Agent prior to the Closing Date, when taken as a whole, have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable at the time furnished, it being understood that (i) no forecasts are to be viewed as facts, (ii) any forecasts are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower, Impax and their respective Subsidiaries and Affiliates, (iii) no assurance can be given that any particular forecasts will be realized and (iv) actual results may differ and such differences may be material.	
SECTION 3.18. Insurance . Schedule 3.18 sets forth a true, complete and correct description of all material insurance maintained by or on behalf of the Borrower or any Restricted Subsidiary as of the Closing Date. As of such date, such insurance is in full force and effect.
SECTION 3.19. USA PATRIOT Act; Anti-Corruption; Sanctions .
 
(1)	To the extent applicable, each of the Borrower and the Restricted Subsidiaries is in compliance, in all material respects, with the USA PATRIOT Act.	
 
(2)	No part of the proceeds of the Term Loans will be used by the Borrower or any of the Restricted Subsidiaries, directly or indirectly, (i) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of Anti-Corruption Laws, or (ii) in any manner that would result in the violation of any applicable Sanctions.	
 
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(3)	None of the Borrower or any Restricted Subsidiary, nor any of their respective directors or officers, nor, to the knowledge of the Borrower or any Restricted Subsidiary, any of their respective agents and employees, is any of the following:	
 
 	(a)	a Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing effective September 24, 2001 (the “ Executive Order ”);	
 
 	(b)	a Person owned or Controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;	
 
 	(c)	a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any laws with respect to terrorism or money laundering;	
 
 	(d)	a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or	
 
 	(e)	a Sanctioned Person.	
 
(4)	The Borrower and the Restricted Subsidiaries, and their respective officers and directors, and, to the knowledge of the Borrower or any Restricted Subsidiary, their respective employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that could reasonably be expected to result in the Borrower or any Restricted Subsidiary being designated as a Sanctioned Person.	
 
(5)	The Borrower has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance in all material respects by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.	
SECTION 3.20. Intellectual Property Rights; Licenses, Etc . Except as would not reasonably be expected to have a Material Adverse Effect:
 
(1)	the Borrower and each Restricted Subsidiary owns, or possesses the right to use, all of the patents, patent rights, inventions, know-how, trademarks, service marks, trade names, copyrights or mask works, domain names, trade secrets and other intellectual property rights (collectively, “ Intellectual Property Rights ”) that are reasonably necessary for the operation of their respective businesses (provided the foregoing shall not be construed as a warranty with respect to non-infringement of third party intellectual property rights);	
 
(2)	to the knowledge of the Borrower or any Restricted Subsidiary, neither the Borrower nor any of the Restricted Subsidiaries nor any Intellectual Property Rights, product, process, method, substance, part or other material now made, used, employed, sold or offered for	
 
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 	sale by the Borrower or the Restricted Subsidiaries, nor the business of the Borrower or any of the Restricted Subsidiaries is infringing upon, misappropriating or otherwise violating Intellectual Property Rights of any Person, but excluding any (i) infringement of any Intellectual Property Rights caused by the filing of any abbreviated new drug application for a product filed with the FDA pursuant to §505(j) of the United States Federal Food, Drug, and Cosmetic Act, as amended from time to time (the “FFDCA”) or by the filing of any new drug application for a product filed with the FDA pursuant to §505(b)(2) of the FFDCA and (ii) infringement of any Intellectual Property Rights alleged pursuant to a Paragraph IV Proceeding for which a Paragraph IV Certification Notice has been made; and	
 
(3)	no claim or litigation (including any cease and desist letters) regarding any of the foregoing in (1) or (2) is pending or, to the knowledge of the Borrower, threatened. The representations set forth in Section 3.20(2) and this Section 3.20(3) are the only representations given by the Borrower (including on behalf of its Restricted Subsidiaries) with respect to non-infringement of Intellectual Property Rights.	
SECTION 3.21. Employee Benefit Plans . Except as would not reasonably be expected to have a Material Adverse Effect, the Borrower and each of its ERISA Affiliates are in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, would reasonably be expected to have a Material Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, the present value of all accumulated benefit obligations under all Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plans, in the aggregate.
SECTION 3.22. Labor Matters . Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (1) there are no strikes or other labor disputes against any of the Borrower or its Restricted Subsidiaries pending or, to the knowledge of the Borrower, threatened and (2) hours worked by and payment made based on hours worked to employees of each of the Borrower or its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Laws dealing with wage and hour matters.
ARTICLE IV
Conditions of Lending
SECTION 4.01. Conditions Precedent . The agreement of each Lender to make Initial Term Loans on the Closing Date is subject solely to the satisfaction or waiver by the Administrative Agent, prior to or concurrently with the making of the Initial Term Loans on the Closing Date, of the following conditions precedent:
 
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(1)	Loan Documents . The Administrative Agent shall have received (a) this Agreement duly executed and delivered by a Responsible Officer of the Borrower, (b) the Collateral Agreement duly executed and delivered by a Responsible Officer of the Borrower and its Restricted Subsidiaries that are Subsidiary Loan Parties (including the related short form grants of security interest in Intellectual Property Rights duly executed and delivered by a Responsible Officer of each applicable Loan Party), (c) the Escrow Agreement, duly executed and delivered by the Borrower and the Escrow Agent and (d) an acknowledgment to the Closing Date Intercreditor Agreement duly executed and delivered by a Responsible Officer of the Borrower and its Restricted Subsidiaries that are Subsidiary Loan Parties.	
 
(2)	Borrowing Request . On or prior to the Closing Date, the Administrative Agent shall have received a Borrowing Request.	
 
(3)	Acquisition Transactions . Prior to or substantially concurrently with the making of the Initial Term Loans on the Closing Date:	
 
 	(a)	the Acquisition will be consummated pursuant to the Acquisition Agreement, and no provision thereof shall have been amended, modified or waived, and no consent shall have been given thereunder, in each case in any manner materially adverse to the interests of the Lenders without the prior written consent of the Arrangers (it being understood and agreed that any modification, amendment, consent or waiver of the definition of “Impax Material Adverse Effect” contained in the Acquisition Agreement as in effect on October 17, 2017 shall be deemed to be materially adverse to the interests of the Lenders); and	
 
 	(b)	the Closing Date Refinancing will be consummated.	
 
(4)	Fees . Payment of all (a) Fees required to be paid on the Closing Date pursuant to the Fee Letters and (b) reasonable (and reasonably documented) out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, in each case to the extent invoiced in reasonable detail at least three (3) Business Days prior to the Closing Date (except as otherwise reasonably agreed by the Borrower).	
 
(5)	Solvency Certificate . The Administrative Agent shall have received a solvency certificate substantially in the form attached hereto as Exhibit B.	
 
(6)	Closing Date Certificates . The Administrative Agent shall have received such certificates of good standing from the applicable secretary of state (or other similar Governmental Authority) of the jurisdiction of organization of the Borrower and its Restricted Subsidiaries that are Subsidiary Loan Parties as of the Closing Date, customary resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and its Restricted Subsidiaries that are Subsidiary Loan Parties as of the Closing Date evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which it is a party or is to be a party on the Closing Date, the Organizational Documents of each such Loan Party and, in	
 
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 	the case of the Borrower including certification by a Responsible Officer of the Borrower that the conditions specified in clauses (3), (9) and (12) of this Section 4.01 have been or substantially concurrent with the borrowing of the Initial Term Loans on the Closing Date will be satisfied;	
 
(7)	Legal Opinions . The Administrative Agent shall have received a customary legal opinion of Latham & Watkins LLP, special counsel to the Loan Parties.	
 
(8)	Pledged Equity Interests . Except as otherwise agreed by the Administrative Agent, the Administrative Agent shall have received (a) to the extent delivered to the Borrower pursuant to the terms of the Closing Date Refinancing and constituting Collateral, the certificates representing the Equity Interests (if such Equity Interests are certificated) of the Borrower and its Wholly Owned U.S. Subsidiaries that are Material Subsidiaries and (b) to the extent delivered to the Borrower pursuant to the terms of the Acquisition Agreement and constituting Collateral, the certificates representing the Equity Interests (if such Equity Interests are certificated) of Impax and its Wholly Owned U.S. Subsidiaries that are Material Subsidiaries, in each case to the extent such Equity Interests are required to be pledged pursuant to the Collateral Agreement, together with a customary stock power for each such certificate executed in blank.	
 
(9)	No Material Adverse Effect . Since the date of the Acquisition Agreement, there shall not have been any change, effect, event, circumstance, occurrence or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect (as defined in the Acquisition Agreement as in effect on October 17, 2017).	
 
(10)	Registration Statement . The Registration Statement (as defined in the Acquisition Agreement as of October 17, 2017) shall have been declared effective under the Securities Act (as defined in the Acquisition Agreement as of October 17, 2017).	
 
(11)	Know Your Customer and Other Required Information . All outstanding documentation and other information about the Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, as has been reasonably requested in writing by the Administrative Agent at least ten (10) Business Days prior to the Closing Date, will be provided not later than the date that is two (2) Business Days prior to the Closing Date.	
 
(12)	Representations and Warranties . Subject to the Certain Funds Provisions, the Specified Acquisition Agreement Representations and Specified Representations will be true and correct in all material respects; provided that the failure of a Specified Acquisition Agreement Representation to be true and correct will not result in a failure of a condition precedent under this Article IV unless such failure results in a failure of a condition precedent to the Borrower’s (or its Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement or such failure gives the Borrower the right (taking into account any applicable cure provisions) to terminate its obligations under the Acquisition Agreement.	
 
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There are no conditions, implied or otherwise, to the making of Term Loans on the Closing Date other than as set forth in the preceding clauses (1) through (12) and upon satisfaction or waiver by the Administrative Agent of such conditions the Term Loans will be made by the Lenders. For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this Agreement is in effect and until the Commitments have been terminated and the Obligations have been Paid in Full, unless the Required Lenders otherwise consent in writing, the Borrower will, and will cause its Restricted Subsidiaries, to:
SECTION 5.01. Existence; Businesses and Properties .
 
(1)	Preserve, renew and keep in full force and effect its legal existence under the Laws of the jurisdiction of its incorporation or organization, except:	
 
 	(a)	in the case of a Restricted Subsidiary, where the failure to do so would not reasonably be expected to have a Material Adverse Effect; or	
 
 	(b)	in connection with a transaction permitted under Section 6.05.	
 
(2)	(a) Do or cause to be done all things reasonably necessary to lawfully obtain, preserve, renew, extend and keep in full force and effect the permits, franchises, authorizations, Intellectual Property Rights, licenses and rights with respect thereto material to the normal conduct of its business (including the Permits) and (b) maintain and preserve all property necessary to the normal conduct of its business and keep such property in good repair, working order and condition (ordinary wear and tear and casualty or condemnation excepted), in each case, except:	
 
 	(i)	as expressly permitted by this Agreement;	
 
 	(ii)	such as may expire, be abandoned or lapse in the ordinary course of business; or	
 
 	(iii)	where the failure to do so would not reasonably be expected to have a Material Adverse Effect.	
SECTION 5.02. Insurance . Maintain, with insurance companies that the Borrower reasonably believes in good faith to be financially sound and reputable at the time the relevant coverage is placed or renewed, or with a Captive Insurance Subsidiary, insurance
 
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(including property, casualty and general liability) in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Borrower and the Restricted Subsidiaries) and against such risks as are customarily maintained by similarly situated Persons engaged in the same or similar businesses operating in the same or similar locations, and cause, as is appropriate and customary and, with respect to jurisdictions outside of the United States, to the extent available and customary in such jurisdictions, the Collateral Agent (a) to be listed as an additional insured on liability policies or (b) in the case of property and casualty policies, contain a loss payable clause or endorsement listing the Collateral Agent as a co-loss payee thereon. The Borrower will furnish to the Administrative Agent or Collateral Agent, upon reasonable written request, information in reasonable detail as to the insurance so maintained. Notwithstanding the foregoing, it is understood and agreed that no Loan Party will be required to maintain flood insurance unless any material Real Property owned by it is required to be so insured pursuant to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of 1968, and the regulations promulgated thereunder, because such material Real Property is located in an area which has been identified by the Secretary of Housing and Urban Development as a “special flood hazard area.”
SECTION 5.03. Taxes . Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, pay and discharge promptly when due and payable all Taxes imposed upon it or its income or profits or in respect of its property, before the same becomes delinquent or in default; provided that such payment and discharge will not be required with respect to any Tax if (1) the validity or amount thereof is being contested in good faith by appropriate proceedings and (2) the Borrower or any affected Restricted Subsidiary, as applicable, has set aside on its books reserves in accordance with GAAP with respect thereto.
SECTION 5.04. Financial Statements, Reports, etc . Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
 
(1)	within 90 days following the end of each fiscal year, commencing with the fiscal year ended December 31, 2018, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of its operations during such fiscal year and, in each case, commencing with the fiscal year ending December 31, 2019, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity will be prepared in accordance with GAAP, audited by any independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity date) (the applicable financial statements delivered pursuant to this clause (1) being the “ Annual Financial Statements ”);	
 
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(2)	for the first three fiscal quarters of each fiscal year, commencing with the fiscal quarter ended March 31, 2018,	
 
 	(a)	within 71 days following the Closing Date, for the fiscal quarter ending March 31, 2018, (i) (A) a consolidated balance sheet for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) as of the close of such fiscal quarter and (B) the consolidated results of its operations and cash flows for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year and (ii) (A) a consolidated balance sheet for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries), as of the close of such fiscal quarter and (B) the consolidated results of operations and cash flows for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year;	
 
 	(b)	for the fiscal quarter ending June 30, 2018, within 45 days of such fiscal quarter end,	
 
 	(i)	(A) a consolidated balance sheet for the Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated statement of operations and cash flows for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries for the period from the Closing Date to such fiscal quarter end) during such fiscal quarter and the then-elapsed portion of the fiscal year; and	
 
 	(ii)	an unaudited pro forma condensed combined statement of operations for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries) during such fiscal quarter (which pro forma financial statements will be certified by a Responsible Officer of the Borrower on behalf of the Borrower as having been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated results of operations of the Borrower and its Restricted Subsidiaries during such fiscal quarter end); and	
 
 	(c)	for each such fiscal quarter thereafter, within 45 days of such fiscal quarter end, (A) a consolidated balance sheet for the Borrower and the Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated results of operations and cash flows for the Borrower and the Restricted Subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year and, commencing with the fiscal quarter ending September 30, 2019, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year,	
 
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in each case (other than the preceding clause (ii)), certified by a Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and the Restricted Subsidiaries (or Impax and its Restricted Subsidiaries, as applicable) on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “ Quarterly Financial Statements ” and, together with the Annual Financial Statements, the “ Required Financial Statements ”).
 
(3)	no later than five (5) days after the delivery of any Required Financial Statements, a certificate of a Financial Officer of the Borrower:	
 
 	(a)	certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;	
 
 	(b)	setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period;	
 
 	(c)	certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;”	
 
 	(d)	setting forth, in reasonable detail, the calculation of the First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable;	
 
 	(e)	certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; and	
 
 	(f)	with respect to the Financial Officer certificate delivered with regard to Annual Financial Statements only, setting forth the calculation of Excess Cash Flow for such Excess Cash Flow Period.	
 
(4)	promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable, and in any case not otherwise required to be delivered to the Administrative Agent pursuant to any Loan Document;	
 
(5)	within 60 days following the end of each fiscal year, commencing with the fiscal year ending December 31, 2018, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “ Budget ”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; provided that no Budget will be required to be delivered with respect to the fiscal year ending December 31, 2018;	
 
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(6)	upon the reasonable written request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10, as applicable;	
 
(7)	promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender) in writing; and	
 
(8)	promptly upon reasonable written request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof.	
Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of any Parent Entity or (2) the Borrower’s (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to a Parent Entity, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are prepared in accordance with GAAP and accompanied by a report and opinion of any independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity date). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its Subsidiaries so long as such financial statements include a reasonably detailed presentation (which need not be audited), either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower.
 
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Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically in accordance with Section 10.01(5).
SECTION 5.05. Litigation and Other Notices . Furnish to the Administrative Agent (which will promptly thereafter furnish to the Lenders) written notice of the following promptly after any Responsible Officer of the Borrower obtains actual knowledge thereof:
 
(1)	any Default or Event of Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto;	
 
(2)	the filing or commencement of, or any written threat or notice of intention of any Person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against the Borrower or any of the Restricted Subsidiaries as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect; and	
 
(3)	the occurrence of any ERISA Event that, together with all other ERISA Events that have occurred, would reasonably be expected to have a Material Adverse Effect.	
SECTION 5.06. Compliance with Laws . Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property and assets (including ERISA and Health Care Laws), except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; provided that this Section 5.06 will not apply to Environmental Laws, which are the subject of Section 5.09, or laws related to Taxes, which are the subject of Section 5.03. The Borrower will, and will cause each of its Subsidiaries to, maintain in effect and enforce policies and procedures reasonably designed to ensure compliance by the Borrower, its Subsidiaries and the respective directors, officers, employees and agents of the foregoing with Anti-Corruption Laws and applicable Sanctions.
SECTION 5.07. Maintaining Records; Access to Properties and Inspections . Permit any Persons designated by the Administrative Agent to visit and inspect the financial records and the properties of the Borrower or any Restricted Subsidiary at reasonable times, upon reasonable prior written notice from the Administrative Agent to the Borrower, and as often as reasonably requested, to make extracts from and copies of such financial records, and permit any Persons designated by the Administrative Agent, upon reasonable prior written notice from the Administrative Agent to the Borrower, to discuss the affairs, finances and condition of the Borrower or any Restricted Subsidiary with the officers thereof and independent accountants therefor (subject to such accountant’s policies and procedures); provided that the Administrative Agent may not exercise such rights more often than two times during any calendar year unless an Event of Default is continuing and only one such time will be at the Borrower’s expense; and provided , further , that when an Event of Default is continuing, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Borrower
 
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the opportunity to participate in any discussions with the Borrower’s independent accountants. Notwithstanding anything to the contrary in this Agreement (including Sections 5.04(7), 5.05 and 5.07) or any other Loan Document, none of the Loan Parties or any of the Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter with any Disqualified Institution or other competitor to the Borrower or any of its Subsidiaries or that (1) constitutes non-financial trade secrets or non-financial proprietary information, (2) in respect of which disclosure is prohibited by law or any binding agreement, (3) is subject to attorney-client or similar privilege or constitutes attorney work product or (4) creates an unreasonably excessive expense or burden on the Borrower or any of its Subsidiaries.
SECTION 5.08. Use of Proceeds . Use the proceeds of the Term Loans made on the Closing Date to finance, in part, the Transactions and the Transaction Costs and, if applicable, make a prepayment in accordance with Section 2.08(3).
SECTION 5.09. Compliance with Environmental Laws . Comply, and make reasonable efforts to cause all lessees and other Persons occupying its fee-owned Real Properties to comply, with all Environmental Laws applicable to its operations and properties, and obtain and renew all material authorizations and permits required pursuant to Environmental Law for its operations and properties, in each case in accordance with Environmental Laws, except, in each case, to the extent the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.10. Further Assurances; Additional Security .
 
(1)	If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:	
 
 	(i)	deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;	
 
 	(ii)	to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);	
 
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 	(iii)	to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and	
 
 	(iv)	except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral Agent, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.	
 
(2)	Furnish to the Collateral Agent within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) written notice of any change in any Loan Party’s:	
 
 	(a)	legal name;	
 
 	(b)	type of organization;	
 
 	(c)	location (determined as provided in UCC Section 9-307); or	
 
 	(d)	jurisdiction of organization;	
except, in the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion.
The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
 
(3)	Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrower, and provide to the Collateral Agent, from time to time upon Collateral Agent’s reasonable written request, evidence as to the perfection and priority of the Liens created by the Security Documents (subject to Permitted Liens).	
 
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(4)	Notwithstanding anything to the contrary,	
 
 	(a)	the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;	
 
 	(b)	neither the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the ABL Priority Collateral, the Borrower and the ABL Agent); and	
 
 	(c)	(i) no actions will be required (A) outside of the United States in order to create or perfect any security interest in any assets located outside of the United States, (B) in any non-United States jurisdiction or (C) under the laws of any non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States law security or pledge agreements, non-United States law mortgages or deeds or non-United States intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.	
SECTION 5.11. Credit Ratings . Use commercially reasonable efforts to maintain (1) a public credit rating by each of S&P and Moody’s in respect of the Term Loans and (2) a public corporate rating by S&P and a public corporate family rating by Moody’s for the Borrower, in each case with no requirement to maintain any specific rating.
SECTION 5.12. Post-Closing Matters . Deliver to Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, the items described on Schedule 5.12 hereof on or before the dates specified with respect to such items on Schedule 5.12 (or, in each case, such later date as may be agreed to by Administrative Agent in its sole discretion or, with respect to matters relating primarily to the ABL Priority Collateral, in the sole discretion of the administrative agent under the ABL Credit Agreement). All representations and warranties contained in this Agreement and the other Loan Documents will be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described on Schedule 5.12 within the time periods specified thereon, rather than as elsewhere provided in any of the Loan Documents).
 
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ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as this Agreement is in effect and until the Commitments have been terminated and the Obligations have been Paid in Full, unless the Required Lenders otherwise consent in writing, it will not and will not permit any of its Restricted Subsidiaries to:
SECTION 6.01. Indebtedness . Issue, incur or assume any Indebtedness; provided that the Borrower and the Restricted Subsidiaries may issue, incur or assume Permitted Additional Indebtedness so long as immediately after giving effect to the issuance, incurrence or assumption of such Permitted Additional Indebtedness, the aggregate outstanding principal amount of such Permitted Additional Indebtedness does not exceed the Ratio Debt Cap (“ Ratio Debt ”).
The foregoing limitation will not apply to (collectively, “ Permitted Debt ”):
 
(1)	(a) Indebtedness created under the Loan Documents (including Incremental Term Loans, Refinancing Term Loans and Extended Term Loans); (b) Incremental Equivalent Term Debt, (c) Specified Hedge Obligations and (d) Credit Agreement Refinancing Indebtedness;	
 
(2)	(a) Indebtedness incurred pursuant to the ABL Loan Documents (including Indebtedness created under ABL Incremental Facilities, ABL Other Loans and ABL Extended Revolving Commitments) and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof), (b) [Reserved] and (c) ABL Credit Agreement Refinancing Indebtedness, including all Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to this clause (2) (and any successive Permitted Refinancing Indebtedness thereof) in an aggregate outstanding principal amount for all such Indebtedness pursuant to this clause (2) not to exceed $775.0 million, plus , in the case of ABL Credit Agreement Refinancing Indebtedness, the amount of (i) unpaid, accrued or capitalized interest, penalties, premiums (including tender premiums), defeasance costs and other amounts payable with respect thereto and (ii) underwriting discounts, fees, commissions, costs, expenses and other amounts payable with respect to the Indebtedness being refinanced;	
 
(3)	Indebtedness existing on the Closing Date (other than Indebtedness described in clause (1) or (2) above), including the Impax Convertible Notes;	
 
(4)	any (a) Attributable Indebtedness relating to any transactions and (b) Capital Lease Obligations and other Indebtedness with respect to mortgage financings and purchase money Indebtedness to finance all or any part of the purchase, lease, construction, installation, repair or improvement of property (real or personal), plant or equipment or other fixed or capital assets and Indebtedness arising from the conversion of the obligations of the Borrower or any Restricted Subsidiary under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness of the Borrower or such Restricted Subsidiary, in an aggregate outstanding principal amount incurred pursuant to this clause (4), including all Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to this clause (4) (and any successive Permitted Refinancing Indebtedness), not to exceed the greater of (i) $160.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i)	
 
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 	multiplied by TTM Consolidated EBITDA of the Borrower on a Pro Forma Basis as of the applicable date of determination, in each case determined as of the time of incurrence; provided that such Indebtedness is incurred within 270 days after the purchase, lease, construction, installation, repair or improvement of the property that is the subject of such Indebtedness; provided further that for the purposes of determining compliance with this Section 6.01(4), Attributable Indebtedness and Capital Lease Obligations will not be deemed to arise from any Sale Leaseback Transaction that is originally treated under GAAP as an operating lease at the time such Sale Leaseback Transaction is consummated but is subsequently treated under GAAP as a capital lease;	
 
(5)	Indebtedness (including obligations in respect of letters of credit or bank Guarantees, bankers’ acceptances or similar instruments) in respect of workers’ compensation, health, disability or other employee benefits (whether to current or former employees) or property, casualty or liability insurance or self-insurance in respect of such items, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance;	
 
(6)	Indebtedness constituting indemnification obligations, earn-outs, milestones, royalties, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Transactions, a commercial or license agreement, any Permitted Investment or the disposition of any business, assets or Restricted Subsidiaries not prohibited by this Agreement;	
 
(7)	intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries to the extent such Indebtedness is not prohibited by Section 6.04 (without regard to Section 6.04(14));	
 
(8)	Indebtedness pursuant to Hedge Agreements;	
 
(9)	Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion Guarantees and similar obligations and instruments, in each case, provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;	
 
(10)	Guarantees of Indebtedness permitted to be incurred under this Agreement to the extent such Guarantees are not prohibited by the provisions of Section 6.04 (without regard to Section 6.04(14)); provided that, if the Indebtedness being guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Obligations on terms at least as favorable to the Lenders;	
 
(11)	Indebtedness	
 
 	(a)	of any Person that becomes a Restricted Subsidiary after the Closing Date pursuant to a Permitted Investment, which Indebtedness is (i) existing at the time such Person becomes a Restricted Subsidiary, (ii) not incurred in contemplation of such Person becoming a Restricted Subsidiary and (iii) non-recourse to the Borrower or any other Restricted Subsidiary (other than any Person that becomes a Subsidiary in connection with the foregoing and its Subsidiaries);	
 
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 	(b)	issued, incurred or assumed in connection with any Permitted Investment so long as (i) in the case of any such issued or incurred Indebtedness, immediately after giving effect to such issuance or incurrence, such Indebtedness would be permitted to be incurred as Ratio Debt and (ii) in the case of any such assumed Indebtedness, such Indebtedness was not incurred in anticipation of such Permitted Investment;	
provided that the outstanding principal amount of such Indebtedness issued, incurred or assumed by Restricted Subsidiaries that are not Guarantors pursuant to this clause (11)(b) does not exceed the greater of (A) $125.0 million and (B) an amount equal to the Equivalent Percentage of the amount set forth in clause (A)  multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of incurrence; and
 
 	(c)	all Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to the preceding clauses (11)(a) and (11)(b) (and any successive Permitted Refinancing Indebtedness);	
 
(12)	Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;	
 
(13)	Indebtedness (a) supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit, (b) in respect of letters of credit in an aggregate face amount at any time outstanding not to exceed the greater of (i) $25.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA of the Borrower on a Pro Forma Basis as of the applicable date of determination, in each case determined as of the time of incurrence, and (c) in respect of letters of credit that are cash collateralized;	
 
(14)	Contribution Indebtedness;	
 
(15)	Indebtedness consisting of (a) the financing of insurance premiums or (b) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;	
 
(16)	Indebtedness incurred in connection with a Qualified Receivables Transaction that is not recourse (except for Standard Securitization Undertakings) to the Borrower or any Restricted Subsidiary other than a Receivables Subsidiary;	
 
(17)	Cash Management Obligations (as defined in the ABL Credit Agreement) and other Indebtedness in respect of Cash Management Services (as defined in the ABL Credit Agreement), and netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and other cash management and similar arrangements entered into in the ordinary course of business;	
 
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(18)	Indebtedness issued to any future, current or former officers, directors, managers, employees, consultants and independent contractors of the Borrower or any Restricted Subsidiary or any direct or indirect parent thereof, or their respective estates, heirs, family members, spouses, former spouses, executors, administrators, trustees, legatees or distributees, in each case to finance the purchase or redemption of Equity Interests of the Borrower (or any Parent Entity) permitted by Section 6.07;	
 
(19)	Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate outstanding principal amount of such Indebtedness, together with any Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to this clause (19) (and any successive Permitted Refinancing Indebtedness), not to exceed the greater of (a) $50.0 million and (b) an amount equal to the Equivalent Percentage of the amount set forth in clause (a)  multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of incurrence;	
 
(20)	[Reserved];	
 
(21)	Indebtedness of any Non-U.S. Subsidiaries or Non-Loan Parties (a) in an aggregate outstanding principal amount, together with any Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant to this clause (21) (and any successive Permitted Refinancing Indebtedness), not exceed the greater of (i) $100.0 million and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of incurrence and (b) consisting of working capital or other local lines of credit that are not secured by any Collateral and non-recourse to the Loan Parties;	
 
(22)	obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in the ordinary course of business and not in connection with the borrowing of money;	
 
(23)	Indebtedness representing deferred compensation or other similar arrangements incurred by the Borrower or any Restricted Subsidiary (a) in the ordinary course of business or (b) in connection with the Transactions or any Permitted Investment;	
 
(24)	any Permitted Refinancing Indebtedness incurred to Refinance Incremental Equivalent Term Debt or Indebtedness incurred under clauses (2), (3), (4), (11), (13)(b), (14), (19), (21), this clause (24) or clause (28) of this Section 6.01;	
 
(25)	customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;	
 
(26)	Indebtedness incurred by the Borrower or any Restricted Subsidiary in connection with bankers’ acceptances, discounted bills of exchange, warehouse receipts or similar facilities or the discounting or factoring of receivables for credit management purposes, in each case incurred or undertaken in the ordinary course of business;	
 
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(27)	any Permitted Convertible Indebtedness Call Transaction entered into in connection with any Convertible Indebtedness otherwise permitted to be incurred under this Section 6.01;	
 
(28)	additional Indebtedness in an aggregate outstanding principal amount, including all Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness originally incurred pursuant this clause (28) (and any successive Permitted Refinancing Indebtedness), not to exceed the greater of (a) $225.0 million and (b) an amount equal to the Equivalent Percentage of the amount set forth in clause (a)  multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of incurrence; and	
 
(29)	all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (1) through (28) above.	
For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories of Permitted Debt or is entitled to be incurred (in whole or in part) as Ratio Debt, the Borrower may, in its sole discretion, at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant at the time of incurrence or at such later time (as applicable); provided that all Indebtedness outstanding under the Loan Documents and the ABL Credit Agreement and any Permitted Refinancing thereof will be deemed to have been incurred in reliance on the exception in clauses (1) and (2), respectively, of the definition of “Permitted Debt” and shall not be permitted to be reclassified pursuant to this paragraph. All unsecured Permitted Debt originally incurred under clause (4), (11)(b), (19), (21) or (28) of the definition of Permitted Debt will be automatically reclassified as Ratio Debt on the first date on which such Indebtedness would have been permitted to be incurred as Ratio Debt. The accrual of interest, the accretion of accreted value, amortization of original issue discount, the payment of interest or dividends in the form of additional Indebtedness with the same terms (including any pay-in-kind interest) and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies, will not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.01. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date will be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP. Guarantees of, or obligations in respect of letters of credit relating to Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness will not be included in the determination of such amount of Indebtedness; provided that the incurrence of the Indebtedness represented by such Guarantee or letter of credit, as the case may be, was in compliance with this Section 6.01. Any incurrence of Permitted Refinancing Debt with respect to any Refinanced Debt that was incurred in reliance on a dollar or Equivalent Percentage basket (and not subsequently reclassified) shall not, for the avoidance of doubt, reload any such dollar or Equivalent Percentage based basket.
 
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For purposes of determining compliance with any Dollar-denominated (or Equivalent Percentage, if greater) restriction on the incurrence of Indebtedness, the Dollar equivalent principal amount of Indebtedness denominated in a currency other than Dollars shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed or first incurred (whichever yields the lower Dollar equivalent), in the case of revolving credit debt; provided that if such Indebtedness is incurred to Refinance other Indebtedness denominated in a currency other than Dollars, and such refinancing would cause the applicable Dollar-denominated (or Equivalent Percentage, if greater) restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated (or Equivalent Percentage, if greater) restriction will be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced ( plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses in connection therewith).
Any Indebtedness permitted to be incurred under this Section 6.01 may, at the option of the Borrower, be Convertible Indebtedness.
SECTION 6.02. Liens . Create, incur, assume or permit to exist any Lien that secures obligations under any Indebtedness on any property or assets at the time owned by it, except the following (collectively, “ Permitted Liens ”):
 
(1)	Liens securing Indebtedness incurred in accordance with Sections 6.01(1) or 6.01(2), including Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt or Permitted Junior Secured Refinancing Debt and all Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness; provided that, in the case of Indebtedness incurred in accordance with Section 6.01(2), the applicable Liens are subject to the Closing Date Intercreditor Agreement or other Intercreditor Agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the Closing Date Intercreditor Agreement as determined in good faith by a Responsible Officer of the Borrower;	
 
(2)	Liens securing Indebtedness existing on the Closing Date; provided that such Liens only secure the obligations that they secure on the Closing Date (and any Permitted Refinancing Indebtedness in respect of such obligations permitted by Section 6.01) and do not apply to any other property or assets of the Borrower or any Restricted Subsidiary other than replacements, additions, accessions and improvements thereto and products thereof and customary security deposits; provided further , that individual financings of equipment or other assets provided by a lender may be cross collateralized to other financings of equipment or other assets financed by such lender;	
 
(3)	Liens securing Indebtedness incurred in accordance with Sections 6.01(4); provided that such Liens only extend to the assets financed with such Indebtedness (and any replacements, additions, accessions and improvements thereto and products thereof and customary security deposits); provided further , that individual financings of equipment or other assets provided by a lender may be cross collateralized to other financings of equipment or other assets financed by such lender;	
 
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(4)	Liens on Securitization Assets sold, conveyed, assigned or otherwise transferred or purported to be sold, conveyed, assigned or otherwise transferred in connection with a Qualified Receivables Transaction;	
 
(5)	Liens on assets of Non-Loan Parties securing Indebtedness incurred in accordance with Section 6.01(19) or (21);	
 
(6)	[Reserved];	
 
(7)	(a) Liens on property or Equity Interests of a Person at the time such Person becomes a Restricted Subsidiary if such Liens were not created in connection with, or in contemplation of, such other Person becoming a Restricted Subsidiary and (b) Liens on property at the time the Borrower or a Restricted Subsidiary acquired such property, including any acquisition by means of a merger or consolidation with or into the Borrower or any of the Restricted Subsidiaries, if such Liens were not created in connection with, or in contemplation of, such acquisition;	
 
(8)	Liens on property or assets of any Restricted Subsidiary that is not a Guarantor and on any Excluded Assets securing Indebtedness in an aggregate principal amount not to exceed $100,000,000;	
 
(9)	Liens for Taxes, assessments or other governmental charges or levies that are not overdue for a period of more than 60 days or that are not yet delinquent or that are being contested in compliance with Section 5.03;	
 
(10)	Liens disclosed by any title insurance policies delivered on or subsequent to the Closing Date and any replacement, extension or renewal of any such Liens (so long as the Indebtedness and other obligations secured by such replacement, extension or renewal Liens are permitted by this Agreement); provided that such replacement, extension or renewal Liens do not cover any property other than the property that was subject to such Liens prior to such replacement, extension or renewal ( plus any replacements, additions, accessions and improvements thereto and products thereof);	
 
(11)	Liens securing any judgments or orders that do not constitute an Event of Default under Section 8.01(10) and notices of lis pendens or similar notices and associated rights related to litigation being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Borrower or any affected Restricted Subsidiary has set aside on its books reserves in accordance with GAAP with respect thereto;	
 
(12)	Liens imposed by law, including landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other like Liens arising in the ordinary course of business securing obligations that are not overdue by more than 60 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Borrower or a Restricted Subsidiary has set aside on its books reserves in accordance with GAAP;	
 
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(13)	(a) pledges and deposits and other Liens made in the ordinary course of business in compliance with any workers’ compensation, health, disability or other similar employee benefits, unemployment insurance and other similar laws or regulations and other insurance-related obligations (including in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (b) pledges and deposits and other Liens securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary;	
 
(14)	deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, stay, customs, surety and appeal bonds, performance and return of money bonds, bids, leases, government contracts, trade contracts, agreements with utilities, and other obligations of a like nature (including letters of credit in lieu of any such bonds or to support the issuance thereof) incurred by the Borrower or any Restricted Subsidiary in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;	
 
(15)	survey exceptions and such matters as an accurate survey would disclose, easements, trackage rights, leases (other than Capital Lease Obligations), licenses, special assessments, rights of way, covenants, conditions, restrictions (including zoning restrictions), and declarations on or with respect to the use of Real Property, encroachments, protrusions, servicing agreements, development agreements, site plan agreements and other encumbrances and title defects or irregularities that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole;	
 
(16)	any interest or title of a lessor, sublessor, licensor or sublicensor or secured by a lessor’s, sublessor’s, licensor’s or sublicensor’s interest under any leases, subleases, licenses or sublicenses entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;	
 
(17)	Liens that are contractual rights of set-off relating to (a) the establishment of depository relations with banks or other deposit-taking financial institutions in the ordinary course of business, (b) pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary or (c) purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business;	
 
(18)	Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights;	
 
(19)	leases or subleases, licenses or sublicenses (including with respect to Intellectual Property Rights and software) (or other agreement under which the Borrower or any Restricted Subsidiary has granted rights to end users to access and use the Borrower’s or any Restricted Subsidiary’s products, technologies or services) granted to others in the ordinary course of business that do not interfere in any material respect with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;	
 
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(20)	Liens (a) solely on any cash earnest money deposits made by the Borrower or any Restricted Subsidiary in connection with any letter of intent or other agreement in respect of any Permitted Investment and (b) incurred in connection with escrow arrangements or other similar agreements relating to an acquisition or Investment permitted hereunder;	
 
(21)	the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;	
 
(22)	purported Liens evidenced by precautionary Uniform Commercial Code financing statements or similar public filings;	
 
(23)	Liens on Equity Interests or assets of any joint venture (a) securing obligations of such joint venture or (b) pursuant to the relevant joint venture agreement or arrangement;	
 
(24)	Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;	
 
(25)	Liens on securities that are the subject of repurchase agreements constituting Cash Equivalents under clause (4) of the definition thereof;	
 
(26)	Liens (a) securing insurance premium financing arrangements and (b) securing obligations to insurance companies with respect to insurable liabilities incurred in the ordinary course of business;	
 
(27)	Liens on vehicles or equipment of the Borrower or any of the Restricted Subsidiaries granted in the ordinary course of business;	
 
(28)	Liens on property or assets used to defease or to satisfy and discharge Indebtedness; provided that such defeasance or satisfaction and discharge is not prohibited by this Agreement;	
 
(29)	Liens:	
 
 	(a)	of a collection bank arising under Section 4-208 or 4-210 of the Uniform Commercial Code, or any comparable or successor provision, on items in the course of collection;	
 
 	(b)	attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business; or	
 
 	(c)	in favor of banking or other financial institutions or entities, or electronic payment service providers, arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking or finance industry;	
 
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(30)	Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit entered into in the ordinary course of business issued or created for the account of such Person to facilitate the purchase, shipment, processing or storage of such inventory or other goods;	
 
(31)	Liens securing Ratio Debt, Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness or Indebtedness incurred in accordance with Section 6.01(11)(b), in each case, that constitutes Pari Passu Lien Debt; provided that after giving Pro Forma Effect to the incurrence of such Indebtedness, the First Lien Net Leverage Ratio measured as of the date of initial incurrence of such Pari Passu Lien Debt is (a) less than or equal to the Closing Date First Lien Net Leverage Ratio or (b) the First Lien Net Leverage Ratio immediately prior to such incurrence; provided that a Debt Representative acting on behalf of the holders of such Indebtedness will become party to or otherwise subject to the provisions of the Closing Date Intercreditor Agreement and/or a Pari Passu Lien Intercreditor Agreement, as applicable;	
 
(32)	Liens securing Ratio Debt, Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness or Indebtedness incurred in accordance with Section 6.01(11)(b), in each case, that constitutes Junior Lien Debt; provided that, after giving Pro Forma Effect to the incurrence of such Indebtedness, the Total Net Leverage Ratio measured as of the date of initial incurrence of such Junior Lien Debt is less than or equal to (a) the Closing Date Total Net Leverage Ratio or (b) the Total Net Leverage Ratio immediately prior to such incurrence; provided that a Debt Representative acting on behalf of the holders of such Indebtedness will become party to or otherwise subject to the provisions of the Closing Date Intercreditor Agreement and/or a Junior Lien Intercreditor Agreement, as applicable;	
 
(33)	Liens securing Indebtedness or other obligations in an aggregate outstanding principal amount not to exceed the greater of (a) $150.0 million and (b) an amount equal to the Equivalent Percentage of the amount in the preceding clause (a) multiplied by TTM Consolidated EBITDA, as of the applicable date of determination, in each case determined as of the time of initial attachment of such lien;	
 
(34)	Liens in favor of the Borrower or a Loan Party securing any Indebtedness permitted to be incurred under Section 6.01;	
 
(35)	[Reserved];	
 
(36)	Liens (a) on cash advances in favor of the seller of any property to be acquired in a Permitted Investment, (b) consisting of an agreement to Dispose of any property, (c) arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods in the ordinary course of business or (d) imposed by law or incurred pursuant to customary reservations or retentions of title (including contractual Liens in favor of sellers and suppliers of goods) incurred in the ordinary course of business;	
 
(37)	Liens in respect of cash collateralization of letters of credit;	
 
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(38)	(a) ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries are located, (b) deposits of cash with the owner or lessor of premises leased and operated by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business and (c) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole;	
 
(39)	Liens deemed to exist in connection with Permitted Investments in repurchase agreements and reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts maintained in the ordinary course of business and not for speculative purposes;	
 
(40)	the modification, replacement, renewal or extension of any Lien permitted by this Section  6.02 ; provided that the Lien does not extend to any additional property other than property that is affixed or incorporated into the property covered by such Lien and replacements, improvements, proceeds and products thereof; provided further that the modification, replacement, renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 6.01;	
 
(41)	Liens securing Permitted Refinancing Indebtedness (but without reloading any dollar or Equivalent Percentage based basket); provided that:	
 
 	(i)	such Indebtedness being Refinanced was permitted by Section 6.01 and was secured by a Lien permitted by this Section 6.02,	
 
 	(ii)	such Permitted Refinancing Indebtedness is permitted by Section 6.01, and	
 
 	(iii)	the Lien does not extend to any additional property other than property that is affixed or incorporated into the property covered by such Lien and replacements, improvements, proceeds and products thereof, and	
 
(42)	Liens securing amounts owing to any Qualified Counterparty (as defined in the ABL Credit Agreement) under any Specified Hedge Agreement (as defined in the ABL Credit Agreement) and Cash Management Obligations (as defined in the ABL Credit Agreement), which amounts are secured under the ABL Loan Documents; provided that, in each case, the applicable Liens are subject to the Closing Date Intercreditor Agreement or other Intercreditor Agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the Closing Date Intercreditor Agreement as determined in good faith by a Responsible Officer of the Borrower.	
For purposes of determining compliance with this Section 6.02, in the event that any Lien (or any portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may, in its sole discretion, at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such Lien (or any portion thereof) in any manner that complies with this covenant on the date such Lien is incurred or such later time, as applicable; provided that all Liens created pursuant to the Loan Documents will be deemed to have been incurred in reliance on Section 6.02(1) above and shall not be permitted to be reclassified pursuant to this paragraph.
 
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SECTION 6.03. [Reserved] .
SECTION 6.04. Investments, Loans and Advances . Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make any loans or advances to or Guarantees of the obligations of, or make any investment or any other interest in (in each case, excluding any (i) Short Term Advances and (ii) acquisitions of or licenses under intellectual property or related tangible assets used or useful in a business permitted under Section 6.09) (each, a “ Investment ”), any other Person, except the following (collectively, “ Permitted Investments ”):
 
(1)	the Transactions (including payment of the purchase consideration under the Acquisition Agreement);	
 
(2)	(a) payroll advances in the ordinary course of business and (b) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary	
 
 	(i)	for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes,	
 
 	(ii)	in connection with such Person’s purchase of Equity Interests of the Borrower (or any Parent Entity); provided that, to the extent such loans or advances are made in cash, the amount of such loans and advances used to acquire such Equity Interests shall be contributed to the Borrower in cash, and	
 
 	(iii)	for any other purpose; provided that the aggregate principal amount outstanding under this clause (iii) shall not exceed the greater of (A) $20.0 million and (B) an amount equal to the Equivalent Percentage of the amount set forth in clause (A) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Investment;	
 
(3)	Investments in Joint Ventures, Unrestricted Subsidiaries or Similar Businesses that do not exceed in the aggregate at any time outstanding the greater of (i) $200 million and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Investment;	
 
(4)	Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;	
 
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(5)	Investments of any Person that becomes a Restricted Subsidiary on or after the date hereof (or of a Person merged, consolidated or amalgamated with or into a Restricted Subsidiary); provided that any such Investment (a) exists at the time such person becomes (or merges, consolidates or amalgamates with or into) a Restricted Subsidiary and (b) is not made in anticipation of such Person becoming a Restricted Subsidiary (or such merger, consolidation or amalgamation);	
 
(6)	Investments	
 
 	(a)	by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; and	
 
 	(b)	by the Borrower or any Restricted Subsidiary in a Person if, as a result of such Investment, (i) such Person becomes a Restricted Subsidiary or (ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Borrower or any Restricted Subsidiary;	
provided that Investments made after the Closing Date pursuant to this Section  6.04(6) by a Person that is a Loan Party on the date such Investment is made in any Person that on the date of such Investment is not a Loan Party (or does not become a Loan Party as a result thereof) shall not exceed, in the aggregate at any time outstanding, the greater of (i) $155.0 million and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Investment;
 
(7)	[Reserved];	
 
(8)	Cash Equivalents and, to the extent not made for speculative purposes, Investment Grade Securities or Investments that were Cash Equivalents or Investment Grade Securities when made;	
 
(9)	Investments arising out of the receipt by the Borrower or any of the Restricted Subsidiaries of promissory notes and other non-cash consideration in connection with any Disposition permitted under Section 6.06;	
 
(10)	(a) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy, workout, recapitalization or reorganization of, or in settlement of delinquent obligations of, or other disputes with, the issuer of such Investment or an Affiliate thereof and (b) Investments consisting of accounts or notes receivable, security deposits and prepayments and other credits granted or made in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and others, including in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, such account debtors and others, in each case in the ordinary course of business;	
 
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(11)	Investments (including debt obligations and Equity Interests) (a) upon a foreclosure with respect to any secured Investments or other transfer of title with respect to any secured Investment in default, (b) in satisfaction of judgments against other Persons and (c) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;	
 
(12)	Hedge Agreements;	
 
(13)	Investments existing on or contractually committed as of the Closing Date, and, with respect to each such Investment in an amount in excess of $25.0 million, set forth on Schedule 6.04, and any modification, replacements, refinancings, refunds, extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (13) is not increased at any time above the amount of such Investments existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);	
 
(14)	Investments consisting of Indebtedness (including, for the avoidance of doubt, Guarantees) permitted under Section 6.01, Permitted Liens, mergers, dissolutions, liquidations and consolidations permitted under Section 6.05, Dispositions permitted under Section 6.06 and Restricted Payments permitted under Section 6.07;	
 
(15)	[Reserved];	
 
(16)	acquisitions of obligations of one or more future, present or former employees, managers, officers, directors, consultants or contractors (or spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Restricted Subsidiaries or any direct or indirect parent thereof, in connection with such employee’s, manager’s, officer’s, director’s, consultant’s or contractor’s acquisition of Equity Interests of the Borrower or any direct or indirect parent thereof, so long as no cash is actually advanced by the Borrower or any Restricted Subsidiary to such Persons in connection with the acquisition of any such obligations;	
 
(17)	Guarantees of operating leases or of other obligations that do not constitute Indebtedness, in each case, entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;	
 
(18)	Investments to the extent that payment for such Investments is made with Equity Interests of the Borrower or any Parent Entity or the proceeds from the issuance thereof;	
 
(19)	the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, or exercise, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Bond Hedge Transaction; the issuance of, entry into, performance of obligations under, or repurchase, redemption, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any related Permitted Warrant Transaction; and the issuance of, entry into performance of obligations under	
 
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 	(including any payments of interest),conversion, exercise, repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Convertible Indebtedness, in each case, whether in cash, common Capital Stock of Borrower or any direct or indirect parent of Borrower or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent and whether in whole or in part and including by netting or set-off;	
 
(20)	Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;	
 
(21)	[Reserved];	
 
(22)	advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or any Restricted Subsidiary;	
 
(23)	Investments, including loans and advances, to any Person so long as the Borrower or any Restricted Subsidiary (as applicable) would otherwise be permitted to make a Restricted Payment in such amount to such Person; provided that the amount of any such Investment will be deemed to be a Restricted Payment under the appropriate clause of Section 6.07 for all purposes of this Agreement;	
 
(24)	Investments consisting of the leasing, subleasing, licensing or sublicensing of Intellectual Property Rights in the ordinary course of business or the contribution of Intellectual Property Rights pursuant to joint marketing arrangements with other Persons;	
 
(25)	Investments (a) consisting of purchases or acquisitions of inventory, supplies, materials, equipment, contract rights or Intellectual Property Rights in each case in the ordinary course of business and (b) made in the ordinary course of business in connection with obtaining, maintaining or renewing client contracts or similar arrangements and loans or advances made to distributors in the ordinary course of business;	
 
(26)	Investments in assets useful in the business of the Borrower or any Restricted Subsidiary made with (or in an amount equal to) any Reinvestment Deferred Amount or Below Threshold Asset Sale Proceeds; provided that if the underlying Asset Sale was with respect to assets of the Borrower or a Subsidiary Loan Party, then such Investment shall be consummated by the Borrower or a Subsidiary Loan Party;	
 
(27)	any Investment in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person, in each case in connection with a Qualified Receivables Financing, including Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Receivables Financing or any related Indebtedness;	
 
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(28)	intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries;	
 
(29)	Investments that are made with Excluded Contributions that are Not Otherwise Applied;	
 
(30)	Investments	
 
 	(a)	made in furtherance of collaboration, development, promotion, marketing, supply, research or similar arrangements with respect to pharmaceutical or other therapeutic products, diagnostic products or medical device businesses products, including payments for shared development costs, reimbursements for product development or for patent, regulatory, manufacturing or commercialization expenses, or other payments or Investments paid to a Person in the pharmaceutical industry with a view toward developing the Borrower’s or any Restricted Subsidiary’s business in the ordinary course of business and in a manner consistent with standard business practices;	
 
 	(b)	constituting (i) any customary upfront milestone, marketing, revenue sharing, royalty, profit sharing or other funding payment in the ordinary course of business to another Person in connection with obtaining a right to receive royalty or other payments in the future, (ii) Exclusive Licenses from a Restricted Subsidiary that is not a Loan Party to a Loan Party of rights to a drug or other biologic or therapeutic products, diagnostic products, delivery technologies, medical devices or biotechnology businesses or (iii) transfers of Intellectual Property Rights (“ Transferred IP ”) to a Specified IP Subsidiary; provided that (x) such transfers do not, individually or in the aggregate, materially impair the Loan Parties’ ability to pay their obligations under the Loan Documents as when due and (y) except as otherwise agreed by the Collateral Agent, prior to such transfer (or at such later date as the Collateral Agent may agree), the Borrower shall pledge (or cause to be pledged) 100% of the issued and outstanding Equity Interests (other than any voting Equity Interests of any non-U.S. Subsidiary or any FSHCO in excess of 65% of the issued and outstanding voting Equity Interests of such non-U.S. Subsidiary or FSHCO) of such Specified IP Subsidiary to the Collateral Agent for the benefit of the Secured Parties under (and in accordance with) the Collateral Agreement; or	
 
 	(c)	consisting of the licensing (or equivalent thereof), acquisition, sale or contribution of Intellectual Property Rights or proprietary materials pursuant to pharmaceutical or therapeutic product licensing, collaboration, development, promotion, marketing, supply, research or similar arrangements with other Persons made in the ordinary course of business or not exceeding at any time outstanding an aggregate principal amount of the greater of (i) $60 million and (ii) an amount equal to the Equivalent Percentage of the amount in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of incurrence;	
 
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(31)	Investments, so long as the Total Net Leverage Ratio (after giving Pro Forma Effect to the incurrence of such Investment and the use of proceeds thereof) for the Test Period immediately preceding the incurrence of such Investment for which internal financial statements are available shall be less than or equal to 0.75x inside of the Closing Date Total Net Leverage Ratio; and	
 
(32)	Investments that do not exceed the sum of (a) the greater of (i) $320.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Investment, and (b) so long as no Specified Event of Default shall have occurred and be continuing or would result from the making of such Investment, the Available Amount at such time.	
For purposes of determining compliance with this Section 6.04, (x) the amount of any Investment at any time shall be the amount of cash and the fair market value of other property actually invested (measured at the time made), without adjustment for subsequent changes in the value of such Investment, net of any return, whether a return of capital, interest, dividend or otherwise, with respect to such Investment and (y) in the event that any Investment (or any portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may, in its sole discretion, at the time such Investment is made, divide, classify or reclassify, or at any later time divide, classify or reclassify, such Investment (or any portion thereof) in any manner that complies with this Section 6.04 on the date such Investment is made or such later time, as applicable.
To the extent any Investment in any Person is made in compliance with this Section 6.04 in reliance on a category above that is subject to a Dollar-denominated restriction on the making of Investments and, subsequently, such Person returns to the Borrower, any other Loan Party or, to the extent applicable, any Restricted Subsidiary all or any portion of such Investment (in the form of a dividend, distribution, liquidation or otherwise but excluding intercompany Indebtedness), such return shall be deemed to be credited to the Dollar-denominated category against which the Investment is then charged (but in any event not in an amount that would result in the aggregate Dollar amount able to be invested in reliance on such category to exceed such Dollar-denominated restriction).
The amount set forth in Section 6.07(14)(a) and clause (1)(f)(i) of Section 6.11 (without duplication) may, in lieu of Restricted Payments or prepayments, repayments, redemptions, purchases, defeasances or satisfactions of any Junior Financings, as applicable, be utilized by the Borrower or any Restricted Subsidiary to make or hold any Investments without regards to this Section 6.04.
SECTION 6.05. Fundamental Changes . Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person:
 
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(1)	any Restricted Subsidiary may merge or consolidate with the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that:	
 
 	(a)	the Borrower will be the continuing or surviving Person, and	
 
 	(b)	such merger or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;	
 
(2)	any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary, liquidate, dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders, taken as a whole;	
 
(3)	any merger the sole purpose of which is to reincorporate or reorganize (i) any U.S. Subsidiary in another jurisdiction in the U.S. or (ii) any Non-U.S. Subsidiary in the U.S. or any other jurisdiction shall be permitted;	
 
(4)	so long as no Event of Default has occurred and is continuing or would result therefrom; the Borrower may merge or consolidate with any other Person; provided that	
 
 	(a)	the Borrower will be the continuing or surviving Person, or	
 
 	(b)	if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “ Successor Borrower ”),	
 
 	(i)	the Successor Borrower will be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia;	
 
 	(ii)	the Successor Borrower will expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;	
 
 	(iii)	each Guarantor, unless it is party to such merger or consolidation, will have confirmed that its Guarantee of the Obligations pursuant to the Collateral Agreement will apply to, and the Secured Obligations (as defined in the Collateral Agreement) will include, the Successor Borrower’s Obligations; and	
 
 	(iv)	the Borrower will have delivered to the Administrative Agent (A) an officer’s certificate stating that such merger or consolidation complies with this Agreement and (B) an opinion of counsel, including customary organization, due execution, no conflicts and enforceability opinions with respect to the Successor Borrower, in each case to the extent reasonably requested by the Administrative Agent; it being agreed that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; and	
 
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(5)	subject to clauses (1) and (4) above, transactions the purpose of which is to effect a Permitted Investment (other than pursuant to Section 6.04(14)) or a Disposition permitted pursuant to Section 6.06 (other than pursuant to Section 6.06(5) or a Disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries); and	
 
(6)	the Transactions.	
SECTION 6.06. Dispositions . Make any Disposition, except:
 
(1)	Dispositions of obsolete, damaged, worn out, used or surplus property (including for purposes of recycling) in the ordinary course of business or Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;	
 
(2)	Dispositions of inventory and goods held for sale in the ordinary course of business;	
 
(3)	Dispositions of property to the extent that (a) such property is exchanged for credit against the purchase price of similar replacement property or (b) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property; provided that to the extent the property being transferred constitutes Collateral such replacement property shall constitute Collateral;	
 
(4)	Dispositions of property to the Borrower or a Restricted Subsidiary; provided, that if the transferor of such property is a Loan Party (a) the transferee thereof must be a Loan Party or (b) to the extent constituting an Investment, such Investment must be a Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04 (other than Section 6.04(14));	
 
(5)	Dispositions consisting of Investments permitted under Section 6.04 (other than Section 6.04(14)), transactions permitted under Section 6.05 (other than Section 6.05(5)) or Restricted Payments permitted under Section 6.07 (other than Section 6.07(4)) or consisting of Permitted Liens;	
 
(6)	Dispositions of property pursuant to Sale Leaseback Transactions, provided that (i) no Event of Default has occurred and is continuing or would result therefrom (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing) and (ii) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;	
 
(7)	Dispositions of Cash Equivalents (or Investments that were Cash Equivalents when made); provided , that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;	
 
(8)	leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole, provided , that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;	
 
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(9)	Dispositions of property subject to any Casualty Event;	
 
(10)	Dispositions; provided that	
 
 	(a)	at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing), no Event of Default has occurred and is continuing or would result therefrom; and	
 
 	(b)	with respect to any Disposition pursuant to this clause (10) for a purchase price in excess of the greater of (i) $25.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided , however , that for the purposes of this clause (b) each of the following will be deemed to be cash,	
 
 	(i)	any liabilities (as shown on the Borrower’s or any Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;	
 
 	(ii)	any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or any Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition;	
 
 	(iii)	any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not in excess of the greater of (A) $25.0 million and (B) an amount equal to the Equivalent Percentage of the amount set forth in clause (A) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and	
 
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 	(iv)	such Disposition shall be for no less than the fair market value of such property at the time of such Disposition (or, if earlier, the definitive documentation or other Contractual Obligation with respect to such Disposition is entered into by the Borrower or any Restricted Subsidiary (as applicable) (this clause (10), the “ General Asset Sale Basket ”);	
 
(11)	Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements among, the joint venture parties set forth in joint venture or similar agreements or arrangements;	
 
(12)	Dispositions or discounts of accounts receivable and related assets in connection with the collection or compromise thereof;	
 
(13)	Dispositions (including issuances or sales) of Equity Interests in, or Indebtedness owing to, or of other securities of, an Unrestricted Subsidiary;	
 
(14)	Dispositions constituting any exchange of like property (excluding any boot thereon) for use in any business conducted by the Borrower or any of the Restricted Subsidiaries, to the extent allowable under Section 1031 of the Code (or comparable or successor provision); provided that to the extent the property being transferred constitutes Collateral, such replacement property shall constitute Collateral;	
 
(15)	the unwinding of any Hedge Agreement;	
 
(16)	Dispositions of assets in connection with the closing or sale of a facility, including Dispositions of inventory, fee or leasehold interests in the premises of such facility, equipment and fixtures located at such premises, and the books and records relating to the operations of such facility; provided that as to each and all such sales and closings, (a) no Event of Default shall have occurred and be continuing or shall result therefrom and (b) such Dispositions shall be for no less than fair market value at the time of such Disposition;	
 
(17)	the sale, assignment or other transfer of Securitization Assets to (a) a Receivables Subsidiary in a Qualified Receivables Financing or (b) any other Person in a Qualified Receivables Factoring;	
 
(18)	(i) settlement of litigation concerning Intellectual Property Rights, or (ii) the lease, sublease, license or sublicense of Intellectual Property Rights outside the United States or	
(iii) the lapse, abandonment, discontinuance of the use or maintenance of any Intellectual Property Rights, in each case of (i), (ii) and (iii), if the Borrower or any Restricted Subsidiary determines in its reasonable business judgment that it would not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
 
(19)	Disposition of any property or asset with a fair market value not to exceed either (a) the greater of (i) $10.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such	
 
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 	Disposition, with respect to any transaction or series of related transactions or (b) the greater of (i) $50.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, in the aggregate for all such transactions in any fiscal year;	
 
(20)	Disposition of assets acquired in a Permitted Investment that the Borrower determines will not be used or useful in the business of the Borrower and its Restricted Subsidiaries;	
 
(21)	Dispositions of pipeline, marketed or other assets required by regulatory authorities in connection with the Transactions, any Permitted Acquisition or other investment permitted hereunder;	
 
(22)	any Disposition(s) in connection with licensing of Intellectual Property Rights to any Non-Loan Party Restricted Subsidiary or Non-Loan Party Restricted Subsidiaries in connection with bona fide tax planning purposes as determined in good faith by the Borrower; provided , that the Collateral and the Lenders are not adversely affected in any material respect by such Disposition(s);	
 
(23)	Dispositions, including leases, subleases, licenses or sublicenses, of Products in	
Development in jurisdictions outside the United States; provided , that (a) such disposition does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole and (b) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;
 
(24)	the Transactions; and	
 
(25)	the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, or exercise, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Bond Hedge Transaction; the issuance of, entry into, performance of obligations under, or repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any related Permitted Warrant Transaction; and the issuance of, entry into performance of obligations under (including any payments of interest), conversion, exercise, repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Convertible Indebtedness, in each case, whether in cash, common Capital Stock of Borrower or any direct or indirect parent of Borrower or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent and whether in whole or in part and including by netting or set-off.	
To the extent any Collateral is Disposed of as expressly permitted (or not prohibited) by this Section 6.05 to any Person other than a Loan Party, such Collateral will be Disposed of free and clear of the Liens created by the Loan Documents, and, without limiting, and subject to, the provisions of Section 9.11, the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower or deemed appropriate in order to evidence or effect the foregoing.
 
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SECTION 6.07. Restricted Payments . Declare or make, directly or indirectly, any Restricted Payment, other than the declaration or making of the following:
 
(1)	Restricted Payments to the Borrower or any Restricted Subsidiary (or, in the case of any non-Wholly Owned Restricted Subsidiary, to the Borrower, any Restricted Subsidiary and each other owner of Equity Interests of such non-Wholly Owned Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary) according to their relative ownership interests);	
 
(2)	the declaration and making of any Restricted Payments payable solely in the form of Equity Interests (other than Disqualified Stock) of the Borrower;	
 
(3)	Restricted Payments to consummate the Transactions (including payments in respect of dissenting shares, which, for the avoidance of doubt, may be made after the Closing Date), to pay any amounts pursuant to the Acquisition Agreement or the Specified Tender Offer;	
 
(4)	to the extent constituting a Restricted Payment or Restricted Payments, mergers, dissolutions, liquidations and consolidations permitted under Section 6.05 (other than a merger or consolidation involving the Borrower) or transactions permitted under Section 6.08 (other than Section 6.08(9));	
 
(5)	repurchases of Equity Interests (a) deemed to occur upon exercise of options, warrants or similar rights if such Equity Interests represent a portion of the exercise price of such options or warrants or similar rights or (b) in consideration of withholding or similar taxes payable by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the exercise of stock options or the vesting of any equity awards;	
 
(6)	Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities) (or to allow any direct or indirect parent entity to purchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities)) held directly or indirectly by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any Parent Entity upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any management, employee or director equity plan, management, employee or director stock option or profits interest plan or any other management, employee or director benefit plan or other agreement or arrangement (including any separation, stock subscription,	
 
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 	shareholder, partnership or similar agreement) in an aggregate amount after the Closing Date, together with the aggregate amount of loans and advances to any Parent Entity made pursuant to Section 6.04(23) in lieu of Restricted Payments permitted by this clause (6), not to exceed $25 million in any fiscal year with any unused amounts in any fiscal year being carried over to succeeding fiscal years; provided that such amount in any fiscal year may be increased by,	
 
 	(a)	the amount of net proceeds of any key man life insurance policies received by the Borrower or any Restricted Subsidiary after the Closing Date;	
 
 	(b)	to the extent contributed in cash to the common equity of the Borrower and Not Otherwise Applied, the proceeds from the sale of Equity Interests of the Borrower or any direct or indirect parent thereof (other than Disqualified Stock, Excluded Contributions or Cure Amounts), in each case to any future, present or former employee, manager, officer director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof that occurs after the Closing Date; and	
 
 	(c)	the amount of any cash bonuses or other compensation otherwise payable to any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower or any of its Restricted Subsidiaries or any Parent Entity that are foregone in return for the receipt of Equity Interests of the Borrower or any of its Restricted Subsidiaries or any direct or indirect parent thereof;	
 
(7)	Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire (or permit any direct or indirect parent entity to acquire) Equity Interests of the Borrower or any direct or indirect parent thereof in an aggregate amount per fiscal year not to exceed the greater of (a) $25.0 million and (b) an amount equal to the Equivalent Percentage of the amount set forth in clause (a) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Restricted Payment;	
 
(8)	Restricted Payments the proceeds of which will be used to pay or finance (or permit any Parent Entity to pay or finance):	
 
 	(a)	distributions made pursuant to Section 4.01(b) of the LLC Agreement;	
 
 	(b)	operating, overhead, legal, accounting and other professional fees costs and expenses (including directors’ fees and expenses and Public Company Costs) and other ordinary course overhead costs and operational expenses (including administrative, legal, accounting, filing and similar expenses provided by third parties), in each case to the extent related to any such Parent Entity’s separate existence as a holding company or attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;	
 
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 	(c)	franchise taxes and other fees, taxes and expenses in connection with (i) the ownership of the Borrower or any Restricted Subsidiary or (ii) the maintenance of the Borrower’s or any such parent entity’s corporate or legal existence;	
 
 	(d)	to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted under Sections 6.08(3), (5), (7), (16), (17), (19) and (21), in each case to the extent such payments are due at the time of such Restricted Payment;	
 
 	(e)	any Permitted Investment; provided that (i) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (ii) the Borrower will, immediately following the closing thereof, cause (A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary (which shall be a Restricted Subsidiary to the extent required by Section 6.04) or (B) the merger (to the extent permitted in Section 6.05) of the Person formed or acquired with or into the Borrower or a Subsidiary (which shall be a Restricted Subsidiary to the extent required by Section 6.04) in order to consummate such Investment;	
 
 	(f)	costs, fees and expenses related to any equity or debt offering expressly permitted by this Agreement or any Permitted Investment, whether or not consummated; and	
 
 	(g)	(i) customary salary, bonus and other benefits payable to future, present or former employees, managers, officers, directors, consultants or contractors (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (ii) payments permitted under Sections 6.08(7);	
 
(9)	Restricted Payments to pay (or permit any direct or indirect parent entity to pay) cash in lieu of the issuance of fractional Equity Interests in connection with the exercise of warrants, upon the conversion or exchange of Equity Interests of any such Person, in connection with any merger, consolidation, amalgamation or other business combination, or in connection with any dividend, distribution, split or combination of Equity Interests or any Permitted Investment;	
 
(10)	[Reserved];	
 
(11)	the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Borrower) of Equity Interests (other than Disqualified Stock) of the Borrower or any Parent Entity or from the substantially concurrent contribution of common equity capital to the Borrower, in each case that are Not Otherwise Applied, other than (a) Excluded Contributions and (b) Cure Amounts;	
 
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(12)	Restricted Payments that are made with Excluded Contributions that are Not Otherwise Applied;	
 
(13)	Restricted Payments of Investments in one or more Unrestricted Subsidiaries;	
 
(14)	Restricted Payments (the proceeds of which may be utilized by any Parent Entity) in an aggregate amount not to exceed the sum of:	
 
 	(a)	when taken together with any prepayments, repayments, redemptions, purchases, defeasances or satisfactions made under clause (1)(f)(i) of Section 6.11, the greater of (i) $125.0 million and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Restricted Payment; provided , in each case, that no Event of Default shall have occurred and be continuing; and	
 
 	(b)	the Available Amount at such time; provided that (i) no Event of Default shall have occurred and be continuing or result therefrom and (ii) solely with respect to amounts attributable to clause (2) of the definition of the Available Amount, the Total Net Leverage Ratio (after giving Pro Forma Effect to such Restricted Payment) would be less than or equal to the Closing Date Total Net Leverage Ratio;	
 
(15)	Restricted Payments; provided that the Total Net Leverage Ratio (after giving Pro Forma Effect to such Restricted Payment) would be less than or equal to 1.00x inside of the Closing Date Total Net Leverage Ratio; and	
 
(16)	the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, or exercise, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Bond Hedge Transaction; the issuance of, entry into, performance of obligations under, or repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any related Permitted Warrant Transaction; and the issuance of, entry into performance of obligations under (including any payments of interest), conversion, exercise, repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Convertible Indebtedness, in each case, whether in cash, common Capital Stock of Borrower or any direct or indirect parent of Borrower or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent and whether in whole or in part and including by netting or set-off.	
The amount set forth in Section 6.07(14)(a) may (without duplication), in lieu of Restricted Payments, be utilized by the Borrower or any Restricted Subsidiary to (i) make or hold any Investments without regards to Section 6.04 or (ii) prepay, repay redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof any Junior Financing without regards to Section 6.11.
 
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SECTION 6.08. Transactions with Affiliates . Engage in any transaction with any Affiliate of the Borrower, except that this Section 6.08 will not prohibit:
 
(1)	any transactions between or among the Borrower or any of the Restricted Subsidiaries or any Person that becomes a Restricted Subsidiary as a result of such transaction;	
 
(2)	any transactions on terms substantially as favorable to the Borrower or such Restricted Subsidiary (as applicable) as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate (as determined by the Borrower in good faith);	
 
(3)	the Transactions (including the issuance or conversion of Equity Interests in connection therewith) and the payment of fees and expenses (including the Transaction Costs) related to the Transactions;	
 
(4)	the issuance, transfer or conversion of Equity Interests (other than Disqualified Stock) of the Borrower or any Parent Entity not constituting a Change in Control;	
 
(5)	employment and severance arrangements and confidentiality agreements among the Borrower, any of its Subsidiaries or any direct or indirect parent thereof and any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof in the ordinary course of business and transactions pursuant to equity plans, stock option or profits interest plan or any other equity or benefit plan or other similar agreement or arrangement (including to the extent set forth in any separation, stock subscription, shareholder, partnership or similar agreement);	
 
(6)	the licensing of Intellectual Property Rights in the ordinary course of business to permit the commercial exploitation of Intellectual Property Rights between or among the Borrower, its Affiliates or its Restricted Subsidiaries;	
 
(7)	the payment of fees, reasonable out-of-pocket costs and expenses to, and indemnities provided to or on behalf of, any officers, directors, managers, employees, consultants or contractors of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or any such parent’s separate existence;	
 
(8)	any other transaction, agreement, instrument or arrangement as in effect as of the Closing Date and, with respect to each such transaction, agreement, instrument or arrangement involving aggregate payments or consideration in excess of $25.0 million, set forth on Schedule 6.08, or any amendment thereto (so long as any such amendment is not materially adverse to the Lenders, taken as a whole, as compared to the applicable transaction, agreement, instrument or arrangement as in effect on the Closing Date);	
 
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(9)	any Restricted Payments permitted under Section 6.07, transactions permitted under Sections 6.05 and Investments permitted under Section 6.04;	
 
(10)	(a) the Tax Receivable Agreement or transactions thereunder or (b) payments by the Borrower, any Subsidiary or any direct or indirect parent thereof pursuant to reasonable tax sharing arrangements between or among such Persons;	
 
(11)	any transactions in which the Borrower or any of the Restricted Subsidiaries, as the case may be, delivers to the Administrative Agent a letter from an Independent Financial Advisor stating that such transaction is fair to the Borrower or any such Restricted Subsidiary, as applicable, from a financial point of view or meets the requirements of clause (2) of this Section 6.08 (without giving effect to the parenthetical phrase at the end thereof);	
 
(12)	any transaction or series of related transactions with consideration valued (as determined in good faith by the Borrower) at less than the greater of (a) $20.0 million and (b) an amount equal to the Equivalent Percentage of the amount set forth in clause (a) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of consummating such transaction(s);	
 
(13)	investments by the Investors in securities of the Borrower or any Parent Entity or Indebtedness of the Borrower, any Parent Entity or any of the Restricted Subsidiaries so long as (a) the investment is being offered generally to other investors on the same or more favorable terms and (b) any such investment constitutes less than 5.0% of the proposed or outstanding issue amount of such class of securities; provided , that any investments in debt securities by any Debt Fund Affiliates shall not be subject to the limitation in this clause (b);	
 
(14)	payments to or from, and transactions with, Joint Ventures (to the extent any such Joint Venture is only an Affiliate as a result of Investments by the Borrower and the Restricted Subsidiaries in such Joint Venture);	
 
(15)	transactions between or among the Borrower or its Subsidiaries effected as part of any Qualified Receivables Transaction;	
 
(16)	the payment of reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to shareholders of the Borrower or any Parent Entity pursuant to the stockholders agreement or the registration and participation rights agreement entered into on the Closing Date in connection therewith;	
 
(17)	the payment of any dividend or distribution or consummation of any redemption within sixty (60) days after the date of declaration thereof or the giving of a redemption notice related thereto, if at the date of declaration or notice such payment would have complied with the provisions of this Agreement;	
 
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(18)	transactions between or among the Borrower, any of its Restricted Subsidiaries or any direct or indirect parent thereof and any Person, a director of which Person is also a director of the Borrower or any Parent Entity of the Borrower; provided , however , that such director abstains from voting as a director of the Borrower or such Parent Entity, as the case may be, on any matter involving such other Person and such Person is not an Affiliate of the Borrower for any reason other than such director’s acting in such capacity;	
 
(19)	payments, loans (or cancellation of loans) or advances to any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) that are approved in good faith by a majority of the Disinterested Directors of the Borrower, any of its applicable Restricted Subsidiaries or any applicable direct or indirect parent of the foregoing;	
 
(20)	any purchase by any Parent Entity of the Equity Interests of the Borrower and the issuance, sale or transfer of Equity Interests of the Borrower to any Parent Entity and capital contributions by any Parent Entity to the Borrower (and payment of reasonable out-of-pocket expenses incurred in connection therewith);	
 
(21)	the existence of, or the performance by the Borrower or any of its Subsidiaries of its obligations under the terms of, any customary registration rights agreement to which such Person or any Parent Entity is a party or becomes a party in the future; and	
 
(22)	transactions approved by a majority of the Disinterested Directors of the Borrower or any applicable Parent Entity.	
SECTION 6.09. Business of the Borrower and its Subsidiaries . Engage in any material line of business substantially different from those lines of business conducted or proposed to be conducted by the Borrower and its Restricted Subsidiaries on the Closing Date (after giving effect to the Transactions) and any business that is similar, corollary, ancillary, incidental or complementary or related to, or a reasonable extension, development or expansion of, the businesses conducted or proposed to be conducted by the Borrower and its Restricted Subsidiaries on the Closing Date (after giving effect to the Transactions), including any Similar Business.
SECTION 6.10. Burdensome Agreements . Enter or permit any Material Restricted Subsidiary to enter into any Contractual Obligation (other than the Loan Documents, the ABL Loan Documents or the Impax Convertible Notes) that by its terms restricts (I) with respect to any such Material Restricted Subsidiary that is not a Guarantor, Restricted Payments from such Material Restricted Subsidiary to the Borrower or any other Loan Party, as applicable, that is a direct or indirect parent of such Restricted Subsidiary or (II) with respect to the Borrower or any such Material Restricted Subsidiary that is a Loan Party, the granting of Liens by such Material Restricted Subsidiary pursuant to the Security Documents; provided that the foregoing clauses (I) and (II) will not apply to any Contractual Obligations that:
 
(1)	(a) exist on the Closing Date and are, to the extent such Contractual Obligation relates to any security with a value exceeding $25.0 million, listed on Schedule 6.10 and (b) to the extent Contractual Obligations permitted by clause (a) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted Refinancing of such Indebtedness so long as (to the extent not otherwise permitted by this Section 6.10) such Refinancing does not materially expand the scope of such Contractual Obligation with respect to restrictions described in the preceding clauses (I) or (II);	
 
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(2)	are (a) binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary or (b) acquired in connection with a Permitted Investment, so long as, in each case, such Contractual Obligations were not entered into in contemplation of such Person becoming a Restricted Subsidiary or such Permitted Investment, in each case as such Contractual Obligations may be amended, restated, supplemented, modified extended renewed or replaced, so long as such amendment, restatement, supplement, modification, extension, renewal or replacement does not expand in any material respect the scope of any restriction contemplated by this Section 6.10 contained therein;	
 
(3)	represent Indebtedness of a Restricted Subsidiary that is not a Loan Party;	
 
(4)	are customary restrictions and conditions that arise in connection with (a) any Lien (other than Liens on Collateral) permitted by Section 6.02, and relate to the property permitted to be subject to such Lien; or (b) any Disposition pending consummation of such Disposition and solely with respect to the assets (including Equity Interests) subject to such Disposition;	
 
(5)	are customary provisions in joint venture or similar agreements relating to the applicable joint venture;	
 
(6)	are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 6.01, but solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness and the proceeds and products thereof;	
 
(7)	are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto;	
 
(8)	comprise restrictions imposed by any agreement relating to secured Indebtedness permitted under Section 6.01 to the extent that such restrictions apply only to the property or assets securing such Indebtedness;	
 
(9)	are (a) customary provisions restricting subletting or assignment of any lease governing a leasehold interest or (b) customary net worth provisions contained in Real Property leases entered into by Restricted Subsidiaries, so long as a Responsible Officer of the Borrower has determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the Borrower and the other Restricted Subsidiaries to meet their ongoing obligations;	
 
(10)	are customary provisions restricting assignment of any Contractual Obligation entered into in the ordinary course of business;	
 
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(11)	are customary provisions contained in leases or licenses of Intellectual Property Rights and other similar agreements entered into in the ordinary course of business;	
 
(12)	are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;	
 
(13)	arise in connection with cash or other deposits permitted under Section 6.02;	
 
(14)	comprise restrictions in any Indebtedness permitted pursuant to Section 6.01 that are, taken as a whole, in the good faith judgment of the Borrower, no more restrictive with respect to the Borrower or any Restricted Subsidiary than customary market terms for agreements governing Indebtedness of such type or otherwise reasonably acceptable to the Administrative Agent, so long as the Borrower shall have determined in good faith that such restrictions will not affect its obligation or ability to make any payments required hereunder;	
 
(15)	apply by reason of any applicable Law, rule, regulation or order or are required by any Governmental Authority having or purporting to have jurisdiction over the Borrower or any Restricted Subsidiary;	
 
(16)	customary restrictions contained in Indebtedness permitted to be incurred pursuant to Sections 6.01(4) and (11)(a), and any Permitted Refinancing Indebtedness in respect of the foregoing;	
 
(17)	consist of any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) above, so long as such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Borrower, not materially more restrictive with respect to such Lien, dividend and other payment restrictions, taken as a whole, than those contained in the Lien, dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; or	
 
(18)	are encumbrances or restrictions applicable to a Receivables Subsidiary in connection with a Qualified Receivables Financing that, in the good faith determination of the Borrower, are necessary or advisable to effect such Qualified Receivables Financing.	
SECTION 6.11. Limitation on Payments and Modifications of Certain Indebtedness; Amendments of Certain Documents.
 
(1)	Prepayments of Junior Financing . Prepay, repay, redeem, purchase, defease or otherwise satisfy prior to scheduled maturity thereof any Junior Financing, except:	
 
 	(a)	the refinancing thereof with the Net Cash Proceeds of, or in exchange for, any Permitted Refinancing Indebtedness;	
 
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 	(b)	the conversion or exchange of any Junior Financing into or for Equity Interests (other than Disqualified Stock) of the Borrower or any Parent Entity;	
 
 	(c)	the prepayment repayment, redemption, purchase, defeasance or satisfaction of any of Indebtedness of the Borrower or any of its Restricted Subsidiaries owed to the Borrower or any of its Restricted Subsidiaries;	
 
 	(d)	the prepayment, repayment, redemption, purchase, defeasance or satisfaction of any Junior Financing with the proceeds of (i) any other Junior Financing or (ii) any Qualified Equity Interests or any cash contribution to the common equity capital of the Borrower after the Closing Date (other than any Cure Amount or Excluded Contribution) that is Not Otherwise Applied; provided that such prepayment, repayment, redemption, purchase, defeasance or satisfaction is made within 60 days after receipt of such proceeds and no Event of Default has occurred and is continuing;	
 
 	(e)	payments or distributions in respect of all or any portion of such Junior Financing with the proceeds contributed directly or indirectly to the Borrower by any Parent Entity from the issuance, sale or exchange by any Parent Entity of Equity Interests (other than Disqualified Stock, Cure Amounts or Excluded Contributions) made within eighteen (18) months prior thereto and Not Otherwise Applied;	
 
 	(f)	prepayments, repayments, redemptions, purchases, defeasances or satisfactions of any Junior Financing in an aggregate amount not to exceed the sum of:	
 
 	(i)	when taken together with any Restricted Payments made under Section 6.07(14)(a), the greater of (A) $125.0 million and (B) an amount equal to the Equivalent Percentage of the amount set forth in clause (A) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such prepayment, repayment, redemption, purchase, defeasance or satisfaction; provided , in each case, that no Event of Default shall have occurred and be continuing or shall result therefrom; and	
 
 	(ii)	the Available Amount at such time; provided that (A) no Event of Default shall exist after giving effect to such Restricted Payment or shall result therefrom and (B) solely with respect to amounts attributable to clause (2) of the definition of the Available Amount, the Total Net Leverage Ratio (after giving Pro Forma Effect to such Restricted Payment) would be less than or equal to the Closing Date Total Net Leverage Ratio;	
 
 	(g)	prepayments, repayments, redemptions, purchases, defeasances or satisfactions, of any Junior Financing so long as the Total Net Leverage Ratio (after giving Pro Forma Effect to such prepayment, repayment, redemption, purchase, defeasance or satisfaction) would be less than or equal to 1.00x inside of the Closing Date Total Net Leverage Ratio; or	
 
 	(h)	any Specified Tender Offer;	
 
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provided , however , that each of the following shall be permitted: payments of regularly scheduled principal and interest (including default interest and any “AHYDO” catch-up payment) on Junior Financing, fees related to Junior Financing, indemnity and expense reimbursement payments in connection with Junior Financing, and mandatory prepayments, mandatory redemptions and mandatory purchases of any Junior Financing (including any principal, premium or interest with respect thereto), in each case pursuant to the terms of the applicable Junior Financing Documentation.
The amount set forth in clause (1)(f)(i) of this Section 6.11 (without duplication) may be, in lieu of prepayments, repayments, redemptions, purchases, defeasances or satisfactions of any Junior Financing, be utilized by the Borrower or any Restricted Subsidiary to (i) make or hold any Investments without regards to Section 6.04 or (ii) make Restricted Payments without regards to Section 6.07.
 
(2)	Amendments to Junior Financing Documentation . Amend, modify or change in any manner without the consent of the Administrative Agent, any Junior Financing Documentation in a manner that is materially adverse to the interests of the Lenders (taken as a whole), in each case other than as a result of a Permitted Refinancing thereof; provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to any such amendment, modification or change, together with a reasonably detailed description of the material terms and conditions of such amendment, modification or change or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (2) shall be conclusive evidence that such amendment, modification or change satisfies this clause (2) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees); or	
 
(3)	Amendments to Organization Documents. Amend, modify or change its certificate or articles of incorporation or formation (including by the filing or modification of any certificate or articles of designation), certificate of formation, limited liability company agreement or by-laws (or the equivalent organizational documents), as applicable, in each case, in any manner materially adverse to the interests of the Lenders (taken as a whole); provided that, in each case, a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to any such amendment, modification or change, together with a reasonably detailed description of the material terms and conditions of such amendment, modification or change or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (3) shall be conclusive evidence that such amendment, modification or change satisfies such requirement unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees).	
 
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SECTION 6.12. Use of Proceeds . The Borrower shall not use, and the Borrower shall procure that its Subsidiaries and its or their respective directors, officers, employees and, to the Borrower’s knowledge, agents shall not use, the proceeds of the Term Loans (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in or with any Sanctioned Country, or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
ARTICLE VII
[Reserved].
ARTICLE VIII
Events of Default
SECTION 8.01. Events of Default . In case of the happening of any of the following events (each, an “ Event of Default ”):
 
(1)	any representation or warranty made by the Borrower or any other Loan Party herein or in any other Loan Document or any certificate or document required to be delivered pursuant hereto or thereto proves to have been false or misleading in any material respect when so made; provided that the failure of any Specified Acquisition Agreement Representation to be true and correct will not result in a Default or an Event of Default, unless such failure results in a failure of a condition precedent to the Borrower’s (or its Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement or such failure gives the Borrower (or its Affiliates) the right (taking into account any applicable cure provisions) to terminate its (or their) obligations under the Acquisition Agreement;	
 
(2)	default is made in the payment of any principal of any Term Loan when and as the same becomes due and payable, whether at the due date thereof, at a date fixed for prepayment thereof, by acceleration thereof or otherwise;	
 
(3)	default is made in the payment of any interest on any Term Loan or in the payment of any fee (other than an amount referred to in clause (2) of this Section 8.01), when and as the same becomes due and payable, and such default continues unremedied for a period of five (5) Business Days;	
 
(4)	default is made in the due observance or performance by the Borrower or any Restricted Subsidiary of any covenant, condition or agreement contained in Section 5.01(1) (with respect to the Borrower only), 5.05(1) or in Article VI (in each case solely to the extent applicable to such Person);	
 
(5)	default is made in the due observance or performance by the Borrower or any Restricted Subsidiary of any covenant, condition or agreement contained in any Loan Document (other than those specified in clauses (1), (2), (3) and (4) of this Section 8.01), in each	
 
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 	case solely to the extent applicable to such Person, and such default continues unremedied for a period of 30 days after the earlier of (x) receipt of written notice thereof from the Administrative Agent to the Borrower and (y) the date on which an executive officer of the Borrower becomes aware of such default;	
 
(6)	(a) (i) any event or condition occurs (other than, with respect to Indebtedness under any Hedge Agreement, termination events or equivalent events pursuant to the terms of such Hedge Agreement that do not result from a default thereunder by a Loan Party or Restricted Subsidiary) that (A) results in any Material Indebtedness becoming due prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (ii) the Borrower or any Restricted Subsidiary fails to pay the principal of any Material Indebtedness at the stated final maturity thereof and (b) such event, condition or failure is unremedied and is not waived or cured by the holders of such Indebtedness prior to any acceleration of the Term Loans pursuant to this Section 8.01; provided that this clause (6) will not apply to any (A) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of all or a portion of the property or assets securing such Indebtedness or (B) any redemption, repurchase, conversion, exercise or settlement (or the occurrence of any event or satisfaction of any condition giving rise to or permitting any of the foregoing) with respect to any Convertible Indebtedness pursuant to its terms unless such redemption, repurchase, conversion or settlement (or occurrence, giving rise to, or permitting any of the foregoing) results from a default thereunder or an event of the type that constitutes an Event of Default thereunder; provided , further , that the failure to observe or perform a financial maintenance covenant under the ABL Credit Agreement (a “ Financial Covenant Default ”) shall not in and of itself constitute an Event of Default hereunder until the later of (i) 90 days following the date of such Financial Covenant Default and (ii) the date on which the lenders under the ABL Credit Agreement shall have accelerated payment of the ABL Obligations and terminated the commitments with respect thereto; provided , further , that, for the avoidance of doubt, prior to the time it becomes an Event of Default hereunder, any Financial Covenant Default may be waived, amended, terminated or otherwise modified from time to time in accordance with the ABL Credit Agreement;	
 
(7)	a Change in Control occurs;	
 
(8)	an involuntary proceeding is commenced or an involuntary petition is filed in a court of competent jurisdiction seeking:	
 
 	(a)	relief in respect of the Borrower or any of the Material Restricted Subsidiaries, or of a substantial part of the property or assets of the Borrower or any Material Restricted Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal, state or foreign bankruptcy, insolvency, receivership or similar law;	
 
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 	(b)	the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of the Material Restricted Subsidiaries or for a substantial part of the property or assets of the Borrower or any Restricted Subsidiary; or	
 
 	(c)	the winding up or liquidation of the Borrower or any Material Restricted Subsidiary (except, in the case of any Material Restricted Subsidiary, in a transaction permitted by Section 6.05) and such proceeding or petition continues undismissed for 60 days or an order or decree approving or ordering any of the foregoing is entered;	
 
(9)	the Borrower or any Material Restricted Subsidiary:	
 
 	(a)	voluntarily commences any proceeding or files any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal, state or foreign bankruptcy, insolvency, receivership or similar law;	
 
 	(b)	consents to the institution of, or fails to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (8) of this Section 8.01;	
 
 	(c)	applies for or consents to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of the Material Restricted Subsidiaries or for a substantial part of the property or assets of the Borrower or any Material Restricted Subsidiary;	
 
 	(d)	files an answer admitting the material allegations of a petition filed against it in any such proceeding;	
 
 	(e)	makes a general assignment for the benefit of creditors; or	
 
 	(f)	becomes unable or admits in writing its inability or fails generally to pay its debts as they become due;	
 
(10)	the Borrower or any Restricted Subsidiary fails to pay one or more final judgments for the payment of money aggregating in excess of the Threshold Amount (to the extent not covered by insurance or other indemnity obligation), which such judgment(s) are not satisfied, vacated, discharged, stayed, bonded pending appeal or effectively waived or stayed for a period of 60 consecutive days;	
 
(11)	an ERISA Event occurs with respect to any Plan or Multiemployer Plan, and such ERISA Event, together with all other such ERISA Events, if any, is reasonably expected to have a Material Adverse Effect; or	
 
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(12)	(a) any material provision of the Loan Documents, taken as a whole, at any time after their execution and delivery and prior the Payment In Full of the Obligations, for any reason other than as expressly permitted under a Loan Document (including as a result of a transaction permitted under Section 6.05), ceases to be, or is asserted in writing by the Borrower or any Restricted Subsidiary not to be, for any reason, a legal, valid and binding obligation of any party thereto, (b) any security interest purported to be created by any Security Document and to extend to assets that are not immaterial to the Borrower and the Restricted Subsidiaries, when taken as a whole, on a consolidated basis ceases to be, or is asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected security interest in the Collateral covered thereby, except to the extent that any such loss of validity or perfection results from (i) the limitations of foreign laws, rules and regulations or the application thereof, or (ii) the failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under a Security Document or to file Uniform Commercial Code continuation statements or take any other action and except to the extent that such loss is covered by a lender’s title insurance policy and the Collateral Agent is reasonably satisfied with the credit of such insurer or (c) the Guarantees pursuant to the Security Documents by any Material Restricted Subsidiary Guarantor of any of the Obligations cease to be in full force and effect (other than in accordance with the terms hereof or thereof, including the release of such Person as provided for under the Loan Documents and the Payment in Full of the Obligations) or are asserted in writing by the Borrower or any other Subsidiary Loan Party not to be in effect or not to be legal, valid and binding obligations, except in the cases of clauses (b) and (c), in connection with an Asset Sale permitted by this Agreement;	
then, (i) upon the occurrence of any such Event of Default (other than an Event of Default with respect to the Borrower described in clause (8) or (9) of this Section 8.01), and at any time thereafter during the continuance of such Event of Default, the Administrative Agent, at the request of the Required Lenders, will, by notice to the Borrower, take any or all of the following actions, at the same or different times: (A) declare the Term Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Term Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, will become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding; and (B) exercise all rights and remedies granted to it under any Loan Document and all of its rights under any other applicable law or in equity, and (ii) in any event with respect to the Borrower described in clause (8) or (9) of this Section 8.01, the principal of the Term Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, will automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.
 
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ARTICLE IX
The Agents
SECTION 9.01. Appointment .
 
(1)	Each Lender (in its capacities as a Lender and on behalf of itself and its Affiliates as potential counterparties to Hedge Agreements) hereby irrevocably designates and appoints the entity named as Administrative Agent in the heading of this Agreement and its permitted successors and assigns to serve as administrative agent under this Agreement and the other Loan Documents, as applicable, including as the Collateral Agent for such Lender and the other applicable Secured Parties under the applicable Security Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacities, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are delegated to the Administrative Agent under this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Security Document governed by the laws of such jurisdiction on such Lender’s behalf. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents.	
 
(2)	Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent; additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and transactions contemplated hereby. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. For the avoidance of doubt, no Borrower shall have liability for the actions of the Administrative Agent pursuant to the immediately preceding sentence.	
 
(3)	In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, (a) the Administrative Agent (irrespective of whether the principal of any Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have	
 
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 	made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of any or all of the Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Agents and any Subagents allowed in such judicial proceeding and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and (b) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under the Loan Documents. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.	
SECTION 9.02. Delegation of Duties . The Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof)) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of the agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent may also from time to time, when the Administrative Agent deems it to be necessary or desirable, appoint one or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a “ Subagent ”) with respect to all or any part of the Collateral; provided that no such Subagent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Administrative Agent. Should any instrument in writing from the Borrower or any other Loan Party be reasonably required by any Subagent so appointed by the Administrative Agent to more fully or certainly vest in and confirm to such Subagent such rights, powers, privileges and duties, the Borrower shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon reasonable written request by the Administrative Agent. If any Subagent, or successor thereto, shall die, become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Subagent, to the extent permitted by law, shall automatically vest in and be exercised by the Administrative Agent until the appointment of a new Subagent. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent, attorney-in-fact or Subagent that it selects in accordance with the foregoing provisions of this Section 9.02 in the absence of the Administrative Agent’s gross negligence or willful misconduct.
 
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SECTION 9.03. Exculpatory Provisions . None of the Administrative Agent, its Affiliates or any of their respective officers, directors, employees, agents or attorneys-in-fact shall be (1) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence or willful misconduct) or (2) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party party thereto to perform its obligations hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, and (b) the Administrative Agent shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into:
 
 	(i)	any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document;	
 
 	(ii)	the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith;	
 
 	(iii)	the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default;	
 
 	(iv)	the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents;	
 
 	(v)	the value or the sufficiency of any Collateral; or	
 
 	(vi)	the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.	
 
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SECTION 9.04. Reliance by Administrative Agent . The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) or conversation believed in good faith by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed in good faith by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to any Borrowing that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to such Borrowing. The Administrative Agent may consult with legal counsel (including counsel to the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all or other Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all or other Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Term Loans.
SECTION 9.05. Notice of Default . The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all or other Lenders); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.
SECTION 9.06. Non-Reliance on Agents and Other Lenders . Each Lender expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates have made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other
 
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condition and creditworthiness of the Loan Parties and their Affiliates and made its own decision to make its Term Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
SECTION 9.07. Indemnification . The Lenders agree to indemnify each Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), in the amount of its pro rata share (based on its aggregate outstanding Term Loans) (determined at the time such indemnity is sought), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Term Loans) be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the Administrative Agent’s gross negligence or willful misconduct. The failure of any Lender to reimburse the Administrative Agent promptly upon demand for its ratable share of any amount required to be paid by the Lenders to the Administrative Agent as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse the Administrative Agent for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse the Administrative Agent for such other Lender’s ratable share of such amount. The agreements in this Section 9.07 shall survive the payment of the Term Loans and all other amounts payable hereunder.
SECTION 9.08. Agent in Its Individual Capacity . Each Agent and its Affiliates may make loans to, accept deposits from, and generally engage in any kind of business with any Loan Party as though the Administrative Agent were not the Administrative Agent. With respect to its Term Loans made or renewed by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include each Agent in its individual capacity.
 
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SECTION 9.09. Successor Agent . The Administrative Agent may resign as Administrative Agent upon thirty days’ notice to the Lenders and the Borrower. If the Administrative Agent resigns as the Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless a Specified Event of Default shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the reference to the resigning Administrative Agent means such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Term Loans. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If no successor agent has accepted appointment as Administrative Agent by the date that is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation will nevertheless thereupon become effective, and the Required Lenders will thereafter perform all the duties of such Administrative Agent hereunder or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent, which shall (unless a Specified Event of Default shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed). After any retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 9.09 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.
SECTION 9.10. Arrangers . None of the Arrangers will have any duties, responsibilities or liabilities hereunder in their respective capacities as such.
SECTION 9.11. Collateral and Guaranty Matters .
 
(1)	Each of the Lenders (including in its capacity as a potential Qualified Counterparty) and the other Secured Parties irrevocably appoints and authorizes the Administrative Agent and the Collateral Agent to be the agent for and representative of the Lenders with respect to the Collateral Agreement, the Collateral and the Security Documents, together with such powers and discretion as are reasonably incidental thereto; provided that neither the Administrative Agent nor the Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Obligations with respect to any Specified Hedge Agreement.	
 
(2)	Each Agent, each Lender and each other Secured Party agrees that:	
 
 	(a)	Liens on any property granted to or held by an Agent in favor of any Secured Party under any Loan Document will be automatically released,	
 
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 	(i)	upon Payment in Full and the termination of the Commitments;	
 
 	(ii)	at the time the property subject to such Lien is Disposed (or to be Disposed) as part of, or in connection with, any transfer permitted under the Loan Documents to any Person that is not (and is not required to be) a Loan Party,	
 
 	(iii)	if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under the Collateral Agreement pursuant to clause (c) below;	
 
 	(iv)	subject to Section 10.08, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders; or	
 
 	(v)	upon such property becoming an Excluded Asset or Excluded Equity Interest.	
 
 	(b)	it will release or subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(3);	
 
 	(c)	if any Subsidiary Loan Party ceases to be a Subsidiary in a transaction permitted hereunder, is not a Material Subsidiary or as a result of a transaction permitted hereunder becomes an Excluded Subsidiary (in each case, as certified in writing by a Responsible Officer), and the Borrower notifies the Administrative Agent in writing that it wishes such Guarantor to be released from its obligations under the Collateral Agreement and, upon request of the Administrative Agent or the Collateral Agent, as applicable, provides the Administrative Agent and the Collateral Agent certifications that such Subsidiary Loan Party is not a Material Subsidiary or has become an Excluded Subsidiary (as applicable), it will release (or evidence the release) of (i) such Subsidiary Loan Party from its obligations under the Collateral Agreement and the other Loan Documents and (ii) any Liens granted by such Subsidiary or Liens on the Equity Interests of such Subsidiary; and	
 
 	(d)	the Administrative Agent and the Collateral Agent will exclusively exercise the rights and remedies under the Loan Documents, and neither the Lenders nor any other Secured Party will exercise such rights and remedies (other than the Required Lenders through the Administrative Agent); provided that the foregoing shall not preclude any Lender from exercising any right of set-off in accordance with the provisions of Section 10.06 or enforcing compliance with the provisions set forth in clauses (i) through (vi) of Section 10.08(2) or from exercising rights and remedies (other than the enforcement of Collateral) with respect to any payment default after the occurrence of the Maturity Date with respect to any Term Loans made by it or filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law.	
 
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Each Agent agrees that it will take such action and execute any such documents as may be reasonably requested by the Borrower in connection with any of the foregoing releases or any such subordination. Each of the Collateral Agent and the Administrative Agent shall be entitled to rely exclusively on an officers certificate of the Borrower confirming that such release or subordination (as applicable) is permitted hereunder. Each Lender and each Secured Party irrevocably authorizes each Administrative Agent to take such action and execute any such document and consents to such reliance. No Agent will be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or contained in any certificate prepared or delivered by the Borrower or any Loan Party in connection with the Collateral or compliance with the terms set forth above or in a Loan Document, nor shall any Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under, the Loan Documents. Notwithstanding anything to the contrary set forth herein, any execution and delivery of documents by any Agent pursuant to this Section 9.11 shall be without recourse to or warranty by such Agent and at the Borrower’s expense; and such documents shall be reasonably acceptable to such Agent and the Borrower.
 
(3)	Anything contained in any of the Loan Documents to the contrary notwithstanding, each Agent, each Lender and each Secured Party hereby agree that:	
 
 	(a)	no Lender or other Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Collateral Agreement or any other Loan Document, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Loan Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties in accordance with the terms hereof and thereof, and all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof;	
 
 	(b)	in the event of a foreclosure or similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the U.S. Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the U.S. Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Collateral Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities), shall be entitled, upon instructions from the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Collateral Agent at such sale or other disposition;	
 
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 	(c)	no provision of any Loan Documents shall require the creation, perfection or maintenance of pledges of or security interests in, or the obtaining of title insurance or abstracts with respect to, any Excluded Assets, any Excluded Equity Interests and any other particular assets, if and for so long as, in the reasonable judgment of the Collateral Agent, the cost of creating, perfecting or maintaining such pledges or security interests in such other particular assets or obtaining title insurance or abstracts in respect of such other particular assets is excessive in view of the fair market value of such assets or the practical benefit to the Lenders afforded thereby as reasonably determined by a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the ABL Priority Collateral, the Borrower and the ABL Agent);	
 
 	(d)	the Collateral Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of title insurance and surveys with respect to particular assets (including extensions beyond the Closing Date for the creation or perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that creation or perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents;	
 
 	(e)	no actions required by the Laws of any non-U.S. jurisdiction shall be required in order to create any security interests in any assets or to perfect such security interests (including any intellectual property registered in any non-U.S. jurisdiction) (it being understood that there shall be no security agreements or pledge agreements governed under the Laws of any non-U.S. jurisdiction);	
 
 	(f)	no control agreements shall be required with respect to assets requiring perfection through control agreements or perfection by “control” (as defined in the Uniform Commercial Code); and	
 
 	(g)	the provisions of Section 5.10(4) of this Agreement and Sections 4.01(4) and 4.01(6) of the Collateral Agreement shall supersede any other provision of a Loan Document to the contrary.	
SECTION 9.12. Certain ERISA Matters .
 
(1)	Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, solely for the benefit of, the Administrative Agent, the Arrangers and the Bookrunners and their respective Affiliates (the “Relevant Parties”), and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:	
 
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(a) such Lender is not using “plan assets” of one or more Benefit Plans in connection with the Loans, the Letter of Credit or the Commitments;
(b) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable, and the conditions of such exemptions are satisfied will continue to be satisfied, with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letter of Credit, the Commitments and this Agreement;
(c) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letter of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letter of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied, and the conditions of such exemption are satisfied and will continue to be satisfied, with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letter of Credit, the Commitments and this Agreement; or
(d) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
 
(2)	In addition, (I) unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (II) if such sub-clause (i) is not true with respect to a Lender and such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and	
(y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Relevant Parties, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that:
(a) none of the Relevant Parties is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, or any of the other Loan Documents);
 
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(b) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21, as amended from time to time) and is a bank, an insurance carrier, a registered investment adviser, a registered broker-dealer or other person that has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), as amended from time to time;
(c) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letter of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies;
(d) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letter of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder; and
(e) no fee or other compensation is being paid directly to any Relevant Party for investment advice (as opposed to other services) in connection with the Loans, the Letter of Credit, the Commitments or this Agreement.
 
(3)	Each of the Administrative Agent, the Lead Arrangers and the Bookrunners hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letter of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letter of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letter of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.	
For purposes of this Section 9.12, the following definitions apply to each of the capitalized terms below:
“ Benefit Plan ” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, to which Section 4975 of the Code applies or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
 
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“ PTE ” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices; Communications .
 
(1)	Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 10.01(2)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or e-mail, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, in each case, as follows:	
 
 	(a)	if to any Loan Party or any Agent, to the address, facsimile number, e-mail address or telephone number specified for such Person on Schedule 10.01; and	
 
 	(b)	if to any Lender, to the address, facsimile number, e-mail address or telephone number specified in its Administrative Questionnaire.	
 
(2)	Notices and other communications to the Lenders may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Notices sent by e-mail shall be deemed to have been given when sent and confirmation of transmission received (except that, if not sent during normal business hours for the recipient, such e-mail shall be deemed to have been given at the opening of business on the next Business Day for the recipient).	
 
(3)	Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received. Notices sent by facsimile shall be deemed to have been given when sent and confirmation of transmission received (except that, if not sent during normal business hours for the recipient, such notice shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in Section 10.01(2) shall be effective as provided in such Section 10.01(2).	
 
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(4)	Any party hereto may change its address, facsimile number or e-mail address for notices and other communications hereunder by notice to the other parties hereto.	
 
(5)	Documents required to be delivered hereunder may be delivered electronically (including as set forth in Section 10.17) and if so delivered, shall be deemed to have been delivered on the date (a) on which the Borrower posts such documents or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.01 or (b) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that (i) the Borrower shall notify the Administrative Agent (by facsimile or e-mail) of the posting of any such documents and, upon the Administrative Agent’s written request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents and (ii) upon reasonable written request by the Administrative Agent, the Borrower shall also provide a hard copy to the Administrative Agent of any such document; provided , further , that any documents posted for which a link is provided after normal business hours for the recipient shall be deemed to have been given at the opening of business on the next Business Day. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Loan Parties with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.	
SECTION 10.02. Survival of Agreement . All covenants, agreements, representations and warranties made by the Loan Parties herein, in the other Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document will be considered to have been relied upon by the Lenders and shall survive the making by the Lenders of the Term Loans and the execution and delivery of the Loan Documents, regardless of any investigation made by such Persons or on their behalf, and shall continue in full force and effect until the principal of or any accrued interest on any Term Loan or any Fee or any other amount payable under this Agreement or any other Loan Document is Paid in Full and the Commitments have been terminated. Without prejudice to the survival of any other agreements contained herein, indemnification and reimbursement obligations contained herein (including pursuant to Sections 2.12, 2.14 and 10.05) shall survive the payment in full of the principal and interest hereunder and the termination of the Commitments or this Agreement.
SECTION 10.03. Binding Effect . This Agreement shall become effective when it has been executed by the Borrower and the Administrative Agent and when the Administrative Agent has received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the Borrower, the other Loan Parties, each Agent, each Lender and their respective permitted successors and assigns.
 
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SECTION 10.04. Successors and Assigns .
 
(1)	The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that	
(a) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void), except to any Successor Borrower pursuant to Section 6.05, and (b) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 10.04. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto and their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (3) of this Section 10.04) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement or the other Loan Documents.
 
(2)	(a) Subject to the conditions set forth in paragraph (2)(b) of this Section 10.04 (and, with respect to an assignment to the Borrower, any Subsidiary or any of their respective Affiliates, subject to the limitations set forth in Section 10.04(10) or 10.04(14), as applicable), any Lender may assign to one or more assignees (other than a natural person, a Disqualified Institution or a Defaulting Lender) (each, an “ Assignee ”) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Term Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, delayed or conditioned) of:	
 
 	(i)	the Borrower; provided that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if a Specified Event of Default with respect to the Borrower has occurred and is continuing; provided , further , that such consent shall be deemed to have been given if the Borrower has not responded within ten (10) Business Days after delivery of a written request therefor by the Administrative Agent; and	
 
 	(ii)	the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund;	
 
 	(b)	Assignments shall be subject to the following additional conditions:	
 
 	(i)	except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Term Loans, the amount of the Term Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $500,000, unless each of the Borrower and the Administrative Agent otherwise consent; provided that (1) no such consent of the Borrower shall be	
 
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 	required if a Specified Event of Default with respect to the Borrower has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds (with simultaneous assignments to or by two or more Approved Funds being treated as one assignment for purposes of meeting the minimum assignment amount requirement), if any;	
 
 	(ii)	the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance (or Non-Debt Fund Affiliate Assignment and Acceptance, as applicable) via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent);	
 
 	(iii)	the Assignee, if it shall not already be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and any tax forms required to be delivered pursuant to Section 2.14; and	
 
 	(iv)	the Assignor shall deliver to the Administrative Agent any Note issued to it with respect to the assigned Term Loan.	
 
 	(c)	Subject to acceptance and recording thereof pursuant to paragraph (2)(e) of this Section 10.04, from and after the effective date specified in each Assignment and Acceptance (or Non-Debt Fund Affiliate Assignment and Acceptance, as applicable), the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such Assignment and Acceptance). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (4) of this Section 10.04 to the extent such participation would be permitted by such Section 10.04(4).	
 
 	(d)	The Administrative Agent, acting for this purpose as the Administrative Agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the principal amount (and stated interest with respect thereto) of the Term Loans owing to, each Lender pursuant to the terms	
 
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 	hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender (but solely, in the case of a Lender, entries with respect to such Lender’s Term Loans) at any reasonable time and from time to time upon reasonable prior notice. This clause (d) and Section 2.05 shall be construed so that all Term Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related Treasury regulations (or any other relevant or successor provisions of the Code or of such Treasury regulations).	
 
 	(e)	Upon its receipt of a duly completed Assignment and Acceptance (or Non-Debt Fund Affiliate Assignment and Acceptance, as applicable) executed by an assigning Lender and an Assignee, the Assignee’s completed Administrative Questionnaire (unless the Assignee shall already be a Lender hereunder), all applicable tax forms, any Note outstanding with respect to the assigned Term Loan (or other documentation (including an affidavit of loss and indemnitee agreement) reasonably acceptable to the Borrower in lieu thereof), the processing and recordation fee referred to in paragraph (2)(b)(ii) of this Section 10.04 and any written consent to such assignment required by paragraph (2) of this Section 10.04, the Administrative Agent promptly shall accept such Assignment and Acceptance (or Non-Debt Fund Affiliate Assignment and Acceptance, as applicable) and record the information contained therein in the Register. No assignment, whether or not evidenced by a promissory note, shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph (2)(e).	
 
(3)	By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows:	
 
 	(a)	such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim;	
 
 	(b)	except as set forth in clause (a) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Restricted Subsidiary or the performance or observance by the Borrower or any Restricted Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto;	
 
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 	(c)	the Assignee represents and warrants that it is legally authorized to enter into such Assignment and Acceptance;	
 
 	(d)	the Assignee confirms that it has received a copy of this Agreement, together with copies of the most recent Required Financial Statements delivered pursuant to Section 5.04, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance;	
 
 	(e)	the Assignee will independently and without reliance upon the Administrative Agent or the Collateral Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement;	
 
 	(f)	the Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms of this Agreement, together with such powers as are reasonably incidental thereto; and	
 
 	(g)	the Assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.	
 
(4)	(a) Any Lender may, without the consent of the Administrative Agent or, subject to Section 10.04(8), the Borrower, sell participations to one or more banks or other entities (other than any Disqualified Institution) (a “ Participant ”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of the Term Loans owing to it); provided that	
 
 	(i)	such Lender’s obligations under this Agreement shall remain unchanged;	
 
 	(ii)	such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and	
 
 	(iii)	the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.	
Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents; provided that (A) such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to Section 10.04(1)(a) or clauses (i), (ii), (iii), (iv), (v) or (vi) of the first proviso to Section 10.08(2) and (2) directly affects such Participant and (B) no other agreement with
 
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respect to amendment, modification or waiver may exist between such Lender and such Participant. Subject to clause (4)(b) of this Section 10.04, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 (in each case subject to the requirements thereof and the delivery of any documentation required thereunder) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (2) of this Section 10.04. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.06 as though it were a Lender; provided that such Participant shall be subject to Section 2.15(3) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Term Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Each Lender shall indemnify the Loan Parties for any Taxes (including any additions to Tax) attributable to or resulting from such Lender’s failure to comply with the provisions of this Section 10.04(4)(a) relating to the maintenance of a Participant Register.
 
 	(b)	A Participant shall not be entitled to receive any greater payment under Section 2.12, 2.13 or 2.14 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. A Participant shall not be entitled to the benefits of Section 2.14 to the extent such Participant fails to comply with Section 2.14(5) as though it were a Lender.	
 
(5)	Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.	
 
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(6)	The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (5) of this Section 10.04; provided that such Lender will have delivered for exchange any Notes previously issued with respect to the applicable Term Loans (or other documentation (including an affidavit of loss and indemnitee agreement) reasonably acceptable to the Borrower in lieu thereof).	
 
(7)	If the Borrower wishes to replace the Term Loans with ones having different terms, it shall have the option, with the consent of the Administrative Agent and subject to at least three Business Days’ advance notice to the Lenders, instead of prepaying the Term Loans to be replaced, to (a) require the Lenders to assign such Term Loans to the Administrative Agent or its designee(s) and (b) amend the terms thereof in accordance with Section 10.08 (with such replacement, if applicable, being deemed to have been made pursuant to Section 10.08(5)). Pursuant to any such assignment, all Term Loans to be replaced shall be purchased at par (allocated among the Lenders in the same manner as would be required if such Term Loans were being optionally prepaid), accompanied by payment of any accrued interest and fees thereon and any amounts owing pursuant to Section 10.05(2). By receiving such purchase price, the Lenders shall automatically be deemed to have assigned the Term Loans pursuant to the terms of the form of Assignment and Acceptance attached hereto as Exhibit A (or Non-Debt Fund Affiliate Assignment and Acceptance, as applicable), and accordingly no other action by such Lenders shall be required in connection therewith. The provisions of this paragraph (7) are intended to facilitate the maintenance of the perfection and priority of existing security interests in the Collateral during any such replacement.	
 
(8)	Notwithstanding the foregoing, no assignment may be made or participation sold to a Disqualified Institution without the prior written consent of the Borrower; provided that, in connection with a participation, the Lenders shall have received a list of the Disqualified Institutions prior to the execution of such participation right. To the extent that any assignment is purported to be made or participation is purported to be sold to a Disqualified Institution (notwithstanding this clause (8) or otherwise), such Disqualified Institution shall be required immediately (and in any event within five (5) Business Days) to assign all Loans and Commitments then owned by such Disqualified Institution to another Lender (other than a Defaulting Lender) or another Assignee in accordance with this Section 10.04 or unwind such participation, as applicable (and the Borrower shall be entitled to seek specific performance in any applicable court of law or equity to enforce this sentence).	
 
(9)	Notwithstanding anything to the contrary contained herein, no Non-Debt Fund Affiliate shall have any right to:	
 
 	(a)	attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present;	
 
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 	(b)	receive the advice of counsel to the Administrative Agent or the Lenders, nor may any Non-Debt Fund Affiliate challenge the attorney-client privilege between the Administrative Agent and counsel to the Administrative Agent or between the Lenders and counsel to the Lenders; or	
 
 	(c)	receive any information or material prepared by the Administrative Agent or any Lender or any other Person or any communication by or among Administrative Agent and one or more Lenders, except (i) to the extent such information or materials have been made available to the Borrower or its representatives or (ii) notices of prepayments and other administrative notices in respect of its Term Loans required to be delivered to Lenders pursuant to this Agreement.	
 
(10)	Notwithstanding anything to the contrary contained herein, any Lender may assign all or any portion of its Term Loans hereunder to any Person who is or, after giving effect to such assignment, would be an Affiliated Lender (including, for the avoidance of doubt, any Debt Fund Affiliate); provided that:	
 
 	(a)	such assignment shall be made pursuant to (i) an open market purchase (including, for the avoidance of doubt, any purchase made during the initial syndication of the Term Loans) on a non- pro rata basis or (ii) a Dutch auction open to all Lenders of the applicable Class in accordance with the Dutch Auction Procedures;	
 
 	(b)	in the case of an assignment to a Non-Debt Fund Affiliate, the assigning Lender and such Non-Debt Fund Affiliate purchasing such Lender’s Term Loans shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit E (a “ Non-Debt Fund Affiliate Assignment and Acceptance ”) in lieu of an Assignment and Acceptance;	
 
 	(c)	each Lender (other than any Affiliated Lender) that (i) sells any Term Loans to an Affiliated Lender (other than a Debt Fund Affiliate) or (B) buys any Term Loan from any Affiliated Lender (other than a Debt Fund Affiliate) hereunder shall deliver to the Administrative Agent and the Borrower a Big Boy Letter;	
 
 	(d)	in the case of an assignment to a Non-Debt Fund Affiliate, at the time of such assignment and after giving effect to such assignment, Non-Debt Fund Affiliates shall not, in the aggregate, hold Term Loans with an aggregate principal amount in excess of 25.0% of the principal amount of all Term Loans of any Class then outstanding;	
 
 	(e)	no proceeds from revolving loans under the ABL Credit Agreement shall be used to fund any such purchases; and	
 
(11)	To the extent not previously disclosed to the Administrative Agent, the Borrower shall, upon reasonable request of the Administrative Agent (but not more frequently than once per calendar quarter), report to the Administrative Agent the amount and Class of Term Loans held by Non-Debt Fund Affiliates and the identity of such holders. Notwithstanding the foregoing, any Affiliated Lender shall be permitted to contribute any Term Loan so assigned to such Affiliated Lender pursuant to this Section 10.04(11) to the Borrower or any of the Restricted Subsidiaries for purposes of cancellation, which	
 
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contribution may be made, subject to Section 6.07, in exchange for Equity Interests (other than Disqualified Stock) of any Parent Entity or Indebtedness (including Disqualified Stock) of the Borrower on a dollar-for-dollar basis to the extent such Indebtedness is permitted to be incurred pursuant to Section 6.01 at such time; provided that any Term Loans so contributed shall be automatically and permanently canceled upon the effectiveness of such contribution and will thereafter no longer be outstanding for any purpose hereunder.
 
(12)	Notwithstanding anything in Section 10.04 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have:	
 
 	(a)	consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom;	
 
 	(b)	otherwise acted on any matter related to any Loan Document; or	
 
 	(c)	directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document	
in each case, that does not require the consent of each Lender or each affected Lender or does not adversely affect any such Non-Debt Fund Affiliate in its capacity as such in any material respect as compared to other Lenders holding similar obligations (collectively, “ Required Lender Consent Items ”):
 
 	(i)	a Non-Debt Fund Affiliate shall be deemed to have voted its interest as a Lender in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Non-Debt Fund Affiliates; and	
 
 	(ii)	Term Loans held by Debt Fund Affiliates may not account for more than 49.9% of the Term Loans of consenting Lenders included in determining whether the Required Lenders have consented to any action pursuant to Section 10.04.	
 
(13)	Additionally, the Loan Parties and each Non-Debt Fund Affiliate hereby agree that if a case under Title 11 of the United States Code is commenced against any Loan Party, such Loan Party shall seek (and each Non-Debt Fund Affiliate shall consent) to provide that the vote of any Non-Debt Fund Affiliate (in its capacity as a Lender) with respect to any plan of reorganization of such Loan Party shall not be counted except that such Non-Debt Fund Affiliate’s vote (in its capacity as a Lender) may be counted to the extent any such plan of reorganization proposes to treat the Obligations or claims held by such Non-Debt Fund Affiliate in a manner that is less favorable to such Non-Debt Fund Affiliate than the proposed treatment of the Term Loans or claims held by Lenders that are not Affiliates of the Borrower.	
 
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(14)	Notwithstanding anything to the contrary contained in this Agreement, so long as no Specified Event of Default has occurred and is continuing or would result therefrom, any Lender may assign all or a portion of its Term Loans to any Purchasing Borrower Party; provided that:	
 
 	(a)	such assignment shall be made pursuant to (i) an open market purchase (including, for the avoidance of doubt, any purchase made during the initial syndication of the Term Loans) on a non- pro rata basis or (ii) a Dutch auction open to all Lenders of the applicable Class in accordance with the Dutch Auction Procedures;	
 
 	(b)	any Term Loans assigned to any Purchasing Borrower Party shall be automatically and permanently cancelled upon the effectiveness of such assignment and will thereafter no longer be outstanding for any purpose hereunder; and	
 
 	(c)	the aggregate outstanding principal amount of the Term Loans of the applicable Class shall be deemed reduced by the full par value of the aggregate principal amount of the Term Loans purchased pursuant to this Section 10.04(14) and each principal repayment installment with respect to the Term Loans of such Class shall be reduced pro rata by the aggregate principal amount of Term Loans purchased.	
SECTION 10.05. Expenses; Indemnity .
 
(1)	If the Transactions are consummated and the Closing Date occurs, the Borrower agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent, the Arrangers (and, in the case of enforcement of this Agreement, each Lender) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement and the other Loan Documents or in connection with the administration of this Agreement or the other Loan Documents and any amendments, modifications or waivers of the provisions hereof or thereof, including the reasonable, documented and invoiced fees and out-of-pocket charges and disbursements of a single counsel for the Administrative Agent and the Arrangers (which shall be Simpson Thacher and Bartlett LLP), one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for each such group of affected Persons similarly situated taken as a whole.	
 
(2)	The Borrower agrees to indemnify the Administrative Agent, each Arranger, each Lender, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling Persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such Person being called an “ Indemnitee ”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced out-of-pocket fees and expenses (limited to reasonable and documented legal fees of a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary,	
 
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 	one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the applicable Indemnitees affected by such conflict informs the Borrower of such conflict, and has retained, or thereafter retains, its own counsel of an additional counsel for each group of affected Indemnitees similarly situated, taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of:	
 
 	(a)	the execution, delivery or administration of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby;	
 
 	(b)	the use of the proceeds of the Term Loans; or	
 
 	(c)	any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based in contract, tort or any other theory, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by the Borrower or any of their Restricted Subsidiaries or Affiliates or creditors (and including any investigation, preparation for, or defense of any pending or threatened claim, litigation, investigation or proceeding);	
provided that no Indemnitee will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it: (i) has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (B) a material breach of the obligations of such Indemnitee under the Loan Documents or (ii) relates to any proceeding between or among Indemnitees other than (A) claims against Administrative Agent or Arrangers or their respective Affiliates, in each case, in their capacity or in fulfilling their role as the agent or arranger or any other similar role under a Term Facility (excluding their role as a Lender) to the extent such Persons are otherwise entitled to receive indemnification under this Section 10.05(2) or (B) claims arising out of any act or omission on the part of the Borrower or their Restricted Subsidiaries.
 
(3)	Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related out-of-pocket expenses, including reasonable, documented and invoiced fees, and out-of-pocket charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest where the applicable Indemnitees affected by such conflict informs the Borrower of such conflict, an additional counsel for each group of affected Indemnitees similarly situated, taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result any claim related	
 
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 	in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any Restricted Subsidiaries would reasonably be expected to be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.	
 
(4)	Any indemnification or payments required by the Loan Parties under this Section 10.05 shall not apply with respect to (a) Taxes other than (x) any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim and (y) expenses related to the enforcement of Section 2.14 or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Sections 2.12 or 2.14.	
 
(5)	To the fullest extent permitted by applicable law, no Indemnitee or Loan Party shall assert, and each hereby waives, any claim against any Indemnitee or Loan Party, as applicable, nor will any Indemnitee, Loan Party or any of their respective Affiliates be liable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Term Loan or the use of the proceeds thereof. No Indemnitee, Loan Party or any of their respective Affiliates shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby; provided that, nothing in this clause (5) shall relieve any Loan Party of any obligation it may otherwise have hereunder to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.	
 
(6)	The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.	
SECTION 10.06. Right of Set-off . If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other Indebtedness at any time owing by such Lender to or for the credit or the account of the Borrower or any Subsidiary Loan Party against any of and all the Obligations of the Borrower or any Subsidiary Loan Party now or hereafter existing under this Agreement or any other Loan Document held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or
 
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such other Loan Document and although the Obligations may be unmatured. The rights of each Lender under this Section 10.06 are in addition to other rights and remedies (including other rights of set-off) that such Lender may be exercised only at the direction of the Administrative Agent or the Required Lenders.
SECTION 10.07. Applicable Law . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (EXCEPT FOR CONFLICTS OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).
SECTION 10.08. Waivers; Amendment .
 
(1)	No failure or delay of the Administrative Agent or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of each Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (2) of this Section 10.08, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.	
 
(2)	Subject to Section 2.11(2), 10.08(7) and 10.08(11) below, except as otherwise set forth in this Agreement (or the applicable Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except	
 
 	(a)	as provided in Sections 2.18, 2.19, 2.20 and 10.20;	
 
 	(b)	in the case of this Agreement, pursuant to an agreement or agreements in writing signed by the Borrower and the Required Lenders; and	
 
 	(c)	in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto, the Administrative Agent (with the consent of the Required Lenders) and the Borrower;	
 
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provided , that except as expressly provided in Section 2.11(2), 2.18, 2.19, 2.20 and 10.20, no such agreement shall:
 
 	(i)	decrease, forgive, waive or excuse the principal amount of, or any interest on, or extend the final maturity of, or decrease the rate of interest on, any Term Loan, without the prior written consent of each Lender directly and adversely affected thereby (it being understood that waivers or other modifications of any conditions precedent, covenants, mandatory prepayments, mandatory commitment reductions, default interest, Defaults or Events of Default shall not constitute a decrease, forgiveness, waiver or excuse of the principal amount of, or any interest on, or an extension of the final maturity of, or a decrease the rate of interest on, any Term Loan);	
 
 	(ii)	increase or extend the Commitment of any Lender or decrease, forgive, waive or excuse the fees of any Agent without the prior written consent of such Lender or Agent (it being understood that waivers or other modifications of any conditions precedent, covenants, mandatory prepayments, mandatory commitment reductions, default interest, Defaults or Events of Default shall not constitute an increase or extension of the Commitments of any Lender or a decrease, forgiveness, waiver or excuse of any Agent fees);	
 
 	(iii)	extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of principal or interest on any Term Loan or any Fee is due, without the prior written consent of each Lender directly and adversely affected thereby (it being understood that waivers or other modifications of any conditions precedent, covenants, mandatory prepayments, mandatory commitment reductions, default interest, Defaults or Events of Default shall not constitute an extension or waiver of any Term Loan Installment Date, a reduction of any amount due on a Term Loan Installment Date or an extension of any date on which payment of principal or interest on any Term Loan or any Fee is due);	
 
 	(iv)	amend the provisions of Section 2.15(2) or (3) of this Agreement, Section 5.02 of the Collateral Agreement or any analogous provision of any other Loan Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender directly and adversely affected thereby;	
 
 	(v)	amend or modify the provisions of this Section 10.08 or the definition of the term “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Term Loans are included on the Closing Date); or	
 
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 	(vi)	subordinate or release the liens on all or substantially all of the Collateral or all or substantially all of the aggregate value of the Guarantees (other than in connection with any transfer or other release of Collateral or of the relevant Guarantor permitted by the Loan Documents), without the prior written consent of each Lender;	
provided , further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 10.08 and any consent by any Lender pursuant to this Section 10.08 shall bind any assignee of such Lender.
 
(3)	Without the consent of any Lender, the Loan Parties and the Administrative Agent may enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, in each case to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.	
 
(4)	No Lender consent is required to effect any amendment or supplement to any Intercreditor Agreement that is:	
 
 	(a)	for the purpose of adding the holders of Pari Passu Lien Debt, Junior Lien Debt, Incremental Equivalent Term Debt, Permitted Pari Passu Secured Refinancing Debt or Permitted Junior Secured Refinancing Debt (or a Debt Representative with respect thereto) as parties thereto, as expressly contemplated by the terms of such Intercreditor Agreement (it being understood that any such amendment or supplement may make such other changes to the applicable Intercreditor Agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing), or	
 
 	(b)	expressly contemplated by any Intercreditor Agreement.	
 
(5)	This Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.	
 
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(6)	Notwithstanding anything in this Section 10.08 to the contrary, the Borrower may enter into Incremental Facility Amendments in accordance with Section 2.18, Refinancing Amendments in accordance with Section 2.19, and Extension Amendments in accordance with Section 2.20, and such Incremental Facility Amendments, Refinancing Amendments and Extension Amendments shall be effective to amend the terms of this Agreement and the other applicable Loan Documents, in each case, without any further action or consent of any other party to any Loan Document.	
 
(7)	Notwithstanding anything in this Section 10.08 to the contrary, this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the lenders providing the Replacement Loans (as defined below) to permit the refinancing, replacement or exchange of all outstanding Term Loans of any Class (“ Replaced Loans ”) with replacement term loans (“ Replacement Loans ”) hereunder; provided that,	
 
 	(a)	the aggregate principal amount of such Replacement Loans shall not exceed the aggregate principal amount of such Replaced Loans ( plus (i) the amount of all unpaid, accrued, or capitalized interest, penalties, premiums (including tender premiums), and other amounts payable with respect to any such Replaced Loans and (ii) underwriting discounts, fees, commissions, costs, expenses and other amounts payable with respect to such Replacement Loans);	
 
 	(b)	the All-in Yield with respect to such Replacement Loans (or similar interest rate spread applicable to such Replacement Loans) should not be higher than the All-in Yield for such Replaced Loans;	
 
 	(c)	the Weighted Average Life to Maturity of such Indebtedness is equal to or longer than the remaining Weighted Average Life to Maturity of the Replaced Loans at the time of such refinancing (except by virtue of amortization or prepayment of the Replaced Loans prior to the time of such incurrence); and	
 
 	(d)	all other terms of such Replacement Loans are substantially identical to, or, taken as a whole, not materially more favorable to the lenders or holders providing such Indebtedness than, those applicable to such Replaced Loans (except for covenants applicable only to periods after the Latest Maturity Date of the Replaced Loans at the time of incurrence) as determined in good faith by a Responsible Officer of the Borrower ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Replacement Loans, together with a reasonably detailed description of the material covenants and events of default of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (d) shall be conclusive evidence that such terms and conditions satisfy this clause (d) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided that this clause (d) will not apply to (x) terms addressed in the preceding clauses, (y)	
 
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 	redemption, prepayment or other premiums or (z) optional prepayment or redemption terms; provided, further, that the Borrower will promptly deliver to the Administrative Agent final copies of the definitive credit documentation relating to such Indebtedness (unless the Borrower is bound by a confidentiality obligation with respect thereto, in which case the Borrower will deliver a reasonably detailed description of the material terms and conditions of such Indebtedness in lieu thereof).	
 
(8)	Notwithstanding anything to the contrary herein or any other Loan Document other than as set forth in the definition of “Required Lenders”, no Defaulting Lender or Disqualified Institution will have any right to approve or disapprove any amendment, waiver or consent hereunder and any amendment, waiver or consent which by its terms requires the consent of all Lenders, the Required Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than any Defaulting Lenders or Disqualified Institutions.	
 
(9)	Notwithstanding anything in this Agreement or any other Loan Document to the contrary, any amendment or waiver that by its terms affects the rights or duties of Lenders holding Term Loans or Commitments of a particular Class (but not the Lenders holding Term Loans or Commitments of any other Class) will require only the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto if such Class of Lenders were the only Class of Lenders.	
 
(10)	Notwithstanding anything in this Agreement or any other Loan Document to the contrary, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrower and the Administrative Agent.	
 
(11)	Notwithstanding anything in this Agreement or any other Loan Document to the contrary, the Administrative Agent, with the consent of the Borrower, may amend, modify or supplement any Loan Document without the consent of any Lender or the Required Lenders in order to correct, amend or cure any ambiguity, inconsistency or defect or correct any typographical error or other manifest error in any Loan Document, and such amendment, modification or supplement shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof.	
 
(12)	In addition, notwithstanding anything to the contrary herein or any other Loan Document, the Collateral Agreement, each of the other Security Documents and any related documents may be in a form reasonably determined by the Administrative Agent and the Borrower and may be, together with this Agreement, amended and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment or waiver is delivered in order (a) to comply with local Law or advice of local counsel, (b) to cure ambiguities or defects (as reasonably determined by the Administrative Agent and the Borrower) or (c) to cause such Security Document or other document to be consistent with this Agreement and the other Loan Documents.	
 
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SECTION 10.09. Interest Rate Limitation . Notwithstanding anything herein to the contrary, if at any time the applicable interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the “ Charges ”), as provided for herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any Lender, shall exceed the maximum lawful rate (the “ Maximum Rate ”) that may be contracted for, charged, taken, received or reserved by such Lender in accordance with applicable law, the rate of interest payable hereunder, together with all Charges payable to such Lender, shall be limited to the Maximum Rate; provided that such excess amount shall be paid to such Lender on subsequent payment dates to the extent not exceeding the legal limitation. In no event will the total interest received by any Lender exceed the amount which it could lawfully have received and any such excess amount received by any Lender will be applied to reduce the principal balance of the Term Loans or to other amounts (other than interest) payable hereunder to such Lender, and if no such principal or other amounts are then outstanding, such excess or part thereof remaining will be paid to the Borrower.
SECTION 10.10. Entire Agreement . This Agreement, the other Loan Documents and the agreements regarding certain Fees referred to herein constitute the entire contract between the parties relative to the subject matter hereof. Any previous agreement among or representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents. Notwithstanding the foregoing, the Fee Letters shall survive the execution and delivery of this Agreement and remain in full force and effect. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any party other than the parties hereto and thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents.
SECTION 10.11. WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11.
SECTION 10.12. Severability . In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
 
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SECTION 10.13. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract, and shall become effective as provided in Section 10.03. Delivery of an executed counterpart to this Agreement by facsimile or other electronic transmission (e.g., “ PDF ” or “ TIFF ”) shall be as effective as delivery of a manually signed original.
SECTION 10.14. Headings . Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process .
 
(1)	Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan) and any appellate court from any thereof (collectively, “ New York Courts ”), in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents or the transactions relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such Federal (to the extent permitted by law) or New York State court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any other Loan Document shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction, except that each of the Loan Parties agrees that it will not bring any such action or proceeding in any court other than New York Courts (it being acknowledged and agreed by the parties hereto that any other forum would be inconvenient and inappropriate in view of the fact that more of the Lenders who would be affected by any such action or proceeding have contacts with the State of New York than any other jurisdiction).	
 
(2)	Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.	
 
196

SECTION 10.16. Confidentiality . Each of the Lenders and each of the Agents agrees (and agrees to cause each of its Related Parties) to use all information provided to it by or on behalf of the Borrower or its Restricted Subsidiaries under the Loan Documents or otherwise in connection with the Acquisition or the Transactions solely for the purposes of the transactions contemplated by this Agreement and the other Loan Documents and shall not publish, disclose or otherwise divulge such information (other than information that
 
(1)	has become generally available to the public other than as a result of a disclosure by such Person or its Related Parties;	
 
(2)	has been independently developed by such Lender or the Administrative Agent without violating this Section 10.16 or relying on such information; or	
 
(3)	was available to such Lender or the Administrative Agent from a third party having, to such Person’s knowledge, no obligations of confidentiality to the Borrower or any other Loan Party);	
and shall not reveal the same other than to its directors, trustees, officers, employees and advisors with a need to know or to any Person that approves or administers the Term Loans on behalf of such Lender or any numbering, administration or settlement service providers (so long as each such Person shall have been instructed to keep the same confidential in accordance with this Section 10.16 and, with respect to its directors, trustees, officers, employees and advisors, to the extent within its control, such Lender or Agent, as applicable, will be responsible for any such Person’s non-compliance with this Section 10.16), except:
 
 	(a)	to the extent necessary to comply with law or any legal process or the requirements of any Governmental Authority, the National Association of Insurance Commissioners or of any securities exchange on which securities of the disclosing party or any Affiliate of the disclosing party are listed or traded, in which case such Person agrees, to the extent practicable and not prohibited by applicable law, to inform you promptly thereof prior to disclosure or, if not practicable prior to disclosure and not prohibited by law, promptly after disclosure;	
 
 	(b)	as part of normal reporting or review procedures to, or examinations by, Governmental Authorities or any bank accountants or bank regulatory authority exercising examination or regulatory authority, in which case (except with respect to any audit or examination conducted by any such bank accountant or bank regulatory authority) such Person agrees, to the extent practicable and not prohibited by applicable law, to inform you promptly thereof prior to disclosure or, if not practicable prior to disclosure and not prohibited by law, promptly after disclosure;	
 
 	(c)	to its parent companies, Affiliates or auditors (so long as each such Person shall have been instructed to keep the same confidential in accordance with this Section 10.16 and, to the extent within its control, such Lender or Agent will be responsible for any such Person’s non-compliance with this Section 10.16);	
 
 	(d)	in order to enforce its rights under any Loan Document in a legal proceeding;	
 
197

 	(e)	to any pledgee or assignee under Section 10.04(5) or any other prospective assignee of, or prospective Participant in, any of its rights under this Agreement (so long as such Person shall have been instructed to keep the same confidential in accordance with this Section 10.16);	
 
 	(f)	to any direct or indirect contractual counterparty in Hedge Agreements or such contractual counterparty’s professional advisor (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be bound by the provisions of this Section 10.16);	
 
 	(g)	with the prior written consent of the Borrower; and	
 
 	(h)	to any rating agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake to preserve the confidentiality of any confidential information relating to the Loan Parties received by it from such Person.	
Notwithstanding the foregoing, no such information shall be disclosed to a Disqualified Institution that constitutes a Disqualified Institution at the time of such disclosure without the Borrower’s prior written consent.
SECTION 10.17. Platform; Borrower Materials . The Borrower hereby acknowledges that (1) the Administrative Agent or the Arrangers will make available to the Lenders materials or information provided by or on behalf of the Borrower hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “ Platform ”), and (2) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “ Public Lender ”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that
 
 	(a)	all the Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “ PUBLIC ” shall appear prominently on the first page thereof;	
 
 	(b)	by marking Borrower Materials “ PUBLIC ,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat the Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws;	
 
 	(c)	all Borrower Materials marked “ PUBLIC ” are permitted to be made available through a portion of the Platform designated “ Public Investor ;” and	
 
 	(d)	the Administrative Agent and the Arrangers shall be entitled to treat the Borrower Materials that are not marked “ PUBLIC ” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”	
 
198

Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC” unless the Borrower notifies the Administrative Agent that any such document contains MNPI: (1) the Loan Documents, (2) any notification of changes in the terms of the Term Loans, (3) any notification of the identity of Disqualified Institutions and (4) all information delivered pursuant to clauses (1), (2) and (3) of Section 5.04.
SECTION 10.18. [Reserved] .
SECTION 10.19. USA PATRIOT Act Notice . Each Lender that is subject to the USA PATRIOT Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the USA PATRIOT Act.
SECTION 10.20. Intercreditor Agreements .
 
(1)	The parties hereto acknowledge and agree that any provision of any Loan Document to the contrary notwithstanding, prior to the discharge in full of all ABL Claims, the Loan Parties shall not be required to act or refrain from acting under any Loan Document with respect to the ABL Priority Collateral in any manner that would result in a “Default” or “Event of Default” (as defined in any ABL Loan Document) under the terms and provisions of the ABL Loan Documents.	
 
(2)	Each Secured Party:	
 
 	(a)	consents to the subordination of Liens provided for in the Closing Date Intercreditor Agreement;	
 
 	(b)	agrees that it will be bound by and will take no actions contrary to the provisions of the Closing Date Intercreditor Agreement; and	
 
 	(c)	authorizes and instructs the Administrative Agent to enter into the Closing Date Intercreditor Agreement as Term Loan Agent and on behalf of such Lender.	
The foregoing provisions are intended as an inducement to the lenders under the ABL Credit Agreement to extend credit and such lenders are intended third party beneficiaries of such provisions and the provisions of the Closing Date Intercreditor Agreement.
 
(3)	Further, each Secured Party:	
 
 	(a)	authorizes and instructs the Administrative Agent to enter into any Pari Passu Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement each in the form attached hereto or in such other form as may be satisfactory to the Administrative Agent and agrees that it will be bound by and will take no actions contrary to the provisions of any such Pari Passu Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement;	
 
199

 	(b)	agrees that the Administrative Agent may from time to time enter into a modification of the Closing Date Intercreditor Agreement, any Pari Passu Intercreditor Agreement or any Junior Lien Intercreditor Agreement, as the case may be, so long as the Administrative Agent reasonably determines that such modification is consistent with the terms of this Agreement and agrees that it will be bound by and will take no actions contrary to any such Intercreditor Agreement (as so modified); and	
 
 	(c)	pursuant to the express terms of the Intercreditor Agreements, in the event of any conflict or inconsistency between the provisions of the Intercreditor Agreements and this Agreement, the provisions of the Intercreditor Agreements shall govern and control.	
SECTION 10.21. No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (1) (a) the arranging and other services regarding this Agreement provided by the Agents, the Lenders and the Arrangers are arm’s-length commercial transactions between the Borrower, on the one hand, and the Agents and the Arrangers, on the other hand; (b) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate; and (c) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (2) (a) each Agent, each Lender and each Arranger each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as a financial advisor, agent or fiduciary for the Borrower or any other Person and (b) none of the Agents or Arrangers has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (3) the Agents, the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and none of the Agents or any Arranger has any obligation to disclose any of such interests to the Borrower or any of its Affiliates. The Borrower agrees that it will not assert any claim against any Agent, Arranger or their respective Affiliates based on an alleged breach of fiduciary duty by such party in connection with this Agreement and the transactions contemplated hereby.
SECTION 10.22. Private-Side Information Contacts . Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “ Private Investor ” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States federal and state securities Laws, to make reference to information that is not made available through the “ Public Investor ” portion of the Platform and that may contain MNPI with respect to the Borrower, any of its Affiliates, their respective Subsidiaries or their respective securities for purposes of United States federal or state securities laws. In the event that any Public Lender has determined for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (1) other Lenders may have availed themselves of such information and (2) neither the Borrower nor the Administrative Agent has (a) any responsibility for such
 
200

Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Loan Documents and (b) any duty to disclose such information to such Public Lender or to use such information on behalf of such Public Lender, and shall not be liable for the failure to so disclose or use, such information.
SECTION 10.23. Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
 
(1)	the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and	
 
(2)	the effects of any Bail-In Action on any such liability, including, if applicable:	
 
 	(a)	a reduction in full or in part or cancellation of any such liability;	
 
 	(b)	a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or	
 
 	(c)	the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.	
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
 
201

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

AMNEAL PHARMACEUTICALS LLC, as the Borrower	

By:	 	/s/ Chintu Patel	
	 	Name: Chintu Patel	
	 	Title: President	
[Signature Page to Term Loan Credit Agreement]

			
JPMORGAN CHASE BANK, N.A., as a Lender, Administrative Agent and Collateral Agent	

By:	 	/s/ James A. Knight	
	 	Name: James A. Knight	
	 	Title: Executive Director	
[Signature Page to Term Loan Credit Agreement]

EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance (this “ Assignment and Acceptance ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 1 Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Documents or the Transactions governed thereby or in any way based on or related to any of the foregoing, including, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by [the][any] Assignor.

1.   Assignor[s]:	  	 	  		

1  	For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.	
2  	For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.	
3	Select as appropriate.	
4	Include bracketed language if there are either multiple Assignors or multiple Assignees.	

					
2.  Assignee[s]:	  	 	  		
	  	 	  		
	  	[and is an Affiliate/Approved Fund of [identify Lender] 5 ]	  		
 
3.	Borrower : AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company	
 
4.	Administrative Agent : JPMORGAN CHASE BANK, N.A., as the administrative agent under the Credit Agreement.	
 
5.	Credit Agreement : Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified and in effect from time to time), among the Borrower, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent.	
 
6.	Assigned Interest[s] :	

Assignor[s] 6	  	Assignee[s] 7	 	  	Facility Assigned 8	 	  	Aggregate Amount
of Commitment /
Loans for all
Lenders 9	 	  	Amount of
Commitment /
Loans Assigned 10	 	  	Percentage
Assigned of
Commitment /
Loans 11	 	  	CUSIP Number	 	
	  				  				  	$		 	  	$		 	  	 	%	 	  				
	  				  				  	$		 	  	$		 	  	 	%	 	  				
	  				  				  	$		 	  	$		 	  	 	%	 	  				

[7.   Trade Date:	  	 	  	] 12	

5	Select as applicable.	
6	List each Assignor, as appropriate.	
7	List each Assignee, as appropriate.	
8  	Fill in appropriate terminology for each applicable type of facility under the Credit Agreement that is being assigned under this Assignment, i.e., “Initial Term Loans,” “Extended Term Loans,” “Incremental Term Loans” or “Refinancing Term Loans.”	
9  	Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.	
10	Subject to minimum amount requirements pursuant to Section 10.04(2) of the Credit Agreement.	
11	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.	
12  	To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date.	

Effective Date:                                     , 20         [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
[[The] [Each] Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which [the] [each] Assignee designates one or more Credit Contacts to whom all syndicate-level information (which may contain material non-public information about any Parent Entity, the Borrower, their respective Subsidiaries or their respective securities for purposes of United States federal or state securities laws) will be made available and who may receive such information in accordance with [the] [each] Assignee’s compliance procedures and applicable laws, including United States federal and state securities laws.] 13
The terms set forth in this Assignment and Acceptance are hereby agreed to:

ASSIGNOR[S]	
[NAME OF ASSIGNOR]	

By:	 	 	
			
Name:	
Title:	
	
ASSIGNEE[S]	
[NAME OF ASSIGNEE]	

By:	 	 	
			
Name:	
Title:	

13	To be included if applicable.	

			
[Consented to and] 14 Accepted:	
	
JPMORGAN CHASE BANK, N.A., as	
Administrative Agent	

By:	 	 	
			
Name:	
Title:	
	
[Consented to:] 15	
	
[AMNEAL PHARMACEUTICALS LLC.], as Borrower	

By:	 	 	
			
Name:	
Title:	

14	To the extent required under Section 10.04(2) of the Credit Agreement.	
15	To the extent required under Section 10.04(2) of the Credit Agreement.	

ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
Reference is made to the Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, as the Borrower, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent.
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ACCEPTANCE
1. Representations and Warranties .
1.1. Assignor [s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and (iv) it [is] [is not] not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Loan Parties or any other Person obligated in respect of any Loan Document, (iv) any requirements under applicable law for the Assignee to become a lender under the Credit Agreement or to charge interest at the rate set forth therein from time to time or (v) the performance or observance by the Loan Parties or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee [s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is not a Disqualified Institution, (iii) it meets all the requirements to be an Assignee under the Credit Agreement (subject to such consents, if any, as may be required under Section 10.04(2) of the Credit Agreement), (iv) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (v) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (vi) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.04 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase [the][such] Assigned Interest on the basis of which it has made such analysis and decision, (vii) it has, independently and without reliance on the Administrative Agent, any Arranger, the Collateral Agent, or any other Lender and their respective Related Parties, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and

Acceptance and to purchase [the][such] Assigned Interest, and (viii) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, any Arranger, the Collateral Agent or their respective Related Parties, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued up to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions . This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy or electronically shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be construed in accordance with and governed by the laws of the State of New York.

EXHIBIT B
[FORM OF]
SOLVENCY CERTIFICATE
[                    ], 2018
Pursuant to Section 4.01(5) of the Term Loan Credit Agreement, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Term Loan Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent, the undersigned, solely in the undersigned’s capacity as a Responsible Officer of the Borrower, hereby certifies, on behalf of the Borrower and not in the undersigned’s individual or personal capacity and without personal liability, that, to his knowledge, as of the Closing Date, after giving effect to the Transactions (including the making of the Initial Term Loans under the Credit Agreement on the Closing Date and the application of the proceeds thereof):
 
(1)	the fair value of the assets of the Borrower and its Restricted Subsidiaries, on a consolidated basis, exceeds their debts and liabilities, subordinated, contingent or otherwise, on a consolidated basis;	
 
(2)	the present fair saleable value of the property of the Borrower and its Restricted Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, on a consolidated basis, as such debts and other liabilities become absolute and matured;	
 
(3)	the Borrower and its Restricted Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, on a consolidated basis, as such liabilities become absolute and matured; and	
 
(4)	the Borrower and its Restricted Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital.	
For purposes of this Solvency Certificate, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
The undersigned is familiar with the business and financial position of the Borrower and its Restricted Subsidiaries. In reaching the conclusions set forth in this Solvency Certificate, the undersigned has made such investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the business proposed to be conducted by the Borrower and its Restricted Subsidiaries after consummation of the Transactions.

IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate on behalf of the Borrower and not in the undersigned’s individual or personal capacity and without personal liability, as of the date first stated above.

AMNEAL PHARMACEUTICALS LLC	

By:	 	 	
	 	Name:	
	 	Title:	

EXHIBIT C
[FORM OF]
BORROWING REQUEST
 
To:	JPMorgan Chase Bank, N.A.,	
as Administrative Agent for
the Lenders referred to below
[    ], 2018
Ladies and Gentlemen:
Reference is made to the Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, as the Borrower, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
The undersigned hereby gives you notice pursuant to Section 2.02 of the Credit Agreement that it requests a Borrowing under the Credit Agreement, and in that connection sets forth below the terms on which such Borrowing is requested to be made:

(A)  Date of Borrowing	  	 	  		
			
(which shall be a Business Day)	  		  		
			
(B)  Principal Amount of Borrowing	  	 	  		
			
(C)  Type of Borrowing 16	  	 	  		
			
(D)  Interest Period and the last day thereof 17	  	 	  		
(in the case of a Eurocurrency Borrowing)	  		  		
			
(E)  Account Number and Location	  	 	  		

16	Specify an ABR Borrowing or a Eurocurrency Borrowing.	
17  	The initial Interest Period applicable to a Eurocurrency Borrowing shall be subject to the definition of “Interest Period.”	

			
AMNEAL PHARMACEUTICALS LLC	

By:	 	 	
	 	Name:	
	 	Title:	
[Signature Page to Term Loan Borrowing Request]

EXHIBIT D
[FORM OF]
INTEREST ELECTION REQUEST
 
To:	JPMorgan Chase Bank, N.A.,	
as Administrative Agent
for the Lenders referred to below
[•], 20[•] 1
Ladies and Gentlemen:
Reference is made to the Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Lenders party thereto from time to time, and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
This notice constitutes a notice of conversion or notice of continuation, as applicable, under Section 2.04 of the Credit Agreement, and the Borrower hereby irrevocably notifies the Administrative Agent of the following information with respect to the conversion or continuation requested hereby:
a. The Borrowing to which this Interest Election Request applies 2 is [•];
b. The effective date of the election (which shall be a Business Day) made pursuant to this Interest Election Request is [•], 20[•];
c. The resulting Borrowing is to be [an ABR Borrowing][a Eurocurrency Borrowing][; and]
[d. The Interest Period applicable to the resulting Borrowing after giving effect to such election is [•] 3 ].
[Remainder of Page Intentionally Left Blank]

1  	Administrative Agent must be notified as indicated in Section 2.04 of the Credit Agreement in the case of an election to convert to or continue a Eurocurrency Borrowing election, not later than 2:00 p.m. New York City time, three Business Days before the effective date of such election or, in the case of an election to convert or continue an ABR Borrowing, not later than 10:00 a.m., New York City time, on the date of such election (or in each case, at such later date or time as the Administrative Agent may agree).	
2  	If different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information specified pursuant to clauses (c) and (d) below shall be specified for each resulting Borrowing).	
3  	Include this clause (d) if the resulting Borrowing is a Eurocurrency Borrowing. In the case of a Eurocurrency Borrowing that does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.	

			
AMNEAL PHARMACEUTICALS LLC	

By:	 	 	
	 	Name:	
	 	Title:	

EXHIBIT E
[FORM OF]
NON-DEBT FUND AFFILIATE ASSIGNMENT AND ACCEPTANCE
This Non-Debt Fund Affiliate Assignment and Acceptance (this “ Assignment and Acceptance ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 1 Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable Law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Documents or the Transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by [the][any] Assignor.
 
1.	Assignor[s] :                                                                  	

1  	For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.	
2  	For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.	
3	Select as appropriate.	
4	Include bracketed language if there are either multiple Assignors or multiple Assignees.	

2.	Assignee[s] :                                                                      	
[and is a Non-Debt Fund Affiliate/Purchasing Borrower Party 5 ]
 
3.	Borrower : AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company	
 
4.	Administrative Agent : JPMORGAN CHASE BANK, N.A., as the administrative agent under the Credit Agreement	
 
5.	Credit Agreement : Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent.	
 
6.	Assigned Interest[s] :	

Assignor[s] 6	  	Assignee[s] 7	 	  	Facility Assigned 8	 	  	Aggregate Amount
of Commitment /
Loans for all
Lenders 9	 	  	Amount of
Commitment /
Loans Assigned 10	 	  	Percentage
Assigned of
Commitment /
Loans 11	 	  	CUSIP Number	 	
	  				  				  	$	  	 	  	$	  	 	  	 	%	 	  				
	  				  				  	$	  	 	  	$	  	 	  	 	%	 	  				
	  				  				  	$	  	 	  	$	  	 	  	 	%	 	  				

[7.   Trade Date:	  	 	  	] 12	

5	Select as applicable.	
6	List each Assignor, as appropriate.	
7	List each Assignee, as appropriate.	
8  	Fill in appropriate terminology for each applicable type of facility under the Credit Agreement that is being assigned under this Assignment, i.e., “Initial Term Loans,” “Extended Term Loans,” “Incremental Term Loans” or “Refinancing Term Loans.”	
9  	Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.	
10	Subject to minimum amount requirements pursuant to Section 10.04(2) of the Credit Agreement.	
11	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.	
12  	To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.	

Effective Date:                         , 20        [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
[[The] [Each] Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which [the] [each] Assignee designates one or more Credit Contacts to whom all syndicate-level information (which may contain material non-public information about any Parent Entity, the Borrower, their respective Subsidiaries or their respective securities for purposes of United States federal or state securities laws) will be made available and who may receive such information in accordance with [the] [each] Assignee’s compliance procedures and applicable laws, including United States federal and state securities laws.] 13
The terms set forth in this Assignment and Acceptance are hereby agreed to:

ASSIGNOR	
[NAME OF ASSIGNOR]	

By:	 	 	
			
Name:	
Title:	
	
ASSIGNEE	
[NAME OF ASSIGNEE]	

By:	 	 	
			
Name:	
Title:	

13	To be included if applicable.	

			
[Consented to and] 14 Accepted:	
	
JPMORGAN CHASE BANK, N.A., as	
Administrative Agent	

By:	 	 	
			
Name:	
Title:	
	
[Consented to:] 15	
	
AMNEAL PHARMACEUTICALS LLC , as Borrower	

By:	 	 	
			
Name:	
Title:	

14	To the extent required under Section 10.04(2) of the Credit Agreement.	
15	To the extent required under Section 10.04(2) of the Credit Agreement.	

ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
Reference is made to the Term Loan Credit Agreement, dated as of [            ], 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, as the Borrower, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent.
STANDARD TERMS AND CONDITIONS FOR
NON-DEBT FUND AFFILIATE ASSIGNMENT AND ACCEPTANCE
1. Representations and Warranties .
1.1. Assignor . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Loan Parties or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Loan Parties or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee . [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is a [Non-Debt Fund Affiliate][Purchasing Borrower Party] pursuant to Section 10.04[(10)][(14)] of the Credit Agreement, (iii) it meets all the requirements to be a Lender under the Credit Agreement (subject to such consents, if any, as may be required under Section 10.04(2) of the Credit Agreement), (iv) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (v) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (vi) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.04 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase [the][such] Assigned Interest, (vii) it is not a Disqualified Institution, (viii) it has, independently and without reliance upon the Administrative Agent, Collateral Agent, or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase [the][such] Assigned Interest, and (ix) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly  

completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
1.3. [Non-Debt Fund Affiliate . The Assignee consents to the provisions of Section 10.04 of the Credit Agreement that apply to a Non-Debt Fund Affiliate in its capacity as a Lender with respect to the Assigned Interest.]
[ Purchasing Borrower Party . The Assignee represents and warrants that (a) no Specified Event of Default has occurred and is continuing or would result immediately after giving effect to this Assignment and Acceptance, (b) no proceeds from revolving loans under the ABL Credit Agreement shall be used to fund any such purchase and (c) this Assignment and Acceptance is being entered into in connection with (i) an open market purchase (including, for the avoidance of doubt, any purchase made during the initial syndication of Term Loans) on a non- pro rata basis or (ii) a Dutch auction open to all Lenders of the applicable class in accordance with the Dutch Auction Procedures. The Assignee consents to the provisions of the Credit Agreement that apply to the purchase by or assignment to a Purchasing Borrower Party of Term Loans included in the Assigned Interest.]
2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued up to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions . This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy or electronically shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be construed in accordance with and governed by the laws of the State of New York.

EXHIBIT F
EXHIBIT F-1
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.14(5)(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]	
		
By:	 	 	
	 	Name:	
	 	Title:	
Date:                      , 20[     ]

EXHIBIT F-2
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.14(5)(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]	
		
By:	 	 	
	 	Name:	
	 	Title:	
Date:                      , 20[    ]

EXHIBIT F-3
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.14(5)(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]	
		
By:	 	 	
	 	Name:	
	 	Title:	
Date:                      , 20[    ]

EXHIBIT F-4
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the Lenders party thereto from time to time, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.14(5)(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

			
[NAME OF LENDER]	
		
By:	 	 	
	 	Name:	
	 	Title:	
Date:                      , 20[    ]

EXHIBIT G
Form of Pari Passu Intercreditor Agreement
(see attached)

EXHIBIT G
[FORM OF]
FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT
dated as of
[                ], 20[    ]
among
JPMORGAN CHASE BANK, N.A.,
as Initial First Lien Representative and Initial First Lien Collateral Agent,
[                    ],
as the Initial Other Representative,
[                    ],
as the Initial Other Collateral Agent,
and
each additional Representative and Collateral Agent from time to time party hereto
and acknowledged and agreed to by
AMNEAL PHARMACEUTICALS LLC,
as the Company and the other Grantors referred to herein

TABLE OF CONTENTS

 	  	Page	 	
ARTICLE I. DEFINITIONS	  	 	1	 	
		
SECTION 1.01 Certain Defined Terms	  	 	1	 	
		
SECTION 1.02 Rules of Interpretation	  	 	10	 	
		
ARTICLE II. PRIORITIES AND AGREEMENTS WITH RESPECT TO SHARED COLLATERAL	  	 	11	 	
		
SECTION 2.01 Priority of Claims	  	 	11	 	
		
SECTION 2.02 Actions with Respect to Shared Collateral; Prohibition on Contesting Liens	  	 	13	 	
		
SECTION 2.03 No Interference; Payment Over; Exculpatory Provisions	  	 	15	 	
		
SECTION 2.04 Automatic Release of Liens	  	 	16	 	
		
SECTION 2.05 Certain Agreements with Respect to Bankruptcy or Insolvency Proceedings	  	 	17	 	
		
SECTION 2.06 Reinstatement	  	 	18	 	
		
SECTION 2.07 Insurance and Condemnation Awards	  	 	18	 	
		
SECTION 2.08 Refinancings	  	 	18	 	
		
SECTION 2.09 Gratuitous Bailee/Agent for Perfection	  	 	19	 	
		
SECTION 2.10 Amendments to First Lien Collateral Documents	  	 	20	 	
		
ARTICLE III. EXISTENCE AND AMOUNTS OF LIENS AND OBLIGATIONS	  	 	20	 	
		
ARTICLE IV. THE APPLICABLE COLLATERAL AGENT	  	 	21	 	
		
SECTION 4.01 Authority	  	 	21	 	
		
SECTION 4.02 Power-of-Attorney	  	 	22	 	
		
ARTICLE V. MISCELLANEOUS	  	 	22	 	
		
SECTION 5.01 Integration/Conflicts	  	 	22	 	
		
SECTION 5.02 Effectiveness; Continuing Nature of this Agreement; Severability	  	 	22	 	
		
SECTION 5.03 Amendments; Waivers	  	 	23	 	
 
i

					
SECTION 5.04 Information Concerning Financial Condition of the Grantors and their Subsidiaries	  	 	23	 	
		
SECTION 5.05 Submission to Jurisdiction; Certain Waivers	  	 	24	 	
		
SECTION 5.06 WAIVER OF JURY TRIAL	  	 	25	 	
		
SECTION 5.07 Notices	  	 	25	 	
		
SECTION 5.08 Further Assurances	  	 	25	 	
		
SECTION 5.09 Agency Capacities	  	 	25	 	
		
SECTION 5.10 GOVERNING LAW	  	 	26	 	
		
SECTION 5.11 Binding on Successors and Assigns	  	 	26	 	
		
SECTION 5.12 Section Headings	  	 	26	 	
		
SECTION 5.13 Counterparts	  	 	26	 	
		
SECTION 5.14 Other First Lien Obligations	  	 	26	 	
		
SECTION 5.15 Authorization	  	 	28	 	
		
SECTION 5.16 No Third Party Beneficiaries/ Provisions Solely to Define Relative Rights	  	 	28	 	
		
SECTION 5.17 No Indirect Actions	  	 	29	 	
		
SECTION 5.18 Additional Grantors	  	 	29	 	
EXHIBITS

Exhibit A	  	—	  	Form of Joinder Agreement	
Exhibit B	  	—	  	Form of Additional First Lien Debt Designation	
 
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This FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”) dated as of [        ], 20[    ], among JPMORGAN CHASE BANK, N.A. (“ JPM ”), as administrative agent for the Credit Agreement Secured Parties (in such capacity and together with its successors from time to time in such capacity, and together with any Replacement Representative, the “ Initial First Lien Representative ”) and as collateral agent for the Credit Agreement Secured Parties (in such capacity and together with its successors from time to time in such capacity, and together with any Replacement Collateral Agent, the “ Initial First Lien Collateral Agent ”), [                    ], as Representative for the Initial Other First Lien Secured Parties (in such capacity and together with its successors from time to time in such capacity, the “ Initial Other Representative ”), [                    ], as collateral agent for the Initial Other First Lien Secured Parties (in such capacity and together with its successors from time to time in such capacity, the “ Initial Other Collateral Agent ”), and each additional Representative and Collateral Agent from time to time party hereto for the Other First Lien Secured Parties of the Series with respect to which it is acting in such capacity, and acknowledged by AMNEAL PHARMACEUTICALS LLC , a Delaware limited liability company (the “ Company ”) and the other Grantors signatory hereto. Capitalized terms used in this Agreement have the meanings assigned to them in Article I below.
Reference is made to the Term Loan Credit Agreement dated as of May 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among the Company, the Lenders party thereto from time to time, the Initial First Lien Representative, the Initial First Lien Collateral Agent and the other parties party thereto.
In consideration of the mutual agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Initial First Lien Representative (for itself and on behalf of the Credit Agreement Secured Parties), the Initial First Lien Collateral Agent (for itself and on behalf of the Credit Agreement Secured Parties), the Initial Other Representative (for itself and on behalf of the Initial Other First Lien Secured Parties), the Initial Other Collateral Agent (for itself and on behalf of the Initial Other First Lien Secured Parties) and each additional Representative and Collateral Agent (in each case, for itself and on behalf of the Other First Lien Secured Parties of the applicable Series) agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Certain Defined Terms .
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Credit Agreement (whether or not then in effect), and the following terms which are defined in the UCC are used herein as so defined (and if defined in more than one article of the UCC shall have the meaning specified in Article 9 thereof): Certificated Security, Commodity Account, Commodity Contract, Deposit Account, Electronic Chattel Paper, Promissory Note, Instrument, Letter of Credit Right, Securities Entitlement, Securities Account and Tangible Chattel Paper. As used in this Agreement, the following terms have the meanings specified below:
 
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“ Additional First Lien Collateral Agent ” means with respect to each Series of Other First Lien Obligations, the Person serving as collateral agent (or the equivalent) for such Series of Other First Lien Obligations and named as such in the applicable Joinder Agreement delivered pursuant to Section 5.14 hereof, together with its successors in such capacity.
“ Additional First Lien Debt ” shall have the meaning assigned to such term in Section 5.14.
“ Additional First Lien Representative ” means with respect to each Series of Other First Lien Obligations, the Person serving as administrative agent, trustee or in a similar capacity for such Series of Other First Lien Obligations and named as such in the applicable Joinder Agreement delivered pursuant to Section 5.14 hereof, together with its successors in such capacity.
“ Additional First Lien Secured Parties ” shall have the meaning assigned to such term in Section 5.14.
“ Agreement ” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
“ Applicable Collateral Agent ” means (i) until the earlier of (x) the Discharge of Credit Agreement and (y) the Non-Controlling Representative Enforcement Date, the Initial First Lien Collateral Agent and (ii) from and after the earlier of (x) the Discharge of Credit Agreement and (y) the Non-Controlling Representative Enforcement Date, the Collateral Agent for the Series of First Lien Obligations represented by the Major Non-Controlling Representative.
“ Applicable Representative ” means (i) until the earlier of (x) the Discharge of Credit Agreement and (y) the Non-Controlling Representative Enforcement Date, the Initial First Lien Representative and (ii) from and after the earlier of (x) the Discharge of Credit Agreement and (y) the Non-Controlling Representative Enforcement Date, the Major Non-Controlling Representative.
“ Bankruptcy Case ” shall have the meaning assigned to such term in Section  2.05(b) .
“ Bankruptcy Code ” shall mean Title 11 of the United States Code, as amended.
“ Bankruptcy Law ” shall mean the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.
“ Business Day ” means a day of the year that is not a Saturday, a Sunday or other day on which commercial banks are required or authorized by law to close in New York City.
“ Collateral ” means all assets and properties subject to, or purported to be subject to, Liens created pursuant to any First Lien Collateral Document to secure one or more Series of First Lien Obligations and shall include any property or assets subject to replacement Liens or adequate protection Liens in favor of any First Lien Secured Party.
 
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“ Collateral Agent ” means (i) in the case of any Credit Agreement Obligations, the Initial First Lien Collateral Agent, (ii) in the case of the Initial Other First Lien Obligations, the Initial Other Collateral Agent and (iii) in the case of any other Series of Other First Lien Obligations that become subject to this Agreement after the date hereof, the Additional First Lien Collateral Agent for such Series.
“ Company ” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
“ Control Collateral ” means any Shared Collateral in the “control” (within the meaning of Section 9-104, 9-105, 9-106, 9-107 or 8-106 of the Uniform Commercial Code of any applicable jurisdiction) of any Collateral Agent (or its agents or bailees), to the extent that control thereof perfects a Lien thereon under the Uniform Commercial Code of any applicable jurisdiction. Control Collateral includes any Deposit Accounts, Securities Accounts, Securities Entitlements, Commodity Accounts, Commodity Contracts, Letter of Credit Rights or Electronic Chattel Paper over which any Collateral Agent has “control” under the applicable Uniform Commercial Code.
“ Controlling Secured Parties ” means (i) at any time when the Initial First Lien Collateral Agent is the Applicable Collateral Agent, the Credit Agreement Secured Parties and (ii) at any other time, the Series of First Lien Secured Parties whose Representative is the Applicable Representative.
“ Credit Agreement ” shall have the meaning assigned to such term in the second paragraph of this Agreement and shall also include any Replacement Credit Agreement.
“ Credit Agreement Collateral Documents ” means the Security Documents (as defined in the Credit Agreement) and any other agreement, document or instrument entered into for the purpose of granting a Lien to secure any Credit Agreement Obligations or to perfect such Lien (as each may be amended, restated, supplemented or otherwise modified from time to time).
“ Credit Agreement Counterparty ” means any Qualified Counterparty as defined in the Credit Agreement.
“ Credit Agreement Documents ” means the Credit Agreement, each Credit Agreement Collateral Document and the other Loan Documents (as defined in the Credit Agreement) and each of the other agreements, documents and instruments providing for or evidencing any other Credit Agreement Obligation, as each may be amended, restated, supplemented or otherwise modified from time to time.
“ Credit Agreement Hedge Agreement ” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other hedging agreements, but excluding long term agreements for the purchase of goods and services entered into in the ordinary course of business, entered into with a Qualified Counterparty (as defined in the Credit Agreement) in order to satisfy the requirements of the Credit Agreement or otherwise as permitted under the Credit Agreement Documents and secured under the Credit Agreement Collateral Documents.
 
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“ Credit Agreement Obligations ” means:
(a) all “Obligations” as defined in the Credit Agreement other than those expressly required to be secured on a junior lien basis or unsecured; and
(b) to the extent any payment with respect to any Credit Agreement Obligation (whether by or on behalf of any Grantor, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any Other First Lien Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the Credit Agreement Secured Parties and the Other First Lien Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred. To the extent that any interest, fees, expenses or other charges (including Post-Petition Interest) to be paid pursuant to the Credit Agreement Documents are disallowed by order of any court, including by order of a court of competent jurisdiction presiding over an Insolvency or Liquidation Proceeding, such interest, fees, expenses and charges (including Post-Petition Interest) shall, as between the Credit Agreement Secured Parties and the Other First Lien Secured Parties, be deemed to continue to accrue and be added to the amount to be calculated as the “Credit Agreement Obligations.”
“ Credit Agreement Secured Parties ” means the holders of any Credit Agreement Obligations, including the “Secured Parties” as defined in the Credit Agreement or in the Credit Agreement Collateral Documents and the Initial First Lien Representative and Initial First Lien Collateral Agent.
“ Default ” means a “Default” (or similarly defined term) as defined in any First Lien Credit Document.
“ Designation ” means a designation of either Additional First Lien Debt or Indebtedness under a Replacement Credit Agreement in substantially the form of Exhibit B attached hereto.
“ DIP Financing ” shall have the meaning assigned to such term in Section  2.05(b) . “ DIP Financing Liens ” shall have the meaning assigned to such term in Section 2.05(b) .
“ DIP Lenders ” shall have the meaning assigned to such term in Section  2.05(b) .
“ Discharge ” means, with respect to any Series of First Lien Obligations, the date on which such Series of First Lien Obligations is no longer secured by, or required to be secured by, any Shared Collateral. The term “ Discharged ” shall have a corresponding meaning.
“ Discharge of Credit Agreement ” means, except to the extent otherwise provided in Section  2.06 , the Discharge of the Credit Agreement Obligations; provided that the Discharge of Credit Agreement shall be deemed not to have occurred if a Replacement Credit Agreement is entered into substantially simultaneous therewith.
 
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“ Equity Release Proceeds ” shall have the meaning assigned to such term in Section 2.04(a) .
“ Event of Default ” means an “Event of Default” (or similarly defined term) as defined in any First Lien Credit Document.
“ First Lien Collateral Documents ” means, collectively, (i) the Credit Agreement Collateral Documents and (ii) the Other First Lien Collateral Documents.
“ First Lien Credit Documents ” means (i) the Credit Agreement Documents, (ii) the Initial Other First Lien Documents and (iii) each other Other First Lien Document.
“ First Lien Documents ” means, (i) with respect to the Credit Agreement Obligations, the Credit Agreement Documents, and (ii) with respect to the Initial Other First Lien Obligations or any Series of Other First Lien Obligations, the Other First Lien Documents in respect thereof.
“ First Lien Obligations ” means, collectively, (i) the Credit Agreement Obligations and (ii) each Series of Other First Lien Obligations.
“ First Lien Secured Parties ” means (i) the Credit Agreement Secured Parties and (ii) the Other First Lien Secured Parties with respect to each Series of Other First Lien Obligations.
“ Grantors ” means the Company and each Subsidiary or direct or indirect parent company of the Company which has granted a security interest pursuant to any First Lien Collateral Document to secure any Series of First Lien Obligations.
“ Impairment ” shall have the meaning assigned to such term in Section  2.01(b)(ii) .
“ Indebtedness ” means indebtedness in respect of borrowed money and indebtedness evidenced by bonds, debentures, notes or similar instruments.
“ Initial First Lien Collateral Agent ” shall have the meaning assigned to such term in the introductory paragraph to this Agreement.
“ Initial First Lien Representative ” shall have the meaning assigned to such term in the introductory paragraph to this Agreement.
“ Initial Other Collateral Agent ” shall have the meaning assigned to such term in the introductory paragraph to this Agreement.
“ Initial Other Collateral Documents ” means the Security Documents (as defined in the Initial Other First Lien Agreement) and any other agreement, document or instrument entered into for the purpose of granting a Lien to secure any Initial Other First Lien Obligations or to perfect such Lien (as each may be amended, restated, amended and restated, supplemented or otherwise modified from time to time ).
 
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“ Initial Other First Lien Agreement ” means the [[ describe indenture, credit agreement or other document pursuant to which Initial Other First Lien Obligations are incurred ], dated as of [                    ], among [                    ]].
“ Initial Other First Lien Documents ” means the Initial Other First Lien Agreement, each Initial Other Collateral Document and each of the other agreements, documents and instruments providing for or evidencing any other Initial Other First Lien Obligations, as each may be amended, restated, supplemented or otherwise modified from time to time.
“ Initial Other First Lien Obligations ” means the Other First Lien Obligations pursuant to the Initial Other First Lien Documents.
“ Initial Other First Lien Secured Parties ” means the holders of any Initial Other First Lien Obligations, the Initial Other Representative and the Initial Other Collateral Agent.
“ Initial Other Representative ” shall have the meaning assigned to such term in the introductory paragraph to this Agreement.
“ Insolvency or Liquidation Proceeding ” means:
(a) any voluntary or involuntary case or proceeding under the Bankruptcy Code with respect to any Grantor;
(b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Grantor or with respect to a material portion of its assets;
(c) any liquidation, dissolution, reorganization or winding up of any Grantor whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or
(d) any assignment for the benefit of creditors or any other marshaling of assets and liabilities of any Grantor.
“ Intervening Creditor ” shall have the meaning assigned to such term in Section 2.01(b)(i) .
“ Joinder Agreement ” means a document in the form of Exhibit A to this Agreement required to be delivered by a Representative to each Collateral Agent and each other Representative pursuant to Section  5.14 of this Agreement in order to create an additional Series of Other First Lien Obligations or a Refinancing of any Series of First Lien Obligations and add Other First Lien Secured Parties hereunder.
“ JPM ” has the meaning assigned to such term in the introductory paragraph of this Agreement.
 
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“ Lien ” means any lien (including judgment liens and liens arising by operation of law), mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, call, trust (whether contractual, statutory, deemed, equitable, constructive, resulting or otherwise), UCC financing statement or other preferential arrangement having the practical effect of any of the foregoing, including any right of set-off or recoupment.
“ Major Non-Controlling Representative ” means the Representative of the Series of Other First Lien Obligations that constitutes the largest outstanding principal amount of any then outstanding Series of Other First Lien Obligations ( provided , however , that if there are two outstanding Series of Other First Lien Obligations which have an equal outstanding principal amount, the Series of Other First Lien Obligations with the earlier maturity date shall be considered to have the larger outstanding principal amount for purposes of this definition). For purposes of this definition, “principal amount” shall be deemed to include the face amount of any outstanding letter of credit issued under the particular Series.
“ Non-Controlling Representative ” means, at any time, each Representative that is not the Applicable Representative at such time.
“ Non-Controlling Representative Enforcement Date ” means, with respect to any Non-Controlling Representative, the date which is 180 days (throughout which 180 day period such Non-Controlling Representative was the Major Non-Controlling Representative) after the occurrence of both (i) an Event of Default (under and as defined in the First Lien Documents under which such Non-Controlling Representative is the Representative) and (ii) each Collateral Agent’s and each other Representative’s receipt of written notice from such Non-Controlling Representative certifying that (x) such Non-Controlling Representative is the Major Non-Controlling Representative and that an Event of Default (under and as defined in the First Lien Documents under which such Non-Controlling Representative is the Representative) has occurred and is continuing and (y) the First Lien Obligations of the Series with respect to which such Non-Controlling Representative is the Representative are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Other First Lien Document; provided that the Non-Controlling Representative Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred (1) at any time the Applicable Collateral Agent acting on the instructions of the Applicable Representative has commenced and is diligently pursuing any enforcement action with respect to Shared Collateral or (2) at any time the Grantor that has granted a security interest in Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.
“ Non-Controlling Secured Parties ” means the First Lien Secured Parties which are not Controlling Secured Parties.
“ Other First Lien Agreement ” means any indenture, notes, credit agreement (excluding the Credit Agreement) or other agreement, document (including any document governing reimbursement obligations in respect of letters of credit issued pursuant to any Other First Lien Agreement) or instrument, including the Initial Other First Lien Agreement, pursuant to which any Grantor has or will incur Other First Lien Obligations; provided that, in each case, the
 
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Indebtedness thereunder (other than the Initial Other First Lien Obligations) has been designated as Other First Lien Obligations pursuant to and in accordance with Section  5.14 . For the avoidance of doubt, neither the Credit Agreement nor a Replacement Credit Agreement shall constitute an Other First Lien Agreement.
“ Other First Lien Collateral Agents ” means each of the Collateral Agents other than the Initial First Lien Collateral Agent.
“ Other First Lien Collateral Documents ” means the Security Documents (in each case as defined in the applicable Other First Lien Agreement) and any other agreement, document or instrument entered into for the purpose of granting a Lien to secure any Other First Lien Obligations or to perfect such Lien (as each may be amended, restated, supplemented or otherwise modified from time to time).
“ Other First Lien Documents ” means, with respect to the Initial Other First Lien Obligations or any Series of Other First Lien Obligations, the Other First Lien Agreements, including the Initial Other First Lien Documents and the Other First Lien Collateral Documents applicable thereto and each other agreements, documents and instruments providing for or evidencing any other Other First Lien Obligation, as each may be amended, restated, supplemented or otherwise modified from time to time; provided that, in each case, the Indebtedness thereunder (other than the Initial Other First Lien Obligations) has been designated as Other First Lien Obligations pursuant to and in accordance with Section  5.14 hereto. For the avoidance of doubt, Credit Agreement Hedge Agreements shall not constitute Other First Lien Documents.
“ Other First Lien Obligations ” means all amounts owing to any Other First Lien Secured Party (including any Initial Other First Lien Secured Party) pursuant to the terms of any Other First Lien Document (including the Initial Other First Lien Documents), including all amounts in respect of any principal, interest (including any Post-Petition Interest), premium (if any), penalties, fees, expenses (including fees, expenses and disbursements of agents, professional advisors and legal counsel), indemnifications, reimbursements, damages and other liabilities, and guarantees of the foregoing amounts, in each case whether or not allowed or allowable in an Insolvency or Liquidation Proceeding. Other First Lien Obligations shall include any Registered Equivalent Notes and guarantees thereof by the Grantors issued in exchange therefor. For the avoidance of doubt, the Credit Agreement Obligations shall not constitute Other First Lien Obligations.
“ Other First Lien Secured Party ” means the holders of any Other First Lien Obligations and any Representative and Collateral Agent with respect thereto and shall include the Initial Other First Lien Secured Parties.
“ Possessory Collateral ” means any Shared Collateral in the possession of any Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction or otherwise. Possessory Collateral includes any Certificated Securities, Promissory Notes, Instruments, and Tangible Chattel Paper, in each case, delivered to or in the possession of any Collateral Agent under the terms of the First Lien Collateral Documents.
 
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“ Post-Petition Interest ” means interest, fees, expenses and other charges that pursuant to the Credit Agreement Documents or Other First Lien Documents, as applicable, continue to accrue after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest, fees, expenses and other charges are allowed or allowable under the Bankruptcy Law or in any such Insolvency or Liquidation Proceeding.
“ Proceeds ” shall have the meaning assigned to such term in Section  2.01(a) .
“ Refinance ” means, in respect of any Indebtedness, to refinance, extend, renew, defease, amend, modify, supplement, restructure, refund, replace or repay, or to issue other Indebtedness, whether of the same principal amount or greater or lesser principal amount, in exchange or replacement for such Indebtedness. “ Refinanced ” and “ Refinancing ” shall have correlative meanings.
“ Registered Equivalent Notes ” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same guarantees and substantially the same collateral) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“ Replacement Collateral Agent ” means, in respect of any Replacement Credit Agreement, the collateral agent or person serving in similar capacity under the Replacement Credit Agreement.
“ Replacement Credit Agreement ” means any loan agreement, indenture or other agreement that (i) Refinances the Credit Agreement in accordance with Section  2.08 hereof so long as, after giving effect to such Refinancing, the agreement that was the Credit Agreement immediately prior to such Refinancing is no longer secured and no longer required to be secured, by any of the Collateral and (ii) becomes the Credit Agreement hereunder by designation as such pursuant to Section  5.14 .
“ Replacement Representative ” means, in respect of any Replacement Credit Agreement, the administrative agent, trustee or person serving in similar capacity under the Replacement Credit Agreement.
“ Representative ” means, at any time, (i) in the case of any Credit Agreement Obligations or the Credit Agreement Secured Parties, the Initial First Lien Representative, (ii) in the case of the Initial Other First Lien Obligations or the Initial Other First Lien Secured Parties, the Initial Other Representative, and (iii) in the case of any other Series of Other First Lien Obligations or Other First Lien Secured Parties that becomes subject to this Agreement after the date hereof, the Additional First Lien Representative for such Series.
“ Series ” means (a) with respect to the First Lien Secured Parties, each of (i) the Credit Agreement Secured Parties (in their capacities as such), (ii) the Initial Other First Lien Secured Parties (in their capacities as such) and (iii) the Other First Lien Secured Parties (in their capacities as such) that become subject to this Agreement after the date hereof that are represented by a common Representative (in its capacity as such for such Other First Lien Secured Parties) and (b) with respect to any First Lien Obligations, each of (i) the Credit Agreement Obligations,
 
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(ii) the Initial Other First Lien Obligations and (iii) the Other First Lien Obligations incurred pursuant to any Other First Lien Document, which pursuant to any Joinder Agreement, are to be represented hereunder by a common Representative (in its capacity as such for such Other First Lien Obligations).
“ Shared Collateral ” means, at any time, Collateral in which the holders of two or more Series of First Lien Obligations (or their respective Representatives or Collateral Agents on behalf of such holders) hold, or purport to hold, or are required to hold pursuant to the First Lien Documents in respect of such Series, a valid security interest or Lien at such time. If more than two Series of First Lien Obligations are outstanding at any time and the holders of less than all Series of First Lien Obligations hold, or purport to hold, or are required to hold pursuant to the First Lien Documents in respect of such Series, a valid security interest or Lien in any Collateral at such time, then such Collateral shall constitute Shared Collateral for those Series of First Lien Obligations that hold, or purport to hold, or are required to hold pursuant to the First Lien Documents in respect of such Series, a valid security interest or Lien in such Collateral at such time and shall not constitute Shared Collateral for any Series which does not hold, or purport to hold, or are required to hold pursuant to the First Lien Documents in respect of such Series, a valid security interest or Lien in such Collateral at such time.
“ Term/ABL Intercreditor Agreement ” means that certain ABL / Term Loan Intercreditor Agreement dated as of May 4, 2018, by and among the Initial First Lien Collateral Agent, the Initial First Lien Representative, and JPM, as administrative agent and collateral agent for the Initial ABL Credit Agreement (as defined therein), and acknowledged by the Company and the other Grantors signatory thereto.
“ UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided , however , that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.
“ Underlying Assets ” shall have the meaning assigned to such term in Section 2.04(a) .
SECTION 1.02 Rules of Interpretation .
The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented, renewed, extended or otherwise modified or Refinanced, (ii) any reference herein to any Person shall be construed to
 
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include such Person’s permitted successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vi) the term “or” is not exclusive.
ARTICLE II.
PRIORITIES AND AGREEMENTS WITH RESPECT TO SHARED COLLATERAL
SECTION 2.01 Priority of Claims .
(a) Anything contained herein or in any of the First Lien Credit Documents to the contrary notwithstanding (but subject to Section  2.01(b) ), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent is taking action to enforce rights in respect of any Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of any Grantor or any First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) or otherwise with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any Shared Collateral or Equity Release Proceeds received by any First Lien Secured Party or received by the Applicable Collateral Agent or any First Lien Secured Party pursuant to any such intercreditor agreement or otherwise with respect to such Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following clause THIRD below) to which the First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or otherwise (all proceeds of any sale, collection or other liquidation of any Collateral comprising either Shared Collateral or Equity Release Proceeds and all proceeds of any such distribution and any proceeds of any insurance covering the Shared Collateral received by the Applicable Collateral Agent and not returned to any Grantor under any First Lien Document being collectively referred to as “ Proceeds ”), shall be applied by the Applicable Collateral Agent in the following order:
(i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) and each such Representative (in its capacity as such) secured by such Shared Collateral or, in the case of Equity Release Proceeds, secured by the Underlying Assets, including all reasonable costs and expenses incurred by each such Collateral Agent (in its capacity as such) and each such Representative (in its capacity as such) in connection with such collection or sale or otherwise in connection with this Agreement, any other First Lien Credit Document or any of the First Lien Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other First Lien Credit Documents and all fees and indemnities owing to such Collateral Agents and Representatives, ratably to each such Collateral Agent and Representative in accordance with the amounts payable to it pursuant to this clause FIRST;
 
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(ii) SECOND, subject to Section  2.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (i) , to each Representative for the payment in full of the other First Lien Obligations of each Series secured by such Shared Collateral or, in the case of Equity Release Proceeds, secured by the Underlying Assets, and, if the amount of such Proceeds are insufficient to pay in full the First Lien Obligations of each Series so secured then such Proceeds shall be allocated among the Representatives of each Series secured by such Shared Collateral or, in the case of Equity Release Proceeds, secured by the Underlying Assets, pro rata according to the amounts of such First Lien Obligations owing to each such respective Representative and the other First Lien Secured Parties represented by it for distribution by such Representative in accordance with its respective First Lien Credit Documents; and
(iii) THIRD, any balance of such Proceeds remaining after the application pursuant to the preceding clauses (i)  and (ii) , to the Grantors, their successors or assigns, or to whomever may be lawfully entitled to receive the same, including pursuant to any Junior Lien Intercreditor Agreement (as defined in the Credit Agreement), if applicable.
If, despite the provisions of this Section  2.01(a) , any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section  2.01(a) , such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section  2.01(a) .
(b) (i) Notwithstanding the foregoing, with respect to any Shared Collateral or Equity Release Proceeds for which a third party (other than a First Lien Secured Party) has a Lien that is junior in priority to the Lien of any Series of First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the Lien of any other Series of First Lien Obligations (such third party an “ Intervening Creditor ”), the value of any Shared Collateral, Equity Release Proceeds or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral, Equity Release Proceeds or Proceeds to be distributed in respect of the Series of First Lien Obligations with respect to which such Impairment exists.
(ii) In furtherance of the foregoing and without limiting the provisions of Section 2.03, it is the intention of the First Lien Secured Parties of each Series that the holders of First Lien Obligations of such Series (and not the First Lien Secured Parties of any other Series) (1) bear the risk of any determination by a court of competent jurisdiction that (x) any of the First Lien Obligations of such Series are unenforceable under applicable law or are subordinated to any other obligations (other than another Series of First Lien Obligations), (y) any of the First Lien Obligations of such Series do not have a valid and perfected security interest in any of the Collateral securing any other Series of First Lien Obligations and/or (z) any intervening security interest exists securing any other obligations (other than another Series of First Lien Obligations) on a basis ranking prior to the security interest of such Series of First Lien Obligations but junior to the security interest of any other Series of First Lien Obligations and (2) not take into account for purposes of this Agreement the existence of any Collateral (other than Equity Release Proceeds) for any other Series of First Lien Obligations that is not Shared Collateral (any
 
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such condition referred to in the foregoing clauses (1) or (2) with respect to any Series of First Lien Obligations, an “ Impairment ” of such Series); provided that the existence of a maximum claim with respect to any real property subject to a mortgage which applies to all First Lien Obligations shall not be deemed to be an Impairment of any Series of First Lien Obligations. In the event of any Impairment with respect to any Series of First Lien Obligations, the results of such Impairment shall be borne solely by the holders of such Series of First Lien Obligations, and the rights of the holders of such Series of First Lien Obligations (including the right to receive distributions in respect of such Series of First Lien Obligations pursuant to Section 2.01) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Series of such First Lien Obligations subject to such Impairment. Additionally, in the event the First Lien Obligations of any Series are modified pursuant to applicable law (including pursuant to Section 1129 of the Bankruptcy Code), any reference to such First Lien Obligations or the First Lien Credit Documents governing such First Lien Obligations shall refer to such obligations or such documents as so modified.
(c) It is acknowledged that the First Lien Obligations of any Series may, subject to the limitations set forth in the then existing First Lien Credit Documents and subject to any limitations set forth in this Agreement, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section  2.01(a) or the provisions of this Agreement defining the relative rights of the First Lien Secured Parties of any Series.
(d) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the First Lien Credit Documents or any defect or deficiencies in the Liens securing the First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section  2.01(b) ), each First Lien Secured Party hereby agrees that the Liens securing each Series of First Lien Obligations on any Shared Collateral shall be of equal priority.
(e) Notwithstanding anything in this Agreement or any other First Lien Document to the contrary, prior to the Discharge of the Credit Agreement Obligations, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of letters of credit pursuant to the Credit Agreement shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.
SECTION 2.02 Actions with Respect to Shared Collateral; Prohibition on Contesting Liens .
(a) Notwithstanding Section  2.01 , (i) only the Applicable Collateral Agent shall act or refrain from acting with respect to Shared Collateral (including with respect to any other intercreditor agreement with respect to any Shared Collateral), (ii) the Applicable Collateral Agent shall act only on the instructions of the Applicable Representative and shall not follow any instructions with respect to such Shared Collateral (including with respect to any other intercreditor agreement with respect to any Shared Collateral) from any Non-Controlling Representative (or
 
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any other First Lien Secured Party other than the Applicable Representative) and (iii) no Other First Lien Secured Party shall or shall instruct any Collateral Agent to, and any other Collateral Agent that is not the Applicable Collateral Agent shall not, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, Shared Collateral (including with respect to any other intercreditor agreement with respect to Shared Collateral), whether under any First Lien Collateral Document (other than the First Lien Collateral Documents applicable to the Applicable Collateral Agent), applicable law or otherwise, it being agreed that only the Applicable Collateral Agent, acting in accordance with the First Lien Collateral Documents applicable to it, shall be entitled to take any such actions or exercise any remedies with respect to such Shared Collateral at such time.
(b) Without limiting the provisions of Section 4.02, each Non-Controlling Representative and Collateral Agent that is not the Applicable Collateral Agent hereby appoints the Applicable Collateral Agent as its agent and authorizes the Applicable Collateral Agent to exercise any and all remedies under each First Lien Collateral Document with respect to Shared Collateral and to execute releases in connection therewith.
(c) Notwithstanding the equal priority of the Liens securing each Series of First Lien Obligations granted on the Shared Collateral, the Applicable Collateral Agent (acting on the instructions of the Applicable Representative) may deal with the Shared Collateral as if such Applicable Collateral Agent had a senior and exclusive Lien on such Shared Collateral. No Non-Controlling Representative, Non-Controlling Secured Party or Collateral Agent that is not the Applicable Collateral Agent will contest, protest or object to any foreclosure proceeding or action brought by the Applicable Collateral Agent, the Applicable Representative or the Controlling Secured Parties or any other exercise by the Applicable Collateral Agent, the Applicable Representative or the Controlling Secured Parties of any rights and remedies relating to the Shared Collateral. The foregoing shall not be construed to limit the rights and priorities of any First Lien Secured Party, the Collateral Agent or Representative with respect to any Collateral not constituting Shared Collateral.
(d) Each of the Collateral Agents (other than the Initial First Lien Collateral Agent) and the Representatives (other than the Initial First Lien Representative) agrees that it will not accept any Lien on any Collateral for the benefit of any Series of Other First Lien Obligations (other than funds deposited for the satisfaction, discharge or defeasance of any Other First Lien Agreement) other than pursuant to the First Lien Collateral Documents, and by executing this Agreement (or a Joinder Agreement), each such Collateral Agent and each such Representative and the Series of First Lien Secured Parties for which it is acting hereunder agree to be bound by the provisions of this Agreement and the other First Lien Collateral Documents applicable to it.
(e) Each of the First Lien Secured Parties agrees that it will not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity or enforceability of a Lien held by or on behalf of any of the First Lien Secured Parties in all or any part of the Collateral, or the provisions of this Agreement; provided , that nothing in this Agreement shall be construed
 
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to prevent or impair (i) the rights of any Collateral Agent or any Representative to enforce this Agreement or (ii) the rights of any First Lien Secured Party to contest or support any other Person in contesting the enforceability of any Lien purporting to secure obligations not constituting First Lien Obligations.
SECTION 2.03 No Interference; Payment Over; Exculpatory Provisions .
(a) Each First Lien Secured Party agrees that (i) it will not challenge or question or support any other Person in challenging or questioning in any proceeding the validity or enforceability of any First Lien Obligations of any Series or any First Lien Collateral Document or the validity, attachment, perfection or priority of any Lien under any First Lien Collateral Document or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any First Lien Secured Party from challenging or questioning the validity or enforceability of any First Lien Obligations constituting unmatured interest or the validity of any Lien relating thereto pursuant to Section 502(b)(2) of the Bankruptcy Code, (ii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of the Collateral by the Applicable Collateral Agent, (iii) except as provided in Section  2.02 , it shall have no right to and shall not otherwise (A) direct the Applicable Collateral Agent or any other First Lien Secured Party to exercise any right, remedy or power with respect to any Shared Collateral (including pursuant to any other intercreditor agreement) or (B) consent to, or object to, the exercise by, or any forbearance from exercising by, the Applicable Collateral Agent or any other First Lien Secured Party represented thereby of any right, remedy or power with respect to any Collateral, (iv) it will not institute any suit or assert in any suit, bankruptcy, insolvency or other proceeding any claim against the Applicable Collateral Agent or any other First Lien Secured Party represented thereby seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to any Collateral and (v) it will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Applicable Collateral Agent or any other First Lien Secured Party to enforce this Agreement, including Section  2.01(b) hereof or contest or support any other Person in contesting the enforceability of any Lien purporting to secure obligations not constituting First Lien Obligations.
(b) Each First Lien Secured Party hereby agrees that if it shall obtain possession of any Shared Collateral (it being understood that Shared Collateral will be deemed not to be in the possession of a First Lien Secured Party to the extent such First Lien Secured Party has paid cash for such Shared Collateral pursuant to any exercise of remedies permitted hereunder) or shall realize any proceeds or payment in respect of any Shared Collateral, pursuant to any First Lien Collateral Document or by the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation Proceeding or through any other exercise of remedies (including pursuant to any other intercreditor agreement), at any time prior to the Discharge of each of the First Lien Obligations, then it shall hold such Shared Collateral, proceeds or payment in trust for the other First Lien Secured Parties having a security interest in such Shared Collateral and promptly transfer any such Shared Collateral, proceeds or payment, as the case may be, to the Applicable Collateral Agent, to be distributed by such Applicable Collateral Agent in accordance with the provisions of Section  2.01(a) hereof.
 
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(c) None of the Applicable Collateral Agent, any Applicable Representative or any other First Lien Secured Party shall be liable for any action taken or omitted to be taken by the Applicable Collateral Agent, such Applicable Representative or other First Lien Secured Party with respect to any Collateral in accordance with the provisions of this Agreement.
SECTION 2.04 Automatic Release of Liens .
(a) If, at any time, any Shared Collateral is transferred to a third party or otherwise disposed of, in each case, in connection with any enforcement by the Applicable Collateral Agent in accordance with the provisions of this Agreement, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor of the other Collateral Agents for the benefit of each Series of First Lien Secured Parties (or in favor of such other First Lien Secured Parties if directly secured by such Liens) upon such Shared Collateral will automatically be released and discharged upon final conclusion of such disposition as and when, but only to the extent, such Liens of the Applicable Collateral Agent on such Shared Collateral are released and discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section  2.01 hereof. If, in connection with any such foreclosure or other exercise of remedies by the Applicable Collateral Agent, the Applicable Collateral Agent or related Applicable Representative of such Series of First Lien Obligations releases any guarantor from its obligation under a guarantee of the Series of First Lien Obligations for which it serves as agent prior to a Discharge of such Series of First Lien Obligations, such guarantor also shall be released from its guarantee of all other First Lien Obligations. If in connection with any such foreclosure or other exercise of remedies by the Applicable Collateral Agent, in each case prior to the Discharge of such Series of First Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and the Applicable Collateral Agent releases its Lien on the property or assets of such Person, then the Liens of each other Collateral Agent (or in favor of such other First Lien Secured Parties if directly secured by such Liens) with respect to any Collateral consisting of the property or assets of such Person will be automatically released and discharged to the same extent as the Liens of the Applicable Collateral Agent are released and discharged; provided that any proceeds of any such equity interests foreclosed upon where the Applicable Collateral Agent releases its Lien on the assets of such Person on which another Series of First Lien Obligations holds a Lien on any of the assets of such Person (any such assets, the “ Underlying Assets ”) which Lien is released as provided in this sentence (any such Proceeds being referred to herein as “ Equity Release Proceeds ” regardless of whether or not such other Series of First Lien Obligations holds a Lien on such equity interests so disposed of) shall be applied pursuant to Section  2.01 hereof.
(b) Without limiting the rights of the Applicable Collateral Agent under Section 4.02, each Collateral Agent and each Representative agrees to execute and deliver (at the sole cost and expense of the Grantors) all such authorizations and other instruments as shall reasonably be requested by the Applicable Collateral Agent to evidence and confirm any release of Shared Collateral, Underlying Assets or guarantee provided for in this Section, in each case, without recourse to or warranty of any kind by any Collateral Agent or Representative.
 
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SECTION 2.05 Certain Agreements with Respect to Bankruptcy or Insolvency Proceedings .
(a) This Agreement shall continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law by or against any Grantor or any of its subsidiaries.
(b) If any Grantor shall become subject to a case (a “ Bankruptcy Case ”) under the Bankruptcy Code and shall, as debtor(s)-in-possession, move for approval of financing (“ DIP Financing ”) to be provided by one or more lenders (the “ DIP Lenders ”) under Section 364 of the Bankruptcy Code or the use of cash collateral under Section 363 of the Bankruptcy Code, each First Lien Secured Party (other than any Controlling Secured Party or any Representative of any Controlling Secured Party) agrees that it will not raise any objection to any such financing or to the Liens on the Shared Collateral securing the same (“ DIP Financing Liens ”) or to any use of cash collateral that constitutes Shared Collateral, unless a Representative of the Controlling Secured Parties shall then oppose or object to such DIP Financing or such DIP Financing Liens or use of cash collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the Controlling Secured Parties, each Non-Controlling Secured Party will subordinate its Liens with respect to such Shared Collateral on the same terms as the Liens of the Controlling Secured Parties (other than any Liens of any First Lien Secured Parties constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the First Lien Obligations of the Controlling Secured Parties, each Non-Controlling Secured Party will confirm the priorities with respect to such Shared Collateral as set forth herein), in each case so long as (A) the First Lien Secured Parties of each Series retain the benefit of their Liens on all such Shared Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-à-vis all the other First Lien Secured Parties (other than any Liens of the First Lien Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case, (B) the First Lien Secured Parties of each Series are granted Liens on any additional collateral pledged to any First Lien Secured Parties as adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, with the same priority vis-à-vis the First Lien Secured Parties as set forth in this Agreement (other than any Liens of any First Lien Secured Parties constituting DIP Financing Liens), (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the First Lien Obligations, such amount is applied pursuant to Section  2.01(a) of this Agreement and (D) if any First Lien Secured Parties are granted adequate protection with respect to the First Lien Obligations subject hereto, including in the form of periodic payments, in connection with such use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section  2.01(a) of this Agreement; provided that the First Lien Secured Parties of each Series shall have a right to object to the grant of a Lien to secure the DIP Financing over any Collateral subject to Liens in favor of the First Lien Secured Parties of such Series or its Representative that shall not constitute Shared Collateral (unless such Collateral fails to constitute Shared Collateral because the Lien in respect thereof constitutes a declined Lien with respect to such First Lien Secured Parties or their Representative or Collateral Agent); and provided further that the First Lien Secured Parties receiving adequate protection shall not object to any other First Lien Secured Party receiving adequate protection comparable to any adequate protection granted to such First Lien Secured Parties in connection with a DIP Financing or use of cash collateral.
 
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(c) If any First Lien Secured Party is granted adequate protection (A) in the form of Liens on any additional collateral, then each other First Lien Secured Party shall be entitled to seek, and each First Lien Secured Party will consent and not object to, adequate protection in the form of Liens on such additional collateral with the same priority vis-à-vis the First Lien Secured Parties as set forth in this Agreement, (B) in the form of a superpriority or other administrative claim, then each other First Lien Secured Party shall be entitled to seek, and each First Lien Secured Party will consent and not object to, adequate protection in the form of a pari passu superpriority or administrative claim or (C) in the form of periodic or other cash payments, then the proceeds of such adequate protection must be applied to all First Lien Obligations pursuant to Section  2.01 .
SECTION 2.06 Reinstatement .
In the event that any of the First Lien Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason (including an order or judgment for disgorgement of a preference under Title 11 of the Bankruptcy Code, or any similar law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Agreement shall be fully applicable thereto until all such First Lien Obligations shall again have been paid in full in cash.
SECTION 2.07 Insurance and Condemnation Awards .
As among the First Lien Secured Parties, the Applicable Collateral Agent (acting at the direction of the Applicable Representative) shall have the right, but not the obligation, to adjust or settle any insurance policy or claim covering or constituting Shared Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral. To the extent any Collateral Agent or any other First Lien Secured Party receives proceeds of such insurance policy and such proceeds are not permitted or required to be returned to any Grantor under the applicable First Lien Documents, such proceeds shall be turned over to the Applicable Collateral Agent for application as provided in Section 2.01 hereof.
SECTION 2.08 Refinancings .
The First Lien Obligations of any Series may, subject to Section 5.14, be Refinanced, in whole or in part, in each case, without notice to, or the consent of any First Lien Secured Party of any other Series (except to the extent such a consent is expressly required to Permit the Refinancing transaction under any First Lien Credit Documents), all without affecting the priorities provided for herein or the other provisions hereof; provided that the Representative and Collateral Agent of the holders of any such Refinancing Indebtedness shall have executed a Joinder Agreement on behalf of the holders of such Refinancing Indebtedness; provided further that nothing in this Section 2.08 shall affect any limitation on any such Refinancing that is set forth in the First Lien Credit Documents in respect of the First Lien Obligations of any other Series. If such Refinancing Indebtedness is intended to constitute a Replacement Credit Agreement, the Company shall so state in its Designation.
 
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SECTION 2.09 Gratuitous Bailee/Agent for Perfection .
(a) The Possessory Collateral constituting Shared Collateral shall be delivered to the Applicable Collateral Agent and the Applicable Collateral Agent agrees to hold any Possessory Collateral constituting Shared Collateral and any other Shared Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of each other First Lien Secured Party (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted in such Shared Collateral, if any, pursuant to the applicable First Lien Collateral Documents, in each case, subject to the terms and conditions of this Section  2.09 . Solely with respect to any Deposit Accounts constituting Shared Collateral under the control (within the meaning of Section 9-104 of the UCC) of the Initial First Lien Collateral Agent, the Initial First Lien Collateral Agent agrees to also hold control over such Deposit Accounts as gratuitous agent for each other First Lien Secured Party and any assignee thereof solely for the purpose of perfecting the security interest in such Deposit Accounts subject to the terms and conditions of this Section  2.09 .
(b) Each Collateral Agent agrees to hold any Possessory Collateral constituting Shared Collateral and any other Shared Collateral from time to time in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of each other First Lien Secured Party and any assignee thereof, solely for the purpose of perfecting the security interest granted in such Shared Collateral, if any, pursuant to the applicable First Lien Collateral Documents, in each case, subject to the terms and conditions of this Section  2.09 . Solely with respect to any Deposit Accounts constituting Shared Collateral under the control (within the meaning of Section 9-104 of the UCC) of any Collateral Agent, each such Collateral Agent agrees to also hold control over such Deposit Accounts as gratuitous agent for each other First Lien Secured Party and any assignee thereof solely for purpose of perfecting the security in such Deposit Accounts, subject to the terms and conditions of this Section  2.09 .
(c) No Collateral Agent shall have any obligation whatsoever to any First Lien Secured Party to ensure that the Possessory Collateral and Control Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section  2.09 . The duties or responsibilities of each Collateral Agent under this Section  2.09 shall be limited solely to holding any Possessory Collateral constituting Shared Collateral or any other Shared Collateral in its possession or control as gratuitous bailee (and with respect to Deposit Accounts, as gratuitous agent) in accordance with this Section  2.09 and delivering the Possessory Collateral constituting Shared Collateral as provided in clause (e) below.
(d) None of the Collateral Agents or any of the First Lien Secured Parties shall have by reason of the First Lien Credit Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agents or any other First Lien Secured Party, and each Collateral Agent and each First Lien Secured Party hereby waives and releases the other Collateral Agents and First Lien Secured Parties from all claims and liabilities arising pursuant to any Collateral Agent’s role under this Section  2.09 as gratuitous bailee with respect to the Possessory Collateral constituting Shared Collateral or any other Shared Collateral in its possession or control (and with respect to the Deposit Accounts, as gratuitous agent).
 
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(e) At any time the Applicable Collateral Agent is no longer the Applicable Collateral Agent, such outgoing Applicable Collateral Agent shall deliver the remaining Possessory Collateral constituting Shared Collateral in its possession (if any) together with any necessary endorsements (which endorsement shall be without recourse and without any representation or warranty), first , to the then Applicable Collateral Agent to the extent First Lien Obligations remain outstanding and second , to the applicable Grantor to the extent no First Lien Obligations remain outstanding (in each case, so as to allow such Person to obtain possession or control of such Shared Collateral) or to whomever may be lawfully entitled to receive the same, including pursuant to any Junior Lien Intercreditor Agreement (as defined in the Credit Agreement), if applicable. The outgoing Applicable Collateral Agent further agrees to take all other action reasonably requested by the then incoming Applicable Collateral Agent at the expense of the Company in connection with the then Applicable Collateral Agent obtaining a first-priority security interest in the Shared Collateral, without recourse to or warranty of any kind by the outgoing Applicable Collateral Agent.
SECTION 2.10 Amendments to First Lien Collateral Documents .
(a) Without the prior written consent of each other Collateral Agent, each Collateral Agent agrees that no First Lien Collateral Document may be amended, restated, amended and restated, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new First Lien Collateral Document, would be prohibited by, or would require any Grantor to act or refrain from acting in a manner that would violate, any of the terms of this Agreement.
(b) In determining whether an amendment to any First Lien Collateral Document is permitted by this Section  2.10 , each Collateral Agent may conclusively rely on an officer’s certificate of the Company stating that such amendment is permitted by this Section  2.10 .
ARTICLE III.
EXISTENCE AND AMOUNTS OF LIENS AND OBLIGATIONS
Whenever any Applicable Collateral Agent or any Applicable Representative shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any First Lien Obligations of any Series, or the Shared Collateral subject to any Lien securing the First Lien Obligations of any Series, it may request that such information be furnished to it in writing by each other Representative or each other Collateral Agent and shall be entitled to make such determination or not make any determination on the basis of the information so furnished; provided , however , that if a Representative or a Collateral Agent shall fail or refuse reasonably promptly to provide the requested information, the requesting Applicable Collateral Agent or Applicable Representative shall be entitled to make any such determination or not make any determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Company. Each Applicable Collateral Agent and each Applicable Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any First Lien Secured Party or any other person as a result of such determination.
 
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ARTICLE IV.
THE APPLICABLE COLLATERAL AGENT
SECTION 4.01 Authority .
(a) Notwithstanding any other provision of this Agreement, nothing herein shall be construed to impose any fiduciary or other duty on any Applicable Collateral Agent to any Non-Controlling Secured Party or give any Non-Controlling Secured Party the right to direct any Applicable Collateral Agent, except that each Applicable Collateral Agent shall be obligated to distribute proceeds of any Shared Collateral in accordance with Section  2.01 hereof.
(b) In furtherance of the foregoing, each Non-Controlling Secured Party acknowledges and agrees that the Applicable Collateral Agent shall be entitled, for the benefit of the First Lien Secured Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral as provided herein and in the First Lien Collateral Documents, as applicable, without regard to any rights to which the Non-Controlling Secured Parties would otherwise be entitled as a result of the First Lien Obligations held by such Non-Controlling Secured Parties. Without limiting the foregoing, each Non-Controlling Secured Party agrees that none of the Applicable Collateral Agent, the Applicable Representative or any other First Lien Secured Party shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral (or any other Collateral securing any of the First Lien Obligations), or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any First Lien Obligations), in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured Parties from such realization, sale, disposition or liquidation. Each of the First Lien Secured Parties waives any claim it may now or hereafter have against any Collateral Agent or the Representative of any other Series of First Lien Obligations or any other First Lien Secured Party of any other Series arising out of (i) any actions which any such Collateral Agent, Representative or any First Lien Secured Party represented by it take or omit to take (including actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the First Lien Obligations from any account debtor, guarantor or any other party) in accordance with the First Lien Collateral Documents or any other agreement related thereto or in connection with the collection of the First Lien Obligations or the valuation, use, protection or release of any security for the First Lien Obligations; provided that nothing in this clause (i) shall be construed to prevent or impair the rights of any Collateral Agent or Representative to enforce this Agreement, (ii) any election by any Applicable Representative or any holders of First Lien Obligations, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code or (iii) subject to Section  2.05 , any borrowing, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, by Holdings (as defined in the Credit Agreement), the
 
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Company or any of its Subsidiaries, as debtor-in-possession. Notwithstanding any other provision of this Agreement, the Applicable Collateral Agent shall not accept any Shared Collateral in full or partial satisfaction of any First Lien Obligations pursuant to Section 9-620 of the Uniform Commercial Code of any jurisdiction, without the consent of each Representative representing holders of First Lien Obligations for whom such Collateral constitutes Shared Collateral.
SECTION 4.02 Power-of-Attorney .
Each Non-Controlling Representative and Collateral Agent that is not the Applicable Collateral Agent, for itself and on behalf of the First Lien Secured Parties of the Series for whom it is acting, hereby irrevocably appoints the Applicable Collateral Agent and any officer or agent of the Applicable Collateral Agent, which appointment is coupled with an interest with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Non-Controlling Representative, Collateral Agent or First Lien Secured Party, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Agreement, including the exercise of any and all remedies under each First Lien Collateral Document with respect to Shared Collateral and the execution of releases in connection therewith.
ARTICLE V.
MISCELLANEOUS
SECTION 5.01 Integration/Conflicts .
This Agreement together with the other First Lien Documents represents the entire agreement of each of the Grantors and the First Lien Secured Parties with respect to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof and thereof. There are no promises, undertakings, representations or warranties by any Representative, Collateral Agent or First Lien Secured Party relative to the subject matter hereof and thereof not expressly set forth or referred to herein or therein. In the event of any conflict between the provisions of this Agreement and the provisions of the First Lien Credit Documents the provisions of this Agreement shall govern and control.
SECTION 5.02 Effectiveness; Continuing Nature of this Agreement; Severability .
This Agreement shall become effective when executed and delivered by the parties hereto. This is a continuing agreement and the First Lien Secured Parties of any Series may continue, at any time and without notice to any First Lien Secured Party of any other Series, to extend credit and other financial accommodations and lend monies to or for the benefit of the Company or any Grantor constituting First Lien Obligations in reliance hereon. Each Representative and each Collateral Agent, on behalf of itself and the First Lien Secured Parties represented by it, hereby waives any right it may have under applicable law to revoke this Agreement or any of the provisions of this Agreement. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
 
22

invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to those of the invalid, illegal or unenforceable provisions. All references to the Company or any other Grantor shall include the Company or such Grantor as debtor and debtor in possession and any receiver, trustee or similar person for the Company or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding. This Agreement shall terminate and be of no further force and effect with respect to any Representative or Collateral Agent or the First Lien Secured Parties represented by such Representative or Collateral Agent and their First Lien Obligations, on the date on which no First Lien Obligations of such First Lien Secured Parties are any longer secured by, or required to be secured by, any of the Collateral pursuant to the terms of the applicable First Lien Documents, subject to the rights of the First Lien Secured Parties under Section 2.06; provided , however , that such termination shall not relieve any such party of its obligations incurred hereunder prior to the date of such termination.
SECTION 5.03 Amendments; Waivers .
(a) No amendment, modification or waiver of any of the provisions of this Agreement shall be deemed to be made unless the same shall be in writing signed on behalf of each party hereto or its authorized agent and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time. Notwithstanding the foregoing, the Company and the other Grantors shall not have any right to consent to or approve any amendment, modification or waiver of any provision of this Agreement except to the extent their rights are adversely affected.
(b) Notwithstanding the foregoing, without the consent of any First Lien Secured Party, any Representative and Collateral Agent may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section 5.14 of this Agreement and upon such execution and delivery, such Representative and Collateral Agent and the Other First Lien Secured Parties and Other First Lien Obligations of the Series for which such Representative and Collateral Agent is acting shall be subject to the terms hereof.
(c) Notwithstanding the foregoing, without the consent of any other Representative or First Lien Secured Party, the Applicable Collateral Agent may effect amendments and modifications to this Agreement to the extent necessary to reflect any incurrence of any Other First Lien Obligations in compliance with the Credit Agreement and the other First Lien Credit Documents.
SECTION 5.04 Information Concerning Financial Condition of the Grantors and their Subsidiaries .
The Representative and Collateral Agent and the First Lien Secured Parties of each Series shall each be responsible for keeping themselves informed of (a) the financial condition of the Grantors and their Subsidiaries and all endorsers and/or guarantors of the First Lien Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First Lien Obligations.
 
23

The Representative and Collateral Agent and the other First Lien Secured Parties of each Series shall have no duty to advise the Representative, Collateral Agent or First Lien Secured Parties of any other Series of information known to it or them regarding such condition or any such circumstances or otherwise. In the event the Representative or Collateral Agent or any of the other First Lien Secured Parties, in its or their sole discretion, undertakes at any time or from time to time to provide any such information to the Representative, Collateral Agent or First Lien Secured Parties of any other Series, it or they shall be under no obligation:
(a) to make, and such Representative and Collateral Agent and such other First Lien Secured Parties shall not make, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided;
(b) to provide any additional information or to provide any such information on any subsequent occasion;
(c) to undertake any investigation; or
(d) to disclose any information, which pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.
SECTION 5.05 Submission to Jurisdiction; Certain Waivers .
Each of the Company, each other Grantor, and each Collateral Agent and each Representative, on behalf of itself and the applicable First Lien Secured Parties for whom it is acting, hereby irrevocably and unconditionally
(a) submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each such party hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each such party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that each Collateral Agent and each Representative may otherwise have to bring any action or proceeding against the Borrower or any Grantor or its properties in the courts of any jurisdiction;
(b) waives, to the fullest extent it may legally and effectively do so (i) any objection it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a) of this Section 5.05 and (ii) the defense of an inconvenient forum to the maintenance of such action or proceeding; and
 
24

(c) consents to service of process in the manner provided for notices in Section 5.05. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 5.06 WAIVER OF JURY TRIAL .
EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
SECTION 5.07 Notices .
Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be personally served or sent by facsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of facsimile, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed. For the purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name on the signature pages hereto or in the Joinder Agreement pursuant to which it becomes a party hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.
SECTION 5.08 Further Assurances .
Each Representative and Collateral Agent, on behalf of itself and the First Lien Secured Parties represented by it, and the Company and each other Grantor, agree that each of them shall take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as any Representative and Collateral Agent may reasonably request to effectuate the terms of and the Lien priorities contemplated by this Agreement.
SECTION 5.09 Agency Capacities .
Except as expressly provided herein, (a) JPM, is acting in the capacity of Initial First Lien Representative and Initial First Lien Collateral Agent solely for the Credit Agreement Secured Parties. Except as expressly provided herein, (b) the Initial Other Representative and the Initial Other Collateral Agent is acting in the capacity of Representative and Collateral Agent, respectively, solely for the Initial Other First Lien Secured Parties and (c) each other Representative and each other Collateral Agent is acting in the capacity of Representative and Collateral Agent, respectively, solely for the Other First Lien Secured Parties under the Other First Lien Documents for which it is the named Representative or Collateral Agent, as the case may be, in the applicable Joinder Agreement.
 
25

SECTION 5.10 GOVERNING LAW .
THIS AGREEMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE), SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 5.11 Binding on Successors and Assigns .
This Agreement shall be binding upon each Representative and each Collateral Agent, the First Lien Secured Parties, the Company and the other Grantors, and their respective successors and assigns. If any of the Representatives and/or Collateral Agents resigns or is replaced pursuant to the applicable First Lien Credit Documents its successor shall be deemed to be a party to this Agreement and shall have all the rights of, and be subject to all the obligations of, this Agreement. No provision of this Agreement will inure to the benefit of a trustee, debtor-in-possession, creditor trust or other representative of an estate or creditor of any Grantor, including where any such trustee, debtor-in-possession, creditor trust or other representative of an estate is the beneficiary of a Lien securing Collateral by virtue of the avoidance of such Lien in an Insolvency or Liquidation Proceeding.
SECTION 5.12 Section Headings .
Section headings and the Table of Contents used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
SECTION 5.13 Counterparts .
This Agreement may be executed by one or more of the parties to this Agreement in one or more counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission (e.g. “pdf” or “tif” format) shall be effective as delivery of a manually executed counterpart hereof.
SECTION 5.14 Other First Lien Obligations .
(a) To the extent, but only to the extent, not prohibited by the provisions of the Credit Agreement and the other First Lien Documents, the Company may incur (x) additional Indebtedness (which for the avoidance of doubt shall include any Indebtedness incurred pursuant to a Refinancing except to the extent constituting Indebtedness under a Replacement Credit Agreement) after the date hereof that is secured on an equal and ratable basis with the Liens securing the Credit Agreement Obligations and the Other First Lien Obligations (such Indebtedness, “ Additional First Lien Debt ”) and (y) Indebtedness under any Replacement Credit Agreement that is secured on an equal and ratable basis with the Liens securing the Other First Lien Obligations. Any such Additional First Lien Debt and related other First Lien Obligations may be secured by a Lien on a ratable basis, in each case under and pursuant to the Other First
 
26

Lien Documents, if and subject to the condition that the Additional First Lien Collateral Agent and Additional First Lien Representative of any such Additional First Lien Debt, acting on behalf of the holders of such Additional First Lien Debt (such Additional First Lien Collateral Agent, Additional First Lien Representative and holders in respect of any Additional First Lien Debt being referred to as “ Additional First Lien Secured Parties ”), each becomes a party to this Agreement and the Term/ABL Intercreditor Agreement (if then in effect) by satisfying the conditions set forth in Section 5.14(b). Any Indebtedness and other Credit Agreement Obligations under any Replacement Credit Agreement may be secured by Liens on an equal and ratable basis, in each case under and pursuant to the Credit Agreement Documents, if and subject to the condition that the Replacement Representative and Replacement Collateral Agent, acting on behalf of the holders of such Credit Agreement Obligations, each becomes a party to this Agreement and the Term/ABL Intercreditor Agreement (if then in effect) by satisfying the conditions set forth in Section  5.14(b) .
(b) In order for an Additional First Lien Representative and Additional First Lien Collateral Agent, or, in the case of a Replacement Credit Agreement, the Replacement Representative and the Replacement Collateral Agent in respect thereof, to become a party to this Agreement,
(i) such Additional First Lien Representative and such Additional First Lien Collateral Agent or such Replacement Representative and such Replacement Collateral Agent shall have executed and delivered (A) an instrument substantially in the form of Exhibit A (with such changes as may be reasonably approved by each Collateral Agent and such Additional First Lien Representative and such Additional First Lien Collateral Agent or such Replacement Representative and such Replacement Collateral Agent, as the case may be) pursuant to which either (x) such Additional First Lien Representative becomes a Representative hereunder and such Additional First Lien Collateral Agent becomes a Collateral Agent hereunder, and such Additional First Lien Debt and the related Other First Lien Obligations in respect of which such Additional First Lien Representative is the Representative and the related Additional First Lien Secured Parties become subject hereto and bound hereby or (y) such Replacement Representative becomes the Initial First Lien Representative hereunder and such Replacement Collateral Agent becomes the Initial First Lien Collateral Agent hereunder, such Replacement Credit Agreement becomes the Credit Agreement hereunder and such Credit Agreement Obligations and holders of such Credit Agreement Obligations become subject hereto and bound hereby and (B) a joinder agreement to the Term/ABL Intercreditor Agreement (if then in effect) in the form required thereby or such other form as may be acceptable to the parties thereto;
(ii) the Company shall have delivered to each Collateral Agent:
(a) true and complete copies of each of the Other First Lien Documents relating to such Additional First Lien Debt or the Replacement Credit Agreement, as the case may be;
(b) a Designation pursuant to which the Company shall (i) identify the Indebtedness to be designated as Other First Lien Obligations or Credit Agreement Obligations, if applicable, and the initial aggregate principal amount or committed amount thereof, (ii) specify the name and address of the Additional First Lien
 
27

Collateral Agent and Additional First Lien Representative or the Replacement Collateral Agent and Replacement Representative, if applicable, (iii) certify that such (A) Additional First Lien Debt or (B) Credit Agreement Obligations, as applicable, is permitted by each applicable First Lien Document and that the conditions set forth in this Section 5.14 are satisfied with respect to such Additional First Lien Debt and the related Other First Lien Obligations or Credit Agreement Obligations, as applicable and (iv) in the case of a Replacement Credit Agreement, expressly state that such agreement giving rise to the new Indebtedness satisfies the requirements of a Replacement Credit Agreement and is designated as a Replacement Credit Agreement; and
(iii) the Other First Lien Documents, as applicable, relating to such Additional First Lien Debt shall provide, in a manner reasonably satisfactory to each Collateral Agent, that each Additional First Lien Secured Party with respect to such Additional First Lien Debt will be subject to and bound by the provisions of this Agreement in its capacity as a holder of such Additional First Lien Debt.
(c) Upon the execution and delivery of a Joinder Agreement by an Additional First Lien Representative and an Additional First Lien Collateral Agent or the Replacement Representative and the Replacement Collateral Agent, in the case of a Replacement Credit Agreement, if applicable, in each case, in accordance with this Section 5.14, each other Representative and Collateral Agent shall acknowledge such receipt thereof by countersigning a copy thereof, subject to the terms of this Section 5.14 and returning the same to such Additional First Lien Representative and Additional First Lien Collateral Agent or Replacement Representative and Replacement Collateral Agent, as applicable; provided that the failure of any Representative or Collateral Agent to so acknowledge or return shall not affect the status of such debt as Additional First Lien Debt or a Replacement Credit Agreement, as the case may be, if the other requirements of this Section 5.14 are complied with.
SECTION 5.15 Authorization .
By its signature, each Person executing this Agreement, on behalf of such party or Grantor but not in his or her personal capacity as a signatory, represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement.
SECTION 5.16 No Third Party Beneficiaries/ Provisions Solely to Define Relative Rights .
The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Secured Parties in relation to one another. None of the Company, any other Grantor or any other creditor thereof shall have any rights or obligations hereunder and no such Person is an intended beneficiary or third party beneficiary hereof, except, in each case, as expressly provided in this Agreement, and none of the Company or any other Grantor may rely on the terms hereof (other than Sections 2.04 and 2.08 and Article V). Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the First Lien Obligations as and when the same shall become due and payable in accordance with their terms. Without limitation of any other provisions of this
 
28

Agreement, the Company and each Grantor hereby (a) acknowledges that it has read this Agreement and consents hereto, (b) agrees that it will not take any action that would be contrary to the express provisions of this Agreement and (c) agrees to abide by the requirements expressly applicable to it under this Agreement. Nothing herein shall be construed to limit the relative rights and obligations as among the parties to the Term/ABL Intercreditor Agreement; as among such Persons, such rights and obligations are governed by, and any provisions herein regarding them are therefore subject to, the provisions of the Term/ABL Intercreditor Agreement.
SECTION 5.17 No Indirect Actions .
Unless otherwise expressly stated, if a party may not take an action under this Agreement, then it may not take that action indirectly, or support any other Person in taking that action directly or indirectly. “Taking an action indirectly” means taking an action that is not expressly prohibited for the party but is intended to have substantially the same effects as the prohibited action.
SECTION 5.18 Additional Grantors .
In the event any Subsidiary shall have granted a Lien on any of its assets to secure any First Lien Obligations, the Company shall cause such Subsidiary, if not already a signatory hereto, to execute an acknowledgment hereto as a “Grantor” in form and substance reasonably satisfactory to each Collateral Agent and Representative (which may include an additional counterpart signature page to this Agreement). The execution and delivery of any such acknowledgment shall not require the consent of any other party hereto. The rights and obligations of each party hereto shall remain in full force and effect notwithstanding the acknowledgment of any new Grantor as a party to this Agreement.
[Remainder of this page intentionally left blank]
 
29

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

JPMORGAN CHASE BANK, N.A. ,
    as Initial First Lien Representative and Initial First Lien Collateral Agent	
		
By:	 	 	
	 	Name:	
	 	Title:	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[NOTICE ADDRESS]	
	
[                                     ],	
	 	as Initial Other Collateral Agent	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[NOTICE ADDRESS]	
	
[                                     ],	
	 	as Initial Other Representative	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[NOTICE ADDRESS]	

			
Acknowledged and Agreed to by:	
	
AMNEAL PHARMACEUTICALS LLC	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[NOTICE ADDRESS]	
	
[OTHER GRANTORS]	
		
By:	 	 	
	 	Name:	
	 	Title:	

Exhibit A
to First Lien Pari Passu Intercreditor Agreement
FORM OF JOINDER AGREEMENT
JOINDER NO. [ ] dated as of [ ], 20[ ] (the “ Joinder Agreement ”) to the FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT dated as of [ ], 20[ ], (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Pari Passu Intercreditor Agreement ”), among JPMORGAN CHASE BANK, N.A., as Initial First Lien Representative and as Initial First Lien Collateral Agent, [            ], as Initial Other Representative, and [            ], as Initial Other Collateral Agent, and the additional Representatives and Collateral Agents from time to time a party thereto, and acknowledged and agreed to by AMNEAL PHARMACEUTICALS LLC (the “Company ”) and the other Grantors signatory thereto.
A. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Pari Passu Intercreditor Agreement.
B. As a condition to the ability of the Company to incur [Other First Lien Obligations] [Credit Agreement Obligations under the Replacement Credit Agreement] and to secure such [Other First Lien Obligations] [Credit Agreement Obligations] with the liens and security interests created by the [Other First Lien Collateral Documents] [Credit Agreement Collateral Documents], the [Additional First Lien Representative in respect of such Additional First Lien Debt] [Replacement Representative in respect of the Credit Agreement Obligations under the Replacement Credit Agreement] is required to become [a Representative][the Initial First Lien Representative], and the [Additional First Lien Collateral Agent in respect of such Additional First Lien Debt ] [Replacement Collateral Agent in respect of the Credit Agreement Obligations under the Replacement Credit Agreement] is required to become [a Collateral Agent][the Initial First Lien Collateral Agent] and the [Additional First Lien Debt and the Additional First Lien Secured Parties] [Credit Agreement Secured Parties] in respect thereof are required to become subject to and bound by, the Pari Passu Intercreditor Agreement. Section  5.14 of the Pari Passu Intercreditor Agreement provides that such [Additional First Lien Representative may become a Representative][Replacement Representative may become the Initial First Lien Representative], such [Additional First Lien Collateral Agent may become a Collateral Agent][Replacement Collateral Agent may become the Initial First Lien Collateral Agent], and such [Additional First Lien Secured Parties] [Credit Agreement Secured Parties] may become subject to and bound by the Pari Passu Intercreditor Agreement, pursuant to the execution and delivery by the [Additional First Lien Representative] [Replacement Representative] and the [Additional First Lien Collateral Agent] [Replacement Collateral Agent] of an instrument in the form of this Joinder Agreement and the satisfaction of the other conditions set forth in Section  5.14 of the Pari Passu Intercreditor Agreement. The undersigned [Additional First Lien Representative][Replacement Representative] (the “ New Representative ”) and [Additional First Lien Collateral Agent][Replacement Collateral Agent] (the “ New Collateral Agent ”) are executing this Joinder Agreement in accordance with the requirements of the Pari Passu Intercreditor Agreement.
 
Exhibit A-1

Accordingly, the New Representative and the New Collateral Agent agree as follows:
SECTION 1. In accordance with Section  5.14 of the Pari Passu Intercreditor Agreement, (i) the New Representative and the New Collateral Agent by their signatures below become [a Representative and a Collateral Agent][the Initial First Lien Representative and the Initial First Lien Collateral Agent], respectively, under, and the related [Additional First Lien Debt][Replacement Credit Agreement] and [Additional First Lien Secured Parties][Credit Agreement Secured Parties] become subject to and bound by, the Pari Passu Intercreditor Agreement with the same force and effect as if the New Representative and New Collateral Agent had originally been named therein as [a Representative or a Collateral Agent][the Initial First Lien Representative and Initial First Lien Collateral Agent], respectively, [and] (ii) the New Representative and the New Collateral Agent, on their behalf and on behalf of such [Additional First Lien Secured Parties] [Credit Agreement Secured Parties], hereby agree to all the terms and provisions of the Pari Passu Intercreditor Agreement applicable to them as [Representative and Collateral Agent][Initial First Lien Representative and Initial First Lien Collateral Agent], respectively, and to the [Additional First Lien Secured Parties] [Credit Agreement Secured Parties] that they represent as [Other First Lien Secured Parties][Credit Agreement Secured Parties and (iii) the Replacement Credit Agreement hereby becomes the Credit Agreement]. Each reference to [a “ Representative ”][“ Initial First Lien Representative ”] in the Pari Passu Intercreditor Agreement shall be deemed to [include][refer to] the New Representative, [and] each reference to [a “ Collateral Agent ”][“ Initial First Lien Collateral Agent ”] in the Pari Passu Intercreditor Agreement shall be deemed to [include][refer to] the New Collateral Agent [and each reference to the “ Credit Agreement ” shall be deemed to refer to the Replacement Credit Agreement]. The Pari Passu Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. Each of the New Representative and New Collateral Agent represent and warrant to each Collateral Agent, each Representative and the other First Lien Secured Parties, individually, that (i) it has full power and authority to enter into this Joinder Agreement, in its capacity as [agent] [trustee], (ii) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability, and (iii) the [Other First Lien Documents relating to such Additional First Lien Debt provide][Replacement Credit Agreement provides] that, upon the New Representative’s and the New Collateral Agent’s entry into this Joinder Agreement, the [Additional First Lien Secured Parties][Credit Agreement Secured Parties] in respect of such [Other First Lien Obligations][Credit Agreement Obligations] will be subject to and bound by the provisions of the Pari Passu Intercreditor Agreement as [Other First Lien Secured Parties][Credit Agreement Secured Parties].
SECTION 3. This Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Joinder Agreement shall become effective when each Collateral Agent and Representative shall have received a counterpart of this Joinder Agreement that bears the signatures of the New Representative and the New Collateral Agent. Delivery of an executed signature page to this Joinder Agreement by facsimile transmission or other electronic means shall be effective as delivery of a manually signed counterpart of this Joinder Agreement.
 
Exhibit A-2

SECTION 4. Except as expressly supplemented hereby, the Pari Passu Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS JOINDER AGREEMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS JOINDER AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 6. Any provision of this Joinder Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and in the Pari Passu Intercreditor Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to those of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section  5.07 of the Pari Passu Intercreditor Agreement. All communications and notices hereunder to the New Representative and the New Collateral Agent shall be given to them at their respective addresses set forth below their signatures hereto.
SECTION 8. Sections 5.05 and 5.06 of the Pari Passu Intercreditor Agreement are hereby incorporated herein by reference.
[Remainder of this page intentionally left blank]
 
Exhibit A-3

IN WITNESS WHEREOF, the New Representative and New Collateral Agent have duly executed this Joinder Agreement to the Pari Passu Intercreditor Agreement as of the day and year first above written.

[NAME OF NEW REPRESENTATIVE], as	
    [            ] for the holders of [            ],	
		
By:	 	                                                  	
	 	Name:	
	 	Title:	
Address for notices:	

                                                                             	
attention of:                                                         	
Telecopy:                                                            	
	
[NAME OF NEW COLLATERAL AGENT], as	
    [            ] for the holders of [            ],	
		
By:	 	 	
	 	Name:	
	 	Title:	
Address for notices:	

                                                                             	
attention of:                                                         	
Telecopy:                                                            	
 
Exhibit A-4

			
Receipt acknowledged by:	
JPMORGAN CHASE BANK, N.A.,
    as Initial First Lien Representative and Initial First Lien Collateral Agent	
		
By:	 	 	
	 	Name:	
	 	Title:	
		
By:	 	                     	
	 	Name:	
	 	Title:	
	
[                         ],	
as Initial Other Representative	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[                             ],	
as Initial Other Collateral Agent	
		
By:	 	 	
	 	Name:	
	 	Title:	
[OTHERS AS NEEDED]
 
Exhibit A-5

Exhibit B
to First Lien Pari Passu Intercreditor Agreement
[FORM OF]
DEBT DESIGNATION
Reference is made to the First Lien Pari Passu Intercreditor Agreement dated as of         , 20     (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Pari Passu Intercreditor Agreement ”) among JPMORGAN CHASE BANK, N.A., as Initial First Lien Representative and Initial First Lien Collateral Agent, [                    ], as Initial Other Representative, and [                    ], as Initial Other Collateral Agent, and the additional Representatives and Collateral Agents from time to time a party thereto, and acknowledged and agreed to by AMNEAL PHARMACEUTICALS LLC (the “Company ”) and the other Grantors signatory thereto. Capitalized terms used but not otherwise defined herein have the meanings assigned to them in the Pari Passu Intercreditor Agreement. This Debt Designation is being executed and delivered in order to designate [additional Indebtedness and other related First Lien Obligations] [Credit Agreement Obligations] entitled to the benefit and subject to the terms of the Pari Passu Intercreditor Agreement.
The undersigned, the duly appointed [ specify title ] of the Company hereby certifies on behalf of the Company that:
(a) [ insert name of the Company or other Grantor ] intends to incur Indebtedness in the initial aggregate [principal/committed amount] of [                     ] pursuant to the following agreement: [ describe [credit agreement, indenture, other agreement giving rise to Additional First Lien Debt][Replacement Credit Agreement (“ New Agreement ”) ]] which will be [Other First Lien Obligations] [Credit Agreement Obligations];
(b) (i) the name and address of the [Additional First Lien Representative for the Additional First Lien Debt and the related Other First Lien Obligations] [Replacement Representative for the Replacement Credit Agreement] is:

Telephone: ___________________
Fax: _________________________
(ii) the name and address of the [Additional First Lien Collateral Agent for the Additional First Lien Debt and the related Other First Lien Obligations] [Replacement Collateral Agent for the Replacement Credit Agreement] is:

 
Exhibit B-1

Telephone: ___________________
Fax: ________________________
[and]
(a) such [Additional First Lien Debt and the related Other First Lien Obligations] [Credit Agreement Obligations] is permitted by each First Lien Document and the conditions set forth in Section  5.14 of the Pari Passu Intercreditor Agreement are satisfied with respect to such [Additional First Lien Debt and the related Other First Lien Obligations][Credit Agreement Obligations] [ insert for Replacement Credit Agreements only: ; and
(b) the New Agreement satisfies the requirements of a Replacement Credit Agreement and is hereby designated as a Replacement Credit Agreement].
 
Exhibit B-2

IN WITNESS WHEREOF, the Company has caused this Debt Designation to be duly executed by the undersigned officer as of                     , 20    .

AMNEAL PHARMACEUTICALS LLC	
		
By:	 	                                  	
	 	Name:	
	 	Title:	
 
Exhibit B-3

EXHIBIT H
Form of Junior Lien Intercreditor Agreement
(see attached)

EXHIBIT H
[FORM OF]
JUNIOR LIEN INTERCREDITOR AGREEMENT
Dated as of [    ], 20[    ]
among
JPMORGAN CHASE BANK, N.A.,
as the Initial First Lien Representative and Initial First Lien Collateral Agent for the Initial First
Lien Secured Parties,
[        ],
as the Initial Second Lien Representative for the Initial Second Lien Secured Parties,
[        ],
as the Initial Second Lien Collateral Agent for the Initial Second Lien Secured Parties
and
each additional Representative and Collateral Agent from time to time party hereto
and acknowledged and agreed to by
AMNEAL PHARMACEUTICALS LLC
as the Company
and the other Grantors referred to herein

TABLE OF CONTENTS

 	 	 	  	Page	 	
SECTION 1. Definitions	  	 	1	 	
			
1.1	 	Defined Terms	  	 	1	 	
1.2	 	Terms Generally	  	 	14	 	
		
SECTION 2. Lien Priorities	  	 	15	 	
			
2.1	 	Relative Priorities	  	 	15	 	
2.2	 	Prohibition on Contesting Liens; No Marshalling	  	 	15	 	
2.3	 	No New Liens	  	 	16	 	
2.4	 	Similar Liens and Agreements	  	 	17	 	
2.5	 	Perfection of Liens	  	 	17	 	
		
SECTION 3. Enforcement	  	 	18	 	
			
3.1	 	Exercise of Remedies	  	 	18	 	
3.2	 	Actions Upon Breach; Specific Performance	  	 	22	 	
		
SECTION 4. Payments	  	 	22	 	
			
4.1	 	Application of Proceeds	  	 	22	 	
4.2	 	Payments Over	  	 	23	 	
		
SECTION 5. Other Agreements	  	 	24	 	
			
5.1	 	Releases	  	 	24	 	
5.2	 	Insurance and Condemnation Awards	  	 	25	 	
5.3	 	Amendments to First Lien Loan Documents and Second Lien Loan Documents	  	 	26	 	
5.4	 	Confirmation of Subordination in Second Lien Collateral Documents	  	 	27	 	
5.5	 	Gratuitous Bailee/Agent for Perfection	  	 	28	 	
5.6	 	When Discharge of Obligations Deemed to Not Have Occurred	  	 	29	 	
5.7	 	Purchase Right	  	 	31	 	
5.8	 	Designation of Hedging/Bank Product Obligations	  	 	31	 	
		
SECTION 6. Insolvency or Liquidation Proceedings	  	 	33	 	
			
6.1	 	Finance and Sale Issues	  	 	33	 	
6.2	 	Relief from the Automatic Stay	  	 	34	 	
6.3	 	Adequate Protection	  	 	34	 	
6.4	 	No Waiver	  	 	36	 	
6.5	 	Avoidance Issues	  	 	36	 	
6.6	 	Reorganization Securities	  	 	36	 	
 
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6.7	 	Post-Petition Interest	  	 	37	 	
6.8	 	Waiver	  	 	37	 	
6.9	 	Separate Grants of Security and Separate Classification	  	 	37	 	
6.10	 	Effectiveness in Insolvency or Liquidation Proceedings	  	 	38	 	
		
SECTION 7. Reliance; Waivers; Etc.	  	 	38	 	
			
7.1	 	Reliance	  	 	38	 	
7.2	 	No Warranties or Liability	  	 	38	 	
7.3	 	No Waiver of Lien Priorities	  	 	39	 	
7.4	 	Obligations Unconditional	  	 	41	 	
		
SECTION 8. Miscellaneous	  	 	42	 	
			
8.1	 	Integration/Conflicts	  	 	42	 	
8.2	 	Effectiveness; Continuing Nature of this Agreement; Severability	  	 	42	 	
8.3	 	Amendments; Waivers	  	 	43	 	
8.4	 	Information Concerning Financial Condition of the Grantors and their Subsidiaries	  	 	43	 	
8.5	 	Subrogation	  	 	44	 	
8.6	 	Application of Payments	  	 	44	 	
8.7	 	Additional Debt Facilities	  	 	45	 	
8.8	 	Submission to Jurisdiction; Certain Waivers	  	 	48	 	
8.9	 	WAIVER OF JURY TRIAL	  	 	48	 	
8.10	 	Notices	  	 	49	 	
8.11	 	Further Assurances	  	 	49	 	
8.12	 	Agency Capacities	  	 	49	 	
8.13	 	GOVERNING LAW	  	 	49	 	
8.14	 	Binding on Successors and Assigns	  	 	49	 	
8.15	 	Section Headings	  	 	50	 	
8.16	 	Counterparts	  	 	50	 	
8.17	 	Authorization	  	 	50	 	
8.18	 	No Third Party Beneficiaries/Provisions Solely to Define Relative Rights	  	 	50	 	
8.19	 	No Indirect Actions	  	 	50	 	
EXHIBITS
Exhibit I - Joinder Agreement (Additional Second Lien Debt)
Exhibit II - Joinder Agreement (Additional First Lien Debt)
Exhibit III - Additional Debt Designation
 
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[SECOND] LIEN INTERCREDITOR AGREEMENT
[SECOND] LIEN INTERCREDITOR AGREEMENT dated as of [            ], 20[    ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”), among JPMORGAN CHASE BANK, N.A. (“ JPM ”), as administrative agent for the Initial First Lien Secured Parties (in such capacity and together with its successors from time to time in such capacity, and together with any Replacement First Lien Representative, the “ Initial First Lien Representative ” ) and collateral agent for the Initial First Lien Secured Parties (in such capacity and together with its successors from time to time and in such capacity, and together with any Replacement First Lien Collateral Agent, the “ Initial First Lien Collateral Agent ”), [INSERT NAME], as [INSERT CAPACITY] for the Initial Second Lien Secured Parties (in such capacity and together with its successors from time to time in such capacity, the “ Initial Second Lien Representative ”), [INSERT NAME], as collateral agent for the Initial Second Lien Secured Parties (in such capacity and together with its successors from time to time in such capacity, the “ Initial Second Lien Collateral Agent ”) and each additional First Lien Representative, First Lien Collateral Agent, Second Lien Representative and Second Lien Collateral Agent that from time to time becomes a party hereto pursuant to Section 8.7, and acknowledged and agreed to by AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “Company” ), and the other Grantors referred to below. Capitalized terms used in this Agreement have the meanings assigned to them in Section 1 below.
[INSERT APPROPRIATE RECITALS]
In consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Initial First Lien Representative (for itself and on behalf of the Initial First Lien Secured Parties), the Initial First Lien Collateral Agent (for itself and on behalf of the Initial First Lien Secured Parties), the Initial Second Lien Representative (for itself and on behalf of the Initial Second Lien Secured Parties), the Initial Second Lien Collateral Agent (for itself and on behalf of the Initial Second Lien Secured Parties), each additional First Lien Representative (for itself and on behalf of the Additional First Lien Secured Parties represented by it), each additional First Lien Collateral Agent (for itself and on behalf of the Additional First Lien Secured Parties represented by it), each additional Second Lien Representative (for itself and on behalf of the Additional Second Lien Secured Parties represented by it) and each additional Second Lien Collateral Agent (for itself and on behalf of the Additional Second Lien Secured Parties represented by it), intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions .
1.1 Defined Terms . As used in this Agreement, the following terms shall have the following meanings:
“ Additional Collateral Agent ” means an Additional First Lien Collateral Agent and/or an Additional Second Lien Collateral Agent, as the context may require.
“ Additional Debt ” has the meaning set forth in Section 8.7.

“ Additional First Lien Collateral Agent ” has the meaning set forth in the definition of “First Lien Collateral Agent”.
“ Additional First Lien Debt ” means any Indebtedness and guarantees thereof that is incurred, issued or guaranteed by the Company and/or any other Grantor (other than the Initial First Lien Debt) which Indebtedness and guarantees are secured by the First Lien Collateral (or a portion thereof) on a basis senior to the Second Lien Obligations; provided , however , that with respect to any such Indebtedness incurred after the date hereof (i) such Indebtedness is permitted to be incurred, secured and guaranteed on such basis by each First Lien Document and Second Lien Document, (ii) unless already a party with respect to that Series of Additional First Lien Debt, each of the First Lien Representative and the First Lien Collateral Agent for the holders of such Indebtedness shall have become party to (A) this Agreement pursuant to, and by satisfying the conditions set forth in, Section 8.7 and (B) the First Lien Pari Passu Intercreditor Agreement pursuant to, and by satisfying, the conditions set forth therein; provided , further , that, if such Indebtedness will be the initial Additional First Lien Debt incurred by the Company or any other Grantor after the date hereof, then the Grantors, the Initial First Lien Representative, the Initial First Lien Collateral Agent, the First Lien Representative for such Indebtedness and the First Lien Collateral Agent for such Indebtedness shall have executed and delivered the First Lien Pari Passu Intercreditor Agreement and (iii) each of the other requirements of Section 8.7 shall have been complied with. The requirements of clause (i) of Section 8.7(e) shall be tested only as of (x) the date of execution of such Joinder Agreement, if pursuant to a commitment entered into at the time of such Joinder Agreement and (y) with respect to any later commitment or amendment to those terms to permit such Indebtedness, as of the date of such commitment and/or amendment. Additional First Lien Debt shall include any Registered Equivalent Notes and guarantees thereof by the Grantors issued in exchange therefor. For the avoidance of doubt, Indebtedness under a Replacement First Lien Credit Agreement shall not constitute Additional First Lien Debt.
“ Additional First Lien Documents ” means, with respect to any Series of Additional First Lien Debt, the loan agreements, promissory notes, indentures and other operative agreements evidencing or governing such Indebtedness, any document governing reimbursement obligations in respect of letters of credit issued pursuant to any Additional First Lien Documents and the First Lien Collateral Documents securing such Series of Additional First Lien Debt.
“ Additional First Lien Obligations ” means, with respect to any Series of Additional First Lien Debt, (a) all principal, interest (including any Post-Petition Interest), premium (if any), penalties, fees, expenses (including fees, expenses and disbursements of agents, professional advisors and legal counsel), indemnifications, reimbursements, damages and other liabilities, and guarantees of the foregoing amounts, in each case whether or not allowed or allowable in an Insolvency or Liquidation Proceeding, payable with respect to such Additional First Lien Debt, (b) all other amounts payable to the related Additional First Lien Secured Parties under the related Additional First Lien Documents (other than in respect of any Indebtedness not constituting Additional First Lien Debt), (c) any Hedging Obligations and Bank Product Obligations secured under the First Lien Collateral Documents securing such Series of Additional First Lien Debt and (d) any renewals or extensions of the foregoing.
“ Additional First Lien Representative ” has the meaning set forth in the definition of “First Lien Representative”.
 
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“ Additional First Lien Secured Parties ” means, with respect to any Series of Additional First Lien Debt, the holders of such Indebtedness, the First Lien Representative with respect thereto, the First Lien Collateral Agent with respect thereto, any trustee or agent therefor under any related Additional First Lien Documents and the beneficiaries of each indemnification obligation undertaken by the Company or any other Grantor under any related Additional First Lien Documents and the holders of any other Additional First Lien Obligations secured by the First Lien Collateral Documents for such Series of Additional First Lien Debt.
“ Additional Obligations ” means the Additional First Lien Obligations and the Additional Second Lien Obligations.
“ Additional Representative ” means an Additional First Lien Representative and/or an Additional Second Lien Representative, as the context may require.
“ Additional Second Lien Collateral Agent ” has the meaning set forth in the definition of “Second Lien Collateral Agent”.
“ Additional Second Lien Debt ” means any Indebtedness and guarantees thereof that is incurred, issued or guaranteed by the Company and/or any Grantor (other than the Initial Second Lien Debt) which Indebtedness and guarantees are secured by the Second Lien Collateral (or a portion thereof) on a basis junior to the First Lien Obligations; provided , however , that with respect to any such Indebtedness incurred after the date hereof (i) such Indebtedness is permitted to be incurred, secured and guaranteed on such basis by each First Lien Document and Second Lien Document, (ii) unless already a party with respect to that Series of Additional Second Lien Debt, each of the Second Lien Representative and the Second Lien Collateral Agent for the holders of such Indebtedness shall have become party to (A) this Agreement pursuant to, and by satisfying the conditions set forth in, Section 8.7 and (B) the Second Lien Pari Passu Intercreditor Agreement pursuant to, and by satisfying, the conditions set forth therein; provided , further , that, if such Indebtedness will be the initial Additional Second Lien Debt incurred by the Company or any other Grantor after the date hereof, then the Grantors, the Initial Second Lien Representative, the Initial Second Lien Collateral Agent, the Second Lien Representative for such Indebtedness and the Second Lien Collateral Agent for such Indebtedness shall have executed and delivered the Second Lien Pari Passu Intercreditor Agreement and (iii) each of the other requirements of Section 8.7 shall have been complied with. The requirements of clause (i) shall be tested only as of (x) the date of execution of such Joinder Agreement, if pursuant to a commitment entered into at the time of such Joinder Agreement and (y) with respect to any later commitment or amendment to those terms to permit such Indebtedness, as of the date of such commitment and/or amendment. Additional Second Lien Debt shall include any Registered Equivalent Notes and guarantees thereof by the Grantors issued in exchange therefor.
“ Additional Second Lien Documents ” means, with respect to any Series of Additional Second Lien Debt, the loan agreements, promissory notes, indentures and other operative agreements evidencing or governing such Indebtedness, any document governing reimbursement obligations in respect of letters of credit issued pursuant to any Additional Second Lien Documents and the Second Lien Collateral Documents securing such Series of Additional Second Lien Debt.
 
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“ Additional Second Lien Obligations ” means, with respect to any Series of Additional Second Lien Debt, (a) principal, interest (including any Post-Petition Interest), premium (if any), penalties, fees, expenses (including fees, expenses and disbursements of agents, professional advisors and legal counsel), indemnifications, reimbursements, damages and other liabilities, and guarantees of the foregoing amounts, in each case whether or not allowed or allowable in an Insolvency or Liquidation Proceeding, payable with respect to such Additional Second Lien Debt, (b) all other amounts payable to the related Additional Second Lien Secured Parties under the related Additional Second Lien Documents (other than in respect of any Indebtedness not constituting Additional Second Lien Debt), (c) subject to Section 5.8, any Hedging Obligations and Bank Product Obligations secured under the Second Lien Collateral Documents securing such Series of Additional Second Lien Debt and (d) any renewals or extensions of the foregoing.
“ Additional Second Lien Representative ” has the meaning set forth in the definition of “Second Lien Representative”.
“ Additional Second Lien Secured Parties ” means, with respect to any Series of Additional Second Lien Debt, the holders of such Indebtedness, the Second Lien Representative with respect thereto, the Second Lien Collateral Agent with respect thereto, any trustee or agent therefor under any related Additional Second Lien Documents and the beneficiaries of each indemnification obligation undertaken by the Company or any other Grantor under any related Additional Second Lien Documents and the holders of any other Additional Second Lien Obligations secured by the Second Lien Collateral Documents for such Series of Additional Second Lien Debt.
“ Affiliate ” means, as to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such Person or is a director or officer of such Person.
“ Bank Product Obligations ” means, all obligations and liabilities (whether direct or indirect, absolute or contingent, due or to become due or now existing or hereafter incurred) of the Company or any other Grantor, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise, which may arise under, out of, or in connection with any treasury, investment, depository, pooling, netting, overdraft, stored value card, purchase card (including so called “procurement card” or “P-card”, debit card, credit card, clearing house, wire transfer, cash management or automated clearing house transfers of funds services or any related services, to any Person permitted to be a secured party in respect of such obligations under the applicable First Lien Documents or Second Lien Documents.
“ Bankruptcy Case ” means a case under the Bankruptcy Code or any other Bankruptcy Law.
“ Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“ Bankruptcy Law ” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.
 
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“ Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close.
“ Collateral ” means, at any time, all assets and property of any Grantor in which the holders of First Lien Obligations under at least one Series of First Lien Obligations and the holders of Second Lien Obligations under at least one Series of Second Lien Obligations (or their Collateral Agents or Representatives) hold, purport to hold or are required to hold, a security interest at such time (or, in the case of the First Lien Obligations, are deemed pursuant to Article 2 to hold a security interest), including any property subject to Liens granted pursuant to Article 6 to secure both First Lien Obligations and Second Lien Obligations. If, at any time, any portion of the First Lien Collateral under one or more Series of First Lien Obligations does not constitute Second Lien Collateral under one or more Series of Second Lien Obligations, then such portion of such First Lien Collateral shall constitute Collateral only with respect to the Second Lien Obligations for which it constitutes Second Lien Collateral and shall not constitute Collateral for any Second Lien Obligations which do not have a security interest in such Collateral at such time.
“ Collateral Agent ” means any First Lien Collateral Agent and/or any Second Lien Collateral Agent, as the context may require.
“ Collateral Documents ” means the First Lien Collateral Documents and the Second Lien Collateral Documents.
“ Company ” shall have the meaning set forth in the Preamble to this Agreement.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.
“ Declined Liens ” has the meaning set forth in Section 2.3.
“ Designated First Lien Collateral Agent ” means (i) if at any time there is only one Series of First Lien Obligations with respect to which the Discharge of First Lien Obligations has not occurred, the First Lien Collateral Agent for the First Lien Secured Parties in such Series and (ii) at any time when clause (i) does not apply, the “Applicable Collateral Agent” (as defined in the First Lien Pari Passu Intercreditor Agreement) at such time.
“ Designated First Lien Representative ” means (i) if at any time there is only one Series of First Lien Obligations with respect to which the Discharge of First Lien Obligations has not occurred, the First Lien Representative for the First Lien Secured Parties in such Series and (ii) at any time when clause (i) does not apply, the “Applicable Representative” (as defined in the First Lien Pari Passu Intercreditor Agreement) at such time.
“ Designated Second Lien Collateral Agent ” means (i) if at any time there is only one Series of Second Lien Obligations with respect to which the Discharge of Second Lien Obligations has not occurred, the Second Lien Collateral Agent for the Second Lien Secured Parties in such Series and (ii) at any time when clause (i) does not apply, the “Applicable Collateral Agent” (as defined in the Second Lien Pari Passu Intercreditor Agreement) at such time.
 
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“ Designated Second Lien Representative ” means (i) if at any time there is only one Series of Second Lien Obligations with respect to which the Discharge of Second Lien Obligations has not occurred, the Second Lien Representative for the Second Lien Secured Parties in such Series and (ii) at any time when clause (i) does not apply, the “Applicable Representative” (as defined in the Second Lien Pari Passu Intercreditor Agreement) at such time.
“ Designation ” means a designation of Additional First Lien Debt, Additional Second Lien Debt or Indebtedness under a Replacement First Lien Credit Agreement in substantially the form of Exhibit III attached hereto.
“ DIP Financing ” has the meaning set forth in Section 6.1.
“ Discharge ” means, with respect to any Series of First Lien Obligations or Series of Second Lien Obligations, the date on which such Series of First Lien Obligations or Series of Second Lien Obligations, as the case may be, are no longer secured by, and no longer required to be secured by, the Collateral pursuant to the terms of the applicable First Lien Documents or Second Lien Documents. The term “ Discharged ” shall have a corresponding meaning.
“ Discharge of First Lien Obligations ” means, except to the extent otherwise provided in Section 5.6, the date on which the Discharge of Initial First Lien Obligations and the Discharge of each additional Series of First Lien Obligations has occurred; provided , that the Discharge of Initial First Lien Obligations shall be deemed not to have occurred if a Replacement First Lien Credit Agreement is entered into.
“ Discharge of Initial First Lien Obligations ” means, except to the extent otherwise provided in Section 5.6, the Discharge of all Initial First Lien Obligations.
“ Discharge of Second Lien Obligations ” means the date on which the Discharge of each Series of Second Lien Obligations has occurred.
“ Disposition ” has the meaning set forth in Section 5.1(b).
“ Enforcement Action ” means any action to:
(a) foreclose, execute, levy, or collect on, take possession or control of, sell or otherwise realize upon (judicially or non-judicially), or lease, license, or otherwise dispose of (whether publicly or privately), Collateral, or otherwise exercise or enforce remedial rights with respect to Collateral under the First Lien Documents or the Second Lien Documents, as applicable (including by way of setoff, recoupment, notification of a public or private sale or other disposition pursuant to the UCC or other applicable law, notification to account debtors, notification to depositary banks under deposit account control agreements, or exercise of rights under landlord consents, if applicable);
(b) solicit bids from third Persons, approve bid procedures for any proposed disposition of Collateral, conduct the liquidation or disposition of Collateral or engage or retain sales brokers, marketing agents, investment bankers, accountants, appraisers, auctioneers or other third Persons for the purposes of valuing, marketing, promoting or selling Collateral;
 
6

(c) receive a transfer of Collateral in satisfaction of Indebtedness or any other Obligation secured thereby;
(d) the taking of any action or the exercise of any right or remedy in respect of the collection on, set off against, marshaling of, injunction respecting or foreclosure on the Collateral or the proceeds thereof;
(e) the appointment of a receiver, receiver and manager or interim receiver of all or part of the Collateral; or
(f) otherwise enforce a security interest or exercise another right or remedy, as a secured creditor or otherwise, pertaining to the Collateral at law, in equity, or pursuant to the First Lien Documents or Second Lien Documents, as applicable (including the commencement of applicable legal proceedings or other actions with respect to all or any portion of the Collateral to facilitate the actions described in the preceding clauses, and exercising voting rights in respect of equity interests comprising Collateral).
An “Enforcement Action” will also include the Disposition of Collateral by any Grantor after the occurrence and during the continuation of an event of default under any of the First Lien Documents or the Second Lien Documents, as applicable, with the consent of the applicable First Lien Collateral Agent (or First Lien Secured Parties) or Second Lien Collateral Agent (or Second Lien Secured Parties).
“ Equity Release Proceeds ” shall have the meaning assigned to such term in Section  5.01(b) .
“ First Lien Collateral ” means any “Collateral” as defined in any First Lien Document or any other assets of the Company or any other Grantor with respect to which a Lien is granted or purported to be granted or required to be granted pursuant to a First Lien Document as security for any First Lien Obligations and shall include any property or assets subject to replacement Liens or adequate protection Liens in favor of any First Lien Secured Party.
“ First Lien Collateral Agent ” means (i) in the case of any Initial First Lien Obligations or the Initial First Lien Secured Parties, the Initial First Lien Collateral Agent and (ii) in the case of any Additional First Lien Obligations and the Additional First Lien Secured Parties in respect thereof, the Person serving as collateral agent (or the equivalent) for such Additional First Lien Obligations and that is named as the First Lien Collateral Agent in respect of such Additional First Lien Obligations in the applicable Joinder Agreement (each, in the case of this clause (ii) together with its successors and assigns in such capacity, an “ Additional First Lien Collateral Agent ”).
“ First Lien Collateral Documents ” means the “Security Documents” or “Collateral Documents” (as defined in the applicable First Lien Documents) and any other agreement, document or instrument pursuant to which a Lien is granted securing any First Lien Obligations or pursuant to which any such Lien is perfected.
“ First Lien Debt ” means the Initial First Lien Debt and any Additional First Lien Debt.
 
7

“ First Lien Declined Liens ” has the meaning set forth in Section 2.3(a).
“ First Lien Documents ” means the Initial First Lien Documents and any Additional First Lien Documents.
“ First Lien Obligations ” means the Initial First Lien Obligations and any Additional First Lien Obligations.
“ First Lien Pari Passu Intercreditor Agreement ” means an agreement among each First Lien Representative and each First Lien Collateral Agent allocating rights among the various Series of First Lien Obligations, in substantially the form of Exhibit G to the Initial First Lien Credit Agreement.
“ First Lien Representative ” means (i) in the case of any Initial First Lien Obligations or the Initial First Lien Secured Parties, the Initial First Lien Representative and (ii) in the case of any Additional First Lien Obligations and the Additional First Lien Secured Parties thereunder each trustee, administrative agent, collateral agent, security agent and similar agent that is named as the First Lien Representative in respect of such Additional First Lien Obligations in the applicable Joinder Agreement (each, in the case of this clause (ii), an “ Additional First Lien Representative ”).
“ First Lien Secured Parties ” means the Initial First Lien Secured Parties and any Additional First Lien Secured Parties.
“ Governmental Authority ” means any federal, state local or foreign court or governmental agency, authority, instrumentality or regulatory or legislative body.
“ Grantors ” means the Company and each Subsidiary or direct or indirect parent company of the Company which has granted a security interest pursuant to any Collateral Document to secure any Secured Obligations.
“ Hedge Agreements ” means a Swap Contract entered into by the Company or a Restricted Subsidiary with a counterparty as permitted under the First Lien Documents or the Second Lien Documents, as the case may be.
“ Hedging Obligations ” of any Person means any obligation of such Person pursuant to any Hedge Agreement.
“ Indebtedness ” means indebtedness in respect of borrowed money and indebtedness evidenced by bonds, debentures, notes or similar instruments; for the avoidance of doubt, “Indebtedness” shall not include reimbursement or other obligations in respect of letters of credit, Hedging Obligations or Bank Product Obligations.
“ Initial First Lien Collateral Agent ” has the meaning set forth in the introductory paragraph to this Agreement.
 
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“ Initial First Lien Credit Agreement ” means that certain Term Loan Credit Agreement, dated as of May 4, 2018, among AMNEAL PHARMACEUTICALS LLC, as the Borrower, the Lenders party thereto and JPMORGAN CHASE BANK, N.A., as administrative agent and collateral agent, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time and shall also include any Replacement First Lien Credit Agreement.
“ Initial First Lien Debt ” means the Indebtedness and guarantees thereof now or hereafter incurred pursuant to the Initial First Lien Documents.
“ Initial First Lien Documents ” means the Initial First Lien Credit Agreement and the other “Loan Documents” as defined in the Initial First Lien Credit Agreement and any other document or agreement entered into for the purpose of evidencing, governing, securing or perfecting the Initial First Lien Obligations.
“ Initial First Lien Obligations ” means the “Obligations” as defined in the Initial First Lien Credit Agreement.
“ Initial First Lien Representative ” has the meaning set forth in the introductory paragraph to this Agreement.
“ Initial First Lien Secured Parties ” means the “Secured Parties” as defined in the Initial First Lien Credit Agreement.
“ Initial Second Lien Agreement ” means that certain [    ], dated as of [    ], among [    ].
“ Initial Second Lien Debt ” means the Indebtedness and guarantees thereof now or hereafter incurred pursuant to the Initial Second Lien Documents. Initial Second Lien Debt shall include any Registered Equivalent Notes and guarantees thereof by the Grantors issued in exchange thereof.
“ Initial Second Lien Documents ” means that certain Initial Second Lien Agreement and the other Loan Documents as defined in the Initial Second Lien Agreement and any other document or agreement entered into for the purpose of evidencing, governing, securing or perfecting the Initial Second Lien Obligations.
“ Initial Second Lien Obligations ” means the “Obligations” as defined in the Initial Second Lien Documents.
“ Initial Second Lien Representative ” has the meaning set forth in the introductory paragraph to this Agreement.
“ Initial Second Lien Secured Parties ” means the “Secured Parties” as defined in the Initial Second Lien Documents.
“ Insolvency or Liquidation Proceeding ” means:
(a) any voluntary or involuntary case or proceeding under the Bankruptcy Code with respect to any Grantor;
 
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(b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Grantor or with respect to a material portion of their respective assets;
(c) any liquidation, dissolution, reorganization or winding up of any Grantor whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or
(d) any assignment for the benefit of creditors or any other marshaling of assets and liabilities of any Grantor.
“ Joinder Agreement ” means a supplement to this Agreement in the form of Exhibit I or Exhibit II hereto, as applicable, required to be delivered by a Representative and a Collateral Agent to each other then-existing Representative and Collateral Agent pursuant to Section 8.7 in order to include Additional First Lien Debt or Additional Second Lien Debt hereunder and to become the Representative or Collateral Agent, as the case may be, hereunder in respect thereof for the applicable Additional First Lien Secured Parties or applicable Additional Second Lien Secured Parties, as the case may be, under such Additional First Lien Debt or Additional Second Lien Debt.
“ JPM ” has the meaning set forth in the introductory paragraph to this Agreement.
“ Lien ” means any lien (including, judgment liens and liens arising by operation of law), mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, call, trust (whether contractual, statutory, deemed, equitable, constructive, resulting or otherwise), UCC financing statement or other preferential arrangement having the practical effect of any of the foregoing, including any right of set-off or recoupment.
“ LC Cash Collateral ” has the meaning set forth in Section 5.7(b).
“ Obligations ” means all obligations of every nature of the Company and each other Grantor from time to time owed to any agent or trustee, the First Lien Secured Parties, the Second Lien Secured Parties or any of them or their respective Affiliates under the First Lien Documents or the Second Lien Documents whether for principal, interest, payments for early termination of hedge agreements, fees, expenses, indemnification or otherwise and all guarantees of any of the foregoing and including any interest and fees that accrue after the commencement by or against any Person of any proceeding under any Bankruptcy Law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“ Pay-Over Amount ” has the meaning set forth in Section 6.3(b).
“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“ Pledged Collateral ” has the meaning set forth in Section 5.5(a).
 
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“ Post-Petition Interest ” means interest, fees, expenses and other charges that pursuant to the First Lien Documents or the Second Lien Documents, as applicable, continue to accrue after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest, fees, expenses and other charges are allowed or allowable under the Bankruptcy Law or in any such Insolvency or Liquidation Proceeding.
“ Purchase Date ” has the meaning set forth in Section 5.7(c).
“ Purchase Price ” has the meaning set forth in Section 5.7(b).
“ Purchasing Creditors ” has the meaning set forth in Section 5.7(c).
“ Recovery ” has the meaning set forth in Section 6.5.
“ Refinance ” means, in respect of any Indebtedness, to refinance, extend, renew, defease, amend, modify, supplement, restructure, refund, replace or repay, or to issue other Indebtedness whether of the same principal amount or greater or lesser principal amount in exchange or replacement for such Indebtedness, in whole or in part. “ Refinanced ” and “ Refinancing ” shall have correlative meanings.
“ Registered Equivalent Notes ” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same guarantees and substantially the same collateral) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“ Replacement First Lien Collateral Agent ” means, in respect of any Replacement First Lien Credit Agreement, the collateral agent or person serving in similar capacity under the Replacement First Lien Credit Agreement.
“ Replacement First Lien Credit Agreement ” means any loan agreement, indenture or other agreement that (i) Refinances the Initial First Lien Credit Agreement so long as, after giving effect to such Refinancing, the agreement that was the Initial First Lien Credit Agreement immediately prior to such Refinancing is no longer secured and no longer required to be secured, by any of the First Lien Collateral and (ii) becomes the Initial First Lien Credit Agreement hereunder by designation as such pursuant to Section  8.7 .
“ Replacement First Lien Representative ” means, in respect of any Replacement First Lien Credit Agreement, the administrative agent, trustee or person serving in similar capacity under the Replacement First Lien Credit Agreement.
“ Representative ” means any First Lien Representative and/or any Second Lien Representative, as the context may require.
“ Responsible Officer ” means the chief executive officer, president, chief financial officer or treasurer of the Company or the applicable Grantor.
 
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“ Restricted Subsidiaries ” has the meaning set forth in the Initial First Lien Credit Agreement and, after the Discharge of Initial First Lien Obligations, such term shall have the meaning set forth in any First Lien Documents then in effect.
“ SEC ” means the United States Securities and Exchange Commission and any successor agency thereto.
“ Second Lien Adequate Protection Payments ” has the meaning set forth in Section 6.3(b).
“ Second Lien Collateral ” means any “Collateral” as defined in any Second Lien Document or any other assets of the Company or any other Grantor with respect to which a Lien is granted or purported to be granted or required to be granted pursuant to a Second Lien Document as security for any Second Lien Obligation and shall include any property or assets subject to replacement Liens or adequate protection Liens in favor of any Second Lien Secured Party.
“ Second Lien Collateral Agent ” means (i) in the case of any Initial Second Lien Obligations or the Initial Second Lien Secured Parties, the Initial Second Lien Collateral Agent and (ii) in the case of any Additional Second Lien Obligations and the Additional Second Lien Secured Parties thereunder, the Person serving as collateral agent (or the equivalent) for such Additional Second Lien Obligations and that is named as the Second Lien Collateral Agent in respect of such Additional Second Lien Obligations in the applicable Joinder Agreement (each, in the case of this clause (ii), together with its successors and assigns in such capacity, an “ Additional Second Lien Collateral Agent ”).
“ Second Lien Collateral Documents ” means the “Security Documents” or “Collateral Documents” (as defined in the applicable Second Lien Documents) and any other agreement, document or instrument pursuant to which a Lien is granted securing any Second Lien Obligations or pursuant to which any such Lien is perfected.
“ Second Lien Debt ” means the Initial Second Lien Debt and any Additional Second Lien Debt.
“ Second Lien Declined Liens ” has the meaning set forth in Section 2.3(b).
“ Second Lien Documents ” means the Initial Second Lien Documents and any Additional Second Lien Documents.
“ Second Lien Mortgage ” means each mortgage, deed of trust and any other document or instrument under which any Lien on real property owned or leased by any Grantor is granted to secure any Second Lien Obligations or under which rights or remedies with respect to any such Liens are governed.
“ Second Lien Obligations ” means the Initial Second Lien Obligations and any Additional Second Lien Obligations.
 
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“ Second Lien Pari Passu Intercreditor Agreement ” means an agreement among each Second Lien Representative and each Second Lien Collateral Agent allocating rights among the various Series of Second lien Obligations.
“ Second Lien Representative ” means (i) in the case of the Initial Second Lien Obligations or the Initial Second Lien Secured Parties, the Initial Second Lien Representative and (ii) in the case of any Additional Second Lien Obligations and the Additional Second Lien Secured Parties in respect thereof, each trustee, administrative agent, collateral agent, security agent and similar agent that is named as the Second Lien Representative in respect of such Additional Second Lien Obligations in the applicable Joinder Agreement (each, in the case of this clause (ii), an “ Additional Second Lien Representative ”).
“ Second Lien Secured Parties ” means the Initial Second Lien Secured Parties and any Additional Second Lien Secured Parties.
“ Secured Obligations ” means the First Lien Obligations and/or the Second Lien Obligations, as the context may require.
“ Secured Parties ” means the First Lien Secured Parties and/or the Second Lien Secured Parties, as the context may require.
“Series” means, (x) with respect to First Lien Debt or Second Lien Debt, all First Lien Debt or Second Lien Debt, as applicable, represented by the same Representative acting in the same capacity and (y) with respect to First Lien Obligations or Second Lien Obligations, all such obligations secured by same First Lien Collateral Documents or same Second Lien Collateral Documents, as the case may be. Notwithstanding the foregoing, the Initial First Lien Obligations shall constitute a single Series for purposes of this Agreement.
“ Short Fall ” has the meaning set forth in Section 6.3(b).
“ Standstill Period ” has the meaning set forth in Section 3.1(a).
“ Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company or other entity of which (1) Equity Interests having ordinary voting power (other than Equity Interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors of such corporation, partnership, limited liability company or other entity are at the time owned by such Person; or (2) more than 50.0% of the Equity Interests are at the time owned by such Person.
“ Swap Contract ” means (a) any and all interest rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options for forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all
 
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transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including such obligations or liabilities under any Master Agreement.
“ Term/ABL Intercreditor Agreement ” means that certain ABL / Term Loan Intercreditor Agreement dated as of May 4, 2018, by and among the Initial First Lien Collateral Agent, the Initial First Lien Representative, and JPM, as administrative agent and collateral agent for the Initial ABL Credit Agreement (as described therein), and acknowledged by the Company and the other Grantors signatory thereto.
“ UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.
“ Underlying Assets ” shall have the meaning assigned to such term in Section 5.01(b) .
1.2 Terms Generally . The definitions of terms in this Agreement shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise:
(a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented, modified, renewed or extended and any reference herein to any statute or regulations shall include any amendment, renewal, extension or replacement thereof;
(b) any reference herein to any Person shall be construed to include such Person’s successors and assigns;
(c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof;
(d) all references herein to Sections shall be construed to refer to Sections of this Agreement; and
 
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(e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
SECTION 2. Lien Priorities .
2.1 Relative Priorities . Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the Second Lien Obligations granted on the Collateral or of any Liens securing the First Lien Obligations granted on the Collateral and notwithstanding any provision of the UCC, or any other applicable law or the Second Lien Documents or any defect or deficiencies in, or failure to perfect or lapse in perfection of, or avoidance as a fraudulent conveyance or otherwise of, the Liens securing the First Lien Obligations, the subordination of such Liens to any other Liens, or any other circumstance whatsoever, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, each Second Lien Representative and each Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, hereby agrees that:
(a) any Lien on the Collateral securing any First Lien Obligations now or hereafter held by or on behalf of any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Parties or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects and prior to any Lien on the Collateral securing any Second Lien Obligations; and
(b) any Lien on the Collateral securing any Second Lien Obligations now or hereafter held by or on behalf of any Second Lien Representative, any Second Lien Collateral Agent, any Second Lien Secured Parties or any agent or trustee therefor regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Collateral securing any First Lien Obligations. All Liens on the Collateral securing any First Lien Obligations shall be and remain senior in all respects and prior to all Liens on the Collateral securing any Second Lien Obligations for all purposes, whether or not such Liens securing any First Lien Obligations are subordinated to any Lien securing any other obligation of the Company, any other Grantor or any other Person.
2.2 Prohibition on Contesting Liens; No Marshalling . Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of each Second Lien Secured Party represented by it, and each First Lien Representative and each First Lien Collateral Agent, for itself and on behalf of each First Lien Secured Party represented by it, agrees that it will not (and hereby waives any right to) directly or indirectly contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the priority, validity, perfection, extent or enforceability of a Lien held, or purported to be held, by or on behalf of any of the First Lien Secured Parties in the First Lien Collateral or by or on behalf of any of the Second Lien Secured Parties in the Second Lien Collateral, as the case may be, or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any First Lien Representative, any First Lien Collateral Agent or
 
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any First Lien Secured Party to enforce this Agreement, including the provisions of this Agreement relating to the priority of the Liens securing the First Lien Obligations as provided in Sections 2.1 and 3.1. Until the Discharge of First Lien Obligations, no Second Lien Representative, Second Lien Collateral Agent or Second Lien Secured Party will assert any marshaling, appraisal, valuation or other similar right that may otherwise be available to a junior secured creditor.
2.3 No New Liens . So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the parties hereto agree that the Company shall not, and shall not permit any other Grantor to:
(a) grant or permit any additional Liens on any asset or property to secure any Second Lien Obligation unless it has granted or concurrently grants a Lien on such asset or property to secure the First Lien Obligations, the parties hereto agreeing that any such Lien shall be subject to Section 2.1; provided that this provision will not be violated with respect to any particular Series of First Lien Obligations if the First Lien Documents in respect thereof prohibit the applicable First Lien Collateral Agent from accepting a Lien on such asset or property or such First Lien Collateral Agent otherwise expressly declines to accept a Lien on such asset or property (any such prohibited or declined Liens with respect to a particular Series of First Lien Obligations, a “ First Lien Declined Lien ”); or
(b) grant or permit any additional Liens on any asset or property to secure any First Lien Obligations unless it has granted or concurrently grants a Lien on such asset or property to secure the Second Lien Obligations; provided that this provision will not be violated with respect to any particular Series of Second Lien Obligations if the Second Lien Documents in respect thereof prohibit the applicable Second Lien Collateral Agent from accepting a Lien on such asset or property or such Second Lien Collateral Agent otherwise expressly declines to accept a Lien on such asset or property (any such prohibited or declined Liens with respect to a particular Series of Second Lien Obligations, a “ Second Lien Declined Lien ” and, together with the First Lien Declined Liens, the “ Declined Liens ”).
If any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Secured Party shall hold any Lien on any assets or property of any Grantor securing any Second Lien Obligations that are not also subject to a first-priority Lien, (other than, with respect to any Series of First Lien Obligations, a First Lien Declined Lien with respect thereto), securing all First Lien Obligations under the First Lien Collateral Documents, then such Second Lien Representative, Second Lien Collateral Agent or Second Lien Secured Party shall notify the Designated First Lien Representative promptly upon becoming aware thereof and, unless such Grantor shall promptly grant a similar Lien, other than any such Lien that would constitute a Declined Lien with respect to any Series of First Lien Obligations, on such assets or property to each First Lien Collateral Agent as security for the First Lien Obligations represented by it, such Second Lien Representative, Second Lien Collateral Agent and Second Lien Secured Parties shall be deemed to hold and have held such Lien for the benefit of each First Lien Representative, First Lien Collateral Agent and the other First Lien Secured Parties, other than any First Lien Secured Parties whose First Lien Documents prohibit them from taking such Liens, as security for the First
 
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Lien Obligations. To the extent that the foregoing provisions are not complied with for any reason, without limiting any other rights and remedies available to any First Lien Representative, First Lien Collateral Agent and/or the First Lien Secured Parties, each Second Lien Representative and each Second Lien Collateral Agent, on behalf of the Second Lien Secured Parties represented by it, agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.2.
Notwithstanding anything in this Agreement to the contrary, prior to the Discharge of First Lien Obligations, cash and cash equivalents may be pledged to secure First Lien Obligations consisting of reimbursement obligations in respect of letters of credit issued pursuant to the First Lien Documents without granting a Lien thereon to secure any other First Lien Obligations or any other Second Lien Obligations.
2.4 Similar Liens and Agreements . Except as provided in Section 2.3, the parties hereto agree that it is their intention that the First Lien Collateral and the Second Lien Collateral be identical. In furtherance of the foregoing and of Section 8.11, the parties hereto agree, subject to the other provisions of this Agreement:
(a) upon request by any First Lien Collateral Agent or any Second Lien Collateral Agent, to cooperate in good faith (and to direct their respective counsel to cooperate in good faith) from time to time in order to determine the specific items included in the First Lien Collateral and the Second Lien Collateral and the steps taken to perfect their respective Liens thereon and the identity of the respective parties obligated under the First Lien Documents and the Second Lien Documents; and
(b) that the documents and agreements creating or evidencing the First Lien Collateral and the Second Lien Collateral and guarantees for the First Lien Obligations and the Second Lien Obligations, subject to Section 2.3, shall be in all material respects the same forms of documents other than with respect to the first lien and the second lien nature of the Obligations thereunder.
2.5 Perfection of Liens . Except for the arrangements contemplated by Section 5.5, none of the First Lien Representatives, First Lien Collateral Agents or the First Lien Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Collateral for the benefit of the Second Lien Representatives, the Second Lien Collateral Agents or the Second Lien Secured Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Lien Secured Parties on the one hand and the Second Lien Secured Parties on the other hand and such provisions shall not impose on the First Lien Representatives, First Lien Collateral Agents, the First Lien Secured Parties, the Second Lien Representatives, the Second Lien Collateral Agents, the Second Lien Secured Parties or any agent or trustee therefor any obligations in respect of the disposition of proceeds of any Collateral which would conflict with prior-perfected claims therein in favor of any other Person or any order or decree of any court or Governmental Authority or any applicable law.
 
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SECTION 3. Enforcement .
3.1 Exercise of Remedies .
(a) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Second Lien Representatives, the Second Lien Collateral Agents and the Second Lien Secured Parties:
(1) will not commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Designated Second Lien Representative and/or the Designated Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any or all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of (i) the date on which a Second Lien Representative declared the existence of any Event of Default under (and as defined in) any Second Lien Document and demanded the repayment of all the principal amount of any Second Lien Obligations thereunder; and (ii) the date on which the First Lien Representatives received notice from such Second Lien Representative of such declarations of such Event of Default and demand for payment (the “ Standstill Period ”); provided , further , that notwithstanding anything herein to the contrary, in no event shall any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Secured Party exercise any rights or remedies with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, any First Lien Representative, any First Lien Collateral Agent or the applicable First Lien Secured Parties shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Designated Second Lien Representative);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party or any other exercise by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise (including any Enforcement Action initiated by or supported by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party); and
(3) subject to their rights under clause (a)(1) above will not object to the forbearance by any First Lien Representative, any First Lien Collateral Agent or the First Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral,
in each case so long as any proceeds received by any First Lien Representative in excess of those necessary to achieve a Discharge of First Lien Obligations are distributed in accordance with Section 4.1.
 
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(b) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agents and the First Lien Secured Parties shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt, except that Second Lien Representatives shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party; provided that any proceeds received by any First Lien Representative in excess of those necessary to achieve a Discharge of any First Lien Obligations are distributed in accordance with Section 4.1. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, First Lien Collateral Agents and the First Lien Secured Parties may enforce the provisions of the First Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion in compliance with any applicable law and without consultation with any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party and regardless of whether any such exercise is adverse to the interest of any Second Lien Secured Party. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, any Second Lien Representative, any Second Lien Collateral Agent and any Second Lien Secured Party may:
(1) file a claim or statement of interest with respect to the Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Obligations, or the rights of any First Lien Representative, any First Lien Collateral Agent or the First Lien Secured Parties to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateral;
(3) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second Lien Secured Parties, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement;
 
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(4) vote on any plan of reorganization, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations.
Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral or Equity Release Proceeds in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Representative or such Second Lien Collateral Agent and Second Lien Secured Parties represented by it are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Second Lien Collateral Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurred.
(d) Subject to Sections 3.1(a) and (c) and Section 6.3(b):
(1) each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, agrees that such Second Lien Representative or such Second Lien Collateral Agent and such Second Lien Secured Parties represented by it will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
 
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(2) each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, hereby waives any and all rights such Second Lien Representative or such Second Lien Collateral Agent or such Second Lien Secured Parties represented by it may have as a junior lien creditor or otherwise to object to the manner in which any First Lien Representative, any First Lien Collateral Agent or other First Lien Secured Party seeks to enforce or collect the First Lien Obligations or Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of any First Lien Representative, any First Lien Collateral Agent or other First Lien Secured Party is adverse to the interest of any Second Lien Secured Party; and
(3) each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in this Agreement, the Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Second Lien Obligations in accordance with the terms of the Second Lien Documents and applicable law (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor or otherwise taking any action that is inconsistent with the terms of this Agreement); provided that in the event that any Second Lien Secured Party becomes a judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Second Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) in the same manner as the other Liens securing the Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party of the required payments of interest, principal and other amounts owed in respect of the Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of them or as a result of any other violation by any Second Lien Secured Party of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies any First Lien Representative, any First Lien Collateral Agent or other First Lien Secured Party may have with respect to the First Lien Collateral.
 
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3.2 Actions Upon Breach; Specific Performance . If any Second Lien Secured Party, in contravention of the terms of this Agreement, in any way takes, or attempts to or threatens to take, any action with respect to the Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement), or fails to take any action required by this Agreement, this Agreement shall create an irrebutable presumption and admission by such Second Lien Secured Party that relief against such Second Lien Secured Party by injunction, specific performance and/or other appropriate equitable relief is necessary to prevent irreparable harm to the First Lien Secured Parties, it being understood and agreed by each Second Lien Representative and each Second Lien Collateral Agent, on behalf of each Second Lien Secured Party represented by it, that (i) the First Lien Secured Parties’ damages from actions of any Second Lien Secured Party may at that time be difficult to ascertain and may be irreparable and (ii) each Second Lien Secured Party waives any defense that the Grantors and/or the First Lien Secured Parties cannot demonstrate damage and/or be made whole by the awarding of damages. Each of the First Lien Representatives and/or First Lien Collateral Agents may demand specific performance of this Agreement. Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense which might be asserted to bar the remedy of specific performance in any action which may be brought by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party. No provision of this Agreement shall constitute or be deemed to constitute a waiver by any First Lien Representative or any First Lien Collateral Agent on behalf of itself and the First Lien Secured Parties represented by it of any right to seek damages from any Person in connection with any breach or alleged breach of this Agreement.
SECTION 4. Payments .
4.1 Application of Proceeds . So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, any Collateral or any proceeds thereof received in connection with any Enforcement Action or other exercise of remedies by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party shall be applied by the First Lien Collateral Agents or the First Lien Representatives, as applicable, to the First Lien Obligations in such order as specified in the relevant First Lien Documents (including the Term/ABL Intercreditor Agreement, to the extent then in effect) and, if then in effect, the First Lien Pari Passu Intercreditor Agreement; provided , that any non-cash Collateral or non-cash proceeds will be held by the applicable First Lien Collateral Agent as Collateral unless the failure to apply such amounts would be commercially unreasonable. Upon the Discharge of First Lien Obligations, each First Lien Collateral Agent shall (x) unless a Discharge of Second Lien Obligations has already occurred, deliver any proceeds of Collateral or Equity Release Proceeds held by it to the Designated Second Lien Collateral Agent, to be applied by the Designated Second Lien Collateral Agent and the other Second Lien Collateral Agents or Second Lien Representatives, as applicable, to the applicable Second Lien Obligations in such order as specified in the applicable Second Lien Collateral Documents and, if then in effect, the Second Lien Pari Passu Intercreditor Agreement and (y) if a Discharge of Second Lien Obligations has already occurred, deliver such proceeds of Collateral or Equity Release Proceeds to the Grantors, their successors or assigns, or to whomever may be lawfully entitled to receive the same.
 
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4.2 Payments Over .
(a) So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, any Collateral or any proceeds thereof received by any Second Lien Representative, Second Lien Collateral Agent or any other Second Lien Secured Party in connection with any Enforcement Action or other exercise of any right or remedy relating to the Collateral in contravention of this Agreement in all cases shall be segregated and held in trust and forthwith paid over to the Designated First Lien Collateral Agent for the benefit of the First Lien Secured Parties in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The Designated First Lien Collateral Agent is hereby authorized to make any such endorsements as agent for the Second Lien Representatives, Second Lien Collateral Agents or any such other Second Lien Secured Party. This authorization is coupled with an interest and is irrevocable until the Discharge of First Lien Obligations.
(b) So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, any Collateral or proceeds thereof received by any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Secured Party in connection with any Enforcement Action or other exercise of any right or remedy relating to the Collateral not in contravention of this Agreement shall be segregated and held in trust and forthwith paid over to the Designated First Lien Collateral Agent for the benefit of the First Lien Secured Parties in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct; provided that with respect to Collateral this Section 4.2(b) shall only be applicable if the exercise of such right or remedy by any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Secured Party has the effect of discharging the Lien of any First Lien Representative or First Lien Collateral Agent on such Collateral. The Designated First Lien Collateral Agent is hereby authorized to make any such endorsements as agent for the Second Lien Representatives, the Second Lien Collateral Agents or any such other Second Lien Secured Party. This authorization is coupled with an interest and is irrevocable until the Discharge of First Lien Obligations.
(c) So long as the Discharge of First Lien Obligations has not occurred, if in any Insolvency or Liquidation Proceeding any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party shall receive any distribution of money or other property in respect of the Collateral (including any assets or proceeds subject to Liens that have been avoided or otherwise invalidated) such money or other property shall be segregated and held in trust and forthwith paid over to the Designated First Lien Collateral Agent for the benefit of the First Lien Secured Parties in the same form as received, with any necessary endorsements. Any Lien received by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party in respect of any of the Second Lien Obligations in any Insolvency or Liquidation Proceeding shall be subject to the terms of this Agreement.
 
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SECTION 5. Other Agreements .
5.1 Releases .
(a) If in connection with any Enforcement Action by any First Lien Representative or any First Lien Collateral Agent or any other exercise of any First Lien Representative’s or any First Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of First Lien Obligations, such First Lien Collateral Agent, for itself or on behalf of any of the First Lien Secured Parties, releases any of its Liens on any part of the Collateral or such First Lien Representative, for itself or on behalf of any of the First Lien Secured Parties, releases any Grantor from its obligations under its guaranty of the First Lien Obligations, then the Liens, if any, of each Second Lien Collateral Agent, for itself or for the benefit of the Second Lien Secured Parties, on such Collateral, and the obligations of such Grantor under its guaranty of the Second Lien Obligations, shall be automatically, unconditionally and simultaneously released. If in connection with any Enforcement Action or other exercise of rights and remedies by any First Lien Representative or any First Lien Collateral Agent, in each case prior to the Discharge of First Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such First Lien Collateral Agent releases its Lien on the property or assets of such Person, then the Liens of each Second Lien Collateral Agent with respect to the property or assets of such Person will be automatically released to the same extent as the Liens of such First Lien Collateral Agent. Each Second Lien Representative and each Second Lien Collateral Agent, for itself or on behalf of any Second Lien Secured Parties represented by it, shall promptly execute and deliver to the First Lien Representatives, First Lien Collateral Agents or such Grantor such termination statements, releases and other documents as any First Lien Representative, First Lien Collateral Agent or such Grantor may request to effectively confirm the foregoing releases.
(b) If in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Grantor (collectively, a “Disposition” ) permitted under the terms of the First Lien Documents and not expressly prohibited under the terms of the Second Lien Documents (other than in connection with an Enforcement Action or other exercise of any First Lien Representative’s and/or First Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by Section 5.1(a) above), any First Lien Collateral Agent, for itself or on behalf of any of the First Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any First Lien Representative, for itself or on behalf of any of the First Lien Secured Parties represented by it, releases any Grantor from its obligations under its guaranty of the First Lien Obligations, in each case other than in connection with, or following, the Discharge of First Lien Obligations, then the Liens, if any, of each Second Lien Collateral Agent, for itself or for the benefit of the Second Lien Secured Parties represented by it, on such Collateral, and the obligations of such Grantor under its guaranty of the Second Lien
 
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Obligations, shall be automatically, unconditionally and simultaneously released; provided that any proceeds of any such equity interests foreclosed upon where the First Lien Collateral Agent releases its Lien on the assets of such Person on which another Series of Obligations holds a Lien on any of the assets of such Person (any such assets, the “ Underlying Assets ”) which Lien is released as provided in this sentence (any such Proceeds being referred to herein as “ Equity Release Proceeds ” regardless of whether or not such other Series of Obligations holds a Lien on such equity interests so disposed of) shall be applied pursuant to Section 2.01 hereof. Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of each Second Lien Secured Party represented by it, shall promptly execute and deliver to the First Lien Representatives, the First Lien Collateral Agents or such Grantor such termination statements, releases and other documents as any First Lien Representative, First Lien Collateral Agent or such Grantor may request to effectively confirm such release.
(c) Until the Discharge of First Lien Obligations occurs, each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, hereby irrevocably constitutes and appoints the Designated First Lien Collateral Agent and any officer or agent of the Designated First Lien Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Second Lien Representative, such Second Lien Collateral Agent and such Second Lien Secured Parties or in the Designated First Lien Collateral Agent’s own name, from time to time in the Designated First Lien Collateral Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Section 5.1, including any endorsements or other instruments of transfer or release. This power is coupled with an interest and is irrevocable until the Discharge of First Lien Obligations.
(d) Until the Discharge of First Lien Obligations occurs, to the extent that any First Lien Collateral Agent, any First Lien Representative or First Lien Secured Parties (i) have released any Lien on Collateral or any Grantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new Liens or additional guarantees from any Grantor, then each Second Lien Collateral Agent, for itself and for the Second Lien Secured Parties represented by it, shall be granted a Lien on any such Collateral (except to the extent such Lien represents a Second Lien Declined Lien with respect to the Second Lien Debt represented by such Second Lien Collateral Agent), subject to the lien subordination provisions of this Agreement, and each Second Lien Representative, for itself and for the Second Lien Secured Parties represented by it, shall be granted an additional guaranty, as the case may be.
5.2 Insurance and Condemnation Awards . Unless and until the Discharge of First Lien Obligations has occurred, the First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the First Lien Documents, to adjust settlement for any insurance policy covering the Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) affecting the
 
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Collateral. Unless and until the Discharge of First Lien Obligations has occurred, and subject to the rights of the Grantors under the First Lien Documents, all proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of condemnation) if in respect of the Collateral shall be paid to the Designated First Lien Collateral Agent for the benefit of the First Lien Secured Parties pursuant to the terms of the First Lien Documents (including for purposes of cash collateralization of letters of credit) and, thereafter, if a Discharge of First Lien Obligations has occurred, and subject to the rights of the Grantors under the Second Lien Documents, to the Designated Second Lien Collateral Agent for the benefit of the Second Lien Secured Parties to the extent required under the Second Lien Documents and then, and if a Discharge of Second Lien Obligations has occurred, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. Until the Discharge of First Lien Obligations has occurred, if any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment in contravention of this Agreement, then it shall segregate and hold in trust and forthwith pay such proceeds over to the Designated First Lien Collateral Agent in accordance with the terms of Section 4.2.
5.3 Amendments to First Lien Documents and Second Lien Documents .
(a) The First Lien Documents of any Series may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their terms and the First Lien Debt of any Series may be Refinanced subject to Section  8.7 without notice to, or the consent of, any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party, all without affecting the lien subordination or other provisions of this Agreement to the extent the terms and conditions of such amendment, supplement, modification meet any applicable requirements set forth in the Second Lien Documents; provided that any such amendment, restatement, amendment and restatement, supplement, modification or Refinancing is not inconsistent with the terms of this Agreement and, in the case of a Refinancing, the holders of such Refinancing debt (directly or through their agent) bind themselves in a writing addressed to each Second Lien Collateral Agent to the terms of this Agreement.
(b) The Second Lien Documents of any Series may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their terms and the Second Lien Debt of any Series may be Refinanced subject to Section  8.7 without notice to, or the consent of, any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party, all without affecting the lien subordination or other provisions of this Agreement to the extent the terms and conditions of such amendment, supplement, modification meet any applicable requirements set forth in the First Lien Documents; provided that any such amendment, restatement, amendment and restatement, supplement, modification or Refinancing is not inconsistent with the terms of this Agreement and, in the case of any Refinancing, the holders of such Refinancing debt (directly or through their agent) bind themselves in a writing addressed to each First Lien Collateral Agent to the terms of this Agreement.
 
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(c) In the event any First Lien Collateral Agent or the applicable First Lien Secured Party and the relevant Grantor enter into any amendment, waiver or consent in respect of any of the First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First Lien Collateral Document or changing in any manner the rights of the applicable First Lien Collateral Agent, such First Lien Secured Parties, the Company or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of a Second Lien Collateral Document without the consent of any Second Lien Representative, Second Lien Collateral Agent, any other Second Lien Secured Party, the Company or any other Grantor and without any action by any Second Lien Representative, any Second Lien Collateral Agent, any other Second Lien Secured Party, the Company or any other Grantor, provided that:
(i) no such amendment, waiver or consent shall have the effect of:
(A) removing assets subject to the Lien of the Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required by Section  5.1 and provided that there is a corresponding release of the Liens securing the First Lien Obligations on such removed assets;
(B) imposing duties on any Second Lien Collateral Agent or any Second Lien Representative without its consent;
(C) permitting other Liens on the Collateral not permitted under the terms of the Second Lien Documents or SECTION 6 ; or
(D) being prejudicial to the interests of the Second Lien Secured Parties to a greater extent than the First Lien Secured Parties (other than by virtue of their relative priority and the rights and obligations hereunder); and
(ii) notice of such amendment, waiver or consent shall have been given by the Company to each Second Lien Collateral Agent within ten Business Days after the effective date of such amendment, waiver or consent.
5.4 Confirmation of Subordination in Second Lien Collateral Documents . The Company agrees that each Second Lien Collateral Document shall include the following language (or language to similar effect approved by the Designated First Lien Collateral Agent):
“Notwithstanding anything herein to the contrary, the lien and security interest granted to the [collateral agent] pursuant to this Agreement and the exercise of any right or remedy by the [collateral agent] hereunder are subject to the provisions of the Intercreditor Agreement, dated as of [                    ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Second Lien Intercreditor Agreement” ), among JPMORGAN CHASE BANK, N.A., as Initial First Lien Representative, JPMORGAN CHASE BANK, N.A., as Initial First
 
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Lien Collateral Agent, [ ], as Initial Second Lien Representative, [ ], as Initial Second Lien Collateral Agent and certain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Second Lien Intercreditor Agreement and this Agreement, the terms of the Second Lien Intercreditor Agreement shall govern and control.”
In addition, the Company agrees that each Second Lien Mortgage covering any Collateral shall contain such other language as the Designated First Lien Collateral Agent may reasonably request to reflect the subordination of such Second Lien Mortgage to the First Lien Collateral Documents covering such Collateral.
5.5 Gratuitous Bailee/Agent for Perfection .
(a) Each First Lien Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral” ) as collateral agent for the First Lien Secured Parties and as gratuitous bailee for the Second Lien Collateral Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee thereof solely for the purpose of perfecting the security interest granted under the First Lien Documents and the Second Lien Documents, respectively, subject to the terms and conditions of this Section 5.5. Solely with respect to any deposit accounts under the control (within the meaning of Section 9-104 of the UCC) of any First Lien Collateral Agent, such First Lien Collateral Agent agrees to also hold control over such deposit accounts as gratuitous agent for the Second Lien Collateral Agents, subject to the terms and conditions of this Section 5.5.
(b) No First Lien Collateral Agent shall have any obligation whatsoever to the other First Lien Secured Parties, the Second Lien Representatives, the Second Lien Collateral Agents or the Second Lien Secured Parties to ensure that the Pledged Collateral is genuine or owned by any of the Grantors, to perfect the security interests of the Second Lien Collateral Agent or the Second Lien Secured Parties or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.5. The duties or responsibilities of any First Lien Collateral Agent under this Section 5.5 shall be limited solely to holding the Pledged Collateral as bailee (and with respect to deposit accounts, agent) in accordance with this Section 5.5 and delivering the Pledged Collateral upon a Discharge of First Lien Obligations as provided in paragraph (d) below.
(c) No First Lien Collateral Agent or any other First Lien Secured Party shall have by reason of the First Lien Collateral Documents, the Second Lien Collateral Documents, this Agreement or any other document a fiduciary relationship in respect of any Second Lien Representative or any other Second Lien Secured Party and the Second Lien Representatives, the Second Lien Collateral Agents and the Second Lien Secured Parties hereby waive and release the First Lien Collateral Agents and the other First Lien Secured Parties from all claims and liabilities arising pursuant to any First Lien Collateral Agent’s role under this Section 5.5 as gratuitous bailee and gratuitous agent with respect
 
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to the Pledged Collateral. It is understood and agreed that the interests of the First Lien Collateral Agents and the other First Lien Secured Parties, on the one hand, and the Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties on the other hand, may differ and the First Lien Collateral Agents and the other First Lien Secured Parties shall be fully entitled to act in their own interest without taking into account the interests of the Second Lien Representatives, the Second Lien Collateral Agents or other Second Lien Secured Parties.
(d) Upon the Discharge of First Lien Obligations, each First Lien Collateral Agent shall deliver the remaining Pledged Collateral in its possession (if any) together with any necessary endorsements (which endorsement shall be without recourse and without any representation or warranty), (x) unless a Discharge of Second Lien Obligations has not already occurred, to the Designated Second Lien Collateral Agent and (y) if a Discharge of Second Lien Obligations has already occurred, to the Company or to whomever may be lawfully entitled to receive the same. Following the Discharge of First Lien Obligations, each First Lien Collateral Agent further agrees to take all other action reasonably requested by any Second Lien Collateral Agent at the expense of the Company in connection with the Second Lien Collateral Agents obtaining a first-priority security interest in the Collateral. After the Discharge of First Lien Obligations has occurred, upon the Discharge of Second Lien Obligations, each Second Lien Collateral Agent shall deliver the remaining Pledged Collateral in its possession (if any) together with any necessary endorsements (which endorsement shall be without recourse and without any representation or warranty), to the Company or to whomever may be lawfully entitled to receive the same.
5.6 When Discharge of Obligations Deemed to Not Have Occurred .
(a) If, at any time after the Discharge of First Lien Obligations has occurred or contemporaneously therewith, the Company enters into any Refinancing of any First Lien Document evidencing a First Lien Obligation which Refinancing is permitted by the Second Lien Documents, then such Discharge of First Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken as a result of the occurrence of such first Discharge of First Lien Obligations), and, from and after the date on which the Additional First Lien Representative and Additional First Lien Collateral Agent in respect of such Refinancing each becomes a party to this Agreement in accordance with Section 8.7(b), the obligations under such Refinancing of the applicable First Lien Document shall automatically be treated as First Lien Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the Additional First Lien Representative and the Additional First Lien Collateral Agent under such new First Lien Documents shall be a First Lien Representative and First Lien Collateral Agent, respectively, for all purposes of this Agreement and this Agreement shall be reinstated in full force and effect , and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. Upon receipt of a designation from the Company in accordance with Section 8.7(b)(2), each Second Lien Representative and Second Lien Collateral Agent shall promptly (x) enter into such documents and agreements (including amendments or
 
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supplements to this Agreement) as the Company or such Additional First Lien Representative and/or such Additional First Lien Collateral Agent shall reasonably request in order to provide to such Additional First Lien Representative and such Additional First Lien Collateral Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (y) deliver to such Additional First Lien Collateral Agent any Pledged Collateral held by it together with any necessary endorsements (or otherwise allow such Additional First Lien Collateral Agent to obtain control of such Pledged Collateral). If the Additional First Lien Obligations under the Additional First Lien Documents in respect of such Refinancing are secured by assets of the Grantors constituting Collateral that do not also secure the Second Lien Obligations, then the Second Lien Obligations shall be secured at such time by a second priority Lien on such assets to the same extent provided in the Second Lien Collateral Documents and this Agreement except to the extent, with respect to any Series of Second Lien Obligations, such Lien on such assets constitutes a Second Lien Declined Lien. This Section 5.6(a) shall survive termination of this Agreement.
(b) If, at any time after the Discharge of Second Lien Obligations has occurred or contemporaneously therewith, the Company enters into any Refinancing of any Second Lien Document evidencing a Second Lien Obligation which Refinancing is permitted by the First Lien Documents, then such Discharge of Second Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken as a result of the occurrence of such first Discharge of Second Lien Obligations), and, from and after the date on which the Additional Second Lien Representative and Additional Second Lien Collateral Agent in respect of such Refinancing each becomes a party to this Agreement in accordance with Section 8.7(b), the obligations under such Refinancing of the applicable Second Lien Document shall automatically be treated as Second Lien Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the Additional Second Lien Representative and the Additional Second Lien Collateral Agent under such new Second Lien Documents shall be a Second Lien Representative and Second Lien Collateral Agent, respectively, for all purposes of this Agreement and this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. Upon receipt of a designation from the Company in accordance with Section 8.7(b)(2), each First Lien Representative and First Lien Collateral Agent shall promptly enter into such documents and agreements (including amendments or supplements to this Agreement) as the Company or such Additional Second Lien Representative and/or such Additional Second Lien Collateral Agent shall reasonably request in order to provide to such Additional Second Lien Representative and such Additional Second Lien Collateral Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement. If the Additional Second Lien Obligations under the Additional Second Lien Documents in respect of such Refinancing are secured by assets of the Grantors constituting Collateral that do not also secure the First Lien Obligations, then the First Lien Obligations shall be secured at such time by a first priority Lien on such assets to the same extent provided in the First Lien Collateral Documents and this Agreement except to the extent, with respect to any Series of First Lien Obligations, such Lien on such assets constitutes a First Lien Declined Lien. This Section 5.6(b) shall survive termination of this Agreement.
 
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5.7 Purchase Right .
(a) Without prejudice to the enforcement of any of the First Lien Secured Parties’ remedies under the First Lien Documents, this Agreement, at law or in equity or otherwise, the First Lien Secured Parties agree that, if there is (i) an acceleration of any of the First Lien Obligations in accordance with the terms of the applicable First Lien Documents, (ii) a payment default under any First Lien Document that has not been cured or waived by the applicable First Lien Secured Parties within 60 days of the occurrence thereof or (iii) the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor (each, a “ Purchase Event ”), then the Second Lien Secured Parties (on a pro rata basis based on their outstanding Second Lien Obligations, unless otherwise agreed among such Second Lien Secured Parties) may purchase, by submitting a notice (a “ Purchase Notice ”) within fifteen (15) Business Days of any such Purchase Event, the entire aggregate amount (but not less than the entirety) of outstanding First Lien Obligations (including unfunded commitments under any Initial First Lien Document) at the Purchase Price.
(b) The “Purchase Price” will equal the sum of (1) the full amount of all First Lien Obligations then outstanding and unpaid at par (including principal, accrued but unpaid interest and fees and any other unpaid amounts, including breakage costs and, in the case of any secured hedging obligations, the amount that would be payable by the relevant Grantor thereunder if such Grantor were to terminate the hedge agreement in respect thereof on the date of the purchase or, if not terminated, an amount determined by the relevant First Lien Secured Party to be necessary to collateralize its credit risk arising out of such agreement, but excluding any prepayment penalties or premiums, (2) the cash collateral (the “ LC Cash Collateral ”) to be furnished to the First Lien Secured Parties providing letters of credit under the First Lien Documents in such amounts (not to exceed 103% thereof) as such First Lien Secured Parties determine is reasonably necessary to secure such First Lien Secured Parties in connection with any such outstanding and undrawn letters of credit and (3) all accrued and unpaid fees, expenses and other amounts (including attorneys’ fees and expenses) owed to the First Lien Secured Parties under or pursuant to the First Lien Documents on the date of purchase.
(c) The Second Lien Secured Parties desiring to purchase all the First Lien Obligations (the “ Purchasing Creditors ”) will deliver a Purchase Notice to the Designated First Lien Representative that (i) is signed by the Purchasing Creditors; (ii) states that it is a Purchase Notice under this Section 5.7; (iii) states that each Purchasing Creditor is irrevocably electing to purchase, in accordance with this Section 5.7, the percentage of all of the Purchase Obligations stated in the Purchase Notice for that Purchasing Creditor, which percentages must aggregate exactly 100% for all Purchasing Creditors; (iv) represents and warrants that the Purchase Notice is in conformity with the Second Lien Documents and any other binding agreement among Second Lien Secured Parties; and (v) designates a date on which the purchase will occur (the “ Purchase Date ”), that is (x) at least five but not more than ten Business Days after the Designated First Lien
 
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Representative’s receipt of the Purchase Notice, and (y) not more than twenty-five Business Days after the Purchase Event. Upon the Designated First Lien Representative’s receipt of an effective Purchase Notice conforming to this Section 5.7, the Purchasing Creditors will be irrevocably obligated to purchase, and the First Lien Secured Parties will be irrevocably obligated to sell, the First Lien Obligations in accordance with and subject to this Section 5.7.
(d) On the Purchase Date, (i) the Purchasing Creditors and the Designated First Lien Representative will execute and deliver an assignment agreement in form and substance satisfactory to the Designated First Lien Representative, (ii) the Purchasing Creditors will pay the Purchase Price to the Designated First Lien Representative by wire transfer of immediately available funds, (iii) the Purchasing Creditors will deposit with the Designated First Lien Representative or its designee by wire transfer of immediately available funds, the LC Cash Collateral and (iv) each of the Purchasing Creditors will execute and deliver to the Designated First Lien Representative a waiver and release of all claims arising out of this Agreement, the relationship between the First Lien Secured Parties and the Second Lien Secured Parties in connection with the First Lien Documents and the Second Lien Documents, and the transactions contemplated hereby as a result of exercising the purchase option contemplated by this Section 5.7.
(e) Promptly after the closing of the purchase of all First Lien Obligations pursuant to this Section 5.7, the Designated First Lien Representative will distribute the Purchase Price to the First Lien Secured Parties in accordance with the terms of the First Lien Documents. The Designated First Lien Representative will apply the LC Cash Collateral to reimburse the First Lien Secured Parties providing letters of credit for drawings under such letters of credit, any customary fees charged by the issuer in connection with such draws, and facing or similar fees. When all such letters of credit have been cancelled with the consent of the beneficiary thereof, expired, or been fully drawn, and after all payments from the account described above have been made, any remaining cash collateral will be returned to the Purchasing Creditors, as their interests appear. If for any reason the LC Cash Collateral is less than the amount owing with respect to such letters of credit, then the Purchasing Creditors will, in proportion to their interests determined as of the time of demand for such reimbursement, promptly reimburse the Designated First Lien Representative (who will then pay the applicable First Lien Secured Parties) the amount of the deficiency.
(f) Each First Lien Secured Party will retain all rights to indemnification provided in the relevant First Lien Documents for all claims and other amounts relating to periods prior to the purchase of the First Lien Obligations pursuant to this Section 5.7.
(g) The purchase and sale of the First Lien Obligations under this Section 5.7 will be without recourse and without representation or warranty of any kind by the First Lien Secured Parties, except that the First Lien Secured Parties shall severally and not jointly represent and warrant to the Second Lien Secured Parties that on the date of such purchase, immediately before giving effect to the purchase;
 
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(1) the principal of and accrued and unpaid interest on the First Lien Obligations, and the fees and expenses thereof owed to the respective First Lien Secured Parties, are as stated in any assignment agreement prepared in connection with the purchase and sale of the First Lien Obligations; and
(2) each First Lien Secured Party owns the First Lien Obligations purported to be owned by it free and clear of any Liens (other than participation interests not prohibited by the First Lien Documents, in which case the Purchase Price will be appropriately adjusted so that the Second Lien Secured Parties do not pay amounts represented by participation interests to the extent that the Second Lien Secured Parties expressly assume the obligations under such participation interests).
SECTION 6. Insolvency or Liquidation Proceedings .
6.1 Finance and Sale Issues . Until the Discharge of First Lien Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and any First Lien Representative shall desire to permit the use of “Cash Collateral” (as such term is defined in Section 363(a) of the Bankruptcy Code), on which such First Lien Representative, such First Lien Collateral Agent or any other creditor has a Lien or to permit the Company or any other Grantor to obtain financing, whether from the First Lien Secured Parties or any other Person under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law ( “DIP Financing” ), then each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, will not object to such Cash Collateral use or DIP Financing, including any proposed orders for such Cash Collateral use and/or DIP Financing which are acceptable to any First Lien Representative) and to the extent the Liens securing the First Lien Obligations are subordinated to or pari passu with such DIP Financing, each Second Lien Collateral Agent will subordinate its Liens in the Collateral to the Liens securing such DIP Financing (and all Obligations relating thereto) and each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, will not request adequate protection or any other relief in connection therewith (except as expressly agreed by the Designated First Lien Representative or to the extent permitted by Section 6.3). No Second Lien Secured Party may provide DIP Financing to the Company or any other Grantor secured by Liens equal or senior in priority to the Liens securing any First Lien Obligations; provided that if no First Lien Secured Party offers to provide DIP Financing to the extent permitted under this Section 6.1 on or before the date of the hearing to approve DIP Financing, then a Second Lien Secured Party may seek to provide DIP Financing (which DIP Financing shall consist solely of additional financing and shall not include any rollup of the Second Lien Obligations) secured by Liens equal or senior in priority to the Liens securing any First Lien Obligations, and the First Lien Secured Parties may object thereto. Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, agrees that it will not seek consultation rights in connection with, and it will not object to or oppose, a motion to sell, liquidate or otherwise dispose of Collateral under Section 363 of the Bankruptcy Code if the requisite First Lien Secured Parties have consented to such sale, liquidation or other disposition. Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, further agrees that it will not directly or indirectly oppose or impede entry of any
 
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order in connection with such sale, liquidation or other disposition, including orders to retain professionals or set bid procedures in connection with such sale, liquidation or disposition, if the requisite First Lien Secured Parties have consented to (i) such retention of professionals and bid procedures in connection with such sale, liquidation or disposition of such assets and (ii) the sale, liquidation or disposition of such assets, in which event the Second Lien Secured Parties will be deemed to have consented to the sale or disposition of Collateral pursuant to Section 363(f) of the Bankruptcy Code and such motion does not impair the rights of the Second Lien Secured Parties under Section 363(k) of the Bankruptcy Code.
6.2 Relief from the Automatic Stay . Until the Discharge of First Lien Obligations has occurred, each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, agrees that none of them shall: (i) seek (or support any other Person seeking) relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, without the prior written consent of the First Lien Representatives or (ii) oppose (or support any other Person in opposing) any request by any First Lien Representative or First Lien Collateral Agent for relief from such stay.
6.3 Adequate Protection .
(a) Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, agrees that none of them shall contest (or support any other Person contesting):
(1) any request by any First Lien Representative, any First Lien Collateral Agent or other First Lien Secured Party for adequate protection under any Bankruptcy Law; or
(2) any objection by any First Lien Representative, any First Lien Collateral Agent or other First Lien Secured Party to any motion, relief, action or proceeding based on such First Lien Representative, First Lien Collateral Agent or First Lien Secured Party claiming a lack of adequate protection.
(b) Notwithstanding the foregoing provisions in this Section 6.3, in any Insolvency or Liquidation Proceeding:
(1) if the First Lien Secured Parties (or any subset thereof) are granted adequate protection in the form of additional collateral in connection with any Cash Collateral use or DIP Financing, then each Second Lien Collateral Agent, for itself or on behalf of any of the Second Lien Secured Parties represented by it, may seek or request adequate protection in the form of a Lien on such additional collateral, which Lien will be subordinated to the Liens securing the First Lien Obligations and such Cash Collateral use or DIP Financing (and all Obligations relating thereto) on the same basis as the other Liens securing the Second Lien Obligations are so subordinated to the First Lien Obligations under this Agreement; and
 
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(2) the Second Lien Representatives, the Second Lien Collateral Agents and Second Lien Secured Parties shall only be permitted to seek adequate protection with respect to their rights in the Collateral in any Insolvency or Liquidation Proceeding in the form of (A) additional collateral; provided that as adequate protection for the First Lien Obligations, each First Lien Collateral Agent, on behalf of the First Lien Secured Parties represented by it, is granted a Lien on such additional collateral, which Lien shall be senior to the Lien of the applicable Second Lien Representatives, Second Lien Collateral Agents and Second Lien Secured Parties on the same basis as the other Liens of the Second Lien Secured Parties on the Collateral; (B) replacement Liens on the Collateral; provided that as adequate protection for the First Lien Obligations, each First Lien Collateral Agent, on behalf of the First Lien Secured Parties represented by it, is granted replacement Liens on the Collateral, which Liens shall be senior to the Lien of the applicable Second Lien Representatives, Second Lien Collateral Agents and Second Lien Secured Parties on the same basis as the other Liens of the Second Lien Secured Parties on the Collateral; (C) an administrative expense claim; provided that as adequate protection for the First Lien Obligations, each First Lien Representative, on behalf of the First Lien Secured Parties represented by it, is granted an administrative expense claim which is senior and prior to the administrative expense claim of the Second Lien Representatives and the other Second Lien Secured Parties; and (D) cash payments with respect to interest on the Second Lien Obligations; provided that (1) as adequate protection for the First Lien Obligations, each First Lien Representative, on behalf of the First Lien Secured Parties represented by it, is granted cash payments with respect to interest on the First Lien Obligation represented by it and (2) such cash payments do not exceed an amount equal to the interest accruing on the principal amount of Second Lien Obligations outstanding on the date such relief is granted at the interest rate under the applicable Second Lien Documents and accruing from the date the applicable Second Lien Representative is granted such relief. If any Second Lien Secured Party receives Post-Petition Interest and/or adequate protection payments in an Insolvency or Liquidation Proceeding (“ Second Lien Adequate Protection Payments ”) and the First Lien Secured Parties do not receive payment in full in cash of all First Lien Obligations upon the effectiveness of the plan of reorganization for, or conclusion of, that Insolvency or Liquidation Proceeding, then each Second Lien Secured Party shall pay over to the First Lien Secured Parties an amount (the “ Pay-Over Amount ”) equal to the lesser of (i) the Second Lien Adequate Protection Payments received by such Second Lien Secured Party and (ii) the amount of the short-fall (the “ Short Fall ”) in payment in full in cash of the First Lien Obligations; provided that to the extent any portion of the Short Fall represents payments received by the First Lien Secured Parties in the form of promissory notes, equity or other property equal in value to the cash paid in respect of the Pay-Over Amount, the First Lien Secured Parties shall, upon receipt of the Pay-Over Amount, transfer those promissory notes, equity or other property, equal in value to the cash paid in respect of the Pay-Over Amount, to the applicable Second Lien Secured Parties pro rata in exchange for the Pay-Over Amount. Notwithstanding anything herein to the contrary, the First Lien Secured Parties shall not be deemed to have consented to, and expressly retain their rights to object to, the grant of adequate protection in the form of cash payments to the Second Lien Secured Parties made pursuant to this Section 6.3(b).
 
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(c) Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties represented by it, agrees that notice of a hearing to approve DIP Financing or use of Cash Collateral on an interim basis shall be adequate if delivered to such Second Lien Representative and Second Lien Collateral Agent at least two (2) Business Days in advance of such hearing and that notice of a hearing to approve DIP Financing or use of Cash Collateral on a final basis shall be adequate if delivered to such Second Lien Representative and Second Lien Collateral Agent at least fifteen (15) days in advance of such hearing.
6.4 No Waiver . Subject to Section 6.7(b), nothing contained herein shall prohibit or in any way limit any First Lien Representative or any other First Lien Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by any Second Lien Representative or any other Second Lien Secured Party, including the seeking by any Second Lien Representative or any other Second Lien Secured Party of adequate protection or the asserting by any Second Lien Representative or any other Second Lien Secured Party of any of its rights and remedies under the Second Lien Documents or otherwise.
6.5 Avoidance Issues . If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company or any other Grantor any amount paid in respect of First Lien Obligations (a “ Recovery ”), then such First Lien Secured Party shall be entitled to a reinstatement of its First Lien Obligations with respect to all such recovered amounts on the date of such Recovery, and from and after the date of such reinstatement the Discharge of First Lien Obligations shall be deemed not to have occurred for all purposes hereunder. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. This Section 6.5 shall survive termination of this Agreement.
6.6 Reorganization Securities . If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a plan of reorganization, arrangement, compromise or liquidation or similar dispositive restructuring plan, both on account of First Lien Obligations and on account of Second Lien Obligations, then, to the extent the debt obligations distributed on account of the First Lien Obligations and on account of the Second Lien Obligations are secured by Liens upon the same property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
 
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6.7 Post-Petition Interest .
(a) None of any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party shall oppose or seek to challenge any claim by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of First Lien Obligations consisting of Post-Petition Interest to the extent of the value of the Lien of the First Lien Collateral Agents on behalf of the First Lien Secured Parties on the Collateral or any other First Lien Secured Party’s Lien, without regard to the existence of the Liens of the Second Lien Collateral Agents on behalf of the Second Lien Secured Parties on the Collateral.
(b) None of any First Lien Representative, First Lien Collateral Agent or any other First Lien Secured Party shall oppose or seek to challenge any claim by any Second Lien Representative, Second Lien Collateral Agent or any other Second Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of Second Lien Obligations consisting of Post-Petition Interest to the extent of the value of the Lien of the Second Lien Collateral Agents on behalf of the Second Lien Secured Parties on the Collateral (after taking into account the amount of all First Lien Obligations (including as described in Section 6.9)).
6.8 Waiver . Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, waives any claim it may hereafter have against any First Lien Secured Party arising out of the election of any First Lien Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or out of any cash collateral or financing arrangement or out of any grant of a security interest in connection with the Collateral in any Insolvency or Liquidation Proceeding so long as such actions are not in express contravention of the terms of this Agreement.
6.9 Separate Grants of Security and Separate Classification . Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, and each First Lien Representative and each First Lien Collateral Agent, for itself and on behalf of the First Lien Secured Parties represented by it, acknowledges and agrees that:
(a) the grants of Liens pursuant to the First Lien Collateral Documents and the Second Lien Collateral Documents constitute two separate and distinct grants of Liens; and
(b) because of, among other things, their differing rights in the Collateral, the Second Lien Obligations are fundamentally different from the First Lien Obligations and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency or Liquidation Proceeding.
To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Lien Secured Parties and the Second Lien Secured Parties in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then each of the parties hereto hereby acknowledges and agrees that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Collateral (with the effect being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose
 
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ignoring all claims held by the Second Lien Secured Parties), the First Lien Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing (or that would be owing if there were such separate classes of senior and junior secured claims) in respect of Post-Petition Interest, including any additional interest payable pursuant to the First Lien Documents, arising from or related to a default, which is disallowed as a claim in any Insolvency or Liquidation Proceeding) before any distribution is made in respect of the claims held by the Second Lien Secured Parties with respect to the Collateral, with each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, hereby acknowledging and agreeing to turn over to the Designated First Lien Collateral Agent, for itself and on behalf of the First Lien Secured Parties, Collateral or proceeds of Collateral otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Lien Secured Parties.
6.10 Effectiveness in Insolvency or Liquidation Proceedings . The Parties acknowledge that this Agreement is a “subordination agreement” under section 510(a) of the Bankruptcy Code, which will be effective before, during and after the commencement of an Insolvency or Liquidation Proceeding. All references in this Agreement to any Grantor will include such Person as a debtor-in-possession and any receiver or trustee for such Person in an Insolvency or Liquidation Proceeding.
SECTION 7. Reliance; Waivers; Etc.
7.1 Reliance . Other than any reliance on the terms of this Agreement, each First Lien Representative and each First Lien Collateral Agent, on behalf of itself and the First Lien Secured Parties represented by it, acknowledges that it and such First Lien Secured Parties have, independently and without reliance on any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into each of the First Lien Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the First Lien Documents or this Agreement. Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, acknowledges that it and such Second Lien Secured Parties have, independently and without reliance on any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into each of the Second Lien Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the Second Lien Documents or this Agreement.
7.2 No Warranties or Liability . Each First Lien Representative and each First Lien Collateral Agent, on behalf of itself and the First Lien Secured Parties represented by it, acknowledges and agrees that no Second Lien Representative or other Second Lien Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Second Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. Except as otherwise provided herein, the Second Lien Secured Parties will be entitled to manage
 
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and supervise their respective extensions of credit under the Second Lien Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate. Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, acknowledges and agrees that no First Lien Representative or other First Lien Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the First Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. Except as otherwise provided herein, the First Lien Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under the First Lien Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate. The Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties shall have no duty to the First Lien Representatives, the First Lien Collateral Agents or any of the other First Lien Secured Parties, and the First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties shall have no duty to the Second Lien Representatives, the Second Lien Collateral Agents or any of the other Second Lien Secured Parties, to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Company or any other Grantor (including the First Lien Documents and the Second Lien Documents), regardless of any knowledge thereof which they may have or be charged with.
7.3 No Waiver of Lien Priorities .
(a) No right of the First Lien Secured Parties, the First Lien Representatives, the First Lien Collateral Agents or any of them to enforce any provision of this Agreement or any First Lien Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Secured Party, First Lien Representative or First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Documents or any of the Second Lien Documents, regardless of any knowledge thereof which any other First Lien Representative, First Lien Collateral Agent or any First Lien Secured Party, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Documents and subject to the provisions of Sections 5.3 and 8.7), the First Lien Secured Parties, the First Lien Representatives, the First Lien Collateral Agents and any of them may, at any time and from time to time in accordance with the First Lien Documents and/or applicable law, without the consent of, or notice to, any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party, without incurring any liabilities to any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
 
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(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by any First Lien Representative, any First Lien Collateral Agent or any of the other First Lien Secured Parties, the First Lien Obligations or any of the First Lien Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Secured Parties, the First Lien Representatives or the First Lien Collateral Agents, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, also agrees that the First Lien Secured Parties, the First Lien Representatives and the First Lien Collateral Agents shall have no liability to such Second Lien Representative, such Second Lien Collateral Agent or any such Second Lien Secured Parties, and such Second Lien Representative and such Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, hereby waives any claim against any First Lien Secured Party, any First Lien Representative or any First Lien Collateral Agent arising out of any and all actions which the First Lien Secured Parties, any First Lien Representative or any First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
 
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(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral.
Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, agrees that the First Lien Secured Parties, the First Lien Representatives and the First Lien Collateral Agents have no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to any First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
7.4 Obligations Unconditional . All rights, interests, agreements and obligations of the First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties and the Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties, respectively, hereunder shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any First Lien Documents or any Second Lien Documents;
(b) except as otherwise expressly set forth in this Agreement, any change in the time, manner or place of payment of, or in any other terms of, all or any of the First Lien Obligations or Second Lien Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of any First Lien Document or any Second Lien Document;
(c) except as otherwise expressly set forth in this Agreement, any exchange of any security interest in any Collateral or any other collateral, or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the First Lien Obligations or Second Lien Obligations or any guaranty thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Grantor; or
(e) any other circumstances which otherwise might constitute a defense available to, or a discharge of, the Company or any other Grantor in respect of any First Lien Representative, any First Lien Collateral Agent, the First Lien Obligations, any First Lien Secured Party, any Second Lien Representative, any Second Lien Collateral Agent, the Second Lien Obligations or any Second Lien Secured Party in respect of this Agreement.
 
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SECTION 8. Miscellaneous .
8.1 Integration/Conflicts . This Agreement, the First Lien Documents and the Second Lien Documents represent the entire agreement of the Grantors, the First Lien Secured Parties and the Second Lien Secured Parties with respect to the subject matter hereof and thereof, and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof and thereof. There are no promises, undertakings, representations or warranties by the First Lien Secured Parties or the Second Lien Secured Parties relative to the subject matter hereof and thereof not expressly set forth or referred to herein or therein. In the event of any conflict between the provisions of this Agreement and the provisions of the First Lien Documents or the Second Lien Documents, the provisions of this Agreement shall govern and control.
8.2 Effectiveness; Continuing Nature of this Agreement; Severability . This Agreement shall become effective when executed and delivered by the parties hereto. This is a continuing agreement of lien subordination and the First Lien Secured Parties may continue, at any time and without notice to any Second Lien Representative or any other Second Lien Secured Party, to extend credit and other financial accommodations and lend monies to or for the benefit of the Company or any Grantor constituting First Lien Obligations in reliance hereon. Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, hereby waives any right it may have under applicable law to revoke this Agreement or any of the provisions of this Agreement. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to those of the invalid, illegal or unenforceable provisions. All references to the Company or any other Grantor shall include the Company or such Grantor as debtor and debtor-in-possession and any receiver, trustee or similar person for the Company or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding. This Agreement shall terminate and be of no further force and effect:
(a) with respect to any First Lien Representative and any First Lien Collateral Agent, the First Lien Secured Parties represented by it and their First Lien Obligations, on the date on which the First Lien Obligations of such First Lien Secured Parties are Discharged, subject to Sections 5.6 and 6.5; and
(b) with respect to any Second Lien Representative and any Second Lien Collateral Agent, the Second Lien Secured Parties represented by it and their Second Lien Obligations, on the date on which the Second Lien Obligations of such Second Lien Secured Parties are Discharged, subject to Sections 5.6 and 6.5; provided , however , that in each case, such termination shall not relieve any such party of its obligations incurred hereunder prior to the date of such termination.
 
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8.3 Amendments; Waivers .
(a) No amendment, modification or waiver of any of the provisions of this Agreement shall be deemed to be made unless the same shall be in writing signed on behalf of each party hereto or its authorized agent and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time. Notwithstanding the foregoing, the Company and the other Grantors shall not have any right to consent to or approve any amendment, modification or waiver of any provision of this Agreement except to the extent their rights are directly and adversely affected.
(b) Notwithstanding the foregoing, without the consent of any First Lien Secured Party or Second Lien Secured Party, any Representative and Collateral Agent may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section  8.7 and upon such execution and delivery, such Representative and Collateral Agent and the Additional First Lien Secured Parties and Additional First Lien Obligations or Additional Second Lien Secured Parties or Additional Second Lien Obligations of the Series for which such Representative and Collateral Agent is acting shall be subject to the terms hereof.
(c) Notwithstanding the foregoing, without the consent of any other Representative, Collateral Agent or First Lien Secured Party, the Designated First Lien Representative may effect amendments and modifications to this Agreement to the extent necessary to reflect any incurrence of any Additional First Lien Obligations or Additional Second Lien Obligations in compliance with this Agreement.
8.4 Information Concerning Financial Condition of the Grantors and their Subsidiaries . The First Lien Representatives, the First Lien Collateral Agents and the First Lien Secured Parties, on the one hand, and the Second Lien Representatives, the Second Lien Collateral Agents and the Second Lien Secured Parties, on the other hand, shall each be responsible for keeping themselves informed of (a) the financial condition of the Grantors and their Subsidiaries and all endorsers and/or guarantors of the First Lien Obligations or the Second Lien Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First Lien Obligations or the Second Lien Obligations. The First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties shall have no duty to advise the Second Lien Representatives, the Second Lien Collateral Agents or any other Second Lien Secured Party of information known to it or them regarding such condition or any such circumstances or otherwise. In the event the First Lien Representatives, the First Lien Collateral Agents or any of the other First Lien Secured Parties, in its or their sole discretion, undertakes at any time or from time to time to provide any such information to any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party, it or they shall be under no obligation:
 
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(a) to make, and the First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties shall not make, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided;
(b) to provide any additional information or to provide any such information on any subsequent occasion;
(c) to undertake any investigation; or
(d) to disclose any information, which pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.
8.5 Subrogation . With respect to the value of any payments or distributions in cash, property or other assets that any of the Second Lien Representatives, the Second Lien Collateral Agents or the other Second Lien Secured Parties pays over to any of the First Lien Representatives, the First Lien Collateral Agents or the other First Lien Secured Parties under the terms of this Agreement, such Second Lien Secured Parties, Second Lien Representatives and Second Lien Collateral Agents shall be subrogated to the rights of such First Lien Representatives, First Lien Collateral Agents and First Lien Secured Parties; provided that each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, hereby agrees not to assert or enforce any such rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of First Lien Obligations has occurred. The Company and the other Grantors each acknowledges and agrees that the value of any payments or distributions in cash, property or other assets received by any Second Lien Representative, Second Lien Collateral Agent or other Second Lien Secured Party that are paid over to any First Lien Representative, First Lien Collateral Agent or other First Lien Secured Party pursuant to this Agreement shall not reduce any of the Second Lien Obligations.
8.6 Application of Payments . All payments received by any First Lien Representative, First Lien Collateral Agent or other First Lien Secured Party may be applied, reversed and reapplied, in whole or in part, to such part of the First Lien Obligations provided for in the First Lien Documents (subject to the First Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement, in each case if then in effect). Each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, agrees to any extension or postponement of the time of payment of the First Lien Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security which may at any time secure any part of the First Lien Obligations and to the addition or release of any other Person primarily or secondarily liable therefor.
 
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8.7 Additional Debt Facilities .
(a) To the extent, but only to the extent, permitted by the provisions of the First Lien Documents and the Second Lien Documents and Section 5.3, the Company may (x) incur or issue and sell one or more series or classes of Indebtedness that the Company designates as Additional First Lien Debt and/or one or more series or classes of Indebtedness that the Company designates as Additional Second Lien Debt (each, “ Additional Debt ”) or (y) incur Indebtedness under any Replacement First Lien Credit Agreement that is secured on an equal and ratable basis with the Liens (other than any First Lien Declined Liens), which shall be Additional First Lien Obligations.
Any such series or class of Additional First Lien Debt may be secured by a first-priority, senior Lien on the Collateral, in each case under and pursuant to the First Lien Collateral Documents for such Series of Additional First Lien Debt, if and subject to the condition that, unless such Indebtedness is part of an existing Series of Additional First Lien Debt represented by a First Lien Representative and First Lien Collateral Agent already party to this Agreement, the First Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect), the Additional First Lien Representative and the Additional First Lien Collateral Agent of any such Additional First Lien Debt each becomes a party to this Agreement, the First Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect) by satisfying the conditions set forth in clauses (1) through (3) of paragraph (b) of this Section 8.7. Any Indebtedness and other Initial First Lien Obligations under any Replacement First Lien Credit Agreement may be secured by Liens on an equal and ratable basis, in each case under and pursuant to the Initial First Lien Documents, if and subject to the condition that the Replacement First Lien Representative and Replacement First Lien Collateral Agent, acting on behalf of the holders of such Initial First Lien Obligations, each becomes a party to this Agreement, the First Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect) by satisfying the conditions set forth in clauses (1) through (3) of paragraph (b) of this Section 8.7. Upon any Additional First Lien Representative and Additional First Lien Collateral Agent, or Replacement First Lien Representative and Replacement First Lien Collateral Agent, as the case may be, so becoming a party hereto and becoming a party to the First Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect) in accordance with the terms thereof, all Additional First Lien Obligations of such Series or all Initial First Lien Obligations under any Replacement First Lien Credit Agreement, as applicable, shall also be entitled to be so secured by a senior Lien on the Collateral in accordance with the terms hereof and thereof.
Any such series or class of Additional Second Lien Debt may be secured by a second-priority, subordinated Lien on the Collateral, in each case under and pursuant to the relevant Second Lien Collateral Documents for such Series of Additional Second Lien Debt, if and subject to the condition, unless such Indebtedness is part of an existing Series of Additional Second Lien Debt represented by a Second Lien Representative and Second Lien Collateral Agent already party to this Agreement, the Second Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect), the Additional Second Lien Representative and Additional Second Lien Collateral Agent of any such Additional Second Lien Debt each becomes a party to this Agreement, the Second Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect) by satisfying the conditions set forth in clauses (1) through (3) of paragraph (b) of this Section 8.7. Upon any Additional Second Lien Representative and Additional Second Lien Collateral Agent so becoming a party hereto and becoming a party to the
 
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Second Lien Pari Passu Intercreditor Agreement and the Term/ABL Intercreditor Agreement (if then in effect) in accordance with the terms thereof, all Additional Second Lien Obligations of such Series shall also be entitled to be so secured by a subordinated Lien on the Collateral in accordance with the terms hereof and thereof.
(b) In order for an Additional Representative and an Additional Collateral Agent, or, in the case of a Replacement First Lien Credit Agreement, the Replacement First Lien Representative and the Replacement First Lien Collateral Agent in respect thereof, to become a party to this Agreement:
(1) such Additional Representative and such Additional Collateral Agent or such Replacement First Lien Representative and such Replacement First Lien Collateral Agent shall have executed and delivered to each other then-existing Representative (A) a Joinder Agreement substantially in the form of Exhibit I hereto (if such Representative is an Additional Second Lien Representative and such Collateral Agent is an Additional Second Lien Collateral Agent) or Exhibit II hereto (if such Representative is an Additional First Lien Representative and such Collateral Agent is an Additional First Lien Collateral Agent or in the case of a Replacement First Lien Credit Agreement) (with such changes as may be reasonably approved by the Designated First Lien Representative and such Representative and such Collateral Agent) pursuant to which (x) such Additional Representative becomes a Representative hereunder, such Additional Collateral Agent becomes a Collateral Agent hereunder and the related First Lien Secured Parties or Second Lien Secured Parties, as applicable, become subject hereto and bound hereby or (y) such Replacement First Lien Representative becomes the Initial First Lien Representative hereunder and such Replacement First Lien Collateral Agent becomes the Initial First Lien Collateral Agent hereunder, such Replacement First Lien Credit Agreement becomes the Initial First Lien Credit Agreement hereunder and such Initial First Lien Obligations and holders of such Initial First Lien Obligations become subject hereto and bound hereby and (B) a joinder agreement to the Term/ABL Intercreditor Agreement (if then in effect) in the form required thereby or such other form as may be acceptable to the parties thereto;
(2) the Company shall have delivered a Designation to each other then-existing Collateral Agent substantially in the form of Exhibit III hereto, pursuant to which a Responsible Officer of the Company shall (A) identify the Indebtedness to be designated as Additional First Lien Obligations, Additional Second Lien Obligations, or Initial First Lien Obligations, as applicable, and the initial aggregate principal amount of such Indebtedness, (B) specify the name and address of the applicable Additional Representative and Additional Collateral Agent or the Replacement First Lien Representative and Replacement First Lien Collateral Agent, (C) certify that such Additional Debt or Initial First Lien Obligations is permitted to be incurred, secured and guaranteed by each First Lien Document and Second Lien Document and that the conditions set forth in this Section 8.7 are satisfied with respect to such Additional Debt or Initial First Lien Obligations, as applicable and (D) in the case of a Replacement First Lien Credit Agreement, expressly state that such agreement giving rise to the new Indebtedness satisfies the requirements of a Replacement First Lien Credit Agreement and is designated as a Replacement First Lien Credit Agreement; and
 
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(3) the Company shall have delivered to each other Collateral Agent true, complete and certified copies of each of the First Lien Documents or Second Lien Documents, as applicable, relating to such Additional First Lien Debt, Additional Second Lien Debt, or the Replacement First Lien Credit Agreement, as applicable.
(c) The Additional Second Lien Documents or Additional First Lien Documents, as applicable, relating to such Additional Obligations shall provide that each of the applicable Secured Parties with respect to such Additional Obligations will be subject to and bound by the provisions of this Agreement in its capacity as a holder of such Additional Obligations.
(d) Upon the execution and delivery of a Joinder Agreement by an Additional First Lien Representative and an Additional First Lien Collateral Agent or an Additional Second Lien Representative and an Additional Second Lien Collateral Agent or the Replacement First Lien Representative and the Replacement First Lien Collateral Agent, in each case, in accordance with this Section 8.7, each other Representative and Collateral Agent shall acknowledge receipt thereof by countersigning a copy thereof and returning the same to such Additional First Lien Representative and such Additional First Lien Collateral Agent or such Additional Second Lien Representative and such Additional Second Lien Collateral Agent or the Replacement First Lien Representative and the Replacement First Lien Collateral Agent, as the case may be; provided that the failure of any Representative or Collateral Agent to so acknowledge or return the same shall not affect the status of such Additional Obligations as Additional First Lien Obligations or Additional Second Lien Obligations, or a Replacement First Lien Credit Agreement, as the case may be, if the other requirements of this Section 8.7 are complied with.
(e) With respect to any incurrence, issuance or sale of Indebtedness after the date hereof under the Additional First Lien Documents or Additional Second Lien Documents of a Series of Additional First Lien Debt or Series of Additional Second Lien Debt whose Representative and Collateral Agent is already each a party to this Agreement, the Term/ABL Intercreditor Agreement (if then in effect) and the First Lien Pari Passu Intercreditor Agreement or Second Lien Pari Passu Intercreditor Agreement, as applicable, the requirements of Section 8.7(b) shall not be applicable and such Indebtedness shall automatically constitute Additional First Lien Debt or Additional Second Lien Debt so long as (i) such Indebtedness is permitted to be incurred, secured and guaranteed by each First Lien Document and Second Lien Document and (ii) the provisions of paragraph (c) above have been complied with; provided , further , however that with respect to any such Indebtedness incurred, issued or sold pursuant to the terms of any Additional First Lien Documents or Additional Second Lien Documents of such existing Series of Additional First Lien Debt or Additional Second Lien Debt as such terms existed on the date the Representative and Collateral Agent for such Series of Additional First Lien Debt or Additional Second Lien Debt executed the Joinder Agreement, the requirements of clause
 
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(i) of this paragraph (e) shall be tested only as of (x) the date of execution of such Joinder Agreement, if pursuant to a commitment entered into at the time of such Joinder Agreement and (y) with respect to any later commitment or amendment to those terms to permit such Indebtedness, as of the date of such commitment and/or amendment.
8.8 Submission to Jurisdiction; Certain Waivers . Each of the Company, each other Grantor, and each Representative and each Collateral Agent, on behalf of itself and the applicable Secured Parties for whom it is acting, hereby irrevocably and unconditionally
(a) submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each such party hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each such party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that each Collateral Agent and each Representative may otherwise have to bring any action or proceeding against the Borrower or any Grantor or its properties in the courts of any jurisdiction;
(b) waives, to the fullest extent it may legally and effectively do so (i) any objection it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a) of this Section 8.8 and (ii) the defense of an inconvenient forum to the maintenance of such action or proceeding; and
(c) consents to service of process in the manner provided for notices in Section 8.10. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
8.9 WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
 
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8.10 Notices . All notices to the Second Lien Secured Parties and the First Lien Secured Parties permitted or required under this Agreement shall be sent to the applicable Second Lien Representative and the applicable First Lien Representative, respectively. Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be personally served or sent by facsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of facsimile, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed. For the purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name on the signature pages hereto or in the Joinder Agreement pursuant to which it becomes a party hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.
8.11 Further Assurances . Each First Lien Representative and each First Lien Collateral Agent, on behalf of itself and the First Lien Secured Parties represented by it, each Second Lien Representative and each Second Lien Collateral Agent, on behalf of itself and the Second Lien Secured Parties represented by it, and the Company and each other Grantor, agree that each of them shall take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as any First Lien Representative and First Lien Collateral Agent or any Second Lien Representative and Second Lien Collateral Agent may reasonably request to effectuate the terms of and the Lien priorities contemplated by this Agreement.
8.12 Agency Capacities . Except as expressly provided herein, JPM is acting in the capacity of Initial First Lien Representative and Initial First Lien Collateral Agent solely for the Initial First Lien Secured Parties. Except as expressly provided herein, each other Representative and Collateral Agent is acting in the capacity of Representative and Collateral Agent, respectively, solely for the Secured Parties under the First Lien Documents or Second Lien Documents for which it is the named Representative or Collateral Agent, as the case may be, in the applicable Joinder Agreement.
8.13 GOVERNING LAW . THIS AGREEMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE), SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.14 Binding on Successors and Assigns . This Agreement shall be binding upon the First Lien Representatives, the First Lien Collateral Agents, the other First Lien Secured Parties, the Second Lien Representatives, the Second Lien Collateral Agents, the other Second Lien Secured Parties, the Company and the other Grantors, and their respective successors and assigns. If any of the First Lien Representatives, the First Lien Collateral Agents, the Second Lien Representatives or the Second Lien Collateral Agents resigns or is replaced pursuant to the First Lien Documents or the Second Lien Documents, as applicable, its successor shall be deemed to be a party to this Agreement and shall have all the rights of, and be subject to all the obligations of, this Agreement. No provision of this Agreement will inure to the benefit of a trustee, debtor-in-possession, creditor trust or other representative of an estate or creditor of any Grantor, including where any such trustee, debtor-in-possession, creditor trust or other representative of an estate is the beneficiary of a Lien securing Collateral by virtue of the avoidance of such Lien in an Insolvency or Liquidation Proceeding.
 
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8.15 Section Headings . Section headings and the Table of Contents used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
8.16 Counterparts . This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission (e.g. “pdf” or “tif” format) shall be effective as delivery of a manually executed counterpart hereof.
8.17 Authorization . By its signature, each Person executing this Agreement, on behalf of such party or Grantor but not in his or her personal capacity as a signatory, represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement.
8.18 No Third Party Beneficiaries/Provisions Solely to Define Relative Rights . This Agreement and the rights and benefits hereof shall inure to the benefit of each of the parties hereto and its respective successors and assigns and shall inure to the benefit of each of the First Lien Secured Parties and the Second Lien Secured Parties. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Representatives, the First Lien Collateral Agents and the other First Lien Secured Parties on the one hand and the Second Lien Representatives, the Second Lien Collateral Agents and the other Second Lien Secured Parties on the other hand. Nothing herein shall be construed to limit the relative rights and obligations as among the First Lien Secured Parties or as among the Second Lien Secured Parties; as among the First Lien Secured Parties, such rights and obligations are governed by, and any provisions herein regarding them are therefore subject to, the provisions of the First Lien Pari Passu Intercreditor Agreement ( provided that, solely as among any Initial First Lien Secured Parties party to the Initial First Lien Credit Agreement, the Initial First Lien Documents shall define the relative rights and priorities of such First Lien Secured Parties (as among each other) with respect to the Collateral (including as to waterfalls, voting rights and intercreditor provisions contained therein as applicable among such First Lien Secured Parties)) and as among the Second Lien Secured Parties, such rights and obligations are governed by, and any provisions herein regarding them are therefore subject to, the provisions of the Second Lien Pari Passu Intercreditor Agreement. Nothing herein shall be construed to limit the relative rights and obligations as among the parties to the Term/ABL Intercreditor Agreement; as among such Persons, such rights and obligations are governed by, and any provisions herein regarding them are therefore subject to, the provisions of the Term/ABL Intercreditor Agreement. Other than as set forth in Section 8.3, none of the Company, any other Grantor or any other creditor thereof shall have any rights hereunder and neither the Company nor any Grantor may rely on the terms hereof. Nothing in this Agreement is intended to or shall impair the obligations of the Company or any other Grantor, which are absolute and unconditional, to pay the First Lien Obligations and the Second Lien Obligations as and when the same shall become due and payable in accordance with their terms.
8.19 No Indirect Actions . Unless otherwise expressly stated, if a party may not take an action under this Agreement, then it may not take that action indirectly, or support any other Person in taking that action directly or indirectly. “Taking an action indirectly” means taking an action that is not expressly prohibited for the party but is intended to have substantially the same effects as the prohibited action.
 
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8.20 Additional Grantors . In the event any Subsidiary shall have granted a Lien on any of its assets to secure any Secured Obligations, the Company shall cause such Subsidiary, if not already a signatory hereto, to execute an acknowledgment hereto as a “Grantor” in form and substance reasonably satisfactory to each Collateral Agent (which may include an additional counterpart signature page to this Agreement). The execution and delivery of any such acknowledgment shall not require the consent of any other party hereto. The rights and obligations of each party hereto shall remain in full force and effect notwithstanding the acknowledgment of any new Grantor as a party to this Agreement.
[Remainder of this page intentionally left blank]
 
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IN WITNESS WHEREOF, the parties hereto have executed this [Second] Lien Intercreditor Agreement as of the date first written above.

JPMORGAN CHASE BANK, N.A.,	
as Initial First Lien Representative and as Initial	
First Lien Collateral Agent	
		
By:	 	                                                                   	
	 	Name:	
	 	Title:	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[NOTICE ADDRESS]	
	
[________________________]	
as Initial Second Lien Representative and Initial	
Second Lien Collateral Agent	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[NOTICE ADDRESS]	

			
Acknowledged and Agreed to by:	
	
AMNEAL PHARMACEUTICALS LLC	
		
By:	 	                                                              	
	 	Name:	
	 	Title:	
	
[NOTICE ADDRESS]	
	
GRANTORS:	
	
[INSERT NAME OF OTHER GRANTORS]	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[NOTICE ADDRESS]	

Exhibit I to the
Second Lien Intercreditor Agreement
[FORM OF] SECOND LIEN JOINDER AGREEMENT NO. [    ] dated as of [    ], 20[    ] to the SECOND LIEN INTERCREDITOR AGREEMENT dated as of [    ], 20[    ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Second Lien Intercreditor Agreement ”), among JPMORGAN CHASE BANK, N.A., as Initial First Lien Representative and Initial First Lien Collateral Agent, [INSERT NAME], as Initial Second Lien Representative, [INSERT NAME], as Initial Second Lien Collateral Agent and the additional Representatives from time to time a party thereto, and acknowledged and agreed to by AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “ Company ”), certain subsidiaries of the Company (each a “ Grantor ”).
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Second Lien Intercreditor Agreement.
As a condition to the ability of the Company to incur Additional Second Lien Debt and to secure such Additional Second Lien Debt and related Additional Second Lien Obligations with a lien on the Collateral and to have such Additional Second Lien Debt and related Additional Second Lien Obligations guaranteed by the Grantors, in each case under and pursuant to the applicable Additional Second Lien Documents, each of the Additional Second Lien Representative and the Additional Second Lien Collateral Agent in respect of such Additional Second Lien Debt and related Additional Second Lien Obligations is required to become a Representative and Collateral Agent, respectively, under, and the Additional Second Lien Secured Parties in respect thereof are required to become subject to and bound by, the Second Lien Intercreditor Agreement. Section 8.7 of the Second Lien Intercreditor Agreement provides that such Additional Second Lien Representative and Additional Second Lien Collateral Agent may become a Representative and Collateral Agent, respectively, under, and such Additional Second Lien Secured Parties may become subject to and bound by, the Second Lien Intercreditor Agreement pursuant to the execution and delivery by the Additional Second Lien Representative and Additional Second Lien Collateral Agent of an instrument in the form of this Joinder Agreement and the satisfaction of the other conditions set forth in Section 8.7 of the Second Lien Intercreditor Agreement. The undersigned Additional Second Lien Representative (the “ New Representative ”) and Additional Second Lien Collateral Agent (the “ New Collateral Agent ”) are executing this Joinder Agreement in accordance with the requirements of the Second Lien Intercreditor Agreement.
Accordingly, the New Representative and the New Collateral Agent agree as follows:
In accordance with Section 8.7 of the Second Lien Intercreditor Agreement, the New Representative and the New Collateral Agent by their signatures below become a Second Lien Representative and a Second Lien Collateral Agent, respectively, under, and the related Additional Second Lien Secured Parties represented by it become subject to and bound by, the Second Lien Intercreditor Agreement with the same force and effect as if the New Representative and the New Collateral Agent had originally been named therein as a Second Lien Representative and a Second Lien Collateral Agent, respectively, and each of the New Representative and the New Collateral Agent, on behalf of itself and the Additional Second Lien Secured Parties represented by it, hereby agrees to all the terms and provisions of the Second Lien Intercreditor Agreement applicable to it as a Second Lien Representative and a Second Lien Collateral Agent,
 
Exhibit I – Page 1

respectively, and to the Additional Second Lien Secured Parties represented by it as Second Lien Secured Parties. Each reference to a “Representative” or “Second Lien Representative” in the Second Lien Intercreditor Agreement shall be deemed to include the New Representative, each reference to a “Collateral Agent” or “Second Lien Collateral Agent” in the Second Lien Intercreditor Agreement shall be deemed to include the New Collateral Agent and each reference to “Second Lien Secured Parties” shall include the Additional Second Lien Secured Parties represented by such New Representative and New Collateral Agent. The Second Lien Intercreditor Agreement is incorporated herein by reference.
Each of the New Representative and New Collateral Agent represents and warrants to the other Representatives, Collateral Agents and the other Secured Parties that (i) it has full power and authority to enter into this Joinder Agreement, in its capacity as [agent] [trustee], (ii) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms and the terms of the Second Lien Intercreditor Agreement and (iii) the Second Lien Documents relating to such Additional Second Lien Debt provide that, upon the New Representative’s and New Collateral Agent’s entry into this Agreement, the Additional Second Lien Secured Parties in respect of such Additional Second Lien Debt will be subject to and bound by the provisions of the Second Lien Intercreditor Agreement as Second Lien Secured Parties.
This Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Joinder Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Joinder Agreement.
Except as expressly supplemented hereby, the Second Lien Intercreditor Agreement shall remain in full force and effect.
THIS JOINDER AGREEMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS JOINDER AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Any provision of this Joinder Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and in the Second Lien Intercreditor Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to those of the invalid, illegal or unenforceable provisions.
All communications and notices hereunder shall be in writing and given as provided in Section 8.10 of the Second Lien Intercreditor Agreement. All communications and notices hereunder to the New Representative and the New Collateral Agent shall be given to it at the address set forth below its signature hereto.
[Remainder of this page intentionally left blank]
 
Exhibit I – Page 2

IN WITNESS WHEREOF, the New Representative and New Collateral Agent have duly executed this Joinder Agreement to the Second Lien Intercreditor Agreement as of the day and year first above written.

[NAME OF NEW REPRESENTATIVE],
as [                ] for the holders of	
[                                ]	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
Address for notices:	
	 	__________________________________	
	 	__________________________________	
	 	attention of:________________________	
	 	Telecopy:__________________________	
	
[NAME OF NEW COLLATERAL AGENT],
as [                ] for the holders of	
[                                ]	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
Address for notices:	
	 	__________________________________	
	 	__________________________________	
	 	attention of:________________________	
	 	Telecopy:__________________________	
 
Exhibit I – Page 3

			
Receipt of the foregoing acknowledged:	
[NAME OF APPLICABLE REPRESENTATIVE],	
as [Insert title of Representative]	

By:	 	 	
	 	Name:	
	 	Title:	

Receipt of the foregoing acknowledged:	
[NAME OF APPLICABLE COLLATERAL AGENT],
as [Insert title of Collateral Agent]	

By:	 	 	
	 	Name:	
	 	Title:	
 
Exhibit I – Page 4

Exhibit II to the
Second Lien Intercreditor Agreement
[FORM OF] FIRST LIEN JOINDER AGREEMENT NO. [    ] dated as of [        ], 20[    ] to the SECOND LIEN INTERCREDITOR AGREEMENT dated as of [        ], 20[    ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Second Lien Intercreditor Agreement ”), among JPMORGAN CHASE BANK, N.A., as Initial First Lien Representative and Initial First Lien Collateral Agent, [INSERT NAME], as Initial Second Lien Representative, [INSERT NAME], as Initial Second Lien Collateral Agent and the additional Representatives and Collateral Agents from time to time a party thereto, and acknowledged and agreed to by AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “ Company ”), certain subsidiaries and parent entities of the Company (each a “ Grantor ”).
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Second Lien Intercreditor Agreement.
As a condition to the ability of the Company to incur [Additional First Lien Debt][Initial First Lien Obligations under the Replacement First Lien Credit Agreement] after the date of the Second Lien Intercreditor Agreement and to secure such [Additional First Lien Debt and related Additional First Lien Obligations][Initial First Lien Obligations] with a lien on the Collateral and to have such [Additional First Lien Debt and related Additional First Lien Obligations][Initial First Lien Obligations] guaranteed by the Grantors, in each case under and pursuant to the [applicable Additional First Lien Documents][Initial First Lien Documents], each of the [Additional First Lien Representative and the Additional First Lien Collateral Agent in respect of such Additional First Lien Debt and related Additional First Lien Obligations][Replacement First Lien Representative and Replacement First Lien Collateral Agent] is required to become [a Representative and Collateral Agent][the Initial First lien Representative and the Initial First Lien Collateral Agent], respectively, under, and the [Additional First Lien Secured Parties][Initial First Lien Secured Parties] in respect thereof are required to become subject to and bound by, the Second Lien Intercreditor Agreement. Section 8.7 of the Second Lien Intercreditor Agreement provides that such [Additional First Lien Representative and Additional First Lien Collateral Agent may become a Representative and Collateral Agent][Replacement First Lien Representative and Replacement First Lien Collateral Agent may become the Initial First Lien Representative and Initial First Lien Collateral Agent], respectively, under, and such [Additional First Lien Secured Parties][Initial First Lien Secured Parties] may become subject to and bound by, the Second Lien Intercreditor Agreement, pursuant to the execution and delivery by the [Additional First Lien Representative and Additional First Lien Collateral Agent][Replacement First Lien Representative and Replacement First Lien Collateral Agent] of an instrument in the form of this Joinder Agreement and the satisfaction of the other conditions set forth in Section 8.7 of the Second Lien Intercreditor Agreement. The undersigned [Additional First Lien Representative][Replacement First Lien Representative] (the “ New Representative ”) and [Additional First Lien Collateral Agent][Replacement First Lien Collateral Agent] (the “ New Collateral Agent ”) are executing this Joinder Agreement in accordance with the requirements of the Second Lien Intercreditor Agreement.
Accordingly, the New Representative and the New Collateral Agent agree as follows:
 
Exhibit II – Page 1

In accordance with Section 8.7 of the Second Lien Intercreditor Agreement, the New Representative and the New Collateral Agent by their signatures below become a [First Lien Representative and a First Lien Collateral Agent][the Initial First Lien Representative and the Initial First Lien Collateral Agent], respectively, under, and the related [Additional First Lien][Initial First Lien] Secured Parties represented by it become subject to and bound by, the Second Lien Intercreditor Agreement with the same force and effect as if the New Representative and the New Collateral Agent had originally been named therein [a First Lien Representative and a First Lien Collateral Agent][the Initial First Lien Representative and the Initial First Lien Collateral Agent], respectively, and each of the New Representative and the New Collateral Agent, on behalf of itself and the [Additional First Lien][Initial First Lien] Secured Parties represented by it, hereby agrees to all the terms and provisions of the Second Lien Intercreditor Agreement applicable to it as [a First Lien Representative and a First Lien Collateral Agent][the Initial First Lien Representative and Initial First Lien Collateral Agent], respectively, and to the [Additional First Lien][Initial First Lien] Secured Parties represented by it as [First Lien Secured Parties][Initial First Lien Secured Parties]. Each reference to a [“ Representative ” or “ First Lien Representative ”][“ Initial First Lien Representative ”] in the Second Lien Intercreditor Agreement shall be deemed to [include][refer] the New Representative, each reference to a [“ Collateral Agent ” or “ First Lien Collateral Agent ”][“ Initial First Lien Collateral Agent ”] in the Second Lien Intercreditor Agreement shall be deemed to [include][refer] the New Collateral Agent and each reference to [“First Lien Secured Parties”][“Initial First Lien Secured Parties’] shall include the [Additional First Lien Secured Parties][Initial First Lien Secured Parties] represented by such New Representative and New Collateral Agent. The Second Lien Intercreditor Agreement is hereby incorporated herein by reference.
Each of the New Representative and New Collateral Agent represents and warrants to the other Representatives, Collateral Agents and the other Secured Parties that (i) it has full power and authority to enter into this Joinder Agreement, in its capacity as [agent] [trustee], (ii) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of the Second Lien Intercreditor Agreement and (iii) the [First Lien Documents relating to such Additional First Lien Debt provide][Replacement First Lien Credit Agreement provides] that, upon the New Representative’s and New Collateral Agent’s entry into this Agreement, the [Additional First Lien][Initial First Lien] Secured Parties in respect of such [Additional First Lien Debt][Initial First Lien Obligations] will be subject to and bound by the provisions of the Second Lien Intercreditor Agreement as [First Lien Secured Parties][Initial First Lien Secured Parties].
This Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Joinder Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Joinder Agreement.
Except as expressly supplemented hereby, the Second Lien Intercreditor Agreement shall remain in full force and effect.
 
Exhibit II – Page 2

THIS JOINDER AGREEMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS JOINDER AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Any provision of this Joinder Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and in the Second Lien Intercreditor Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to those of the invalid, illegal or unenforceable provisions.
All communications and notices hereunder shall be in writing and given as provided in Section  8.10 of the Second Lien Intercreditor Agreement. All communications and notices hereunder to the New Representative and the New Collateral Agent shall be given to it at the address set forth below its signature hereto.
[Remainder of this page intentionally left blank]
 
Exhibit II – Page 3

IN WITNESS WHEREOF, the New Representative and the New Collateral Agent have duly executed this Joinder Agreement to the Second Lien Intercreditor Agreement as of the day and year first above written.

[NAME OF NEW REPRESENTATIVE],
as [                ] for the holders of	
[                                ]	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
Address for notices:	
	 	__________________________________	
	 	__________________________________	
	 	attention of:________________________	
	 	Telecopy:__________________________	
	
[NAME OF NEW COLLATERAL AGENT],
as [                ] for the holders of	
[                                ]	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
Address for notices:	
	 	__________________________________	
	 	__________________________________	
	 	attention of:________________________	
	 	Telecopy:__________________________	
	
Receipt of the foregoing acknowledged:	
[NAME OF APPLICABLE REPRESENTATIVE],	
as [Insert title of Representative]	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
Exhibit II – Page 4

			
Receipt of the foregoing acknowledged:	
[NAME OF APPLICABLE COLLATERAL AGENT],
as [Insert title of Collateral Agent ]	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
Exhibit II – Page 5

Exhibit III to the
Second Lien Intercreditor Agreement
[FORM OF] DEBT DESIGNATION NO. [    ] (this “ Designation ”) dated as of [        ], 20[    ] with respect to the SECOND LIEN INTERCREDITOR AGREEMENT dated as of [        ], 20[    ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Second Lien Intercreditor Agreement ”), among JPMORGAN CHASE BANK, N.A., as Initial First Lien Representative and Initial First Lien Collateral Agent for the Initial First Lien Secured Parties, [    ], as Initial Second Lien Representative, [        ], as Initial Second Lien Collateral Agent and the additional Representatives and Collateral Agent from time to time a party thereto, and acknowledged and agreed to by AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “ Company ”), and certain subsidiaries and parent entities of the Company (each a “ Grantor ”).
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Second Lien Intercreditor Agreement.
This Designation is being executed and delivered in order to designate [additional][replacement] secured Obligations of the Company and the Grantors as [Additional First Lien Debt][Additional Second Lien Debt][Initial First Lien Obligations under the Replacement First Lien Credit Agreement] entitled to the benefit of and subject to the terms of the Second Lien Intercreditor Agreement.
The undersigned, the duly appointed [ specify title of Responsible Officer ] of the Company hereby certifies on behalf of the Company that:
 
 	1.	[ Insert name of the Company or other Grantor ] intends to incur Indebtedness (the “ Designated Obligations ”) in the initial aggregate principal amount of [        ] pursuant to the following agreement: [ describe credit/loan agreement indenture or other agreement giving rise to Additional First Lien Debt or Additional Second Lien Debt, as the case may be ][ Replacement Credit Agreement ] (the “ Designated Agreement ”) which will be [Additional First Lien Obligations][Additional Second Lien Obligations][Initial First Lien Obligations] for purposes of the Second Lien Intercreditor Agreement.	
 
 	2.	The incurrence of the Designated Obligations is permitted by each applicable First Lien Document and Second Lien Document.	
 
 	3.	Conform the following as applicable; Pursuant to and for the purposes of Section 8.7 of the Second Lien Intercreditor Agreement, (i) the Designated Agreement is hereby designated as [an “Additional First Lien Document”] [an “Additional Second Lien Document”][the “Replacement First Lien Credit Agreement”] [and][,] (ii) the Designated Obligations are hereby designated as [“Additional First Lien Obligations”] [“Additional Second Lien Obligations”][“Initial First Lien Obligations] [ insert for Replacement Credit Agreements only: and (iii) the Designated Agreement satisfies the requirements of a Replacement Credit Agreement].	
 
Exhibit III – Page 1

 	4.	a. The name and address of the [Representative][Replacement First Lien Representative] for such Designated Obligations is:	
[Insert name and all capacities; Address]
Telephone: ___________________
Fax: ___________________
Email: ___________________
b. The name and address of the [Collateral Agent][Replacement First Lien Collateral Agent] for such Designated Obligations is:
[Insert name and all capacities; Address]
Telephone: ___________________
Fax: ___________________
Email: ___________________
[Remainder of this page intentionally left blank]
 
Exhibit III – Page 2

IN WITNESS WHEREOF, the Company has caused this Designation to be duly executed by the undersigned Responsible Officer as of the day and year first above written.

AMNEAL PHARMACEUTICALS LLC	

By:	 	 	
	 	Name:	
	 	Title:	
 
Exhibit III – Page 3

EXHIBIT I
Form of Note
(see attached)

[FORM OF]
NOTE

$ [          ] .00	  	[                  ] , 20 [    ]	
FOR VALUE RECEIVED, the undersigned, AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “ Borrower ”), hereby unconditionally promises to pay [                  ] (hereinafter, together with its successors in title and assigns, the “ Lender ”), the principal sum of [                  ] DOLLARS ($ [                  ] .00), or, if less, the aggregate unpaid principal balance of the Term Loan made by the Lender to or for the account of the Borrower pursuant to the Credit Agreement (as hereafter defined), with interest, fees, expenses and costs at the rate and payable in the manner stated in the Credit Agreement. As used herein, the “Credit Agreement” means and refers to that certain Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among the Borrower, JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent under the Loan Documents, and each Lender and other party from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
This is a “Note” to which reference is made in the Credit Agreement and is subject to all terms and provisions thereof. This Note is also entitled to the benefits of the Guarantee under the Collateral Agreement and is secured by the Collateral. The principal of, and interest on, this Note shall be payable at the times, in the manner, and in the amounts as provided in the Credit Agreement and shall be subject to prepayment and acceleration as provided therein. The Administrative Agent’s books and records concerning the Term Loan, the accrual of interest and fees thereon, and the repayment of such Term Loan, shall be prima facie evidence of the indebtedness to the Lender hereunder, absent manifest error.
No delay or omission by the Administrative Agent or the Lender in exercising or enforcing any of the Administrative Agent’s or Lender’s powers, rights, privileges, remedies, or discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver of any Event of Default shall operate as a waiver of any other Event of Default, nor as a continuing waiver.
The Borrower waives presentment, demand, notice, and protest, and also waives any delay on the part of the holder hereof. The Borrower assents to any extension or other indulgence (including, without limitation, the release or substitution of Collateral) permitted by the Administrative Agent, the Collateral Agent and/or the Lender with respect to this Note and/or any Security Document or any extension or other indulgence with respect to any other liability or any collateral given to secure any other liability of the Borrower or any other Person obligated on account of this Note.

This Note shall be binding upon the Borrower and upon its successors, assigns, and representatives, and shall inure to the benefit of the Lender and its successors, endorsees and assigns.
The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan), and any appellate court from any thereof in any action or proceeding arising out of or relating to this Note or for recognition or enforcement of any judgment, and the Borrower hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may (and any such claims, cross-claims or third party claims brought against the Administrative Agent or any of its Related Parties may only) be heard and determined in such federal (to the extent permitted by law) or New York State court. To the fullest extent permitted by applicable law, the Borrower irrevocably waives any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Note in the courts of the state of New York sitting in New York City in the Borough of Manhattan or of the United States federal court sitting in the Borough of Manhattan, and any appellate court from any thereof.
THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
The Borrower makes the following waiver knowingly, voluntarily, and intentionally, and understands that the Administrative Agent and the Lender, in the establishment and maintenance of their respective relationship with the Borrower contemplated by this Note, are each relying thereon.
THE BORROWER, AND THE LENDER BY ITS ACCEPTANCE HEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY).
[ Remainder of page intentionally left blank ]

IN WITNESS WHEREOF, the undersigned has caused this Note to be duly executed and delivered by its duly authorized officer as of the date first above written.

AMNEAL PHARMACEUTICALS LLC , as Borrower	

By:	 	 	
	 	Name:	
	 	Title:	
[SIGNATURE PAGE TO NOTE]

LOANS AND PAYMENTS

Date	  	Amount
of Loan	  	Maturity
Date	  	Payments of
Principal/Interest	  	Principal
Balance
of Note	  	Name of Person
Making this
Notation	

EXHIBIT J
Dutch Auction Procedures
(see attached)

EXHIBIT J-1
AUCTION PROCEDURES
Reference is made to that certain Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Borrower ”), JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent under the Loan Documents, and each Lender and other party from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Discount Range Prepayment Notice or, to the extent not defined therein, in the Credit Agreement.
(a) Subject to compliance with the conditions set forth herein and in Section 2.07 of the Credit Agreement, the Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par pursuant to a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers (each as defined herein and any such prepayment, the “ Discounted Loan Prepayment ”), in each case made in accordance with this Exhibit J ; provided that the Borrower shall not initiate any action under this Exhibit J in order to make a Discounted Loan Prepayment unless (i) at least ten Business Days shall have passed since the consummation of the most recent Discounted Loan Prepayment as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date; or (ii) at least three Business Days shall have passed since the date the Borrower was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount (as defined herein), within the Discount Range (as defined herein) or at any discount to par value, as applicable, or in the case of a Borrower Solicitation of Discounted Prepayment Offer, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers (as defined herein).
As used herein, (i) “ Appropriate Lender ” means, at any time, with respect to Term Loans of any Class, the Lenders of such Class and (ii) “ Auction Agent ” means (A) the Administrative Agent or (B) any other financial institution or advisor engaged by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Loan Prepayment in accordance with this Exhibit J ; provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent); provided, further, that neither the Borrower nor any of its Affiliates may act as the Auction Agent.
(b) Specified Discount Prepayment .
(i) Subject to the proviso to paragraph (a) above, the Borrower may from time to time offer to make a Discounted Loan Prepayment by providing the Auction Agent with five Business Days’ notice in the form of a Specified Discount Prepayment Notice (the offer by the Borrower to make a voluntary prepayment of Term Loans at a specified discount to par pursuant to this paragraph (b), a “ Borrower Offer of Specified Discount Prepayment ”) ; provided that,
 
J-1

(A) any such offer shall be made available, at the sole discretion of the Borrower, to (1) each Lender and/or (2) each Appropriate Lender with respect to any Class of Term Loans on an individual tranche basis,
(B) any such offer shall specify the aggregate principal amount offered to be prepaid (the “ Specified Discount Prepayment Amount ”) with respect to each applicable tranche, the tranche or tranches of Term Loans subject to such offer and the specific percentage discount to par (the “ Specified Discount ”) of such Term Loans to be prepaid (it being understood that different Specified Discounts and/or Specified Discount Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Exhibit J),
(C) the Specified Discount Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof, and
(D)each such offer shall remain outstanding through the Specified Discount Prepayment Response Date.
The Auction Agent will promptly provide each Appropriate Lender with a copy of such written notice of the Borrower Offer of Specified Discount Prepayment made pursuant to this paragraph (b) substantially in the form of Exhibit J-6 (a “ Specified Discount Prepayment Notice ”) and a form of the irrevocable written response by each Lender, substantially in the form of Exhibit J-7, to a Specified Discount Prepayment Notice (a “ Specified Discount Prepayment Offer ”) to be completed and returned by each such Appropriate Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York City time, on the third Business Day after the date of delivery of such notice to such Lenders (the “ Specified Discount Prepayment Response Date ”).
(ii) Each Lender receiving such offer shall notify the Auction Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its applicable then outstanding Term Loans at the Specified Discount and, if so (such accepting Lender, a “ Discount Prepayment Accepting Lender ”), the amount and the tranches of such Lender’s Term Loans to be prepaid at such offered discount. Each acceptance of a Discounted Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Lender whose Specified Discount Prepayment Response is not received by the Auction Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined to accept the Borrower Offer of Specified Discount Prepayment.
(iii) If there is at least one Discount Prepayment Accepting Lender, the Borrower will make a prepayment of outstanding Term Loans pursuant to this paragraph (b) to each Discount Prepayment Accepting Lender in accordance with the respective outstanding amount and tranches of Term Loans specified in such Lender’s
 
J-2

Specified Discount Prepayment Response given pursuant to subsection (ii) above; provided that, if the aggregate principal amount of Term Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Auction Agent (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “ Specified Discount Proration ”). The Auction Agent shall promptly, and in any case within three Business Days following the Specified Discount Prepayment Response Date, notify,
(A) the Borrower of the respective Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate principal amount of the Discounted Loan Prepayment and the tranches to be prepaid,
(B) each Lender of the Discounted Prepayment Effective Date, and the aggregate principal amount and the tranches of Term Loans to be prepaid at the Specified Discount on such date, and
(C) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the principal amount, tranche and Type of Term Loans of such Lender to be prepaid at the Specified Discount on such date.
Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and such Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with subsection (f) below (subject to subsection (j) below).
(c) Discount Range Prepayment Offers .
 
 	(i)	Subject to the proviso to paragraph (a) above, the Borrower may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with five Business Days’ notice in the form of a Discount Range Prepayment Notice (such solicitation by the Borrower of offers for a voluntary prepayment of Term Loans at a specified range of discounts to par pursuant to this paragraph (c), a “ Borrower Solicitation of Discount Range Prepayment Offer ”); provided that,	
(A) any such solicitation shall be extended, at the sole discretion of the Borrower, to (1) each Lender and/or (2) each Appropriate Lender with respect to any Class of Term Loans on an individual tranche basis,
 
J-3

(B) any such notice shall specify the maximum aggregate principal amount of the relevant Term Loans (the “ Discount Range Prepayment Amount ”), the tranche or tranches of Term Loans subject to such offer and the maximum and minimum percentage discounts to par (the “ Discount Range ”) of the principal amount of such Term Loans with respect to each relevant tranche of Term Loans willing to be prepaid by the Borrower (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such event, each such offer will be treated as separate offers pursuant to the terms of this Section),
(C) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and
(D) each such solicitation by the Borrower shall remain outstanding through the Discount Range Prepayment Response Date.
The Auction Agent will promptly provide each Appropriate Lender with a copy of such written notice of the Borrower Solicitation of Discount Range Prepayment made pursuant to this paragraph (c) substantially in the form of Exhibit J-2 (a “ Discount Range Prepayment Notice ”) and a form of the irrevocable written offer by a Lender, substantially in the form of Exhibit J-3, to be submitted in response to such Discount Range Prepayment Notice(a “ Discount Range Prepayment Offer ”) to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York City time, on the third Business Day after the date of delivery of such notice to such Lenders (the “ Discount Range Prepayment Response Date ”). Each Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range (the “ Submitted Discount ”) at which such Lender is willing to allow prepayment of any or all of its then outstanding Term Loans of the applicable tranche or tranches and the maximum aggregate principal amount and tranches of such Lender’s Term Loans (the “ Submitted Amount ”) such Lender is willing to have prepaid at the Submitted Discount. Any Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Loan Prepayment of any of its Term Loans at any discount to their par value within the Discount Range.
(ii) The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the Applicable Discount and Term Loans to be prepaid at such Applicable Discount in accordance with this paragraph (c). The Borrower agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by Auction Agent by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as, the “ Applicable Discount ”) which yields
 
J-4

a Discounted Loan Prepayment in an aggregate principal amount equal to the lower of (A) the Discount Range Prepayment Amount and (B) the sum of all Submitted Amounts. Each Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Submitted Amount (subject to any required proration pursuant to the following subsection (iii)) at the Applicable Discount (each such Lender, a “ Participating Lender ”).
(iii) If there is at least one Participating Lender, the Borrower will prepay the respective outstanding Term Loans of each Participating Lender in the aggregate principal amount and of the tranches specified in such Lender’s Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Term Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “ Identified Participating Lenders ”) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Auction Agent (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “ Discount Range Proration ”).
The Auction Agent shall promptly, and in any case within five Business Days following the Discount Range Prepayment Response Date, notify,
(A) the Borrower of the respective Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Loan Prepayment and the tranches to be prepaid,
(B) each Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount and tranches of Term Loans to be prepaid at the Applicable Discount on such date,
(C) each Participating Lender of the aggregate principal amount and tranches of such Lender to be prepaid at the Applicable Discount on such date, and
(D) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with subsection (f) below (subject to subsection (j) below).
 
J-5

(d) Solicited Discount Prepayment Offers .
(i) Subject to the proviso to paragraph (a) above, the Borrower may from time to time solicit Solicited Discounted Prepayment Offers by providing the Auction Agent with five Business Days’ notice in the form of a Solicited Discounted Prepayment Notice (a “ Borrower Solicitation of Discounted Prepayment Offer ”); provided that,
(A) any such solicitation shall be extended, at the sole discretion of the Borrower, to (1) each Lender and/or (2) each Appropriate Lender with respect to any Class of Term Loans on an individual tranche basis,
(B) any such notice shall specify the maximum aggregate amount of the Term Loans (the “ Solicited Discounted Prepayment Amount ”) and the tranche or tranches of Term Loans the Borrower is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such event, each such offer will be treated as separate offers pursuant to the terms of this paragraph),
(C) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof, and
(D) each such solicitation by the Borrower shall remain outstanding through the Solicited Discounted Prepayment Response Date.
The Auction Agent will promptly provide each Appropriate Lender with a copy of such written notice of the Borrower Solicitation of Discounted Prepayment Offer made pursuant to this paragraph (d) substantially in the form of Exhibit J-4 (a “ Solicited Discounted Prepayment Notice ”) and a form of the irrevocable written offer by a Lender, substantially in the form of Exhibit J-5, to be submitted in response to a Solicited Discount Prepayment Notice(a “ Solicited Discounted Prepayment Offer ”) to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York City time on the third Business Day after the date of delivery of such notice to such Lenders (the “ Solicited Discounted Prepayment Response Date ” and together with any Specified Discount Prepayment Response Date and Discount Range Prepayment Response Date, the “ Response Dates ” and each, a “ Response Date ”). Each Lender’s Solicited Discounted Prepayment Offer shall (1) be irrevocable, (2) remain outstanding until the Acceptance Date, and (3) specify both a discount to par (the “ Offered Discount ”) at which such Lender is willing to allow prepayment of its then outstanding Term Loan and the maximum aggregate principal amount and tranches of such Term Loans (the “ Offered Amount ”) such Lender is willing to have prepaid at the Offered Discount. Any Lender whose Solicited Discounted Prepayment Offer is not received by the Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Term Loans at any discount.
 
J-6

(ii) The Auction Agent shall promptly provide the Borrower with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date. The Borrower shall review all such Solicited Discounted Prepayment Offers and select the largest of the Offered Discounts specified by the relevant responding Lenders in the Solicited Discounted Prepayment Offers that is acceptable to the Borrower (the “ Acceptable Discount ”), if any. If the Borrower elects to accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the determination of the Acceptable Discount, but in no event later than by the third Business Day after the date of receipt by the Borrower from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this subsection (ii) (the “ Acceptance Date ”), the Borrower shall submit an Acceptance and Prepayment Notice to the Auction Agent setting forth the Acceptable Discount. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice from the Borrower by the Acceptance Date, the Borrower shall be deemed to have rejected all Solicited Discounted Prepayment Offers.
(iii) Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, within three Business Days after receipt of an Acceptance and Prepayment Notice (the “ Discounted Prepayment Determination Date ”), the Auction Agent will determine (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the aggregate principal amount and the tranches of Term Loans (the “ Acceptable Prepayment Amount ”) to be prepaid by the Borrower at the Acceptable Discount in accordance with this paragraph (d). If the Borrower elects to accept any Acceptable Discount, then the Borrower agrees to accept all Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Lender that has submitted a Solicited Discounted Prepayment Offer with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Offered Amount (subject to any required pro-rata reduction pursuant to the following sentence) at the Acceptable Discount (each such Lender, a “ Qualifying Lender ”). The Borrower will prepay outstanding Term Loans pursuant to this paragraph (d) to each Qualifying Lender in the aggregate principal amount and of the tranches specified in such Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount, prepayment of the principal amount of the Term Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “ Identified Qualifying Lenders ”) shall be made pro rata among the Identified Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction Agent (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “ Solicited Discount Proration ”). On or prior to the Discounted Prepayment Determination Date, the Auction Agent shall promptly notify,
 
J-7

(A) the Borrower of the Discounted Prepayment Effective Date and Acceptable Prepayment Amount comprising the Discounted Loan Prepayment and the tranches to be prepaid,
(B) each Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all Term Loans and the tranches to be prepaid at the Applicable Discount on such date,
(C) each Qualifying Lender of the aggregate principal amount and the tranches of such Lender to be prepaid at the Acceptable Discount on such date, and
(D) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with subsection (f) below (subject to subsection (j) below).
(e) In connection with any Discounted Loan Prepayment, the Borrower and the Lenders acknowledge and agree that the Auction Agent may require as a condition to any Discounted Loan Prepayment, the payment of customary fees and expenses from the Borrower in connection therewith.
(f) If any Term Loan is prepaid in accordance with paragraphs (b) through (d) above, the Borrower shall prepay such Loans on the Discounted Prepayment Effective Date. The Borrower shall make such prepayment to the Administrative Agent, for the account of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s Office in immediately available funds not later than 11:00 a.m. (New York City time) on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining principal installments of the relevant tranche of Term Loans on a pro-rata basis across such installments. The Term Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Term Loans pursuant to this Exhibit J shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, and shall be applied to the relevant Term Loans of such Lenders in accordance with their respective pro rata share of the relevant Term Loans. The aggregate principal amount of the tranches and installments of the relevant Term Loans outstanding shall be deemed reduced by the full par value of the aggregate principal amount of the tranches of Term Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Loan Prepayment. In connection with each prepayment pursuant to this Exhibit J , the Borrower shall make a representation to the Lenders that it does not possess material non-public information regarding the Borrower and its Subsidiaries that would reasonably be expected to be material to a decision by a Lender to assign or acquire any Term Loans and that has not been disclosed to the Lenders generally (other than Lenders who elect not to receive such information). 1

1	NTD: don’t follow insertion of clause (ii)? Presumably they will agree whatever engagement terms with the relevant Auction Agent.	
 
J-8

(g) To the extent not expressly provided for herein, each Discounted Loan Prepayment shall be consummated pursuant to procedures consistent with the provisions in this Exhibit J , established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the Borrower.
(h) Notwithstanding anything in any Loan Document to the contrary, for purposes of this Exhibit J , each notice or other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.
(i) The Borrower, the Agents and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this Exhibit J by itself or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any Discounted Loan Prepayment provided for in this Exhibit J as well as activities of the Auction Agent.
(j) The Borrower shall have the right, by written notice to the Auction Agent, to revoke in full (but not in part) its offer to make a Discounted Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Response Date (and if such offer is revoked pursuant to the preceding clauses, any failure by the Borrower to make any prepayment to a Lender, as applicable, pursuant to this Exhibit J shall not constitute a Default or Event of Default under Section 8.01 of the Credit Agreement or otherwise). Nothing in this Exhibit J shall require any Lender to participate in any auction.
(k) Except as may be otherwise agreed, none of the Administrative Agent, the Auction Agent, any other agent or any of their respective Affiliates assumes any responsibility for the accuracy or completeness of the information concerning the Borrower or its Subsidiaries contained in any Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer, Borrower Solicitation of Discounted Prepayment Offer or otherwise or for any failure to disclose events that may have occurred and may affect the significance or accuracy of such information.
 
J-9

EXHIBIT J-2
[FORM OF]
DISCOUNT RANGE PREPAYMENT NOTICE
Date: ______, 20__
To: [__________], as Auction Agent
Ladies and Gentlemen:
This Discount Range Prepayment Notice is delivered to you pursuant to Exhibit J of that certain Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Borrower ”), JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent under the Loan Documents, and each Lender and other party from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
Pursuant to Exhibit J of the Credit Agreement, the Borrower hereby requests that [each Lender] [each Lender of the [[        ], 20[    ]] 1 tranche[s] of the [    ] 2 Class of Term Loans] submit a Discount Range Prepayment Offer. Any Discounted Loan Prepayment made in connection with this solicitation shall be subject to the following terms:
1. This Borrower Solicitation of Discount Range Prepayment Offers is extended at the sole discretion of the Borrower to [each Lender] [each Lender of the [[        ], 20[    ]] 3 tranche[s] of the [    ] 4 Class of Term Loans].

1  	List multiple tranches if applicable.	
2  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
3  	List multiple tranches if applicable.	
4  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
 
J-10

2. The maximum aggregate principal amount of the Discounted Loan Prepayment that will be made in connection with this solicitation is [$[    ] of Term Loans] [$[    ] of the [[        ], 20[    ]] 5 tranche[(s)] of the [    ] 6 Class of Term Loans] (the “ Discount Range Prepayment Amount ”). 7
3. The Borrower is willing to make Discount Loan Prepayments at a percentage discount to par value greater than or equal to [[    ]% but less than or equal to [    ]% in respect of the Term Loans] [[    ]% but less than or equal to [    ]% in respect of the [[        ], 20[    ]] 8 tranche[(s)] of the [    ] 9 Class of Term Loans] (the “ Discount Range ”).
To make an offer in connection with this solicitation, you are required to deliver to the Auction Agent a Discount Range Prepayment Offer by no later than 5:00 p.m., New York time, on the date that is the third Business Day following the date of delivery of this notice pursuant to Exhibit J of the Credit Agreement.
The Borrower hereby represents and warrants to the Auction Agent and [the Lenders][each Lender of the [[        ], 20[    ]] 10 tranche[s] of the [    ] 11 Class of Term Loans] as follows:
1. No Default or Event of Default has occurred and is continuing.
2. The Borrower will not use proceeds of Revolving Loans or Incremental Revolving Loans to fund this Discounted Loan Prepayment.
3. [At least ten (10) Business Days have passed since the consummation of the most recent Discounted Loan Prepayment, if any, as a result of a prepayment made by a Borrower on the applicable Discounted Prepayment Effective Date.][At least three (3) Business Days have passed since the date the Borrower was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender.] 12

5  	List multiple tranches if applicable.	
6  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
7  	[Minimum of $5,000,000 and whole increments of $1,000,000.]	
8  	List multiple tranches if applicable.	
9  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
10  	List multiple tranches if applicable.	
11  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
12	Insert applicable representation.	
 
J-11

4. The Borrower does not possess material non-public information regarding the Borrower and its Subsidiaries that would reasonably be expected to be material to a decision by a Lender to assign or acquire any Term Loans and that has not been disclosed to the Lenders generally (other than Lenders who elect not to receive such information).
The Borrower acknowledges that the Auction Agent and the relevant Lenders are relying on the truth and accuracy of the foregoing representations and warranties in connection with any Discount Range Prepayment Offer made in response to this Discount Range Prepayment Notice and the acceptance of any prepayment made in connection with this Discount Range Prepayment Notice.
The Borrower requests that the Auction Agent promptly notify each Lender party to the Credit Agreement of this Discount Range Prepayment Notice.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
 
J-12

IN WITNESS WHEREOF, the undersigned has executed this Discount Range Prepayment Notice as of the date first above written.

AMNEAL PHARMACEUTICALS LLC , as	
Borrower	

By:	 	 	
	 	Name:	
	 	Title:	
Enclosure: Form of Discount Range Prepayment Offer
 
J-13

EXHIBIT J-3
[FORM OF]
DISCOUNT RANGE PREPAYMENT OFFER
Date: ______, 20__
To: [_________], as Auction Agent
Ladies and Gentlemen:
Reference is made to (a) that certain Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Borrower ”), JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent under the Loan Documents, and each Lender and other party from time to time party thereto, and (b) that certain Discount Range Prepayment Notice, dated             , 20    , from the Borrower (the “ Discount Range Prepayment Notice ”). Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Discount Range Prepayment Notice or, to the extent not defined therein, in the Credit Agreement.
The undersigned Lender hereby gives you irrevocable notice, pursuant to Exhibit J of the Credit Agreement that it is hereby offering to accept a Discounted Loan Prepayment on the following terms:
1. This Discount Range Prepayment Offer is available only for prepayment on [the Term Loans] [the [[        ], 20[    ]] 1 tranche[s] of the [    ] 2 Class of Term Loans] held by the undersigned.
2. The maximum aggregate principal amount of the Discounted Loan Prepayment that may be made in connection with this offer shall not exceed (the “ Submitted Amount ”):
[Term Loans - $[        ]]
[[        ], 20[    ]] 3 tranche[s] of the [    ] 4 Class of Term Loans - $[        ]]

1  	List multiple tranches if applicable.	
2  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
3  	List multiple tranches if applicable.	
4  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	

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3. The percentage discount to par value at which such Discounted Loan Prepayment may be made is [[    ]% in respect of the Term Loans] [[    ]% in respect of the [[        ], 20[    ]] 5 tranche[(s)] of the [    ] 6 Class of Term Loans].
The undersigned Lender hereby expressly and irrevocably consents and agrees to a prepayment of its [Term Loans] [[        ], 20[    ]] 7 tranche[s] of the [    ] 8 Class of Term Loans] indicated above pursuant to Exhibit J of the Credit Agreement at a price equal to the Applicable Discount and in an aggregate outstanding amount not to exceed the Submitted Amount, as such amount may be reduced in accordance with the Discount Range Proration, if any, and as otherwise determined in accordance with and subject to the requirements of the Credit Agreement.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]

5  	List multiple tranches if applicable.	
6  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
7  	List multiple tranches if applicable.	
8  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
 
J-15

IN WITNESS WHEREOF, the undersigned has executed this Discount Range Prepayment Offer as of the date first above written.

[ NAME OF LENDER ]	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
J-16

EXHIBIT J-4
[FORM OF] SOLICITED DISCOUNTED PREPAYMENT NOTICE
Date: ______, 20__
To: [__________], as Auction Agent
Ladies and Gentlemen:
This Solicited Discounted Prepayment Notice is delivered to you pursuant to Exhibit J of that certain Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Borrower ”), JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent under the Loan Documents, and each Lender and other party from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
Pursuant to Exhibit J of the Credit Agreement, the Borrower hereby requests that [each Lender] [each Lender of the [[        ], 20[    ]] 1 tranche[s] of the [    ] 2 Class of Term Loans] submit a Solicited Discounted Prepayment Offer. Any Discounted Loan Prepayment made in connection with this solicitation shall be subject to the following terms:
1. This Borrower Solicitation of Discounted Prepayment Offers is extended at the sole discretion of the Borrower to [each Lender] [each Lender of the [[        ], 20[    ]] 3 tranche[s] of the [    ] 4 Class of Term Loans].
2. The maximum aggregate amount of the Discounted Loan Prepayment that will be made in connection with this solicitation is (the “ Solicited Discounted Prepayment Amount ”): 5
[Term Loans - $[        ]]

1  	List multiple tranches if applicable.	
2  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
3  	List multiple tranches if applicable.	
4  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
5  	Minimum of $5,000,000 and whole increments of $1,000,000.	
 
J-17

[[        ], 20[    ]] 6 tranche[s] of the [    ] 7 Class of Term Loans - $[    ]]
To make an offer in connection with this solicitation, you are required to deliver to the Auction Agent a Solicited Discounted Prepayment Offer by no later than 5:00 p.m., New York time on the date that is the third Business Day following the date of delivery of this notice pursuant to Exhibit J of the Credit Agreement.
The Borrower requests that the Auction Agent promptly notify each Lender party to the Credit Agreement of this Solicited Discounted Prepayment Notice.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]

6  	List multiple tranches if applicable.	
7  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
 
J-18

IN WITNESS WHEREOF, the undersigned has executed this Discount Range Prepayment Notice as of the date first above written.

AMNEAL PHARMACEUTICALS LLC , as	
Borrower	

By:	 	 	
	 	Name:	
	 	Title:	
Enclosure: Form of Solicited Discounted Prepayment Offer
 
J-19

EXHIBIT J-5
[FORM OF] SOLICITED DISCOUNTED PREPAYMENT OFFER
Date: ______, 20__
To: [__________], as Auction Agent
Ladies and Gentlemen:
Reference is made to (a) that certain Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Borrower ”), JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent under the Loan Documents, and each Lender and other party from time to time party thereto, and (b) that certain Solicited Discounted Prepayment Notice, dated             , 20    , from the Borrower (the “ Solicited Discounted Prepayment Notice ”). Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Solicited Discounted Prepayment Notice or, to the extent not defined therein, in the Credit Agreement.
To accept the offer set forth herein, you must submit an Acceptance and Prepayment Notice by no later than 5:00 p.m. New York time on the third Business Day following your receipt of this notice.
The undersigned Lender hereby gives you irrevocable notice, pursuant to Exhibit J of the Credit Agreement that it is hereby offering to accept a Discounted Loan Prepayment on the following terms:
1. This Solicited Discounted Prepayment Offer is available only for prepayment on the [Term Loans] [[        ], 20[    ]] 1 tranche[s] of the [    ] 2 Class of Term Loans] held by the undersigned.
2. The maximum aggregate principal amount of the Discounted Loan Prepayment that may be made in connection with this offer shall not exceed (the “ Offered Amount ”):
[Term Loans - $[        ]]

1  	List multiple tranches if applicable.	
2  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans Refinancing Term Loans).	
 
J-20

[[            ], 20[    ]] 3 tranche[s] of the [    ] 4 Class of Term Loans - $[        ]]
3. The percentage discount to par value at which such Discounted Loan Prepayment may be made is [[    ]% in respect of the Term Loans] [[    ]% in respect of the [[        ], 20[    ]] 5 tranche[(s)] of the [    ] 6 Class of Term Loans] (the “ Offered Discount ”).
The undersigned Lender hereby expressly and irrevocably consents and agrees to a prepayment of its [Term Loans] [[        ], 20[    ]] 7 tranche[s] of the [    ] 8 Class of Term Loans] pursuant to Exhibit J of the Credit Agreement at a price equal to the Offered Discount and in an aggregate outstanding amount not to exceed such Lender’s Offered Amount, as such amount may be reduced in accordance with the Solicited Discount Proration, if any, and as otherwise determined in accordance with and subject to the requirements of the Credit Agreement.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]

3  	List multiple tranches if applicable.	
4  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans Refinancing Term Loans).	
5  	List multiple tranches if applicable.	
6  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
7  	List multiple tranches if applicable.	
8  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
 
J-21

IN WITNESS WHEREOF, the undersigned has executed this Solicited Discounted Prepayment Offer as of the date first above written.

[ NAME OF LENDER ]	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
J-22

EXHIBIT J-6
[FORM OF] SPECIFIED DISCOUNT PREPAYMENT NOTICE
Date: ______, 20__
To: [__________], as Auction Agent
Ladies and Gentlemen:
This Specified Discount Prepayment Notice is delivered to you pursuant to Exhibit J of that certain Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Borrower ”), JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent under the Loan Documents, and each Lender and other party from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
Pursuant to Exhibit J of the Credit Agreement, the Borrower hereby offers to make a Discounted Loan Prepayment [to each Lender] [to each Lender of the [[        ], 20[    ]] 1 tranche[s] of the [    ] 2 Class of Term Loans] on the following terms:
1. This Borrower Offer of Specified Discount Prepayment is available only [to each Lender] [to each Lender of the [[        ], 20[    ]] 3 tranche[s] of the [    ] 4 Class of Term Loans].
2. The aggregate principal amount of the Discounted Loan Prepayment that will be made in connection with this offer shall not exceed [$[    ] of Term Loans] [$[    ] of the [[        ], 20[    ]] 5 tranche[(s)] of the [    ] 6 Class of Term Loans] (the “ Specified Discount Prepayment Amount ”). 7

1  	List multiple tranches if applicable.	
2  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
3  	List multiple tranches if applicable.	
4  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
5  	List multiple tranches if applicable.	
6  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
7  	[Minimum of $5,000,000 and whole increments of $1,000,000.]	
 
J-23

3. The percentage discount to par value at which such Discounted Loan Prepayment will be made is [[    ]% in respect of the Term Loans] [[    ]% in respect of the [[        ], 20[    ]] 8 tranche[(s)] of the [    ] 9 Class of Term Loans] (the “ Specified Discount ”).
To accept this offer, you are required to submit to the Auction Agent a Specified Discount Prepayment Response by no later than 5:00 p.m., New York time, on the date that is the third Business Day following the date of delivery of this notice pursuant to Exhibit J of the Credit Agreement.
The Borrower hereby represents and warrants to the Auction Agent and [the Lenders][each Lender of the [[        ], 20[    ]] 10 tranche[s] of the [    ] 11 Class of Term Loans] as follows:
1. No Default or Event of Default has occurred and is continuing.
2. The Borrower will not use proceeds of Revolving Loans or Incremental Revolving Loans to fund this Discounted Loan Prepayment.
3. [At least ten (10) Business Days have passed since the consummation of the most recent Discounted Loan Prepayment, if any, as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date.][At least three (3) Business Days have passed since the date the Borrower was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender.] 12
4. The Borrower does not possess material non-public information regarding the Borrower and its Subsidiaries that would reasonably be expected to be material to a decision by a Lender to assign or acquire any Term Loans and that has not been disclosed to the Lenders generally (other than Lenders who elect not to receive such information).

8  	List multiple tranches if applicable.	
9  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
10  	List multiple tranches if applicable.	
11  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
12  	Insert applicable representation.	
 
J-24

The Borrower acknowledges that the Auction Agent and the relevant Lenders are relying on the truth and accuracy of the foregoing representations and warranties in connection with their decision whether or not to accept the offer set forth in this Specified Discount Prepayment Notice and the acceptance of any prepayment made in connection with this Specified Discount Prepayment Notice.
The Borrower requests that the Auction Agent promptly notify each Lender party to the Credit Agreement of this Specified Discount Prepayment Notice.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
 
J-25

IN WITNESS WHEREOF, the undersigned has executed this Specified Discount Prepayment Notice as of the date first above written.

AMNEAL PHARMACEUTICALS LLC , as	
Borrower	

By:	 	 	
	 	Name:	
	 	Title:	
Enclosure: Form of Specified Discount Prepayment Response
 
J-26

EXHIBIT J-7
[FORM OF] SPECIFIED DISCOUNT PREPAYMENT RESPONSE
Date: ______, 20__
To: [_________], as Auction Agent
Ladies and Gentlemen:
Reference is made to (a) that certain Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Borrower ”), JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent under the Loan Documents, and each Lender and other party from time to time party thereto, and (b) that certain Specified Discount Prepayment Notice, dated             , 20    , from the Borrower (the “ Specified Discount Prepayment Notice ”). Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Specified Discount Prepayment Notice or, to the extent not defined therein, in the Credit Agreement.
The undersigned Lender hereby gives you irrevocable notice, pursuant to Exhibit J of the Credit Agreement, that it is willing to accept a prepayment of the following [Term Loans] [[        ], 20[    ]] 1 tranche[s] of the [    ] 2 Class of Term Loans] held by such Lender at the Specified Discount in an aggregate outstanding amount as follows:
[Term Loans - $[    ]]
[[        ], 20[    ]] 3 tranche[s] of the [    ] 4 Class of Term Loans - $[        ]]

1  	List multiple tranches if applicable.	
2  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
3  	List multiple tranches if applicable.	
4  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
 
J-27

The undersigned Lender hereby expressly and irrevocably consents and agrees to a prepayment of its [Term Loans] [[        ], 20[    ]] 5 tranche[s] the [    ] 6 Class of Term Loans] pursuant to Exhibit J of the Credit Agreement at a price equal to the [applicable] Specified Discount in the aggregate outstanding amount not to exceed the amount set forth above, as such amount may be reduced in accordance with the Specified Discount Proration, and as otherwise determined in accordance with and subject to the requirements of the Credit Agreement.

5  	List multiple tranches if applicable.	
6  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
 
J-28

IN WITNESS WHEREOF, the undersigned has executed this Specified Discount Prepayment Response as of the date first above written.

[ NAME OF LENDER ]	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
J-29

EXHIBIT J-8
[FORM OF] ACCEPTANCE AND PREPAYMENT NOTICE
Date: ______, 20__
To: [__________], as Auction Agent
Ladies and Gentlemen:
This Acceptance and Prepayment Notice is delivered to you pursuant to (a) Exhibit J of that certain Term Loan Credit Agreement, dated as of May 4, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company (the “ Borrower ”), JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent under the Loan Documents, and each Lender and other party from time to time party thereto, and (b) that certain Solicited Discounted Prepayment Notice, dated             , 20    , from the Borrower (the “ Solicited Discounted Prepayment Notice ”). Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
Pursuant to Exhibit J of the Credit Agreement, the Borrower hereby irrevocably notifies you that it accepts offers delivered in response to the Solicited Discounted Prepayment Notice having an Offered Discount equal to or greater than [[    ]% in respect of the Term Loans] [[    ]% in respect of the [[        ], 20[    ]] 1 tranche[(s)] of the [    ] 2 Class of Term Loans] (the “ Acceptable Discount ”) in an aggregate amount not to exceed the Solicited Discounted Prepayment Amount.
The Borrower expressly agrees that this Acceptance and Prepayment Notice shall be irrevocable and is subject to the provisions of Exhibit J of the Credit Agreement.
The Borrower hereby represents and warrants to the Auction Agent and [the Lenders][each Lender of the [[        ], 20[    ]] 3 tranche[s] of the [    ] 4 Class of Term Loans] as follows:
1. No Default or Event of Default has occurred and is continuing.

1  	List multiple tranches if applicable.	
2  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
3  	List multiple tranches if applicable.	
4  	List applicable Class(es) of Term Loans (e.g., Incremental Term Loans, Extended Term Loans or Refinancing Term Loans).	
 
J-30

2. The Borrower will not use proceeds of Revolving Loans or Incremental Revolving Loans to fund this Discounted Loan Prepayment.
3. [At least ten (10) Business Days have passed since the consummation of the most recent Discounted Loan Prepayment, if any, as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date.][At least three Business Days have passed since the date the Borrower was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender.] 5
4. The Borrower does not possess material non-public information regarding the Borrower and its Subsidiaries that would reasonably be expected to be material to a decision by a Lender to assign or acquire any Term Loans and that has not been disclosed to the Lenders generally (other than Lenders who elect not to receive such information).
The Borrower acknowledges that the Auction Agent and the relevant Lenders are relying on the truth and accuracy of the foregoing representations and warranties in connection with the acceptance of any prepayment made in connection with the Solicited Discounted Prepayment Offer.
The Borrower requests that the Auction Agent promptly notify each Lender party to the Credit Agreement of this Acceptance and Prepayment Notice.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]

5	Insert applicable representation.	
 
J-31

IN WITNESS WHEREOF, the undersigned has executed this Acceptance and Prepayment Notice as of the date first above written.

AMNEAL PHARMACEUTICALS LLC , as	
Borrower	

By:	 	 	
	 	Name:	
	 	Title:	
 
J-32

EXHIBIT K
Form of Escrow Agreement
(see attached)

ESCROW AGREEMENT
dated as of May 4, 2018
among
AMNEAL PHARMACEUTICALS LLC,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
and
JPMORGAN CHASE BANK, N.A.,
as Escrow Agent

ESCROW AGREEMENT
This ESCROW AGREEMENT (this “ Agreement ”) is made and entered into as of May 4, 2018 by and among AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company (the “ Company ”), JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent under the Credit Agreement referred to below (in such capacities, the “ Administrative Agent ” and the “ Collateral Agent ”, respectively, and, together with the Company, sometimes referred to individually as a “ Party ” and collectively as the “ Parties ”) and JPMORGAN CHASE BANK, N.A., as “escrow agent” and depositary bank with respect to the Escrow Account (as hereinafter defined).
W I T N E S S E T H
WHEREAS, the Company, the Lenders (as defined below), the Administrative Agent, and the other agents party thereto have entered into that certain Term Loan Credit Agreement, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”). Capitalized terms used herein but not otherwise defined shall have the meaning given to such terms in the Credit Agreement; provided, however only the terms defined herein shall be applicable to the Escrow Agent and the Escrow Agent shall not have any obligation to understand or ascertain the meaning of any defined terms not defined in this Agreement.
WHEREAS, pursuant to Section 2.01(1) of the Credit Agreement, the Lenders shall make the Initial Term Loans to the Company, and the Company shall deposit (or direct the Administrative Agent to deposit) into the Escrow Account (as defined below) on the Closing Date an amount constituting a portion of the proceeds of the Initial Term Loans equal to $600,000,000 (the “ Escrow Deposit Amount ”), in cash or by wire transfer in immediately available funds which amount shall be held by the Escrow Agent until released in accordance with the terms hereof;
WHEREAS, pursuant to Section 3.10 of the Credit Agreement, the Company intends to use the Escrowed Funds to (i) finance the Specified Tender Offer, to the extent applicable, and (ii) to the extent of any excess, prepay the Initial Term Loans in accordance with Section 2.08(3) of the Credit Agreement; and
WHEREAS, the Company will open a demand deposit escrow account (the “ Escrow Account ”) with JPMorgan Chase Bank, N.A., in the name of the Company to hold the Escrowed Funds until the disbursement of amounts in accordance with Section 5 hereof and termination in accordance with Section 10.7 hereof.
NOW, THEREFORE, in consideration of the premises herein contained, and in order to induce the Lenders to make the Initial Term Loans, the Company hereby agrees with the Escrow Agent and the Administrative Agent as follows:
 
1

SECTION 1. Certain Definitions; Appointment of the Escrow Agent; Pledge and Grant of Security Interest; Deposit of Escrowed Funds .
1.1 Certain Definitions . Capitalized terms used herein will have the respective meanings ascribed to them below:
“ Additional Standing Instructions ” has the meaning specified in Section  5(h) .
“ Administrative Agent ” has the meaning specified in the introductory paragraph hereof.
“ Administrative Agent Objection Certificate ” means a certificate from the Administrative Agent in the form of Exhibit C hereto, signed by one of its Authorized Representatives and delivered for the purposes under Section  5(a) .
“ Agreement ” has the meaning specified in the introductory paragraph hereof.
“ Alternative Investment ” has the meaning specified in Section  4(a) .
“ Authorized Representative ” has the meaning specified in Section  5(g) .
“ Closing Date ” means May 4, 2018.
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Collateral Agent ” has the meaning specified in the introductory paragraph hereof.
“ Company ” has the meaning specified in the introductory paragraph hereof.
“ Credit Agreement ” has the meaning specified in the recitals hereto.
“ Earnings ” has the meaning specified in Section  9(b) .
“ Escrow Account ” has the meaning specified in the recitals hereto.
“ Escrow Agent ” means the Person named as the “escrow agent” in the introductory paragraph of this Agreement until a successor escrow agent shall have become such, in accordance with Section  10.11 or 10.12 hereof, and thereafter “Escrow Agent” means the Person who is then the Escrow Agent hereunder.
“ Escrow Deposit Amount ” has the meaning specified in the recitals hereto.
“ Escrow Investments ” has the meaning specified in Section  4(a) .
“ Escrowed Funds ” means the Escrow Deposit Amount, any Escrow Investments and Interest Amounts on deposit in the Escrow Account and all interest, dividends and other distributions and payments and earnings thereon and any other amounts or property now or hereafter credited to the Escrow Account.
 
2

“ FATCA ” means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
“ Impax ” means (1) prior to the Impax Conversion, Impax Laboratories, Inc., a Delaware corporation, and (2) after the consummation of the Impax Conversion, Impax Laboratories, LLC, a Delaware limited liability company.
“ Impax Conversion ” means the conversion of Impax Laboratories, Inc., a Delaware corporation, into Impax Laboratories, LLC, a Delaware limited liability company.
“ Impax Convertible Notes ” means those certain 2.00% Convertible Senior Notes due 2022 in an aggregate principal amount not to exceed $600 million, issued pursuant to the Impax Indenture.
“ Impax Indenture ” means the Indenture dated as of June 30, 2015 between Impax and Wilmington Trust, National Association (the “ Trustee ), as amended and supplemented by the First Supplemental Indenture, dated as of November 6, 2017 between Impax and the Trustee, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“ Indemnitees ” has the meaning specified in Section  7 .
“ Initial Standing Instructions ” has the meaning specified in Section  5(g) .
“ Initial Term Loans ” means the term loans made by the Lenders to the Company under the Credit Agreement on the Closing Date.
“ Interest Amount ” has the meaning specified in Section  4(a) .
“ Lenders ” means the lenders holding Initial Term Loans or any other term loans from time to time party to the Credit Agreement.
“ Losses ” has the meaning specified in Section  7 .
“ MMDA ” has the meaning specified in Section  4(a) .
“ Notice of Exclusive Control ” means a certificate from the Administrative Agent in the form of Exhibit D hereto, signed by one of its Authorized Representatives and delivered for the purposes under Section  1.3(c) .
“ Obligations ” has the meaning specified in Section  1.3(a) .
 
3

“ Officer ’ s Certificate ” means a certificate from the Company in the form of Exhibit A hereto, signed by one of its Authorized Representatives and delivered for the purposes under Section  5(a) .
“ Outside Date ” means July 10, 2018.
“ Party ” has the meaning specified in the introductory paragraph hereof.
“ Qualified Counterparty ” means any counterparty to any Specified Hedge Agreement that, at the time such Specified Hedge Agreement was entered into or, if later, on the Closing Date, was an Agent, an Arranger or a Lender under the Credit Agreement or an Affiliate of the foregoing, whether or not such person subsequently ceases to be an Agent, an Arranger or a Lender under the Credit Agreement or an Affiliate of the foregoing.
“ Secured Parties ” means, collectively, (1) the Lenders, (2) the Administrative Agent, (3) the Collateral Agent, (4) any Qualified Counterparty, (5) the beneficiaries of each indemnification obligation undertaken by the Borrower and any other Loan Party under any Loan Document and (6) the successors and permitted assigns of each of the foregoing.
“ Special Mandatory Prepayment ” shall have the meaning specified in Section 5(b) .
“ Special Mandatory Prepayment Amount ” means an amount equal to the aggregate outstanding principal amount of any Impax Convertible Notes, if any, on the Special Mandatory Prepayment Date, after giving effect to the settlement of the Specified Tender Offer, if any.
“ Special Mandatory Prepayment Date ” means the earlier of (i) the date of the settlement of the Specified Tender Offer and (ii) the Outside Date.
“ Special Mandatory Prepayment Notice ” means a written notice from the Administrative Agent in the form of Exhibit B hereto signed by one of its Authorized Representatives and delivered for the purposes under Section  5(b) .
“ Specified Event of Default ” means any Event of Default under Section 8.01(2), 8.01(3), 8.01(8) or 8.01(9) under the Credit Agreement.
“ Specified Hedge Agreement ” means any Hedge Agreement entered into or assumed between or among the Borrower or any Restricted Subsidiary and any Qualified Counterparty and designated by the Qualified Counterparty and the Borrower in writing to the Administrative Agent as a “Specified Hedge Agreement” under the Credit Agreement (but only if such Hedge Agreement has not been designated as a “Specified Hedge Agreement” under the ABL Credit Agreement).
 
4

“ Specified Tender Offer ” means the offer to be commenced by Impax on or following the Closing Date to holders to repurchase for cash all of the outstanding Impax Convertible Notes, or any portion thereof, pursuant to Section 4.10 of the Impax Indenture.
“ Specified Tender Offer Settlement Amount ” means the aggregate outstanding principal amount of any Impax Convertible Notes that shall have been tendered pursuant to the Specified Tender Offer as of the Special Mandatory Prepayment Date.
“ Standing Instructions ” has the meaning specified in Section  5(h) .
“ UCC ” means the Uniform Commercial Code, as in effect from time to time in the State of New York.
“ Underlying Agreements ” has the meaning specified in Section  1.3(c) .
1.2 Appointment of the Escrow Agent . The Administrative Agent and the Company hereby appoint JPMorgan Chase Bank, N.A., as Escrow Agent in accordance with the terms and conditions set forth herein and the Escrow Agent hereby accepts such appointment.
1.3 Grant of Security Interest .
(a) As security for the due and punctual payment when due of all amounts that may be payable to the Administrative Agent, the Collateral Agent or any Lender from time to time under the Credit Agreement or any other Loan Documents, now or hereafter arising (the “ Obligations ”), the Company hereby pledges, assigns and grants to the Collateral Agent for the benefit of the Secured Parties, a continuing security interest in, and a lien on, the Escrow Account and the Escrowed Funds.
(b) The parties agree that the State of New York is the Escrow Agent’s jurisdiction for purposes of Part 3 of Article 9 of the UCC. The designation of the Escrow Agent’s jurisdiction for purposes of the UCC in this Agreement shall be controlling in the event of any conflict between this Agreement and any other agreement between the Escrow Agent and the Company governing the Escrow Account.
(c) Notwithstanding any other provision of this Agreement, if at any time the Escrow Agent receives any instruction concerning the disposition of funds held in the Escrow Account from an Authorized Representative of the Administrative Agent, including but not limited to a Notice of Exclusive Control, the Escrow Agent shall comply with such instruction without further consent of the Company or any other person. The Parties acknowledge and agree that the Escrow Agent shall act upon and according to the direction of the Administrative Agent and that the Company shall have no claim for any inappropriate instructions, orders or notice other than against the Administrative Agent pursuant to the terms of the Credit Agreement and any other agreement, instrument or document between the Company and the Administrative Agent or among the Company, the Administrative Agent and any other Person in connection herewith or with the Transactions (collectively, the “ Underlying Agreements ”). The Administrative Agent hereby agrees that it shall not give any such instructions unless a Specified Event of Default under the Credit Agreement has occurred and is continuing. If the Administrative Agent provides the Escrow Agent with a Notice of Exclusive Control, the Escrow Agent shall not comply with written instructions, including investment decisions, or other directions concerning the Escrow Account or Escrowed Funds originated by the Company or its Authorized Representatives from and after the next Business Day after the date of the Escrow Agent’s receipt of the Notice of Exclusive Control.
 
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(d) The Escrow Agent hereby agrees that all of the Escrow Deposit Amount delivered to the Escrow Agent for crediting to the Escrow Account and all Escrow Funds will be promptly credited to the Escrow Account by the Escrow Agent. The Escrow Agent represents and warrants that it has not entered into, and agrees that it will not enter into, any control agreement or any other agreement relating to the Escrow Account with any Person without the prior written consent of the Company and the Administrative Agent.
(e) The Company agrees to take all steps reasonably requested in writing by the Administrative Agent in connection with the perfection of the Collateral Agent’s security interest in the Escrow Account and, without limiting the generality of the foregoing, the Company hereby authorizes the Administrative Agent to file one or more UCC financing statements in such jurisdictions and filing offices and containing such description of collateral as the Administrative Agent may reasonably determine is necessary or advisable in order to perfect the security interest granted herein. It is understood that the Escrow Agent has no responsibility with respect to the validity or perfection of the security interest other than to act in accordance with the terms of this Agreement.
(f) Upon the release of any Escrowed Funds pursuant to Section  5 hereof, the security interest granted under this Agreement (but, for the avoidance of doubt, not under any other Loan Document) to the Collateral Agent for the benefit of the Secured Parties shall automatically terminate with respect to any such released Escrowed Funds without any further action and the Escrowed Funds so released shall be delivered to the recipient free and clear of any and all liens, claims, security interests, or encumbrances of any person, including, without limitation, the Collateral Agent and the Secured Parties (but, for the avoidance of doubt, subject to any security interest of the Administrative Agent or Collateral Agent under any other Security Documents). Each of the Administrative Agent and the Collateral Agent agrees that, upon the release of the Escrowed Funds pursuant to Section  5 hereof, it will promptly execute and deliver such agreements and instruments in form and substance reasonably satisfactory to it and the Company, as the Company may reasonably request in writing, without recourse to or warranty by the Administrative Agent or the Collateral Agent, and at the expense of the Company, to further effect or evidence the release of the liens, claims, security interests and encumbrances in such released Escrowed Funds granted to any the Administrative Agent or the Collateral Agent hereunder.
1.4 Deposit of Escrowed Funds . On the Closing Date, the Company shall deposit (or direct the Administrative Agent to deposit) the Escrow Deposit Amount into the Escrow Account.
SECTION 2. [RESERVED] .
 
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SECTION 3. Creation and Maintenance of the Escrow Account .
(a) Concurrently with the Closing Date, the Escrow Agent shall establish (and at all times until the escrow terminates pursuant to Section  10.7 , the Escrow Agent shall maintain and administer) in accordance with this Agreement, the Escrow Account.
(b) The Escrow Agent shall cause the Escrow Account to be, and the Escrow Account shall be, separate from all other accounts (including any other escrow account).
SECTION 4. Investing of Amounts in the Escrow Account .
(a) As long as the Escrowed Funds are deposited in the Escrow Account the Escrowed Funds will be invested and reinvested (the “ Escrow Investments ”) by the Escrow Agent in a JPMorgan Money Market Deposit Account (“ MMDA ”), or a successor investment offered by the Escrow Agent. MMDA have rates of compensation that may vary from time to time as determined by the Escrow Agent. The Parties agree that instructions to make any other investments (“ Alternative Investment ”), and instructions to change investments, shall be limited to cash products offered by the Escrow Agent and must be in a joint writing and executed by an Authorized Representative of each of the Company and the Administrative Agent. Any interest or other income received on such investment and reinvestment of the Escrowed Funds (the “ Interest Amount ”) will become part of the Escrowed Funds and any losses incurred on such investment and reinvestment of the Escrowed Funds will be debited against the Escrowed Funds. The Escrow Agent is hereby authorized and directed to sell or redeem any such Escrow Investments as it deems necessary to make any payments or distributions required under this Agreement.
(b) The Escrow Agent will not provide supervision, recommendations or advice relating to either the investment of moneys held in the Escrow Account or the purchase, sale, retention or other disposition of any investment described herein. Each Party acknowledges that it was not offered any advice or recommendation by the Escrow Agent with regard to any investment and has made an independent assessment of the suitability for its own purposes of any investment selected hereunder. Market values, exchange rates and other valuation information (including without limitation, market value, current value or notional value) of any investment furnished in any report or statement may be obtained from third party sources and is furnished for the exclusive use of the Parties. The Escrow Agent has no responsibility whatsoever to determine the market or other value of any investment and makes no representation or warranty, express or implied, as to the accuracy of any such valuations or that any values necessarily reflect the proceeds that may be received on the sale of an investment. Except for losses arising out of the bad faith, gross negligence or willful misconduct of Escrow Agent in failing to properly execute or act in accordance with written investment instructions from the Parties in accordance with this Agreement. In no event shall the Escrow Agent be liable for any investment loss, fees, taxes or other charges arising from or related to any such investment or reinvestment made pursuant to the terms of this Agreement or as a result of any liquidation of any investment prior to its maturity or for the failure of an Authorized Representative of each of the Parties to give the Escrow Agent instructions to invest or reinvest the Escrowed Funds. The Escrow Agent shall have the right to liquidate any investments held in order to provide funds necessary to make required payments under Section 5 of this Agreement.
 
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For the avoidance of doubt, to the extent that the value of the Escrowed Funds declines, the Company shall not have any obligation (i) to deposit additional funds in the Escrow Account or (ii) to ensure that the aggregate amount of the Escrowed Funds equals or exceeds the Special Mandatory Prepayment Amount at any time.
SECTION 5. Disbursements . The Escrow Agent shall hold the Escrowed Funds in the Escrow Account, and shall not release the same, or any portion thereof, except:
(a) If, at any time prior to 5:00 pm New York City time on the date that is two (2) Business Days prior to the Outside Date, the Escrow Agent shall have received an Officer’s Certificate from the Company (with a copy concurrently delivered to the Administrative Agent), requesting the release of the Escrowed Funds no later than 2:00 pm New York City time two (2) Business Days after the date of receipt by the Escrow Agent of such Officer’s Certificate (which requested release date shall be the date of the settlement of the Specified Tender Offer), the Escrow Agent shall, on such requested release date, release (i) the Specified Tender Offer Settlement Amount to the Company and (ii) the Special Mandatory Prepayment Amount, if any, to the Administrative Agent, each as specified by the Company in such Officer’s Certificate and in accordance with the instructions provided in the Officer’s Certificate; provided, however, that if an Authorized Representative of the Administrative Agent has delivered to the Escrow Agent, with a concurrent copy to the Company, an Administrative Agent Objection Certificate not later than 2:00 p.m. New York City time one (1) Business Day after the date of the Escrow Agent’s receipt of such Officer’s Certificate stating that it has reasonably concluded that the Company is not entitled to provide such Officer’s Certificate, then upon receipt of such Administrative Agent Objection Certificate by the Escrow Agent, the Escrow Agent shall disregard such Officer’s Certificate without any liability.
(b) Notwithstanding anything to the contrary contained in subsection (a) above, if the Escrow Agent has not received an Officer’s Certificate (with respect to which no Administrative Agent Objection Certificate has been submitted by the Administrative Agent) by 5:00 p.m. (New York City time) on the date that is two (2) Business Days prior to the Outside Date, then, upon its receipt of a Special Mandatory Prepayment Notice from the Administrative Agent (with a copy concurrently delivered by the Administrative Agent to the Company), the Escrow Agent shall on the next Business Day (but in no event earlier than the Special Mandatory Prepayment Date) release the amount of Escrowed Funds set forth in the Special Mandatory Prepayment Notice to the Administrative Agent, which the Administrative Agent will apply solely for the purpose of making a prepayment of the Initial Term Loans pursuant to Section 2.08(3) of the Credit Agreement (the “ Special Mandatory Prepayment ”). The Company hereby authorizes the Administrative Agent to submit a Special Mandatory Prepayment Notice pursuant to this Section  5(b) of this Agreement for any amount of Escrowed Funds that are required to be used to prepay Initial Term Loans pursuant to Section 2.08(3) of the Credit Agreement.
 
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(c) Notwithstanding anything to the contrary contained in subsections (a) and (b) above, no later than 2:00 p.m. (New York City time) on the date that is one (1) Business Day prior to the Outside Date or the Special Mandatory Prepayment Date, as applicable, the Administrative Agent may deliver a Notice of Exclusive Control (with a copy concurrently delivered to the Company), and upon the receipt of such notice, the Escrow Agent shall hold the Escrowed Funds in accordance with Section  1.3(c)
(d) [Reserved].
(e) [Reserved].
(f) Notwithstanding anything in this Agreement to the contrary, the Escrow Agent shall disburse the Escrowed Funds as directed pursuant to (i) a written instruction executed by an Authorized Representative of the Administrative Agent; (ii) a written instruction executed by an Authorized Representative of the Company or (iii) a written instruction executed by an Authorized Representative of the instructing Party, in each case, given to effectuate an attached final judgment (without further right of appeal) of a court of competent jurisdiction accompanied by a written certification from counsel for the instructing Party attesting that such judgment is final and not subject to further proceedings or appeal and the Escrow Agent shall be entitled conclusively to rely upon any such certification and instruction and shall have no responsibility to review the judgment to which such certification and instruction refers or to make any determination as to whether such judgment is final.
(g) Notwithstanding anything to the contrary set forth in Section  10.1 , any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of the Escrowed Funds, including but not limited to any Notice of Exclusive Control, must be in writing executed by the appropriate Party or Parties as evidenced by the signatures of the person or persons signing this Agreement or one of their designated persons as set forth on the Designation of Authorized Representatives attached hereto as Schedules 1-A and 1-B (each an “ Authorized Representative ”), and delivered to the Escrow Agent only by confirmed facsimile or as a Portable Document Format (“ PDF ”) attached to an email on a Business Day only at the fax number or email address set forth in Section 10.1 below. Each Designation of Authorized Representatives shall be signed by the Secretary, any Assistant Secretary or other duly authorized officer of the named Party or if such named Party does not have any officers any Secretary or Assistant Secretary then such duly authorized Person authorized to act on behalf of such Party. No instruction for or related to the transfer or distribution of the Escrowed Funds shall be deemed delivered and effective unless the Escrow Agent actually shall have received it on a Business Day by facsimile or as a PDF attached to an email only at the fax number or email address set forth in Section  10.1 and, as evidenced by a confirmed transmittal to the Party’s or Parties’ transmitting fax number or email address and, in each case, the Escrow Agent has been able to satisfy any applicable security procedures as may be required hereunder. The Escrow Agent shall not be liable to any Party or other person for refraining from acting upon any instruction for or related to the transfer or distribution of the Escrowed Funds if delivered to any other fax number or email address, including but not limited to a valid email address of any employee of the Escrow Agent.
 
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Each Party authorizes the Escrow Agent to use the funds transfer instructions (“ Initial Standing Instructions ”) specified for it below to disburse any funds due to the Company and/or the Administrative Agent, respectively, without a verifying call-back as set forth below:

Company:	  	Administrative Agent:	
		
Bank name: Wells Fargo	  	Bank name:	
		
Bank Address: 255 2nd Ave South,	  	Bank Address:	
Minneapolis, MN 55479	  		
		
ABA Number: 121000248	  	ABA Number	
		
Credit A/C Name: Impax Laboratories Inc	  	Credit A/C Name:	
Concentration Account	  		
		
Credit A/C #:2000018821033	  	Credit A/C #:	
		
Credit A/C Address: 602 Office Center Dr	  	Credit A/C Address:	
Suite 200, Fort Washington, PA 19034	  		
(h) In the event any funds transfer instructions other than the Initial Standing Instructions are set forth in a permitted instruction from a Party or the Parties delivered in accordance with this Agreement (any such additional funds transfer instructions, an “ Additional Standing Instructions ” and together with the Initial Standing Instructions, the “ Standing Instructions ”), the Escrow Agent will confirm such Additional Standing Instructions by a telephone call-back or email confirmation to an Authorized Representative of such Party, and the Escrow Agent may rely and act upon the confirmation of anyone purporting to be that Authorized Representative. No funds will be disbursed until such confirmation occurs. Each Party agrees that after such confirmation, the Escrow Agent may continue to rely solely upon such Additional Standing Instructions and all identifying information set forth therein for such beneficiary without an additional telephone call-back or email confirmation. The persons designated as Authorized Representatives and telephone numbers and email addresses for same may be changed only in a writing executed by an Authorized Representative or other duly authorized officer of the applicable Party setting forth such changes and actually received by the Escrow Agent via facsimile or as a PDF attached to an email. The Escrow Agent will confirm any such change in Authorized Representatives by a telephone call-back or email confirmation to an Authorized Representative and the Escrow Agent may rely and act upon the confirmation of anyone purporting to be that Authorized Representative. The Escrow Agent, any intermediary bank and the beneficiary’s bank in any funds transfer may rely upon the identifying number of the beneficiary’s bank or any intermediary bank included in a funds transfer instruction provided by a Party or the Parties and confirmed by an Authorized Representative. Further the beneficiary’s bank in the funds transfer instruction may make payment on the basis of the account number provided in such Party’s or the Parties’ instruction and confirmed by an Authorized Representative even though it identifies a person different from the named beneficiary.
 
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(i) The Parties acknowledge that there are certain security, corruption, transmission error and access availability risks associated with using open networks such as the internet and the Parties hereby expressly assume such risks.
(j) As used in this Section  5 , “Business Day” shall mean any day other than a Saturday, Sunday or any other day on which Escrow Agent located at the notice address set forth below is authorized or required by law or executive order to remain closed. The Parties acknowledge that the security procedures set forth in this Section  5 are commercially reasonable.
(k) Notwithstanding anything to the contrary contained in this Agreement, in the event that an electronic signature is affixed to an instruction issued hereunder to disburse or transfer funds, such instruction shall be confirmed by a verifying call-back (or email confirmation) to an Authorized Representative.
For the avoidance of doubt, the Parties acknowledge and agree that the Company shall have no right to object to the Administrative Agent’s written request pursuant to this Section  5 and any objection or other instruction which attempts to prevent or delay the release of any such funds requested by the Administrative Agent claimed hereunder shall be disregarded by the Escrow Agent without any liability. The Escrow Agent may rely upon the validity, accuracy and content of the statements contained in the instructions delivered pursuant to this Section  5 .
SECTION 6. Escrow Agent . The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent has no knowledge of, nor any obligation to comply with, the terms and conditions of any of the Underlying Agreements between the Company, the Lenders and/or the Administrative Agent, nor shall the Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Company, the Lenders and/or the Administrative Agent, the terms and conditions of this Agreement shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by each of the Company and the Administrative Agent believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and the Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Any notice, document, instruction or request delivered by the Parties but not required under this Agreement may be disregarded by the Escrow Agent and returned to the sending Party. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that the Escrow Agent’s gross negligence, bad faith or willful misconduct was the cause of any direct loss to either the Company or the Administrative Agent. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event the Escrow Agent shall be uncertain, or believes there is some ambiguity, as to its duties or rights hereunder, or receives instructions,
 
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claims or demands from any Party hereto that in the Escrow Agent’s judgment conflict with the provisions of this Agreement, or if the Escrow Agent receives conflicting instructions from the Company and the Administrative Agent, the Escrow Agent shall be entitled either to: (a) refrain from taking any action until it shall be given (i) a joint written direction executed by Authorized Representatives of the Company and the Administrative Agent (or only the Administrative Agent after its delivery of a Notice of Exclusive Control or an Administrative Agent Objection Certificate), that eliminates such conflict or (ii) a court order issued by a court of competent jurisdiction (it being understood that the Escrow Agent shall be entitled conclusively to rely and act upon any such court order and shall have no obligation to determine whether any such court order is final); or (b) file an action in interpleader. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Account, including, without limitation, the Escrow Deposit Amounts, nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Escrow Agent shall have no responsibility or liability to Company for complying with written instructions or other written directives concerning the Escrow Account originated by the Administrative Agent as described in Section  5 and delivered to Escrow Agent in accordance with this Agreement.
SECTION 7. Indemnification and Reimbursement . The Company and the Administrative Agent agree jointly and severally to indemnify, defend, hold harmless, pay or reimburse the Escrow Agent and its affiliates (other than the Administrative Agent and the Collateral Agent, in their capacities as Administrative Agent and Collateral Agent) and their respective successors, assigns, directors, agents and employees (the “ Indemnitees ”) from and against any and all losses, damages, claims, liabilities, penalties, judgments, settlements, litigation, investigations, costs or expenses (including, without limitation, the fees and expenses of outside counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively “ Losses ”), arising out of or in connection with (a) the Escrow Agent’s performance of this Agreement, except to the extent that such Losses are determined by a court of competent jurisdiction to have been caused by the gross negligence, willful misconduct, or bad faith of such Indemnitee and (b) the Escrow Agent’s following, accepting or acting upon any instructions or directions, whether joint or singular, from the Company and the Administrative Agent received in accordance with this Agreement. The Company and the Administrative Agent hereby grant the Escrow Agent a lien on, right of set-off against and security interest in the Escrowed Funds for the payment of any claim for indemnification, fees, expenses and amounts due to the Escrow Agent (in its capacity as such) or an Indemnitee. In furtherance of the foregoing, the Escrow Agent is expressly authorized and directed, but shall not be obligated, to charge against and withdraw from the Escrowed Funds for its own account or for the account of an Indemnitee any amounts due to the Escrow Agent or to an Indemnitee under this Section  7 . The obligations set forth in this Section  7 shall survive the resignation, replacement or removal of the Escrow Agent or the termination of this Agreement.
 
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SECTION 8. Expenses . (a) The Company agrees to pay or reimburse the Escrow Agent (in its capacity as such) for (1) all of its reasonable and documented out-of-pocket costs and expenses incurred in connection with this Agreement, any other documents prepared in connection herewith and the transactions expressly contemplated hereunder, and (2) the reasonable and documented out-of-pocket fees and reasonable an documented charges and disbursements of one counsel to the Escrow Agent which unless otherwise agreed in writing, shall be as described in Schedule 2.
(b) Each of the Parties further agrees to the disclosures and agreements set forth in Schedule 2.
SECTION 9. Tax Matters .
(a) Tax Certifications and Withholding . Each of the Parties hereto shall furnish the Escrow Agent with an original completed Internal Revenue Service Form W-8, Form W-9, or other applicable form or documentation. The Escrow Agent shall withhold any taxes as may be required by law and shall remit such taxes to the appropriate authorities.
(b) Tax Ownership . The Parties hereto agree that solely for tax purposes, (i) the Company will be treated as the owner of the Escrowed Funds and any and all income that is included in, earned on, or derived from, the Escrowed Funds (the “ Earnings ”), and (ii) to the extent permitted by applicable law, the Company will report the Earnings as its income in the taxable year or years in which such income is properly includible and will pay any taxes attributable thereto, regardless of whether any distributions are made from the Escrow Account. All interest or other income earned under this Agreement shall be allocated to the Company and reported, by the Escrow Agent to the Internal Revenue Service, or any other taxing authority, on Internal Revenue Service Form 1099 or 1042S (or other appropriate form) as income earned from the Escrow Deposit Amount by the Company whether or not said income has been distributed during such year. The Escrow Agent shall withhold any taxes it deems appropriate in the absence of proper tax documentation or as required by law, and shall remit such taxes to the appropriate authorities. The Parties hereby represent to the Escrow Agent that no other tax withholding or information reporting of any kind is required by the Escrow Agent in connection herewith.
SECTION 10. Miscellaneous Provisions .
10.1 Notices . Except as otherwise provided in Section  5(e) , any notice, direction or communication given hereunder and any deliveries made hereunder shall be sufficiently given if in writing or set forth in a PDF attached to an email, and all instructions from a Party or the Parties to the Escrow Agent shall be executed by an Authorized Representative and delivered in person or mailed by email, commercial courier service or telecopier communication, addressed as follows:
if to the Company :
AMNEAL PHARMACEUTICALS LLC
400 Crossing Boulevard, 3rd Floor
Bridgewater, NJ 08807
Attn: Bryan M. Reasons, Chief Financial Officer
Telephone: (732) 595-4575
Facsimile No.: (732) 595-4753
Email Address: bryan.reasons@impaxlabs.com
 
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With a copy (which shall not constitute notice) to:
AMNEAL PHARMACEUTICALS LLC
400 Crossing Boulevard, 3rd Floor
Bridgewater, NJ 08807
Attn: Sheldon Hirt, General Counsel
Telephone: (908) 947-3137
Facsimile No.: (908) 947-3146
Email Address: shirt@amneal.com
With a copy (which shall not constitute notice) to:
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Attn: Jesse Sheff
Telephone: (212) 906-4524
Facsimile No.: (212) 751-4864
Email Address: jesse.sheff@lw.com
and with a copy (which will not constitute notice) to:
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Attn: Wesley Holmes
Facsimile: (212) 751-4864
Email: wesley.holmes@lw.com
if to the Administrative Agent :
JPMorgan Chase Bank N.A.
Middle Market Loan and Agency
10 S. Dearborn St. L2 floor Chicago, IL 60603
Attention: Omolola Eneh
Facsimile: 1-844-490-5663
Telephone: 312-954-1007
Email: omolola.eneh@chase.com
if to the Escrow Agent :
JPMorgan Chase Bank, NA
4 NY Plaza, Floor 11 New York, NY 10004
Attn: Rola Tseng-Pappalardo/Joan King-Francois
Facsimile: 212.552.2812
Email: ec.escrow@jpmorgan.com
 
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or, as to any such party, at such other address as shall be designated by such party in a written notice to each other party complying as to delivery with the terms of this Section  10.1 . Notices and communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile or delivered electronically shall be deemed to have been given when sent (except that, if given after normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Whenever under the terms hereof the time for giving a notice or performing an act falls upon a non-Business Day, such time shall be extended to the next Business Day on which the Escrow Agent is open for business.
10.2 Severability . The provisions of this Agreement are severable, and if any clause or provision shall be held invalid, illegal or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect in that jurisdiction only such clause or provision, or part thereof, and shall not in any manner affect such clause or provision in any other jurisdiction or any other clause or provision of this Agreement in any jurisdiction.
10.3 Headings . The headings in this Agreement have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
10.4 Counterparts Originals . This Agreement and any joint written instructions may be signed in separate counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same agreement. All signatures of the parties to this agreement may be transmitted by facsimile or other means of electronic image transmission (i.e. a “.pdf” file attached to an electronic mail message), and such facsimile or other electronically transmitted image will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party.
10.5 Benefits of this Agreement . This Agreement shall be binding upon the parties hereto, and each of their respective transferees, successors and assigns, and shall inure, together with the rights and remedies hereunder, to the benefit of the parties hereto and each of their respective successors, permitted transferees and assigns. Except as expressly provided in Section  7 with respect to Indemnitees, nothing in this Agreement, express or implied, shall give to any person, or entity other than the Escrow Agent and the Parties hereto and their successors hereunder, any benefit or any legal or equitable right, remedy, interest or claim under or in respect of the Escrowed Funds or this Agreement.
10.6 Amendments, Waivers and Consents . None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except pursuant to a written instrument executed by each of the Escrow Agent and the Parties hereto. None of the Parties hereto shall be deemed, by any act, delay, indulgence, omission or otherwise, to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default,
 
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or in any breach of any of the terms and conditions hereof. Failure of any of the parties hereto to exercise, or delay in exercising, any right, power or privilege hereunder shall not preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by any of the parties hereto of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that such party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights or remedies provided by law.
10.7 Termination . This Agreement (other than as provided in Section  10.8 hereof) shall terminate and the Escrow Account shall be closed immediately upon the disbursement of all amounts held in the Escrow Account in accordance with Section  5 hereof subject to the provisions of Section  7 . Each of the Administrative Agent and the Collateral Agent further agrees to execute and deliver such documents, instruments or other agreements as the Company may reasonably request in writing (all at the expense of the Company in accordance with the Credit Agreement) to evidence the terminations contemplated in this Section  10.7 . Any execution and delivery of documents pursuant to this Section  10.7 shall be without recourse to or warranty by the Administrative Agent.
10.8 Survival Provisions . Anything herein to the contrary notwithstanding, (a) all representations, warranties and covenants contained herein shall survive the execution and delivery of this Agreement, and shall terminate only upon the termination of this Agreement, and (b) the provisions of Sections 6 , 7 and 8 hereof and the Miscellaneous provisions in Sections 10.1 through 10.10 and 10.14 through 10.16 shall survive the termination of this Agreement and the resignation or removal of the Escrow Agent.
10.9 Waivers . The Company waives presentment and demand for payment of any of the Special Mandatory Prepayment, protest and notice of dishonor or default with respect to any of the Special Mandatory Prepayment, and all other notices to which the Company might otherwise be entitled, except as otherwise expressly provided herein or in the Credit Agreement.
10.10 Authority of the Escrow Agent .
(a) The Escrow Agent shall have, and be entitled to exercise, all powers hereunder that are specifically granted to the Escrow Agent by the terms hereof, together with such powers as are reasonably incidental thereto but no duties, obligations or powers shall be inferred or implied. The Escrow Agent may perform any of its duties hereunder by or through agents, attorneys, experts, accountants, advisors or employees and the exculpatory provisions provided herein shall be equally applicable to such Persons designated with reasonable care. The Escrow Agent shall be entitled to retain counsel and to act in reliance upon the advice of counsel concerning any matters arising hereunder. Except as otherwise expressly provided in this Agreement, neither the Escrow Agent nor any director, officer, employee, attorney or agent of the Escrow Agent shall be liable to the Parties for any action taken or omitted to be taken by the Escrow Agent, in its capacity as Escrow Agent, hereunder, except for direct damages resulting from its own gross negligence, bad faith or willful misconduct.
 
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(b) The Escrow Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and the Company shall not be obligated or entitled to make any inquiry respecting such authority.
10.11 Removal of Escrow Agent; Successor Escrow Agent by Merger, etc .
(a) The Company, with the consent of the Administrative Agent (such consent not to be unreasonably withheld) may remove the Escrow Agent at any time by giving to the Escrow Agent not less than thirty (30) days’ prior notice in writing signed by the Company. The Escrow Agent’s sole responsibility after such thirty (30) day notice period expires shall be to hold the Escrowed Funds (without any obligation to reinvest the same) and to deliver the same to a designated substitute escrow agent, if any, appointed by the Parties, or in accordance with the directions of a final court order, at which time of delivery, Escrow Agent’s obligations hereunder shall cease and terminate
(b) Within thirty (30) days after giving the foregoing notice of removal to the Escrow Agent, the Company and the Administrative Agent shall jointly appoint a successor Escrow Agent. If a successor Escrow Agent has not accepted such appointment by the end of such thirty (30) day period or such successor Escrow Agent has not become so bound, the existing Escrow Agent either (a) may, in its sole discretion, interplead the Escrowed Funds with a court located in the State of New York and the costs, expenses and reasonable attorney’s fees which are incurred in connection with such proceeding may be charged against and withdrawn from the Escrowed Funds; or (b) appoint a successor escrow agent of its own choice. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the existing Escrow Agent in connection with such proceeding will be paid by, and be deemed to be solely an obligation of, the Company.
(c) Upon receipt of the notice of identity of the successor Escrow Agent, the Escrow Agent shall deliver the Escrowed Funds then held hereunder to the successor Escrow Agent.
(d) Any entity into which the Escrow Agent consolidates, merges or converts into, or any entity to which it transfers all or substantially all of its escrow business to, another entity, the successor corporation without any further act shall be the successor Escrow Agent under this Agreement and subject hereto without further act.
10.12 Resignation . The Escrow Agent may resign its appointment hereunder upon not less than thirty (30) days’ prior written notice to the Company and the Administrative Agent. Escrow Agent’s sole responsibility after such thirty (30) day notice period expires shall be to hold the Escrowed Funds (without any obligation to reinvest the same) and to deliver the same to a designated substitute escrow agent, if any, appointed by the Parties, or in accordance with the directions of a final court order, at which time of delivery, Escrow Agent’s obligations hereunder shall cease and terminate. Upon the effective date of such resignation, the Escrow Agent shall deliver the Escrowed Funds to any substitute escrow agent designated by the Company and the Administrative Agent jointly in writing. If the Company fails to designate a substitute escrow agent within thirty (30) days after the giving of such notice, the Escrow Agent either (a) may interplead the Escrowed Funds with a court located in the State of New York and
 
17

the costs, expenses and reasonable attorney’s fees which are incurred in connection with such proceeding may be charged against and withdrawn from the Escrowed Funds; or (b) appoint a successor escrow agent of its own choice. Upon receipt of the notice of identity of the successor Escrow Agent, the Escrow Agent shall deliver the Escrowed Funds then held hereunder to the successor Escrow Agent.
10.13 [Reserved] .
10.14 Final Expression . This Agreement, together with the Credit Agreement and any other agreement executed in connection herewith, is intended by the Parties as a final expression of this Agreement and is intended as a complete and exclusive statement of the terms and conditions thereof.
10.15 Rights of Lenders . No Lender shall have any independent rights hereunder; provided that nothing in this Section  10.15 shall limit any rights granted to the Administrative Agent under the Credit Agreement. Except as expressly provided in Section  7 above, nothing in this Agreement, whether express or implied, shall be construed to give to any person or entity other than Escrow Agent and the Parties any legal or equitable right, remedy, interest or claim under or in respect of the Escrowed Funds or this Agreement.
10.16 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial; Etc .
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE ESCROW AGENT AND THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
(b) EACH PARTY AND THE ESCROW AGENT IRREVOCABLY AND UNCONDITIONALLY SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN (OR IF SUCH COURT LACKS SUBJECT MATTER JURISDICTION, THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN), AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS RELATING HERETO; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE ANY PARTY HERETO FROM BRINGING ANY LEGAL ACTION OR PROCEEDING IN ANY JURISDICTION FOR THE RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT.
 
18

(c) EACH PARTY AND THE ESCROW AGENT IRREVOCABLY AND UNCONDITIONALLY CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD OR CLAIM THE SAME.
(d) EACH PARTY AND THE ESCROW AGENT IRREVOCABLY AND UNCONDITIONALLY AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE COMPANY, THE ADMINISTRATIVE AGENT OR THE ESCROW AGENT, AS THE CASE MAY BE, AT THE ADDRESS SPECIFIED IN SECTION 10.1 OR AT SUCH OTHER ADDRESS OF WHICH THE COMPANY, THE ADMINISTRATIVE AGENT OR THE ESCROW AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO.
(e) EACH PARTY AND THE ESCROW AGENT IRREVOCABLY AND UNCONDITIONALLY AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR (SUBJECT TO CLAUSE (b) ABOVE) SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
(f) EACH PARTY AND THE ESCROW AGENT IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SECTION 10.16 ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (IT BEING UNDERSTOOD THAT NOTHING CONTAINED IN THIS SENTENCE SHALL LIMIT THE COMPANY OR ADMINISTRATIVE AGENT’S INDEMNITY OR REIMBURSEMENT OBLIGATIONS UNDER SECTION 7 TO THE EXTENT SUCH SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARE INCLUDED IN ANY THIRD PARTY CLAIM IN CONNECTION WITH WHICH SUCH INDEMNITEE IS ENTITLED TO INDEMNIFICATION THEREUNDER).
(g) EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE ESCROW AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
(h) TO THE EXTENT THAT IN ANY JURISDICTION EITHER PARTY MAY NOW OR HEREAFTER BE ENTITLED TO CLAIM FOR ITSELF OR ITS ASSETS, IMMUNITY FROM SUIT, EXECUTION, ATTACHMENT (BEFORE OR AFTER JUDGMENT) OR OTHER LEGAL PROCESS, SUCH PARTY SHALL NOT CLAIM, AND HEREBY IRREVOCABLY WAIVES, SUCH IMMUNITY.
 
19

10.17 Compliance with Court Orders . In the event that a legal garnishment, attachment, levy, restraining notice or court order is served with respect to any of the Escrowed Funds, or the delivery thereof shall be stayed or enjoined by an order of a court, the Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all such orders so entered or issued, and in the event that the Escrow Agent obeys or complies with any such order it shall not be liable to any of the Parties hereto or to any other person by reason of such compliance notwithstanding such order be subsequently reversed, modified, annulled, set aside or vacated. If the Escrow Agent complies with any such legal garnishment, attachment, levy, restraining notice or court order, it shall make reasonable efforts to provide a notice to the Parties thereof as soon as reasonably practicable after the Escrow Agent’s officer identified in Section  10.1 has actual knowledge of the existence of any such writs, order or decrees if allowed by applicable law; provided that the Escrow Agent shall not be liable to any Party for any failure to give such notice.
10.18 Information . The Parties authorize the Escrow Agent to disclose information with respect to this Agreement and the Escrow Account(s) established hereunder, the Parties, or any transaction hereunder if such disclosure is: (i) necessary or desirable, in the Escrow Agent’s reasonable opinion, for the purpose of allowing the Escrow Agent to perform its duties and to exercise its powers and rights hereunder; (ii) to a proposed assignee of the rights of the Escrow Agent permitted hereunder or for compliance with legal, tax and regulatory requirements, including, without limitation, FATCA; (iii) to a branch, affiliate, subsidiary, employee or agent of the Escrow Agent or to their auditors, regulators or legal advisers or to any competent court; (iv) to the auditors of any of the Parties; or (v) required by applicable law, regardless of whether the disclosure is made in the country in which each Party resides, in which the Escrow Account is maintained, or in which the transaction is conducted. The Parties agree that such disclosures by the Escrow Agent and its affiliates may be transmitted across national boundaries and through networks, including those owned by third parties.
10.19 Miscellaneous . No party to this Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Agreement because of, acts of God, fire, war, terrorism, floods, strikes, electrical outages, equipment or transmission failure, or other causes reasonably beyond its control. Neither this Agreement nor any right or interest hereunder may be assigned by any party hereto without the prior written consent of the Escrow Agent and the other Parties. The Parties each represent, warrant and covenant that (i) each document, notice, instruction or request provided by such Party to the Escrow Agent shall comply with applicable laws and regulations; (ii) such Party has full power and authority to enter into, execute and deliver this Agreement and to perform all of the duties and obligations to be performed by it hereunder; and (iii) the person(s) executing this Agreement on such Party’s behalf and certifying Authorized Representatives in the applicable Schedule 1 have been duly and properly authorized to do so, and each Authorized Representative of such Party has been duly and properly authorized to take the actions specified for such person in the applicable Schedule 1 .
[REMAINDER OF PAGE INTENTIONALLY BLANK]
 
20

IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be duly executed and delivered as of the date first above written.

The Company :	
	
AMNEAL PHARMACEUTICALS LLC	

By:	 	 	
	 	Name:	
	 	Title:	
[Signature Page to Escrow Agreement]

			
Administrative Agent :	
	
JPMORGAN CHASE BANK, N.A.	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
[Signature Page to Escrow Agreement]

			
Escrow Agent :	
	
JPMORGAN CHASE BANK, N.A.	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
[Signature Page to Escrow Agreement]

Schedule 1-A
SCHEDULE 1-A
Amneal Pharmaceuticals LLC
DESIGNATION OF AUTHORIZED
REPRESENTATIVES
The undersigned, being the duly elected, qualified and acting                                          of Amneal Pharmaceuticals LLC (“Company”), does hereby certify on behalf of the Company and not in the undersigned’s individual capacity and without any individual liability:
1. That each of the following persons is at the date hereof an Authorized Representative, as such term is defined in the Escrow Agreement, dated May 4, 2018, by and among Company, Administrative Agent and Escrow Agent (the “Escrow Agreement”), that the signature appearing opposite each person’s name is the true and genuine signature of such person, and that each person’s contact information is current and up-to-date at the date hereof. Each of the Authorized Representatives is authorized to issue instructions, confirm funds transfer instructions by callback and effect changes in Authorized Representatives, all in accordance with the terms of the Escrow Agreement. Callbacks or emails confirming an instruction shall be made to an Authorized Representative other than the Authorized Representative who issued the instruction unless (a) only a single Authorized Representative is designated below or (b) the information set forth below changes and is not updated by Company such that only the Authorized Representative who issued the instruction is available to receive a callback or email confirmation. Company acknowledges that pursuant to this Schedule, Escrow Agent is offering an option for callback or email confirmation to a different Authorized Representative, and if Company nevertheless names only a single Authorized Representative or fails to update Authorized Representative information, Company agrees to be bound by any instruction, whether or not authorized, confirmed by callback or email confirmation to the issuer of the instruction.

NAME	  	SIGNATURE	  	TELEPHONE & CELL NUMBERS	
 	  	 	  	 	
	  		  	(cell)____________________________	
	  		  		
	  		  	(email)___________________________	
 	  	 	  	 	
	  		  	(cell)____________________________	
	  		  		
	  		  	(email)___________________________	
 	  	 	  	 	
	  		  	(cell)____________________________	
	  		  		
	  		  	(email____________________________	
 
 	2.	Email confirmation is only permitted to a corporate email address for purposes of this Schedule. Any personal email addresses provided will not be used for email confirmation.	
 
 	3.	This Schedule may be signed in counterparts and the undersigned certifies that any signature set forth on an attachment to this Schedule is the true and genuine signature of an Authorized Representative and that each such Authorized Representative’s contact information is current and up-to-date at the date hereof.	
4. That pursuant to Company’s governing documents, as amended, the undersigned has the power and authority to execute this Designation on behalf of Company, and that the undersigned has so executed this Designation this              day of             , 2018.

			
	 	AMNEAL PHARMACEUTICALS LLC	
		
	 	By:                                                                                  	
	 	Name:	
	 	Title:	
FOR YOUR SECURITY, PLEASE CROSS OUT ALL UNUSED SIGNATURE LINES ON THIS SCHEDULE 1-A
All instructions, including but not limited to funds transfer instructions, whether transmitted by facsimile or set forth in a PDF attached to an email, must include the signature (or electronic signature subject to the conditions set forth in the Escrow Agreement) of the Authorized Representative authorizing said funds transfer on behalf of such Party.

Schedule 1-B
JPMorgan Chase Bank, N.A.
DESIGNATION OF AUTHORIZED
REPRESENTATIVES
The undersigned, being the duly elected, qualified and acting Chief Financial Officer and Treasurer of Amneal Pharmaceuticals LLC (“Company”), does hereby certify on behalf of the Company and not in the undersigned’s individual capacity and without any individual liability:
1. That each of the following persons is at the date hereof an Authorized Representative, as such term is defined in the Escrow Agreement, dated May 4, 2018, by and among Company, Administrative Agent and Escrow Agent (the “Escrow Agreement”), that the signature appearing opposite each person’s name is the true and genuine signature of such person, and that each person’s contact information is current and up-to-date at the date hereof. Each of the Authorized Representatives is authorized to issue instructions, confirm funds transfer instructions by callback and effect changes in Authorized Representatives, all in accordance with the terms of the Escrow Agreement. Callbacks or emails confirming an instruction shall be made to an Authorized Representative other than the Authorized Representative who issued the instruction unless (a) only a single Authorized Representative is designated below, (b) the information set forth below changes and is not updated by the Administrative Agent such that only the Authorized Representative who issued the instruction is available to receive a callback or email confirmation, or (c) the Administrative Agent is an individual. The Administrative Agent acknowledges that pursuant to this Schedule, Escrow Agent is offering an option for callback or email confirmation to a different Authorized Representative, and if the Administrative Agent nevertheless names only a single Authorized Representative or fails to update Authorized Representative information, the Administrative Agent agrees to be bound by any instruction, whether or not authorized, confirmed by callback or email confirmation to the issuer of the instruction.

NAME	  	SIGNATURE	  	TELEPHONE & CELL
NUMBERS	
			
Chad Winters	  	 	  	732-595-4610 (office)	
	  		  	267-251-8795 (mobile) chad.winters@impaxlabs.com	
			
Linda Williams	  	 	  	215-558-4376 (office)	
	  		  	484-919-5338 (cell) linda.williams@impaxlabs.com	
 
 	1.	Email confirmation is only permitted to a corporate email address for purposes of this Schedule. Any personal email addresses provided will not be used for email confirmation.	
 
 	2.	This Schedule may be signed in counterparts and the undersigned certifies that any signature set forth on an attachment to this Schedule is the true and genuine signature of an Authorized Representative and that each such Authorized Representative’s contact information is current and up-to-date at the date hereof.	
3. That pursuant to Administrative Agent’s governing documents, as amended, the undersigned has the power and authority to execute this Designation on behalf of Administrative Agent, and that the undersigned has so executed this Designation this              day of May, 2018.

	
AMNEAL PHARMACEUTICALS LLC	
	
By:                                                                                                   	
Name: James Mastakas	
Title: Chief Financial Officer and Treasurer	
FOR YOUR SECURITY, PLEASE CROSS OUT ALL UNUSED SIGNATURE LINES ON THIS SCHEDULE 1-B
All instructions, including but not limited to funds transfer instructions, whether transmitted by facsimile or set forth in a PDF attached to an email, must include the signature (or electronic signature subject to the conditions set forth in the Escrow Agreement) of the Authorized Representative authorizing said funds transfer on behalf of such Party.

SCHEDULE 2
J.P.Morgan
Based upon our current understanding of your proposed transaction, our fee proposal is as follows:
Account Acceptance Fee                                                                              WAIVED
Encompassing review, negotiation and execution of governing documentation, opening of the account, and completion of all due diligence documentation. Payable upon closing.
One Time Fee                                                                      WAIVED
The One Time Fee covers our usual and customary ministerial duties, including record keeping, distributions, document compliance and such other duties and responsibilities expressly set forth in the governing documents for each transaction. Payable upon or promptly after closing.
Extraordinary Services and Out-of-Pocket Expenses
Any additional services beyond our standard services as specified above, and all reasonable out-of-pocket expenses including attorney’s or accountant’s fees and expenses will be considered extraordinary services for which related costs, transaction charges, and additional fees will be billed at the Escrow Agent’s then standard rate. Disbursements, receipts, investments or tax reporting exceeding 25 items per year may be treated as extraordinary services thereby incurring additional charges . The Escrow Agent may impose, charge, pass-through and modify fees and/or charges for any account established and services provided by the Escrow Agent, including but not limited to, transaction, maintenance, balance-deficiency, and service fees, agency or trade execution fees, and other charges, including those levied by any governmental authority.
Fee Disclosure  & Assumptions : Please note that the fees quoted are based on a review of the transaction documents provided and an internal due diligence review. The Escrow Agent reserves the right to revise, modify, change and supplement the fees quoted herein if the assumptions underlying the activity in the account, level of balances, market volatility or other factors change from those used to set the fees described herein. Payment of the invoice is due upon receipt
The Escrow Deposit Amount shall be continuously invested in a JPMorgan Chase Bank money market deposit account (“MMDA”). MMDA have rates of interest or compensation that may vary from time to time as determined by the Escrow Agent.
Disclosures and Agreements
Representations Relating to Section 15B of the Securities Exchange Act of 1934 (Rule 15Ba1-1 et seq.) (the “Municipal Advisor Rule”). Each Party represents and warrants to the Escrow Agent that for purposes of the Municipal Advisor Rules, none of the funds (if any) currently invested, or that will be invested in the future, in money market funds, commercial paper or treasury bills under this Agreement constitute or contain (i) proceeds of municipal securities (including investment income therefrom and monies pledged or otherwise legally dedicated to serve as collateral or a source or repayment for such securities) or (ii) municipal escrow investments (as each such term is defined in the Municipal Advisor Rule). Each Party also represents and warrants to the Escrow Agent that the person providing this certification has access to the appropriate information or has direct knowledge of the source of the funds to be invested to enable the forgoing representation to be made. Further, each Party acknowledges that the Escrow Agent will rely on this representation until notified in writing otherwise.
Patriot Act Disclosure. Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”) requires Escrow Agent to implement reasonable procedures to verify the identity of any person that opens a new account with it. Accordingly, you acknowledge that Section 326 of the USA PATRIOT Act and Escrow Agent’s identity verification procedures require Escrow Agent to obtain information which may be used to confirm your identity including without limitation name, address and organizational documents (“identifying information”).

You agree to provide Escrow Agent with and consent to Escrow Agent obtaining from third parties any such identifying information required as a condition of opening an account with or using any service provided by the Escrow Agent.
OFAC Disclosure . Escrow Agent is required to act in accordance with the laws and regulations of various jurisdictions relating to the prevention of money laundering and the implementation of sanctions, including but not limited to regulations issued by the U.S. Office of Foreign Assets Control. Escrow Agent is not obligated to execute payment orders or effect any other transaction where the beneficiary or other payee is a person or entity with whom the Escrow Agent is prohibited from doing business by any law or regulation applicable to Escrow Agent, or in any case where compliance would, in Escrow Agent’s opinion, conflict with applicable law or banking practice or its own policies and procedures. Where Escrow Agent does not execute a payment order or effect a transaction for such reasons, Escrow Agent may take any action required by any law or regulation applicable to Escrow Agent including, without limitation, freezing or blocking funds. Transaction screening may result in delays in the posting of transactions.
Abandoned Property . Escrow Agent is required to act in accordance with the laws and regulations of various states relating to abandoned property and, accordingly, shall be entitled to remit dormant funds to any state as abandoned property in accordance with such laws and regulations. Without limitation of the foregoing, notwithstanding any instruction to the contrary, Escrow Agent shall not be liable to any Party for any amount disbursed from an account maintained under this Agreement to a governmental entity or public official in compliance with any applicable abandoned property, escheatment or similar law.
Foreign Exchange. If Escrow Agent accepts a funds transfer instruction under this Agreement for payment in a currency (the “Non-Account Currency”) other than the currency of the account (the “Account Currency”), Escrow Agent is authorized to enter into a foreign exchange transaction to sell to the Party or Parties the amount of Non-Account Currency required to complete the funds transfer and debit the account for the purchase price of the Non-Account Currency. If Escrow Agent accepts payment to the account in a Non-Account Currency, Escrow Agent is authorized to purchase the Non-Account Currency from the Party or Parties, and to credit the purchase price to the account in lieu of the Non-Account Currency. The purchase price for the foregoing transactions shall be at a rate and spread as Escrow Agent determines in its discretion and may differ from rates at which comparable transactions are entered into with other customers or the range of foreign exchange rates at which Escrow Agent otherwise enters into foreign exchange transactions on the relevant date. Further, (i) Escrow Agent has full discretion to execute such foreign exchange transactions in such manner as Escrow Agent determines in its sole discretion and (ii) Escrow Agent may manage the associated risks of Escrow Agent’s own position in the market in a manner it deems appropriate without regard to the impact of such activities on the Parties. Imbedded within the applicable foreign exchange rate or otherwise generated in connection with Escrow Agent’s execution of any such transaction or management of its risk related thereto may be a profit to Escrow Agent. Any such foreign exchange transaction will be between Escrow Agent and a Party or Parties as principals, and Escrow Agent will not be acting as agent or fiduciary for the Parties .
Acknowledgment of Compensation and Multiple Roles. Escrow Agent is authorized to act under this Agreement notwithstanding that Escrow Agent or any of its subsidiaries or affiliates (such subsidiaries and affiliates hereafter individually called an “Affiliate” and collectively called “Affiliates”) may (A) receive fees or derive earnings (float) as a result of providing an investment product or account on the books of Escrow Agent pursuant to this Agreement or for providing services or referrals with respect to investment products, or (B) (i) act in the same transaction in multiple capacities, (ii) engage in other transactions or relationships with the same entities to which Escrow Agent may be providing escrow or other services under this Agreement (iii) refer clients to an Affiliate for services or (iv) enter into agreements under which referrals of escrow or related transactions are provided to Escrow Agent. JPMorgan Chase Bank, N.A. may earn compensation from any of these activities in addition to the fees charged for services under this Agreement.
THE FOLLOWING DISCLOSURES ARE REQUIRED TO BE PROVIDED UNDER APPLICABLE U.S. REGULATIONS, INCLUDING, BUT NOT LIMITED TO, FEDERAL RESERVE REGULATION D. WHERE SPECIFIC INVESTMENTS ARE NOTED BELOW, THE DISCLOSURES APPLY ONLY TO THOSE INVESTMENTS AND NOT TO ANY OTHER INVESTMENT.
Demand Deposit Account Disclosure . Escrow Agent is authorized, for regulatory reporting and internal accounting purposes, to divide an escrow demand deposit account maintained in the U.S. in which the Escrow Deposit and the Interest Amount is held into a non-interest bearing demand deposit internal account and a non-interest bearing savings internal account, and to transfer funds on a daily basis between these internal accounts on Escrow Agent’s general ledger in accordance with U.S. law at no cost to the Parties. Escrow Agent will record the internal accounts and any transfers between them on Escrow Agent’s books and records only. The internal accounts and any transfers between them will not affect the Escrow Deposit or the Interest Amount, any investment or disposition of the Escrow Deposit or the Interest Amount, use of the escrow demand deposit account or any other activities under this Agreement, except as described herein. Escrow Agent will establish a target balance for the demand deposit internal account, which may change at any time. To the extent funds in the demand deposit internal account exceed the target balance, the excess will be transferred to the savings internal account, unless the maximum number of transfers from the savings

internal account for that calendar month or statement cycle has already occurred. If withdrawals from the demand deposit internal account exceeds the available balance in the demand deposit internal account, funds from the savings internal account will be transferred to the demand deposit internal account up to the entire balance of available funds in the savings internal account to cover the shortfall and to replenish any target balance that Escrow Agent has established for the demand deposit internal account. If a sixth transfer is needed during a calendar month or statement cycle, it will be for the entire balance in the savings internal account, and such funds will remain in the demand deposit internal account for the remainder of the calendar month or statement cycle.
MMDA Disclosure and Agreement . If MMDA is the investment for the escrow deposit as set forth above or anytime in the future, you acknowledge and agree that U.S. law limits the number of pre-authorized or automatic transfers or withdrawals or telephonic/electronic instructions that can be made from an MMDA to a total of six (6) per calendar month or statement cycle or similar period. Escrow Agent is required by U.S. law to reserve the right to require at least seven (7) days notice prior to a withdrawal from a money market deposit account.
Unlawful Internet Gambling . The use of any account to conduct transactions (including, without limitation, the acceptance or receipt of funds through an electronic funds transfer, or by check, draft or similar instrument, or the proceeds of any of the foregoing) that are related, directly or indirectly, to unlawful Internet gambling is strictly prohibited.
Use of Electronic Records and Signatures. As used in this Agreement, the terms “writing” and “written” include electronic records, and the terms “execute”, “signed” and “signature” include the use of electronic signatures. Notwithstanding any other provision of this Agreement or the attached Exhibits, any electronic signature that is presented as the signature of the purported signer, regardless of the appearance or form of such electronic signature, may be deemed genuine by Escrow Agent in Escrow Agent’s sole discretion, and such electronic signature shall be of the same legal effect, validity and enforceability as a manually executed, original, wet-inked signature; provided, however, that any such electronic signature must be an actual and not a typed signature. Any electronically signed agreement shall be an “electronic record” established in the ordinary course of business and any copy shall constitute an original for all purposes. The terms “electronic signature” and “electronic record” shall have the meanings ascribed to them in 15 USC § 7005. This Agreement and any instruction or other document furnished hereunder may be transmitted by facsimile or as a PDF file attached to an email.

FORM OF OFFICER’S CERTIFICATE
of
AMNEAL PHARMACEUTICALS LLC
This certificate is being delivered pursuant to Section  5(a) of the Escrow Agreement, dated as of May 4, 2018 (the “ Escrow Agreement ”), by and among Amneal Pharmaceuticals LLC, a Delaware limited liability company, as the Company, JPMorgan Chase Bank, N.A., as the Administrative Agent, and JPMorgan Chase Bank, N.A., as the Escrow Agent. Capitalized terms used but not defined herein have the respective meanings specified in the Escrow Agreement (including those terms defined by reference to the Credit Agreement referred to therein).
[1.] The Company hereby instructs the Escrow Agent to release $[    ] of the Escrowed Funds, representing the Specified Tender Offer Settlement Amount, on [    ], 2018, as directed below. The Company hereby certifies to the Escrow Agent through the undersigned officer, in its capacity as such and not in its individual capacity, that, on the date hereof, (a) the requested release date is the date of settlement of the Specified Tender Offer, (b) the Specified Tender Offer Settlement Amount is $[    ], (c) the Specified Tender Offer Settlement Amount will be utilized solely for purposes of repurchasing any Impax Convertible Notes tendered pursuant to the Specified Tender Offer on the Special Mandatory Prepayment Date, (d) the requested release of the Specified Tender Offer Settlement Amount is permitted pursuant to the terms of the Credit Agreement and (e) a copy of this certificate has been (or will be substantially contemporaneously) delivered to the Administrative Agent.
The Company hereby directs the Escrow Agent to disburse the Specified Tender Offer Settlement Amount to the following account by wire transfer of immediately available funds:
Account Name: [•]
Bank Name: [•]
Bank Address: [ ]
ABA Number: [•]
Account Number: [•]
If Applicable:
FFC A/C Name:
FFC A/C #:
FFC A/C Address:
[2. The Company hereby instructs the Escrow Agent to release $[    ] of the Escrowed Funds, representing the Special Mandatory Prepayment Amount, to the following account of the Administrative Agent by wire transfer of immediately available funds:
Account Name: [•]
Bank Name: [•]
Bank Address: [ ]
ABA Number: [•]
Account Number: [•]
 
[Officer’s Certificate]

If Applicable:
FFC A/C Name:
FFC A/C #:
FFC A/C Address: ] 1
[remainder of page left blank]
IN WITNESS WHEREOF, the Company, through its undersigned officer, has signed this Officer’s Certificate as of the date first above written.

AMNEAL PHARMACEUTICALS LLC	

By:	 	 	
	 	Name:	
	 	Title:	

1	To be included only if the Specified Tender Offer Settlement Amount is less than the Escrow Deposit Amount.	

Exhibit B
[to be placed on Administrative Agent’s Letterhead]
FORM OF SPECIAL MANDATORY PREPAYMENT NOTICE
                                                                       2018
VIA FACSIMILE OR EMAILED PDF
JPMorgan Chase Bank, N.A
Escrow Services
4 New York Plaza, 11 th Floor
New York, NY 10004
Attention: Rola Tseng-Pappalardo/Joan King-Francois
Facsimile No.: 212.552.2812
Email Address: ec.escrow@jpmorgan.com
[Name and Address of Other Party]
Re: Escrow Agreement dated as of May 4, 2018 (the “Escrow Agreement”) by and among Amneal Pharmaceuticals LLC, as Company, JPMorgan Chase Bank, N.A., as Administrative Agent, and JPMorgan Chase Bank, N.A., as Escrow Agent and Bank, relating to Account No.                                     
Dear Sir/Madam:
We refer to the Escrow Agreement described above. Capitalized terms in this letter that are not otherwise defined shall have their meanings set forth in the Escrow Agreement.
The Administrative Agent hereby instructs the Escrow Agent to release $[    ] of the Escrowed Funds on [    ], 2018 to the following account by wire transfer of immediately available funds, for application pursuant to Section 2.08(3) of the Credit Agreement:
Credit Account Name: [•]
Bank Name: [•]
Bank Address: [ ]
ABA Number: [•]
Credit A/C#: [•]
 
Exhibit B-I

If Applicable:
FFC A/C Name:
FFC A/C #:
FFC A/C Address:
The Administrative Agent hereby certifies to the Escrow Agent that this notice was delivered to the Company.
 
Exhibit B-II

			
JPMorgan Chase Bank, N.A., as Administrative	
Agent	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
[Special Mandatory Prepayment Notice]

Exhibit C
[to be placed on Administrative Agent’s Letterhead]
ADMINISTRATIVE AGENT OBJECTION CERTIFICATE
___                                                               2018
VIA FACSIMILE OR EMAILED PDF
JPMorgan Chase Bank, N.A
Escrow Services,
4 New York Plaza, 11 th Floor
New York, NY 10004
Attn: Rola Tseng-Pappalardo/Joan King-Francois
Facsimile No.: 212.552.2812
Email Address: ec.escrow@jpmorgan.com
[Name and Address of Other Party]
Re: Escrow Agreement dated as of May 4, 2018 (the “Escrow Agreement”) among Amneal Pharmaceuticals LLC, as Company, JPMorgan Chase Bank, N.A., as Administrative Agent, and JPMorgan Chase Bank, N.A., as Escrow Agent and Bank, relating to Account No.                                     
Capitalized terms in this letter that are not otherwise defined shall have their meanings set forth in the Escrow Agreement.
Administrative Agent hereby objects to the Officer’s Certificate delivered by the Company to Escrow Agent dated                     , and has reasonably concluded that the Company was not entitled to deliver such Officer’s Certificate, and requests that the amount of such request not be disbursed.
Administrative Agent hereby certifies to Escrow Agent that this notice was delivered to Company.
 
Exhibit C-I

			
JPMorgan Chase Bank, N.A., as Administrative	
Agent	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
[Administrative Agent Objection Certificate]

Exhibit D
[to be placed on Admin Agent’s Letterhead]
NOTICE OF EXCLUSIVE CONTROL
_____________________________2018
VIA FACSIMILE OR EMAILED PDF
JPMorgan Chase Bank, N.A
Escrow Services,
4 New York Plaza, 11 th Floor
New York, NY 10004
Attn: Rola Tseng-Pappalardo/Joan King-Francois
Facsimile No.: 212.552.2812
Email Address: ec.escrow@jpmorgan.com
[Name and Address of Other Party]
Re: Escrow Agreement dated as of May 4, 2018 (the “Escrow Agreement”) among Amneal Pharmaceuticals LLC, as Company, JPMorgan Chase Bank, N.A., as Administrative Agent, and JPMorgan Chase Bank, N.A., as Escrow Agent and Bank, relating to Account No.________________
Ladies and Gentlemen:
This constitutes the Notice of Exclusive Control of the Escrow Account referred to in the above referenced Agreement.
 
Exhibit D-I

			
JPMorgan Chase Bank, N.A., as Administrative	
Agent	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
[Notice of Exclusive Control]

Schedule 2.01
Commitments

Lender:	  	Term Loan Commitments:	 	
JPMorgan Chase Bank, N.A.	  	$	2,700,000,000	 	
	  	 	 	 	
Total:	  	$	2,700,000,000	 	

Schedule 3.06
Subsidiaries

Owner	  	Subsidiary	  	Type of
Organization	  	Jurisdiction of
Organization /
Formation	  	% of
Equity
Interests
Owned	 	
AMNEAL PHARMACEUTICALS LLC	  	UK Holding Company Limited	  	Private Company Limited By Shares	  	England and Wales	  	 	100%	 	
					
AMNEAL PHARMACEUTICALS LLC	  	AMNEAL PHARMACEUTICALS OF NEW YORK, LLC	  	Limited Liability Company	  	Delaware	  	 	100%	 	
					
AMNEAL PHARMACEUTICALS LLC	  	Amneal Biosciences LLC	  	Limited Liability Company	  	Delaware	  	 	100%	 	
					
AMNEAL PHARMACEUTICALS LLC	  	Amneal-Agila, LLC	  	Limited Liability Company	  	Delaware	  	 	100%	 	
					
AMNEAL PHARMACEUTICALS LLC	  	Impax Laboratories, LLC	  	Limited Liability Company	  	Delaware	  	 	100%	 	
					
AMNEAL PHARMACEUTICALS LLC	  	Amneal Pharmaceuticals Dutch Holding Company, LLC	  	Limited Liability Company	  	Delaware	  	 	100%	 	
					
AMNEAL PHARMACEUTICALS LLC	  	Amneal Pharmaceuticals Holding Cooperatief U.A.	  	Cooperative	  	Netherlands	  	 	99%	 	
					
Amneal Pharmaceuticals Dutch Holding Company, LLC	  	Amneal Pharmaceuticals Holding Cooperatief U.A.	  	Cooperative	  	Netherlands	  	 	1%	 	
					
UK Holding Company Limited	  	Amneal Pharma Holding GmbH	  	Gesellschaft mit beschränkter Haftung	  	Switzerland	  	 	100%	 	

											
Owner	  	Subsidiary	  	Type of
Organization	  	Jurisdiction of
Organization /
Formation	  	% of
Equity
Interests
Owned	 	
Amneal Pharma Holding GmbH	  	Bioeq Pharma GmbH	  	Gesellschaft mit beschränkter Haftung	  	Germany	  	 	100%	 	
					
Amneal Pharma Holding GmbH	  	Amneal Singapore	  	Private Company With Limited Liability	  	Singapore	  	 	100%	 	
					
Amneal Pharma Holding GmbH	  	Amneal Netherlands BV	  	Besloten Vennootschap	  	Netherlands	  	 	100%	 	
					
Amneal Pharma Holding GmbH	  	Amneal Pharma Co GmbH	  	Gesellschaft mit beschränkter Haftung	  	Switzerland	  	 	100%	 	
					
Amneal Pharma Holding GmbH	  	Amneal Ireland Ltd.	  	Private Company Limited By Shares	  	Ireland	  	 	100%	 	
					
Amneal Pharma Holding GmbH	  	Amneal Pharma UK Holdings Ltd.	  	Private Company Limited By Shares	  	England and Wales	  	 	60%	 	
					
Bioeq Pharma GmbH	  	Amneal Deutschland GmbH	  	Gesellschaft mit beschränkter Haftung	  	Germany	  	 	100%	 	
					
Amneal Singapore	  	RAKS Pharma Pvt Ltd.	  	Private Limited Company	  	India	  	 	100%	 	
					
Amneal Singapore	  	Amneal Pharmaceuticals Co.	  	Private Limited Company	  	India	  	 	100%	 	
					
Amneal Pharma Co GmbH	  	Amneal Pharma Europe Ltd.	  	Private Company Limited By Shares	  	Ireland	  	 	100%	 	
 
3

											
Owner	  	Subsidiary	  	Type of
Organization	  	Jurisdiction of
Organization /
Formation	  	% of
Equity
Interests
Owned	 	
Amneal Pharma UK Holdings Ltd.	  	Creo Pharma Holdings Ltd	  	Private Company Limited By Shares	  	England and Wales	  	 	100%	 	
					
Amneal Pharmaceuticals Co	  	Amneal Oncology Pvt Ltd.	  	Private Limited Company	  	India	  	 	100%	 	
					
Creo Pharma Holdings Ltd	  	Creo Pharma Ltd	  	Private Company Limited By Shares	  	England and Wales	  	 	100%	 	
					
Impax Laboratories, LLC	  	Impax Laboratories USA, LLC	  	Limited Liability Company	  	California	  	 	100%	 	
					
Impax Laboratories, LLC	  	Prohealth Biotech, Inc.	  	Corporation	  	Taiwan	  	 	100%	 	
					
Impax Laboratories, LLC	  	Mountain, LLC	  	Limited Liability Company	  	Delaware	  	 	100%	 	
					
Impax Laboratories, LLC	  	Trail Services, LLC	  	Limited Liability Company	  	Delaware	  	 	100%	 	
					
Impax Laboratories, LLC	  	Amedra Pharmaceuticals LLC	  	Limited Liability Company	  	Delaware	  	 	100%	 	
					
Impax Laboratories, LLC	  	Impax Laboratories Ireland Limited	  	Private Company Limited By Shares	  	Ireland	  	 	100%	 	
					
Impax Laboratories Ireland Limited	  	Impax Holdings LLC	  	Limited Liability Company	  	Delaware	  	 	100%	 	
					
Impax Laboratories Ireland Limited	  	Impax Laboratories (Netherlands) CV	  	Commanditaire Vennootschap	  	Netherlands	  	 	99.99%	 	
					
Impax Holdings LLC	  	Impax Laboratories (Netherlands) CV	  	Commanditaire Vennootschap	  	Netherlands	  	 	0.01%	 	
 
4

Schedule 3.11
Taxes
None.

Schedule 3.13
Environmental Matters
None.

Schedule 3.15(1)
Owned Material Real Property

 	  	Grantor	  	Address/City/State/Zip Code	  	County	  	State	
1.	  	Impax Laboratories, LLC	  	30831 Huntwood Ave., Hayward, CA, 94544	  	Alameda	  	CA	
					
2.	  	Impax Laboratories, LLC	  	31145 San Antonio St., Hayward, CA, 94544	  	Alameda	  	CA	
					
3.	  	Impax Laboratories, LLC	  	31153 San Antonio St., Hayward, CA, 94544	  	Alameda	  	CA	
					
4.	  	Impax Laboratories, LLC	  	1490 Crocker Ave., Hayward, CA, 94544	  	Alameda	  	CA	

Schedule 3.15(2)
Leased Material Real Property

 	  	Grantor	  	Address/City/State/Zip Code	  	County	  	State	
1.	  	AMNEAL PHARMACEUTICALS LLC	  	118 Beaver Trail, Glasgow, KY 42141	  	Barren	  	KY	
					
2.	  	AMNEAL PHARMACEUTICALS LLC	  	40 Aberdeen Drive, Glasgow, KY 42141	  	Barren	  	KY	
					
3.	  	AMNEAL PHARMACEUTICALS LLC	  	39–49 Colonial Drive, Piscataway, NJ 08854	  	Middlesex	  	NJ	
					
4.	  	AMNEAL PHARMACEUTICALS LLC	  	One New England Ave., Piscataway, NJ 08854	  	Middlesex	  	NJ	
					
5.	  	AMNEAL PHARMACEUTICALS LLC	  	1 Murray Road, East Hanover, NJ 07936	  	Morris	  	NJ	
					
6.	  	AMNEAL PHARMACEUTICALS LLC	  	1041 U.S. Highway 202/206 Building J, Bridgewater, NJ 08807	  	Somerset	  	NJ	
					
7.	  	AMNEAL PHARMACEUTICALS LLC	  	131 Chambers Brook Road & 65 Readington Road, Branchburg, NJ 08876	  	Somerset	  	NJ	
					
8.	  	AMNEAL PHARMACEUTICALS LLC	  	19 Readington Road, Branchburg, NJ 08876	  	Somerset	  	NJ	
					
9.	  	AMNEAL PHARMACEUTICALS LLC	  	20 New England Avenue, Piscataway, NJ 08854	  	Middlesex	  	NJ	
					
10.	  	AMNEAL PHARMACEUTICALS LLC	  	21 Colonial Drive, Piscataway, NJ 08854	  	Middlesex	  	NJ	
					
11.	  	AMNEAL PHARMACEUTICALS LLC	  	400 Crossing Boulevard, Suite 300, Bridgewater, NJ 08807	  	Somerset	  	NJ	
					
12.	  	AMNEAL PHARMACEUTICALS LLC	  	400 Crossing Boulevard, Bridgewater, NJ 08807	  	Somerset	  	NJ	
					
13.	  	AMNEAL PHARMACEUTICALS LLC	  	209 Mclean Boulevard, Paterson, NJ 07504	  	Passaic	  	NJ	
					
14.	  	AMNEAL PHARMACEUTICALS LLC	  	360 Moreland Road, Commack, NY 11725	  	Suffolk	  	NY	

									
 	  	Grantor	  	Address/City/State/Zip Code	  	County	  	State	
15.	  	AMNEAL PHARMACEUTICALS LLC	  	280 Newport Center Drive, Newport Beach, CA 92660	  	Orange	  	CA	
					
16.	  	AMNEAL PHARMACEUTICALS LLC	  	1045 Centennial Avenue, Piscataway, NJ 08854	  	Middlesex	  	NJ	
					
17.	  	AMNEAL PHARMACEUTICALS OF NEW YORK, LLC	  	50 Horseblock, Yaphank, NY 11980	  	Suffolk	  	NY	
					
18.	  	AMNEAL PHARMACEUTICALS OF NEW YORK, LLC	  	75 Adams Avenue, Hauppauge, NY 11788	  	Suffolk	  	NY	
					
19.	  	Impax Laboratories, LLC	  	1502 Crocker Ave., Hayward, CA 94544	  	Alameda	  	CA	
					
20.	  	Impax Laboratories, LLC	  	30941	  	Alameda	  	CA	
	  		  	San Clemente St., Hayward, CA 94544	  		  		
					
21.	  	Impax Laboratories, LLC	  	31047 Genstar Rd., Hayward, CA 94544	  	Alameda	  	CA	
					
22.	  	Impax Laboratories, LLC	  	1837 Whipple Rd., Hayward, CA 94544	  	Alameda	  	CA	
					
23.	  	Impax Laboratories, LLC	  	31387 Medallion Dr., Hayward, CA 94544	  	Alameda	  	CA	
					
24.	  	Impax Laboratories, LLC	  	100 Somerset Corporate Blvd., Somerset Corporate Center, Building I Bridgewater, NJ 08807	  	Somerset	  	NJ	
					
25.	  	Impax Laboratories, LLC	  	31780 Hayman Street, Hayward, CA 94544	  	Alameda	  	CA	
					
26.	  	Impax Laboratories, LLC	  	602 Office Center Drive, Fort Washington, PA 19034	  	Montgomery	  	PA	
 
9

Schedule 3.18
Insurance
AMNEAL PHARMACEUTICALS LLC Insurance Information

Line of Coverage	  	Carrier	  	Policy Number	  	Policy Term	
	  	Products Liability	  		
				
Products Liability	  	Federal Insurance Company (Chubb)	  	3587-55-30	  	8/1/2017 – 8/1/2018	
				
India – Products/HCT	  	Chubb	  	92923152	  	8/1/2017 – 8/1/2018	
				
Excess Products Liability	  	Ironshore Specialty Insurance Co. (AJ Renner)	  	001056406	  	8/1/2017 – 8/1/2018	
				
Excess Products Liability	  	Columbia Casualty Company (CNA)	  	ADE 4031975349	  	8/1/2017 – 8/1/2018	
				
Excess Products Liability	  	Llyods (Life Science Risk)	  	LSR-XS-00256-17	  	8/1/2017 – 8/1/2018	
				
Excess Products Liability	  	National Fire & Marine / Berkshire Hathaway	  	42-XSF-301436-03	  	8/1/2017 – 8/1/2018	
			
	  	Property and Cargo	  		
				
Commercial Property	  	Great Northern Insurance	  	3589-58-53	  	8/1/2017 – 8/1/2018	
Coverage	  	Company (Chubb)	  		  		
				
Spain – Property	  	Chubb	  	33220474	  	8/1/2017 – 8/1/2018	
				
Switzerland – Property	  	Chubb	  	33220474	  	8/1/2017 – 8/1/2018	
				
Cargo	  	Llyod’s of London	  	MARCW1700186	  	8/1/2017 – 8/1/2018	
				
Cargo	  	Llyod’s of London	  	MARCW1700188	  	8/1/2017 – 8/1/2018	
			
	  	Management Liability	  		
				
Directors & Officers / Employment Practices	  	U.S. Specialty Insurance Co. (HCC Global)	  	14-MGU-17-A40834	  	8/1/2017 – 8/1/2018	
				
Ireland Local D&O Policy	  	HCC Int’l Ins. Co. Plc (HCCI)	  	16G132240100	  	8/1/2017 – 8/1/2018	
				
Australia	  	HCC Int’l Ins. Co	  	16G151290100	  	8/1/2017 – 8/1/2018	
				
Switzerland	  	HCC Int’l Ins. Co	  	16G143340100	  	8/1/2017 – 8/1/2018	
				
Fiduciary Liability	  	Chubb	  		  	8/1/2017 – 8/1/2018	
				
Employed Lawyers	  	Federal Insurance Co.	  	8225-4108	  	8/1/2017 – 8/1/2018	
				
Crime	  	Chubb Ins. Co. of NJ	  	8225-4107	  	8/1/2017 – 8/1/2018	
				
Special Crime	  	Chubb Ins. Co. of NJ	  	8225-4107	  	8/1/2017 – 8/1/2018	
			
	  	Primary and Excess Casualty	  		
				
General Liability Coverage	  	Great Northern Insurance Company (Chubb)	  	3589-58-53	  	8/1/2017 – 8/1/2018	
				
Business Auto Coverage	  	Travelers Indemnity Co. of America	  	HE-CAP 1D751229 IND 17	  	8/1/2017 – 8/1/2018	
				
Workers Compensation & Employers Liability	  	Charter Oak Fire Insurance Co. (Travelers)	  	HC20-UB 162D6142 17	  	8/1/2017 – 8/1/2018	
				
Lead Umbrella Liability	  	Chubb Insurance Company of New Jersey	  	7986-82-14	  	8/1/2017 – 8/1/2018	
				
Excess Umbrella Liability	  	Navigators Insurance Co.	  	NY17FXR712189IV	  	8/1/2017 – 8/1/2018	
				
Foreign / Exporters Package (included in Domestic Package)	  	Great Northern Insurance Company (Chubb)	  	3589-58-53	  	8/1/2017 – 8/1/2018	
				
India – General Liability (Locally Admitted Policy)	  	Chubb	  	92923151	  	8/1/2017 – 8/1/2018	
				
Spain – General Liability (Locally Admitted Policy)	  	Chubb	  	27341587	  	8/1/2017 – 8/1/2018	
				
Switzerland – General Liability	  	Chubb	  	33228970	  	8/1/2017 – 8/1/2018	
				
UK – Package	  	Chubb	  		  	8/1/2017 – 8/1/2018	
				
Ireland – Package	  	Chubb	  	36033648	  	8/1/2017 – 8/1/2018	
				
Pollution	  	Illinois Union Insurance Co. (ACE)	  	PPL G27169296-001	  	8/1/2017 – 8/1/2018	
				
Surety Bond – Nevada State Board of Pharmacy	  	Fidelity & Deposit Company of Maryland	  	[Various Policy Numbers]	  	[Various Policy Numbers]	

Impax Laboratories, LLC Insurance Information

Line of Coverage	  	Carrier	  	Policy Number	  	Policy Term	
	  	Products Liability	  		
				
Primary Products Liability	  	Berkshire Hathaway Specialty	  	42-PCL-302802-02	  	8/1/2017-8/1/2018	
				
Excess Products Liability	  	Ironshore	  	437407	  	8/1/2017-8/1/2018	
				
Excess Products Liability	  	Chubb Custom	  	7996-52-33	  	8/1/2017-8/1/2018	
				
Excess Products Liability	  	Life Science Risk (Lloyds)	  	LSR-XS-00272-17	  	8/1/2017-8/1/2018	
				
Excess Products Liability	  	Navigators	  	PH17LEX611141NV	  	8/1/2017-8/1/2018	
				
Products Recall	  	Liberty Surplus Insurance Company	  	GCM20004090 117	  	8/1/2017-8/1/2018	
				
Excess Products Recall	  	Crum & Forster Specialty Ins. Co.	  	RCE 102773	  	8/1/2017-8/1/2018	
				
Excess Products Recall	  	Berkeley Assurance	  	BGCP007702	  	8/1/2017-8/1/2018	
			
	  	Property and Marine Cargo	  		
				
Commercial Property Coverage	  	Zurich	  	PPR9261394-10	  	9/1/2017-8/1/2018	
				
Excess California Earthquake	  	Endurance	  	ESP30000448500	  	9/1/2017-9/1/2018	
				
Excess California Earthquake	  	Everest Indemnity	  	8400005377-171	  	9/1/2017-9/1/2018	
				
Excess California Earthquake	  	United Specialty	  	RDF100794	  	9/1/2017-9/1/2018	
				
Excess California Earthquake	  	Evanston	  	MKLV10XP002281	  	9/1/2017-9/1/2018	
				
Excess California Earthquake	  	United Specialty	  	RDF100792	  	9/1/2017-9/1/2018	
				
Excess California Earthquake	  	General Security Indemnity	  	TR0001486-03804-17	  	9/1/2017-9/1/2018	
				
Excess California Earthquake	  	Everest Indemnity	  	840005375-171	  	9/1/2017-9/1/2018	
				
Excess California Earthquake	  	United National	  	DIX0000275	  	9/1/2017-9/1/2018	
				
Ocean/Air Cargo - Marine	  	Falvey	  	MC-30185	  	8/1/2017-8/1/2018	
			
	  	Management Liability	  		
				
Primary Directors & Officers	  	National Union Fire Insurance Company of Pittsburg (AIG)	  	01-771-83-11	  	8/1/2017-8/1/2018	
				
Excess Directors & Officers	  	Endurance	  	DOX10009654201	  	8/1/2017-8/1/2018	
				
Excess Directors & Officers	  	XL Specialty	  	ELU151385-17	  	8/1/2017-8/1/2018	
 
11

							
				
Excess Directors & Officers	  	Argonaut	  	MLX 7602095-01	  	8/1/2017-8/1/2018	
				
Directors & Officers-Side A DIC	  	National Union Fire Insurance Company of Pittsburg (AIG)	  	01-773-13-01	  	8/1/2017-8/1/2018	
				
Employment Practices	  	Continental Casualty Company (CNA)	  	596475906	  	8/1/2017-8/1/2018	
				
Fiduciary Liability	  	National Union Fire Insurance Company of Pittsburg (AIG)	  	01-767-84-16	  	8/1/2017-8/1/2018	
				
Primary Crime	  	National Union Fire Insurance Company of Pittsburg (AIG)	  	01-767-84-15	  	8/1/2017-8/1/2018	
				
Excess Crime	  	ACE American Insurance Company (Chubb)	  	DOX G23684494 004	  	8/1/2017-8/1/2018	
			
	  	Primary and Excess Casualty	  		
				
General Liability Coverage	  	Great Northern Insurance Company (Chubb)	  	3598-32-17	  	8/1/2017-8/1/2018	
				
Business Auto Coverage	  	Great Northern Insurance Company (Chubb)	  	9949-99-05	  	8/1/2017-8/1/2018	
				
Workers Compensation	  	Federal Insurance Company (Chubb)	  	(18)7172-55-04	  	8/1/2017-8/1/2018	
				
International Package	  	ACE American Insurance Company (Chubb)	  	PHFD3837154A 002	  	8/1/2017-8/1/2020	
				
Lead Umbrella Liability	  	Federal Insurance Company (Chubb)	  	(18)7987-58-17	  	8/1/2017-8/1/2018	
				
Excess Umbrella Liability	  	Continental Insurance Company (CNA)	  	6011609135	  	8/1/2017-8/1/2018	
 
12

Schedule 5.12
Post-Closing Matters
None.

Schedule 6.04
Investments
Investments in Non-U.S. Subsidiaries 1 :

Loan Party	  	Investment Type	  	Non-U.S. Subsidiary	  	Amount	 	
AMNEAL PHARMACEUTICALS LLC	  	Distribution	  	APHC, LLC	  	$	108,063,478	 	
AMNEAL PHARMACEUTICALS LLC	  	Loan	  	Amneal Pharma Holding GmbH	  	$	388,261,434	 	
AMNEAL PHARMACEUTICALS LLC	  	ECB Loan	  	Amneal Pharmaceuticals Co	  	$	93,753,279	 	
AMNEAL PHARMACEUTICALS LLC	  	ECB Loan	  	RAKS Pharma Pvt Ltd.	  	$	27,573,260	 	
AMNEAL PHARMACEUTICALS LLC	  	Loan	  	Amneal Ireland Ltd.	  	$	84,478,024	 	

1	Note: Excludes Investments in aggregate principal amount less than $25 million.	

Schedule 6.08
Transactions with Affiliates
The transactions listed in the “Certain Related Parties and Related Party Transactions” section of the Atlas Holdings, Inc. Form S-1 Registration Statement filed with the Securities and Exchange Commission on March 7, 2018 are incorporated herein by reference.

Schedule 6.10
Burdensome Agreements
None.

Schedule 10.01
Notice Information
If to the Borrower or another Guarantor :
[c/o] AMNEAL PHARMACEUTICALS LLC
400 Crossing Boulevard, 3rd Floor
Bridgewater, NJ 08807
Attn: Bryan M. Reasons, Chief Financial Officer
Telephone: (732) 595-4575
Facsimile No.: (732) 595-4753
Email Address: bryan.reasons@impaxlabs.com
With a copy (which shall not constitute notice) to:
[c/o] AMNEAL PHARMACEUTICALS LLC
400 Crossing Boulevard, 3rd Floor
Bridgewater, NJ 08807
Attn: Sheldon Hirt, General Counsel
Telephone: (908) 947-3137
Facsimile No.: (908) 947-3144
Email Address: shirt@amneal.com
With a copy (which shall not constitute notice) to:
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Attn: Jesse Sheff
Telephone: (212) 906-4524
Facsimile No.: (212) 751-4864
Email Address: jesse.sheff@lw.com
If to the Administrative Agent or Lenders :
JPMorgan Chase Bank, N.A.
Middle Market Loan and Agency
10 S. Dearborn St. L2 floor Chicago, IL 60603
Attention: Omolola Eneh
Facsimile: 1-844-490-5663
Telephone: 312-954-1007
Email: omolola.eneh@chase.com

Table of Contents
 Exhibit 10.4
 
SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
DATED AS OF
DECEMBER 16, 2017
BY AND AMONG
AMNEAL GROUP (AS DEFINED HEREIN)
AND
ATLAS HOLDINGS, INC.

 

Table of Contents
 TABLE OF CONTENTS

 	  	 	  	Page	 	
ARTICLE I DEFINITIONS	  	 	2	 	
1.1	  	Certain Definitions	  	 	2	 	
1.2	  	Other Terms	  	 	5	 	
		
ARTICLE II TERM	  	 	6	 	
2.1	  	Term and Termination	  	 	6	 	
		
ARTICLE III CORPORATE GOVERNANCE MATTERS	  	 	7	 	
3.1	  	Board Composition	  	 	7	 	
3.2	  	Director Nomination Rights	  	 	8	 	
3.3	  	Committees of the Company Board	  	 	9	 	
3.4	  	Chief Executive Officer	  	 	10	 	
3.5	  	Executive Chairman	  	 	10	 	
3.6	  	Amneal Group Agreement to Vote	  	 	10	 	
3.7	  	Amneal Consent Rights	  	 	11	 	
3.8	  	Taxable Transactions	  	 	11	 	
		
ARTICLE IV TRANSFER RESTRICTIONS, STANDSTILL, RELATED PARTY TRANSACTIONS, PARTICIPATION RIGHTS	  	 	11	 	
4.1	  	Restrictions on Transferability and Acquisitions	  	 	11	 	
4.2	  	Related Party Transactions	  	 	14	 	
4.3	  	Participation Rights	  	 	15	 	
		
ARTICLE V REGISTRATION RIGHTS	  	 	16	 	
5.1	  	Shelf Registration Statement	  	 	16	 	
5.2	  	Blackout Periods	  	 	17	 	
5.3	  	Demand Underwritten Offerings	  	 	17	 	
5.4	  	Piggyback Registration	  	 	19	 	
5.5	  	Registration Procedures	  	 	20	 	
5.6	  	Obligations of Amneal Group	  	 	23	 	
5.7	  	Expenses	  	 	24	 	
5.8	  	Indemnification; Contribution	  	 	24	 	
5.9	  	Indemnification Procedures	  	 	25	 	
5.10	  	Rule 144	  	 	26	 	
5.11	  	Preservation of Rights	  	 	26	 	
5.12	  	Transfer of Registration Rights	  	 	26	 	
		
ARTICLE VI FINANCIAL AND OTHER INFORMATION	  	 	27	 	
6.1	  	Exchange of Information	  	 	27	 	
6.2	  	Ownership of Information	  	 	27	 	
6.3	  	Compensation for Providing Information	  	 	27	 	
6.4	  	Record Retention	  	 	27	 	
6.5	  	Production of Witnesses; Records; Cooperation	  	 	27	 	
6.6	  	Privilege	  	 	28	 	
		
ARTICLE VII MISCELLANEOUS	  	 	28	 	
7.1	  	Corporate Power	  	 	28	 	
7.2	  	Confidentiality	  	 	28	 	
7.3	  	Governing Law; Consent to Jurisdiction	  	 	30	 	
7.4	  	Waiver of Jury Trial	  	 	30	 	
7.5	  	Notices	  	 	30	 	
7.6	  	Severability	  	 	31	 	
 
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TABLE OF CONTENTS
( continued )

 	  	 	  	Page	 	
7.7	  	Entire Agreement	  	 	31	 	
7.8	  	Assignment; No Third-Party Beneficiaries	  	 	31	 	
7.9	  	Amendment; Waiver	  	 	32	 	
7.10	  	Interpretations	  	 	32	 	
7.11	  	Privileged Matters	  	 	32	 	
7.12	  	Counterparts; Electronic Transmission of Signatures	  	 	33	 	
7.13	  	Enforceable by the Conflicts Committee	  	 	33	 	

EXHIBIT A	  	Form of Conflicts Committee Charter	  		

Schedule 7.11(a)	 	Impax Law Firms	  		
Schedule 7.11(b)	 	Amneal Law Firms	  		
 
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 SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated December 16, 2017 (this “ Agreement ”), by and among Amneal Pharmaceuticals Holding Company, LLC, a Delaware limited liability company, AP Class D Member, LLC, a Delaware limited liability company, AP Class E Member, LLC, a Delaware limited liability company, AH PPU Management, LLC, a Delaware limited liability company, and Atlas Holdings, Inc., a Delaware corporation (the “ Company ”).
W I T N E S S E T H:
WHEREAS, the Parties previously entered into that certain Stockholders Agreement, dated October 17, 2017, as amended and restated by the Parties pursuant to the Amended and Restated Stockholders Agreement, dated November 21, 2017 (the “ Prior Agreement ”), and the Parties desire to amend and restate the Prior Agreement in the form of this Agreement;
WHEREAS, the Company is party to that certain Business Combination Agreement, dated October 17, 2017 (the “ Transaction Agreement ”), by and among the Company, Impax Laboratories, Inc. (“ Impax ”), K2 Merger Sub Corporation and Amneal Pharmaceuticals LLC;
WHEREAS, in connection with the consummation (the “ Closing ”) of the transactions contemplated by the Transaction Agreement (collectively, the “ Transactions ”), each Amneal Group Member will enter into the Third Amended and Restated Limited Liability Company Operating Agreement (the “ Amneal Pharmaceuticals LLC Agreement ”) of Amneal Pharmaceuticals LLC, and the Company will be admitted as the managing member of Amneal Pharmaceuticals LLC;
WHEREAS, in connection with the Closing, Amneal Group will receive (i) common units in Amneal Pharmaceuticals LLC (as reflected in Schedule 1 to the Amneal Pharmaceuticals LLC Agreement) which may be exchanged from time to time in accordance with the terms of the Amneal Pharmaceuticals LLC Agreement for either cash or shares of Class A common stock of the Company, par value $0.01 per share (“ Class A Common Stock ”), or Class B-1 common stock of the Company, par value $0.01 per share (“ Class B-1 Common Stock ”), and (ii) shares of Class B common stock of the Company, par value $0.01 per share (“ Class B Common Stock ” and together with the Class A Common Stock and Class B-1 Common Stock, the “ Company Common Stock ”); and
WHEREAS, the Company Board (as hereinafter defined) has approved the Transactions and the acquisition by Amneal Group of common units in Amneal Pharmaceuticals LLC and shares of Company Common Stock in connection therewith for all purposes under Section 203 of the General Corporation Law of the State of Delaware; and
WHEREAS, the Amneal Group Members and the Company desire to enter into this Agreement in order to, inter alia , (i) set forth certain of their rights, duties and obligations as a result of the Transactions; (ii) provide for the management, operation and governance of the Company; and (iii) set forth restrictions on certain activities in respect of the Company Common Stock, corporate governance, and other related corporate matters.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and
 
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intending to be legally bound, the Parties hereby agree that the Prior Agreement is hereby amended and restated in its entirety as follows:
 ARTICLE I
DEFINITIONS
 1.1 Certain Definitions . For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1 :
“ Action ” means any demand, action, claim, dispute, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any federal, state, local, foreign or international Governmental Entity or any arbitration or mediation tribunal.
“ Affiliate ” means, as to any Person, any other Person which, directly or indirectly, controls, or is controlled by, or is under common control with, such Person; provided , however , that no Amneal Group Member or any of its Affiliates (other than the Company and its Subsidiaries) shall be deemed to be an Affiliate of the Company or any of its Subsidiaries for purposes of this Agreement, and neither the Company nor any of its Subsidiaries shall be deemed to be an Affiliate of any Amneal Group Member or any of its Subsidiaries (other than the Company and its Subsidiaries) for purposes of this Agreement. As used in this definition, “control” (including with correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of voting securities, by contract or otherwise). For the avoidance of doubt, the Affiliates of Amneal Holdings, LLC shall include each of Chirag Patel, Chintu Patel, Gautam Patel and Tushar Patel.
“ Amneal Group ” means, collectively, Amneal Pharmaceuticals Holding Company, LLC, AP Class D Member, LLC, AP Class E Member, LLC, AH PPU Management, LLC, and any of their respective Affiliates, successors and permitted assigns to which any shares of Company Common Stock have been Transferred in accordance with Section 4.1(b)(i)(E) , Section 4.1(b)(i)(F) or Section 4.1(c) (each such Person shall be referred to as an “ Amneal Group Member ”). Immediately following the Closing, each Amneal Group Member as of the date of this Agreement shall transfer the Amneal Units received by it in connection with the Closing to the Amneal Group Representative, and the Amneal Group Representative shall be assigned all of the rights and obligations of Amneal Group under this Agreement.
“ Amneal Group Representative ” means Amneal Holdings, LLC, a Delaware limited liability company, or such other designee selected by Amneal Group Members holding a majority of the shares of Company Common Stock beneficially owned by Amneal Group.
“ Amneal Units ” means Common Units (as defined in the Amneal Pharmaceuticals LLC Agreement).
“ beneficially own ” means, with respect to Company Common Stock, having the power to vote or direct the vote of shares of Company Common Stock. The terms “ beneficial owner ” and “ beneficial ownership ” shall have correlative meanings. “ Business Day ” means a day, other than Saturday, Sunday or other day on which commercial banks in the County of New York, New York are authorized or required by applicable Law to close.
“ Charter ” means the Amended and Restated Certificate of Incorporation of the Company, as amended from time to time.
“ Company Board ” means the board of directors of the Company.
 
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“ Company Group ” means the Company, each Subsidiary of the Company from and after the Closing (in each case so long as such Subsidiary remains a Subsidiary of the Company) and each other Person that is controlled either directly or indirectly by the Company following the Closing (in each case for so long as such Person continues to be controlled either directly or indirectly by the Company).
“ Company Independent Director ” means each director of the Company who (i) is an Independent Director; (ii) is not an Amneal Designee; (iii) is not a current or former (x) member of the board of directors of any Amneal Group Member or any of its Affiliates or (y) officer or employee of any member of any Amneal Group Member or any of its Affiliates; (iv) does not have and has not had any other material relationship with any member of Amneal Group that a reasonable person would conclude could interfere with the exercise of independent judgment in carrying out director responsibilities; and (v) is designated by the Conflicts Committee as a Company Independent Director.
“ Company Sale ” means (a) a merger, share exchange, consolidation, recapitalization or similar transaction resulting, directly or indirectly, in more than 50% of the total number of shares of outstanding Company Common Stock being beneficially owned after such transaction by any Person or group of Persons other than the Amneal Group or (b) a sale of all or substantially all of the assets of the Company.
“ Company Securities ” means (i) the Company Common Stock, (ii) any preferred stock of the Company, (iii) any other common stock issued by the Company and (iv) any securities convertible into or exchangeable for, or options, warrants or other rights to acquire, Company Common Stock or any other common or preferred stock issued by the Company.
“ Compensation Committee ” means the Compensation Committee of the Company Board.
“ Executive Event ” means the failure of Robert A. Stewart to be serving as Chief Executive Officer of Amneal Pharmaceuticals LLC as of immediately prior to the Closing, including by reason of his death, resignation, retirement, disqualification, removal from office or other cause.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.
“ Governmental Entity ” means any United States federal, state or local, or foreign, international or supranational, government, court or tribunal, or administrative, executive, governmental or regulatory or self-regulatory body, agency or authority thereof.
“ Group ” means Amneal Group or the Company Group, as the context requires.
“ Independent Director ” means a director who is independent under NYSE listing rules.
“ Information ” means information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other Software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memoranda and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data.
“ Law ” means any federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Entity.
 
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“ Liabilities ” means any debt, loss, damage, adverse claim, liability or obligation of any Person (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due, and whether in contract, tort, strict liability or otherwise), and including all costs and expenses relating thereto.
“ Nominating Committee ” means the Nominating Committee of the Company Board.
“ NYSE ” means the New York Stock Exchange, or such other stock exchange or securities market on which shares of Class A Common Stock are at any time listed or quoted.
“ Other Stockholder ” means a holder of Company Common Stock that is not an Amneal Group Member.
“ Parties ” means each Amneal Group Member and the Company, and each a “ Party ”.
“ Person ” means an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, limited liability company or governmental or other entity.
“ Pro Rata Portion ” means, with respect to Amneal Group, on any issuance date for Company Securities, the number of Company Securities equal to the product of (i) the total number of Company Securities to be issued by the Company on such date and (ii) the fraction determined by dividing (x) the number of shares of Company Common Stock beneficially owned by Amneal Group immediately prior to such issuance by (y) the total number of shares of Company Common Stock outstanding immediately prior to such issuance.
“ Registrable Shares ” means, at any time, the shares of Class A Common Stock that are beneficially owned by an Amneal Group Member and the shares of Class A Common Stock issuable upon a Redemption (as defined in the Amneal Pharmaceuticals LLC Agreement) of Amneal Units held by any Amneal Group Member, excluding any such shares of Class A Common Stock that have, after the date hereof, been Transferred pursuant to a registration statement under, and in compliance with the requirements of, the Securities Act.
“ Related Party Transaction ” means any transaction between any member of the Company Group, on the one hand, and any Amneal Group Member, or any director, officer, employee or “associate” (as defined in Rule 12b-2 promulgated under the Exchange Act) of any Amneal Group Member, on the other hand.
“ SEC ” means the Securities and Exchange Commission.
“ Securities Act ” means the Securities Act of 1933, as amended, together with the rules and regulations promulgated thereunder.
“ Software ” means the object and source code versions of computer programs and associated documentation, training materials and configurations to use and modify such programs, including programmer, administrator, end user and other documentation.
“ Subsidiary ” means, with respect to any Person, another Person, an amount of the voting securities or other voting ownership interests of which is sufficient, together with any contractual rights, to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first Person; provided , however , that neither the Company nor any of its Subsidiaries shall be deemed to be a Subsidiary of any Amneal Group Member or any of its Subsidiaries for purposes of this Agreement. For the avoidance of doubt, immediately following the Closing, Amneal Pharmaceuticals LLC shall be a Subsidiary of the Company.
“ Tax ” has the meaning ascribed thereto in the Transaction Agreement.
 
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“ Taxable Transaction ” means any transaction (whether a merger, sale of assets, sale of securities, distribution, dividend, liquidation, dissolution, recapitalization, consolidation, reorganization, combination or other transaction) following the Closing which involves the Company or any of its Subsidiaries (including, for the avoidance of doubt, Amneal Pharmaceuticals LLC) and would reasonably be expected to result in the recognition of $40,000,000 or more of taxable income or gain for U.S. federal income tax purposes by the Amneal Group (other than (a) any such transaction in which the consideration to be received by each Amneal Group Member in respect of its Amneal Units consists solely of cash or (b) a Redemption or Direct Exchange in accordance with Article XI of the Amneal Pharmaceuticals LLC Agreement).
“ TPG ” means TPG Improv Holdings, L.P., a Delaware limited partnership.
“ TRA Acceleration Event ” means an early termination or acceleration pursuant to Section 4.1 of the Tax Receivable Agreement.
“ Transaction Documents ” means, collectively, this Agreement, the Transaction Agreement and the other Ancillary Agreements (as defined in the Transaction Agreement).
“ Transfer ” means, directly or indirectly (whether by merger, operation of law or otherwise), to sell, transfer, assign or otherwise dispose of or encumber (other than as security in connection with any bona fide loan or financing transaction) any direct or indirect economic, voting or other rights in or to any Company Common Stock, including by means of (i) the Transfer of an interest in a Person that directly or indirectly holds such Company Common Stock or (ii) a hedge, swap or other derivative.
“ Trigger Date ” means the first date on which Amneal Group ceases to beneficially own at least ten percent (10%) of the outstanding shares of the Company Common Stock.
“ underwritten offering ” means an offering in which Securities of the Company are sold to one or more underwriters (as defined in Section  2(a)(11) of the Securities Act) for resale to the public.
 1.2 Other Terms . For purposes of this Agreement, the following terms have the meanings set forth in the sections indicated.

Term	  	Section	
Agreement	  	Preamble	
Amneal Confidential Information	  	7.2(b)	
Amneal Designee	  	3.2(a)	
Amneal Directors	  	3.1(a)(i)	
Amneal Group Representative	  	Preamble	
Amneal Law Firms	  	7.11(b)	
Amneal Pharmaceuticals LLC	  	Recitals	
Amneal Pharmaceuticals LLC Agreement	  	Recitals	
Blackout Period	  	5.2	
Board Expansion Right	  	3.1(c)	
Claim Notice	  	5.9(a)	
Claims	  	5.8(a)	
Class A Common Stock	  	Recitals	
Class B Common Stock	  	Recitals	
Class B-1 Common Stock	  	Recitals	
Closing	  	Recitals	
Company	  	Preamble	
Company-Assisted PIPE Transaction	  	5.3(e)	
Company Common Stock	  	Recitals	
 
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Term	  	Section	
Company Confidential Information	  	7.2(a)	
Conflicts Committee Charter	  	3.3(c)	
Counsel	  	5.5(a)(i)	
Demand Underwritten Offering	  	5.3(a)(i)	
Effective Period	  	5.5(a)(iii)	
Excluded Securities	  	4.3(a)	
Exiting Amneal Director	  	3.1(d)	
Form S-4 Registration Statement	  	5.1	
Immediately Tradeable Shares	  	4.1(b)(i)(G)	
Impax	  	Recitals	
Impax CEO Director	  	3.1(a)	
Impax Law Firms	  	7.11(a)	
Indemnifying Party	  	5.10(a)	
Issuance Notice	  	4.3(b)	
Lockup Period	  	4.1(b)(i)	
Non-Amneal Directors	  	3.1(a)(ii)	
Observer	  	3.1(c)	
Ownership Threshold	  	3.1(c)	
Participating Amneal Member	  	5.3(a)	
Piggyback Registration	  	5.4(a)	
Piggyback Registration Notice	  	5.4(a)	
Piggyback Registration Statement	  	5.4(a)	
PIPE Transaction	  	4.1(b)(ii)(C)	
Privilege	  	6.6	
Privileged Amneal Communications	  	7.11(b)	
Privileged Impax Communications	  	7.11(a)	
Qualifying Investor	  	3.1(c)	
Representatives	  	7.2(a)	
Required Amneal Group Member Information	  	5.6(a)	
Rule 415 Limitation	  	6.1(a)	
Shelf Registration Statement	  	5.1	
Transaction Agreement	  	Recitals	
Transactions	  	Recitals	
 ARTICLE II
TERM
 2.1 Term and Termination . This Agreement is effective as of the Closing (other than with respect to Section 5.1 , which shall be effective as of the date hereof) and shall terminate automatically on the earlier of (i) the termination of the Transaction Agreement pursuant to Article VIII thereof and (ii) the Trigger Date. Notwithstanding the foregoing, (a) the provisions of Article VI (other than Section 6.1 ) and Article VII (other than Section 7.13 ) shall survive the termination of this Agreement and (b) the provisions of Article V shall survive the termination of this Agreement until the first (1st) anniversary of the Trigger Date. Notwithstanding the foregoing, in the event any Amneal Group Member assigns its rights and obligations under Article V to the purchaser of any Registrable Shares in connection with a PIPE Transaction (for the avoidance of doubt, not including any Transfer described in clauses (C) through (F) of Section 4.1(b)(i) , whether or not such Transfer occurs prior to the end of the Lockup Period), such purchaser’s rights under Article V shall survive for one (1) year following the date of such Transfer ( provided , that such securities may be sold without restriction under Rule 144 at such time).
 
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 ARTICLE III
CORPORATE GOVERNANCE MATTERS
 3.1 Board Composition .
(a) Subject to Section 3.1(c) , until the Trigger Date, the Company Board shall consist of no more than thirteen (13) directors (or, in the event that an Executive Event has occurred, eleven (11) directors). Immediately following the Closing, the Company Board shall be comprised of (i) seven (7) directors (or, in the event that an Executive Event has occurred, six (6) directors) designated by the Amneal Group Representative prior to the Closing (collectively, with any of their successors designated in accordance with Section 3.2(a) and Section 3.2(b) hereof and any additional director designated by the Amneal Group Representative pursuant to Section 3.1(c) , the “ Amneal Directors ”) and (ii) five (5) directors designated by Impax prior to the Closing, who shall be (A) the Chief Executive Officer of Impax immediately prior to the Closing (the “ Impax CEO Director ”) and (B) four (4) Company Independent Directors (selected by Impax from the Impax board of directors as of the date of the Transaction Agreement and including the chairman thereof) and (iii) if and only if an Executive Event has not occurred, Robert A. Stewart (the directors referred to in clauses (ii) and (iii) of this sentence, collectively with their successors and any additional directors appointed or designated in accordance with Section 3.2(c) and Section 3.2(e) , being referred to herein as the “ Non-Amneal Directors ”).
(b) Immediately following the Closing, and for so long as Amneal Group has beneficial ownership of more than fifty percent (50%) of the outstanding shares of the Company Common Stock, (i) the Non-Amneal Directors shall have the right to designate the lead Independent Director of the Company Board, and (ii) the Amneal Directors shall have the right to designate the Co-Chairmen of the Company Board. Immediately following the Closing, the Co-Chairmen of the Company Board shall be Chirag Patel and Chintu Patel, and the lead Independent Director shall be Robert L. Burr.
(c) In the event that Amneal Group Transfers more than four percent (4%) of the outstanding shares of Company Common Stock to a Person or a group of Persons pursuant to a PIPE Transaction (such a Person or group of Persons, a “ Qualifying Investor ”) and, following such Transfer, Amneal Group continues to beneficially own more than fifty percent (50%) of the outstanding shares of the Company Common Stock, Amneal Group shall have a one-time right exercisable within one year following such transaction (the “ Board Expansion Right ”) to cause the Company to increase the size of the Company Board by two (2) directors and to fill the resulting vacancies with one new director designated by the Amneal Group Representative and one new director designated by such Qualifying Investor. To the extent requested by such Qualifying Investor, this Agreement shall be amended to provide such Qualifying Investor with the right to appoint a director to the Company Board for so long as such Qualifying Investor continues to beneficially own more than four percent (4%) of the outstanding shares of Company Common Stock (the “ Ownership Threshold ”). In addition to the foregoing, any Qualifying Investor may, for so long as it satisfies the Ownership Threshold and has not appointed a director to the Company Board, designate one (1) individual (an “ Observer ”) to attend all meetings of the Company Board and (subject to applicable listing requirements) any committee thereof in a non-voting, observer capacity subject to customary terms and conditions for a board observer; provided , however , that the Observer shall be reasonably acceptable to the Nominating Committee of the Company Board.
(d) In the event that Amneal Group Transfers more than five percent (5%) of the outstanding shares of Company Common Stock to a Qualifying Investor, and, immediately prior to or following such Transfer, Amneal Group beneficially owns less than fifty percent (50%) of the outstanding shares of the Company Common Stock (whether or not the Board Expansion Right pursuant to Section 3.1(c) has been exercised prior to such time), the Amneal Group Representative shall have a one-time right in connection with such transaction to cause the Company to replace any Exiting Amneal Director with a director designated by such Qualifying Investor. For purposes of this Section 3.1(d) , an “ Exiting Amneal Director ” shall mean an Amneal Director that the Amneal Group Representative is no longer entitled to designate pursuant to Section 3.1(a) as a result of such Transfer. To
 
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the extent requested by such Qualifying Investor, this Agreement shall be amended to provide such Qualifying Investor with the right to appoint a director to the Company Board for so long as such Qualifying Investor continues to beneficially own more than five percent (5%)  of the outstanding shares of Company Common Stock.
 3.2 Director Nomination Rights .
(a) Until the Trigger Date and subject to Section 3.2(a)(ii) , in connection with any annual or special meeting of the stockholders of the Company at which directors shall be elected, or any solicitation or submission of written consents having the same effect, the Nominating Committee shall nominate for election to the Company Board person(s) designated for nomination by the Amneal Group Representative (each person so designated, an “ Amneal Designee ”) in accordance with the following:
(i) if Amneal Group has beneficial ownership of more than fifty percent (50%) of the outstanding shares of the Company Common Stock, the Amneal Group Representative shall have the right to designate the lowest number of Amneal Designees that constitutes a majority of the total number of directors comprising the Company Board; and
(ii) if Amneal Group has beneficial ownership of ten percent (10%) or more, but fifty percent (50%) or less, of the outstanding shares of the Company Common Stock, the Amneal Group Representative shall have the right to designate a number of directors equal to the product of (x) the percentage of the shares of Company Common Stock beneficially owned by Amneal Group and (y) the total number of directors comprising the Company Board, rounded up to the nearest whole number (e.g., one and one quarter (1 1 / 4 ) directors shall be rounded up to two (2) directors); provided , that such rounding shall not result in the Amneal Group Representative having the right to designate a majority of the total number of directors comprising the Company Board when Amneal Group beneficially owns 50% or less of the outstanding shares of the Company Common Stock.
(b) Until the Trigger Date, the Amneal Group Representative shall have full authority and ability to designate any Amneal Designees, and the Company Board shall approve the nomination of any Amneal Designee. Subject to the requirements of applicable Law, the Amneal Group Representative shall have the exclusive right to remove any Amneal Directors from the Company Board. In the event any Amneal Designee is intended to qualify as an Independent Director on the Company Board, the Amneal Group Representative shall consult in good faith with the Company Board and solicit its input prior to making such designation. The Amneal Group Representative shall not designate any person to be an Amneal Designee (nor shall any Qualifying Investor be entitled to designate any person to be a director) who is unqualified under any applicable Law to serve as a director on the Company Board. For the avoidance of doubt, current or former employment of any Amneal Designee with an Amneal Group Member or any of its Subsidiaries or service by any such Amneal Designee on the board of directors of an Amneal Group Member or any of its Subsidiaries shall not, by itself, disqualify such individual from serving on the Company Board as an Amneal Designee.
(c) Subject to Section 3.1(d) and Section 4.1(d)(ii) and (iii) , if at any time the number of Amneal Directors then serving on the Company Board is in excess of the number of Amneal Designees the Amneal Group Representative has the right to designate pursuant to Section 3.1(c) or Section 3.2(a) , upon receipt of the written request of the Conflicts Committee, the Amneal Group Representative shall, and the Amneal Group shall take all actions reasonably necessary to cause a number of Amneal Directors equal to the excess to promptly tender his, her or their resignations from the Company Board (and from any committees or subcommittees thereof to which any such Amneal Director is then appointed or on which he or she is then serving) within sixty (60) days of such request; provided , however , that, if within such sixty (60) day period Amneal Group has regained its right to designate any such Amneal Director pursuant to Section 3.1(c) , then such Amneal Director shall continue serving on the Company Board. Subject to Section 3.1(d) , in the event that an Amneal Director shall cease to serve as a director pursuant to this Section 3.2(c) , the Nominating Committee shall have the sole right to fill such vacancy or designate a person for nomination for election to the Company Board to fill such vacancy with a person who shall satisfy all the qualifications of a Company Independent Director, in each case. If at any time the number of
 
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Amneal Directors then serving on the Company Board is less than the number of Amneal Designees Amneal Group has the right to designate pursuant to Section 3.1(c) or Section 3.2(a) , the Company Board and the Nominating Committee shall, at the request of the Amneal Group Representative, take all actions reasonably necessary to cause a number of Amneal Designees equal to such deficit to be appointed to the Company Board within sixty (60) days of such request.
(d) Until the Trigger Date, in the event that any Amneal Director shall cease to serve as a director for any reason other than pursuant to Section 3.2(c) , the vacancy resulting therefrom shall be filled by the Company Board as promptly as reasonably practicable with a substitute Amneal Director selected by Amneal Group in accordance with the requirements for the designation of Amneal Designees pursuant to Section 3.2(b) .
(e) From and after the Closing, in the event of a vacancy on the Company Board upon the death, resignation, retirement, disqualification, removal from office or other cause of any Non-Amneal Director (other than a director serving as Chief Executive Officer of the Company), the Nominating Committee shall have the sole right to fill such vacancy or designate a person for nomination for election to the Company Board to fill such vacancy, subject to the prior written consent of the Conflicts Committee, and such person shall satisfy all the qualifications of a Company Independent Director. The Nominating Committee shall take all actions necessary to cause the vacancy upon the death, resignation, retirement, disqualification, removal from office or other cause of a director serving as Chief Executive Officer of the Company to be filled by the successor Chief Executive Officer of the Company or to designate such person for nomination for election to the Company Board to fill such vacancy.
(f) The Nominating Committee shall nominate such number of Amneal Designees and such number of nominees to serve as Non-Amneal Directors as required to comply with the requirements of Section 3.1 hereof and this Section 3.2 . The Company shall cause each person nominated by the Nominating Committee to be included in the slate of nominees recommended by the Company Board to holders of Company Common Stock for election (including at any special meeting of stockholders held for the election of directors). Seventy-five percent (75%) of the directors serving on the Nominating Committee shall be required to approve (i) a decision not to nominate any Initial Company Director for re-election to the Company Board at either of the first two annual meetings of stockholders of the Company following the Closing Date and (ii) until the third annual meeting of stockholders of the Company following the Closing Date, any change to the individuals serving as Chairman or Co-Chairmen of the Company Board (for the avoidance of doubt, the individuals initially serving as Chairman or Co-Chairman of the Company Board shall be Chirag Patel, Chintu Patel and, unless an Executive Event has occurred, Paul Bisaro).
 3.3 Committees of the Company Board .
(a) Nominating Committee . For so long as Amneal Group has beneficial ownership of more than fifty percent (50%) of the outstanding shares of Company Common Stock, (i) the Nominating Committee shall consist of four (4) directors; (ii) the Amneal Group Representative shall have the right to designate two (2) of the directors to serve on the Nominating Committee; and (iii) the remaining directors on the Nominating Committee shall be designated by a majority of the Company Independent Directors then serving on the Company Board.
(b) Compensation Committee . For so long as Amneal Group has beneficial ownership of more than fifty percent (50%) of the outstanding shares of Company Common Stock, (i) the Compensation Committee shall consist of four (4) directors; (ii) the Amneal Group Representative shall have the right to designate two (2) of the directors to serve on the Compensation Committee; and (iii) the remaining directors on the Compensation Committee shall be designated by a majority of the Company Independent Directors then serving on the Company Board.
(c) Conflicts Committee . Until Trigger Date, the Company Board shall have a Conflicts Committee comprised solely of Company Independent Directors. The Conflicts Committee shall be fully empowered to requisition reasonable assistance from employees of the Company, including legal and financial staff, to retain
 
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independent legal, financial and other advisors as the Conflicts Committee deems necessary and to approve or not approve any transaction or other matter submitted to the Conflicts Committee (and such non-approval shall be binding on the Company Board), and shall have the authority and responsibilities set forth in this Agreement, the charter of the Conflicts Committee (the form of which is attached as Exhibit A hereto) (the “ Conflicts Committee Charter ”) and as may otherwise be delegated to the Conflicts Committee by the Company Board from time to time. Any amendments to the Conflicts Committee Charter shall be approved by (i) seventy-five percent (75%) of the directors comprising the Company Board, (ii) a majority of the Company Independent Directors then serving on the Company Board and (iii) a majority of the Conflicts Committee.
(d) Integration Committee . For a minimum of two (2) years following the Closing, the Company Board shall have an Integration Committee comprised of Chirag Patel, Chintu Patel and Paul M. Bisaro, which shall serve as an advisory committee to management to provide input in connection with the post-Closing integration of Impax and Amneal and shall not be entitled to take any other action on behalf of the Company Board.
(e) Amneal Committee Representation . Until the Trigger Date, each committee of the Company Board shall include at least one (1) Amneal Director, subject to compliance with applicable requirements of the NYSE. If at any time any committee of the Company Board (other than the Conflicts Committee) does not have at least one (1) Amneal Director serving on such committee, the Amneal Group Representative shall be entitled to designate one Amneal Director to have observer rights with respect to such committee.
(f) Committee Charters . Any amendment to the charter of any committee of the Company Board shall require the approval of 75% of the directors comprising the Company Board.
(g) Other Committee Composition . The formation and composition of any other committees of the Company Board not specified in this Section 3.3 shall require the approval of 75% of the directors comprising the Company Board.
 3.4 Chief Executive Officer . Immediately following the Closing, if and only if an Executive Event has not occurred, the Chief Executive Officer of the Company shall be Robert A. Stewart. Immediately following the Closing, if and only if an Executive Event has occurred, the Chief Executive Officer of the Company shall be Paul M. Bisaro and for eighteen (18) months following the Closing, the removal of Mr. Bisaro as Chief Executive Officer without cause shall require the approval of (i) a majority of the directors comprising the Company Board and (ii) a majority of the Non-Amneal Directors, in each case with Mr. Bisaro recusing himself from such vote.
 3.5 Executive Chairman . Immediately following the Closing, if and only if an Executive Event has not occurred, the Executive Chairman of the Company shall be Paul M. Bisaro and for eighteen (18) months following the Closing, the removal of Mr. Bisaro as Executive Chairman without cause shall require the approval of (i) a majority of the directors comprising the Company Board and (ii) a majority of the Non-Amneal Directors, in each case with Mr. Bisaro recusing himself from such vote.
 3.6 Amneal Group Agreement to Vote . From and after the Closing and until the Trigger Date, Amneal Group shall,
(a) cause its shares of Company Common Stock to be present for quorum purposes at any Company stockholder meeting;
(b) with respect to the election of directors, vote its shares of Company Common Stock in accordance with the recommendation of the Company Board ( provided , that the slate of nominees recommended by the Company Board complies with the terms of this Agreement); and
(c) not vote its shares of Company Common Stock in favor of the removal of any Non-Amneal Director unless such removal is recommended by the Nominating Committee.
 
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 3.7 Amneal Consent Rights . For so long as Amneal Group beneficially owns more than twenty-five percent (25%) of the outstanding shares of Company Common Stock, the Company shall not, without first obtaining the approval (by vote or written consent as provided by Law) of the Amneal Group Representative, take any of the following actions (whether by amendment, merger, recapitalization or otherwise):
(a) amend, modify or repeal any provision of the Charter or the Company’s bylaws in a manner that adversely impacts any Amneal Group Member;
(b) except pursuant to Section 3.1(c) , effect any change in the authorized number of directors of the Company;
(c) create or reclassify any new or existing class or series of capital stock having rights, preferences or privileges with respect to voting, liquidation, redemption, conversion or dividends that are senior to or on parity with the Company Common Stock; or
(d) consummate any Company Sale in which any Amneal Group Member receives a different amount or form of consideration per Company Security held by such Amneal Group Member as other holders of such Company Security.
 3.8 Taxable Transactions . For so long as Amneal Group beneficially owns either (a) shares of Class B Common Stock representing at least ten percent (10%) of the outstanding shares of Company Common Stock or (b) at least forty-five million (45,000,000) shares of Company Common Stock (as adjusted for any Capital Structure Change), the Company shall not, without first obtaining the approval (by vote or written consent) of the Amneal Group Representative, consummate any Taxable Transaction.
 ARTICLE IV
TRANSFER RESTRICTIONS, STANDSTILL, RELATED PARTY TRANSACTIONS,
PARTICIPATION RIGHTS
4.1 Restrictions on Transferability and Acquisitions .
(a) Each Amneal Group Member covenants and agrees that the shares of Company Common Stock beneficially owned or owned of record by such Amneal Group Member may be Transferred only pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act (including a registration statement hereunder), or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, and in compliance with any applicable U.S. state and federal securities laws, and any applicable securities laws of other jurisdictions. Each Amneal Group Member further covenants and agrees that the right of Amneal Group to Transfer any Company Common Stock is subject to the restrictions set forth in this Section 4.1 , and no Transfer of Company Common Stock by Amneal Group may be effected except in compliance with this Section 4.1 . Any attempted Transfer in violation of this Agreement shall be of no effect and null and void ab initio , regardless of whether the purported transferee has any actual or constructive knowledge of the Transfer restrictions set forth in this Agreement, and shall not be recorded on the stock transfer books of the Company.
(b) Lockup and Permitted Transfers .
(i) For the period of one hundred and eighty (180) calendar days following the Closing (the “ Lockup Period ”), no Amneal Group Member shall Transfer any shares of Company Common Stock beneficially owned or owned of record by such Amneal Group Member to any Person, unless with the prior written consent of the Conflicts Committee, except for:
(A) a Transfer of shares of Company Common Stock pursuant to a tender or exchange offer that has been approved or recommended by the Company Board;
 
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(B) a Transfer of shares of Company Common Stock pursuant to any Company Sale;
(C) a Transfer of shares of Company Common Stock permitted by Section 4.1(c) ;
(D) a Transfer of shares of Company Common Stock in connection with any pledge or pledges of any Amneal Group Member’s shares of Company Common Stock made pursuant to a bona fide loan or financing transaction with a third party;
(E) with respect to any Amneal Group Member that is an individual, a Transfer of shares of Company Common Stock (x) to such Amneal Group Member’s ancestors, descendants, siblings, cousins or spouse, (y) to trusts for the benefit of such Amneal Group Member or such persons or (z) by way of bequest or inheritance upon death ( provided that, prior to any such Transfer referenced in clause (x), (y) or (z), such transferee agrees in a writing reasonably acceptable to the Company to be bound by the terms of this Agreement as a party hereto in the position of an Amneal Group Member);
(F) with respect to any Amneal Group Member that is an entity, a Transfer of shares of Company Common Stock to such Amneal Group Member’s members, partners or other equity holders ( provided that, prior to any such Transfer, such transferee agrees in a writing reasonably acceptable to the Company to be bound by the terms of this Agreement as a party hereto in the position of an Amneal Group Member); and
(G) solely during the period beginning on the date hereof and until the Closing Date, one or more Transfers by any Amneal Group Member of up to a total of 60,000,000 shares of Class A Common Stock or Class B-1 Common Stock in the aggregate (such 60,000,000 shares, as adjusted for any stock split, stock dividend, recapitalization, combination, reclassification or similar change in the capital structure of the Company (each, a “ Capital Structure Change ”) following the date hereof, the “ Immediately Tradeable Shares ”) (without duplication of the foregoing clauses (A) through (F)).
Any such Transfer described in clauses (C) through (G) shall not be subject to the prior written consent of the Conflicts Committee, but shall require prior written notice to the Company disclosing in reasonable detail the identity of the intended transferee.
(ii) Following the expiration of the Lockup Period, no Amneal Group Member shall, Transfer or agree to Transfer any shares of Company Common Stock to a Person or group (as such term is used in Section 13(d) of the Exchange Act), except for Transfers:
(A) in a registered offering pursuant to the procedures described in Article V (including, for the avoidance of doubt, the resale of shares of Company Common Stock by Amneal Group registered pursuant to the Shelf Registration Statement, once declared effective under the Securities Act);
(B) in open market sales pursuant to, if available, Rule 144 under the Securities Act; provided , however , that Amneal Group may not, in the aggregate, Transfer more than fifteen percent (15%) of the outstanding Class A Common Stock pursuant to this Section 4.1(b)(ii)(B) in any twelve (12)-month period without the approval of the Conflicts Committee;
(C) in one or more privately negotiated sales exempt from the registration requirements of the Securities Act (a “ PIPE Transaction ”); provided , however , that Amneal Group may not, in the aggregate, Transfer more than fifteen percent (15%) of the outstanding Class A Common Stock pursuant to this Section 4.1(b)(ii)(C) in any twelve (12)-month period without the approval of the Conflicts Committee;
(D) permitted by clauses (A) through (F) of Section 4.1(b)(i) ; or
(E) in accordance with the prior written consent of the Conflicts Committee.
(iii) Following the expiration of the Lockup Period (other than any Transfer permitted by causes (A) through (F) of Section 4.1(b)(i) ), no Amneal Group Member shall, without the prior written consent of the Conflicts Committee, Transfer or agree to Transfer any shares of Company Common Stock to a Person
 
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or group (as such term is used in Section 13(d) of the Exchange Act) (i) if such Person or group would beneficially own in excess of fifteen percent (15%) of the voting power of the outstanding shares of Company Common Stock following such Transfer or (ii) to any such Person or group who, prior to such Transfer, beneficially owned fifteen percent (15%) or more of the outstanding Company Common Stock; provided , that such restrictions shall not apply to Transfers to such a Person or group if each of the following conditions are satisfied: such transferee (A) has filed a Schedule 13G under the Exchange Act with respect to the Company and has not subsequently filed a Schedule 13D under the Exchange Act that remains in effect with respect to the Company or (B) is an institutional investor, pension fund, foundation, sovereign wealth fund, real estate fund, mutual fund, index fund or other similar passive investor that invests in securities similar to the Class A Common Stock and has not filed a Schedule 13D with regard to the Company; and provided , further , that the restrictions set forth in this Section 4.1(b)(iii) shall not apply to a Transfer (x) consisting of a block trade executed at prevailing market prices obtainable at the time of such transfer through brokers in transactions on the NYSE, provided that the Amneal Group Member does not know or have good reason to believe that such Transfer would result in a Transfer of Class A Common Stock representing a number of shares equal to fifteen percent (15%) or more of the outstanding shares of Class A Common Stock to any such Person or group that has filed a Schedule 13D with regard to the Company that remains in effect, (y) to or by one or more underwriters in connection with an underwritten offering, including a block trade or a widely distributed public offering, so long as the Amneal Group Member does not know or have good reason to believe that such offering would result in a Transfer of Class A Common Stock representing a number of shares equal to fifteen percent (15%) or more of the outstanding shares of Class A Common Stock to any Person or group that has filed a Schedule 13D with regard to the Company, or (z) effected through a widely distributed public offering.
(c) Transfers to Affiliates . The foregoing Section 4.1(b) shall not apply to any Transfer by an Amneal Group Member, at any time, of all or any portion of its Company Common Stock to an Affiliate of Amneal Group; provided , that prior to any such Transfer, such Affiliate agrees in a writing reasonably acceptable to the Company to be bound by the terms of this Agreement as a party hereto in the position of an Amneal Group Member. Any such Transfer to an Affiliate of Amneal Group shall not be subject to the prior written consent of the Conflicts Committee.
(d) Standstill .
(i) Except as set forth in Section 4.1(d)(ii) and Section 4.1(d)(iii), until the earlier of (x) the third (3 rd ) anniversary of the Closing Date and (y) such time as Amneal Group beneficially owns shares of Company Common Stock representing less than twenty percent (20%) of the outstanding shares of Company Common Stock, Amneal Group shall not, without the prior written consent of the Conflicts Committee, directly or indirectly, alone or in concert with any other Person (including assisting or forming a group within the meaning of Section 13(d)(3) of the Exchange Act or participating with or knowingly encouraging other persons to form such a group), in any manner:
(A) acquire or publicly offer or publicly propose to effect, or publicly announce any intention to effect any acquisition of beneficial ownership of Company Common Stock (including in derivative form) or any tender or exchange offer, merger, consolidation, business combination or other similar transaction involving the Company or any of its Subsidiaries that would result in the acquisition of beneficial ownership of Company Common Stock (including in derivative form);
(B) publicly seek a change in the composition or size of the Company Board, except in furtherance of the provisions of this Agreement;
(C) deposit any Company Common Stock (other than in connection with Transfers to Affiliates) into a voting trust or subject any Company Common Stock to any proxy, arrangement or agreement with respect to the voting of such securities or other agreement having a similar effect, in any such case which conflicts with Amneal Group’s obligations under Section 3.6;
 
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(D) publicly initiate, publicly propose or publicly announce any intention to participate in any “solicitation” of “proxies” to vote (as such terms are defined in Regulation 14A under the Exchange Act) with respect to the election of the Non-Amneal Directors or the removal of any Non-Amneal Director or publicly become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to the election of the Non-Amneal Directors or the removal of any Non-Amneal Director; or
(E) call for, or initiate, propose or requisition a call for, any general or special meeting of the Company’s stockholders in furtherance of the actions described in subclause (D).
(ii) Notwithstanding the foregoing Section 4.1(d)(i) ,
(A) if at any time the Amneal Group Representative loses the right to designate one or more Amneal Designees pursuant to Article III as a result of issuances of Company Securities by the Company, Amneal Group shall be permitted to acquire up to the number of shares of Company Common Stock that is the number of shares of Company Common Stock required to cause the Amneal Group Representative to regain the right to designate such number of Amneal Designee(s) that the Amneal Group Representative was entitled to designate as of immediately prior to such issuance, plus one percent (1%) of the outstanding shares of Company Common Stock; and
(B) if at any time the Amneal Group Representative loses the right to designate one or more Amneal Designees pursuant to Article III as a result of Transfers by any Amneal Group Member of beneficial ownership of shares of Company Common Stock, the other Amneal Group Members shall be permitted to acquire collectively up to the number of shares of Company Common Stock that is the number of shares of Company Common Stock required to cause the Amneal Group Representative to regain the right to designate such number of Amneal Designee(s) that the Amneal Group Representative was entitled to designate as of immediately prior to such Transfer, plus one percent (1%) of the outstanding shares of Company Capital Stock.
(iii) The foregoing Section 4.1(d)(i) shall not prohibit:
(A) Amneal Group from acquiring Company Common Stock by way of stock splits or stock dividends paid by the Company to all holders of Company Common Stock on a pro rata basis;
(B) acquisitions of Company Common Stock by Affiliates of Amneal Group pursuant to Transfers permitted by Section 4.1(c) ;
(C) acquisitions of Company Common Stock pursuant to Section 4.3 ; or
(D) Amneal Group from acquiring Company Common Stock pursuant to and in accordance with the terms of the Amneal Pharmaceuticals LLC Agreement.
(e) Legend . Any stock certificates representing the Company Common Stock held by Amneal Group Members shall include a legend referencing the transfer restrictions set forth herein and in the Company’s Charter.
(f) Buyout Transaction . Any proposal by any Amneal Group Member to acquire in a transaction or series of related transactions reasonably expected to result in the acquisition of all of the Company Common Stock held by Other Stockholders must be subject to (i) the review, evaluation and prior written consent of the Conflicts Committee and (ii) for so long as Amneal Group beneficially owns more than thirty seven and one half percent (37.5%) of the outstanding shares of Company Common Stock, a non-waivable condition that a majority of the voting power of the outstanding shares of Company Common Stock held by Other Stockholders approve the transaction (or equivalent tender offer condition).
 4.2 Related Party Transactions .
(a) All proposed Related Party Transactions contemplated by the Transaction Documents between the Company and any Amneal Group Member have been approved by the Company Board in connection with its
 
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approval of this Agreement. Any material amendments to or material modifications or terminations of or material waivers, consents or elections under any Related Party Transactions contemplated by the Transaction Documents shall require the prior written consent of the Conflicts Committee if such Related Party Transactions (absent the application of the immediately preceding sentence) would require the prior written consent of the Conflicts Committee under the Conflicts Committee Charter. The prior written consent of the Conflicts Committee shall be required with respect to (i) any material amendments or modifications or terminations of any of the Transaction Documents (including, for the avoidance of doubt, the schedules thereto) and (ii) any material waivers, consents (other than any consents of the managing member of Amneal Pharmaceuticals LLC contemplated by the Amneal Pharmaceuticals LLC Agreement where no Amneal Group Member is a counterparty to or beneficiary of the matter in question and such matter would not otherwise require the prior written consent of the Conflicts Committee under this Section 4.2(a) ) or elections of the Company’s or Amneal Pharmaceuticals LLC’s rights under any of the Transaction Documents (including, for the avoidance of doubt, the schedules thereto).
(b) All Related Party Transactions that are not contemplated by the Transaction Documents shall require the prior written consent of the Conflicts Committee if such Related Party Transactions would require the prior written consent of the Conflicts Committee under the Conflicts Committee Charter.
4.3 Participation Rights .
(a) To the extent permitted under NYSE rules, the Company hereby grants to Amneal Group the right to purchase the Pro Rata Portion of any Company Securities (other than any Excluded Securities) that the Company may from time to time propose to issue or sell to any Person, which right shall be exercisable by the Amneal Group Representative on behalf of Amneal Group. For purposes of this Section 4.3 , “ Excluded Securities ” means Company Securities issued in connection with: (i) a grant to any existing or prospective consultants, employees, officers or directors pursuant to any stock option, restricted stock award, restricted stock unit, performance share, employee stock purchase or similar equity-based plans or other compensation agreement or arrangement; (ii) any acquisition by the Company of the stock, assets, properties or business of any Person; (iii) a stock split, stock dividend or any similar recapitalization affecting the number of outstanding shares of stock or securities; (iv) any issuance of shares of Class A Common Stock or Class B-1 Common Stock upon a Redemption (as defined in the Amneal Pharmaceuticals LLC Agreement) of Amneal Units held by any Amneal Group Member or (v) any issuance of warrants or other similar rights to purchase Company Common Stock to lenders or other institutional investors in any arm’s length transaction providing debt financing to the Company or any of its Subsidiaries. For the avoidance of doubt, to the extent stockholder approval is required under the NYSE rules for the issuance or sale of Company Securities as provided in this Section 4.3 , (x) the Company may issue or sell Company Securities to such other Persons prior to obtaining such stockholder approval in accordance with Section 4.3(d) (to the extent no stockholder approval is required for the issuance or sale of Company Securities to such other Persons), and (y) the Company shall use its reasonable best efforts to obtain such approval, and after receipt of such approval the Company shall issue or sell the Company Securities (if any) that any Amneal Group Member has irrevocably elected to purchase to such Amneal Group Member, on the terms set forth in the relevant Issuance Notice.
(b) The Company shall give written notice (an “ Issuance Notice ”) of any proposed issuance or sale described in Section 4.3(a) to Amneal Group within five (5) Business Days following any meeting of the Company Board at which any such issuance or sale is approved or, if the approval of the Company Board is not required in connection with such issuance or sale, no less than ten (10) Business Days prior to the date of the proposed issuance or sale. The Issuance Notice shall, if applicable, be accompanied by a written offer from any prospective purchaser seeking to purchase Company Securities and shall set forth the material terms and conditions of the proposed issuance, including:
(i) the number and class of the Company Securities to be issued and the percentage of the outstanding shares of capital stock of the Company such issuance would represent;
(ii) the proposed issuance date, which shall be at least ten (10) Business Days from the date of the Issuance Notice; and
(iii) the proposed purchase price per Company Security.
 
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(c) Amneal Group shall for a period of ten (10) Business Days following the receipt of an Issuance Notice have the right to elect irrevocably to purchase the Pro Rata Portion of the Company Securities at the purchase price set forth in the Issuance Notice by delivering a written notice to the Company, which right shall be exercisable on behalf of Amneal Group by the Amneal Group Representative. If, at the termination of such ten (10) Business Day period, the Amneal Group Representative shall have failed to deliver such notice to the Company, Amneal Group shall be deemed to have waived all of its rights under this Section 4.3 with respect to the purchase of such Company Securities. The closing of any purchase by the Amneal Group Representative shall be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice; provided , however , that the closing of any purchase by the Amneal Group Representative may be extended beyond the closing of the transaction in the Issuance Notice to the extent necessary to obtain any required approval or consent of a Governmental Entity or any other third party (and the Company and Amneal Group shall use their respective reasonable best efforts to obtain such approvals).
(d) Upon the expiration of the ten (10) Business Day period described in Section 4.3(c) , the Company shall be free to sell such Company Securities that the Amneal Group Representative has not elected irrevocably to purchase on terms and conditions no more favorable to the purchasers thereof than those offered to Amneal Group in the Issuance Notice delivered in accordance with Section 4.3(b) .
 ARTICLE V
REGISTRATION RIGHTS
 5.1 Shelf Registration Statement . Prior to the Closing, the Amneal Group Representative and Impax shall jointly prepare, and Impax shall cause the Company to file with the SEC (no later than five (5) Business Days following the later of (i) the date on which the Registration Statement on Form S-4, to be jointly prepared by Amneal and Impax and filed by the Company in accordance with Section 6.01 of the Transaction Agreement (the “ Form S-4 Registration Statement ”), is declared effective by the SEC and (ii) the date that Impax has received all information reasonably required from Amneal Group for inclusion in the Shelf Registration Statement, to the extent such information was not previously included in the Form S-4 Registration Statement) a “shelf” registration statement on Form S-1 with the SEC with respect to resales of all Registrable Shares to be held by Amneal Group following the Closing in accordance with Rule 415 (together with any additional registration statements filed to register any Registrable Shares, the “ Shelf Registration Statement ”). Prior to the Closing, Impax shall use its reasonable best efforts to cause the Company to, and following the Closing the Company shall, use its reasonable best efforts to (i) cause the Shelf Registration Statement on Form S-1 filed pursuant to this Section 5.1 to be declared effective under the Securities Act as promptly as reasonably possible after filing with the SEC and (ii) maintain the effectiveness of (and availability for use of) such Shelf Registration Statement on Form S-1 (including by, without limitation, filing any post-effective amendments thereto or prospectus supplements in respect thereof) until a Shelf Registration Statement on Form S-3 has been declared effective pursuant to the below. Upon becoming eligible to use Form S-3, the Company shall promptly file a Shelf Registration Statement on Form S-3, which may be in the form of a post-effective amendment to the Shelf Registration Statement on Form S-1, covering all of the then Registrable Shares and will maintain the effectiveness of the Shelf Registration Statement on Form S-3 (or such comparable or successor form) then in effect until such time as there are no Registrable Shares. Notwithstanding the foregoing provisions of this Section 5.1 , if the SEC prevents the Company from including on a registration statement any or all of the Registrable Shares to be registered pursuant to this Section 5.1 due to limitations on the use of Rule 415 of the Securities Act for the resale of Registrable Shares by Amneal Group (a “ Rule 415 Limitation ”), such registration statement shall register the resale of a number of Registrable Shares which is equal to the maximum number of shares as is permitted by the SEC, and the Company shall use its reasonable best efforts to register all such remaining Registrable Shares for resale as promptly as reasonably practicable in accordance with the applicable rules, regulations and guidance of the SEC. In such event, the number of Registrable Shares to be registered for each Amneal Group Member in such registration statement shall be reduced pro rata (i) first, among all Amneal Group Members and (ii) second, among purchasers of Company Common Stock in any Company-Assisted PIPE
 
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Transaction, in each case based on the proportion that the number of Registrable Shares held by such Amneal Group Member or shares held by such purchasers pursuant to such registration statement bears to the total number of Registrable Shares or shares held by such purchasers, as applicable, to be registered pursuant to such registration statement.
 5.2 Blackout Periods . Notwithstanding anything in Section 5.1 to the contrary, the Company shall be entitled to postpone and delay the filing or effectiveness (but not the preparation) of any registration statement or the offer or sale of any Registrable Shares thereunder (i) for reasonable periods of time in advance of the release of the Company’s quarterly and annual financial results and (ii) for reasonable periods of time, not in excess of an aggregate of sixty (60) calendar days in any twelve (12)-month period and in no event more than two times in any twelve (12)-month period (any such postponement and delay permitted by this Section 5.2 being, a “ Blackout Period ”), if (A) the Conflicts Committee determines in its good faith judgment that any such filing or effectiveness of a registration statement or the offering or sale of any Registrable Shares thereunder would (1) materially impede, materially delay or otherwise materially interfere with any pending or proposed material acquisition, disposition, corporate reorganization or other similar material transaction involving the Company as to which the Company has taken substantial steps and is proceeding with reasonable diligence to effect, (2) materially adversely affect any registered underwritten public offering of the Company’s securities for the Company’s account as to which the Company has taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering, or (3) require disclosure of material non-public information which, in the reasonable discretion of the Board, acting in good faith, would have a material adverse effect on the business, operations or management of the Company or any of its Affiliates if disclosed at such time or (B) the Conflicts Committee determines in its good faith judgment that it is necessary to amend or supplement the affected registration statement or the related prospectus so that such registration statement or prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided , however , that the Company shall give written notice to each Amneal Group Member that holds Registrable Shares of its determination to postpone or delay the filing of such registration statement or other imposition of a Blackout Period and a general statement of the reason for such deferral and an approximation of the anticipated delay; provided , further , that in the event that the Company proposes to register shares of Class A Common Stock (other than in connection with a registered underwritten public offering of the Company’s securities for the Company’s account) during a Blackout Period, the Company shall not pursuant to this Section 5.2 be entitled to postpone or delay the filing or effectiveness of any registration statement or the offer or sale of any Registrable Shares during such Blackout Period. Upon notice by the Company to Amneal Group of any such determination, each Amneal Group Member shall, except as required by applicable Law, keep the fact of any such notice strictly confidential, and during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any shares of Class A Common Stock pursuant to the registration statement for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any prospectus or prospectus supplement covering such Registrable Shares for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed by the Company, shall deliver to the Company any copies then in its possession of any such prospectus or prospectus supplement. A deferral of the filing or effectiveness of a registration statement or other imposition of a Blackout Period pursuant to this Section 5.2 shall be lifted as soon as practicable (and in no event later than the 46 th calendar day in any 12-month period), and the Company shall promptly (and in any event within five (5) Business Days) notify each Amneal Group Member, upon the circumstances giving rise to such Blackout Period no longer being present.
 5.3 Demand Underwritten Offerings .
(a) In the period following the expiration of the Lockup Period during which a Shelf Registration Statement covering the Registrable Shares is effective, if any Amneal Group Member (the “ Participating Amneal Members ”) delivers notice to the Company (such notice to be delivered no less than ten (10) Business Days prior
 
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to the date the underwriting agreement for any underwriting pursuant to this Section 5.3 is expected to be executed) stating that it intends to effect an underwritten public offering of all or part of its Registrable Shares included on the Shelf Registration Statement (a “ Demand Underwritten Offering ”), the Company shall use its reasonable best efforts to amend or supplement the Shelf Registration Statement or related prospectus as may be necessary in order to enable such Registrable Shares to be distributed pursuant to the underwritten offering. Amneal Group shall only be entitled to offer and sell its Registrable Shares pursuant to a Demand Underwritten Offering if the aggregate amount of Registrable Shares to be offered and sold in such offering by the Participating Amneal Members are reasonably expected to result in aggregate gross proceeds (based on the current market price of the number of Registrable Shares to be sold) of not less than $75 million.
(b) Notwithstanding anything set forth herein to the contrary, following the Closing, (i) no Demand Underwritten Offering may be requested prior to the expiration of the Lockup Period, (ii) the Company may delay the commencement of any Demand Underwritten Offering for the same reasons as the Company may institute a Blackout Period prior to the commencement of any marketing efforts or “road shows” by the Company or the underwriters in connection with such Demand Underwritten Offering, and (iii) Amneal Group, collectively, shall have the right to request no more than an aggregate of two (2) Demand Underwritten Offerings or Company-Assisted PIPE Transactions in any twelve (12)-month period (other than the first Company-Assisted PIPE Transaction in any such twelve (12)-month period). Any request for a Demand Underwritten Offering under this Section 5.3 may be revoked or withdrawn upon written notice by the Participating Amneal Members to the Company; provided , that any such Demand Underwritten Offering withdrawn or not consummated for any reason shall be counted toward the total of two (2) Demand Underwritten Offerings or Company-Assisted PIPE Transactions permitted to be requested in any twelve (12)-month period; provided , however , that no revoked or withdrawn Demand Underwritten Offering or Company-Assisted PIPE Transaction shall be counted for determining the number of Demand Underwritten Offerings or Company-Assisted PIPE Transactions requested in any twelve (12)-month period if (1) Amneal Group reimburses the Company for all of its out-of-pocket costs and expenses incurred in connection with any such revoked or withdrawn Demand Underwritten Offering or Company-Assisted PIPE Transaction incurred through the date of such revocation or withdrawal and (2) such revocation or withdrawal shall have been made prior to the commencement of any marketing efforts or “road shows” by the Company or the underwriters in connection with such Demand Underwritten Offering or Company-Assisted PIPE Transaction; provided , further , that the Participating Amneal Members shall be entitled, at any time after receiving notice of the imposition of any Blackout Period by the Company, to withdraw a request for a Demand Underwritten Offering or Company-Assisted PIPE Transaction and, if such request is withdrawn, such Demand Underwritten Offering or Company-Assisted PIPE Transaction shall not count toward the total of two (2) Demand Underwritten Offerings or Company-Assisted PIPE Transactions permitted to be requested in any twelve (12)-month period.
(c) In connection with any Demand Underwritten Offering or Company-Assisted PIPE Transaction, the managing underwriter or placement agent (if any) for such offering shall be selected by the Participating Amneal Members, subject to the prior approval of the Company (which approval shall not be unreasonably withheld, conditioned or delayed).
(d) The Company may include Company Common Stock other than Registrable Shares in a Demand Underwritten Offering for any accounts on the terms provided below. If the managing underwriter of any proposed Demand Underwritten Offering informs the Company and the Participating Amneal Members that, in its or their opinion, the number of Registrable Shares which such Participating Amneal Members and any other Persons intend to include in such offering exceeds the number which can be sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the Registrable Shares offered, then the Registrable Shares to be included in such underwritten offering shall be (i) first, if requested by the Company on behalf of TPG, the number of shares of Company Common Stock TPG proposes to sell equal to at least the lesser of (A) 50% of the dollar value of the shares of Company Common Stock to be sold in the Demand Underwritten Offering or (B) $150,000,000 of shares of Company Common Stock, (ii) second, and only if all the shares referred to in clause (i) have been included, the
 
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number of shares of Registrable Shares that the Participating Amneal Members propose to sell, with such number to be allocated pro rata ( provided , that any securities thereby allocated to a Participating Amneal Member that exceed such a Participating Amneal Member’s request shall be reallocated among the remaining requesting a Participating Amneal Members in like manner) and (iii) third, and only if all the shares referred to in clause (ii) have been included, the number of shares of Company Common Stock proposed to be included therein by any other Persons (including Company Common Stock to be sold for the account of the Company) allocated among such Persons in such manner as the Company may determine.
(e) Amneal Group may request in writing that the Company provide assistance in connection with any PIPE Transaction proposed by Amneal Group (a “ Company-Assisted PIPE Transaction ”). Subject to the limitations on the number of Company-Assisted PIPE Transactions in Section 5.3(b) , the Company shall cause its management to support the marketing of the Company Securities included in the Company-Assisted PIPE Transaction and make themselves reasonably available for assistance in the selling effort for such Company-Assisted PIPE Transaction, including, but not limited to, the participation of such members of the Company’s management in road show presentations and the execution of customary stock purchase agreements, engagement letters or ancillary documentation in connection therewith and making customary representations and warranties and covenants and delivering or causing the delivery thereunder of customary deliveries for the subject company in such transaction.
(f) Nothing in this Article V shall affect, supersede or otherwise modify any of the restrictions on Transfer set forth in Article IV or any other provision of this Agreement.
 5.4 Piggyback Registration .
(a) Whenever the Company proposes to publicly sell or register for sale any of its securities in an underwritten offering pursuant to a registration statement (a “ Piggyback Registration Statement ”) under the Securities Act (other than a registration statement on Form S-8 or on Form S-4 or any similar successor forms thereto) (a “ Piggyback Registration ”), the Company shall give prompt written notice to Amneal Group of its intention to effect such sale or registration (the “ Piggyback Registration Notice ”) and, subject to Section 5.4(b) , shall include in such transaction all Registrable Securities with respect to which the Company has received a written request from any Amneal Group Member for inclusion therein within fifteen (15) days after the receipt of the Company’s notice. The Company may postpone or withdraw the filing or the effectiveness of a Piggyback Registration at any time in its sole discretion, without prejudice to any Amneal Group Member’s right to immediately request a Demand Underwritten Offering hereunder.
(b) If the managing underwriter or underwriters of any proposed underwritten offering of Registrable Shares included in a Piggyback Registration informs the Company and the Amneal Group Members that have requested to participate in such offering that, in its or their opinion, the number of Registrable Shares which such Amneal Group Members and any other Persons intend to include in such offering exceeds the number which can be sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the Registrable Shares offered, then the Registrable Shares to be included in such underwritten offering shall be (i) first, if requested by the Company on behalf of TPG, the number of shares of Company Common Stock TPG proposes to sell equal to at least the lesser of (A) 50% of the dollar value of the shares of Company Common Stock to be sold in the Demand Underwritten Offering or $150,000,000 of shares of Company Common Stock, (ii) second, and only if all the shares referred to in clause (i) have been included, the shares of Class A Common Stock that the Company proposes to sell, (iii) third, and only if all the shares referred to in clause (ii) have been included, the number of Registrable Shares that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect, with such number to be allocated pro rata (A) first, among purchasers of Company Common Stock in any Company-Assisted PIPE Transaction and (B) second, among the Amneal Group Members, in each of (A) and (B), that have requested to participate in such offering based on the relative number of Registrable Shares then held by each such holder ( provided , that any securities thereby allocated to an Amneal Group Member that exceed such Amneal Group Member’s request
 
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shall be reallocated among the remaining requesting Amneal Group Members in like manner) and (iv) fourth, and only if all of the Registrable Shares referred to in clause (iii) have been included in such Registration, any other securities eligible for inclusion in such offering.
(c) No registration of Registrable Shares effected pursuant to a request under this Section 5.4 shall be deemed to have been effected pursuant to Section 5.3 or shall relieve the Company of its obligations under Sections 5.1 through 5.3 .
 5.5 Registration Procedures .
(a) In connection with each registration statement prepared pursuant to this Article V pursuant to which Registrable Shares will be offered and sold, and in accordance with the intended method or methods of distribution of the Registrable Shares as described in such registration statement, the Company shall as expeditiously as reasonably possible:
(i) prepare and file with the SEC such registration statement on an appropriate registration form of the SEC and use reasonable best efforts to cause such registration statement to become effective under the Securities Act as promptly as reasonably practicable after the filing thereof, which registration statement shall comply as to form in all materials respects with the requirements of the applicable form and include all financial statements required by such form to be filed therewith; provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to one counsel selected by Amneal Group (which such counsel shall be confirmed to the Company in writing (the “ Counsel ”)) draft copies of all such documents proposed to be filed (other than any portion of any thereof which contains information for which the Company has sought confidential treatment) as far in advance as reasonably practicable prior to filing (and in any event at least five (5) Business Days prior to such filing or such shorter time period as may be agreed by the Amneal Group and the Company), which documents will be subject to the reasonable review and (except for exhibits) comment of the Amneal Group and the Counsel and the underwriters in connection with any underwritten offering, and the Company shall not file any amendment or supplement to the Form S-4 Registration Statement or the Shelf Registration Statement to which the Amneal Group or any such underwriters shall reasonably object;
(ii) furnish without charge to each Amneal Group Member and the underwriters, if any, at least one conformed copy of the registration statement and each post-effective amendment or supplement thereto (including all schedules and exhibits but excluding all documents incorporated or deemed incorporated therein by reference, unless requested in writing by any Amneal Group Member or an underwriter, except to the extent such exhibits and schedules are currently available via EDGAR and other than any portion of any thereof which contains information for which the Company has sought confidential treatment) and such number of copies of the registration statement and each amendment or supplement thereto (excluding exhibits and schedules) and the summary, preliminary, final, amended or supplemented prospectuses included in such registration statement as each Amneal Group Member or such underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Shares being sold by such Amneal Group Member (the Company hereby consents to the use in accordance with the U.S. securities laws of such registration statement (or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) by such Amneal Group Member and the underwriters, if any, in connection with the offering and sale of the Registrable Shares covered by such registration statement or prospectus);
(iii) keep such registration statement effective and updated (including the filing of a new registration statement upon the expiration of a prior one) with respect to the disposition of all Registrable Securities subject thereto until the date on which there are no Registrable Shares (the “ Effective Period ”), and prepare and file with the SEC such amendments, post-effective amendments and supplements to the registration statement and the prospectus as may be necessary to maintain the effectiveness of the registration for the Effective Period) and cause the prospectus (and any amendments or supplements thereto) to be filed with the SEC;
 
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(iv) use its reasonable best efforts to register or qualify the Registrable Shares covered by such registration statement under such other securities or “blue sky” laws of such jurisdictions in the United States as are reasonably necessary, keep such registrations or qualifications in effect for so long as the registration statement remains in effect, and do any and all other acts and things which may be reasonably necessary to enable an Amneal Group Member or any underwriter to consummate the disposition of the Registrable Shares in such jurisdictions; provided , however , that in no event shall the Company be required to (A) qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this clause (iv), be required to be so qualified, (B) execute or file any general consent to service of process under the laws of any jurisdiction, (C) take any action that would subject it to service of process in suits other than those arising out of the offer and sale of the securities covered by the registration statement, or (D) subject itself to taxation in any jurisdiction where it would not otherwise be obligated to do so, but for this clause (iv);
(v) use its reasonable best efforts to cause all Registrable Shares covered by such registration statement to be listed (after notice of issuance) on the NYSE or on the principal securities exchange or interdealer quotation system on which Class A Common Stock is then listed or quoted;
(vi) promptly notify Amneal Group and the managing underwriter or underwriters in connection with any underwritten offering after becoming aware thereof, (A) when the registration statement or any related prospectus or any amendment or supplement thereto has been filed, and, with respect to the registration statement or any post-effective amendment, when the same has become effective, (B) of any request by the SEC or any U.S. state securities authority for amendments or supplements to the registration statement or the related prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Shares for sale in any jurisdiction or the initiation of any proceeding for such purpose, or (E) within the Effective Period of the happening of any event or the existence of any fact which makes any statement in the registration statement or any post-effective amendment thereto, prospectus or any amendment or supplement thereto, or any document incorporated therein by reference untrue in any material respect or which requires the making of any changes in the registration statement or post-effective amendment thereto or any prospectus or amendment or supplement thereto so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(vii) during the Effective Period, use its reasonable best efforts to obtain the withdrawal of any order enjoining or suspending the use or effectiveness of the registration statement or any post-effective amendment thereto or the lifting of any suspension of the qualification of any of the Registrable Shares for sale in any jurisdiction;
(viii) deliver to Amneal Group and the managing underwriters in connection with any underwritten offering copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement (except to the extent such correspondence is currently available via EDGAR or relates to information subject to a confidential treatment request); provided that any such investigation shall not interfere unreasonably with the Company’s business;
(ix) provide and cause to be maintained a transfer agent and registrar for all Registrable Shares covered by such registration statement not later than the effective date of such registration statement;
(x) cooperate with Amneal Group and the managing underwriter or underwriters in connection with any underwritten offering to facilitate the timely preparation and delivery of certificates representing the Registrable Shares to be sold under the registration statement in a form eligible for deposit with the Depository Trust Corporation not bearing any restrictive legends (other than as required by the Depository Trust Corporation) and not subject to any stop transfer order with any transfer agent, and cause such
 
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Registrable Shares to be issued in such denominations and registered in such names as the managing underwriters in connection with any underwritten offering may request in writing or, if not an underwritten offering, in accordance with the instructions of the relevant Amneal Group Members, in each case at least two (2) Business Days prior to any sale of Registrable Shares;
(xi) in the case of a firm commitment underwritten offering, enter into, concurrently with the relevant Amneal Group Members, an underwriting agreement customary in form and substance (taking into account the Company’s prior underwriting agreements) for a firm commitment underwritten secondary offerings of the nature contemplated by the applicable registration statement;
(xii) obtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data is, or is required to be, included in the registration statement) in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters in connection with an offering of the nature contemplated by the applicable registration statement;
(xiii) provide to the Counsel and to the managing underwriters in connection with any underwritten offering and no later than the time of filing of any document which is to be incorporated by reference into the registration statement or prospectus (after the initial filing of such registration statement), copies of any such document;
(xiv) cause its management to use commercially reasonable efforts to support the marketing of the Registrable Shares covered by a Demand Underwritten Offering or Company-Assisted PIPE Transaction and make themselves reasonably available for assistance in the selling effort covered by such transactions, including, but not limited to, the participation of such members of the Company’s management in road show presentations; and
(xv) otherwise comply with all applicable rules and regulations of the SEC and any applicable national securities exchange.
(b) In the event that the Company would be required, pursuant to Section 5.5(a)(vi)(E) to notify Amneal Group or the managing underwriter or underwriters in connection with any underwritten offering of the occurrence of any event specified therein, the Company shall, subject to Section 5.5(c) , as promptly as practicable, prepare and furnish to Amneal Group and to each such underwriter a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of Registrable Shares that have been registered pursuant to this Agreement, such prospectus shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each Amneal Group Member agrees that, upon receipt of any notice from the Company pursuant to Section 5.5(a)(vi)(C) , Section 5.5(a)(vi)(D) or Section 5.5(a)(vi)(E) hereof, it shall, and shall use all reasonable best efforts to cause any sales or placement agent or agents for the Registrable Shares and the underwriters, if any, to, forthwith discontinue disposition of the Registrable Shares until such Person shall have received notice from the Company that such offers and sales of the Registrable Shares may be resumed and, if applicable, such Person shall have received copies of such amended or supplemented prospectus and, if so directed by the Company, to destroy all copies, other than permanent file copies, then in its possession of the prospectus (prior to such amendment or supplement) covering such Registrable Shares as soon as practicable after the Amneal Groups Members’ receipt of such notice.
(c) In the case of any Demand Underwritten Offering or Piggyback Registration, all Registrable Shares to be included in such offering or registration, as the case may be, shall be subject to the applicable underwriting agreement and no Amneal Group Member may participate in such offering or registration unless such Amneal Group Member agrees to sell such Amneal Group Member’s securities on the basis provided therein and completes and executes all questionnaires, indemnities, underwriting agreements and other documents which
 
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must be executed in connection therewith, and provides such other information to the Company or the underwriter as may be reasonably requested to offer or register such Person’s Registrable Shares.
5.6  Obligations of Amneal Group .
(a) Amneal Group Information . Each Amneal Group Member shall furnish to the Company in writing such information (“ Required Amneal Group Member Information ”) regarding the Amneal Group Member, the Registrable Shares held by it and its intended method of distribution of the Registrable Shares as the Company may from time to time reasonably request in writing, and shall execute such documents in connection with such registration as may reasonably be required to effect the registration, in order for the Company to comply with its obligations under all applicable securities and other laws and to ensure that the prospectus relating to such Registrable Shares, or any amendment or supplement to a registration statement or prospectus, conforms to the applicable requirements of the Securities Act and the rules and regulations thereunder. If an Amneal Group Member fails to provide the requested information or execute such documents in connection with such registration as may reasonably be required to effect the registration within five (5) Business Days of the receipt by the Amneal Group Member of such request, the Company shall be entitled to refuse to register such Amneal Group Member’s Registrable Shares in the applicable registration statement. Each Amneal Group Member shall notify the Company as promptly as practicable of any inaccuracy or change in any Required Amneal Group Member Information previously furnished by such Amneal Group Member to the Company or of the occurrence of any event, in either case as a result of which any prospectus relating to the Registrable Shares contains or would contain an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in connection with any registration, and promptly furnish to the Company any additional information required to correct and update such previously furnished Amneal Group Member Information or required so that such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(b) Filing Cooperation . Each Amneal Group Member agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any registration statement in which any Registrable Shares held by such Amneal Group Member are being included.
(c) Holdback .
(i) The Company shall not effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the ten days prior to and during the 90-day period beginning on the pricing date in connection with any Demand Underwritten Offering or a Piggyback Registration, except pursuant to any registrations on Form S-4 or Form S-8 or any successor form or unless the underwriters managing any such public offering otherwise agree.
(ii) If requested by the managing underwriter(s) for an underwritten offering (primary or secondary) of any equity securities (or securities convertible into or exchangeable or exercisable for equity securities) of the Company, each Amneal Group Member hereby agrees not to effect any Transfer of any Class A Common Stock (or securities convertible into or exchangeable or exercisable for Class A Common Stock), including any sale pursuant to Rule 144 under the Securities Act, and not to effect any Transfer of any other equity security of the Company (in each case, other than as part of such underwritten public offering) during the ten (10) days prior to, and during the 90-day period (or such shorter period as the managing underwriter(s) may permit in writing) beginning on, the effective date of the related registration statement (or date of the prospectus supplement if the offering is made pursuant to a “shelf” registration) pursuant to which such underwritten offering shall be made, provided that all of the Company’s executive officers and directors and any other holders of Class A Common Stock who are selling shares of Class A Common Stock in such underwritten offering enter into similar agreements for the same time period and on no less restrictive terms.
 
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5.7  Expenses . Amneal Group shall bear all agent fees and commissions, underwriting discounts and commissions, and fees and disbursements of its counsel (including the Counsel) and its accountants in connection with any registration of any Registrable Shares pursuant to this Article V and any Company-Assisted PIPE Transaction. The Company shall bear all other fees and expenses in connection with any registration statement prepared, filed or caused to become effective pursuant to this Article V , including all registration and filing fees, all printing costs and all fees and expenses of counsel and accountants for the Company and its Subsidiaries.
5.8  Indemnification; Contribution .
(a) In the event any Registrable Shares are included in a registration statement contemplated by this Agreement, the Company shall, and it hereby agrees to, indemnify and hold harmless, or cause to be indemnified and held harmless, each Amneal Group Member and its respective officers, directors, employees and controlling Persons, if any, in any offering or sale of the Registrable Shares, against any losses, claims, damages or liabilities in respect thereof and expenses (including reasonable fees of counsel) (collectively, “ Claims ”), to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement effected with the consent of the Company as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse, upon request, each such Amneal Group Member for any legal or other out-of-pocket expenses reasonably incurred and documented by them in connection with investigating or defending any such Claims; provided , however , that the Company shall not be liable to any Amneal Group Member (or its officers, directors, employee and controlling Persons, if any) in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with the Required Amneal Group Member Information furnished to the Company in writing by such Amneal Group Member or on behalf of such Amneal Group Member by any Representative of the Amneal Group Member, expressly for use therein, that is the subject of the untrue statement or omission.
(b) In the event any Registrable Shares are included in a registration statement contemplated by this Agreement, each Amneal Group Member shall, and hereby agrees to, indemnify and hold harmless the Company and its officers, directors, employees and controlling Persons, if any, in any offering or sale of its Registrable Shares against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and each Amneal Group Member shall, and it hereby agrees to, reimburse the Company for any legal or other out-of-pocket expenses reasonably incurred and documented by the Company in connection with investigating or defending any such Claims, in each case only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Required Amneal Group Member Information furnished to the Company in writing by the Amneal Group Member or its Representative expressly for use therein that is the subject of the untrue statement or omission; provided , however , that the liability of each Amneal Group Member hereunder shall be limited to an amount equal to the dollar amount of the net proceeds received by such Amneal Group Member from the sale of Registrable Shares sold by such Amneal Group Member pursuant to such registration statement or prospectus.
(c) Amneal Group and the Company agree that if, for any reason, the indemnification provisions contemplated by Section 5.8(a) or Section 5.8(b) are unavailable to or are insufficient to hold harmless an
 
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indemnified party in respect of any Claims referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to the applicable offering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or by such indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the first sentence of this Section 5.8(c) is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 5.8(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in the preceding sentences of this Section 5.8(c) . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be deemed to include (subject to the limitations set forth in Section 5.9 ) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action, proceeding or claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the foregoing, no Amneal Group Member shall be liable to contribute any amount in excess of the dollar amount equal to the sum of (i) the net proceeds received by such Amneal Group Member from the sale of Registrable Shares sold by such Amneal Group Member pursuant to such registration statement or prospectus, minus (ii) any amounts paid or payable by such Amneal Group Member pursuant to Section  5.8(b) (except in the case of fraud or willful misconduct).
5.9  Indemnification Procedures .
(a) If an indemnified party shall desire to assert any claim for indemnification provided for under Section 5.8 in respect of, arising out of or involving a Claim against the indemnified party, such indemnified party shall notify the Company or the Amneal Group Member, as the case may be (the “ Indemnifying Party ”), in writing of such Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “ Claim Notice ”) promptly after receipt by such indemnified party of written notice of the Claim; provided , however , that failure to provide a Claim Notice shall not affect the indemnification obligations provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure. The indemnified party shall deliver to the Indemnifying Party, promptly after the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Claim; provided , however , that failure to provide any such copies shall not affect the indemnification obligations provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.
(b) The Indemnifying Party shall have the right to assume the defense of any Claim for which indemnification is being sought, including the employment of counsel reasonably satisfactory to the indemnified party and the payment of all reasonable fees and expenses incurred in connection with defense thereof. Should the Indemnifying Party so elect to assume the defense of a Claim, the Indemnifying Party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Claim and to employ counsel reasonably satisfactory to such indemnified party; or (3) such indemnified party shall have been advised by counsel that an actual or potential conflict of interest exists if the same counsel were to represent such
 
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indemnified party and the Indemnifying Party or any other indemnified party (in which case, if such indemnified party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party); provided , that the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to not more than one local counsel that may be required in the opinion of such firm) at any time for all indemnified parties hereunder. If the Indemnifying Party assumes such defense, the indemnified party shall have the right to participate in defense thereof and to employ counsel, at its own expense (except as provided in the immediately preceding sentence), separate from the counsel employed by the Indemnifying Party. If the Indemnifying Party chooses to defend any Claim, the indemnified party shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Claim, and the indemnified party shall use reasonable best efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld or delayed). The Indemnifying Party may pay, settle or compromise a Claim without the written consent of the indemnified party, so long as such settlement includes (i) an unconditional release of the indemnified party from all liability in respect of such Claim, (ii) does not subject the indemnified party to any injunctive relief or other equitable remedy, and (iii) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any indemnified party.
5.10 Rule 144 . The Company will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if the Company is not required to file such reports, will, upon the request of Amneal Group, make publicly available other information) and will take such further action as any Amneal Group Member may reasonably request, all to the extent required from time to time to enable each Amneal Group Member to sell Class A Common Stock without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such rule may be amended from time to time or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the reasonable request of any Amneal Group Member, the Company will deliver to such parties a written statement as to whether it has complied with such requirements and will, at its expense, forthwith upon the request of any such Amneal Group Member, deliver to such Amneal Group Member a certificate, signed by the Company’s principal financial officer, stating (a) the Company’s name, address and telephone number (including area code), (b) the Company’s Internal Revenue Service identification number, (c) the Company’s SEC file number, (d) the number of shares of each class of capital stock outstanding as shown by the most recent report or statement published by the Company, and (e) whether the Company has filed the reports required to be filed under the Exchange Act for a period of at least ninety (90) days prior to the date of such certificate and in addition has filed the most recent annual report required to be filed thereunder.
5.11 Preservation of Rights . The Company will not (i) grant any registration rights to third parties which are more favorable than or inconsistent with the rights granted hereunder or (ii) enter into any agreement, take any action, or permit any change to occur, with respect to its securities that violates or subordinates the rights expressly granted to Amneal Group in this Agreement. Notwithstanding the foregoing, the Company is hereby expressly permitted to grant the registration rights contemplated by Section 2 of that certain letter agreement, dated as of the date hereof, between the Company and TPG.
5.12 Transfer of Registration Rights . The rights of each Amneal Group Member under this Agreement may be assigned to any direct or indirect transferee of an Amneal Group Member permitted under this Agreement who agrees in writing to be subject to and bound by all the terms and conditions of this Agreement. In furtherance of the foregoing and in lieu of an assignment of rights pursuant to the foregoing sentence, if requested by any Amneal Group Member in connection with any such Transfer by an Amneal Group Member, the Company will enter into one or standalone registration rights agreements for the benefit of such direct or
 
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indirect transferee providing for registration rights that are substantially consistent with the rights of such Amneal Group Member under this Agreement.
ARTICLE VI
FINANCIAL AND OTHER INFORMATION
Unless otherwise expressly provided, each of the covenants and agreements in this Article VI shall terminate at the end of the fiscal year of the Company in which the Trigger Date occurs:
6.1 Exchange of Information . Until the end of the fiscal year of the Company in which the Trigger Date occurs, each of the members of Amneal Group and the Company Group, on behalf of itself and the other members of its respective Group, agrees to use commercially reasonable efforts to provide, or cause to be provided, to the other, at any time after the date hereof, as soon as reasonably practicable after written request therefor, any Information in the possession or under the control of such respective Group which the requesting party reasonably needs to comply with reporting, disclosure or filing requirements imposed on the requesting party or a member of its Group (including under applicable securities or Tax Laws) by a Governmental Entity having jurisdiction over the requesting party or such member of its Group; provided , however , that in the event that any Party determines that any such provision of Information could be commercially detrimental, violate any Law or agreement, or waive any attorney-client privilege, the Parties shall take reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence. In connection therewith, each Party shall use its commercially reasonable efforts to respond to reasonable requests from the other Party for information regarding the Information delivered pursuant to this Section  6.1 and, if requested, shall make appropriate personnel available to discuss such Information.
6.2 Ownership of Information . Any Information owned by one Group that is provided to a requesting Party pursuant to Section  6.1 shall be deemed to remain the property of the providing Group. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such Information.
6.3 Compensation for Providing Information . In connection with Information exchanged pursuant to Section  6.1 , the Party requesting Information agrees to reimburse the other Party for the reasonable, documented out-of-pocket costs, if any, of creating, gathering and copying such Information or otherwise performing, to the extent that such costs are incurred for the benefit of the requesting Party. Except as may be otherwise specifically provided elsewhere in this Agreement, or in any other agreement between the Parties, such costs shall be computed in accordance with the providing Party’s standard methodology and procedures.
6.4 Record Retention . To facilitate the possible exchange of Information pursuant to this Article  VI and other provisions of this Agreement, Amneal Group and the Company agree to use their reasonable best efforts to retain all Information in their respective possession or control in accordance with the policies of Amneal Group as in effect on the date of the Closing, to the extent such policies are communicated in writing to the Company reasonably in advance, or such other policies as may be reasonably adopted by the appropriate Party after the date hereof. Neither Party will destroy, or permit any of its Subsidiaries to destroy, any Information which the other Party may have the right to obtain pursuant to this Agreement prior to the fifth anniversary of the date of the Closing without first using its reasonable best efforts to notify the other Party of the proposed destruction and giving the other Party the opportunity to take possession of such Information prior to such destruction; provided , however , no Party will destroy, or permit any of its Subsidiaries to destroy, any Information required to be retained by applicable Law.
6.5 Production of Witnesses; Records; Cooperation .
(a) Except in the case of an adversarial Action by one Party against another Party, each member of Amneal Group and the Company shall use its reasonable best efforts to make available to each other Party, upon written
 
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request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such person (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents may reasonably be required in connection with any Action in which the requesting Party may from time to time be involved. The requesting Party shall bear all costs and expenses in connection therewith.
(b) Without limiting the foregoing, Amneal Group and the Company shall cooperate and consult to the extent reasonably necessary with respect to any Actions.
(c) In connection with any matter contemplated by this Section  6.5 , Amneal Group and the Company intend to and will maintain any applicable attorney-client privilege, work product doctrine, and other applicable privileges, doctrines, or immunities of any member of any Group.
6.6 Privilege . To the fullest extent permitted by law, the provision of any information pursuant to this Article  VI shall not be deemed a waiver of any privilege, including privileges arising under or related to the attorney-client privilege or any other applicable privilege (a “ Privilege ”). Neither the Company or any member of the Company Group nor any member of Amneal Group will be required to provide any information pursuant to this Article  VI if the provision of such information would serve as a waiver of any Privilege afforded such information.
ARTICLE VII
MISCELLANEOUS
7.1 Corporate Power . Each member of Amneal Group represents on behalf of itself and the Company represents on behalf of itself, as follows:
(a) each such Person has the requisite corporate or other power and authority and has taken all corporate or other action necessary in order to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby; and
(b) this Agreement has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms thereof.
7.2 Confidentiality .
(a) Company Confidential Information . For a period of four (4) years following the Closing Date, subject to Section  7.2(c) and except as contemplated by this Agreement or any Transaction Document, Amneal Group shall not, and shall cause its Subsidiaries and their respective officers, directors, employees, and other agents and representatives (collectively, “ Representatives ”), not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person, other than its Representatives or its Affiliates who reasonably need to know such information in providing services to any member of Amneal Group, any Company Confidential Information. If any disclosures are made in connection with providing services to any member of Amneal Group under this Agreement or any Transaction Document, then the Company Confidential Information so disclosed shall be disclosed solely to the extent necessary to perform such services. Amneal Group shall use the same degree of care to prevent and restrain the unauthorized use or disclosure of the Company Confidential Information by any of their Representatives as they currently use for their own confidential information of a like nature, but in no event less than a reasonable standard of care. For purposes of this Section  7.2(a) , any Information relating to the business currently or formerly conducted, or proposed to be conducted, by any member of the Company Group furnished to or in the possession of any member of Amneal Group, irrespective of the form of communication, and all notes, analyses, compilations, forecasts, data, translations, studies, memoranda or other documents
 
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prepared by any member of Amneal Group or their respective officers, directors and Affiliates, that contain or otherwise reflect such Information is hereinafter referred to as “ Company Confidential Information .” Company Confidential Information does not include, and there shall be no obligation hereunder with respect to, information that (i) is or becomes generally available to the public, other than as a result of a disclosure by any Amneal Group Member not otherwise permissible hereunder, (ii) Amneal Group can demonstrate was or became available to any Amneal Group Member from a source other than the Company or its Affiliates or (iii) is developed independently by an Amneal Group Member without reference to the Company Confidential Information; provided , however , that, in the case of clause (ii), the source of such information was not known by such member of Amneal Group to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, any member of the Company Group with respect to such information. In the event any Amneal Group Member receives Company Confidential Information after the Trigger Date, Amneal Group shall keep and shall cause its Representatives to keep such Company Confidential Information confidential for the period of one (1) year following the date such Company Confidential Information was disclosed to Amneal Group.
(b) Amneal Confidential Information . For a period of four (4) years following the Closing Date, subject to Section  7.2(c) and except as contemplated by this Agreement or any Transaction Document, the Company shall not, and shall cause its Affiliates and their respective Representatives, not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person, other than its Representatives or its Affiliates who reasonably need to know such information in providing services to the Company or any member of the Company Group, any Amneal Confidential Information. If any disclosures are made in connection with providing services to any member of the Company Group under this Agreement or any Transaction Document, then the Amneal Confidential Information so disclosed shall be disclosed solely to the extent necessary to perform such services. The Company Group shall use the same degree of care to prevent and restrain the unauthorized use or disclosure of the Amneal Confidential Information by any of their Representatives as they currently use for their own confidential information of a like nature, but in no event less than a reasonable standard of care. For purposes of this Section  7.2(b) , any Information relating to the businesses currently or formerly conducted, or proposed to be conducted, by Amneal Group or any of their respective Affiliates (other than any member of the Company Group) furnished to or in the possession of any member of the Company Group, irrespective of the form of communication, and all notes, analyses, compilations, forecasts, data, translations, studies, memoranda or other documents prepared by the Company, any member of the Company Group or their respective officers, directors and Affiliates, that contain or otherwise reflect such Information is hereinafter referred to as “ Amneal Confidential Information .” Amneal Confidential Information does not include, and there shall be no obligation hereunder with respect to, information that (i) is or becomes generally available to the public, other than as a result of a disclosure by any member of the Company Group not otherwise permissible hereunder, (ii) the Company can demonstrate was or became available to any member of the Company Group from a source other than Amneal Group or its Affiliates or (iii) is developed independently by a member of the Company Group without reference to the Amneal Confidential Information; provided , however , that, in the case of clause (ii), the source of such information was not known by a member of the Company Group to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, any member of Amneal Group with respect to such information. In the event any member of the Company Group receives Amneal Confidential Information after the Trigger Date, the Company shall keep and shall cause its Representatives to keep such Amneal Confidential Information confidential for the period of one (1) year following the date such Amneal Confidential Information was disclosed to the Company Group.
(c) If Amneal Group or its Affiliates, on the one hand, or the Company or its Affiliates, on the other hand, are requested or required (by oral question, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) by any Governmental Entity or pursuant to applicable Law or stock exchange requirements to disclose or provide any Company Confidential Information or Amneal Confidential Information, as applicable, the Person receiving such request or demand, or so required by applicable Law or stock exchange requirements, shall, to the extent practicable and legally permissible, promptly provide the other Party with advance written notice of such request, demand or requirement and will reasonably cooperate other
 
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Party (at such other Party’s sole expense) with the other Party’s efforts to seek confidential treatment of any Confidential Information to be disclosed and/or to obtain a protective order narrowing the scope of disclosure. Confidential Information that is disclosed pursuant to this Section  7.2(c) will remain otherwise subject to the confidentiality and non-use provisions set forth herein. Subject to the foregoing, the Party that received such request or demand may thereafter disclose or provide any Company Confidential Information or Amneal Confidential Information, as the case may be, only to the extent required by such Law or stock exchange requirement (as so advised by counsel) or by lawful process or such Governmental Entity.
7.3 Governing Law ; Consent to Jurisdiction . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any applicable principles of conflict of laws that would cause the Laws of another State to otherwise govern this Agreement. The Parties agree that any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any Party or any of its Affiliates or against any Party or any of its Affiliates) shall be heard and determined exclusively in the Delaware Court of Chancery; provided , that if the Delaware Court of Chancery does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in the Superior Court of the State of Delaware (Complex Commercial Division); provided , further , that if subject matter jurisdiction over the matter that is the subject of the Action is vested exclusively in the federal courts of the United States of America, such Action shall be heard in the United States District Court for the District of Delaware. Consistent with the preceding sentence, each of the Parties hereby (i) submits to the exclusive jurisdiction of such courts for the purpose of any Action arising out of or relating to this Agreement brought by any Party; (ii) agrees that service of process will be validly effected by sending notice in accordance with Section  7.5 ; (iii) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above named courts; and (iv) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
7.4 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS. EACH OF THE PARTIES HEREBY (A) CERTIFIED THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION  7.4 .
7.5 Notices . Except for notices that are specifically required by the terms of this Agreement to be delivered orally, all notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given, delivered and/or provided (a) when delivered personally, by facsimile (which is confirmed by a printed confirmation produced by the sending machine) or by e-mail of a .pdf attachment (for which a confirmation email is obtained), or (b) on the next Business Day when dispatched for overnight delivery by
 
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Federal Express or a similar courier, in either case, to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
If to Amneal Group, to:
Amneal Holdings, LLC
c/o AE Companies, LLC
995 Route 202/206
Bridgewater, NJ 08807
Attention: Chirag Patel
Email: chiragp@aecollc.com
and
Amneal Holdings, LLC
520 Newport Center Drive
Newport Beach, CA 92660
Attention: Edward G. Coss
Email: edc@tarsadia.com
with a copy to (which shall not constitute notice):
Latham & Watkins LLP
885 3rd Ave
New York, NY 10022
Attention: Charles K. Ruck; R. Scott Shean
Email: charles.ruck@lw.com; scott.shean@lw.com
If to the Company, to:
Amneal Pharmaceuticals, Inc.
400 Crossing Boulevard, Third Floor
Bridgewater, New Jersey 08807
Attn: General Counsel
with a copy to (which shall not constitute notice):
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attention: Francis J. Aquila
Email: aquilaf@sullcrom.com
7.6 Severability . If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under any applicable Law, then such contravention or invalidity shall not invalidate the entire Agreement. Such provision shall be deemed to be modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable, then this Agreement shall be construed as if not containing the provision held to be invalid, and the rights and obligations of the Parties shall be construed and enforced accordingly.
7.7 Entire Agreement . This Agreement (including the annexes, exhibits and letters hereto) and the Transaction Documents constitute the entire agreement, and supersede all other prior agreements and understandings (both written and oral), among the Parties with respect to the subject matter hereof and thereof.
7.8 Assignment; No Third-Party Beneficiaries . This Agreement shall not be assigned by any of the Parties without the prior written consent of the other Parties; provided , that notwithstanding the foregoing, each Amneal Group Member shall be entitled to assign such Amneal Group Member’s rights and obligations (i) under this
 
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Agreement, collectively, in connection with any Transfer of shares of Company Common Stock permitted under Section  4.1(b)(i)(E) , Section  4.1(b)(i)(F) or Section  4.1(c) (in which case such transferee shall, prior to any such Transfer, agree in a writing reasonably acceptable to the Company to be bound by the terms of this Agreement as a party hereto in the position of an Amneal Group Member) or (ii) under Article V (Registration Rights), in connection with any Transfer of Registrable Shares. This Agreement is for the sole benefit of the Parties to this Agreement and the members of their respective Group and their permitted successors and assigns, including any transferee in a Permitted Transfer (as defined in the Amneal Pharmaceuticals LLC Agreement), and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person or entity (other than the Conflicts Committee, which is an intended third party beneficiary of the covenants set forth in this Agreement) any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
7.9 Amendment; Waiver . No provision of this Agreement may be amended or modified except by a written instrument signed by all the Parties to such agreement; provided , that any material amendment or modification of this Agreement shall require the prior written consent of the Conflicts Committee. Either Party may, in its sole discretion, waive any and all rights granted to it in this Agreement; provided , that no waiver by any Party of any provision hereof shall be effective unless explicitly set forth in writing and executed by the Party so waiving; provided , further , that any waiver of any or all of the Company’s rights granted under this Agreement shall require the prior written consent of the Conflicts Committee. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other subsequent breach.
7.10 Interpretations . When a reference is made in this Agreement to an Article, Section or Schedule, such reference shall be to an Article, Section or Schedule to this Agreement unless otherwise indicated. The words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation.” Any references in this Agreement to “the date hereof” refers to the date of execution of this Agreement. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. References to “this Agreement,” “hereof,” “herein,” and “hereunder” refer to this Agreement as a whole and not to any particular provision of this Agreement and include any schedules, annexes, exhibits or other attachments to this Agreement. The word “or” shall be deemed to mean “and/or.” All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. The Parties have participated jointly in the negotiation and drafting of this Agreement with the assistance of counsel and other advisors and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement or interim drafts of this Agreement.
7.11 Privileged Matters .
(a) Each of the Parties agrees, on its own behalf and on behalf of its directors, officers, employees and Affiliates, that the law firms listed on Schedule  7.11(a) (the “ Impax Law Firms ”) may serve as counsel following consummation of the Transactions to the Company Group or any director, officer, employee or Affiliate of any member of the Company Group, in connection with any litigation, claim or obligation arising out of or relating to this Agreement, the other Transaction Documents or the Transactions notwithstanding any prior representation of Impax or any member of the Company Group by the Impax Law Firms. In connection with any representation expressly permitted pursuant to the prior sentence, Amneal Group hereby irrevocably waives and agrees not to
 
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assert any conflict of interest arising from or in connection with prior representation of Impax or any of its Affiliates by the Impax Law Firms. As to any privileged communications, or communications claimed to be privileged, in any form or format whatsoever between or among the Impax Law Firms, on the one hand, and Impax, the Company, any other member of the Company Group, or any of their respective directors, officers, employees or other representatives, on the other hand, prior to the Closing that relate to (i) the negotiation, documentation and consummation of the Transactions or any alternative transactions presented to or considered by Impax, the Company or any other member of the Company Group, or (ii) any dispute arising under this Agreement or the other Transaction Documents (collectively, the “ Privileged Impax Communications ”), Amneal Group, together with any of its Affiliates, successors or assigns, agrees that it and they may not use or rely on any of the Privileged Impax Communications in any action against or involving any of the other Parties after the Closing (other than in connection with any claim of fraud or any willful and material breach), absent an express waiver or consent by the pertinent member or members of the Company Group or a final determination by a court of law that the communication is not privileged.
(b) Each of the Parties agrees, on its own behalf and on behalf of its directors, officers, employees and Affiliates, that the law firms listed on Schedule  7.11(b) (the “ Amneal Law Firms ”) may serve as counsel following consummation of the Transactions to the Amneal Group or any director, officer, employee or Affiliate of any Amneal Group Member, in connection with any litigation, claim or obligation arising out of or relating to this Agreement, the other Transaction Documents or the Transactions notwithstanding any prior representation of Amneal Pharmaceuticals LLC or any of its Affiliates by the Amneal Law Firms. In connection with any representation expressly permitted pursuant to the prior sentence, Company Group hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with prior representation of Amneal Pharmaceuticals LLC or any of its Affiliates by the Amneal Law Firms. As to any privileged communications, or communications claimed to be privileged, in any form or format whatsoever between or among the Amneal Law Firms, on the one hand, and Amneal Pharmaceuticals LLC, any of its Affiliates (including any Amneal Group Member), or any of their respective directors, officers, employees or other representatives, on the other hand, prior to the Closing that relate to (i) the negotiation, documentation and consummation of the Transactions or any alternative transactions presented to or considered by Amneal or any other Amneal Group Member, or (ii) any dispute arising under this Agreement or the other Transaction Documents (collectively, the “ Privileged Amneal Communications ”), Company Group, together with any of its Affiliates, successors or assigns, agrees that it and they may not use or rely on any of the Privileged Amneal Communications in any action against or involving any of the other Parties after the Closing (other than in connection with any claim of fraud or any willful and material breach), absent an express waiver or consent by the pertinent member or members of the Amneal Group or a final determination by a court of law that the communication is not privileged.
7.12 Counterparts; Electronic Transmission of Signatures . This Agreement may be executed in any number of counterparts and by different Parties in separate counterparts, and delivered by means of electronic mail transmission or otherwise, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement.
7.13 Enforceable by the Conflicts Committee . All of the Company’s and Amneal Pharmaceuticals LLC’s rights under this Agreement and the other Transaction Documents may be enforced by the Conflicts Committee; provided that nothing in this Agreement shall require the Conflicts Committee to act on behalf of, or enforce any rights of, the Company or Amneal Pharmaceuticals LLC. Any recovery in connection with an Action brought by the Conflicts Committee hereunder or thereunder shall be for the proportionate benefit of all Other Stockholders.
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the next page is the signature page. ]
 
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

AMNEAL PHARMACEUTICALS
HOLDING COMPANY, LLC	
		
By:	 	/s/ Chirag Patel	
	 	Name:	 	Chirag Patel	
	 	Title:	 	Manager	
 
[ Signature Page to Stockholders Agreement ]

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AP CLASS D MEMBER, LLC	
		
By:	 	/s/ Chirag Patel	
	 	Name:	 	Chirag Patel	
	 	Title:	 	Manager	
 
[ Signature Page to Stockholders Agreement ]

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AP CLASS E MEMBER, LLC	
		
By	 	/s/ Chirag Patel	
	 	Name:	 	Chirag Patel	
	 	Title:	 	Manager	
 
[ Signature Page to Stockholders Agreement ]

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AH PPU MANAGEMENT, LLC	
		
By	 	/s/ Chirag Patel	
	 	Name:	 	Chirag Pate	
	 	Title:	 	Manager	
 
[ Signature Page to Stockholders Agreement ]

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ATLAS HOLDINGS, INC.	
		
By	 	/s/ Paul M. Bisaro	
	 	Name:	 	Paul Bisaro	
	 	Title:	 	Chief Executive Officer and
President	
 
[ Signature Page to Stockholders Agreement ]

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Exhibit A
ATLAS HOLDINGS, INC.
CONFLICTS COMMITTEE CHARTER
This Conflicts Committee Charter (the “Charter”) has been adopted by the Company Board of Directors (the “Company Board”) of Atlas Holdings, Inc., a Delaware corporation (the “Company”).
 
I.	Purpose	
The Conflicts Committee (the “Committee”) of the Company Board is responsible for providing leadership and guidance to the Company Board and the Company regarding transactions or situations involving potential conflicts of interest between any member of the Company Group, on the one hand, and any member of Amneal Group, or any director, officer, employee or associate of any Amneal Group Member, on the other hand.
This Charter is intended to implement the provisions of the Stockholders Agreement, dated as of October 17, 2017, by and among the Company and Amneal Group, as defined therein (as amended from time to time, the “Stockholders Agreement”). Capitalized terms used in this Charter but not otherwise defined have the meanings given to such terms in the Stockholders Agreement. In the event of any conflict between this Charter and the Stockholders Agreement, the provisions of the Stockholders Agreement shall prevail.
 
II.	Term and Composition	
The Committee shall exist until the first date on which Amneal Group ceases to beneficially own at least ten percent (10%) of the outstanding shares of the Company Common Stock.
The number of directors which constitute the Committee shall be determined by the Company Board from time to time. The Committee shall be comprised solely of Company Independent Directors appointed to serve on the Committee by a majority of the Company Independent Directors then serving on the Company Board. The Company Board shall elect or appoint a chairperson of the Committee (or, if it does not do so, the Committee members shall elect a chairperson by vote of a majority of the full Committee). The members of the Committee shall serve for a term of one year or until their successors shall be appointed and qualified. No member of the Committee shall be removed except by majority vote of the Company Independent Directors then serving on the Company Board. A majority of the Company Independent Directors then serving on the Company Board shall have the authority to fill vacancies or add additional members to the Committee.
 
III.	Meetings and Procedure	
The Committee shall meet as many times as it deems necessary or advisable to carry out its duties and responsibilities. The chairperson of the Committee or a majority of the members of the Committee may call a special meeting of the Committee. One or more meetings may be conducted in whole or in part by telephone conference call or similar means if it is impracticable to obtain the personal presence of each Committee member. A majority of the members of the Committee shall constitute a quorum.
Information and materials that are important to the Committee’s understanding of the agenda items and other topics to be considered at a Committee meeting should, to the extent practicable, be distributed sufficiently in advance of the meeting to permit prior review by the directors. In the event of a pressing need for the Committee to meet on short notice or if such materials contain highly confidential or sensitive information, it is recognized that written materials may not be available in advance of the meeting.
 
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The Company shall make available to the Committee, at its meetings and otherwise, such individuals and entities as may be designated from time to time by the Committee. Following each of its meetings, the Committee shall deliver a report on the meeting to the Company Board, including a description of all actions taken by the Committee at the meeting. The Committee shall keep written minutes of its meetings, which minutes shall be maintained with the books and records of the Company.
 
IV.	Responsibilities and Duties of the Conflicts Committee	
The Committee shall have the authority and responsibilities set forth in the Stockholders Agreement, the other Transaction Documents and as may otherwise be delegated to the Committee by the Nominating Committee or the Company Board from time to time. Such authority and responsibilities include but are not limited to:
 
 	A.	Review and report to the Company Board regarding potential conflicts of interest of directors and director nominees, and review the qualifications of directors and director nominees as Independent Directors and/or Company Independent Directors.	
 
 	B.	Review and approval of certain Transfers of shares of Company Common Stock by an Amneal Group Member to third parties as required pursuant to Section  4.1(b) of the Stockholders Agreement.	
 
 	C.	Review and approval of acquisitions of Company Common Stock by Amneal Group and certain other actions of Amneal Group as required pursuant to Section  4.1(d) of the Stockholders Agreement.	
 
 	D.	Determination of whether any transaction between any member of the Company Group, on the one hand, and any member of Amneal Group, or any director, officer, employee or associate of any Amneal Group Member, on the other hand, is a Related Party Transaction that must be reviewed and approved by the Committee in accordance with the criteria set forth in the immediately following sentence. Specifically, the Committee shall be responsible for the review and approval of the following:	
 
 	a.	Any Related Party Transaction that (i) involves aggregate amounts above $2,500,000, measured by payments (together with all substantially related payments) to or from the Company Group, or (ii) is otherwise material (with materiality defined in a manner consistent with the Company’s SEC disclosure requirements) to the Company Group, taken as a whole, in any non-monetary respect;	
 
 	b.	Any material amendments or modifications to, or terminations of, any of the Transaction Documents; and	
 
 	c.	Any material waivers, consents or elections of the Company’s or Amneal Pharmaceuticals LLC’s rights under any of the Transaction Documents (except as otherwise set forth in Section  4.2(a) of the Stockholders Agreement).	
 
 	E.	Review and approval of any proposal by any Amneal Group Member of a transaction, or series of related transactions, reasonably expected to result in the acquisition of all of the Company Common Stock held by Other Stockholders, pursuant to Section  4.1(f) of the Stockholders Agreement.	
 
 	F.	Determination of whether to impose a Blackout Period in accordance with Section  5.2 of the Stockholders Agreement.	
 
 	G.	Review and approval of any material amendment or modification of the Stockholders Agreement, or any material waiver of any or all of the Company’s rights granted under the Stockholders Agreement.	
 
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 	H.	Enforcement of the Company’s rights under the Stockholders Agreement and the other Transaction Documents, at the Committee’s sole discretion, pursuant to Section  7.13 of the Stockholders Agreement.	
 
 	I.	Approval of the Charter and any amendments, modifications or supplements hereto from time to time; provided that, any amendments, modifications or supplements of the Charter shall be approved by (x) seventy-five percent (75%) of the directors comprising the Company Board, (y) a majority of the Company Independent Directors then serving on the Company Board and (z) a majority of the Committee.	
 
V.	Advisors	
The Committee shall be fully empowered to requisition reasonable assistance from employees of the Company, including legal and financial staff, to retain independent legal, financial and other advisors, at the Company’s expense, as the Committee deems necessary and to approve or not approve any transaction or other matter submitted to the Committee (and such non-approval shall be binding on the Company Board). The Committee shall have sole authority to approve related fees and retention terms.
 
VI.	Delegation	
Any duties and responsibilities of the Committee may be delegated to a subcommittee of the Committee.
 
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Schedule 7.11(a)
Impax Law Firms
Sullivan & Cromwell LLP
McDermott Will and Emery LLP
 
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Schedule 7.11(b)
Amneal Law Firms
Latham & Watkins LLP
Richards Layton & Finger P.A.
 
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Exhibit 10.5

 
TAX RECEIVABLE AGREEMENT
by and among
AMNEAL PHARMACEUTICALS, INC.
AMNEAL PHARMACEUTICALS LLC and
THE MEMBERS OF AMNEAL PHARMACEUTICALS LLC
FROM TIME TO TIME PARTY HERETO
Dated as of [●]

 

CONTENTS

 	 	 	  	Page	 	
Article I. DEFINITIONS	  	 	1	 	
			
Section 1.1	 	Definitions	  	 	1	 	
Section 1.2	 	Rules of Construction	  	 	9	 	
		
Article II. DETERMINATION OF REALIZED TAX BENEFIT	  	 	9	 	
			
Section 2.1	 	Basis Adjustments; Amneal LLC 754 Election	  	 	9	 	
Section 2.2	 	Basis Schedules	  	 	10	 	
Section 2.3	 	Tax Benefit Schedules	  	 	10	 	
Section 2.4	 	Procedures; Amendments	  	 	11	 	
		
Article III. TAX BENEFIT PAYMENTS	  	 	12	 	
			
Section 3.1	 	Timing and Amount of Tax Benefit Payments	  	 	12	 	
Section 3.2	 	No Duplicative Payments	  	 	14	 	
Section 3.3	 	Pro-Ration of Payments as Between the Members	  	 	14	 	
		
Article IV. TERMINATION	  	 	14	 	
			
Section 4.1	 	Early Termination of Agreement; Breach of Agreement	  	 	14	 	
Section 4.2	 	Early Termination Notice	  	 	16	 	
Section 4.3	 	Payment Upon Early Termination	  	 	16	 	
		
Article V. SUBORDINATION AND LATE PAYMENTS	  	 	16	 	
			
Section 5.1	 	Subordination	  	 	16	 	
Section 5.2	 	Late Payments by the Corporation	  	 	17	 	
		
Article VI. TAX MATTERS; CONSISTENCY; COOPERATION	  	 	17	 	
			
Section 6.1	 	Participation in the Corporation’s and Amneal LLC’s Tax Matters	  	 	17	 	
Section 6.2	 	Consistency	  	 	17	 	
Section 6.3	 	Cooperation	  	 	18	 	
Section 6.4	 	Approvals	  	 	18	 	
Section 6.5	 	Tax Attributes	  	 	18	 	
		
Article VII. MISCELLANEOUS	  	 	19	 	
			
Section 7.1	 	Notices	  	 	19	 	
Section 7.2	 	Counterparts	  	 	19	 	
Section 7.3	 	Entire Agreement; No Third Party Beneficiaries	  	 	19	 	
Section 7.4	 	Governing Law	  	 	19	 	
Section 7.5	 	Severability	  	 	19	 	
Section 7.6	 	Assignments; Amendments; Successors; No Waiver	  	 	20	 	
Section 7.7	 	Titles and Subtitles	  	 	20	 	
Section 7.8	 	Resolution of Disputes	  	 	20	 	
Section 7.9	 	Reconciliation	  	 	21	 	
Section 7.10	 	Withholding	  	 	21	 	
Section 7.11	 	Admission of the Corporation into a Consolidated Group; Transfers of Corporate Assets	  	 	22	 	
Section 7.12	 	Confidentiality	  	 	22	 	
Section 7.13	 	Change in Law	  	 	23	 	
Section 7.14	 	Interest Rate Limitation	  	 	23	 	
Section 7.15	 	Independent Nature of Rights and Obligations	  	 	23	 	
 
i

Exhibits

Exhibit A	  	-	  	Form of Joinder Agreement	
 
ii

TAX RECEIVABLE AGREEMENT
This TAX RECEIVABLE AGREEMENT (this “ Agreement ”), dated as of [●], is hereby entered into by and among Amneal Pharmaceuticals, Inc., a Delaware corporation (the “ Corporation ”), Amneal Pharmaceuticals LLC, a Delaware limited liability company (“ Amneal LLC ”) and each of the Members from time to time party hereto. Capitalized terms used but not otherwise defined herein have the respective meanings set forth in Section  1.1 .
RECITALS
WHEREAS, Amneal LLC is treated as a partnership for U.S. federal income tax purposes;
WHEREAS, each of the members of Amneal LLC as of the date hereof other than the Corporation (such members, together with each other Person who becomes a party hereto by satisfying the Joinder Requirement, the “ Members ”) owns Units;
WHEREAS, the Corporation is the sole managing member of Amneal LLC;
WHEREAS, the Corporation has issued shares of its Class A common stock, par value $0.01 per share (“Class A Common Stock”);
WHEREAS, on and after the date hereof, pursuant to Section 11.01 of the LLC Agreement, each Member has the right, in its sole discretion, from time to time to have all or a portion of its Units redeemed by Amneal LLC for Class A Common Stock and/or Class B-1 Common Stock or, at the Corporation’s election, cash (in each case, a “ Redemption ”); provided that, at the election of the Corporation in its sole discretion, the Corporation may effect a direct exchange of such cash or shares of Class A Common Stock or Class B-1 Common Stock for such Units (a “ Direct Exchange ”);
WHEREAS, Amneal LLC will have in effect an election under Section 754 of the Code as provided under Section  2.1(b) for the Taxable Year in which any Exchange occurs, which election will result in an adjustment to the Corporation’s share of the tax basis of the assets owned by Amneal LLC and its relevant subsidiaries (including any subsidiary that is (i) classified as a partnership for U.S. federal income tax purposes and has made an election under Section 754 of the Code or (ii) disregarded as separate from its owner for U.S. federal income tax purposes) (Amneal LLC and its relevant subsidiaries, the “ Amneal LLC Group ”), as of the date of the Exchange, with a consequent result on the taxable income subsequently derived therefrom; and
WHEREAS, the parties to this Agreement desire to provide for certain payments and make certain arrangements with respect to any tax benefits to be derived by the Corporation as the result of Exchanges and making payments under this Agreement, and to ease administrative burdens, an assumed tax rate shall be used to approximate the Corporation’s state and local liabilities for Covered Taxes without regard to such tax benefits for each Taxable Year.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:
 ARTICLE I.
DEFINITIONS
 Section 1.1 Definitions . As used in this Agreement, the terms set forth in this Article I shall have the following meanings.
“ Actual Interest Amount ” is defined in Section  3.1(b)(vii) of this Agreement.
 
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“ Actual Federal Tax Liability ” means, with respect to any Taxable Year, the liability for U.S. federal Covered Taxes of the Corporation (i) appearing on U.S. federal Tax Returns of the Corporation for such Taxable Year and (ii) if applicable, determined in accordance with a Determination (including interest imposed in respect thereof under applicable law).
“ Actual Other Tax Liability ” means, with respect to any Taxable Year, the product of (i) the sum of (x) U.S. federal taxable income of the Corporation determined in connection with calculating the Actual Federal Tax Liability for such Taxable Year and (y) actual state and local tax liabilities of the Corporation for such Taxable Year, and (ii) the Assumed Other Tax Rate.
“ Actual Tax Liability ” means, with respect to any Taxable Year, the Actual Federal Tax Liability for such Taxable Year, plus the Actual Other Tax Liability for such Taxable Year.
“ Advisory Firm ” means a nationally recognized accounting firm mutually agreed to by the Corporation and the Member Representative or, if the Corporation and the Member Representative are unable to agree on such a firm, Deloitte LLP.
“ Advisory Firm Letter ” means a letter prepared by the Advisory Firm used by the Corporation in connection with the performance of its obligations under this Agreement, which states that the relevant Schedules, notices or other information to be provided by the Corporation to the Members, along with all supporting schedules and work papers, were prepared in a manner that is consistent with the terms of this Agreement and, to the extent not expressly provided in this Agreement, on a reasonable basis in light of the facts and law in existence on the date such Schedules, notices or other information were delivered by the Corporation to the Members.
“ Affiliate ” has the meaning set forth in the Business Combination Agreement.
“ Agreed Rate ” means the Reference Rate plus 150 basis points.
“ Agreement ” is defined in the preamble.
“ Amended Schedule ” is defined in Section  2.4(b) of this Agreement.
“ Assumed Other Tax Rate ” means (i) the sum of the products of (a) the Corporation’s income and franchise tax apportionment rate(s) for each state and local jurisdiction in which Amneal LLC or the Corporation files an income or franchise tax return for the relevant Taxable Year and (b) the highest corporate income and franchise tax rate(s) paid by the Corporation for each state and local jurisdiction in which Amneal LLC or the Corporation files an income or franchise tax return for each relevant Taxable Year, provided that if state and local income and franchise taxes are deductible in the relevant Taxable Year for U.S. federal income tax purposes, such sum shall be reduced by (ii) the product of (x) the Corporation’s marginal U.S. federal income tax rate for the relevant Taxable Year and (y) the rate calculated under clause (i).
“ Amneal LLC ” is defined in the preamble.
“ Amneal LLC Group ” is defined in the recitals to this Agreement.
“ Assumed Tax Liability ” has the meaning set forth in the LLC Agreement.
“ Attributable ” is defined in Section  3.1(b)(i) of this Agreement.
“ Audit Committee ” means the audit committee of the Board.
“ Bankruptcy Code ” means Title 11, U.S. Code or any similar federal law for the relief of debtors.
 
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“ Basis Adjustment ” means the increase or decrease to, or the Corporation’s share of, the tax basis of the Reference Assets (i) under Section 734(b) (but only to the extent that an Exchange is treated as an event that gives rise to such adjustment), 743(b), 754 and 755 of the Code and, in each case, the comparable sections of U.S. state and local tax law (in situations where, following an Exchange, Amneal LLC remains in existence as an entity for tax purposes); (ii) under Sections 732 and 1012 of the Code and, in each case, the comparable sections of U.S. state and local tax law (in situations where, as a result of one or more Exchanges, Amneal LLC becomes an entity that is disregarded as separate from its owner for tax purposes), in each case, as a result of any Exchange and any payments made under this Agreement; and (iii) under Section 1012 of the Code as a result of any portion of the assets contributed pursuant to the Holdings Contribution Agreement being treated as having been sold to the Company for U.S. federal income tax purposes. Notwithstanding any other provision of this Agreement, the amount of any Basis Adjustment resulting from an Exchange of one or more Units shall be determined without regard to any Pre-Exchange Transfer of such Units and as if any such Pre-Exchange Transfer had not occurred.
“ Basis Schedule ” is defined in Section  2.2 of this Agreement.
“ Beneficial Owner ” means, with respect to any security, a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares: (i) voting power, which includes the power to vote, or to direct the voting of, with respect to such security and/or (ii) investment power, which includes the power to dispose of, or to direct the disposition of, such security.
“ Board ” means the Board of Directors of the Corporation.
“ Business Combination Agreement ” means the Business Combination Agreement, dated as of [●], by and among the Corporation, Impax Laboratories, Inc., K2 Merger Sub, Inc. and Amneal LLC.
“ Business Day ” has the meaning set forth in the Business Combination Agreement.
“ Change of Control ” means the occurrence of any of the following events:
(1) any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act (excluding any “person” or “group” who, on the Closing Date, is the Beneficial Owner of securities of the Corporation representing more than fifty percent (50%) of the combined voting power of the Corporation’s then outstanding voting securities)) becomes the Beneficial Owner of securities of the Corporation representing more than fifty percent (50%) of the combined voting power of the Corporation’s then outstanding voting securities;
(2) the shareholders of the Corporation approve a plan of complete liquidation or dissolution of the Corporation or there is consummated an agreement or series of related agreements for the sale or other disposition, directly, or indirectly, by the Corporation of all or substantially all of the Corporation’s assets (including through a sale of assets of members of the Amneal LLC Group), other than such sale or other disposition by the Corporation of all or substantially all of the Corporation’s assets to an entity at least fifty percent (50%) of the combined voting power of the voting securities of which are owned by shareholders of the Corporation in substantially the same proportions as their ownership of the Corporation immediately prior to such sale;
(3) there is consummated a Combination, and, immediately after the consummation of such Combination, either (x) the Board immediately prior to the Combination does not constitute at least a majority of the board of directors of the company surviving the Combination or, if the surviving company is a subsidiary, the ultimate parent thereof, or (y) all of the Persons who were the respective Beneficial Owners of the voting securities of the Corporation immediately prior to such Combination do not beneficially own, directly or indirectly, more than 50% of the combined voting power of the then outstanding voting securities of the Person resulting from such Combination; or
 
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(4) the following individuals cease for any reason to constitute a majority of the number of directors of the Corporation then serving: individuals who were directors of the Corporation on the Closing Date and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Corporation) whose appointment or election by the Board or nomination for election by the Corporation’s shareholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors of the Corporation on the Closing Date or whose appointment, election or nomination for election was previously so approved or recommended by the directors referred to in this clause 4; or
Notwithstanding the foregoing, a “Change of Control” shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the record holders of the Class A Common Stock, Class B Common Stock and Class B-1 Common Stock of the Corporation immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in and voting control over, and own substantially all of the shares of, an entity which owns all or substantially all of the assets of the Corporation immediately following such transaction or series of transactions.
“ Class  A Common Stock ” is defined in the recitals to this Agreement.
“ Class  B Common Stock ” means Class B common stock issued by the Corporation, par value $0.01 per share.
“ Class B-1 Common Stock ” means Class B-1 common stock issued by the Corporation, par value $0.01 per share.
“ Closing Date ” has the meaning set forth in the Business Combination Agreement.
“ Code ” means the U.S. Internal Revenue Code of 1986, as amended.
“ Combination ” means a merger, consolidation, acquisition or other business combination of the Corporation or any direct or indirect subsidiary of the Corporation (including Amneal LLC) with any other corporation or other entity.
“ Corporation ” is defined in the preamble to this Agreement.
“ Corporation Letter ” means a letter prepared by the Corporation in connection with the performance of its obligations under this Agreement, which states that the relevant Schedules, notices or other information to be provided by the Corporation to the Members, along with all supporting schedules and work papers, were prepared in a manner that is consistent with the terms of this Agreement and, to the extent not expressly provided in this Agreement, on a reasonable basis in light of the facts and law in existence on the date such Schedules, notices or other information were delivered by the Corporation to the Members.
“ Covered Taxes ” means any and all U.S. federal, state and local taxes, assessments or similar charges that are based on or measured with respect to net income or profits, whether as an exclusive or an alternative basis (including for the avoidance of doubt, franchise taxes), and any interest imposed in respect thereof under applicable law.
“ Cumulative Net Realized Tax Benefit ” is defined in Section  3.1(b)(iii) of this Agreement.
“ Default Rate ” means the Reference Rate plus 525 basis points.
“ Default Rate Interest ” is defined in Section  3.1(b)(ix) of this Agreement.
“ Determination ” shall have the meaning ascribed to such term in Section 1313(a) of the Code or similar provision of U.S. state or local tax law, as applicable, or any other event (including the execution of IRS Form 870-AD) that finally and conclusively establishes the amount of any liability for tax.
 
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“ Direct Exchange ” is defined in the recitals to this Agreement.
“ Dispute ” is defined in Section  7.8(a) of this Agreement.
“ Early Termination Effective Date ” means the date of an Early Termination Notice for purposes of determining the Early Termination Payment.
“ Early Termination Notice ” is defined in Section  4.2 of this Agreement.
“ Early Termination Payment ” is defined in Section  4.3(b) of this Agreement.
“ Early Termination Rate ” means the lesser of (i) the Reference Rate plus 100 basis points and (ii) 6.50% per annum, compounded annually.
“ Early Termination Reference Date ” is defined in Section  4.2 of this Agreement.
“ Early Termination Schedule ” is defined in Section  4.2 of this Agreement.
“ Exchange ” means any Direct Exchange or Redemption that in either case results in an adjustment under Section 734(b), 743(b) or 1012 of the Code with respect to the Amneal LLC Group.
“ Exchange Act ” means the Securities and Exchange Act of 1934, as amended, or any successor provisions thereto.
“ Exchange Date ” means the date of any Exchange.
“ Expert ” is defined in Section  7.9 of this Agreement.
“ Extension Rate Interest ” is defined in Section  3.1(b)(viii) of this Agreement.
“ Final Payment Date ” means any date on which a payment is required to be made pursuant to this Agreement. For the avoidance of doubt, the Final Payment Date in respect of a Tax Benefit Payment is determined pursuant to Section  3.1(a) of this Agreement.
“ Holdings Contribution Agreement ” means that certain Contribution Agreement, dated as of October 5, 2017, by and among Amneal Pharmaceuticals Holding Company, LLC and the Company.
“ Hypothetical Federal Tax Liability ” means, with respect to any Taxable Year, the hypothetical liability of the Corporation that would arise in respect of U.S. federal Covered Taxes, using the same methods, elections, conventions and similar practices used on the actual relevant U.S. federal Tax Returns of the Corporation but (i) calculating depreciation, amortization, or other similar deductions, or otherwise calculating any items of income, gain, or loss, using the Non-Adjusted Tax Basis as reflected on the Basis Schedule, including amendments thereto for such Taxable Year; (ii) excluding any deduction attributable to Imputed Interest for such Taxable Year; (iii) treating any PTI Distribution as a distribution that is not described by Code Section 959; and (iv) deducting actual state and local tax liabilities for such Taxable Year and deducting or crediting, as applicable, allowable foreign tax liabilities for purposes of determining U.S. federal taxable income. For the avoidance of doubt, the Hypothetical Federal Tax Liability shall be determined without taking into account the carryover or carryback of any tax item (or portions thereof) that is attributable to any of the items described in clauses (i) or (ii) of the previous sentence.
“ Hypothetical Other Tax Liability ” means, with respect to any Taxable Year, the product of (i) the sum of (x) U.S. federal taxable income of the Corporation determined in connection with calculating the Hypothetical
 
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Federal Tax Liability for such Taxable Year and (y) the amount of state and local tax liabilities of the Corporation used for purposes of clause (iv) of the definition of Hypothetical Federal Tax Liability with respect to such Taxable Year and (ii) the Assumed Other Tax Rate.
“ Hypothetical Tax Liability ” means, with respect to any Taxable Year, the Hypothetical Federal Tax Liability for such Taxable Year, plus the Hypothetical Other Tax Liability for such Taxable Year.
“ ICE LIBOR ” means the ICE LIBOR rate for a period of three months, as published on the applicable Bloomberg screen page (or such other commercially available source providing quotations of ICE LIBOR as may be designated in good faith by the Corporation from time to time) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such period, for dollar deposits (for delivery on the first day of such period) with a term equivalent to such period.
“ Imputed Interest ” is defined in Section  3.1(b)(vi) of this Agreement.
“ Independent Directors ” means the members of the Board who are “independent” under the standards set forth in Rule 10A-3 promulgated under the U.S. Securities Exchange Act of 1933, as amended, and the corresponding rules of the applicable exchange on which the Class A Common Stock is traded or quoted.
“ IRS ” means the U.S. Internal Revenue Service.
“ Joinder ” means a joinder to this Agreement, in form and substance substantially similar to Exhibit A to this Agreement.
“ Joinder Requirement ” is defined in Section  7.6(a) of this Agreement.
“ LLC Agreement ” means that certain Third Amended and Restated Limited Liability Company Agreement of Amneal Pharmaceuticals LLC, dated as of the Closing Date, as such agreement may be further amended, restated, supplemented and/or otherwise modified from time to time.
“ Market Value ” means the “Common Unit Redemption Price,” as defined in the LLC Agreement.
“ Maximum Rate ” is defined in Section  7.14 of this Agreement.
“ Members ” is defined in the recitals to this Agreement.
“ Member Representative ” means Amneal Holdings, LLC.
“ Net Tax Benefit ” is defined in Section  3.1(b)(ii) of this Agreement.
“ Non-Adjusted Tax Basis ” means, with respect to any Reference Asset at any time, the tax basis that such asset would have had at such time if no Basis Adjustments had been made.
“ Non-TRA Portion ” is defined in Section  2.3(b) of this Agreement.
“ Objection Notice ” is defined in Section  2.4(a)(i) of this Agreement.
“ Parties ” means the parties named on the signature pages to this agreement and each additional party that satisfies the Joinder Requirement, in each case with their respective successors and assigns.
“ Person ” means “person,” as defined in the Business Combination Agreement.
 
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“ Pre-Exchange Transfer ” means any transfer of one or more Units (including upon the death of a Member or upon the issuance of Units resulting from the exercise of an option to acquire such Units) (i) that occurs prior to an Exchange of such Units and (ii) to which Section 743(b) of the Code applies.
“ PTI Distribution ” means any distribution of an amount described by Code Section 959 that is attributable to or the result of an Exchange.
“ Realized Tax Benefit ” is defined in Section  3.1(b)(iv) of this Agreement.
“ Realized Tax Detriment ” is defined in Section  3.1(b)(v) of this Agreement.
“ Reconciliation Dispute ” is defined in Section  7.9 of this Agreement.
“ Reconciliation Procedures ” is defined in Section  2.4(a) of this Agreement.
“ Redemption ” has the meaning in the recitals to this Agreement.
“ Reference Asset ” means any asset of Amneal LLC or any of its successors or assigns, and whether held directly by Amneal LLC or indirectly by Amneal LLC through a member of the Amneal LLC Group, at the time of an Exchange. A Reference Asset also includes any asset the tax basis of which is determined, in whole or in part, by reference to the tax basis of an asset that is described in the preceding sentence, including “substituted basis property” within the meaning of Section 7701(a)(42) of the Code.
“ Reference Rate ” means the Reference Rate Base plus the Reference Rate Spread.
“ Reference Rate Base ” means ICE LIBOR during any period for which such rate is published in accordance with the definition thereof. If ICE LIBOR ceases to be published in accordance with the definition thereof, the Corporation and the Member Representative shall work together in good faith to select a new Reference Rate with similar characteristics.
“ Reference Rate Spread ” means 0 basis points during any period for which ICE LIBOR is published in accordance with the definition thereof. If ICE LIBOR ceases to be published in accordance with the definition thereof, the Corporation and the Member Representative shall work together in good faith to select a new Reference Rate Spread, such that the Reference Rate is not materially changed (and in no event by more than 25 basis points) as a result of the selection of a new Reference Rate Base at the time of such selection.
“ Schedule ” means any of the following: (i) a Basis Schedule, (ii) a Tax Benefit Schedule, or (iii) the Early Termination Schedule, and, in each case, any amendments thereto.
“ Senior Obligations ” is defined in Section  5.1 of this Agreement.
“ Subsequent Acquisition ” means any acquisition, closing after the Closing Date, of the equity interests or assets of one or more business entities.
“ Subsequent Acquisition Target ” means any asset or entity acquired in a Subsequent Acquisition.
“ Subsequent Acquisition Tax Benefits ” means any and all tax benefits in respect of Covered Taxes of the Corporation arising as a result of a Subsequent Acquisition, including: (i) any deduction attributable to the carryforward of a net operating loss or any credits of a Subsequent Acquisition Target generated in a Taxable Year that ends prior to, or on the date of, the closing of the relevant Subsequent Acquisition, (ii) any deductions attributable to transaction expenses (including transaction-related compensation) of a Subsequent Acquisition Target, (iii) any deductions or offsets to income attributable to a step-up in tax basis resulting from a Subsequent
 
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Acquisition, (iv) any deduction for interest on liabilities incurred or carried to effect a Subsequent Acquisition, and (v) any net operating losses or net capital losses arising from the business of a Subsequent Acquisition Target, whether generated before or after a Subsequent Acquisition.
“ Tax Benefit Payment ” is defined in Section  3.1(b) of this Agreement.
“ Tax Benefit Schedule ” is defined in Section  2.3(a) of this Agreement.
“ Tax Return ” has the meaning set forth in the Business Combination Agreement.
“ Taxable Year ” means a taxable year of the Corporation as defined in Section 441(b) of the Code or comparable section of U.S. state or local tax law, as applicable (and, therefore, for the avoidance of doubt, may include a period of less than twelve (12) months for which a Tax Return is made), ending on or after the Closing Date.
“ Taxing Authority ” means any national, federal, state, county, municipal, or local government, or any subdivision, agency, commission or authority thereof, or any quasi-governmental body, or any other authority of any kind, exercising regulatory or other authority in relation to tax matters.
“ Termination Objection Notice ” is defined in Section  4.2 of this Agreement.
“ TRA-Portion ” is defined in Section  2.3(b) of this Agreement.
“ Treasury Regulations ” means the final, temporary, and (to the extent they can be relied upon) proposed regulations under the Code, as promulgated from time to time (including corresponding provisions and succeeding provisions) as in effect for the relevant taxable period.
“ U.S. ” means the United States of America.
“ Units ” means “Common Units,” as defined in the LLC Agreement.
“ Valuation Assumptions ” means, as of an Early Termination Effective Date, the assumptions that:
(1) in each Taxable Year ending on or after such Early Termination Effective Date, the Corporation will have taxable income sufficient to fully use the deductions arising from the Basis Adjustments and the Imputed Interest during such Taxable Year or future Taxable Years (including, for the avoidance of doubt, Basis Adjustments and Imputed Interest that would result from future Tax Benefit Payments that would be paid in accordance with the Valuation Assumptions) in which such deductions would become available;
(2) the U.S. federal income tax rates that will be in effect for each such Taxable Year will be those specified for each such Taxable Year by the Code and other law as in effect on the Early Termination Effective Date, except to the extent any change to such tax rates for such Taxable Year have already been enacted into law;
(3) all taxable income of the Corporation will be subject to the maximum applicable tax rates for each Covered Tax throughout the relevant period, provided , that the combined tax rate for U.S. state and local income taxes shall be the Assumed Other Tax Rate;
(4) any loss carryovers or carrybacks generated by any Basis Adjustment or Imputed Interest (including such Basis Adjustment and Imputed Interest generated as a result of payments under this Agreement) and available as of the date of the Early Termination Schedule will be used by the Corporation ratably in each Taxable Year from the date of the Early Termination Schedule through the scheduled expiration date of such loss carryovers or carrybacks; by way of example, if on the date of the Early Termination Schedule the Corporation had $100 of net operating losses with a carryforward period of ten (10) years, $10 of such net operating losses would be used in each of the ten (10) consecutive Taxable Years beginning in the Taxable Year of such Early Termination Schedule;
 
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(5) any non-amortizable assets will be disposed of on the Early Termination Effective Date;
(6) if, on the Early Termination Effective Date, any Member has Units that have not been Exchanged, then such Units shall be deemed to be Exchanged for the Market Value of the shares of Class A Common Stock that would be received by such Member if such Units had been Exchanged on the Early Termination Effective Date, and such Member shall be deemed to receive the amount of cash such Member would have been entitled to pursuant to Section  4.3(a) had such Units actually been Exchanged on the Early Termination Effective Date; and
(7) any payment obligations pursuant to this Agreement will be satisfied on the date that any Tax Return to which such payment obligation relates is required to be filed excluding any extensions.
 Section 1.2 Rules of Construction . Unless otherwise specified herein:
(a) The meanings of defined terms are equally applicable to both (i) the singular and plural forms and (ii) the active and passive forms of the defined terms.
(b) For purposes of interpretation of this Agreement:
(i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision thereof.
(ii) References in this Agreement to a Schedule, Article, Section, clause or sub-clause refer to the appropriate Schedule to, or Article, Section, clause or subclause in, this Agreement.
(iii) References in this Agreement to dollars or “$” refer to the lawful currency of the United States of America.
(iv) The term “including” is by way of example and not limitation.
(v) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(c) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(d) Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.
(e) Unless otherwise expressly provided herein, (a) references to organization documents (including the LLC Agreement), agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted hereby; and (b) references to any law (including the Code and the Treasury Regulations) shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such law.
 ARTICLE II.
DETERMINATION OF REALIZED TAX BENEFIT
 Section 2.1 Basis Adjustments; Amneal LLC 754 Election .
(a) Basis Adjustments . The Parties acknowledge and agree that (A) each Redemption shall be treated as a direct purchase of Units by the Corporation from the applicable Member pursuant to Section 707(a)(2)(B) of the
 
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Code and (B) each Exchange will give rise to Basis Adjustments. For the avoidance of doubt, payments made under this Agreement shall not be treated as resulting in a Basis Adjustment to the extent such payments are treated as Imputed Interest or Default Rate Interest. Further, the Parties intend that Basis Adjustments be calculated in accordance with Treasury Regulations Section 1.743-1.
(b) Amneal LLC Section  754 Election . In its capacity as the sole managing member of Amneal LLC, the Corporation will ensure that, on and after the date hereof and continuing throughout the term of this Agreement, Amneal LLC and each of its direct and indirect subsidiaries (including any successors to Amneal LLC and its direct and indirect subsidiaries arising as a result of terminations occurring pursuant to Section 708(b)(1)(B) of the Code) that is treated as a partnership for U.S. federal income tax purposes will have in effect an election under Section 754 of the Code (and under any similar provisions of applicable U.S. state or local law) for each Taxable Year; provided that with respect to any direct or indirect subsidiary of Amneal LLC that is treated as a partnership for U.S. federal income tax purposes for which the Corporation or any of its subsidiaries do not have the authority under the governing documents of such subsidiary to cause or are otherwise prohibited from causing such subsidiary to have in effect an election under Section 754 of the Code (or under any similar provisions of applicable U.S. state or local law), the Corporation shall only be required to take commercially reasonable efforts to cause such subsidiary to have such an election in effect.
 Section 2.2 Basis Schedules . Within ninety (90) calendar days after the filing of the U.S. federal income Tax Return of the Corporation for each relevant Taxable Year, the Corporation shall, at its own expense, prepare, with assistance from the Advisory Firm, and deliver to the Members a schedule (the “ Basis Schedule ”) that shows, in reasonable detail as necessary in order to understand the calculations performed under this Agreement: (a) the Basis Adjustments with respect to the Reference Assets as a result of the relevant Exchanges effected in such Taxable Year, calculated (I) in the aggregate (including, for the avoidance of doubt, Exchanges by all Members) and (II) solely with respect to Exchanges by the applicable Member; (b) the period (or periods) over which the Reference Assets are amortizable and/or depreciable; and (c) the period (or periods) over which each Basis Adjustment is amortizable and/or depreciable. The Basis Schedule will become final and binding on the Parties pursuant to the procedures set forth in Section  2.4(a) and may be amended by the Parties pursuant to the procedures set forth in Section  2.4(b) .
 Section 2.3 Tax Benefit Schedules.
(a) Tax Benefit Schedule . Within ninety (90) calendar days after the filing of the U.S. federal income Tax Return of the Corporation for any Taxable Year in which there is a Realized Tax Benefit or Realized Tax Detriment, the Corporation shall, at its own expense, prepare, with assistance from the Advisory Firm, and deliver to the Members a schedule showing, in reasonable detail, the calculation of the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year (a “ Tax Benefit Schedule ”). The Tax Benefit Schedule will become final and binding on the Parties pursuant to the procedures set forth in Section  2.4(a) , and may be amended by the Parties pursuant to the procedures set forth in Section  2.4(b) .
(b) Applicable Principles . Subject to the provisions of this Agreement, the Realized Tax Benefit or Realized Tax Detriment for each Taxable Year is intended to measure the decrease or increase in the Actual Tax Liability of the Corporation for such Taxable Year attributable to the Basis Adjustments and Imputed Interest, as determined using a “with and without” methodology described in Section  2.4(a) . Carryovers or carrybacks of any tax item attributable to any Basis Adjustment or Imputed Interest shall be considered to be subject to the rules of the Code and the Treasury Regulations or the appropriate provisions of U.S. state and local tax law, as applicable, governing the use, limitation and expiration of carryovers or carrybacks of the relevant type. If a carryover or carryback of any tax item includes a portion that is attributable to a Basis Adjustment or Imputed Interest (a “ TRA Portion ”) and another portion that is not (a “ Non-TRA Portion ”), such portions shall be considered to be used in accordance with the “with and without” methodology so that: (i) the amount of any Non-TRA Portion is deemed utilized first, followed by the amount of any TRA Portion (with the TRA Portion being applied on a proportionate basis consistent with the provisions of Section  3.3(a)) ; and (ii) in the case of a carryback of a Non-TRA Portion, such carryback shall not affect the original “with and without” calculation
 
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made in the prior Taxable Year. The Parties agree that, subject to the second to last sentence of Section  2.1(a) , all Tax Benefit Payments attributable to an Exchange will be treated as subsequent upward purchase price adjustments that give rise to further Basis Adjustments for the Corporation beginning in the Taxable Year of payment, and as a result, such additional Basis Adjustments will be incorporated into such Taxable Year continuing for future Taxable Years until any incremental Basis Adjustment benefits with respect to a Tax Benefit Payment equals an immaterial amount.
 Section 2.4 Procedures; Amendments .
(a) Procedures . Each time the Corporation delivers an applicable Schedule to the Members under this Agreement, including any Amended Schedule delivered pursuant to Section  2.4(b) , but excluding any Early Termination Schedule or amended Early Termination Schedule delivered pursuant to the procedures set forth in Section  4.2 , the Corporation shall also, at its own expense: (x) deliver supporting schedules and work papers, as determined in good faith by the Corporation or as reasonably requested by any Member, that provide a reasonable level of detail regarding the data and calculations that were relevant for purposes of preparing the Schedule; (y) deliver an Advisory Firm Letter supporting such Schedule (or, if the Advisory Firm cannot as a general matter of such Advisory Firm’s internal policies deliver Advisory Firm Letters, a Corporation Letter); and (z) allow the Members and their advisors to have reasonable access to the appropriate representatives, as determined in good faith by the Corporation or as reasonably requested by the Members, at the Corporation and the Advisory Firm in connection with a review of such Schedule. Without limiting the generality of the preceding sentence, the Corporation shall ensure that any Tax Benefit Schedule that is delivered to the Members, along with any supporting schedules and work papers, provides a reasonably detailed presentation of the calculation of the Actual Tax Liability of the Corporation for the relevant Taxable Year (the “with” calculation) and the Hypothetical Tax Liability of the Corporation for such Taxable Year (the “without” calculation), and identifies any material assumptions or operating procedures or principles that were used for purposes of such calculations. An applicable Schedule or amendment thereto shall become final and binding on the Parties thirty (30) calendar days from the date on which the Members first received the applicable Schedule or amendment thereto unless:
(i) a Member within thirty (30) calendar days after receiving the applicable Schedule or amendment thereto, provides the Corporation with written notice of a material objection to such Schedule that is made in good faith and that sets forth in reasonable detail such Member’s material objection (an “ Objection Notice ”); or
(ii) each Member provides a written waiver of its right to deliver an Objection Notice within the time period described in clause (i) above, in which case such Schedule or amendment thereto becomes binding on the date the waiver from all Members is received by the Corporation.
In the event that a Member timely delivers an Objection Notice pursuant to clause (i) above, and if the Parties, for any reason, are unable to successfully resolve the issues raised in the Objection Notice within thirty (30) calendar days after receipt by the Corporation of the Objection Notice, the Corporation and the Member shall employ the reconciliation procedures as described in Section  7.9 of this Agreement (the “ Reconciliation Procedures ”). Notwithstanding anything to the contrary herein, to the extent that supporting schedules or work papers are requested pursuant to this Section 2.4(a) by a Member that (x) was not a member of Amneal LLC as of the date hereof, (y) does not hold directly or indirectly, together with Persons under common control with such Member, on an aggregate basis, at least five percent (5%) of the outstanding Units on the date of such Member’s request and (z) would not be entitled to receive directly or indirectly, together with Persons under common control with such Member, on an aggregate basis, at least five percent (5%) of the aggregate amount of all Early Termination Payments payable to all Members hereunder if the Corporation exercised its right of early termination on the date of such Member’s request, the cost of preparing such supporting schedules or work papers shall be borne solely by such requesting Member by set-off against the next Tax Benefit Payment to be made to such requesting Member pursuant to Section 3.1(a).
 
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(b) Amended Schedule . The applicable Schedule for any Taxable Year may be amended from time to time by the Corporation, at its own expense: (i) in connection with a Determination affecting such Schedule; (ii) to correct inaccuracies in the Schedule identified as a result of the receipt of additional factual information relating to a Taxable Year after the date the Schedule was originally provided to the Members; (iii) to comply with an Expert’s determination under the Reconciliation Procedures applicable to this Agreement; (iv) to reflect a change in the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year attributable to a carryback or carryforward of a loss or other Tax item to such Taxable Year; (v) to reflect a change in the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year attributable to an amended Tax Return filed for such Taxable Year; or (vi) to adjust a Basis Schedule to take into account any Tax Benefit Payments made pursuant to this Agreement (any such Schedule, an “ Amended Schedule ”).
 ARTICLE III.
TAX BENEFIT PAYMENTS
 Section 3.1 Timing and Amount of Tax Benefit Payments .
(a) Timing of Payments . Subject to Sections 3.2 and 3.3 , within three (3) Business Days following the date on which each Tax Benefit Schedule that is required to be delivered by the Corporation to the Members pursuant to Section  2.3(a) of this Agreement becomes final in accordance with Section  2.4(a) of this Agreement (such date, the “ Final Payment Date ” in respect of any Tax Benefit Payment), the Corporation shall pay to each relevant Member the Tax Benefit Payment as determined pursuant to Section  3.1(b) . Each such Tax Benefit Payment shall be made by wire transfer of immediately available funds to the bank account previously designated by such Members or as otherwise agreed by the Corporation and such Members. For the avoidance of doubt, the Members shall not be required under any circumstances to return any portion of any Tax Benefit Payment previously paid by the Corporation to the Members (including any portion of any Early Termination Payment). Notwithstanding anything herein to the contrary, at the election of a Member, the aggregate Tax Benefit Payments in respect of an Exchange (other than amounts accounted for as interest under the Code) shall not exceed an amount specified by the exchanging Member in the notice described in the following sentence. The election described in the prior sentence shall be made by an exchanging Member by providing written notice to the Corporation, as described in Section  7.1 , no later than the last day of such Member’s taxable year that includes such Exchange.
(b) Amount of Payments . For purposes of this Agreement, a “ Tax Benefit Payment ” with respect to any Member means an amount, not less than zero, equal to the sum of: (i) the Net Tax Benefit that is Attributable to such Member and (ii) the Actual Interest Amount.
(i) Attributable . A Net Tax Benefit is “ Attributable ” to a Member to the extent that it is derived from any Basis Adjustment or Imputed Interest that is attributable to an Exchange undertaken by or with respect to such Member.
(ii) Net Tax Benefit . The “ Net Tax Benefit ” Attributable to a Member for a Taxable Year equals the amount of the excess, if any, of (x) 85% of the Cumulative Net Realized Tax Benefit Attributable to such Member as of the end of such Taxable Year over (y) the aggregate amount of all Tax Benefit Payments previously made to such Member under this Section  3.1 . For the avoidance of doubt, if the Cumulative Net Realized Tax Benefit that is Attributable to a Member as of the end of any Taxable Year is less than the aggregate amount of all Tax Benefit Payments previously made to such Member, such Member shall not be required to return any portion of any Tax Benefit Payment previously made by the Corporation to such Member.
(iii) Cumulative Net Realized Tax Benefit . The “ Cumulative Net Realized Tax Benefit ” for a Taxable Year equals the cumulative amount of Realized Tax Benefits for all Taxable Years of the Corporation, up to and including such Taxable Year, net of the cumulative amount of Realized Tax Detriments for the same period. The Realized Tax Benefit and Realized Tax Detriment for each Taxable Year shall be determined
 
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based on the most recent Tax Benefit Schedule or Amended Schedule, if any, in existence at the time of such determination.
(iv) Realized Tax Benefit . The “ Realized Tax Benefit ” for a Taxable Year equals the excess, if any, of the Hypothetical Tax Liability over the Actual Tax Liability for such Taxable Year. If all or a portion of the Actual Tax Liability for such Taxable Year arises as a result of an audit or similar proceeding by a Taxing Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Benefit unless and until there has been a Determination.
(v) Realized Tax Detriment . The “ Realized Tax Detriment ” for a Taxable Year equals the excess, if any, of the Actual Tax Liability over the Hypothetical Tax Liability for such Taxable Year. If all or a portion of the Actual Tax Liability for such Taxable Year arises as a result of an audit or similar proceeding by a Taxing Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Detriment unless and until there has been a Determination.
(vi) Imputed Interest . The principles of Sections 1272, 1274, or 483 of the Code, as applicable, and the principles of any similar provision of U.S. state and local law, will apply to cause a portion of any Tax Benefit Payment payable by the Corporation to a Member under this Agreement to be treated as imputed interest (“ Imputed Interest ”). For the avoidance of doubt, the deduction for the amount of Imputed Interest as determined with respect to any Tax Benefit Payment payable by the Corporation to a Member shall be excluded in determining the Hypothetical Tax Liability of the Corporation for purposes of calculating Realized Tax Benefits and Realized Tax Detriments pursuant to this Agreement.
(vii) Actual Interest Amount . The “ Actual Interest Amount ” calculated in respect of the Net Tax Benefit for a Taxable Year will equal the amount of any Extension Rate Interest.
(viii) Extension Rate Interest . The amount of “ Extension Rate Interest ” calculated in respect of the Net Tax Benefit (including previously accrued Imputed Interest) for a Taxable Year will equal interest calculated at the Agreed Rate from the due date (without extensions) for filing the U.S. federal income Tax Return of the Corporation for such Taxable Year until the date on which the Corporation makes a timely Tax Benefit Payment to the Member on or before the Final Payment Date as determined pursuant to Section  3.1(a) .
(ix) Default Rate Interest . In the event that the Corporation does not make timely payment of all or any portion of a Tax Benefit Payment to a Member on or before the Final Payment Date as determined pursuant to Section  3.1(a) , the amount of “ Default Rate Interest ” calculated in respect of the Net Tax Benefit (including previously accrued Imputed Interest and Extension Rate Interest) for a Taxable Year will equal interest calculated at the Default Rate from the Final Payment Date for a Tax Benefit Payment as determined pursuant to Section  3.1(a) until the date on which the Corporation makes such Tax Benefit Payment to such Member. For the avoidance of doubt, any deduction for any Default Rate Interest as determined with respect to any Net Tax Benefit payable by the Corporation to a Member shall be included in the Hypothetical Tax Liability of the Corporation for purposes of calculating Realized Tax Benefits and Realized Tax Detriments pursuant to this Agreement.
(x) Except as provided in an election, if any, made pursuant to Section  3.1(a) , the Corporation and the Members hereby acknowledge and agree that, as of the date of this Agreement and as of the date of any future Exchange that may be subject to this Agreement, the aggregate value of the Tax Benefit Payments cannot be reasonably ascertained for U.S. federal income or other applicable tax purposes.
(c) Interest . The provisions of Section  3.1(b) are intended to operate so that interest will effectively accrue in respect of the Net Tax Benefit for any Taxable Year as follows:
(i) first, at the applicable rate used to determine the amount of Imputed Interest under the Code (from the relevant Exchange Date until the due date (without extensions) for filing the U.S. federal income Tax Return of the Corporation for such Taxable Year);
 
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(ii) second, at the Agreed Rate in respect of any Extension Rate Interest (from the due date (without extensions) for filing the U.S. federal income Tax Return of the Corporation for such Taxable Year until the Final Payment Date for a Tax Benefit Payment as determined pursuant to Section  3.1(a) ); and
(iii) third, at the Default Rate in respect of any Default Rate Interest (from the Final Payment Date for a Tax Benefit Payment as determined pursuant to Section  3.1(a) until the date on which the Corporation makes the relevant Tax Benefit Payment to a Member).
 Section 3.2 No Duplicative Payments . It is intended that the provisions of this Agreement will not result in the duplicative payment of any amount (including interest) that may be required under this Agreement, and the provisions of this Agreement shall be consistently interpreted and applied in accordance with that intent. For purposes of this Agreement, and also for the avoidance of doubt, no Tax Benefit Payment shall be calculated or made in respect of any estimated tax payments, including, without limitation, any estimated U.S. federal income tax payments.
 Section 3.3 Pro-Ration of Payments as Between the Members .
(a) Insufficient Taxable Income . Notwithstanding anything in Section  3.1(b) to the contrary, if the aggregate potential Covered Tax benefit of the Corporation as calculated with respect to the Basis Adjustments and Imputed Interest (in each case, without regard to the Taxable Year of origination) is limited in a particular Taxable Year because the Corporation does not have sufficient actual taxable income, then the available Covered Tax benefit for the Corporation shall be allocated among the Members in proportion to the respective Tax Benefit Payments that would have been payable if the Corporation had in fact had sufficient taxable income so that there had been no such limitation. As an illustration of the intended operation of this Section  3.3(a) , if the Corporation had $200 of aggregate potential Covered Tax benefits with respect to the Basis Adjustments and Imputed Interest in a particular Taxable Year (with $50 of such Covered Tax benefits being attributable to Member 1 and $150 of such Covered Tax benefits being attributable to Member 2), such that Member 1 would have potentially been entitled to a Tax Benefit Payment of $42.50 and Member 2 would have been entitled to a Tax Benefit Payment of $127.50 if the Corporation had $200 of taxable income, and if at the same time the Corporation only had $100 of actual taxable income in such Taxable Year, then $25 of the aggregate $100 actual Covered Tax benefit for the Corporation for such Taxable Year would be allocated to Member 1 and $75 of the aggregate $100 actual Covered Tax benefit for the Corporation would be allocated to Member 2, such that Member 1 would receive a Tax Benefit Payment of $21.25 and Member 2 would receive a Tax Benefit Payment of $63.75.
(b) Late Payments . If for any reason the Corporation is not able to timely and fully satisfy its payment obligations under this Agreement in respect of a particular Taxable Year, then Default Rate Interest will begin to accrue pursuant to Section  5.2 and the Corporation and other Parties agree that (i) the Corporation shall pay the Tax Benefit Payments due in respect of such Taxable Year to each Member pro rata in accordance with the principles of Section  3.3(a) and (ii) no Tax Benefit Payment shall be made in respect of any Taxable Year until all Tax Benefit Payments to all Members in respect of all prior Taxable Years have been made in full.
 ARTICLE IV.
TERMINATION
 Section 4.1 Early Termination of Agreement; Breach of Agreement .
(a) Corporation’s Early Termination Right . With the written approval of a majority of the Independent Directors, the Corporation may completely terminate this Agreement, as and to the extent provided herein, with respect to all amounts payable to the Members pursuant to this Agreement by paying to the Members the Early Termination Payment; provided that Early Termination Payments may be made pursuant to this Section  4.1(a)
 
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only if made in full and simultaneously to all Members that are entitled to such a payment, and provided further , that the Corporation may withdraw any notice to execute its termination rights under this Section  4.1(a) prior to the time at which any Early Termination Payment has been paid. Upon the Corporation’s payment of the Early Termination Payment, the Corporation shall not have any further payment obligations under this Agreement, other than with respect to any: (i) prior Tax Benefit Payments that are due and payable under this Agreement but that still remain unpaid as of the date of the Early Termination Notice; and (ii) current Tax Benefit Payment due for the Taxable Year ending on or including the date of the Early Termination Notice (except to the extent that the amount described in clause (ii) is included in the calculation of the Early Termination Payment). If an Exchange subsequently occurs with respect to Units for which the Corporation has exercised its termination rights under this Section  4.1(a) , the Corporation shall have no obligations under this Agreement with respect to such Exchange.
(b) Acceleration Upon Change of Control . In the event of a Change of Control, all obligations hereunder shall be accelerated and such obligations shall be calculated pursuant to this Article IV as if an Early Termination Notice had been delivered on the closing date of the Change of Control and utilizing the Valuation Assumptions by substituting the phrase “the closing date of a Change of Control” in each place where the phrase “Early Termination Effective Date” appears. Such obligations shall include, but not be limited to, (1) the Early Termination Payment calculated as if an Early Termination Notice had been delivered on the closing date of the Change of Control, (2) any Tax Benefit Payments agreed to by the Corporation and the Members as due and payable but unpaid as of the Early Termination Notice and (3) any Tax Benefit Payments due for any Taxable Year ending prior to, with or including the closing date of a Change of Control (except to the extent that any amounts described in clauses (2) or (3) are included in the Early Termination Payment). For the avoidance of doubt, Sections 4.2 and 4.3 shall apply to a Change of Control, mutadis mutandi.
(c) Acceleration Upon Breach of Agreement . In the event that the Corporation materially breaches any of its material obligations under this Agreement, whether as a result of failure to make any payment when due, failure to honor any other material obligation required hereunder, or by operation of law as a result of the rejection of this Agreement in a case commenced under the Bankruptcy Code or otherwise, then all obligations hereunder shall be accelerated and become immediately due and payable upon notice of acceleration from any Member ( provided that in the case of any proceeding under the Bankruptcy Code or other insolvency statute, such acceleration shall be automatic without any such notice), and such obligations shall be calculated as if an Early Termination Notice had been delivered on the date of such notice of acceleration (or, in the case of any proceeding under the Bankruptcy Code or other insolvency statute, on the date of such breach) and shall include, but not be limited to: (i) the Early Termination Payment calculated as if an Early Termination Notice had been delivered on the date of such acceleration; (ii) any prior Tax Benefit Payments that are due and payable under this Agreement but that still remain unpaid as of the date of such acceleration; and (iii) any current Tax Benefit Payment due for the Taxable Year ending with or including the date of such acceleration. Notwithstanding the foregoing, in the event that the Corporation breaches this Agreement and such breach is not a material breach of a material obligation, a Member shall still be entitled to enforce all of its rights otherwise available under this Agreement, including by seeking an acceleration of amounts payable under this Agreement. For purposes of this Section  4.1(c) , and subject to the following sentence, the Parties agree that the failure to make any payment due pursuant to this Agreement within thirty (30) days of the relevant Final Payment Date shall be deemed to be a material breach of a material obligation under this Agreement for all purposes of this Agreement, and that it will not be considered to be a material breach of a material obligation under this Agreement to make a payment due pursuant to this Agreement within thirty (30) days of the relevant Final Payment Date. Notwithstanding anything in this Agreement to the contrary, it shall not be a material breach of a material obligation of this Agreement if the Corporation fails to make any Tax Benefit Payment within thirty (30) days of the relevant Final Payment Date to the extent that the Corporation has insufficient funds, or cannot take commercially reasonable actions to obtain sufficient funds, to make such payment; provided that the interest provisions of Section  5.2 shall apply to such late payment (unless the Corporation does not have sufficient funds to make such payment as a result of limitations imposed by any Senior Obligations, in which case Section  5.2 shall apply, but the Default Rate shall be replaced by the Agreed Rate).
 
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 Section 4.2 Early Termination Notice . If the Corporation chooses to exercise its right of early termination under Section  4.1 above, the Corporation shall deliver to the Members a notice of the Corporation’s decision to exercise such right (an “ Early Termination Notice ”) and a schedule (the “ Early Termination Schedule ”) showing in reasonable detail the calculation of the Early Termination Payment. The Corporation shall also (x) deliver supporting schedules and work papers, as determined in good faith by the Corporation or as reasonably requested by a Member, that provide a reasonable level of detail regarding the data and calculations that were relevant for purposes of preparing the Early Termination Schedule; (y) deliver an Advisory Firm Letter (or, if the Advisory Firm cannot as a general matter of such Advisory Firm’s internal policies deliver Advisory Firm Letters, a Corporation Letter) supporting such Early Termination Schedule; and (z) allow the Members and their advisors to have reasonable access to the appropriate representatives, as determined in good faith by the Corporation or as reasonably requested by any Member, at the Corporation and the Advisory Firm in connection with a review of such Early Termination Schedule. The Early Termination Schedule shall become final and binding on each Party thirty (30) calendar days from the first date on which the Members received such Early Termination Schedule unless:
(i) a Member within thirty (30) calendar days after receiving the Early Termination Schedule, provides the Corporation with notice of a material objection to such Early Termination Schedule made in good faith and setting forth in reasonable detail such Member’s material objection (a “ Termination Objection Notice ”); or
(ii) each Member provides a written waiver of such right of a Termination Objection Notice within the period described in clause (i) above, in which case such Early Termination Schedule becomes binding on the date the waiver from all Members is received by the Corporation.
In the event that a Member timely delivers a Termination Objection Notice pursuant to clause (i) above, and if the Parties, for any reason, are unable to successfully resolve the issues raised in the Termination Objection Notice within thirty (30) calendar days after receipt by the Corporation of the Termination Objection Notice, the Corporation and such Member shall employ the Reconciliation Procedures. The date on which the Early Termination Schedule becomes final in accordance with this Section  4.2 shall be the “ Early Termination Reference Date .”
 Section 4.3 Payment Upon Early Termination .
(a) Timing of Payment . Within three (3) Business Days after the Early Termination Reference Date, the Corporation shall pay to each Member an amount equal to the Early Termination Payment for such Member. Such Early Termination Payment shall be made by the Corporation by wire transfer of immediately available funds to a bank account or accounts designated by the Members or as otherwise agreed by the Corporation and the Members.
(b) Amount of Payment . The “ Early Termination Payment ” payable to a Member pursuant to Section  4.3(a) shall equal the present value, discounted at the Early Termination Rate as determined as of the Early Termination Reference Date, of all Tax Benefit Payments that would be required to be paid by the Corporation to such Member, whether payable with respect to Units that were Exchanged prior to or on the Early Termination Effective Date, or are deemed to be Exchanged on the Early Termination Effective Date pursuant to the Valuation Assumptions, beginning from the Early Termination Effective Date and using the Valuation Assumptions. For the avoidance of doubt, an Early Termination Payment shall be made to each Member, regardless of whether such Member has Exchanged all of its Units as of the Early Termination Effective Date.
 ARTICLE V.
SUBORDINATION AND LATE PAYMENTS
 Section 5.1 Subordination . Notwithstanding any other provision of this Agreement to the contrary, any Tax Benefit Payment or Early Termination Payment required to be made by the Corporation to the Members under
 
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this Agreement shall rank subordinate and junior in right of payment to any principal, interest, or other amounts due and payable in respect of any obligations owed in respect of secured indebtedness for borrowed money of the Corporation and its subsidiaries (“ Senior Obligations ”) and shall rank pari passu in right of payment with all current or future unsecured obligations of the Corporation that are not Senior Obligations. To the extent that any payment under this Agreement is not permitted to be made at the time payment is due as a result of this Section  5.1 and the terms of the agreements governing Senior Obligations, such payment obligation nevertheless shall accrue for the benefit of the Members and the Corporation shall make such payments at the first opportunity that such payments are permitted to be made in accordance with the terms of the Senior Obligations. For the avoidance of doubt, the Corporation shall use commercially reasonable efforts to cause the terms of the agreements governing Senior Obligations to allow payments to be made under this Agreement.
 Section 5.2 Late Payments by the Corporation . The amount of all or any portion of any Tax Benefit Payment or Early Termination Payment not made to any Member when due under the terms of this Agreement, whether as a result of Section  5.1 and the terms of the Senior Obligations or otherwise, shall be payable together with Default Rate Interest, which shall accrue beginning on the Final Payment Date and be computed as provided in Section  3.1(b )( ix) .
 ARTICLE VI.
TAX MATTERS; CONSISTENCY; COOPERATION
 Section 6.1 Participation in the Corporation ’ s and Amneal LLC ’ s Tax Matters . Except as otherwise provided herein, and except as provided in Section 9.03 of the LLC Agreement, the Corporation shall have full responsibility for, and sole discretion over, all tax matters concerning the Corporation and Amneal LLC, including without limitation the preparation, filing or amending of any Tax Return and defending, contesting or settling any issue pertaining to taxes. Notwithstanding the foregoing, the Corporation shall notify the Members of, and keep them reasonably informed with respect to, the portion of any tax audit of the Corporation or Amneal LLC, or any of Amneal LLC’s subsidiaries, the outcome of which is reasonably expected to materially affect the Tax Benefit Payments payable to any Member under this Agreement, and the Member Representative, shall have the right to participate in and to monitor at its own expense (but, for the avoidance of doubt, not to control) any such portion of any such Tax audit; provided that the Corporation shall not settle or fail to contest any issue pertaining to Covered Taxes that is reasonably expected to materially adversely affect any Member’s rights or obligations under this Agreement (including the amount or timing of any payment made hereunder) without the prior written consent of the Member Representative. In addition to the foregoing, the Corporation shall not take any action outside the ordinary course of business (other than exercising its early termination right under Section  4.1(a) ) a principal purpose of which is to minimize Tax Benefit Payments determined in accordance with this Agreement; provided , that for the avoidance of doubt, nothing in this sentence shall be construed to in any way limit or otherwise prohibit the Corporation from exercising its rights pursuant to this Agreement (including, for the avoidance of doubt, this Section  6.1 ).
 Section 6.2 Consistency . All calculations and determinations made hereunder, including, without limitation, any Basis Adjustments, the Schedules, and the determination of any Realized Tax Benefits or Realized Tax Detriments, shall be made in accordance with the elections, methodologies or positions taken by the Corporation and Amneal LLC on their respective Tax Returns. Each Member shall prepare its Tax Returns in a manner that is consistent with the terms of this Agreement, and any related calculations or determinations that are made hereunder, including, without limitation, the terms of Section  2.1 of this Agreement and the Schedules provided to the Members under this Agreement. In the event that an Advisory Firm is replaced with another Advisory Firm acceptable to the Audit Committee, such replacement Advisory Firm shall perform its services under this Agreement using procedures and methodologies consistent with the previous Advisory Firm, unless otherwise required by law or unless the Corporation and all of the Members agree to the use of other procedures and methodologies.
 
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 Section 6.3 Cooperation .
(a) Each Member shall (i) furnish to the Corporation in a timely manner such information, documents and other materials as the Corporation may reasonably request for purposes of making any determination or computation necessary or appropriate under this Agreement, preparing any Tax Return or contesting or defending any audit, examination or controversy with any Taxing Authority, (ii) make itself available to the Corporation and its representatives to provide explanations of documents and materials and such other information as the Corporation or its representatives may reasonably request in connection with any of the matters described in clause (i) above, and (iii) reasonably cooperate in connection with any such matter. For the avoidance of doubt, no provision of this Agreement shall be construed to require any Member to provide any other party any right to access or review any Tax Return, tax work papers, or other proprietary or confidential information of such Member.
(b) The Corporation shall reimburse the Members for any reasonable and documented out-of-pocket costs and expenses incurred pursuant to Section  6.3(a) .
 Section 6.4 Approvals .
(a) Neither the Corporation, Amneal LLC nor any direct or indirect subsidiary of Amneal LLC that is treated as a partnership or is disregarded as separate from its owner for U.S. federal income tax purposes shall sell, exchange or otherwise dispose of any asset held on or prior to the Closing Date by Amneal LLC or any entity that was a subsidiary of Amneal LLC prior to the Closing Date in any twelve (12) month period if, following such disposition, the cumulative “amount realized” (as that term is defined in Section 1001 of the Code) from all such dispositions during such twelve (12) month period would be in excess of $40,000,000, unless (i) the Membership Representative provides its prior written consent to such transaction (which consent may be granted or withheld in the Member Representative’s sole discretion) or (ii) the Corporation agrees to use its best efforts to ensure that, during the taxable periods in which any Member is allocated gain attributable to such transaction, each such Member receives distributions pursuant to Section 4.01(b) of the LLC Agreement equal to its Assumed Tax Liability.
(b) Neither the Corporation, Amneal LLC nor any of their respective Affiliates shall make a Subsequent Acquisition if the Subsequent Acquisition Tax Benefits from such Subsequent Acquisition and all prior Subsequent Acquisitions could, in the aggregate, reasonably be expected to materially adversely affect any Member’s rights or obligations under this Agreement (including the amount or timing of any payment made hereunder) without the prior written consent of the Member Representative, which consent may be granted or withheld in the Member Representative’s sole discretion.
(c) Neither the Corporation nor any of its subsidiaries shall enter into any additional agreement providing rights similar to this Agreement to any Person (including any agreement pursuant to which the Corporation is obligated to pay amounts with respect to tax benefits resulting from any net operating losses or other tax attributes to which the Corporation becomes entitled as a result of a transaction) without the prior written consent of the Member Representative (such consent not to be unreasonably withheld, conditioned or delayed), unless all payments to be made by the Corporation or any of its subsidiaries pursuant to such agreement are expressly subordinate in right of payment to all payments to be made hereunder.
 Section 6.5 Tax Attributes . All net operating losses and other tax attributes of the Corporation (or any predecessor thereof), or of any affiliated group that files a consolidated U.S. federal income tax return (and any consolidated, combined, unitary or similar state tax group) and of which the Corporation (or any predecessor thereof) was the parent on or prior to the Closing Date shall, to the maximum extent permitted by applicable law, be carried back to taxable periods ending on or prior to the Closing Date.
 
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 ARTICLE VII.
MISCELLANEOUS
 Section 7.1 Notices . All notices, requests, consents and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by courier service, by fax, by electronic mail (delivery receipt requested) or by certified or registered mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be as specified in a notice given in accordance with this Section  7.1 ). All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the Party to receive such notice:
If to the Corporation, to:
Amneal Pharmaceuticals, Inc.
400 Crossing Boulevard, 3rd Floor
Bridgewater, New Jersey 08807
Attn: Sheldon Hirt
E-mail: shirt@amneal.com
with a copy (which shall not constitute notice to the Corporation) to:
Latham & Watkins LLP
650 Town Center Drive, 20th Floor
Costa Mesa, California 92626
Attn: Charles K. Ruck and R. Scott Shean
E-mail: charles.ruck@lw.com and scott.shean@lw.com
If to a Member, the address, facsimile number and e-mail address specified on such Member’s signature page to this Agreement
Any Party may change its address, fax number or e-mail address by giving each of the other Parties written notice thereof in the manner set forth above.
 Section 7.2 Counterparts . This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
 Section 7.3 Entire Agreement; No Third Party Beneficiaries . This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
 Section 7.4 Governing Law . This Agreement shall be governed by, and construed in accordance with, the law of the State of Delaware, without regard to the conflicts of laws principles thereof that would mandate the application of the laws of another jurisdiction.
 Section 7.5 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other
 
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provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
 Section 7.6 Assignments; Amendments; Successors; No Waiver .
(a) Assignment . Each Member may, at any time, assign, sell, alienate, transfer pledge or hypothecate its interest in this Agreement in whole or in part, including the right to receive any payments to be made pursuant to this Agreement, to any Person, provided , however, that no Member may assign, sell, pledge, or otherwise alienate or transfer any interest in this Agreement, including the right to receive any Tax Benefit Payments under this Agreement, to any Person without such Person executing and delivering a Joinder agreeing to succeed to the applicable portion of such Member’s interest in this Agreement and to become a Party for all purposes of this Agreement (the “ Joinder Requirement ”). For the avoidance of doubt, if a Member transfers Units in accordance with the terms of the LLC Agreement but does not assign to the transferee of such Units its rights under this Agreement with respect to such transferred Units, such Member shall continue to be entitled to receive the Tax Benefit Payments arising in respect of a subsequent Exchange of such Units. The Corporation may not assign any of its rights or obligations under this Agreement to any Person without the prior written consent of the Member Representative (and any purported assignment without such consent shall be null and void).
(b) Amendments . No provision of this Agreement may be amended unless such amendment is approved in writing by the Corporation and the Member Representative; provided that amendment of the definition of Change of Control will also require the written approval of a majority of the Independent Directors.
(c) Successors . All of the terms and provisions of this Agreement shall be binding upon, and shall inure to the benefit of and be enforceable by, the Parties hereto and their respective successors, assigns, heirs, executors, administrators and legal representatives. The Corporation shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place.
(d) Waiver . No provision of this Agreement may be waived unless such waiver is in writing and signed by the Party against whom the waiver is to be effective. No failure by any Party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement, or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or any other covenant, duty, agreement, or condition.
 Section 7.7 Titles and Subtitles . The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
 Section 7.8 Resolution of Disputes .
(a) Except for Reconciliation Disputes subject to Section  7.9 , any and all disputes which cannot be settled after substantial good-faith negotiation, including any ancillary claims of any Party, arising out of, relating to or in connection with the validity, negotiation, execution, interpretation, performance or non-performance of this Agreement (including the validity, scope and enforceability of this arbitration provision) (each a “ Dispute ”) shall be finally resolved by arbitration in accordance with the International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitration by a panel of three arbitrators, of which the Corporation shall designate one arbitrator and the Members party to such Dispute shall designate one arbitrator in accordance with the “screened” appointment procedure provided in Resolution Rule 5.4. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. , and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of the arbitration shall be New York City, New York.
 
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(b) Notwithstanding the provisions of paragraph (a), any Party may bring an action or special proceeding in any court of competent jurisdiction for the purpose of compelling another Party to arbitrate, seeking temporary or preliminary relief in aid of an arbitration hereunder, and/or enforcing an arbitration award and, for the purposes of this paragraph (b), each Party (i) expressly consents to the application of paragraph (c) of this Section  7.8 to any such action or proceeding, and (ii) agrees that proof shall not be required that monetary damages for breach of the provisions of this Agreement would be difficult to calculate and that remedies at law would be inadequate. For the avoidance of doubt, this Section  7.8 shall not apply to Reconciliation Disputes to be settled in accordance with the procedures set forth in Section  7.9 .
(c) Any dispute as to whether a dispute is a Reconciliation Dispute within the meaning of Section  7.9 , or a Dispute within the meaning of this Section  7.8 , shall be decided and resolved as a Dispute subject to the procedures set forth in this Section  7.8 .
 Section 7.9 Reconciliation . In the event that the Corporation and any Member are unable to resolve a disagreement with respect to a Schedule (other than an Early Termination Schedule) prepared in accordance with the procedures set forth in Section  2.4 , with respect to an Early Termination Schedule prepared in accordance with the procedures set forth in Section  4.2 , or with respect to withholding pursuant to Schedule 7.10 , within the relevant time period designated in this Agreement (a “ Reconciliation Dispute ”), the Reconciliation Dispute shall be submitted for determination to a nationally recognized expert (the “ Expert ”) in the particular area of disagreement mutually acceptable to both Parties. The Expert shall be a partner or principal in a nationally recognized accounting firm, and unless the Corporation and such Member agree otherwise, the Expert shall not, and the firm that employs the Expert shall not, have any material relationship with the Corporation or such Member or other actual or potential conflict of interest. If the Parties are unable to agree on an Expert within fifteen (15) calendar days of receipt by the respondent(s) of written notice of a Reconciliation Dispute, the selection of an Expert shall be treated as a Dispute subject to Section  7.8 and an arbitration panel shall pick an Expert from a nationally recognized accounting firm that does not have any material relationship with the Corporation or such Member or other actual or potential conflict of interest. The Expert shall resolve any matter relating to the Basis Schedule or an amendment thereto, or the Early Termination Schedule or an amendment thereto within thirty (30) calendar days and shall resolve any matter relating to a Tax Benefit Schedule or an amendment thereto within fifteen (15) calendar days or as soon thereafter as is reasonably practicable, in each case after the matter has been submitted to the Expert for resolution. Notwithstanding the preceding sentence, if the matter is not resolved before any payment that is the subject of a disagreement would be due (in the absence of such disagreement) or any Tax Return reflecting the subject of a disagreement is due, the undisputed amount shall be paid on the date prescribed by this Agreement and such Tax Return may be filed as prepared by the Corporation, subject to adjustment or amendment upon resolution. The costs and expenses relating to the engagement of such Expert or amending any Tax Return shall be borne by the Corporation except as provided in the next sentence. The Corporation and the Member shall bear their own costs and expenses of such proceeding, unless (i) the Expert adopts the Member’s position, in which case the Corporation shall reimburse the Member for any reasonable and documented out-of-pocket costs and expenses in such proceeding, or (ii) the Expert adopts the Corporation’s position, in which case the Member shall reimburse the Corporation for any reasonable and documented out-of-pocket costs and expenses in such proceeding. The Expert shall finally determine any Reconciliation Dispute and the determinations of the Expert pursuant to this Section  7.9 shall be binding on the Corporation and the Member and may be entered and enforced in any court having competent jurisdiction.
 Section 7.10 Withholding . The Corporation shall be entitled to deduct and withhold from any payment that is payable to any Member pursuant to this Agreement such amounts as the Corporation is required to deduct and withhold with respect to the making of such payment under the Code. If the Corporation becomes aware of any such requirement to so deduct and withhold from any payment to a Member, the Corporation shall (i) provide such Member with written notice of the amount of and applicable law requiring such withholding at least ten (10) calendar days prior to making such deduction and withholding, (ii) provide the Member with all related tax documentation that such Member reasonably requests and (iii) use commercially reasonable efforts to obtain exemptions from, or reductions of, any amounts to be withheld. In the event that the Corporation and such
 
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Member, for any reason, disagree as to the amount to be withheld and deducted and are unable to resolve such disagreement at least five (5) calendar days prior to the date on which the Corporation would so deduct and withhold, the Corporation and the Member shall employ the Reconciliation Procedures. To the extent that amounts are so withheld and paid over to the appropriate Taxing Authority by the Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid by the Corporation to the relevant Member. Each Member shall promptly provide the Corporation with any applicable tax forms and certifications reasonably requested by the Corporation in connection with determining whether any such deductions and withholdings are required under the Code.
 Section 7.11 Admission of the Corporation into a Consolidated Group; Transfers of Corporate Assets .
(a) If the Corporation is or becomes a member of an affiliated, consolidated or unitary group of corporations that files a consolidated income Tax Return pursuant to Section 1501 or other applicable Sections of the Code governing affiliated or consolidated groups, or any similar provisions of U.S. state or local tax law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments, and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole.
(b) If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. income tax purposes) with which such entity does not file a consolidated Tax Return pursuant to Section 1501 of the Code, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity shall be equal to the fair market value of the contributed asset. For purposes of this Section  7.11 , a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
 Section 7.12 Confidentiality . Each Member and its assignees acknowledges and agrees that the information of the Corporation is confidential and, except in the course of performing any duties as necessary for the Corporation and its Affiliates, as required by law or legal process or to enforce the terms of this Agreement, such Person shall keep and retain in the strictest confidence and not disclose to any Person any confidential matters, acquired pursuant to this Agreement, of the Corporation and its Affiliates and successors, learned by any Member heretofore or hereafter, provided that, each Member acknowledges and agrees that such Member shall, except as otherwise provided by applicable law, keep and retain in the strictest confidence and not disclose to any Person that is not a Member any confidential matters contained in supporting schedules or work papers provided to such Member pursuant to Section 2.4(a) this Agreement. This Section  7.12 shall not apply to (i) any information that has been made publicly available by the Corporation or any of its Affiliates, becomes public knowledge (except as a result of an act of any Member in violation of this Agreement) or is generally known to the business community, (ii) the disclosure of information to the extent necessary for a Member to prosecute or defend claims arising under or relating to this Agreement, and (iii) the disclosure of information to the extent necessary for a Member to prepare and file its Tax Returns, to respond to any inquiries regarding the same from any Taxing Authority or to prosecute or defend any action, proceeding or audit by any Taxing Authority with respect to such Tax Returns. Notwithstanding anything to the contrary herein, the Members and each of their assignees (and each employee, representative or other agent of the Members or their assignees, as applicable) may disclose at their discretion to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the Corporation, the Members and any of their transactions, and all materials of any kind (including tax opinions or other tax analyses) that are provided to the Members relating to such tax treatment and tax structure. If a Member or an assignee commits a breach, or threatens to commit a breach, of any of the provisions of this Section  7.12 , the Corporation shall have the right and remedy to have the provisions of this Section  7.12 specifically enforced by injunctive relief or otherwise by any court of competent jurisdiction without the need to post any bond or other security, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Corporation or any of its subsidiaries and that money damages alone shall not
 
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provide an adequate remedy to such Persons. Such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available at law or in equity.
 Section 7.13 Change in Law . Notwithstanding anything herein to the contrary, if, in connection with an actual or proposed change in law, a Member reasonably believes that the existence of this Agreement could cause income (other than income arising from receipt of a payment under this Agreement) recognized by such Member (or direct or indirect equity holders in such Member) in connection with any Exchange to be treated as ordinary income rather than capital gain (or otherwise taxed at ordinary income rates) for U.S. federal income tax purposes or would have other material adverse tax consequences to such Member (or any direct or indirect owner of such Member), then at the written election of such Member in its sole discretion (in an instrument signed by such Member and delivered to the Corporation) and to the extent specified therein by such Member, this Agreement shall cease to have further effect with respect to such Member and shall not apply to an Exchange with respect to the Units of such Member occurring after a date specified by such Member, or may be amended in a manner reasonably determined by such Member, provided that (i) such amendment shall not result in an increase in any payments owed by the Corporation under this Agreement at any time as compared to the amounts and times of payments that would have been due in the absence of such amendment and (ii) the Member Representative consents in writing to such amendment, such consent not to be unreasonably withheld, conditioned or delayed.
 Section 7.14 Interest Rate Limitation . Notwithstanding anything to the contrary contained herein, the interest paid or agreed to be paid hereunder with respect to amounts due to any Member hereunder shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”). If any Member shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the Tax Benefit Payment or Early Termination Payment, as applicable (but in each case exclusive of any component thereof comprising interest) or, if it exceeds such unpaid non-interest amount, refunded to the Corporation. In determining whether the interest contracted for, charged, or received by any Member exceeds the Maximum Rate, such Member may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the payment obligations owed by the Corporation to such Member hereunder. Notwithstanding the foregoing, it is the intention of the Parties to conform strictly to any applicable usury laws.
 Section 7.15 Independent Nature of Rights and Obligations . The rights and obligations of each Member hereunder are several and not joint with the rights and obligations of any other Person. A Member shall not be responsible in any way for the performance of the obligations of any other Person hereunder, nor shall a Member have the right to enforce the rights or obligations of any other Person hereunder (other than the Corporation). The obligations of a Member hereunder are solely for the benefit of, and shall be enforceable solely by, the Corporation. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Member pursuant hereto or thereto, shall be deemed to constitute the Members acting as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Members are in any way acting in concert or as a group with respect to such rights or obligations or the transactions contemplated hereby, and the Corporation acknowledges that the Members are not acting in concert or as a group and will not assert any such claim with respect to such rights or obligations or the transactions contemplated hereby.
[ Signature Page Follows This Page ]
 
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IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf this Agreement as of the date first written above.

AMNEAL PHARMACEUTICALS, INC.	

By:	 	 	
Name:	 		
Title:	 		

AMNEAL PHARMACEUTICALS LLC	

By:	 	 	
Name:	 		
Title:	 		

[MEMBERS]	
 
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Exhibit A
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT, dated as of                     , 20     (this “ Joinder ”), is delivered pursuant to that certain Tax Receivable Agreement, dated as of [●] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Tax Receivable Agreement ”) by and among Amneal Pharmaceuticals, Inc., a Delaware corporation (the “ Corporation ”), Amneal Pharmaceuticals LLC, a Delaware limited liability company (“ Amneal LLC ”), and each of the Members from time to time party thereto. Capitalized terms used but not otherwise defined herein have the respective meanings set forth in the Tax Receivable Agreement.
 
 	1.	Joinder to the Tax Receivable Agreement . The undersigned hereby represents and warrants to the Corporation that, as of the date hereof, the undersigned has been assigned an interest in the Tax Receivable Agreement from a Member and [●]. 1	
 
 	2.	Joinder to the Tax Receivable Agreement . Upon the execution of this Joinder by the undersigned and delivery hereof to the Corporation, the undersigned hereby is and hereafter will be a Member under the Tax Receivable Agreement and a Party thereto, with all the rights, privileges and responsibilities of a Member thereunder. The undersigned hereby agrees that it shall comply with and be fully bound by the terms of the Tax Receivable Agreement as if it had been a signatory thereto as of the date thereof.	
 
 	3.	Incorporation by Reference . All terms and conditions of the Tax Receivable Agreement are hereby incorporated by reference in this Joinder as if set forth herein in full.	
 
 	4.	Address . All notices under the Tax Receivable Agreement to the undersigned shall be direct to:	
[Name]
[Address]
[City, State, Zip Code]
Attn:
Facsimile:
E-mail:
[ Signature Page Follows This Page ]

1  	Note to Draft : Language to be added as applicable.	
 
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IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Joinder as of the day and year first above written.

[NAME OF NEW PARTY]	
		
By:	 	 	
Name:	 		
Title:	 		

Exhibit A
 
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Exhibit 10.6
ATLAS HOLDINGS, INC.
2018 INCENTIVE AWARD PLAN
ARTICLE 1.
PURPOSE
The purpose of the Atlas Holdings, Inc. 2018 Incentive Award Plan (as it may be amended or restated from time to time, the “ Plan ”) is to promote the success and enhance the value of Atlas Holdings, Inc. (the “ Company ”) by linking the individual interests of the members of the Board, Employees, and Consultants to those of Company stockholders and by providing such individuals with an incentive for outstanding performance to generate superior returns to Company stockholders. The Plan is further intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of members of the Board, Employees, and Consultants upon whose judgment, interest, and special effort the successful conduct of the Company’s operation is largely dependent.
ARTICLE 2.
DEFINITIONS AND CONSTRUCTION
Wherever the following terms are used in the Plan they shall have the meanings specified below, unless the context clearly indicates otherwise. The singular pronoun shall include the plural where the context so indicates.
2.1    “ Administrator ” shall mean the entity that conducts the general administration of the Plan as provided in Article 11. With reference to the duties of the Committee under the Plan which have been delegated to one or more persons pursuant to Section 11.6, or as to which the Board has assumed, the term “Administrator” shall refer to such person(s) unless the Committee or the Board has revoked such delegation or the Board has terminated the assumption of such duties.
2.2    “ Applicable Accounting Standards ” shall mean Generally Accepted Accounting Principles in the United States, International Financial Reporting Standards or such other accounting principles or standards as may apply to the Company’s financial statements under United States federal securities laws from time to time.
2.3    “ Applicable Law ” shall mean any applicable law, including without limitation: (a) provisions of the Code, the Securities Act, the Exchange Act and any rules or regulations thereunder; (b) corporate, securities, tax or other laws, statutes, rules, requirements or regulations, whether federal, state, local or foreign; and (c) rules of any securities exchange or automated quotation system on which the Shares are listed, quoted or traded.
2.4    “ Award ” shall mean an Option, a Stock Appreciation Right, a Restricted Stock award, a Restricted Stock Unit award, an Other Stock or Cash Based Award or a Dividend Equivalent award, which may be awarded or granted under the Plan.

2.5    “ Award Agreement ” shall mean any written notice, agreement, terms and conditions, contract or other instrument or document evidencing an Award, including through electronic medium, which shall contain such terms and conditions with respect to an Award as the Administrator shall determine consistent with the Plan.
2.6    “ Board ” shall mean the Board of Directors of the Company.
2.7    “ Change in Control ” shall mean and includes each of the following:
(a)    Any “person” as such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the equity securities of the Company), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of equity securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding equity securities.
(b)    During any period of 12 consecutive months, the individuals who, at the beginning of such period, constitute the Board, and any new director whose election by the Board or nomination for election by the Company’s equityholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the 12-month period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the Board;
(c)    A merger or consolidation of the Company with any other corporation or other entity, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (and held by persons that are not affiliates of the acquirer) continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided , however , that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person (other than those covered by the exceptions in Section 2.7(a)) acquires more than 50% of the combined voting power of the Company’s then outstanding securities shall not constitute a Change in Control; or
(d)    The consummation of a sale or other disposition by the Company of all or substantially all of the Company’s assets, including a liquidation, other than the sale or other disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, more than 50% of the combined voting power of the outstanding voting securities of the Company immediately prior to the time of the sale or other disposition.
Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any Award (or any portion of an Award) that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event described in subsection (a), (b), (c) or (d) with respect to such Award (or portion thereof) shall only constitute a Change in Control for purposes of the payment timing of such Award if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).
The Administrator shall have full and final authority, which shall be exercised in its sole discretion, to determine conclusively whether a Change in Control has occurred pursuant to the above definition, the date of the occurrence of such Change in Control and any incidental matters relating thereto; provided that any exercise of authority in conjunction with a determination of whether a Change in Control is a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5) shall be consistent with such regulation.
 
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2.8    “ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time, together with the regulations and official guidance promulgated thereunder, whether issued prior or subsequent to the grant of any Award.
2.9    “ Committee ” shall mean the Compensation Committee of the Board, or another committee or subcommittee of the Board or the Compensation Committee of the Board described in Article 11 hereof.
2.10    “ Common Stock ” shall mean the Class A common stock of the Company, par value $0.01 per share.
2.11    “ Company ” shall have the meaning set forth in Article 1.
2.12    “ Consultant ” shall mean any consultant or adviser engaged to provide services to the Company or any Subsidiary who qualifies as a consultant or advisor under the applicable rules of the Securities and Exchange Commission for registration of shares on a Form S-8 Registration Statement.
2.13    “ Director ” shall mean a member of the Board, as constituted from time to time.
2.14    “ Director Limit ” shall have the meaning set forth in Section 4.6.
 
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2.15    “ Dividend Equivalent ” shall mean a right to receive the equivalent value (in cash or Shares) of dividends paid on Shares, awarded under Section 9.2.
2.16    “ DRO ” shall mean a “domestic relations order” as defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended from time to time, or the rules thereunder.
2.17    “ Effective Date ” shall mean the date the Plan is approved by the stockholders of Impax Laboratories, Inc.
2.18    “ Eligible Individual ” shall mean any person who is an Employee, a Consultant or a Non-Employee Director, as determined by the Administrator.
2.19    “ Employee ” shall mean any officer or other employee (as determined in accordance with Section 3401(c) of the Code and the Treasury Regulations thereunder) of the Company or of any Subsidiary.
2.20    “ Equity Restructuring ” shall mean a nonreciprocal transaction between the Company and its stockholders, such as a stock dividend, stock split, spin-off, rights offering or recapitalization through a large, nonrecurring cash dividend, that affects the number or kind of Shares (or other securities of the Company) or the share price of Common Stock (or other securities) and causes a change in the per-share value of the Common Stock underlying outstanding Awards.
2.21    “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time.
2.22    “ Expiration Date ” shall have the meaning given to such term in Section 12.1(c).
2.23    “ Fair Market Value ” shall mean, as of any given date, the value of a Share determined as follows:
(a)    If the Common Stock is (i) listed on any established securities exchange (such as the New York Stock Exchange, the NASDAQ Capital Market, the NASDAQ Global Market and the NASDAQ Global Select Market), (ii) listed on any national market system or (iii) quoted or traded on any automated quotation system, its Fair Market Value shall be the closing sales price for a Share as quoted on such exchange or system for such date or, if there is no closing sales price for a Share on the date in question, the closing sales price for a Share on the last preceding date for which such quotation exists, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;
(b)    If the Common Stock is not listed on an established securities exchange, national market system or automated quotation system, but the Common Stock is regularly quoted by a recognized securities dealer, its Fair Market Value shall be the mean of the high bid and low asked prices for such date or, if there are no high bid and low asked prices for a Share on such date, the high bid and low asked prices for a Share on the last preceding date for which such information exists, as reported in The Wall Street Journal or such other source as the Administrator deems reliable; or
 
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(c)    If the Common Stock is neither listed on an established securities exchange, national market system or automated quotation system nor regularly quoted by a recognized securities dealer, its Fair Market Value shall be established by the Administrator in good faith.
2.24    “ Greater Than 10% Stockholder” shall mean an individual then owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of stock of the Company or any subsidiary corporation (as defined in Section 424(f) of the Code) or parent corporation thereof (as defined in Section 424(e) of the Code).
2.25    “ Holder ” shall mean a person who has been granted an Award.
2.26    “ Incentive Stock Option ” shall mean an Option that is intended to qualify as an incentive stock option and conforms to the applicable provisions of Section 422 of the Code.
2.27    “ Non-Employee Director ” shall mean a Director of the Company who is not an Employee.
2.28    “ Non-Employee Director Equity Compensation Policy ” shall have the meaning set forth in Section 4.6.
2.29    “ Non-Qualified Stock Option ” shall mean an Option that is not an Incentive Stock Option or which is designated as an Incentive Stock Option but does not meet the applicable requirements of Section 422 of the Code.
2.30    “ Option ” shall mean a right to purchase Shares at a specified exercise price, granted under Article 5. An Option shall be either a Non-Qualified Stock Option or an Incentive Stock Option; provided , however , that Options granted to Non-Employee Directors and Consultants shall only be Non-Qualified Stock Options.
2.31    “ Option Term ” shall have the meaning set forth in Section 5.4.
2.32    “ Organizational Documents ” shall mean, collectively, (a) the Company’s articles of incorporation, certificate of incorporation, bylaws or other similar organizational
 
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documents relating to the creation and governance of the Company, and (b) the Committee’s charter or other similar organizational documentation relating to the creation and governance of the Committee.
2.33    “ Other Stock or Cash Based Award ” shall mean a phantom stock award, cash payment, cash bonus award, stock payment, stock bonus award, performance award or incentive award that is paid in cash, Shares or a combination of both, awarded under Section 9.1, which may include, without limitation, deferred stock, deferred stock units, retainers, committee fees, and meeting-based fees.
2.34    “ Permitted Transferee ” shall mean, with respect to a Holder, any “family member” of the Holder, as defined in the General Instructions to Form S-8 Registration Statement under the Securities Act (or any successor form thereto), or any other transferee specifically approved by the Administrator after taking into account Applicable Law.
2.35    “ Plan ” shall have the meaning set forth in Article 1.
2.36    “ Program ” shall mean any program adopted by the Administrator pursuant to the Plan containing the terms and conditions intended to govern a specified type of Award granted under the Plan and pursuant to which such type of Award may be granted under the Plan.
2.37    “ Public Trading Date ” shall mean the first date upon which Common Stock is listed (or approved for listing) upon notice of issuance on any securities exchange or designated (or approved for designation) upon notice of issuance as a national market security on an interdealer quotation system.
2.38    “ Restricted Stock ” shall mean Common Stock awarded under Article 7 that is subject to certain restrictions and may be subject to risk of forfeiture or repurchase.
2.39    “ Restricted Stock Units ” shall mean the right to receive Shares awarded under Article 8.
2.40    “ Section  409A ” shall mean Section 409A of the Code and the Department of Treasury regulations and other interpretive guidance issued thereunder, including, without limitation, any such regulations or other guidance that may be issued after the Effective Date.
2.41    “ Securities Act ” shall mean the Securities Act of 1933, as amended.
2.42    “ Shares ” shall mean shares of Common Stock.
2.43    “ Stock Appreciation Right ” shall mean an Award entitling the Holder (or other person entitled to exercise pursuant to the Plan) to exercise all or a specified portion thereof (to the extent then exercisable pursuant to its terms) and to receive from the Company an amount determined by multiplying the difference obtained by subtracting the exercise price per share of such Award from the Fair Market Value on the date of exercise of such Award by the number of Shares with respect to which such Award shall have been exercised, subject to any limitations the Administrator may impose.
 
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2.44    “ SAR Term ” shall have the meaning set forth in Section 5.4.
2.45    “ Subsidiary ” shall mean any entity (other than the Company), whether domestic or foreign, in an unbroken chain of entities beginning with the Company if each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities or interests representing at least fifty percent (50%) of the total combined voting power of all classes of securities or interests in one of the other entities in such chain.
2.46    “ Substitute Award ” shall mean an Award granted under the Plan in connection with a corporate transaction, such as a merger, combination, consolidation or acquisition of property or stock, in any case, upon the assumption of, or in substitution for, outstanding equity awards previously granted by a company or other entity; provided , however , that in no event shall the term “Substitute Award” be construed to refer to an award made in connection with the cancellation and repricing of an Option or Stock Appreciation Right.
2.47    “ Termination of Service ” shall mean:
(a)    As to a Consultant, the time when the engagement of a Holder as a Consultant to the Company or a Subsidiary is terminated for any reason, with or without cause, including, without limitation, by resignation, discharge, death or retirement, but excluding terminations where the Consultant simultaneously commences or remains in employment or service with the Company or any Subsidiary.
(b)    As to a Non-Employee Director, the time when a Holder who is a Non-Employee Director ceases to be a Director for any reason, including, without limitation, a termination by resignation, failure to be elected, death or retirement, but excluding terminations where the Holder simultaneously commences or remains in employment or service with the Company or any Subsidiary.
(c)    As to an Employee, the time when the employee-employer relationship between a Holder and the Company or any Subsidiary is terminated for any reason, including, without limitation, a termination by resignation, discharge, death, disability or retirement; but excluding terminations where the Holder simultaneously commences or remains in employment or service with the Company or any Subsidiary.
The Administrator, in its sole discretion, shall determine the effect of all matters and questions relating to any Termination of Service, including, without limitation, whether a Termination of Service has occurred, whether a Termination of Service resulted from a discharge for cause and all questions of whether particular leaves of absence constitute a Termination of Service; provided , however , that, with respect to Incentive Stock Options, unless the Administrator otherwise provides in the terms of any Program, Award Agreement or otherwise, or as otherwise required by Applicable Law, a leave of absence, change in status from an employee to an independent contractor or other change in the employee-employer relationship shall constitute a Termination of Service only if, and to the extent that, such leave of absence, change in status or other change interrupts employment for the purposes of Section 422(a)(2) of the Code and the then-applicable regulations and revenue rulings under said Section. For
 
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purposes of the Plan, a Holder’s employee-employer relationship or consultancy relations shall be deemed to be terminated in the event that the Subsidiary employing or contracting with such Holder ceases to remain a Subsidiary following any merger, sale of stock or other corporate transaction or event (including, without limitation, a spin-off).
ARTICLE 3.
SHARES SUBJECT TO THE PLAN
3.1     Number of Shares .
(a)    Subject to Sections 3.1(b) and 12.2, the aggregate number of Shares which may be issued or transferred pursuant to Awards (including, without limitation, Incentive Stock Options) under the Plan is 23,000,000. Any Shares distributed pursuant to an Award may consist, in whole or in part, of authorized and unissued Common Stock, treasury Common Stock or Common Stock purchased on the open market.
(b)    If any Shares subject to an Award are forfeited or expire, are converted to shares of another person in connection with a spin-off or other similar event, or such Award is settled for cash (in whole or in part) (including Shares repurchased by the Company under Section 7.4 at the same price paid by the Holder), the Shares subject to such Award shall, to the extent of such forfeiture, expiration, conversion or cash settlement, again be available for future grants of Awards under the Plan. Notwithstanding anything to the contrary contained herein, the following Shares shall not be added to the Shares authorized for grant under Section 3.1(a) and shall not be available for future grants of Awards: (i) Shares tendered by a Holder or withheld by the Company in payment of the exercise price of an Option; (ii) Shares tendered by the Holder or withheld by the Company to satisfy any tax withholding obligation with respect to an Award; and (iii) Shares subject to a Stock Appreciation Right that are not issued in connection with the stock settlement of the Stock Appreciation Right on exercise thereof. The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards shall not be counted against the Shares available for issuance under the Plan. Notwithstanding the provisions of this Section 3.1(b), no Shares may again be optioned, granted or awarded if such action would cause an Incentive Stock Option to fail to qualify as an incentive stock option under Section 422 of the Code.
(c)    Substitute Awards shall not reduce the Shares authorized for grant under the Plan, except as may be required by reason of Section 422 of the Code. Additionally, in the event that a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines has shares available under a pre-existing plan approved by its stockholders and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for grant under the Plan; provided that Awards using such available Shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not employed by or providing services to the Company or its Subsidiaries immediately prior to such acquisition or combination.
3.2     Award Vesting Limitations . Notwithstanding any other provision of the Plan to the contrary, but subject to Section 12.2 of the Plan, Awards granted under the Plan shall vest no earlier than the first anniversary of the date the Award is granted; provided , however , that, notwithstanding the foregoing, Awards that result in the issuance of an aggregate of up to 5% of the shares of Common Stock available pursuant to Section 3.1(a) may be granted to any one or more Eligible Individuals without respect to such minimum vesting provisions. Nothing in this Section 3.2 shall preclude the Administrator from taking action, in its sole discretion, to accelerate the vesting of any Award in connection with or following a Holder’s death, disability, Termination of Service or the consummation of a Change in Control.
 
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ARTICLE 4.
GRANTING OF AWARDS
4.1     Participation . The Administrator may, from time to time, select from among all Eligible Individuals, those to whom an Award shall be granted and shall determine the nature and amount of each Award, which shall not be inconsistent with the requirements of the Plan. Except for any Non-Employee Director’s right to Awards that may be required pursuant to the Non-Employee Director Equity Compensation Policy as described in Section 4.6, no Eligible Individual or other person shall have any right to be granted an Award pursuant to the Plan and neither the Company nor the Administrator is obligated to treat Eligible Individuals, Holders or any other persons uniformly. Participation by each Holder in the Plan shall be voluntary and nothing in the Plan or any Program shall be construed as mandating that any Eligible Individual or other person shall participate in the Plan.
4.2     Award Agreement . Each Award shall be evidenced by an Award Agreement that sets forth the terms, conditions and limitations for such Award as determined by the Administrator in its sole discretion (consistent with the requirements of the Plan and any applicable Program). Award Agreements evidencing Incentive Stock Options shall contain such terms and conditions as may be necessary to meet the applicable provisions of Section 422 of the Code.
4.3     Limitations Applicable to Section  16 Persons . Notwithstanding any other provision of the Plan, the Plan, and any Award granted or awarded to any individual who is then subject to Section 16 of the Exchange Act, shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including Rule 16b-3 of the Exchange Act and any amendments thereto) that are requirements for the application of such exemptive rule. To the extent permitted by Applicable Law, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
4.4     At-Will Service . Nothing in the Plan or in any Program or Award Agreement hereunder shall confer upon any Holder any right to continue in the employ of, or as a Director or Consultant for, the Company or any Subsidiary, or shall interfere with or restrict in any way the rights of the Company and any Subsidiary, which rights are hereby expressly reserved, to discharge any Holder at any time for any reason whatsoever, with or without cause, and with or without notice, or to terminate or change all other terms and conditions of employment or engagement, except to the extent expressly provided otherwise in a written agreement between the Holder and the Company or any Subsidiary.
4.5     Foreign Holders . Notwithstanding any provision of the Plan or applicable Program to the contrary, in order to comply with the laws in countries other than the United States in which the Company and its Subsidiaries operate or have Employees, Non-Employee Directors or Consultants, or in order to comply with the requirements of any foreign securities
 
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exchange or other Applicable Law, the Administrator, in its sole discretion, shall have the power and authority to: (a) determine which Subsidiaries shall be covered by the Plan; (b) determine which Eligible Individuals outside the United States are eligible to participate in the Plan; (c) modify the terms and conditions of any Award granted to Eligible Individuals outside the United States to comply with Applicable Law (including, without limitation, applicable foreign laws or listing requirements of any foreign securities exchange); (d) establish subplans and modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable; provided , however , that no such subplans and/or modifications shall increase the share limitation contained in Section 3.1 or the Director Limit; and (e) take any action, before or after an Award is made, that it deems advisable to obtain approval or comply with any necessary local governmental regulatory exemptions or approvals or listing requirements of any foreign securities exchange.
4.6     Non-Employee Director Awards .
(a)     Non-Employee Director Equity Compensation Policy . The Administrator, in its sole discretion, may provide that Awards granted to Non-Employee Directors shall be granted pursuant to a written nondiscretionary formula established by the Administrator (the “ Non-Employee Director Equity Compensation Policy ”), subject to the limitations of the Plan. The Non-Employee Director Equity Compensation Policy shall set forth the type of Award(s) to be granted to Non-Employee Directors, the number of Shares to be subject to Non-Employee Director Awards, the conditions on which such Awards shall be granted, become exercisable and/or payable and expire, and such other terms and conditions as the Administrator shall determine in its sole discretion. The Non-Employee Director Equity Compensation Policy may be modified by the Administrator from time to time in its sole discretion.
(b)     Director Limit . Notwithstanding any provision to the contrary in the Plan or in the Non-Employee Director Equity Compensation Policy, the sum of the grant date fair value of equity-based Awards and the amount of any cash-based Awards granted to a Non-Employee Director during any calendar year shall not exceed $700,000 (the “ Director Limit ”).
ARTICLE 5.
GRANTING OF OPTIONS AND STOCK APPRECIATION RIGHTS
5.1     Granting of Options and Stock Appreciation Rights to Eligible Individuals . The Administrator is authorized to grant Options and Stock Appreciation Rights to Eligible Individuals from time to time, in its sole discretion, on such terms and conditions as it may determine, which shall not be inconsistent with the Plan.
5.2     Qualification of Incentive Stock Options . The Administrator may grant Options intended to qualify as Incentive Stock Options only to employees of the Company, any of the Company’s present or future “parent corporations” or “subsidiary corporations” as defined in Sections 424(e) or (f) of the Code, respectively, and any other entities the employees of which are eligible to receive Incentive Stock Options under the Code. No person who qualifies as a Greater Than 10% Stockholder may be granted an Incentive Stock Option unless such Incentive Stock Option conforms to the applicable provisions of Section 422 of the Code. To the extent
 
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that the aggregate fair market value of stock with respect to which “incentive stock options” (within the meaning of Section 422 of the Code, but without regard to Section 422(d) of the Code) are exercisable for the first time by a Holder during any calendar year under the Plan, and all other plans of the Company and any parent corporation or subsidiary corporation thereof (as defined in Section 424(e) and 424(f) of the Code, respectively), exceeds $100,000, the Options shall be treated as Non-Qualified Stock Options to the extent required by Section 422 of the Code. The rule set forth in the immediately preceding sentence shall be applied by taking Options and other “incentive stock options” into account in the order in which they were granted and the fair market value of stock shall be determined as of the time the respective options were granted. Any interpretations and rules under the Plan with respect to Incentive Stock Options shall be consistent with the provisions of Section 422 of the Code. Neither the Company nor the Administrator shall have any liability to a Holder, or any other person, (a) if an Option (or any part thereof) which is intended to qualify as an Incentive Stock Option fails to qualify as an Incentive Stock Option or (b) for any action or omission by the Company or the Administrator that causes an Option not to qualify as an Incentive Stock Option, including without limitation, the conversion of an Incentive Stock Option to a Non-Qualified Stock Option or the grant of an Option intended as an Incentive Stock Option that fails to satisfy the requirements under the Code applicable to an Incentive Stock Option.
5.3     Option and Stock Appreciation Right Exercise Price . The exercise price per Share subject to each Option and Stock Appreciation Right shall be set by the Administrator, but shall not be less than 100% of the Fair Market Value of a Share on the date the Option or Stock Appreciation Right, as applicable, is granted (or, as to Incentive Stock Options, on the date the Option is modified, extended or renewed for purposes of Section 424(h) of the Code). In addition, in the case of Incentive Stock Options granted to a Greater Than 10% Stockholder, such price shall not be less than 110% of the Fair Market Value of a Share on the date the Option is granted (or the date the Option is modified, extended or renewed for purposes of Section 424(h) of the Code). Notwithstanding the foregoing, in the case of an Option or Stock Appreciation Right that is a Substitute Award, the exercise price per share of the Shares subject to such Option or Stock Appreciation Right, as applicable, may be less than the Fair Market Value per share on the date of grant; provided that the exercise price of any Substitute Award shall be determined in accordance with the applicable requirements of Section 424 and 409A of the Code.
5.4     Option and SAR Term . The term of each Option (the “ Option Term ”) and the term of each Stock Appreciation Right (the “ SAR Term ”) shall be set by the Administrator in its sole discretion; provided , however , that the Option Term or SAR Term, as applicable, shall not be more than (a) ten (10) years from the date the Option or Stock Appreciation Right, as applicable, is granted to an Eligible Individual (other than, in the case of Incentive Stock Options, a Greater Than 10% Stockholder), or (b) five (5) years from the date an Incentive Stock Option is granted to a Greater Than 10% Stockholder. Except as limited by the requirements of Section 409A or Section 422 of the Code and regulations and rulings thereunder or the first sentence of this Section 5.4 and without limiting the Company’s rights under Section 10.7, the Administrator may extend the Option Term of any outstanding Option or the SAR Term of any outstanding Stock Appreciation Right, and may extend the time period during which vested Options or Stock Appreciation Rights may be exercised, in connection with any Termination of Service of the Holder or otherwise, and may amend, subject to Sections 10.7 and 12.1, any other term or condition of such Option or Stock Appreciation Right relating to such Termination of Service of the Holder or otherwise.
 
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5.5     Option and SAR Vesting . The period during which the right to exercise, in whole or in part, an Option or Stock Appreciation Right vests in the Holder shall be set by the Administrator and set forth in the applicable Award Agreement, subject to Section 3.2. Unless otherwise determined by the Administrator in the Award Agreement, the applicable Program or by action of the Administrator following the grant of the Option or Stock Appreciation Right, (a) no portion of an Option or Stock Appreciation Right which is unexercisable at a Holder’s Termination of Service shall thereafter become exercisable and (b) the portion of an Option or Stock Appreciation Right that is unexercisable at a Holder’s Termination of Service shall automatically expire thirty (30) days following such Termination of Service.
5.6     Substitution of Stock Appreciation Rights; Early Exercise of Options . The Administrator may provide in the applicable Program or Award Agreement evidencing the grant of an Option that the Administrator, in its sole discretion, shall have the right to substitute a Stock Appreciation Right for such Option at any time prior to or upon exercise of such Option; provided that such Stock Appreciation Right shall be exercisable with respect to the same number of Shares for which such substituted Option would have been exercisable, and shall also have the same exercise price, vesting schedule and remaining term as the substituted Option. The Administrator may provide in the terms of an Award Agreement that the Holder may exercise an Option in whole or in part prior to the full vesting of the Option in exchange for unvested shares of Restricted Stock with respect to any unvested portion of the Option so exercised. Shares of Restricted Stock acquired upon the exercise of any unvested portion of an Option shall be subject to such terms and conditions as the Administrator shall determine.
ARTICLE 6.
EXERCISE OF OPTIONS AND STOCK APPRECIATION RIGHTS
6.1     Exercise and Payment . An exercisable Option or Stock Appreciation Right may be exercised in whole or in part. However, an Option or Stock Appreciation Right shall not be exercisable with respect to fractional Shares and the Administrator may require that, by the terms of the Option or Stock Appreciation Right, a partial exercise must be with respect to a minimum number of Shares. Payment of the amounts payable with respect to Stock Appreciation Rights pursuant to this Article 6 shall be in cash, Shares (based on its Fair Market Value as of the date the Stock Appreciation Right is exercised), or a combination of both, as determined by the Administrator.
6.2     Manner of Exercise . All or a portion of an exercisable Option or Stock Appreciation Right shall be deemed exercised upon delivery of all of the following to the Secretary of the Company, the stock plan administrator of the Company or such other person designated by the Administrator, or his, her or its office, as applicable:
(a)    A written or electronic notice complying with the applicable rules established by the Administrator stating that the Option or Stock Appreciation Right, or a portion thereof, is exercised. The notice shall be signed or otherwise acknowledged electronically by the Holder or other person or entity then entitled to exercise the Option or Stock Appreciation Right or such portion thereof;
 
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(b)    Such representations and documents as the Administrator, in its sole discretion, deems necessary or advisable to effect compliance with Applicable Law;
(c)    In the event that the Option shall be exercised pursuant to Section 10.3 by any person or persons other than the Holder, appropriate proof of the right of such person or persons to exercise the Option or Stock Appreciation Right, as determined in the sole discretion of the Administrator; and
(d)    Full payment of the exercise price and applicable withholding taxes for the Shares with respect to which the Option or Stock Appreciation Right, or portion thereof, is exercised, in a manner permitted by the Administrator in accordance with Sections 10.1 and 10.2.
6.3     Notification Regarding Disposition . The Holder shall give the Company prompt written or electronic notice of any disposition of Shares acquired by exercise of an Incentive Stock Option which occurs within (a) two years from the date of granting (including the date the Option is modified, extended or renewed for purposes of Section 424(h) of the Code) such Option to such Holder, or (b) one year after the date of transfer of such Shares to such Holder. Such notice shall specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by the Holder in such disposition or other transfer.
ARTICLE 7.
AWARD OF RESTRICTED STOCK
7.1     Award of Restricted Stock . The Administrator is authorized to grant Restricted Stock to Eligible Individuals, and shall determine the terms and conditions, including the restrictions applicable to each award of Restricted Stock, which terms and conditions shall not be inconsistent with the Plan or any applicable Program, and may impose such conditions on the issuance of such Restricted Stock as it deems appropriate. The Administrator shall establish the purchase price, if any, and form of payment for Restricted Stock; provided , however , that if a purchase price is charged, such purchase price shall be no less than the par value, if any, of the Shares to be purchased, unless otherwise permitted by Applicable Law. In all cases, legal consideration shall be required for each issuance of Restricted Stock to the extent required by Applicable Law.
7.2     Rights as Stockholders . Subject to Section 7.4, upon issuance of Restricted Stock, the Holder shall have, unless otherwise provided by the Administrator, all the rights of a stockholder with respect to said Shares, subject to the restrictions in the Plan, any applicable Program and/or the applicable Award Agreement, including the right to receive all dividends and other distributions paid or made with respect to the Shares to the extent such dividends and other distributions have a record date that is on or after the date on which the Holder to whom such Shares are granted becomes the record holder of such Restricted Stock; provided , however , that,
 
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in the sole discretion of the Administrator, any extraordinary distributions with respect to the Shares may be subject to the restrictions set forth in Section 7.3. In addition, unless otherwise determined by the Administrator, with respect to a share of Restricted Stock, dividends shall only be paid out to the Holder to the extent that the share of Restricted Stock vests.
7.3     Restrictions . All shares of Restricted Stock (including any shares received by Holders thereof with respect to shares of Restricted Stock as a result of stock dividends, stock splits or any other form of recapitalization) shall be subject to such restrictions and vesting requirements as the Administrator shall provide in the applicable Program or Award Agreement, subject to Section 3.2. By action taken after the Restricted Stock is issued, the Administrator may, on such terms and conditions as it may determine to be appropriate, accelerate the vesting of such Restricted Stock by removing any or all of the restrictions imposed by the terms of the applicable Program or Award Agreement.
7.4     Repurchase or Forfeiture of Restricted Stock . Except as otherwise determined by the Administrator, if no price was paid by the Holder for the Restricted Stock, upon a Termination of Service during the applicable restriction period, the Holder’s rights in unvested Restricted Stock then subject to restrictions shall lapse, and such Restricted Stock shall be surrendered to the Company and cancelled without consideration on the date of such Termination of Service. If a price was paid by the Holder for the Restricted Stock, upon a Termination of Service during the applicable restriction period, the Company shall have the right to repurchase from the Holder the unvested Restricted Stock then subject to restrictions at a cash price per share equal to the price paid by the Holder for such Restricted Stock or such other amount as may be specified in the applicable Program or Award Agreement. Notwithstanding the foregoing, except as otherwise provided by Section 3.2, the Administrator, in its sole discretion, may provide that upon certain events, including, without limitation, a Change in Control, the Holder’s death, retirement or disability or any other specified Termination of Service or any other event, the Holder’s rights in unvested Restricted Stock then subject to restrictions shall not lapse, such Restricted Stock shall vest and cease to be forfeitable and, if applicable, the Company shall cease to have a right of repurchase.
7.5     Section 83(b) Election . If a Holder makes an election under Section 83(b) of the Code to be taxed with respect to the Restricted Stock as of the date of transfer of the Restricted Stock rather than as of the date or dates upon which the Holder would otherwise be taxable under Section 83(a) of the Code, the Holder shall be required to deliver a copy of such election to the Company promptly after filing such election with the Internal Revenue Service along with proof of the timely filing thereof with the Internal Revenue Service.
ARTICLE 8.
AWARD OF RESTRICTED STOCK UNITS
8.1     Grant of Restricted Stock Units . The Administrator is authorized to grant Awards of Restricted Stock Units to any Eligible Individual selected by the Administrator in such amounts and subject to such terms and conditions as determined by the Administrator.
 
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8.2     Term . Except as otherwise provided herein, the term of a Restricted Stock Unit award shall be set by the Administrator in its sole discretion.
8.3     Purchase Price . The Administrator shall specify the purchase price, if any, to be paid by the Holder to the Company with respect to any Restricted Stock Unit award; provided , however , that the value of the consideration shall not be less than the par value of a Share, unless otherwise permitted by Applicable Law.
8.4     Vesting of Restricted Stock Units . At the time of grant, the Administrator shall specify the date or dates on which the Restricted Stock Units shall become fully vested and nonforfeitable, and may specify such conditions to vesting as it deems appropriate, including, without limitation, vesting based upon the Holder’s duration of service to the Company or any Subsidiary, Company performance, individual performance or other specific criteria, in each case on a specified date or dates or over any period or periods, as determined by the Administrator.
8.5     Maturity and Payment . At the time of grant, the Administrator shall specify the maturity date applicable to each grant of Restricted Stock Units, which shall be no earlier than the vesting date or dates of the Award and may be determined at the election of the Holder (if permitted by the applicable Award Agreement); provided that, except as otherwise determined by the Administrator, and subject to compliance with Section 409A, in no event shall the maturity date relating to each Restricted Stock Unit occur following the later of (a) the 15 th day of the third month following the end of the calendar year in which the applicable portion of the Restricted Stock Unit vests; and (b) the 15 th day of the third month following the end of the Company’s fiscal year in which the applicable portion of the Restricted Stock Unit vests. On the maturity date, the Company shall, in accordance with the applicable Award Agreement and subject to Section 10.4(f), transfer to the Holder one unrestricted, fully transferable Share for each Restricted Stock Unit scheduled to be paid out on such date and not previously forfeited, or in the sole discretion of the Administrator, an amount in cash equal to the Fair Market Value of such Shares on the maturity date or a combination of cash and Common Stock as determined by the Administrator, subject to Section 3.2.
8.6     Payment upon Termination of Service . An Award of Restricted Stock Units shall be payable only while the Holder is an Employee, a Consultant or a member of the Board, as applicable; provided , however , that the Administrator, in its sole discretion, may provide (in an Award Agreement or otherwise) that a Restricted Stock Unit award may be paid subsequent to a Termination of Service in certain events, including a Change in Control, the Holder’s death, retirement or disability or any other specified Termination of Service.
ARTICLE 9.
AWARD OF OTHER STOCK OR CASH BASED AWARDS AND DIVIDEND EQUIVALENTS
9.1     Other Stock or Cash Based Awards . The Administrator is authorized to grant Other Stock or Cash Based Awards, including awards entitling a Holder to receive Shares or cash to be delivered immediately or in the future, to any Eligible Individual. Subject to the provisions of the Plan and any applicable Program, the Administrator shall determine the terms
 
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and conditions of each Other Stock or Cash Based Award, including the term of the Award, any exercise or purchase price, performance goals, transfer restrictions, vesting conditions and other terms and conditions applicable thereto, which shall be set forth in the applicable Award Agreement, subject to Section 3.2. Other Stock or Cash Based Awards may be paid in cash, Shares, or a combination of cash and Shares, as determined by the Administrator, and may be available as a form of payment in the settlement of other Awards granted under the Plan, as stand-alone payments, as a part of a bonus, deferred bonus, deferred compensation or other arrangement, and/or as payment in lieu of compensation to which an Eligible Individual is otherwise entitled.
9.2     Dividend Equivalents . Dividend Equivalents may be granted by the Administrator, either alone or in tandem with another Award, based on dividends declared on the Common Stock, to be credited as of dividend payment dates during the period between the date the Dividend Equivalents are granted to a Holder and the date such Dividend Equivalents terminate or expire, as determined by the Administrator. Such Dividend Equivalents shall be converted to cash or additional Shares by such formula and at such time and subject to such restrictions and limitations as may be determined by the Administrator. In addition, Dividend Equivalents with respect to an unvested Award shall be paid out to the Holder only to the extent that the vesting conditions are subsequently satisfied and the Award vests. Notwithstanding the foregoing, no Dividend Equivalents shall be payable with respect to Options or Stock Appreciation Rights.
ARTICLE 10.
ADDITIONAL TERMS OF AWARDS
10.1     Payment . The Administrator shall determine the method or methods by which payments by any Holder with respect to any Awards granted under the Plan shall be made, including, without limitation: (a) cash or check, (b) Shares (including, in the case of payment of the exercise price of an Award, Shares issuable pursuant to the exercise of the Award) held for any minimum period of time as may be established by the Administrator having a Fair Market Value on the date of delivery equal to the aggregate payments required, (c) delivery of a written or electronic notice that the Holder has placed a market sell order with a broker acceptable to the Company with respect to Shares then issuable upon exercise or vesting of an Award, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the aggregate payments required; provided that payment of such proceeds is then made to the Company upon settlement of such sale, (d) other form of legal consideration acceptable to the Administrator in its sole discretion, or (e) any combination of the above permitted forms of payment. Notwithstanding any other provision of the Plan to the contrary, no Holder who is a Director or an “executive officer” of the Company within the meaning of Section 13(k) of the Exchange Act shall be permitted to make payment with respect to any Awards granted under the Plan, or continue any extension of credit with respect to such payment, with a loan from the Company or a loan arranged by the Company in violation of Section 13(k) of the Exchange Act.
10.2     Tax Withholding . The Company or any Subsidiary shall have the authority and the right to deduct or withhold, or require a Holder to remit to the Company, an amount sufficient to satisfy federal, state, local and foreign taxes (including the Holder’s FICA,
 
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employment tax or other social security contribution obligation) required by law to be withheld with respect to any taxable event concerning a Holder arising as a result of the Plan or any Award. The Administrator may, in its sole discretion and in satisfaction of the foregoing requirement, or in satisfaction of such additional withholding obligations as a Holder may have elected, allow a Holder to satisfy such obligations by any payment means described in Section 10.1 hereof, including without limitation, by allowing such Holder to elect to have the Company or any Subsidiary withhold Shares otherwise issuable under an Award (or allow the surrender of Shares). The number of Shares that may be so withheld or surrendered shall be no greater than the number of Shares that have a fair market value on the date of withholding or repurchase equal to the aggregate amount of such liabilities based on the maximum statutory withholding rates in such Holder’s applicable jurisdiction for federal, state, local and foreign income tax and payroll tax purposes that are applicable to such taxable income. The Administrator shall determine the fair market value of the Shares, consistent with applicable provisions of the Code, for tax withholding obligations due in connection with a broker-assisted cashless Option or Stock Appreciation Right exercise involving the sale of Shares to pay the Option or Stock Appreciation Right exercise price or any tax withholding obligation.
10.3     Transferability of Awards .
(a)    Except as otherwise provided in Sections 10.3(b) and 10.3(c):
(i)    No Award under the Plan may be sold, pledged, assigned or transferred in any manner other than (A) by will or the laws of descent and distribution or (B) subject to the consent of the Administrator, pursuant to a DRO, unless and until such Award has been exercised or the Shares underlying such Award have been issued, and all restrictions applicable to such Shares have lapsed;
(ii)    No Award or interest or right therein shall be liable for or otherwise subject to the debts, contracts or engagements of the Holder or the Holder’s successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, hypothecation, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy) unless and until such Award has been exercised, or the Shares underlying such Award have been issued, and all restrictions applicable to such Shares have lapsed, and any attempted disposition of an Award prior to satisfaction of these conditions shall be null and void and of no effect, except to the extent that such disposition is permitted by Section 10.3(a)(i); and
(iii)    During the lifetime of the Holder, only the Holder may exercise any exercisable portion of an Award granted to such Holder under the Plan, unless it has been disposed of pursuant to a DRO. After the death of the Holder, any exercisable portion of an Award may, prior to the time when such portion becomes unexercisable under the Plan or the applicable Program or Award Agreement, be exercised by the Holder’s personal representative or by any person empowered to do so under the deceased Holder’s will or under the then-applicable laws of descent and distribution.
 
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(b)    Notwithstanding Section 10.3(a), the Administrator, in its sole discretion, may determine to permit a Holder or a Permitted Transferee of such Holder to transfer an Award other than an Incentive Stock Option (unless such Incentive Stock Option is intended to become a Nonqualified Stock Option) to any one or more Permitted Transferees of such Holder, subject to the following terms and conditions: (i) an Award transferred to a Permitted Transferee shall not be assignable or transferable by the Permitted Transferee other than (A) to another Permitted Transferee of the applicable Holder or (B) by will or the laws of descent and distribution or, subject to the consent of the Administrator, pursuant to a DRO; (ii) an Award transferred to a Permitted Transferee shall continue to be subject to all the terms and conditions of the Award as applicable to the original Holder (other than the ability to further transfer the Award to any person other than another Permitted Transferee of the applicable Holder); and (iii) the Holder (or transferring Permitted Transferee) and the receiving Permitted Transferee shall execute any and all documents requested by the Administrator, including, without limitation documents to (A) confirm the status of the transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the transfer under Applicable Law and (C) evidence the transfer. In addition, and further notwithstanding Section 10.3(a), hereof, the Administrator, in its sole discretion, may determine to permit a Holder to transfer Incentive Stock Options to a trust that constitutes a Permitted Transferee if, under Section 671 of the Code and other Applicable Law, the Holder is considered the sole beneficial owner of the Incentive Stock Option while it is held in the trust.
(c)    Notwithstanding Section 10.3(a), a Holder may, in the manner determined by the Administrator, designate a beneficiary to exercise the rights of the Holder and to receive any distribution with respect to any Award upon the Holder’s death. A beneficiary, legal guardian, legal representative, or other person claiming any rights pursuant to the Plan is subject to all terms and conditions of the Plan and any Program or Award Agreement applicable to the Holder and any additional restrictions deemed necessary or appropriate by the Administrator. If the Holder is married or a domestic partner in a domestic partnership qualified under Applicable Law and resides in a community property state, a designation of a person other than the Holder’s spouse or domestic partner, as applicable, as the Holder’s beneficiary with respect to more than 50% of the Holder’s interest in the Award shall not be effective without the prior written or electronic consent of the Holder’s spouse or domestic partner. If no beneficiary has been designated or survives the Holder, payment shall be made to the person entitled thereto pursuant to the Holder’s will or the laws of descent and distribution. Subject to the foregoing, a beneficiary designation may be changed or revoked by a Holder at any time; provided that the change or revocation is delivered in writing to the Administrator prior to the Holder’s death.
10.4     Conditions to Issuance of Shares .
(a)    The Administrator shall determine the methods by which Shares shall be delivered or deemed to be delivered to Holders. Notwithstanding anything herein to the contrary, the Company shall not be required to issue or deliver any certificates or make any book entries evidencing Shares pursuant to the exercise of any Award, unless and until the Administrator has determined, with advice of counsel, that the issuance of such Shares is in compliance with Applicable Law and the Shares are covered by an effective registration statement or applicable exemption from registration. In addition to the terms and conditions provided herein, the Administrator may require that a Holder make such reasonable covenants, agreements and representations as the Administrator, in its sole discretion, deems advisable in order to comply with Applicable Law.
 
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(b)    All share certificates delivered pursuant to the Plan and all Shares issued pursuant to book entry procedures are subject to any stop-transfer orders and other restrictions as the Administrator deems necessary or advisable to comply with Applicable Law. The Administrator may place legends on any share certificate or book entry to reference restrictions applicable to the Shares (including, without limitation, restrictions applicable to Restricted Stock).
(c)    The Administrator shall have the right to require any Holder to comply with any timing or other restrictions with respect to the settlement, distribution or exercise of any Award, including a window-period limitation, as may be imposed in the sole discretion of the Administrator.
(d)    No fractional Shares shall be issued and the Administrator, in its sole discretion, shall determine whether cash shall be given in lieu of fractional Shares or whether such fractional Shares shall be eliminated by rounding down.
(e)    The Company, in its sole discretion, may (i) retain physical possession of any stock certificate evidencing Shares until any restrictions thereon shall have lapsed and/or (ii) require that the stock certificates evidencing such Shares be held in custody by a designated escrow agent (which may but need not be the Company) until the restrictions thereon shall have lapsed, and that the Holder deliver a stock power, endorsed in blank, relating to such Shares.
(f)    Notwithstanding any other provision of the Plan, unless otherwise determined by the Administrator or required by Applicable Law, the Company shall not deliver to any Holder certificates evidencing Shares issued in connection with any Award and instead such Shares shall be recorded in the books of the Company (or, as applicable, its transfer agent or stock plan administrator).
10.5     Forfeiture and Claw-Back Provisions . All Awards (including any proceeds, gains or other economic benefit actually or constructively received by a Holder upon any receipt or exercise of any Award or upon the receipt or resale of any Shares underlying the Award and any payments of a portion of an incentive-based bonus pool allocated to a Holder) shall be subject to the provisions of any claw-back policy implemented by the Company, including, without limitation, any claw-back policy adopted to comply with the requirements of Applicable Law, including, without limitation, the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder, whether or not such claw-back policy was in place at the time of grant of an Award, to the extent set forth in such claw-back policy and/or in the applicable Award Agreement.
10.6     Prohibition on Repricing . Subject to Section 12.2, the Administrator shall not, without the approval of the stockholders of the Company, (a) authorize the amendment of any outstanding Option or Stock Appreciation Right to reduce its price per Share, or (b) cancel any Option or Stock Appreciation Right in exchange for cash or another Award when the Option or Stock Appreciation Right price per Share exceeds the Fair Market Value of the underlying
 
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Shares. Furthermore, for purposes of this Section 10.6, except in connection with a corporate transaction involving the Company (including, without limitation, any stock dividend, stock split, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination or exchange of shares), the terms of outstanding Awards may not be amended to reduce the exercise price per Share of outstanding Options or Stock Appreciation Rights or cancel outstanding Options or Stock Appreciation Rights in exchange for cash, other Awards or Options or Stock Appreciation Rights with an exercise price per Share that is less than the exercise price per Share of the original Options or Stock Appreciation Rights without the approval of the stockholders of the Company.
10.7     Amendment of Awards . Subject to Applicable Law, the Administrator may amend, modify or terminate any outstanding Award, including but not limited to, substituting therefor another Award of the same or a different type, changing the date of exercise or settlement, and converting an Incentive Stock Option to a Non-Qualified Stock Option. The Holder’s consent to such action shall be required unless (a) the Administrator determines that the action, taking into account any related action, would not materially and adversely affect the Holder, or (b) the change is otherwise permitted under the Plan (including, without limitation, under Section 12.2 or 12.10).
10.8     Data Privacy . As a condition of receipt of any Award, each Holder explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of personal data as described in this Section 10.8 by and among, as applicable, the Company and its Subsidiaries for the exclusive purpose of implementing, administering and managing the Holder’s participation in the Plan. The Company and its Subsidiaries may hold certain personal information about a Holder, including but not limited to, the Holder’s name, home address and telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title(s), any shares of stock held in the Company or any of its Subsidiaries and details of all Awards, in each case, for the purpose of implementing, managing and administering the Plan and Awards (the “ Data ”). The Company and its Subsidiaries may transfer the Data amongst themselves as necessary for the purpose of implementation, administration and management of a Holder’s participation in the Plan, and the Company and its Subsidiaries may each further transfer the Data to any third parties assisting the Company and its Subsidiaries in the implementation, administration and management of the Plan. These recipients may be located in the Holder’s country, or elsewhere, and the Holder’s country may have different data privacy laws and protections than the recipients’ country. Through acceptance of an Award, each Holder authorizes such recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Holder’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Company or any of its Subsidiaries or the Holder may elect to deposit any Shares. The Data related to a Holder will be held only as long as is necessary to implement, administer, and manage the Holder’s participation in the Plan. A Holder may, at any time, view the Data held by the Company with respect to such Holder, request additional information about the storage and processing of the Data with respect to such Holder, recommend any necessary corrections to the Data with respect to the Holder or refuse or withdraw the consents herein in writing, in any case without cost, by contacting his or her local human resources representative. The Company may cancel the Holder’s ability to participate in the Plan and, in the Administrator’s discretion, the
 
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Holder may forfeit any outstanding Awards if the Holder refuses or withdraws his or her consents as described herein. For more information on the consequences of refusal to consent or withdrawal of consent, Holders may contact their local human resources representative.
ARTICLE 11.
ADMINISTRATION
11.1     Administrator . The Committee shall administer the Plan (except as otherwise permitted herein). To the extent necessary to comply with Rule 16b-3 of the Exchange Act, the Committee shall take all action with respect to Awards, and the individuals taking such action shall consist solely of two or more Non-Employee Directors, each of whom is intended to qualify as both a “non-employee director” as defined by Rule 16b-3 of the Exchange Act. Additionally, to the extent required by Applicable Law, each of the individuals constituting the Committee shall be an “independent director” under the rules of any securities exchange or automated quotation system on which the Shares are listed, quoted or traded. Notwithstanding the foregoing, any action taken by the Committee shall be valid and effective, whether or not members of the Committee at the time of such action are later determined not to have satisfied the requirements for membership set forth in this Section 11.1 or the Organizational Documents. Except as may otherwise be provided in the Organizational Documents or as otherwise required by Applicable Law, (a) appointment of Committee members shall be effective upon acceptance of appointment, (b) Committee members may resign at any time by delivering written or electronic notice to the Board and (c) vacancies in the Committee may only be filled by the Board. Notwithstanding the foregoing, (i) the full Board, acting by a majority of its members in office, shall conduct the general administration of the Plan with respect to Awards granted to Non-Employee Directors and, with respect to such Awards, the term “Administrator” as used in the Plan shall be deemed to refer to the Board and (ii) the Board or Committee may delegate its authority hereunder to the extent permitted by Section 11.6.
11.2     Duties and Powers of Administrator . It shall be the duty of the Administrator to conduct the general administration of the Plan in accordance with its provisions. The Administrator shall have the power to interpret the Plan, all Programs and Award Agreements, and to adopt such rules for the administration, interpretation and application of the Plan and any Program as are not inconsistent with the Plan, to interpret, amend or revoke any such rules and to amend the Plan or any Program or Award Agreement; provided that the rights or obligations of the Holder of the Award that is the subject of any such Program or Award Agreement are not materially and adversely affected by such amendment, unless the consent of the Holder is obtained or such amendment is otherwise permitted under Section 10.5 or Section 12.10. In its sole discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Committee in its capacity as the Administrator under the Plan except with respect to matters which under Rule 16b-3 under the Exchange Act or any successor rule, or any regulations or rules issued thereunder, or the rules of any securities exchange or automated quotation system on which the Shares are listed, quoted or traded are required to be determined in the sole discretion of the Committee.
 
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11.3     Action by the Administrator . Unless otherwise established by the Board, set forth in any Organizational Documents or as required by Applicable Law, a majority of the Administrator shall constitute a quorum and the acts of a majority of the members present at any meeting at which a quorum is present, and acts approved in writing by all members of the Administrator in lieu of a meeting, shall be deemed the acts of the Administrator. Each member of the Administrator is entitled to, in good faith, rely or act upon any report or other information furnished to that member by any officer or other employee of the Company or any Subsidiary, the Company’s independent certified public accountants, or any executive compensation consultant or other professional retained by the Company to assist in the administration of the Plan.
11.4     Authority of Administrator . Subject to the Organizational Documents, any specific designation in the Plan and Applicable Law, the Administrator has the exclusive power, authority and sole discretion to:
(a)    Designate Eligible Individuals to receive Awards;
(b)    Determine the type or types of Awards to be granted to each Eligible Individual (including, without limitation, any Awards granted in tandem with another Award granted pursuant to the Plan);
(c)    Determine the number of Awards to be granted and the number of Shares to which an Award will relate;
(d)    Determine the terms and conditions of any Award granted pursuant to the Plan, including, but not limited to, the exercise price, grant price, purchase price, any performance criteria, any restrictions or limitations on the Award, any schedule for vesting, lapse of forfeiture restrictions or restrictions on the exercisability of an Award, and accelerations or waivers thereof, and any provisions related to non-competition and claw-back and recapture of gain on an Award, based in each case on such considerations as the Administrator in its sole discretion determines;
(e)    Determine whether, to what extent, and under what circumstances an Award may be settled in, or the exercise price of an Award may be paid in cash, Shares, other Awards, or other property, or an Award may be canceled, forfeited, or surrendered;
(f)    Prescribe the form of each Award Agreement, which need not be identical for each Holder;
(g)    Decide all other matters that must be determined in connection with an Award;
(h)    Establish, adopt, or revise any Programs, rules and regulations as it may deem necessary or advisable to administer the Plan;
(i)    Interpret the terms of, and any matter arising pursuant to, the Plan, any Program or any Award Agreement;
 
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(j)    Make all other decisions and determinations that may be required pursuant to the Plan or as the Administrator deems necessary or advisable to administer the Plan; and
(k)    Accelerate wholly or partially the vesting or lapse of restrictions of any Award or portion thereof at any time after the grant of an Award, subject to whatever terms and conditions it selects and Section 3.2 and Section 12.2.
11.5     Decisions Binding . The Administrator’s interpretation of the Plan, any Awards granted pursuant to the Plan, any Program or any Award Agreement and all decisions and determinations by the Administrator with respect to the Plan are final, binding and conclusive on all persons.
11.6     Delegation of Authority . The Board or Committee may from time to time delegate to a committee of one or more members of the Board or one or more officers of the Company the authority to grant or amend Awards or to take other administrative actions pursuant to this Article 11; provided , however , that in no event shall an officer of the Company be delegated the authority to grant Awards to, or amend Awards held by, the following individuals: (a) individuals who are subject to Section 16 of the Exchange Act, , or (b) officers of the Company (or Directors) to whom authority to grant or amend Awards has been delegated hereunder; provided , further , that any delegation of administrative authority shall only be permitted to the extent it is permissible under any Organizational Documents and Applicable Law. Any delegation hereunder shall be subject to the restrictions and limits that the Board or Committee specifies at the time of such delegation or that are otherwise included in the applicable Organizational Documents, and the Board or Committee, as applicable, may at any time rescind the authority so delegated or appoint a new delegatee. At all times, the delegatee appointed under this Section 11.6 shall serve in such capacity at the pleasure of the Board or the Committee, as applicable, and the Board or the Committee may abolish any committee at any time and re-vest in itself any previously delegated authority.
ARTICLE 12.
MISCELLANEOUS PROVISIONS
12.1     Amendment, Suspension or Termination of the Plan .
(a)    Except as otherwise provided in Section 12.1(b), the Plan may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Board; provided that, except as provided in Section 10.5 and Section 12.10, no amendment, suspension or termination of the Plan shall, without the consent of the Holder, materially and adversely affect any rights or obligations under any Award theretofore granted or awarded, unless the Award itself otherwise expressly so provides.
(b)    Notwithstanding Section 12.1(a), the Board may not, except as provided in Section 12.2, take any of the following actions without approval of the Company’s stockholders given within twelve (12) months before or after such action: (i) increase the limit imposed in Section 3.1 on the maximum number of Shares which may be issued under the Plan, (ii) reduce the price per share of any outstanding Option or Stock Appreciation Right granted under the Plan or take any action prohibited under Section 10.6, or (iii) cancel any Option or Stock Appreciation Right in exchange for cash or another Award in violation of Section 10.6.
 
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(c)    No Awards may be granted or awarded during any period of suspension or after termination of the Plan, and notwithstanding anything herein to the contrary, in no event may any Award be granted under the Plan after the tenth (10 th ) anniversary of the earlier of (i) the date on which the Plan was adopted by the Board or (ii) the date the Plan was approved by the Company’s stockholders (such anniversary, the “ Expiration Date ”). Any Awards that are outstanding on the Expiration Date shall remain in force according to the terms of the Plan, the applicable Program and the applicable Award Agreement.
12.2     Changes in Common Stock or Assets of the Company, Acquisition or Liquidation of the Company and Other Corporate Events .
(a)    In the event of any stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other change affecting the shares of the Company’s stock or the share price of the Company’s stock other than an Equity Restructuring, the Administrator may make equitable adjustments, if any, to reflect such change with respect to: (i) the aggregate number and kind of Shares that may be issued under the Plan (including, but not limited to, adjustments of the limitations in Section 3.1 on the maximum number and kind of Shares which may be issued under the Plan); (ii) the number and kind of Shares (or other securities or property) subject to outstanding Awards; (iii) the terms and conditions of any outstanding Awards (including, without limitation, any applicable performance targets or criteria with respect thereto); and (iv) the grant or exercise price per share for any outstanding Awards under the Plan.
(b)    In the event of any transaction or event described in Section 12.2(a) or any unusual or nonrecurring transactions or events affecting the Company, any Subsidiary of the Company, or the financial statements of the Company or any Subsidiary, or of changes in Applicable Law or Applicable Accounting Standards, the Administrator, in its sole discretion, and on such terms and conditions as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such transaction or event, is hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to any Award under the Plan, to facilitate such transactions or events or to give effect to such changes in Applicable Law or Applicable Accounting Standards:
(i)    To provide for the termination of any such Award in exchange for an amount of cash and/or other property with a value equal to the amount that would have been attained upon the exercise of such Award or realization of the Holder’s rights (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction or event described in this Section 12.2 the Administrator determines in good faith that no amount would have been attained upon the exercise of such Award or realization of the Holder’s rights, then such Award may be terminated by the Company without payment);
 
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(ii)    To provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and applicable exercise or purchase price, in all cases, as determined by the Administrator;
(iii)    To make adjustments in the number and type of Shares of the Company’s stock (or other securities or property) subject to such Award, and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding Awards and Awards which may be granted in the future;
(iv)    To provide that such Award shall be exercisable or payable or fully vested with respect to all Shares covered thereby, notwithstanding anything to the contrary in the Plan or the applicable Program or Award Agreement;
(v)    To replace such Award with other rights or property selected by the Administrator; and/or
(vi)    To provide that the Award cannot vest, be exercised or become payable after such event.
(c)    In connection with the occurrence of any Equity Restructuring, and notwithstanding anything to the contrary in Sections 12.2(a) and 12.2(b):
(i)    The number and type of securities subject to each outstanding Award and the exercise price or grant price thereof, if applicable, shall be equitably adjusted (and the adjustments provided under this Section 12.2(c)(i) shall be nondiscretionary and shall be final and binding on the affected Holder and the Company); and/or
(ii)    The Administrator shall make such equitable adjustments, if any, as the Administrator, in its sole discretion, may deem appropriate to reflect such Equity Restructuring with respect to the aggregate number and kind of Shares that may be issued under the Plan (including, but not limited to, adjustments of the limitation in Section 3.1 on the maximum number and kind of Shares which may be issued under the Plan).
(d)    In the event an Award continues in effect or is assumed or an equivalent Award substituted, and a Holder incurs a Termination of Service without “cause” (as such term is defined in the sole discretion of the Administrator, or as set forth in the Award Agreement relating to such Award) upon or within twelve (12) months following a Change in Control, then such Holder shall be fully vested in such continued, assumed or substituted Award.
(e)    In the event that the successor corporation in a Change in Control refuses to assume or substitute for an Award (or any portion thereof), the Administrator may cause (i) any or all of such Award (or portion thereof) to terminate in exchange for cash, rights or other property pursuant to Section 12.2(b)(i) or (ii) any or all of such Award (or portion thereof) to become fully exercisable immediately prior to the consummation of such transaction (which may, subject to Section 5.4, include extension of the exercise period of any or all of such Award) and all forfeiture restrictions on any or all of such Award to lapse. If any such Award is
 
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exercisable in lieu of assumption or substitution in the event of a Change in Control (and the Administrator does not extend the exercise period), the Administrator shall notify the Holder that such Award shall be fully exercisable for a period of fifteen (15) days from the date of such notice, contingent upon the occurrence of the Change in Control, and such Award shall terminate upon the expiration of such period.
(f)    For the purposes of this Section 12.2, an Award shall be considered assumed if, following the Change in Control, the Award confers the right to purchase or receive, for each Share subject to the Award immediately prior to the Change in Control, the consideration (whether stock, cash, or other securities or property) received in the Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided , however , that if such consideration received in the Change in Control was not solely common stock of the successor corporation or its parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Award, for each Share subject to an Award, to be solely common stock of the successor corporation or its parent equal in fair market value to the per-share consideration received by holders of Common Stock in the Change in Control.
(g)    The Administrator, in its sole discretion, may include such further provisions and limitations in any Award, agreement or certificate, as it may deem equitable and in the best interests of the Company that are not inconsistent with the provisions of the Plan.
(h)    Unless otherwise determined by the Administrator, no adjustment or action described in this Section 12.2 or in any other provision of the Plan shall be authorized to the extent it would (i) cause the Plan to violate Section 422(b)(1) of the Code, (ii) result in short-swing profits liability under Section 16 of the Exchange Act or violate the exemptive conditions of Rule 16b-3 of the Exchange Act, or (iii) cause an Award to fail to be exempt from or comply with Section 409A.
(i)    The existence of the Plan, any Program, any Award Agreement and/or the Awards granted hereunder shall not affect or restrict in any way the right or power of the Company or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or prior preference stocks the rights of which are superior to or affect the Common Stock or the rights thereof or that are convertible into or exchangeable for Common Stock, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
(j)    In the event of any pending stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other change affecting the Shares or the share price of the Common Stock including any Equity Restructuring, for reasons of administrative convenience, the Company, in its sole discretion, may refuse to permit the exercise of any Award during a period of up to thirty (30) days prior to the consummation of any such transaction.
 
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12.3     Approval of Plan by Stockholders . The Plan shall be submitted for the approval of the Company’s stockholders within twelve (12) months after the date of the Board’s initial adoption of the Plan.
12.4     No Stockholders Rights . Except as otherwise provided herein or in an applicable Program or Award Agreement, a Holder shall have none of the rights of a stockholder with respect to Shares covered by any Award until the Holder becomes the record owner of such Shares.
12.5     Paperless Administration . In the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation, granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation, granting or exercise of Awards by a Holder may be permitted through the use of such an automated system.
12.6     Effect of Plan upon Other Compensation Plans . The adoption of the Plan shall not affect any other compensation or incentive plans in effect for the Company or any Subsidiary. Nothing in the Plan shall be construed to limit the right of the Company or any Subsidiary: (a) to establish any other forms of incentives or compensation for Employees, Directors or Consultants of the Company or any Subsidiary, or (b) to grant or assume options or other rights or awards otherwise than under the Plan in connection with any proper corporate purpose including without limitation, the grant or assumption of options in connection with the acquisition by purchase, lease, merger, consolidation or otherwise, of the business, stock or assets of any corporation, partnership, limited liability company, firm or association.
12.7     Compliance with Laws . The Plan, the granting and vesting of Awards under the Plan and the issuance and delivery of Shares and the payment of money under the Plan or under Awards granted or awarded hereunder are subject to compliance with all Applicable Law (including but not limited to state, federal and foreign securities law and margin requirements), and to such approvals by any listing, regulatory or governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Any securities delivered under the Plan shall be subject to such restrictions, and the person acquiring such securities shall, if requested by the Company, provide such assurances and representations to the Company as the Company may deem necessary or desirable to assure compliance with all Applicable Law. The Administrator, in its sole discretion, may take whatever actions it deems necessary or appropriate to effect compliance with Applicable Law, including, without limitation, placing legends on share certificates and issuing stop-transfer notices to agents and registrars. Notwithstanding anything to the contrary herein, the Administrator may not take any actions hereunder, and no Awards shall be granted, that would violate Applicable Law. To the extent permitted by Applicable Law, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to Applicable Law.
12.8     Titles and Headings, References to Sections of the Code or Exchange Act . The titles and headings of the Sections in the Plan are for convenience of reference only and, in the
 
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event of any conflict, the text of the Plan, rather than such titles or headings, shall control. References to sections of the Code or the Exchange Act shall include any amendment or successor thereto.
12.9     Governing Law . The Plan and any Programs and Award Agreements hereunder shall be administered, interpreted and enforced under the internal laws of the State of Delaware without regard to conflicts of laws thereof or of any other jurisdiction.
12.10     Section 409A . To the extent that the Administrator determines that any Award granted under the Plan is subject to Section 409A, the Plan, the Program pursuant to which such Award is granted and the Award Agreement evidencing such Award shall incorporate the terms and conditions required by Section 409A. In that regard, to the extent any Award under the Plan or any other compensatory plan or arrangement of the Company or any of its Subsidiaries is subject to Section 409A, and such Award or other amount is payable on account of a Participant’s Termination of Service (or any similarly defined term), then (i) such Award or amount shall only be paid to the extent such Termination of Service qualifies as a “separation from service” as defined in Section 409A, and (ii) if such Award or amount is payable to a “specified employee” as defined in Section 409A then to the extent required in order to avoid a prohibited distribution under Section 409A, such Award or other compensatory payment shall not be payable prior to the earlier of (A) the expiration of the six-month period measured from the date of the Participant’s Termination of Service, or (B) the date of the Participant’s death.    To the extent applicable, the Plan, the Program and any Award Agreements shall be interpreted in accordance with Section 409A. Notwithstanding any provision of the Plan to the contrary, in the event that following the Effective Date the Administrator determines that any Award may be subject to Section 409A, the Administrator may (but is not obligated to), without a Holder’s consent, adopt such amendments to the Plan and the applicable Program and Award Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Administrator determines are necessary or appropriate to (1) exempt the Award from Section 409A and/or preserve the intended tax treatment of the benefits provided with respect to the Award, or (2) comply with the requirements of Section 409A and thereby avoid the application of any penalty taxes under Section 409A. The Company makes no representations or warranties as to the tax treatment of any Award under Section 409A or otherwise. The Company shall have no obligation under this Section 12.10 or otherwise to take any action (whether or not described herein) to avoid the imposition of taxes, penalties or interest under Section 409A with respect to any Award and shall have no liability to any Holder or any other person if any Award, compensation or other benefits under the Plan are determined to constitute non-compliant, “nonqualified deferred compensation” subject to the imposition of taxes, penalties and/or interest under Section 409A.
12.11     Unfunded Status of Awards . The Plan is intended to be an “unfunded” plan for incentive compensation. With respect to any payments not yet made to a Holder pursuant to an Award, nothing contained in the Plan or any Program or Award Agreement shall give the Holder any rights that are greater than those of a general creditor of the Company or any Subsidiary.
12.12     Indemnification . To the extent permitted under Applicable Law and the Organizational Documents, each member of the Administrator shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or
 
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reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or proceeding against him or her; provided he or she gives the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled pursuant to the Organizational Documents, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
12.13     Relationship to other Benefits . No payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary except to the extent otherwise expressly provided in writing in such other plan or an agreement thereunder.
12.14     Expenses . The expenses of administering the Plan shall be borne by the Company and its Subsidiaries.
*    *    *    *    *
 
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I hereby certify that the foregoing Plan was duly adopted by the Board of Directors of Impax Laboratories, Inc. on                     , 201    .
*    *    *    *    *
I hereby certify that the foregoing Plan was approved by the stockholders of Impax Laboratories, Inc. on                         , 201    .
Executed on this        day of                        , 201    .

 
Corporate Secretary	

Exhibit 10.7
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (“ Agreement ”) is entered into as of December 16, 2017, by and among Amneal Pharmaceuticals LLC (“ Amneal ”), Atlas Holdings, Inc. (“ Holdings ”) and Robert A. Stewart (the “ Executive ” and, collectively with Amneal and Holdings, the “ Parties ”).
WITNESSETH:
WHEREAS, Amneal has entered into that certain Business Combination Agreement (the “ Business Combination Agreement ”), dated as of October 17, 2017, with, among others, Impax Laboratories, Inc. (“ Impax ”) and Holdings which contemplates transactions (the “ Combination ”) pursuant to which Impax, following its conversion into a limited liability company, will become a wholly owned subsidiary of Amneal and Holdings, which will become a publicly traded company and renamed Amneal Pharmaceuticals, Inc. in connection with the Combination. For purposes of this Agreement, the term the “ Company ” shall refer to (i) Amneal and its subsidiaries prior to the consummation of the Combination and (ii) Holdings and its subsidiaries on and after the consummation of the Combination, in each case, inclusive of any successors and assigns permitted by this Agreement.
WHEREAS, the Executive possesses unique personal knowledge, experience and expertise;
WHEREAS, effective as of January 25, 2018 (the “ Effective Date ”), the Company desires to employ the Executive, and the Executive desires to be employed by the Company, upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, effective as of immediately following the consummation of the Combination (the “ Closing ”), the unitholders of the Amneal will hold the majority of the voting power of the Company’s common stock;
WHEREAS, prior to the Closing, the Executive shall serve as Company’s President and on and following the Closing the Executive shall serve as the Company’s President and Chief Executive Officer; and
WHEREAS, the Company and the Executive desire to enter into this Agreement as to the terms and conditions of the Executive’s employment with the Company effective as of the Effective Date.
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
 
1.	EMPLOYMENT AND DUTIES	
1.1 Term of Employment . Subject to Section 8.2 below, the Executive’s initial term of employment under this Agreement shall commence on the Effective Date and shall continue until the third anniversary of the Effective Date (the “ Initial Term ”), unless further extended or

earlier terminated as provided in this Agreement. This Agreement will automatically be renewed for single one-year periods unless written notice of non-renewal (a “ Non-Renewal Notice ”) is provided by any party at least 90 days prior to the end of the Initial Term or the successive one-year period then in effect or unless earlier terminated as provided in this Agreement. Neither non-renewal of this Agreement for additional periods after the third anniversary of the Effective Date, nor expiration of this Agreement as a result of such non-renewal, shall, by itself, result in termination of the Executive’s employment. The period of time between the Effective Date and the termination of the Executive’s employment under this Agreement shall be referred to herein as the “ Term. ”
1.2 General .
1.2.1 Subject to the terms set forth herein, as of the Effective Date, the Executive shall serve as the President of the Company and shall perform such duties as are customarily associated with the position of President and such other duties as assigned to Executive by the managing member of the Company. Subject to the terms set forth herein, effective as of the Closing, the Executive shall serve as the President and Chief Executive Officer of the Company, and he shall (i) have general supervision of all of the departments and businesses of the Company and its subsidiaries, (ii) prescribe the duties of all other officers and employees of the Company and its subsidiaries, (iii) have substantial input into the pre-integration planning for the combined companies involved in the Combination, and (iv) have such other authorities, duties and responsibilities as are prescribed by the Company’s bylaws and as may from time to time be delegated to him by the Board (as defined below). During the Term, the Executive shall report solely and directly to the Board. For purposes of this Agreement, the term “ Board ” shall mean the board of managers of the Company in respect of any action taken prior to the Closing the board of directors of the Company in respect of any action taken on and following the Closing.
1.2.2 On, or as promptly as practicable following, the Closing, but no later than 30 days following the Closing, the Executive shall be appointed to the Board. Thereafter, during the Term, at each applicable annual meeting of the Company’s stockholders, the Board, subject to its fiduciary duties, shall nominate and recommend the election of the Executive by the Company’s stockholders as a director. Upon termination of the Executive’s employment for any reason under this Agreement or upon the expiration of the Term, the Executive shall resign immediately upon request of the Board from all officer and director positions held by him with the Company and its subsidiaries.
1.2.3 The Executive shall faithfully and diligently discharge his duties hereunder and use his best efforts to implement the policies established from time to time by the Board. The Executive shall devote substantially all of his business time, attention, knowledge and skills faithfully, diligently and to the best of his ability, in furtherance of the business and activities of the Company; provided , however , that nothing in this Agreement shall preclude the Executive from devoting reasonable periods of time required for:
(i) serving as a director or member of a committee, in each case, in a non-lead, non-chair role, of up to two (2) publicly traded corporations and up to one (1) private organization or corporation, in each case, that does not, in the good faith determination of the Board, compete with the Company or otherwise create, or could create, in the good faith determination of the Board a conflict of interest with the business of the Company;
 
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(ii) delivering lectures, fulfilling speaking engagements, and any writing or publication relating to his area of expertise; provided , however , that any fees, royalties or honorariums received therefrom shall be promptly turned over to the Company;
(iii) engaging in professional organization and program activities;
(iv) managing his personal passive investments and affairs; and
(v) participating in charitable or community affairs;
provided that such activities do not, either individually or in the aggregate, materially interfere with the performance of his duties and responsibilities under this Agreement or create a conflict of interest with the business of the Company as determined in good faith by the Board.
1.2.4 In the event the Business Combination Agreement is terminated without the consummation of the Combination, then the Parties agree to confer in good faith to reach mutual agreement on the Executive’s continued role with the Company and shall amend this Agreement to the extent necessary to reflect such role, provided, however, that the termination of the Business Combination Agreement without the consummation of the Combination shall constitute Good Reason to the extent provided under Section 4.1.3.
1.3 Reimbursement of Expenses . The Company shall promptly reimburse the Executive for all reasonable, documented, out-of-pocket travel and other business expenses incurred by the Executive in the performance of the Executive’s duties to the Company in accordance with the Company’s applicable expense reimbursement policies and procedures as are in effect from time to time. To the extent any such reimbursements (and any other reimbursements of costs and expenses provided for herein) are includable in the Executive’s gross income for Federal income tax purposes, all such reimbursements shall be made no later than March 15 of the calendar year next following the calendar year in which the expenses to be reimbursed are incurred.
 
2.	COMPENSATION	
2.1 Base Salary . During the Term, the Executive shall be entitled to receive a base salary at the annual rate of $1,000,000 (the “ Base Salary ”). The Base Salary shall be subject to increase but not decrease in the sole discretion of the Board, provided however, that any increase in Base Salary shall become the Base Salary under this Agreement and shall not be decreased from such increased amount. The Base Salary shall be paid in accordance with the payroll practices of the Company, but not less than monthly.
2.2 Incentive Bonuses . During the Term, the Executive shall be eligible to receive an annual bonus targeted at 100% of the Executive’s Base Salary (the “ Incentive Bonus ”) under the annual incentive program adopted by the Board, as may be amended from time to time. The amount of Incentive Bonus payable for any year shall be based on the achievement of performance objectives established by the Board, as determined in its discretion, and, based on
 
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achievement, may be between zero and 150% of the Executive’s Base Salary. The Incentive Bonus will be prorated for the Executive’s initial year of employment. The Executive must be employed by the Company through the date of payment of any Incentive Bonus in order to remain eligible for such Incentive Bonus. The target amount of the Incentive Bonus shall be subject to increase but not decrease in the sole discretion of the Board.
2.3 Equity Awards .
2.3.1 Sign-On Restricted Stock Units . In consideration of the Executive’s commencement of employment with the Company, on, or as promptly as practicable following, the Closing, but no later than 30 days immediately following the Closing, the Company shall grant to the Executive an award of restricted stock units (the “ Sign-On RSUs ”) having a grant date fair value equal to $2,500,000. The Sign-On RSUs will vest in respect of 25% of the total number of Sign-On RSUs on each of the first four anniversaries of the Closing, subject to the Executive’s continuous services to the Company through the applicable vesting date. The Sign-On RSUs shall otherwise be subject to the terms of the plan pursuant to which they are granted and an award agreement to be entered into between the Executive and the Company and Section 4.4.2(iii) or 4.4.3(iii) (as applicable) below.
2.3.2 Stock Option Grant . On, or as promptly as practicable following, the Closing, but no later than 30 days immediately following the Closing, the Company shall grant to the Executive an option to purchase (the “ Initial Option ”) that number of shares of the Company common stock necessary for the Initial Option to have a grant date fair value of $5,000,000. The per share exercise price of the Initial Option shall be equal to the per share fair market value of the Company’s common stock on the date of grant. The Initial Option shall vest and become exercisable with respect to 25% of the total number of shares subject to the Initial Option on each of the first four anniversaries of the Closing, subject to the Executive’s continuous service to the Company through the applicable vesting date. The Initial Option shall otherwise be subject to the terms of the plan pursuant to which they are granted and an award agreement to be entered into between the Executive and the Company and Section 4.4.2(iii) or 4.4.3(iii) (as applicable) below.
2.3.3 Additional Restricted Stock Units . On, or as promptly as practicable following, the Closing, but no later than 30 days immediately following the Closing, the Company shall grant to the Executive an additional award of restricted stock units (the “ Additional RSUs ”) having a grant date fair value equal to $2,500,000. The Additional RSUs will vest in respect of 25% of the total number of Additional RSUs on each of the first four anniversaries of the Closing, subject to the Executive’s continuous services to the Company through the applicable vesting date. The Additional RSUs shall otherwise be subject to the terms of the plan pursuant to which they are granted and an award agreement to be entered into between the Executive and the Company and Section 4.4.2(iii) or 4.4.3(iii) (as applicable) below.
2.3.4 Future Equity Awards . Following the Closing, the Executive will be eligible to receive stock options, restricted stock units and other equity incentive grants as determined by the Board in its sole discretion.
 
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2.5 Additional Compensation . During the Term, in addition to the foregoing, the Executive shall be eligible to receive such other compensation as may from time to time be awarded him by the Board or the Compensation Committee of the Board.
 
3.	EMPLOYEE BENEFITS	
(a) During the Term, the Executive shall be entitled to participate in and have the benefit of all group life, disability, hospital, surgical and major medical insurance plans and programs and other employee benefit plans and programs as generally are made available to executive personnel of the Company, as such benefit plans or programs may be amended or terminated in the sole discretion of the Board or the Compensation Committee of the Board, from time to time.
(b) The Executive shall be entitled to at least 20 paid vacation days per calendar year in accordance with the Company’s vacation policy in effect from time to time, provided that any unused vacation days in any calendar year shall be carried over to the next calendar year subject to any accrual caps under the Company’s vacation policy.
 
4.	TERMINATION OF EMPLOYMENT	
4.1 General . The Executive’s employment under this Agreement may be terminated without any breach of this Agreement only on the following circumstances:
4.1.1 Death . The Executive’s employment under this Agreement shall terminate upon his death.
4.1.2 Disability . If the Executive suffers a Disability (as defined below), the Board may terminate the Executive’s employment under this Agreement upon 30 days prior written notice; provided that the Executive has not returned to full time performance of his duties during such 30-day period. For purposes of this Agreement, “ Disability ” shall mean the Executive’s inability to perform his duties and responsibilities hereunder, with or without reasonable accommodation, due to any physical or mental illness or incapacity, which condition either (i) has continued for a period of 180 consecutive days (including weekends and holidays) in any 365-day period, or (ii) is projected by the Board in good faith after consulting with a licensed physician mutually selected by the Board and the Executive (or, in the event of the Executive’s incapacity, his legal representative), that the condition is likely to continue for a period of at least six consecutive months from its commencement.
4.1.3 Good Reason . The Executive may terminate his employment under this Agreement for Good Reason (as defined below). For purposes of this Agreement, “ Good Reason ” shall mean the occurrence of any of the following events without the Executive’s consent:
(i) any action or inaction by the Company constituting a material breach of the Agreement by the Company;
(ii) a material diminution of the titles, authorities, duties, or responsibilities of the Executive set forth in Section 1.2 above (other than temporarily while the Executive is physically or mentally incapacitated and unable to properly perform such duties, as
 
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determined by the Board in good faith), or the assignment to the Executive of titles, authorities, duties, or responsibilities that are inconsistent with his position of President of the Company prior to the Closing and President and Chief Executive Officer of the Company on or following the Closing;
(iii) the loss of any of the titles of the Executive with the Company set forth in Section 1.2 above;
(iv) a material reduction by the Company in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus;
(v) an actual relocation of the Executive’s principal office more than 35 miles from Bridgewater, New Jersey;
(vi) the delivery by the Board to the Executive of a Non-Renewal Notice in accordance with Section 1.1;
(vii) the termination of the Business Combination Agreement without the consummation of the Combination or the failure of the Combination to close by December 31, 2018 (a “ No-Closing Event ”), provided, however, that Good Reason shall not exist if the Company grants to the Executive one or more Company equity awards (“ Substitute Equity Awards ”) providing for an aggregate economic opportunity of not less than $10,000,000, based on reasonable assumptions regarding Company performance, such grant to be made within 15 days following such No-Closing Event; or
(viii) a material change in the reporting structure set forth in Section 1.2.1 hereof.
Notwithstanding the foregoing, the Executive may not terminate his employment for Good Reason under this Section 4.1.3 unless (i) the Executive provides written notice to the Board of the occurrence of an event constituting Good Reason within 30 days of its initial occurrence and (ii) if curable, the Board shall fail to cure such event constituting Good Reason within 30 days following its receipt of such written notice. The Date of Termination shall be the date the Board receives the Executive’s Notice of Termination if the event constituting Good Reason is uncurable and 30 days after the date the Board receives the Executive’s Notice of Termination if the event constituting Good Reason is curable and remains uncured 30 days after the Board receives the Executive’s notice of Termination.
4.1.4 Without Good Reason . The Executive may voluntarily terminate his employment under this Agreement without Good Reason upon written notice by the Executive to the Board at least 60 days prior to the effective date of such termination (which termination the Board may, in its sole discretion, make effective earlier than the date set forth in the Notice of Termination (as defined below)).
4.1.5 Cause . The Board may terminate the Executive’s employment under this Agreement at any time for Cause (as defined below). For purposes of this Agreement, termination for “ Cause ” shall mean any of the following as determined in good faith by the Board:
 
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(i) the willful and continued failure by the Executive to substantially perform his obligations under this Agreement (other than any such failure resulting from the Executive’s incapacity due to a Disability); provided , however , that the Board shall have provided the Executive with a Notice of Termination specifying such failure and the Executive shall have been afforded at least 15 business days within which to cure same;
(ii) the Executive’s conviction of or plea of guilty or nolo contendere to a felony or a misdemeanor involving moral turpitude or dishonesty;
(iii) the Executive’s willful misconduct in the performance of his duties hereunder (including theft, fraud, embezzlement, and securities law violations) that results in material economic or reputational harm to the Company;
(iv) the Executive’s violation of the Company’s Code of Conduct or other written policies that results in material economic or reputational harm to the Company; provided , however , that the Board shall have provided the Executive with a Notice of Termination specifying such failure and the Executive shall have been afforded at least 15 business days within which to cure same; or
For purposes of this Section 4.1.5, no act or failure to act on the part of the Executive shall be considered “ willful ,” unless done, or omitted to be done, in good faith or without reasonable belief that his action or omission was in, or not opposed to, the best interest of the Company (including their reputation).
Prior to any termination for Cause, the Board shall provide the Executive with a Notice of Termination specifying the event constituting Cause and shall give the Executive the opportunity to appear before the Board, with or without counsel, to present his views on the Cause event. If, after such hearing, at least two-thirds of the full Board (excluding the Executive) does not support such termination, the Notice of Termination shall be rescinded. After providing the notice in the foregoing sentence, the Board may suspend the Executive with full pay and benefits until a final determination pursuant to this Section has been made.
4.1.6 Without Cause . The Board may terminate the Executive’s employment under this Agreement without Cause immediately upon written notice by the Board to the Executive, other than for death or Disability.
4.1.7 Definition of Change in Control . For purposes of this Agreement, a “ Change in Control ” shall be deemed to occur upon any of the following events that occurs after the Closing, provided that such an event constitutes a “change in control event” within the meaning of Section 409A of the Code (as defined below): (a) any “ person ” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the equity securities of the Company), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of equity securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding equity
 
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securities; (b) during any period of 12 consecutive months, the individuals who, at the beginning of such period, constitute the Board, and any new director whose election by the Board or nomination for election by the Company’s equityholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the 12-month period (or the Closing if later than such date) or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the Board; (c) a merger or consolidation of the Company with any other corporation or other entity, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (and held by persons that are not affiliates of the acquirer) continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided , however , that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person (other than those covered by the exceptions in clause (a) of this Section 4.1.7) acquires more than 50% of the combined voting power of the Company’s then outstanding securities shall not constitute a Change in Control; or (d) the consummation of a sale or other disposition by the Company of all or substantially all of the Company’s assets, including a liquidation, other than the sale or other disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, more than 50% of the combined voting power of the outstanding voting securities of the Company immediately prior to the time of the sale or other disposition. For the avoidance of doubt, the Combination shall not constitute a Change in Control under this Agreement.
4.2 Notice of Termination . Any termination of the Executive’s employment by the Board or by the Executive (other than termination by reason of the Executive’s death) shall be communicated by written Notice of Termination to the other party of this Agreement. For purposes of this Agreement, a “ Notice of Termination ” shall mean a written notice which shall indicate the specific termination provision in this Agreement relied upon and, other than with respect to a termination pursuant to Section 4.1.6 hereof, shall set forth in reasonable detail the facts and circumstances claimed to provide the basis for such termination.
4.3 Date of Termination . The “ Date of Termination ” shall mean (a) if the termination is the result of the Executive’s death, the date of his death, (b) if the termination is pursuant to Section 4.1.2 hereof, 30 days after the Notice of Termination is given (provided that the Executive shall not have returned to the performance of his duties on a full-time basis during such 30-day period), (c) if the termination is pursuant to Section 4.1.3 or Section 4.1.5 hereof, the date specified in the Notice of Termination after the expiration of any applicable cure period, (d) if the termination is pursuant to Section 4.1.4 hereof, the date specified in the Notice of Termination which shall be at least 60 days after the Notice of Termination is given, or such earlier date as the Board shall determine in its sole discretion, and (e) if the termination is pursuant to Section 4.1.6 hereof, the date on which the Notice of Termination is given.
4.4 Compensation Upon Termination .
4.4.1 Termination for Cause or without Good Reason . If the Executive’s employment shall be terminated by the Board for Cause or by the Executive without Good
 
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Reason, the Executive shall receive from the Company: (a) any earned but unpaid Base Salary through the Date of Termination, paid in accordance with the Company’s standard payroll practices; (b) reimbursement for any unreimbursed expenses properly incurred and paid in accordance with Section 1.3 hereof through the Date of Termination; (c) payment for any accrued but unused vacation time in accordance with the Company’s policy; (d) all equity awards previously granted to the Executive that have vested in accordance with the terms of such grants; and (e) such vested accrued benefits, and other payments, if any, as to which the Executive (and his eligible dependents) may be entitled under, and in accordance with the terms and conditions of, the employee benefit arrangements, plans and programs of the Company as of the Date of Termination, other than any severance pay plan (such amounts and benefits set forth in clauses (a) though (e) being referred to hereinafter as the “ Amounts and Benefits ”), and the Company shall have no further obligation with respect to this Agreement other than as provided in Sections 5, 6.5 and 7 hereof. Any equity awards previously granted to the Executive that have not vested in accordance with the terms of their grants as of the Date of Termination shall be forfeited as of the Date of Termination.
4.4.2 Termination Apart from a Change in Control . If, at any time prior to the expiration of the Term and other than during a Change in Control Period (as defined below), the Executive resigns from his employment hereunder for Good Reason, or the Board terminates the Executive’s employment hereunder without Cause, then the Company shall pay or provide the Executive the Amounts and Benefits and, subject to Section 4.4.5, a severance payment and equity vesting as follows:
(i) an amount equal to two times the Base Salary as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), with the aggregate amount due paid in equal installments on the Company’s normal payroll dates for a period of 24 months from the Date of Termination in accordance with the normal payroll practices of the Company, with each such payment deemed to be a separate payment for the purposes of Section 409A of the Code;
(ii) a pro-rated portion of the Incentive Bonus for the year during which the Date of Termination occurs based on the number of days the Executive serves the Company during such year and actual performance of the corporate goals for such Incentive Bonus, inclusive of any adjustments made by the Board that are applied to all other executive participants in the annual incentive program, such pro-rated Incentive Bonus to be paid in a lump sum at the same time related bonuses are paid to executives who continue to be employed by the Company and, in any event, in the calendar year following the year during which the Date of Termination occurs;
(iii) the vesting, and if applicable, exercisability of each outstanding equity award granted to the Executive by the Company shall accelerate in respect of that number of shares of Company common stock (or other equity securities) that would have vested had the Executive’s employment with the Company continued through the first anniversary of the Date of Termination, provided, however, that if the Date of Termination occurs prior to the Sign-On RSUs, Initial Option and Initial RSUs being granted by the Company and if the Substitute Equity Awards have not been granted as of the Date of Termination, then in lieu of such vesting acceleration, the Company shall pay to the Executive $2,500,000, less withholding taxes, in a lump sum on the first payroll date on or following the 60th day after the Date of Termination;
 
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(iv) During the period commencing on the Date of Termination and ending as of the second anniversary of the Date of Termination, or, if earlier, the date on which the Executive becomes eligible for comparable replacement coverage under a subsequent employer’s group health plan (in any case, the “ COBRA Period ”), subject to the Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to the Executive and the Executive’s dependents, at the Company’s sole expense, or (B) reimburse the Executive and the Executive’s dependents for coverage under its group health plan (if any) at the same levels in effect on the Date of Termination; provided, however , that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health plans, or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining subsidy shall thereafter be paid to the Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof); and
(v) Outplacement services provided to the Executive by a reputable national outplacement service provider for up to two years following the Date of Termination.
4.4.3 Termination Following Change in Control . Anything contained herein to the contrary notwithstanding, in the event the Executive resigns from his employment hereunder for Good Reason, the Board terminates the Executive’s employment hereunder without Cause or Executive’s employment terminates by reason of death or Disability, in each case, within the period commencing three months prior to a Change in Control and ending 24 months following the Change in Control (a “ Change in Control Period ”), then, in lieu of any amount otherwise payable pursuant to Section 4.4.2, the Company shall pay or provide the Executive the Amounts and Benefits and, subject to Section 4.4.5, a severance payment as follows:
(i) an amount equal to the sum of (x) two times the Base Salary as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), plus (y) an amount equal to two times the Executive’s target Incentive Bonus as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), with the aggregate amount due paid in a lump sum on the first payroll date on or following the 60th day after the Date of Termination;
(ii) a pro-rated portion of the Incentive Bonus for the year during which the Date of Termination occurs based on the number of days the Executive serves the Company during such year and actual performance of the corporate goals for such Incentive Bonus, inclusive of any adjustments made by the Board that are applied to all other executive participants in the annual incentive program, such pro-rated Incentive Bonus to be paid in a lump sum at the same time related bonuses are paid to executives who continue to be employed by the Company and, in any event, in the calendar year following the year during which the Date of Termination occurs;
 
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(iii) During the COBRA Period, subject to the Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to the Executive and the Executive’s dependents, at the Company’s sole expense, or (B) reimburse the Executive and the Executive’s dependents for coverage under its group health plan (if any) at the same levels in effect on the Date of Termination; provided, however , that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health plans, or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining subsidy shall thereafter be paid to the Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof);
(iv) The vesting and, if applicable, exercisability of each equity award granted to the Executive by the Company shall accelerate in respect of 100% of the shares of the Company common stock subject thereto effective as of the Date of Termination, provided, however, that if the Date of Termination occurs prior to the Sign-On RSUs, Initial Option and Initial RSUs being granted by the Company and if the Substitute Equity Awards have not been granted as of the Date of Termination, then in lieu of such vesting acceleration, the Company shall pay to the Executive $10,000,000, less withholding taxes, in a lump sum on the first payroll date on or following the 60th day after the Date of Termination; and
(v) Outplacement services provided to the Executive by a reputable national outplacement service provider for up to two years following the Date of Termination.
4.4.4 No Mitigation or Offset; Nature of Payments . The Executive shall not be required to mitigate the amount of any payment provided for in this Section 4.4 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 4.4 be reduced by any compensation earned by the Executive as the result of employment by another employer or business or by profits earned by the Executive from any other source at any time before and after the Date of Termination. Any amounts due under this Section 4.4 are in the nature of severance payments considered to be reasonable by the Company and are not in the nature of a penalty.
4.4.5 Release . Notwithstanding any provision to the contrary in this Agreement, the Company’s obligation to pay or provide the Executive with the payments and benefits under Sections 4.4.2 and 4.4.3 (other than the Amounts and Benefits), and any accelerated vesting with respect to the equity awards under Section 4.4.3, shall be conditioned on the Executive’s execution and failure to revoke a waiver and general release in a form generally consistent with Exhibit B hereto (subject to such changes as may be necessary at the time of execution in order to make such release enforceable) (the “ Release ”). The Company shall provide the Release to the Executive within seven days following the applicable Date of Termination. In order to
 
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receive the payments and benefits under Sections 4.4.2 and 4.4.3 (other than the Amounts and Benefits) and the accelerated vesting with respect to the equity awards under Section 4.4.3, the Executive will be required to execute and deliver the Release within 50 days after the date it is provided to him and not to revoke it within seven days following such execution and delivery.
 
5.	INSURABILITY; RIGHT TO INSURE	
The Company shall have the right to maintain key man life insurance in its own name covering the Executive’s life in an amount of up to $50,000,000.00. The Executive shall fully cooperate in the procuring of such insurance, including submitting to any required medical examination and by completing, executing and delivering such applications and other instrument in writing as may be reasonably required by any insurance company to which application for insurance may be made by the Company. The Company’s ability to procure any key man life insurance covering Executive’s life shall not be a condition of employment.
 
6.	CONFIDENTIALITY; NON-COMPETITION; NON-SOLICITATION; NON- DISPARAGEMENT; COOPERATION	
6.1 Confidential Information . The Parties acknowledge that the services to be performed by the Executive under this Agreement are unique and extraordinary and, as a result of such employment, the Executive shall be in possession of Confidential Information (as defined below) relating to the business practices of the Company and the members thereof. The term “ Confidential Information ” shall mean any and all information (oral and written) relating to the Company, or any of their respective activities, or of the clients, customers or business practices of the Company, except (i) as such disclosure or use may be required or appropriate in connection with his work as an employee of the Company, (ii) when required to do so by a court of law, by any governmental agency having supervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order him to divulge, disclose or make accessible such information, (iii) as to such confidential information that becomes generally known to the public or trade without his violation of this Section 6.1, or (iv) to the Executive’s spouse, attorney and/or his personal tax and financial advisors as reasonably necessary or appropriate to advance the Executive’s tax, financial and other personal planning (each an “Exempt Person”), provided, however , that any disclosure or use of any trade secret or proprietary or confidential information of the Company by an Exempt Person shall be deemed to be a breach of this Section 6.1 by the Executive.
6.2 Confidential Information includes, but it not limited to, information that the Executive creates, develops, derives, obtains, makes known, or learns about which has commercial value in the business in which the Company is involved and which is treated by the Company as confidential, such as trade secrets, ideas, processes, formulas, compounds, compositions, research and clinical data, know-how, discoveries, developments, designs, innovations, plans, strategies, pricing, costs, financial information, employee information, forecasts and current and prospective customer and supplier lists. The Executive shall not, during the Term or at any time thereafter, except as may be required in the course of the performance of his duties hereunder (including pursuant to Section 6.6 below) and except with respect to any litigation or arbitration involving this Agreement, including the enforcement hereof, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or
 
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corporation any Confidential Information acquired by the Executive during, or as a result of, his employment with the Company, without the prior written consent of the Board. Without limiting the foregoing, the Executive understands that the Executive shall be prohibited from misappropriating any trade secret of the Company or of the clients or customers of the Company acquired by the Executive during, or as a result of, his employment with the Company, at any time during or after the Term. Further without limiting the foregoing, as a condition of Executive’s employment with the Company, the Executive shall enter into the Company’s standard Employee Confidentiality, Non-Solicitation and Ownership of Inventions Agreement (the “ Proprietary Information Agreement ”). In the event of a conflict between this Agreement and the Proprietary Information Agreement, this Agreement shall control.
6.3 Return of Property . Upon the termination of the Executive’s employment for any reason all property of the Company that is in the possession of the Executive, including all documents, records, drug formulations, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials that contain Confidential Information that are in the possession of the Executive, including all copies thereof, shall be promptly returned to the Company. Anything to the contrary herein notwithstanding, the Executive shall be entitled to retain (i) papers and other materials of a personal nature, including photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes and (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the Company.
6.4 Non-Competition . The Executive acknowledges that the Executive has been provided with Confidential Information and, during the Term, the Company from time to time will provide Executive with access to Confidential Information. Ancillary to the rights provided to the Executive as set forth in this Agreement, the Executive’s continued employment with the Company during the Term (subject to earlier termination as provided herein), and the Company’s provision of Confidential Information, and the Executive’s agreements regarding the use of same, in order to protect the value of any Confidential Information, and in consideration for good and valuable consideration received by the Executive, the Parties agree to the following provisions against unfair competition, which the Executive acknowledges represent a fair balance of the Company’s rights to protect its business and the Executive’s right to pursue employment. The Executive hereby agrees that he shall not, during the Term and for a period of 9 months thereafter, directly or indirectly, engage or have an interest in, or render any services to, any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) (such activities hereinafter referred to collectively as “ Engaging ”) that competes directly with the Company. Notwithstanding the foregoing, nothing herein shall prevent the Executive from (i) owning securities in a publicly traded entity whose activities compete with those of the Company, provided that such securities holdings are not greater than five percent of the equity ownership in such entity; (ii) Engaging in the business of the ownership and licensing (as licensor) of trademarks and brands if the products or services carrying such trademarks and brands do not compete with the products or services carrying the trademarks and brands owned and licensed (as licensor) by the Company, or that the Company is actively planning to own or license (as licensor), during the Term; or (iii) Engaging in an operating company (including ownership of securities of such operating company’s holding company) with annual revenues not in excess of $10,000,000.
 
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6.5 Prohibition on Use of Confidential Information to Solicit Customers and Prospects . During the Executive’s employment, the Executive shall not engage in any other employment or activity that might materially interfere with the interests of the Company. Furthermore, the Executive shall not, except in the furtherance of the Executive’s duties hereunder, directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity, (i) during the Term (except in the good faith performance of his duties) and for a period of 24 months thereafter, solicit, aid or induce any employee, representative or agent of the Company to leave such employment or retention or to accept employment with or render services to or with any other person, firm, corporation or other entity unaffiliated with the Company or hire or retain any such employee, representative or agent, or take any action to materially assist or aid any other person, firm, corporation or other entity in identifying, hiring or soliciting any such employee, representative or agent, other (x) than any such employee, representative or agent whose employment has been terminated by the Company and (y) his personal assistant(s), (ii) during the Term (except in the good faith performance of his duties) and for a period of 12 months thereafter, solicit, aid or induce (or attempt to do any of the foregoing) directly or indirectly, any current or prospective customer of the Company with whom the Executive substantially dealt with at any time during the last two years of the Executive’s employment to purchase goods or services then sold by the Company from another person, firm, corporation or other entity or assist or aid any other persons or entity in identifying or soliciting any such customer or (iii) during the Term (except in the good faith performance of his duties) and for a period of 24 months thereafter, interfere in any manner with the relationship of the Company and any of its vendors. An employee, representative or agent shall be deemed covered by this Section 6.5 while so employed or retained by the Company and for six months thereafter. Anything to the contrary herein notwithstanding, the following shall not be deemed a violation of this Section 6.4: (a) the Executive’s solicitation of the Company’s customers and/or vendors in connection with, and directly related to, his Engaging in a business that complies with Sections 6.3(ii) or (iii); (b) the Executive’s responding to an unsolicited request for an employment reference regarding any former employee of the Company from such former employee, or from a third party, by providing a reference setting forth his personal views about such former employee; or (c) if an entity with which the Executive is associated hires or engages any employee of the Company, if the Executive was not, directly or indirectly, involved in hiring or identifying such person as a potential recruit or assisting in the recruitment of such employee. For purposes hereof, the Executive shall be deemed to have been involved “ indirectly ” in soliciting, hiring or identifying an employee only if the Executive (x) directs a third party to solicit or hire the Employee, (y) identifies an employee to a third party as a potential recruit or (z) aids, assists or participates with a third party in soliciting or hiring an employee.
6.6 Non-Disparagement . At no time during or within five years after the Term shall (x) the Executive, directly or indirectly, disparage the Company or any of the Company’s past or present employees, directors, products or services and (y) the Company, including its subsidiaries, parents and affiliates, directly or indirectly, disparage the Executive. In addition, the Company shall instruct and shall use reasonable efforts so that each director and officer of the Company and its subsidiaries and parents not to, directly or indirectly, disparage the Executive. Notwithstanding the foregoing, nothing in this Section 6.5 shall prevent any entity or
 
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person from making any truthful statement to the extent (i) necessary to rebut any untrue public statements made about him or her or it; (ii) necessary with respect to any litigation, arbitration or mediation involving this Agreement and the enforcement thereof; (iii) required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with jurisdiction over such person; or (iv) made as good faith competitive statements in the ordinary course of business.
6.7 Cooperation . Upon the receipt of reasonable notice from the Company (including outside counsel), the Executive shall, while employed by the Company and thereafter, respond and provide information with regard to matters of which the Executive has knowledge as a result of the Executive’s employment with the Company and will provide reasonable assistance to the Company and its representatives in defense of any claims that may be made against the Company, and will provide reasonable assistance to the Company in the prosecution of any claims that may be made by the Company, to the extent that such claims may relate to matters related to the Executive’s period of employment with the Company. Any request for such cooperation shall take into account the Executive’s personal and business commitments and is subject to his personal and business schedule. The Executive shall promptly inform the Board (to the extent the Executive is legally permitted to do so) if the Executive is asked to assist in any investigation of the Company or their actions, regardless of whether a lawsuit or other proceeding has then been filed with respect to such investigation. If the Executive is required to provide any services pursuant to this Section 6.6 following the Term, upon presentation of appropriate documentation, the Company shall promptly reimburse the Executive for reasonable out-of-pocket travel, lodging, communication and duplication expenses incurred in connection with the performance of such services and in accordance with the Company’s expense policy for its senior officers (provided that it shall be in Executive’s discretion to travel via first or business class, which costs shall be reimbursable by the Company), for reasonable legal fees to the extent the Executive in good faith believes that separate legal representation is reasonably required, and for the Executive’s time at a rate equivalent to the Executive’s most recent base salary. In addition, if the Executive’s cooperation exceed 2 days in any calendar month, then the Executive shall be compensated at a per diem rate of $5,000 for any full or partial day of such cooperation. The Executive’s entitlement to reimbursement of such costs and expenses, including legal fees, pursuant to this Section 6.6, shall in no way affect the Executive’s rights, if any, to be indemnified and/or advanced expenses in accordance with the Company’s (or any of its subsidiaries’) corporate or other organizational documents, any applicable insurance policy, and/or in accordance with this Agreement.
6.8 Remedies and Reformation . Without intending to limit the remedies available to the Company, the Executive acknowledges that a breach of any of the covenants contained in this Section 6 may result in material and irreparable injury to the Company for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat the Company shall be entitled to seek a temporary restraining order and/or a preliminary or permanent injunction in a court of jurisdiction restraining the Executive from engaging in activities prohibited by this Section 6 or such other relief as may be required specifically to enforce any of the covenants in this Section 6. If for any reason it is held that the restrictions under this Section 6 are not reasonable or that consideration therefor is inadequate, such restrictions shall be interpreted or modified to include as much of the duration and scope identified in this Section as will render such restrictions valid and enforceable.
 
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6.9 Violations . In the event of any violation of the provisions of this Section 6, the Executive acknowledges and agrees that: (a) the post-termination restrictions contained in this Section 6 shall be extended by a period of time equal to the period of such violation, it being the intention of the Parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation; (b) any severance payable which remains unpaid or other benefits yet to be received under Section 4.4.2 or 4.4.3 shall be forfeited by the Executive; and (c) any vested options not exercised as of the date of any violation of the provisions of this Section 6 shall be forfeited.
 
7.	INDEMNIFICATION; DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE	
During the Term and thereafter, the Company shall indemnify and hold harmless the Executive and his heirs and representatives as, and to the extent, provided in the Company’s organizational documents. In addition, the Executive shall be entitled to enter into a form of indemnification agreement on terms and conditions no less favorable than the indemnification agreement entered into between the Company and members of the Board. The Company agrees to continue and maintain a directors and officers’ liability insurance policy covering the Executive to the extent the Company provides such coverage for its other executive officers.
 
8.	MISCELLANEOUS	
8.1 Notices . All notices or communications hereunder shall be in writing, addressed as follows (or to such other address as either party may have furnished to the other in writing by like notice):
 
 	To the Company:		
 
 	 	Amneal Pharmaceuticals LLC	
 	 	400 Crossing Boulevard, Third Floor	
 	 	Bridgewater, New Jersey 08807	
 	 	Facsimile No.: (908) 947-3144	
 	 	Attn: Sheldon Hirt, Senior Vice President, General Counsel	
 	 	Email: shirt@amneal.com	
To the Executive, at the last address for the Executive on the books of the Company.
All such notices shall be conclusively deemed to be received and shall be effective (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy or facsimile transmission, upon confirmation of receipt by the sender of such transmission, (iii) if sent by overnight courier, one business day after being sent by overnight courier, or (iv) if sent by registered or certified mail, postage prepaid, return receipt requested, on the fifth day after the day on which such notice is mailed.
 
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8.2 T esting; Verification . As a condition of the Executive’s employment with the Company, the Executive will be required to successfully complete the Company’s standard onboarding procedures, including any background check and drug testing, the cost of which shall be paid by the Company. In addition, to comply with Department of Homeland Security, the Executive will be required to provide verification of the Executive’s identity and legal right to work in the United States and must complete a Form I-9 within the first three (3) days of the Effective Date. The Company shall notify the Executive of the identity of a clinic for drug testing that is local to the Executive, and the Executive hereby agrees to schedule an appointment with such clinic within forty-eight (48) hours of the date of this Agreement. In the event the Executive fails any such tests or such verification, then this Agreement shall be void ab initio and of no further force or effect.
8.3 Severability . Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
8.4 Binding Effect; Benefits . The Executive may not delegate his duties or assign his rights hereunder. Except as explicitly provided in the Agreement, no rights or obligations of the Company under this Agreement may be assigned or transferred by the Company other than pursuant to a merger or consolidation in which the Company is not the continuing entity, or a sale, liquidation or other disposition of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets or businesses of the Company and assumes the liabilities, obligations and duties of the Company under this Agreement, either contractually or by operation of law. The Company further agree that, in the event of any disposition of their business and assets described in the preceding sentence, they shall use their best efforts to cause such assignee or transferee expressly to assume the liabilities, obligations and duties of the Company hereunder.
8.5 Entire Agreement . This Agreement, collectively with the Exhibits hereto and the Proprietary Information Agreement, represent the entire agreement of the Parties with respect to the subject matter hereof and shall supersede any and all previous contracts, arrangements, proposed terms or understandings between the Parties. This Agreement (including any of the Exhibits hereto) may be amended, modified or replaced at any time by mutual written agreement of the Parties. In the case of any conflict between any term or provision of this Agreement and any term or provision contained in any agreement, policy, plan, program, arrangement, employment manual, memorandum or other written document between or relating to the Company and the Executive or any rule of general applicability of the Company, this Agreement shall control and prevail.
8.6 Withholding . The payment of any amount pursuant to this Agreement shall be subject to applicable withholding and payroll taxes, and such other deductions as may be required by applicable law.
 
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8.7 Governing Law . This Agreement and the performance of the Parties hereunder shall be governed by the internal laws (and not the law of conflicts) of the State of New Jersey, unless superseded by federal law.
8.8 Arbitration . Any dispute or controversy, including, but not limited to, discrimination claims and claims involving a class, arising under or in connection with this Agreement or the Executive’s employment with the Company, other than injunctive relief under Section 6.7 hereof, shall be settled exclusively by arbitration, conducted before a single arbitrator in New Jersey (applying New Jersey law) in accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration Association then in effect. The decision of the arbitrator will be final and binding upon the Parties hereto. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The Parties acknowledge and agree that in connection with any such arbitration and regardless of outcome (a) each party shall pay all its own costs and expenses, including without limitation its own legal fees and expenses, and (b) joint expenses shall be borne equally among the Parties. EACH PARTY WAIVES RIGHT TO TRIAL BY JURY.
8.9 Section 409A of the Code .
8.9.1 General . It is intended that the provisions of this Agreement comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and the regulations and guidance promulgated thereunder (collectively “ Code Section  409A ”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A, the Company shall, upon the specific request of the Executive, use its reasonable business efforts to in good faith reform such provision to comply with Code Section 409A; provided, that to the maximum extent practicable, the original intent and economic benefit to the Parties of the applicable provision shall be maintained. The Company shall timely use its reasonable business efforts to amend any plan or program in which the Executive participates to bring it in compliance with Code Section 409A.
8.9.2 Separation from Service; Six-Month Delay . A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “ Separation from Service ” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “ resignation ,” “ termination ,” “ termination of employment ” or like terms shall mean Separation from Service. If the Executive is deemed on the Date of Termination to be a “ specified employee ,” within the meaning of that term under Section (a)(2)(B) of Code Section 409A (“ Code Section  409(a)(2)(B) ”) and using the identification methodology selected by the Company, as applicable, from time to time, or if none, the default methodology, then with regard to any payment, the providing of any benefit or any distribution of equity made subject to this Section 8.10.2, to the extent required to be delayed in compliance with Code Section 409A(a)(2)(B), and any other payment, the provision of any other benefit or any other distribution of equity that is required to be delayed in compliance with Code Section
 
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409A(a)(2)(B), such payment, benefit or distribution shall not be made or provided prior to the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s Separation from Service or (ii) the date of the Executive’s death. On the first day of the seventh month following the date of the Executive’s Separation from Service or, if earlier, on the date of his death, (x) all payments delayed pursuant to this Section 8.10.2 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein and (y) all distributions of equity delayed pursuant to this Section 8.10.2 shall be made to the Executive. In addition to the foregoing, to the extent required by Code Section 409A(a)(2)(B), prior to the occurrence of both a Disability termination as provided in Section 4.1.2 hereof and the Executive’s becoming “disabled” under Code Section 409A, the payment of any compensation to the Executive under this Agreement shall be suspended for a period of six months commencing at such time that the Executive shall be deemed to have had a Separation from Service because either (A) a sick leave ceases to be a bona fide sick leave of absence, or (B) the permitted time period for a sick leave of absence expires (an “ SFS Disability ”), without regard to whether such SFS Disability actually results in a Disability termination. Promptly following the expiration of such six-month period, all compensation suspended pursuant to the foregoing sentence (whether it would have otherwise been payable in a single sum or in installments in the absence of such suspension) shall be paid or reimbursed to the Executive in a lump sum. On any delayed payment date under this Section 8.10.2, there shall be paid to the Executive or, if the Executive has died, to his estate, in a single cash lump sum together with the payment of such delayed payment, interest on the aggregate amount of such delayed payment at the Delayed Payment Interest Rate (as defined below) computed from the date on which such delayed payment otherwise would have been made to the Executive until the date paid. For purposes of the foregoing, the “ Delayed Payment Interest Rate ” shall mean the prime interest rate as reported in The Wall Street Journal as of the business day immediately preceding the payment date for the applicable delayed payment.
8.9.3 Expense Reimbursement . With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Internal Revenue Code and the regulations and guidance promulgated thereunder solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred.
8.10 Consultants/Attorney’s Fees . The Company shall promptly pay directly or reimburse the Executive for all consultants and attorneys’ fees, disbursements and costs incurred by the Executive in connection with the negotiation, preparation and execution of this Agreement, which in the aggregate shall not exceed $20,000.
 
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8.11 Survivorship . Except as otherwise expressly set forth in this Agreement, upon the expiration of the Term, the respective rights and obligations of the Parties shall survive such expiration to the extent necessary to carry out the intentions of the Parties as embodied in this Agreement. This Agreement shall continue in effect until there are no further rights or obligations of the Parties outstanding hereunder and shall not be terminated by either party without the express prior written consent of all Parties.
8.12 Counterparts . This Agreement may be executed in counterparts (including by electronic transmission) which, when taken together, shall constitute one and the same agreement of the Parties.
8.13 Company Representations . As of the Effective Date, the Company represents and warrants to the Executive that (i) the execution, delivery and performance of this Agreement (and the agreements referred to herein) by the Company has been fully and validly authorized by all necessary corporate action, (ii) the officer or director signing this Agreement on behalf of the Company is duly authorized to do so, (iii) the execution, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or decree or any agreement, plan or corporate governance document to which the Company is a party or by which it is bound and (iv) upon execution and delivery of this Agreement by the Executive and the Company, it shall be a valid and binding obligation of the Company enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.
[Signature Page Follows]
 
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IN WITNESS WHEREOF, Amneal and Holdings have caused this Agreement to be duly executed and the Executive has hereunto set his hand, as of the date first set forth above.

Amneal Pharmaceuticals LLC	

By:	 	/s/ Chirag Patel	
Name: Chirag Patel	
Title: Co-CEO & Chairman	
	
Atlas Holdings, Inc.	

By:	 	/s/ Paul M. Bisaro	
			
Name:	 	Paul M. Bisaro	
Title:	 	Chief Executive Officer and President	
	
/s/ Robert A. Stewart	
Robert A. Stewart	
Signature Page to Employment Agreement

Exhibit A
(To be signed on or within 50 days after termination. Please do not sign before the date of termination.)
RELEASE AGREEMENT
(Age 40 or Older)
In exchange for my receipt of the severance payments and benefits set forth in Sections 4.4.2 and 4.4.3 of my Employment Agreement, dated [            ], 201[7] (as amended, my “ Employment Agreement ”), with Amneal Pharmaceuticals LLC (the “ Company ”) [and Amneal Pharmaceuticals, Inc. (“ Parent ”)], and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, I do hereby release and forever discharge the “ Releasees ” hereunder, consisting of the Company [and Parent], and each of their subsidiaries and affiliates, and, in their capacity as such, each of their predecessors, successors, partners, directors, officers, employees, attorneys and agents, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed or contingent, in connection with or arising under my employment with the Company [Parent] (hereinafter called “ Claims ”), which I now have or have ever had against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date I sign this Release Agreement. The Claims released herein include, but are not limited to: (1) all claims arising out of or in any way related to my service or employment relationship with any of the Releasees or the termination of that relationship; (2) all claims related to my compensation or benefits from the any of the Releasees, including salary, bonuses, commissions, Paid Time Off, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in [Parent,] the Company or any of their respective subsidiaries and affiliates (collectively, the “ Group Entities ”); (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including (without limitation) claims for discrimination, harassment, retaliation, attorneys’ fees, and other claims arising under the Age Discrimination in Employment Act, as amended (the “ ADEA ”); Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Civil Rights Act of 1866; the Family and Medical Leave Act of 1993, as amended; the Americans with Disabilities Act of 1990, as amended; the False Claims Act, as amended; the Employee Retirement Income Security Act, as amended; the Fair Labor Standards Act, as amended; the Sarbanes-Oxley Act of 2002; the Worker Adjustment Notification and Retraining Act; the New Jersey Law Against Discrimination; the New Jersey Conscientious Employee Protection Act; the New Jersey Family Leave Act; the New Jersey Wage Payment Law; the New Jersey Wage and Hour Law; the New Jersey Equal Pay Act; and retaliation claims under the New Jersey Workers’ Compensation Law.
Notwithstanding the foregoing, this Release Agreement shall not be construed in any way to release any Claim (i) to payments and benefits under Section 4.4.2 and 4.4.3 of my Employment Agreement, (ii) to accrued or vested benefits I may have, if any, as of the date

hereof under any applicable plan, policy, practice, program, contract or agreement with any Group Entity, (iii) for indemnification and/or advancement of expenses, arising under any indemnification agreement between me and any Group Entity or under the bylaws, certificate of incorporation or other similar governing document of any Group Entity, (iv) to any rights or benefits that may not be waived pursuant to applicable law, including, without limitation, any right to unemployment insurance benefits, (v) that arises after the date I execute this Release Agreement, or (vi) to my right to communicate directly with, cooperate with, or provide information to, any federal, state or local government regulator.
For the avoidance of doubt, nothing in this Release will be construed to prohibit me from filing a charge with, reporting possible violations to, or participating or cooperating with any governmental agency or entity, including but not limited to the EEOC, the Department of Justice, the Securities and Exchange Commission, the National Labor Relations Board, Congress, or any agency Inspector General, or making other disclosures that are protected under the whistleblower, anti-discrimination, or anti-retaliation provisions of federal, state or local law or regulation; provided, however , that I may not disclose information of the Releasees that is protected by the attorney-client privilege, except as otherwise required by law. I do not need the prior authorization of the applicable Releasee to make any such reports or disclosures, and I am not required to notify the applicable Releasee that I have made such reports or disclosures.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA, and that the consideration given under my Employment Agreement for the waiver and release I am providing herein is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) my waiver and release do not apply to any rights or claims that may arise after the date I sign this Release Agreement; (b) I should consult with an attorney prior to signing this Release Agreement (although I may choose voluntarily not to do so); (c) I have forty-five (45) days to consider this Release Agreement (although I may choose voluntarily to sign this Release Agreement before the end of the 45-day period) and to return the signed Release Agreement to the Company; (d) I have seven (7) days following the date I sign this Release Agreement (the “ Revocation Period ”) to revoke the Release Agreement as described below; and (e) this Release Agreement shall not be effective until the date upon which the Revocation Period has expired, which shall be the eighth day after I sign this Release Agreement (the “ Effective Date ”). I understand and agree that if I choose to revoke this Release Agreement, I must deliver notice of such revocation in writing, by personal delivery, email or mail, to [NAME], [TITLE] (            @            .com) at the Company, [ADDRESS], no later than 5:00 p.m. Pacific Time on the last day of the Revocation Period. If mailed, the revocation must be properly addressed and postmarked no later than the last day of the Revocation Period.
I represent that I have no lawsuits, claims or actions pending in my name, or on behalf of myself or any other person or entity, against any of the Releasees. I agree that I will not voluntarily provide assistance, information or advice, directly or indirectly (including through agents or attorneys), to any person or entity in connection with any actual or potential claim or cause of action of any kind against the Releasees and I shall not induce or encourage any person or entity to do so, unless compelled or authorized to do so by law. Notwithstanding the foregoing, I retain the right to file a charge with the Equal Employment Opportunity Commission and equivalent federal, state and local agencies, and to cooperate with investigations by any such agencies.

I acknowledge and represent that I have not suffered any discrimination or harassment by any of the Releasees on account of race, gender, national origin, religion, marital or registered domestic partner status, sexual orientation, age, disability, veteran status, medical condition or any other characteristic protected by applicable law. I acknowledge and represent that I have not been denied any leave, benefits or rights to which I may have been entitled under the FMLA or any other federal or state law, and that I have not suffered any job-related wrongs or injuries for which I might be entitled to compensation or relief. I further acknowledge and represent that, other than the benefits that will be provided to me pursuant to Sections 4.4.2 and 4.4.3 of my Employment Agreement, I have been paid all wages, bonuses, compensation, benefits and other amounts that any of the Releasees has ever owed to me, and I am not entitled to any additional compensation, severance or benefits after the date on which my employment with the Group Entities terminated, with the sole exception of any benefit the right to which has vested under the express terms of a Group Entity benefit plan document.
In addition, I hereby acknowledge my continuing obligations under my Employee Confidentiality, Non-Solicitation and Ownership of Inventions Agreement with the Company and under Section 6 of the Employment Agreement, including (without limitation) my obligations not to use or disclose any proprietary or confidential information of the Group Entities. Notwithstanding anything herein or in my Employee Confidentiality, Non-Solicitation and Ownership of Inventions Agreement with the Company, I acknowledge and I agree that, pursuant to 18 USC Section 1833(b), I will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
I agree that if I commence any suit arising out of, based upon, or relating to any of the Claims released under this Release Agreement, then I will pay to the Releasees, and each of them, in addition to any other damages caused to the Releasees thereby, all attorneys’ fees incurred by the Releasees in defending or otherwise responding to such suit; provided, that, this paragraph shall not apply with respect to any compulsory counterclaims within the meaning of Rule 13(a) of the Federal Rules of Civil Procedure, asserted by me against the Releasees bringing claims against me.
I agree that if any provision of this Release Agreement is determined to be invalid or unenforceable, in whole or in part, this determination will not affect any other provision of this Release Agreement and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the Parties insofar as possible under applicable law. I understand that this Release Agreement, together with my Employment Agreement, constitutes the complete, final and exclusive embodiment of the entire agreement between [Parent,] the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by [Parent or] the Company that is not expressly stated therein.

I acknowledge that in order for this Release Agreement to become effective, I must sign this Release Agreement and return it by email or mail to [NAME], [TITLE] (            @            .com) at the Company, [ADDRESS], on or within fifty (50) days after the date on which my employment terminated, and I must not exercise my right to revoke the Release Agreement as described above.
I have carefully read and fully understand this Release Agreement, and agree to be bound by its terms.

Printed Name:	 	 	
Signature:	 	 	
Date:	 	 	

Exhibit 10.8
MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING (“ MOU ”), is made and entered into as of the 16th day of December, 2017 (the “ Effective Date ”), by and among Amneal Pharmaceuticals LLC (the “ Company ”), Paul M. Bisaro (“ Bisaro ”), Impax Laboratories, Inc. (“ Impax ”), Amneal Holdings, LLC (“ Amneal Holdings ”) (solely with respect to and in connection with its obligations set forth in Paragraph 1 of this MOU) and Atlas Holdings, Inc. (“ Atlas ”). The Company, Impax, Bisaro and Atlas may be referred to herein individually as a “party” and collectively as the “parties.”
WHEREAS , the Company has entered into that certain Business Combination Agreement (the “ Business Combination Agreement ”), dated as of October 17, 2017, with, among others, Impax and Atlas, pursuant to which the following combination (the “ Combination ”) is expected to occur: Impax, following its conversion into a limited liability company, will become a wholly owned subsidiary of the Company and Atlas, which will be renamed Amneal Pharmaceuticals, Inc. (“ Parent ”);
WHEREAS , Bisaro currently serves as the Chief Executive Officer of Impax pursuant to that certain employment agreement entered into between Bisaro and Impax dated March 24, 2017 (the “ Existing Employment Agreement ”);
WHEREAS, on October 17, 2017, Bisaro executed a Waiver of the Good Reason, which is attached hereto as Exhibit A (the “ Waiver ”), whereby Bisaro agreed that the neither the Combination nor the Business Combination Agreement would constitute Good Reason under the Existing Employment Agreement;
WHEREAS, in consideration for the Waiver, the parties are entering into this MOU, to evidence their agreement that as of the closing of the Combination pursuant to the terms of the Combination Agreement (the “ Closing ”) Bisaro shall commence serving Parent as Executive Chairman and no later than immediately following the Closing, Bisaro and Parent shall enter into an employment agreement setting forth the terms and conditions for such service substantially in the form attached hereto as Exhibit B (the “ Amneal Employment Agreement ”); and
WHEREAS , the parties anticipate that the Closing will occur prior to December 31, 2018.
NOW THEREFORE , in consideration of the mutual promises between the parties and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Combination and Employment. The parties represent and warrant that, subject to Bisaro continuing to serve as the Chief Executive Officer of Impax through the Closing and Robert Stewart commencing employment as Chief Executive Officer of Parent at the Closing, (a)

as of the Closing, Bisaro shall commence serving as the Executive Chairman of Parent, (b) no later than immediately following the Closing, Bisaro and Parent shall enter into the Amneal Employment Agreement, substantially in the form attached hereto as Exhibit B, and (c) upon the later of the Closing or the date the Amneal Employment Agreement is entered into, the Existing Employment Agreement shall terminate without triggering any right to severance thereunder. Bisaro and Parent shall each execute and deliver the Amneal Employment Agreement to the other party no later than immediately following the Closing, which execution and delivery shall in no event be more than thirty (30) days following the Closing. As of the Effective Date, Impax holds all of the voting stock of Parent and on or after the Closing, Amneal Holdings and Impax shall cause the board of directors of Parent to authorize and approve the Amneal Employment Agreement, substantially in the form attached hereto as Exhibit B, and shall further authorize the officers of Parent to fulfill the obligations designated to Parent under this MOU upon the terms and conditions set forth herein.
2. Term and Termination. The term of this MOU is twelve (12) months from its Effective Date. This MOU shall terminate upon the earliest of (a) the later of the Closing or the execution and delivery of the Amneal Employment Agreement by each of Parent and Bisaro, substantially in the form attached hereto as Exhibit B ; or (b) twelve (12) months from the date first set forth above.
3. Impax Employment Agreement. The Existing Employment Agreement shall remain in full force and effect, subject to the Waiver, until the termination of this MOU under Paragraph 2(a) above. In the event of the termination of the MOU under Paragraph 2(b), the Existing Employment Agreement shall remain in full force and effect after termination of the MOU according to its original provisions. In the event of a termination of the MOU under Paragraph 2(a) above, Bisaro agrees to execute such other documents as shall be reasonably determined necessary or appropriate by Parent to evidence the termination of the Existing Employment Agreement without triggering any severance obligations thereunder. Notwithstanding the above, all payments, salary, bonuses, benefits or options which were earned or vested but unpaid prior to termination of the Existing Employment Agreement shall be paid or provided to Bisaro within ten (10) days of the termination of the Existing Employment Agreement. Notwithstanding the above, the Stock Option Agreement between Impax and Bisaro shall continue to be in full force and effect, without modification, notwithstanding the termination of the MOU or the Existing Employment Agreement.
4. Governing Law . This MOU shall be governed and has been constructed in accordance with the laws of the State of New Jersey without application of any conflict of laws or choice of law provision.
(Signatures on following page)
 
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IN WITNESS WHEREOF, the parties have executed this MOU as of the date indicated.

Amneal Pharmaceuticals LLC	
		
By:	 	/s/ Chirag Patel	
Name:	 	Chirag Patel	
Title:	 	Manager	
	
Impax Laboratories, Inc.	
		
By:	 	/s/ Bryan M. Reasons	
Name:	 	Bryan M. Reasons	
Title:	 	Executive Vice President and Chief Financial Officer	
	
Amneal Holdings, LLC	
		
By:	 	/s/ Chirag Patel	
Name:	 	Chirag Patel	
Title:	 	Manager	
	
Atlas Holdings, Inc.	
		
By:	 	/s/ Bryan M. Reasons	
Name:	 	Bryan M. Reasons	
Title:	 	Executive Vice President and Chief Financial Officer	
	
/s/ Paul M. Bisaro	
Paul M. Bisaro	
 
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Exhibit A
Waiver
(attached)

Private and Confidential
October 17, 2017
Paul M. Bisaro
[Redacted]
Dear Paul,
Reference is made to (1) that certain Business Combination Agreement, dated as of October 17, 2017 (the “ Business Combination Agreement ”), by and among Impax Laboratories, Inc., a Delaware corporation (the “ Company ”), Atlas Holdings, Inc., a Delaware corporation and a wholly-owned Subsidiary of Impax (“ Holdco ”), K2 Merger Sub Corporation, a Delaware corporation and a wholly-owned Subsidiary of Holdco (“ Merger Sub ”) and Amneal Pharmaceuticals LLC, a Delaware limited liability company (“ Amneal ”) and (2) that certain Employment Agreement, dated as of March 24, 2017 (the “ Employment Agreement ”), between yourself and the Company.
You hereby acknowledge and agree that neither (i) the execution of the Business Combination Agreement by Impax or its adoption by the stockholders of Impax nor (ii) the consummation of the Transactions or the occurrence of the Closing (as such terms are defined in the Business Combination Agreement) shall constitute “Good Reason” solely for purposes of clause (ix) of the definition of “Good Reason” in your Employment Agreement.
[Signature Page Follows]

 	 	 	
Impax Laboratories
100 Somerset Corporate Boulevard, Suite 3000
Bridgewater, N.J. 08807
732.595.4600 Phone
732.595.4753 Fax	 	CORPORATE HEADQUARTERS:
30831 Huntwood Avenue, Hayward CA 94544
510.240.6000 Phone
510.240.6096 Fax	  	www.impaxlabs.com	

Sincerely,

/s/ Bryan M. Reasons	
Bryan M. Reasons	
SVP, Finance and Chief Financial Officer	
Impax Laboratories, Inc.	
Acknowledged and agreed,

/s/ Paul M. Bisaro	
Paul M. Bisaro	
	
October 17, 2017	
Date	

Exhibit B
Amneal Employment Agreement
(attached)

EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (“ Agreement ”) is entered into as of [●] (the “ Effective Date ”), by and between Amneal Pharmaceuticals, Inc. (“ Amneal ”) and Paul M. Bisaro (the “ Executive ”).
WITNESSETH:
WHEREAS, The Executive currently serves as the Chief Executive Officer of Impax Laboratories, Inc. (“ Impax ”) pursuant to that certain employment agreement entered into between the Executive and Impax dated March 24, 2017 (the “ Existing Employment Agreement ”);
WHEREAS, Amneal Pharmaceuticals LLC (the “ Company ”), Impax and Atlas Holdings, Inc. entered into a Business Combination Agreement dated as of October 17, 2017 pursuant to which Impax, following its conversion into a limited liability company, became a wholly owned subsidiary of the Company and Atlas Holdings, Inc., which was renamed Amneal Pharmaceuticals, Inc.;
WHEREAS, the Executive possesses unique personal knowledge, experience and expertise;
WHEREAS, upon execution of this Agreement, the Executive shall cease to serve Impax as Chief Executive Officer, the Existing Employment Agreement shall terminate without triggering any severance thereunder and the Executive shall commence serving Amneal as Executive Chairman pursuant to the terms and conditions of this Agreement; and
WHEREAS, Amneal and the Executive desire to enter into this Agreement as to the terms and conditions of the Executive’s service to Amneal.
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
1.	EMPLOYMENT AND DUTIES	
1.1 Term of Employment . Subject to Section 8.2 below, the Executive’s initial term of employment under this Agreement shall commence on the Effective Date and shall continue until the third anniversary of the Effective Date (the “ Initial Term ”), unless further extended or earlier terminated as provided in this Agreement. This Agreement will automatically be renewed for single one-year periods unless written notice of non-renewal (a “ Non-Renewal Notice ”) is provided by any party at least 90 days prior to the end of the Initial Term or the successive one-year period then in effect or unless earlier terminated as provided in this Agreement. Neither non-renewal of this Agreement for additional periods after the second anniversary of the Closing, nor expiration of this Agreement as a result of such non-renewal, shall, by itself, result in termination of the Executive’s employment. The period of time between the Closing and the termination of the Executive’s employment under this Agreement or the expiration of this Agreement, whichever is earlier, shall be referred to herein as the “ Term. ”
 
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1.2 General .
1.2.1 Subject to the terms set forth herein, effective as of the Closing, the Executive shall serve as the Executive Chairman of Amneal and shall have the authorities, duties and responsibilities as are usual and customary for such position or are prescribed by Amneal’s bylaws and as may from time to time be delegated to him by the board of directors of Amneal (the “ Board ”), which include but are limited to the following: [INSERT LIST OF DUTIES].
1.2.2 As of the Effective Date, Executive shall serve as a director of the Board. Thereafter, during the Term, at each applicable annual meeting of Amneal’s stockholders, the Board, subject to its fiduciary duties, shall nominate and recommend the election of the Executive by Amneal’s stockholders as a director. Upon termination of the Executive’s employment for any reason under this Agreement or upon the expiration of the Term of this Agreement, the Executive shall resign immediately upon request of the Board from all officer and director positions held by him with Amneal or any of its Subsidiaries. For purposes of this Agreement, the term “ Subsidiaries ” shall mean any entity with voting equity securities that are more than 50% controlled by Amneal as the parent company or the holding company.
1.2.3 The Executive shall faithfully and diligently discharge his duties hereunder and use his best efforts to implement the policies established from time to time by the Board. The Executive shall devote all of his business time, attention, knowledge and skills faithfully, diligently and to the best of his ability, in furtherance of the business and activities of Amneal; provided , however , that nothing in this Agreement shall preclude the Executive from devoting reasonable periods of time required for:
(i) serving as a director or member of a committee, in each case, in a non-lead, non-chair role, of up to two (2) publicly traded corporations and up to one (1) private organization or corporation, in each case, that does not, in the good faith determination of the Board, compete with Amneal or any of its Subsidiaries or otherwise create, or could create, in the good faith determination of the Board a conflict of interest with the business of Amneal or any of its Subsidiaries;
(ii) delivering lectures, fulfilling speaking engagements, and any writing or publication relating to his area of expertise; provided , however , that any fees, royalties or honorariums received therefrom shall be promptly turned over to Amneal;
(iii) engaging in professional organization and program activities;
(iv) managing his personal passive investments and affairs; and
(v) participating in charitable or community affairs;
 
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provided that such activities do not materially, individually or in the aggregate, interfere with the performance of his duties and responsibilities under this Agreement or create a conflict of interest with the business of Amneal or any of its Subsidiaries as determined in good faith by the Board. Notwithstanding the foregoing, the Executive shall be permitted to continue to serve on the boards of directors upon which he serves as of the Effective Date, provided, that he takes all reasonably necessary actions to terminate any such service that violates this Section 1.2.3 on or prior to the three-month anniversary of the Effective Date and in the interim, shall cooperate with the Board to limit any interference, conflict or violation.
1.3 Reimbursement of Expenses . Amneal shall reimburse the Executive for all reasonable, documented, out-of-pocket travel and other business expenses incurred by the Executive in the performance of the Executive’s duties to Amneal in accordance with Amneal’s applicable expense reimbursement policies and procedures as are in effect from time to time. To the extent any such reimbursements (and any other reimbursements of costs and expenses provided for herein) are includable in the Executive’s gross income for Federal income tax purposes, all such reimbursements shall be made no later than March 15 of the calendar year next following the calendar year in which the expenses to be reimbursed are incurred.
 
2.	COMPENSATION	
2.1 Base Salary . During the Term, the Executive shall be entitled to receive a base salary at the annual rate of $750,000, subject to increase, or decrease, only if salary decreases are concurrently implemented across the senior executives of Amneal as determined by the Board or the Compensation Committee of the Board from time to time in its discretion, payable in accordance with the payroll practices of Amneal (the “ Base Salary ”).
2.2 Incentive Bonuses . During the Term, the Executive shall be eligible to receive an annual bonus targeted at 100% of the Executive’s Base Salary (the “ Incentive Bonus ”) under the annual incentive program adopted by the Board, as may be amended from time to time. Such bonus shall be paid within 2-1/2 months following the end of the calendar year to which it relates. The amount of Incentive Bonus payable for any year shall be based on the achievement of performance objectives established by the Board, as determined in its discretion, and, based on achievement, may be between zero and 150% of the Executive’s Base Salary. The Incentive Bonus will be prorated for the Executive’s initial year of employment. The Executive must be employed by Amneal through the date of payment of any Incentive Bonus in order to remain eligible for such Incentive Bonus.
2.3 Equity Awards .
2.3.1 Stock Option Grant . On, or as promptly as practicable following, the Effective Date, but no later than 30 days immediately following the Effective Date, Amneal shall grant to the Executive an option to purchase (the “ Initial Option ”) that number of shares of Amneal common stock necessary for the Initial Option to have a grant date fair value of $3,000,000. The per share exercise price of the Initial Option shall be equal to the
 
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per share fair market value of Amneal’s common stock on the date of grant. The Initial Option shall vest and become exercisable with respect to 25% of the total number of shares subject to the Initial Option on each of the first four anniversaries of the Effective Date, subject to the Executive’s continuous service to Amneal through the applicable vesting date. The Initial Option shall otherwise be subject to the terms of the plan pursuant to which it is granted and an award agreement to be entered into between the Executive and Amneal.
2.3.2 Initial Restricted Stock Units . On, or as promptly as practicable following, the Effective Date, but no later than 30 days immediately following the Effective Date, Amneal shall grant to the Executive an award of restricted stock units (the “ Initial RSUs ”) having a grant date fair value equal to $1,500,000. The Initial RSUs will vest in respect of 25% of the total number of Initial RSUs on each of the first four anniversaries of the Effective Date, subject to the Executive’s continuous services to Amneal through the applicable vesting date. The Initial RSUs shall otherwise be subject to the terms of the plan pursuant to which they are granted and an award agreement to be entered into between the Executive and Amneal.
2.3.3 Future Equity Awards . During the term of this Agreement, the Executive will be eligible to receive additional stock options, restricted stock units and other equity incentive grants as determined by the Board in its sole discretion.
2.4 Additional Compensation . During the Term, in addition to the foregoing, the Executive shall be eligible to (i) receive such other compensation as may from time to time be awarded him by the Board or the Compensation Committee of the Board; and (ii) participate and receive compensation from other bonus, incentive, performance awards and similar programs or compensation that is offered to other executives of Amneal.
 
3.	EMPLOYEE BENEFITS	
During the Term, the Executive shall be entitled to paid time off generally made available to executive personnel of Amneal and to participate in and have the benefit of all group life, disability, hospital, surgical and major medical insurance plans and programs and other employee benefit plans and programs as generally are made available to executive personnel of Amneal, as such benefit plans or programs may be amended or terminated in the sole discretion of the Board or the Compensation Committee of the Board, from time to time. The Executive shall accrue up to twenty (20) days paid time off each calendar year which will accrue in accordance with the Amneal’s employment policies and procedures, including in respect of any accrual caps.
 
4.	TERMINATION OF EMPLOYMENT	
4.1 General . The Executive’s employment under this Agreement may be terminated without any breach of this Agreement only on the following circumstances:
4.1.1 Death . The Executive’s employment under this Agreement shall terminate upon his death.
4.1.2 Disability . If the Executive suffers a Disability (as defined below),
 
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the Board may terminate the Executive’s employment under this Agreement upon 30 days prior written notice; provided that the Executive has not returned to full time performance of his duties during such 30-day period. For purposes of this Agreement, “Disability” shall mean the Executive’s inability to perform his duties and responsibilities hereunder, with or without reasonable accommodation, due to any physical or mental illness or incapacity, which condition either (i) has continued for a period of 180 days (including weekends and holidays) in any consecutive 365-day period, or (ii) is projected by the Board in good faith after consulting with a doctor selected by the Board and consented to by the Executive (or, in the event of the Executive’s incapacity, his legal representative), such consent not to be unreasonably withheld, that the condition is likely to continue for a period of at least six consecutive months from its commencement.
4.1.3 Good Reason . The Executive may terminate his employment under this Agreement for Good Reason (as defined below) at any time on or prior to the 60 th day after the occurrence of any of the Good Reason events set forth below. For purposes of this Agreement, “ Good Reason ” shall mean the occurrence of any of the following events without the Executive’s consent:
(i) any action or inaction by Amneal constituting a material breach of the Agreement by Amneal;
(ii) a material diminution of the authorities, duties or responsibilities of the Executive set forth in Section 1.2 above or a failure to appoint Executive to the Board (other than temporarily while the Executive is physically or mentally incapacitated and unable to properly perform such duties, as determined by the Board in good faith);
(iii) the loss of any of the titles of the Executive with Amneal set forth in Section 1.2 above or a change in the primary office location where Executive provides the majority of his services that is fifty (50) or more miles from the current location, which is 400 Crossing Boulevard, Bridgewater, New Jersey 08807;
(iv) a material reduction by Amneal in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus, but, except in the case of a reduction following a Change in Control (as defined below), not including a reduction in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus which is consistent with the reduction in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus imposed on all senior executives of Amneal;
(v) the assignment to the Executive of duties or responsibilities that are negatively and materially inconsistent with any of his duties and responsibilities set forth in Section 1.2 hereof;
(vi) the delivery by the Board to the Executive of a Non-Renewal Notice in accordance with Section 1.1; or
(vii) a material change in the reporting structure set forth in Section 1.2.1 hereof.
 
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Notwithstanding the foregoing, the Executive shall not be deemed to have Good Reason under this Section 4.1.3 unless, Executive provides written notice to the Board of the occurrence of an event constituting Good Reason within 30 days of its initial occurrence, the Board shall fail to cure such event constituting Good Reason within 30 days following its receipt of such written notice and the Executive’s resignation on account of Good Reason is effective within 30 days following the end of the Board’s 30-day cure period.
4.1.4 Without Good Reason . The Executive may voluntarily terminate his employment under this Agreement without Good Reason upon written notice by the Executive to the Board at least 60 days prior to the effective date of such termination (which termination the Board may, in its sole discretion, make effective earlier than the date set forth in the Notice of Termination (as defined below)).
4.1.5 Cause . The Board may terminate the Executive’s employment under this Agreement at any time for Cause (as defined below). For purposes of this Agreement, termination for “ Cause ” shall mean any of the following as determined in good faith by the Board:
(i) the willful and continued failure by the Executive to substantially perform his obligations under this Agreement (other than any such failure resulting from the Executive’s incapacity due to a Disability); provided , however , that the Board shall have provided the Executive with a Notice of Termination specifying such failure and the Executive shall have been afforded at least 15 business days within which to cure same;
(ii) the indictment of the Executive for, or his conviction of or plea of guilty or nolo contendere to, a felony or any other crime involving moral turpitude or dishonesty;
(iii) the Executive’s willful misconduct in the performance of his duties hereunder (including theft, fraud, embezzlement, and securities law violations);
(iv) the Executive’s violation of Amneal’s Code of Conduct or other written policies, which is attached hereto as Exhibit A ; provided , however , that the Board shall have provided the Executive with a Notice of Termination specifying such failure and the Executive shall have been afforded at least 15 business days within which to cure same; or
(v) the Executive’s willful misconduct (including theft, fraud, embezzlement, and securities law violations) that is actually or potentially materially injurious to Amneal or its Subsidiaries in the Board’s reasonable business judgment, monetarily or otherwise.
For purposes of this Section 4.1.5, no act or failure to act on the part of the Executive shall be considered “ willful ,” unless done, or omitted to be done, without reasonable belief that his action or omission was in, or not opposed to, the best interest of Amneal (including their reputation).
 
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Prior to any termination for Cause, the Board shall provide the Executive with a Notice of Termination specifying the event constituting Cause and shall give the Executive the opportunity to appear before the Board to present his views on the Cause event. If, after such hearing, a majority of the full Board (excluding the Executive) does not support such termination, the Notice of Termination shall be rescinded. After providing the notice in the foregoing sentence, the Board may suspend the Executive with full pay and benefits until a final determination pursuant to this Section has been made.
4.1.6 Without Cause . The Board may terminate the Executive’s employment under this Agreement without Cause immediately upon written notice by the Board to the Executive, other than for death or Disability.
4.1.7 Definition of Change in Control . For purposes of this Agreement, a “ Change in Control ” shall be deemed to occur upon any of the following events that occurs after the Closing, provided that such an event constitutes a “change in control event” within the meaning of Section 409A of the Code (as defined below): (a) any “ person ” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) (other than Amneal, any trustee or other fiduciary holding securities under any employee benefit plan of Amneal, or any company owned, directly or indirectly, by the stockholders of Amneal in substantially the same proportions as their ownership of the equity securities of Amneal), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of equity securities of Amneal representing more than 50% of the combined voting power of Amneal’s then outstanding equity securities; (b) during any period of 12 consecutive months, the individuals who, at the beginning of such period, constitute the Board, and any new director whose election by the Board or nomination for election by Amneal’s equity holders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the 12-month period (or the Closing if later than such date) or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the Board; (c) a merger or consolidation of Amneal with any other corporation or other entity, other than a merger or consolidation that would result in the voting securities of Amneal outstanding immediately prior thereto (and held by persons that are not affiliates of the acquirer) continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of Amneal or such surviving entity outstanding immediately after such merger or consolidation; provided , however , that a merger or consolidation effected to implement a recapitalization of Amneal (or similar transaction) in which no person (other than those covered by the exceptions in clause (a) of this Section 4.1.7) acquires more than 50% of the combined voting power of Amneal’s then outstanding securities shall not constitute a Change in Control; or (d) the consummation of a sale or other disposition by Amneal of all or substantially all Amneal’s assets, including a liquidation, other than the sale or other disposition of all or substantially all of the assets of Amneal to a person or persons who beneficially own, directly or indirectly, more than 50% of the combined voting power of the outstanding voting securities of Amneal immediately prior to the time of the sale or other disposition. For the avoidance of doubt, the Combination Agreement and the transactions contemplated thereunder shall not constitute a Change in Control under this Agreement.
 
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4.2 Notice of Termination . Any termination of the Executive’s employment by Amneal (other than termination by reason of the Executive’s death) shall be communicated by written Notice of Termination to the other party of this Agreement. For purposes of this Agreement, a “ Notice of Termination ” shall mean a written notice which shall indicate the specific termination provision in this Agreement relied upon and, other than with respect to a termination pursuant to Section 4.1.6 hereof, shall set forth in reasonable detail the facts and circumstances claimed to provide the basis for such termination.
4.3 Date of Termination . The “ Date of Termination ” shall mean (a) if the termination is the result of the Executive’s death, the date of his death, (b) if the termination is pursuant to Section 4.1.2 hereof, 30 days after the Notice of Termination is given (provided that the Executive shall not have returned to the performance of his duties on a full-time basis during such 30-day period), (c) if the termination is pursuant to Section 4.1.3 or Section 4.1.5 hereof, the date specified in the Notice of Termination after the expiration of any applicable cure period, (d) if the termination is pursuant to Section 4.1.4 hereof, the date specified in the Notice of Termination which shall be at least 60 days after the Notice of Termination is given, or such earlier date as the Board shall determine in its sole discretion, and (e) if the termination is pursuant to Section 4.1.6 hereof, the date on which the Notice of Termination is given.
4.4 Compensation Upon Termination .
4.4.1 Termination for Cause or without Good Reason . If the Executive’s employment shall be terminated by the Board for Cause or by the Executive without Good Reason, the Executive shall receive from Amneal: (a) any earned but unpaid Base Salary through the Date of Termination, paid in accordance with Amneal’s standard payroll practices; (b) reimbursement for any unreimbursed expenses properly incurred and paid in accordance with Section 1.3 hereof through the Date of Termination; (c) payment for any accrued but unused vacation time in accordance with Amneal’s policy; (d) all equity awards previously granted to the Executive that have vested in accordance with the terms of such grants; and (e) such vested accrued benefits, and other payments, if any, as to which the Executive (and his eligible dependents) may be entitled under, and in accordance with the terms and conditions of, the employee benefit arrangements, plans and programs of Amneal as of the Date of Termination, other than any severance pay plan (such amounts and benefits set forth in clauses (a) though (e) being referred to hereinafter as the “ Amounts and Benefits ”), and Amneal shall have no further obligation with respect to this Agreement other than as provided in Sections 5, 6.5 and 7 hereof. Any equity awards previously granted to the Executive that have not vested in accordance with the terms of their grants as of the Date of Termination shall be forfeited as of the Date of Termination.
4.4.2 Termination Apart from a Change in Control . If, at any time prior to the expiration of the Term and other than during a Change in Control Period (as defined below), the Executive resigns from his employment hereunder for Good Reason, or the Board terminates the Executive’s employment hereunder without Cause, then Amneal shall pay or provide the Executive the Amounts and Benefits and, subject to Section 4.4.5, a severance payment as follows:
 
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(i) an amount equal to two times the Base Salary as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), with the aggregate amount due paid in equal installments on Amneal’s normal payroll dates for a period of 12 months from the Date of Termination in accordance with the normal payroll practices of Amneal, with each such payment deemed to be a separate payment for the purposes of Section 409A of the Code;
(ii) During the period commencing on the Date of Termination and ending as of the second anniversary of the Date of Termination, or, if earlier, the date on which the Executive becomes eligible for comparable replacement coverage under a subsequent employer’s group health plan (in any case, the “ COBRA Period ”), subject to the Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, Amneal shall, in its sole discretion, either (A) continue to provide to the Executive and the Executive’s dependents, at Amneal’s sole expense, or (B) reimburse the Executive and the Executive’s dependents for coverage under its group health plan (if any) at the same levels in effect on the Date of Termination; provided, however , that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) Amneal is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health plans, or (3) Amneal cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining subsidy shall thereafter be paid to the Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof); and
(iii) the vesting, and if applicable, exercisability of each outstanding equity award granted to the Executive by Amneal shall accelerate in respect of that number of shares of Amneal common stock (or other equity securities) that would have vested had the Executive’s employment with Amneal continued through the first anniversary of the Date of Termination, and any such stock options, notwithstanding any provision to the contrary in the option agreement or the plan pursuant to which the option was granted, shall remain exercisable for a period of 12 months following the Date of Termination or, if earlier, until the original expiration date of the option.
4.4.3 Termination Following Change in Control . Anything contained herein to the contrary notwithstanding, in the event the Executive resigns from his employment hereunder for Good Reason, the Board terminates the Executive’s employment hereunder without Cause or Executive’s employment terminates by reason of death or Disability, in each case, within the period commencing three months prior to a Change in Control and ending 24 months following the Change in Control (a “ Change in Control Period ”), then, in lieu of any amount otherwise payable pursuant to Section 4.4.2, Amneal shall pay or provide the Executive the Amounts and Benefits and, subject to Section 4.4.5, a severance payment as follows:
(i) an amount equal to the sum of (x) two times the Base Salary as
 
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then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), plus (y) an amount equal to two times the Executive’s target Incentive Bonus as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), with the aggregate amount due paid in equal installments on Amneal’s normal payroll dates for a period of 12 months from the Date of Termination in accordance with the normal payroll practices of Amneal, with each such payment deemed to be a separate payment for the purposes of Section 409A of the Code; provided, however, that all or a portion of the severance payable under this Section 4.4.3(i) shall instead be paid in a lump sum on the 60th day following the date of the Executive’s “separation from service” (within the meaning of Section 409A of the Code) to the extent that such lump sum payment would not result in any additional excise tax or tax penalties under Section 409A of the Code;
(ii) During the COBRA Period, subject to the Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, Amneal shall, in its sole discretion, either (A) continue to provide to the Executive and the Executive’s dependents, at Amneal’s sole expense, or (B) reimburse the Executive and the Executive’s dependents for coverage under its group health plan (if any) at the same levels in effect on the Date of Termination; provided, however , that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) Amneal is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health plans, or (3) Amneal cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining subsidy shall thereafter be paid to the Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof); and
(iii) The vesting and, if applicable, exercisability of each equity award granted to the Executive by Amneal, including each stock option and restricted stock unit award, shall accelerate in respect of 100% of the shares of Amneal common stock subject thereto effective as of the Date of Termination, and any such stock options, notwithstanding any provision to the contrary in the option agreement or the plan pursuant to which the option was granted, shall remain exercisable for a period of 12 months following the Date of Termination or, if earlier, until the original expiration date of the option.
4.4.5 Termination upon Death . In the event of the Executive’s death, Amneal shall pay or provide to the Executive’s estate: (i) the Amounts and Benefits and (ii) a pro-rated Incentive Bonus based on actual performance paid at the same time other executives are paid their related bonuses. In addition, (A) all of the then unvested restricted stock and restricted stock units previously granted to the Executive by Amneal shall immediately become vested on the Date of Termination and any underlying shares shall be distributed to the Executive’s estate within 60 days of the Date of Termination and (B) the portion of the unvested stock options previously granted to the Executive by Amneal that are scheduled to vest in the calendar year of the Executive’s death shall immediately become vested and exercisable. After giving effect to the foregoing, any portion of the stock options that remain unvested on the Executive’s death shall be forfeited.
 
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4.4.6 Termination upon Disability . In the event Amneal terminates the Executive’s employment hereunder for reason of Disability, Amneal shall pay or provide to the Executive: (i) the Amounts and Benefits, (ii) a pro-rated Incentive Bonus based on actual performance paid at the same time other executives are paid their related bonuses and (iii) medical benefits for six months. In addition, subject to Section 4.4.8, (A) 50% of the unvested restricted stock and restricted stock units previously granted to the Executive by Amneal shall immediately become vested on the Date of Termination and any underlying shares shall be distributed to the Executive subject to Section 4.4.8 and (B) the portion of any unvested stock options previously granted to the Executive by Amneal that are scheduled to vest in the calendar year in which the Date of Termination occurs shall immediately become vested subject to Section 4.4.8. After giving effect to the foregoing, any portion of any restricted shares, restricted stock units and stock options that remain unvested on the certification following the Date of Termination shall be forfeited as of the Date of Termination.
4.4.7 No Mitigation or Offset . The Executive shall not be required to mitigate the amount of any payment provided for in this Section 4.4 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 4.4 be reduced by any compensation earned by the Executive as the result of employment by another employer or business or by profits earned by the Executive from any other source at any time before and after the Date of Termination.
4.4.8 Release . Notwithstanding any provision to the contrary in this Agreement, Amneal’s obligation to pay or provide the Executive with the payments and benefits under Sections 4.4.2 and 4.4.3 (other than the Amounts and Benefits), and any accelerated vesting with respect to the equity awards under Section 4.4.3, shall be conditioned on the Executive’s execution and failure to revoke a waiver and general release in a form generally consistent with Exhibit B hereto (subject to such changes as may be necessary at the time of execution in order to make such release enforceable) (the “ Release ”). Amneal shall provide the Release to the Executive within seven days following the applicable Date of Termination. In order to receive the payments and benefits under Sections 4.4.2 and 4.4.3 (other than the Amounts and Benefits) and the accelerated vesting with respect to the equity awards under Section 4.4.3, the Executive will be required to execute and deliver the Release within 45 days after the date it is provided to him and not to revoke it within seven days following such execution and delivery. Notwithstanding anything to the contrary contained herein, (i) all payments delayed pursuant to this Section, except to the extent delayed pursuant to Section 8.10.2, shall be paid to the Executive in a lump sum on the first payroll date on or following the 60th day after the Date of Termination, and any remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein, with each such payment deemed to be a separate and distinct payment for the purposes of Section 409A of the Code and (ii) all accelerated vesting with respect to the equity awards delayed pursuant to this Section, except to the extent delayed pursuant to Section 8.10.2, shall be effected on the 60th day after the Date of Termination.
 
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5.	INSURABILITY; RIGHT TO INSURE	
Amneal shall have the right to maintain key man life insurance in its own name covering the Executive’s life in an amount of up to $50,000,000.00. The Executive shall fully cooperate in the procuring of such insurance, including submitting to any required medical examination and by completing, executing and delivering such applications and other instrument in writing as may be reasonably required by any insurance company to which application for insurance may be made by Amneal. Amneal’s ability to procure any key man life insurance covering Executive’s life shall not be a condition of employment.
 
6.	CONFIDENTIALITY; NON-COMPETITION; NON-SOLICITATION; NON-DISPARAGEMENT; COOPERATION	
6.1 Confidential Information . The Parties acknowledge that the services to be performed by the Executive under this Agreement are unique and extraordinary and, as a result of such employment, the Executive shall be in possession of Confidential Information (as defined below) relating to the business practices of Amneal and its Subsidiaries thereof. The term “Confidential Information” shall mean any and all information (oral and written) relating to Amneal and its Subsidiaries or any of their respective activities, or of the clients, customers or business practices of Amneal and its Subsidiaries, other than such information which (i) is generally available to the public or within the relevant trade or industry, other than as the result of breach of the provisions of this Section 6.1, or (ii) the Executive is required to disclose under any applicable laws, regulations or directives of any government agency, tribunal or authority having jurisdiction in the matter or under subpoena or other process of law. Confidential Information includes, but it not limited to, information that the Executive creates, develops, derives, obtains, makes known, or learns about which has commercial value in the business in which Amneal and its Subsidiaries is involved and which is treated by Amneal or its Subsidiaries as confidential, such as trade secrets, ideas, processes, formulas, compounds, compositions, research and clinical data, know-how, discoveries, developments, designs, innovations, plans, strategies, pricing, costs, financial information, employee information, forecasts and current and prospective customer and supplier lists. The Executive shall not, during the Term or at any time thereafter, except as may be required in the course of the performance of his duties hereunder (including pursuant to Section 6.6 below) and except with respect to any litigation or arbitration involving this Agreement, including the enforcement hereof, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any Confidential Information acquired by the Executive during, or as a result of, his employment with Amneal, without the prior written consent of the Board. Without limiting the foregoing, the Executive understands that the Executive shall be prohibited from misappropriating any trade secret of Amneal or its Subsidiaries or of the clients or customers of Amneal or its Subsidiaries acquired by the Executive during, or as a result of, his employment with Amneal, at any time during or after the Term. Further without limiting the foregoing, as a condition of Executive’s employment with Amneal, the Executive shall enter into Amneal’s standard Employee Confidentiality, Non-Solicitation and Ownership of Inventions Agreement (the “Proprietary Information Agreement”), attached as Exhibit C . In the event of a conflict between this Agreement and the Proprietary Information Agreement, this Agreement shall control.
6.2 Return of Property . Upon the termination of the Executive’s employment for
 
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any reason all property of Amneal and its Subsidiaries that is in the possession of the Executive, including all documents, records, drug formulations, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials that contain Confidential Information that are in the possession of the Executive, including all copies thereof, shall be promptly returned to Amneal. Anything to the contrary herein notwithstanding, the Executive shall be entitled to retain (i) papers and other materials of a personal nature, including photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes and (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with Amneal.
6.3 Non-Competition . The Executive acknowledges that the Executive has been provided with Confidential Information and, during the Term, Amneal from time to time will provide Executive with access to Confidential Information. Ancillary to the rights provided to the Executive as set forth in this Agreement, the Executive’s continued employment with Amneal during the Term (subject to earlier termination as provided herein), and Amneal’s provision of Confidential Information, and the Executive’s agreements regarding the use of same, in order to protect the value of any Confidential Information, and in consideration for good and valuable consideration received by the Executive, the Parties agree to the following provisions against unfair competition, which the Executive acknowledges represent a fair balance of Amneal’s rights to protect its business and the Executive’s right to pursue employment. The Executive hereby agrees that he shall not, during the Term, directly or indirectly, engage or have an interest in, or render any services to, any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) (such activities hereinafter referred to collectively as “ Engaging ”) that competes directly with Amneal or its Subsidiaries. Notwithstanding the foregoing, nothing herein shall prevent the Executive from (i) owning securities in a publicly traded entity whose activities compete with those of Amneal or its Subsidiaries provided that such securities holdings are not greater than five percent of the equity ownership in such entity; (ii) Engaging in the business of the ownership and licensing (as licensor) of trademarks and brands if the products or services carrying such trademarks and brands do not compete with the products or services carrying the trademarks and brands owned and licensed (as licensor) by Amneal or its Subsidiaries, or that Amneal or any of its Subsidiaries is actively planning to own or license (as licensor), during the Term; or (iii) Engaging in an operating company (including ownership of securities of such operating company’s holding company) with annual revenues not in excess of $10,000,000.
6.4 Prohibition on Use of Confidential Information to Solicit Customers and Prospects . During the Executive’s employment, the Executive shall not engage in any other employment or activity that might materially interfere with the interests of Amneal or its Subsidiaries. Furthermore, the Executive shall not, except in the furtherance of the Executive’s duties hereunder, directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity, (i) during the Term (except in the good faith performance of his duties) and for a period of 24 months thereafter, solicit, aid or induce any employee, representative or agent of Amneal or its Subsidiaries to leave such employment or retention or to accept employment with or render services to or with any other person, firm,
 
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corporation or other entity unaffiliated with Amneal or hire or retain any such employee, representative or agent, or take any action to materially assist or aid any other person, firm, corporation or other entity in identifying, hiring or soliciting any such employee, representative or agent, (ii) during the Term (except in the good faith performance of his duties) and for a period of 12 months thereafter, solicit, aid or induce (or attempt to do any of the foregoing) directly or indirectly, any current or prospective customer of Amneal or its Subsidiaries with whom the Executive in any way dealt with at any time during the last two years of the Executive’s employment to purchase goods or services then sold by Amneal or its Subsidiaries from another person, firm, corporation or other entity or assist or aid any other persons or entity in identifying or soliciting any such customer or (iii) during the Term (except in the good faith performance of his duties) and for a period of 24 months thereafter, interfere in any manner with the relationship of Amneal or its Subsidiaries and any of its vendors. An employee, representative or agent shall be deemed covered by this Section while so employed or retained by Amneal or its Subsidiaries and for six months thereafter. Anything to the contrary herein notwithstanding, the following shall not be deemed a violation of this Section 6.4: (a) the Executive’s solicitation of the Amneal’s customers and/or vendors in connection with, and directly related to, his Engaging in a business that complies with Sections 6.3(ii) or (iii); (b) the Executive’s responding to an unsolicited request for an employment reference regarding any former employee of Amneal or its Subsidiaries from such former employee, or from a third party, by providing a reference setting forth his personal views about such former employee; or (c) if an entity with which the Executive is associated hires or engages any employee of Amneal or its Subsidiaries, if the Executive was not, directly or indirectly, involved in hiring or identifying such person as a potential recruit or assisting in the recruitment of such employee. For purposes hereof, the Executive shall be deemed to have been involved “ indirectly ” in soliciting, hiring or identifying an employee only if the Executive (x) directs a third party to solicit or hire the Employee, (y) identifies an employee to a third party as a potential recruit or (z) aids, assists or participates with a third party in soliciting or hiring an employee.
6.5 Non-Disparagement . At no time during or within five years after the Term shall the Executive, directly or indirectly, disparage Amneal or its Subsidiaries or any of Amneal’s or its Subsidiaries past or present employees, directors, products or services. Amneal and its Subsidiaries shall advise their senior officers and the members of the Board not to disparage the Executive during the period. Notwithstanding the foregoing, nothing in this Section 6.5 shall prevent any person from making any truthful statement to the extent (i) necessary to rebut any untrue public statements made about him or her; (ii) necessary with respect to any litigation, arbitration or mediation involving this Agreement and the enforcement thereof; (iii) required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with jurisdiction over such person; or (iv) made as good faith competitive statements in the ordinary course of business.
6.6 Cooperation . Upon the receipt of reasonable notice from Amneal or its legal counsel, the Executive shall, while employed by Amneal and thereafter, respond and provide information with regard to matters of which the Executive has knowledge as a result of the Executive’s employment with Amneal and will provide reasonable assistance to Amneal and its representatives in defense of any claims that may be made against Amneal or its
 
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Subsidiaries, and will provide reasonable assistance to Amneal in the prosecution of any claims that may be made by Amneal or its Subsidiaries, to the extent that such claims may relate to matters related to the Executive’s period of employment with Amneal. Any request for such cooperation shall take into account the Executive’s personal and business commitments. The Executive shall promptly inform the Board (to the extent the Executive is legally permitted to do so) if the Executive is asked to assist in any investigation of the Amneal or its Subsidiaries or their actions, regardless of whether a lawsuit or other proceeding has then been filed with respect to such investigation. If the Executive is required to provide any services pursuant to this Section 6.6 following the Term, upon presentation of appropriate documentation, Amneal shall promptly reimburse the Executive for reasonable out-of-pocket travel, lodging, communication and duplication expenses incurred in connection with the performance of such services and in accordance with Amneal’s expense policy for its senior officers (provided that it shall be in Executive’s discretion to travel via first or business class, which costs shall be reimbursable by Amneal), for reasonable legal fees to the extent the Executive in good faith believes that separate legal representation is reasonably required, and for the Executive’s time at a rate equivalent to the Executive’s most recent base salary. The Executive’s entitlement to reimbursement of such costs and expenses, including legal fees, pursuant to this Section 6.6, shall in no way affect the Executive’s rights, if any, to be indemnified and/or advanced expenses in accordance with the Amneal or its Subsidiaries corporate or other organizational documents, any applicable insurance policy, and/or in accordance with this Agreement.
6.7 Remedies and Reformation . Without intending to limit the remedies available to Amneal , the Executive acknowledges that a breach of any of the covenants contained in this Section 6 may result in material and irreparable injury to Amneal for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat Amneal shall be entitled to a temporary restraining order and/or a preliminary or permanent injunction restraining the Executive from engaging in activities prohibited by this Section 6 or such other relief as may be required specifically to enforce any of the covenants in this Section 6. If for any reason it is held that the restrictions under this Section 6 are not reasonable or that consideration therefor is inadequate, such restrictions shall be interpreted or modified to include as much of the duration and scope identified in this Section as will render such restrictions valid and enforceable.
6.8 Violations . In the event of any material violation of the provisions of this Section 6, the Executive acknowledges and agrees that: (a) the post-termination restrictions contained in this Section 6 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation; (b) any severance payable which remains unpaid or other benefits yet to be received under Section 4.4.2 or 4.4.3 shall be forfeited by the Executive; and (c) any vested options not exercised as of the date of any violation of the provisions of this Section 6 shall be forfeited.
 
7.	INDEMNIFICATION; DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE	
During the Term and thereafter, Amneal shall indemnify and hold harmless the Executive
 
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and his heirs and representatives as, and to the extent, provided in the applicable Amneal organizational documents, a copy of which will be provided to Executive upon request. In addition, the Executive shall be entitled to enter into a form of indemnification agreement on terms and conditions no less favorable than the indemnification agreement entered into between Amneal and members of the Board. During the Term and for the applicable statute of limitations thereafter, Amneal shall also cover the Executive under its directors’ and officers’ liability insurance on the same basis as it covers other senior executive officers and directors of Amneal.
 
8.	MISCELLANEOUS	
8.1 Notices . All notices or communications hereunder shall be in writing, addressed as follows (or to such other address as either party may have furnished to the other in writing by like notice):
To Amneal:
Amneal Pharmaceuticals LLC
400 Crossing Boulevard, Third Floor
Bridgewater, New Jersey 08807
Facsimile No.: (908) 947-3144
Attn: Sheldon Hirt, Senior Vice President, General Counsel
Email: shirt@amneal.com
To the Executive, at the last address for the Executive on the books of Amneal, which is currently:                                                                                   .
All such notices shall be conclusively deemed to be received and shall be effective (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy or facsimile transmission, upon confirmation of receipt by the sender of such transmission, (iii) if sent by overnight courier, one business day after being sent by overnight courier, or (iv) if sent by registered or certified mail, postage prepaid, return receipt requested, on the fifth day after the day on which such notice is mailed.
8.2 Testing; Verification . As a condition of the Executive’s employment with Amneal, the Executive will be required to successfully complete Amneal’s standard onboarding procedures, including any background check and drug testing, the cost of which shall be paid by Amneal. In addition, to comply with Department of Homeland Security, the Executive will be required to provide verification of the Executive’s identity and legal right to work in the United States and must complete a Form I-9 within the first three (3) days of the Closing. Amneal shall notify the Executive of the identity of a clinic for drug testing that is local to the Executive, and the Executive hereby agrees to schedule an appointment with such clinic within forty-eight (48) hours of the date of this Agreement. In the event the Executive fails any such tests or such verification, which cannot be sufficiently explained by Executive or is not remedied or corrected by a subsequent test or verification at Employee’s expense, then Amneal shall have the right to terminate this Agreement for Cause under this Agreement.
8.3 Severability . Each provision of this Agreement shall be interpreted in such
 
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manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
8.4 Binding Effect; Benefits . The Executive may not delegate his duties or assign his rights hereunder. Except as explicitly provided in the Agreement, no rights or obligations of Amneal under this Agreement may be assigned or transferred by Amneal other than pursuant to a merger or consolidation in which Amneal is not the continuing entity, or a sale, liquidation or other disposition of all or substantially all of the assets of Amneal, provided that the assignee or transferee is the successor to all or substantially all of the assets or businesses of Amneal and assumes the liabilities, obligations and duties of Amneal under this Agreement, either contractually or by operation of law. Amneal further agrees that, in the event of any disposition of its business and assets described in the preceding sentence, they shall use their best efforts to cause such assignee or transferee expressly to assume the liabilities, obligations and duties of Amneal hereunder. This Agreement shall inure to the benefit of, and be binding upon, the Parties and their respective heirs, legal representatives, successors and permitted assigns.
8.5 Entire Agreement . This Agreement, collectively with the Exhibits hereto and the Proprietary Information Agreement, represents the entire agreement of the Parties with respect to the subject matter hereof and shall supersede any and all previous contracts, arrangements, proposed terms or understandings between the Parties. In addition, this Agreement shall supersede the employment agreement between the Executive and Impax as of the execution of this Agreement by Amneal and Executive, and the Executive agrees to execute such documents as reasonably determined necessary or appropriate to affect such supersession without triggering any severance under such employment agreement. This Agreement (including any of the Exhibits hereto) may be amended, modified or replaced at any time by mutual written agreement of the Parties. In the case of any conflict between any express term of this Agreement and any statement contained in any plan, program, arrangement, employment manual, memorandum or rule of general applicability of the Amneal, this Agreement shall control.
8.6 Withholding . The payment of any amount pursuant to this Agreement shall be subject to applicable withholding and payroll taxes, and such other deductions as may be required by applicable law.
8.7 Governing Law . This Agreement and the performance of the parties hereunder shall be governed by the internal laws (and not the law of conflicts) of the State of New Jersey.
8.8 Arbitration . Any dispute or controversy, including, but not limited to, discrimination claims and claims involving a class, arising under or in connection with this Agreement or the Executive’s employment with Amneal, other than injunctive relief under Section 6.7 hereof, shall be settled exclusively by arbitration, conducted before a single arbitrator in New Jersey (applying New Jersey law) in accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration Association then in effect.
 
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The decision of the arbitrator will be final and binding upon the parties hereto. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The parties acknowledge and agree that in connection with any such arbitration and regardless of outcome (a) each party shall pay all its own costs and expenses, including without limitation its own legal fees and expenses, and (b) joint expenses shall be borne equally among the parties. EACH PARTY WAIVES RIGHT TO TRIAL BY JURY.
8.9 Section 409A of the Code .
8.9.1 General . It is intended that the provisions of this Agreement comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and the regulations and guidance promulgated thereunder (collectively “ Code Section 409A ”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A, Amneal shall, upon the specific request of the Executive, use its reasonable business efforts to in good faith reform such provision to comply with Code Section 409A; provided, that to the maximum extent practicable, the original intent and economic benefit to the Parties of the applicable provision shall be maintained. Amneal shall timely use its reasonable business efforts to amend any plan or program in which the Executive participates to bring it in compliance with Code Section 409A.
8.9.2 Separation from Service; Six-Month Delay . A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “ Separation from Service ” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “ resignation ,” “ termination ,” “ termination of employment ” or like terms shall mean Separation from Service. If the Executive is deemed on the Date of Termination to be a “ specified employee ,” within the meaning of that term under Section (a)(2)(B) of Code Section 409A (“ Code Section 409(a)(2)(B) ”) and using the identification methodology selected by Amneal, from time to time, or if none, the default methodology, then with regard to any payment, the providing of any benefit or any distribution of equity made subject to this Section 8.10.2, to the extent required to be delayed in compliance with Code Section 409A(a)(2)(B), and any other payment, the provision of any other benefit or any other distribution of equity that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment, benefit or distribution shall not be made or provided prior to the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s Separation from Service or (ii) the date of the Executive’s death. On the first day of the seventh month following the date of the Executive’s Separation from Service or, if earlier, on the date of his death, (x) all payments delayed pursuant to this Section 8.10.2 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein and (y) all distributions of equity delayed pursuant to this Section 8.10.2 shall be made to the
 
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Executive. In addition to the foregoing, to the extent required by Code Section 409A(a)(2)(B), prior to the occurrence of both a Disability termination as provided in Section 4.1.2 hereof and the Executive’s becoming “disabled” under Code Section 409A, the payment of any compensation to the Executive under this Agreement shall be suspended for a period of six months commencing at such time that the Executive shall be deemed to have had a Separation from Service because either (A) a sick leave ceases to be a bona fide sick leave of absence, or (B) the permitted time period for a sick leave of absence expires (an “ SFS Disability ”), without regard to whether such SFS Disability actually results in a Disability termination. Promptly following the expiration of such six-month period, all compensation suspended pursuant to the foregoing sentence (whether it would have otherwise been payable in a single sum or in installments in the absence of such suspension) shall be paid or reimbursed to the Executive in a lump sum. On any delayed payment date under this Section 8.10.2, there shall be paid to the Executive or, if the Executive has died, to his estate, in a single cash lump sum together with the payment of such delayed payment, interest on the aggregate amount of such delayed payment at the Delayed Payment Interest Rate (as defined below) computed from the date on which such delayed payment otherwise would have been made to the Executive until the date paid. For purposes of the foregoing, the “ Delayed Payment Interest Rate ” shall mean the prime interest rate as reported in The Wall Street Journal as of the business day immediately preceding the payment date for the applicable delayed payment.
8.9.3 Expense Reimbursement . With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Internal Revenue Code and the regulations and guidance promulgated thereunder solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred.
8.10 Survivorship . Except as otherwise expressly set forth in this Agreement, upon the expiration of the Term, the respective rights and obligations of the parties shall survive such expiration to the extent necessary to carry out the intentions of the parties as embodied in this Agreement. This Agreement shall continue in effect until there are no further rights or obligations of the parties outstanding hereunder and shall not be terminated by either party without the express prior written consent of both parties.
8.11 Counterparts . This Agreement may be executed in counterparts (including by electronic transmission) which, when taken together, shall constitute one and the same agreement of the parties.
8.12 Amneal Representations . As of the Effective Date, Amneal represents and warrants to the Executive that (i) the execution, delivery and performance of this Agreement
 
24

(and the agreements referred to herein) by Amneal has been fully and validly authorized by all necessary corporate action, (ii) the officer or director signing this Agreement on behalf of Amneal is duly authorized to do so, (iii) the execution, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or decree or any agreement, plan or corporate governance document to which Amneal is a party or by which it is bound; and (iv) upon execution and delivery of this Agreement by the Executive and Amneal, it shall be a valid and binding obligation of Amneal enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.
[Signature Page Follows]
 
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IN WITNESS WHEREOF, Amneal has caused this Agreement to be duly executed and the Executive has hereunto set his hand, as of the date first set forth above.

Amneal Pharmaceuticals, Inc.	
	
By:                                                                                        	
Name:	
Title:	
 
Paul M. Bisaro	
 
Signature Page to Employment Agreement

Exhibit A
AMNEAL’S CODE OF CONDUCT

Amneal Pharmaceuticals LLC, and
Subsidiaries
Code of Conduct
Dear Colleagues:
Our success is grounded in our belief that the world is our family and we are forever accountable to the people who use our products, to our partners and colleagues, and most importantly, to each other. Included in this belief and accountability is our expectation that all of us adhere to the highest standards of integrity and ethics in everything we do.
This Code of Conduct is an essential tool to maintaining trust and accountability by guiding our actions. The Code is neither a comprehensive resource nor a substitute for sound judgment; it is an ethical guideline intended to drive integrity throughout Amneal. While words matter, our actions matter more. We must incorporate the specific content and the intent of these guidelines into our daily actions as we deliver on our commitments to each other, our customers, our business partners and the communities where we do business. Please read this Code carefully and understand its content. You are responsible for incorporating it into your daily activities. If you have questions or see violations speak to Human Resources or Legal Department to get answers. Thank you for your continued support in this critical endeavor.
Sincerely yours,
Chirag Patel, Co-CEO
Chintu Patel, Co-CEO
****
Purpose of the Amneal Code of Conduct
Amneal is built upon a foundation of the highest ethical standards. Our Code provides ethical guidelines as a framework for our actions and to promote:
 
•	 	honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships;	
 
•	 	full, fair, accurate, timely, and understandable disclosure in reports and documents we file with regulatory agencies and in our other public communications;	
 
•	 	compliance with applicable laws, rules, and regulations;	
 
•	 	the prompt internal reporting of violations of this Code; and	
 
•	 	accountability for adherence to this Code.	
Our Code applies to everyone at Amneal, including its directors, officers, and employees of Amneal, and its subsidiaries, as well as business partners and contractors who perform work on our behalf. This Code should guide your conduct in the course of our business. The principles described in this Code are general in nature and do not cover every situation that may arise. Use common sense and good judgment in applying this Code. If you have any questions about applying the Code, it is your responsibility to seek guidance. This Code is not the exclusive source of guidance and information regarding the conduct of our business. You should consult applicable policies and procedures in specific areas as they apply.
 
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You should not hesitate to ask questions about whether any conduct may violate the Code. In addition, you should be alert to possible violations of the Code by others and report suspected violations, without fear of any form of retaliation. Any employee who violates the standards in the Code may be subject to disciplinary action up to and including termination of employment and, in appropriate cases, civil legal action or referral for regulatory or criminal prosecution.
Our Responsibilities
As an Amneal employee, you are expected to comply with both the content and the intent of our Code. This means you must understand and comply with all of our policies, laws and regulations that apply to your job, even if you feel pressured to do otherwise. Our Code also requires you to seek guidance if you have questions or concerns and to cooperate fully in any investigation of suspected violations of the Code that may arise in the course of your employment. Periodically, you may be asked to provide a written certification that you have reviewed and understand Amneal’s Code of Conduct, comply with its standards, and are not personally aware of any violations of the Code by others. This certification is your pledge to live up to our Code and its expectations and to promptly raise concerns about any situation that you think may violate our Code. Employees who violate our Code put themselves, fellow employees, or Amneal at risk and are subjected to disciplinary action up to and including termination of employment.
Product quality
Amneal is committed to maintaining high quality of products. All employees must comply with all applicable laws and regulations regarding our research, development, manufacturing and distribution activities, including Good Clinical Practices, Good Manufacturing Practices, and Good Laboratory Practices, among other practices.
Safety
Each of us has a responsibility to report adverse events associated with our products. If you learn of an adverse event whether during work time or outside of office hours, you much, within 24 hours, report this information to the Drug Safety Department.
Making Good Decisions
In addition to complying with the requirements contained in Amneal policies, in specific situations, before taking any action each employee should consider the following questions, and unless the answer to each question is “YES”, the action should not be taken:
 
•	 	Is this action legal, ethical, and socially responsible?	
 
•	 	Does this action comply with both content and the intent of our Code?	
 
•	 	Will this action appear appropriate?	
 
•	 	Is it clear that Amneal would not be embarrassed or compromised if this action were to become known within Amneal or publicly?	
Following Laws and Regulations
It is Amneal’s policy to follow all laws and regulations in the countries and communities in which we conduct business. As we manufacture and sell our products across the United States and globally, this Code provides only an overview of our general principles. As an Amneal employee you are responsible to know the local policies of the facility at which you work and applicable local laws.
 
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Asking Questions and Reporting Concerns
If you know of or suspect a violation of applicable laws or regulations, this Code, or Amneal’s related policies, you have an obligation to immediately report it to the Human Resources or Legal Department.
Commitment to Non-Retaliation
Amneal prohibits retaliation, in any form, against anyone who, in good faith, reports violations or suspected violations of this Code, company policy, or applicable law, or who assists in the investigation of a reported violation. Acts of retaliation should be reported immediately to Human Resources or Legal Department.
Complying with the Code of Conduct
To maintain the highest standards of integrity, we must dedicate ourselves to complying with our Code, company policies and procedures and applicable laws and regulations. Violations of our Code not only damage Amneal’s standing in the communities we serve—they may also be illegal. Employees involved in violating our Code will likely face negative consequences. Amneal will take the appropriate disciplinary action in response to each case, up to and including termination. In addition, employees involved may be subject to government fines or criminal or civil liability.
Discrimination
Having a diverse workforce—made up of team members who bring a wide variety of skills, abilities, experiences and perspectives—is essential to our success. We embrace diversity of ethnicity, gender, generation, geography and thought. We are committed to the principles of equal employment opportunity, inclusion and respect. All employment-related decisions must be based on company needs, job requirements and individual qualifications. We do not tolerate discrimination against anyone—team members, customers, business partners or other stakeholders—on the basis of race, national origin, religion, age, color, sex, sexual orientation, gender identity, disability, or protected veteran status, marital status or any other characteristic protected by local, state, or federal laws, rules, or regulations or any other status protected by the laws or regulations in the locations where we operate. We comply with laws regarding employment of immigrants and noncitizens and provide equal employment opportunity to everyone who is legally authorized to work in the applicable country. We provide reasonable accommodations to individuals with disabilities and remove any artificial barriers to success. Report suspected discrimination right away to Human Resources or Legal Department and never retaliate against anyone who raises a good faith belief that unlawful discrimination has occurred.
Harassment
Every employee has a right to a work environment free from harassment, regardless of whether the harasser is a co-worker, supervisor, manager, customer, vendor or visitor. Harassment can include any behavior (verbal, visual or physical) that creates an intimidating, offensive, abusive or hostile work environment, or unwelcome conduct, whether verbal, physical or visual that is based on gender, race, color, religion or any other legally protected classification or sexual harassment of a person of the same or opposite sex of the harasser. Harassment is strictly prohibited. As is the case with any violation of the Code, you have a responsibility to report any harassing behavior or condition regardless of if you are directly involved or just a witness. Retaliation for making a good faith complaint or for assisting in the investigation of a discrimination or harassment complaint is prohibited. Report the offending conduct to the Human Resources or the Legal Department.
Workplace Safety and Violence Prevention
Amneal strives to provide a safe and healthy workplace for employees, customers and visitors to all of our sites. All managers have responsibility for ensuring proper safety and health conditions for their employees. Management is committed to maintaining industry standards in all areas of employee safety and health, including industrial hygiene and safety. To support this commitment, employees are
 
Rev. June 30, 2016
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responsible for observing all safety and health rules, practices and laws that apply to their jobs, and for taking precautions necessary to protect themselves, their co-workers and visitors including wearing personal protective equipment and apparel as required. Employees are also responsible for immediately reporting accidents, injuries, occupational illnesses and unsafe practices or conditions to their supervisor. Threats, acts of violence and physical intimidation are strictly prohibited. Possession of weapons on the job or at any Amneal site is also strictly prohibited. As is the case with any violation of the Code, employees have a responsibility to report any unsafe behavior or condition regardless of whether they are directly involved or a witness.
Physical Assets and Resources
All employees must protect Amneal assets, such as laptops, telephones, mobile devices, IT networking resources, equipment, inventory, supplies, cash and business information. Treat company assets with the same care you would if they were your own. Use Amneal resources only to conduct company business. No employee may commit theft, fraud or embezzlement, or misuse company property for any reason. Use of these resources, whether in the office or at home, is not private. Amneal may monitor individual use of network services, including email and visits to specific websites, as permitted by law.
Substance Abuse
Amneal requires employees to work free from the influence of any substance, including drugs and alcohol, preventing them from conducting work activities safely and effectively. Amneal reserves the right to have any employee tested if there is a reasonable suspicion that he or she is under the influence of drugs or alcohol. If you are using prescription or non-prescription drugs that may impair alertness or judgment, or witness an employee impaired and therefore possibly jeopardizing the safety of others or Amneal’s business interests, you should report it immediately. If you have a problem related to alcohol or drugs, you are encouraged to seek assistance from programs which Amneal may offer and/or other qualified professionals.
Proprietary and Confidential Information
One of our most important assets is Amneal’s confidential information. As an employee of Amneal, you may learn of information about Amneal that is confidential and proprietary. You also may learn of information before that information is released to the general public. Employees who have received or have access to confidential information should take extreme care to keep this information confidential. Confidential information includes non-public information that might be of use to competitors or harmful to Amneal or its customers if disclosed, including but not limited to, business, marketing plans or activities, financial information, research and development activities, product pipeline, regulatory strategy, litigation strategy, manufacturing strategy, product lists, engineering and manufacturing ideas, designs, databases, customer lists, pricing strategies, personnel data, personally identifiable information pertaining to our employees, customers or other individuals (including, for example, names, addresses, telephone numbers and social security numbers), and similar types of information provided to us by our customers, suppliers and partners. You are expected to keep confidential and proprietary information confidential unless and until that information is released to the public through approved channels (usually through a press release or a formal communication from a member of senior management). Every employee has a duty to refrain from disclosing to any person confidential or proprietary information about us or any other company learned in the course of employment here, until that information is disclosed to the public through approved channels. You should also take care not to inadvertently disclose confidential information. Materials that contain confidential information, such as memos, notebooks, computer disks and laptop computers, should be stored securely. Unauthorized posting or discussion of any information concerning our business, information or prospects on the internet is prohibited. You may not discuss our business, information or prospects in any chat room, regardless of whether you use your own name or a pseudonym. All company emails, voicemails and other communications are presumed confidential, are
 
Rev. June 30, 2016
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company property and should not be forwarded or otherwise disseminated outside of Amneal, except where required for legitimate business purposes. The obligation to protect confidential information of Amneal continues even after cessation of employment.
Protecting Customer/Third Party Information
Keeping customer information secure and using it appropriately is a top priority for Amneal. We must safeguard any confidential information shared with us by customers or third parties. We must also ensure that such information is used only for the reasons for which the information was gathered, unless further use is allowed by law. Customer or third party information includes any information about a specific customer/third party, including such things as name, address, phone numbers, financial information, etc. We do not disclose any information about a third party without first obtaining written approval, unless required by law or regulation (e.g. a court-issued subpoena).
Intellectual Property and Protecting IP
As an employee, the work product you create for Amneal belongs to Amneal. This work product includes but is not limited to inventions, discoveries, ideas, trade secrets, know-how, improvements, software programs, artwork, and works of authorship. This work product is Amneal’s property (it does not belong to individuals) if it is created or developed, in whole or in part, on company time, as part of your duties or through the use of company resources or information. Additionally, to ensure that Amneal receives the benefit of work done by outside consultants, it is essential that an appropriate agreement be in place before any work begins with third parties.
We value new product or process for the preparation of the same and business ideas, concepts, and other information that we produce. When we do not identify or otherwise protect this intellectual property, Amneal risks losing rights to it and the competitive advantages it offers. It is incumbent upon you to protect our intellectual property from illegal or other misuse by making sure it is affixed with or identified by appropriate trademark, service mark, copyright notice, confidential marking or patent marking (if applicable). Be sure to disclose to management any innovation developed on company time or using company information or resources, so that Amneal can decide whether to seek formal protection. Additionally, we must avoid infringing on the IP rights of others. Please remember not to:
 
•	 	disclose non-public intellectual property inappropriately or without approval from the Legal Department;	
 
•	 	use company resources or time to create or invent something unrelated to our business;	
 
•	 	use a previous employer’s intellectual property without that company’s permission;	
 
•	 	make unauthorized copies of software or licensed or confidential information;	
 
•	 	copy magazine/journal articles or other publications, unless you have explicit authority to do so;	
 
•	 	affix the trademark of another company to goods without proper authorization; and	
 
•	 	hire a competitor’s employee to obtain that competitor’s trade secrets.	
Antitrust and Fair Competition
It is our policy that all directors, officers, and employees comply with all antitrust and competition laws. International, Federal and State antitrust and competition laws prohibit efforts and actions to restrain or limit competition between companies that otherwise would be competing for business in the marketplace. You must be particularly careful when you interact with any employees or representatives of Amneal’s competitors. You should use extreme care to avoid any improper discussions with our competitors, especially at trade association meetings or other industry or trade events where competitors may interact. Under no circumstances should you discuss customer information, prospects, pricing, or other business terms with any employees or representatives of our competitors. If you are not careful, you could potentially violate antitrust and/or competition laws if you discuss or make an agreement with a competitor regarding:
 
Rev. June 30, 2016
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•	 	prices or pricing strategy;	
 
•	 	discounts;	
 
•	 	terms of our customer relationships;	
 
•	 	sales policies or sales practices;	
 
•	 	marketing plans;	
 
•	 	customer selection;	
 
•	 	allocating customers or market areas; or	
 
•	 	contract terms and contracting strategies.	
Agreements with competitors do not need to be written in order to violate applicable antitrust and competition laws. Informal, verbal, or implicit understandings (e.g. knowing winks) are also violations. Antitrust violations in the U.S. may be prosecuted civilly or criminally (as felonies) and can result in severe penalties for Amneal and any associate or other person who participates in a violation (e.g. the incarceration of an employee). As with all aspects of this Code, should you have questions about this you should contact the Legal Department.
Honest Advertising and Marketing
It is Amneal’s policy to comply with all laws and regulations governing the sales and marketing of our products throughout the world. It is our responsibility to accurately represent Amneal and our products in our marketing, advertising and sales materials. It is Amneal’s policy to advertise and promote its products only through programs and materials that have been formally approved by the Company to ensure compliance with applicable country, state and/or local laws and regulations. No employee is permitted to give unauthorized discounts, rebates, concessions, commissions or incentives, or bribes or other payments to obtain or retain business.
Anti-Money Laundering
Money laundering is a global problem with far-reaching and serious consequences. Money laundering is defined as the process of converting illegal proceeds so that funds are made to appear legitimate, and it is not limited to cash transactions. Complex commercial transactions may hide financing for criminal activity such as terrorism, illegal narcotics trade, bribery, and fraud. Involvement in such activities undermines our integrity, damages our reputation and can expose Amneal and individuals to severe sanctions. Amneal forbids knowingly engaging in transactions that facilitate money laundering or result in unlawful diversion. Anti-money laundering laws of the United States and other countries and international organizations require transparency of payments and the identity of all parties to transactions.
Anti-corruption/Anti-bribery
The United States and many other countries have laws that prohibit bribery, kickbacks, and other improper payments. No Amneal employee, officer, agent, or independent contractor acting on our behalf may offer or provide bribes or other improper benefits in order to obtain business or an unfair advantage. A bribe is defined as directly or indirectly offering anything of value (e.g., gifts, money, or promises) to influence or induce action, or to secure an improper advantage. The Foreign Corrupt Practices Act and other U.S. laws prohibit payment of any money or anything of value to a foreign official, foreign political party (or official thereof), or any candidate for foreign political office for the purposes of directing, obtaining or retaining business. We expect all employees, officers, agents, and independent contractors acting on behalf of Amneal to strictly abide by these laws. All employees are required to comply strictly with the United States Foreign Corrupt Practices Act (the “FCPA”). In essence, no employee shall make or promise to make, directly or indirectly, any payment of money or object of value to any foreign official
 
Rev. June 30, 2016
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of a government, political party, or a candidate for political office for the purpose of inducing or influencing actions in any way to assist Amneal in obtaining or retaining business for or with Amneal. A bribe is giving anything of value that would improperly influence or appear to improperly influence the outcome of a transaction. “Anything of value” is very broadly defined and can include such things as:
 
•	 	cash;	
 
•	 	gifts;	
 
•	 	meals;	
 
•	 	entertainment;	
 
•	 	travel and lodging;	
 
•	 	personal services;	
 
•	 	charitable donations;	
 
•	 	business opportunities;	
 
•	 	favors; and	
 
•	 	offers of employment.	
Gifts and Entertainment
Gifts and entertainment can create goodwill in our business relationships, but can also make it hard to be objective about the person providing them. Our choice of suppliers, vendors and partners must be based on objective factors like quality, cost, value, service and ability to deliver. We must avoid even the appearance of making business decisions based on gifts received through these relationships. Giving or accepting gifts of in frequent nominal value, as defined in local policy, are acceptable. Infrequent business entertainment is appropriate provided it’s not excessive and it does not create the appearance of impropriety or an actual conflict of interest. When giving gifts or offering to entertain a business partner, ensure that your offer does not violate the recipient’s own policies. If you work with public officials, be aware that even simple offers such as purchasing a meal or refreshments may be unacceptable or even against the law. Always contact the Legal Department before providing any gift or entertainment to a public official.
Trade Compliance
We comply with all United States federal import and export laws and regulations. These laws restrict transfers, exports, and sales of products or technical data from the United States to certain prescribed countries and persons as well as re-export of certain items from one non-U.S. location to another. Many countries in which we operate have similar laws and regulations. If you are involved in importing and exporting goods and data, you are responsible for knowing and following these laws.
Government Customers/Contracting
When doing business with federal, state, or local governments, we must ensure that all statements and representations to government procurement officials are accurate and truthful, including costs and other financial data. If your assignment directly involves working with the government, or if you are responsible for someone working with the government on behalf of Amneal, be alert to the special rules and regulations applicable to our government customers. Additional steps should be taken to understand and comply with these requirements. Any conduct that could appear improper must be avoided when dealing with government officials and employees. Payments, gifts, or other favors given to a government official or employee are strictly prohibited as it may appear to be a means of influence or a bribe. Failure to avoid these activities may expose the government agency, the government employee, Amneal, and you to substantial fines and penalties. For these reasons, any sale of our products or services to any federal, state, or local government entity must be in accordance with Amneal policies.
 
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Maintain Accurate Financial Records/Internal Accounting Controls
Accurate and reliable records are crucial to our business. We are committed to maintaining accurate company records and accounts in order to ensure legal and ethical business practices and to prevent fraudulent activities. We are responsible for helping ensure that the information we record, process, and analyze is accurate, and recorded in accordance with applicable accounting or legal principles. We also need to ensure that it is made secure and readily available to those with a need to know on a timely basis. Company records include sales information, payroll, timecards, travel and expense reports, e-mails, accounting and financial data, measurement and performance records, electronic data files and all other records maintained in the ordinary course of our business. All company records must be complete, accurate, and reliable in all material respects. There is never a reason to make false or misleading entries. Undisclosed or unrecorded funds, payments, or receipts are inconsistent with our business practices and are strictly prohibited.
Avoiding Conflicts of Interest
We have an obligation to make sound business decisions in the best interests of Amneal without the influence of personal interests or gain. Amneal requires you to avoid any conflict, or even the appearance of a conflict, between your personal interests and the interests of Amneal. A conflict exists when your interests, duties, obligations or activities, or those of a family member or close friend are, or may be, in conflict or incompatible with the interests of Amneal. Should any business or personal conflict of interest arise, or even appear to arise, you should disclose it immediately to the Human Resources or Legal Department for review. In some instances, disclosure may not be sufficient and we may require that the conduct be stopped or that actions taken be reversed where possible. As it is impossible to describe every potential conflict, we rely on you to exercise sound judgment, to seek advice when appropriate, and to adhere to the highest standards of integrity. Every employee, officer, and director of Amneal is expected to act in the best interests of Amneal and to protect our reputation from any conflicts. We should also be sensitive to even the appearance of a conflict. This means that employees, officers, and directors should avoid any investment, interest, association, or activity that may cause others to doubt their or Amneal’s fairness or integrity, or that may interfere with their ability to perform job duties objectively and effectively. Many potential conflicts of interest can be prevented or remedied by making full disclosure of the situation to your supervisor and functional leader. Our supervisors and leaders are responsible to ensure that Amneal’s interests are protected from conflicts of interest. The following activities could represent conflicts of interest:
 
•	 	owning, directly or indirectly, a significant financial interest in any entity that does business, seeks to do business, or competes with Amneal;	
 
•	 	holding a second job that interferes with your ability to do your regular job;	
 
•	 	employing, consulting, or serving on the board of a vendor, competitor, customer, supplier, or other service provider;	
 
•	 	hiring a vendor, supplier, distributor, or other agent managed or owned by a relative or close friend;	
 
•	 	soliciting or accepting any cash, gifts, entertainment, or benefits that are more than modest, as defined or described in local policies, in value from any vendor, competitor, supplier, or customer; and	
 
•	 	taking personal advantage of corporate opportunities.	
Insider Trading
You are prohibited from trading or enabling others to trade stock of another company such as a customer, supplier, competitor, potential acquisition or alliance partner while in possession of material nonpublic information (“Material Information”) about that company. Material Information is any information that an investor might consider important in deciding whether to buy, sell, or hold securities. Information is considered non-public if it has not been adequately disclosed to the public. All non-public information
 
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about Amneal or about companies with which we do business is considered confidential information. To use Material Information in connection with buying or selling securities, including tipping others who might make an investment decision on the basis of this information, is not only unethical, it is illegal. We must exercise the utmost care when handling Material Information. At times we may receive confidential information before it is made publicly available to ordinary investors of other companies. Some of that information may be considered significant or material, and could be important to an investor deciding to buy, sell or hold securities.
Relationships with Regulators
Given the highly regulated environment in which we operate, we must be vigilant in meeting our responsibilities to comply with relevant laws and regulations. We expect full cooperation of our employees with our regulators and to respond to their requests for information in an appropriate and timely manner. You should be alert to any changes in the law or new requirements that may affect our business and be aware that new products or services may be subject to special legal and/or regulatory requirements. If you become aware of any significant regulatory or legal concern, you must immediately bring them to the attention of our functional leader and the Legal Department. We are committed to maintaining an open, constructive and professional relationship with regulators on matters of regulatory policy, submissions, compliance, and product performance.
Communicating with External Parties
Amneal employees are not authorized to speak with the media, investors, and analysts on behalf of Amneal unless authorized by Laurene Isip, Senior Director Corporate Communications. Unless specifically authorized, do not give the impression that you are speaking on behalf of Amneal in any communication that may become public. This includes posts to online forums, social media sites, blogs, chat rooms, and bulletin boards. This policy also applies to comments to journalists about specific matters that relate to our business, as well as letters to the editor and endorsements of products or services.

Exhibit B
(To be signed on or within 45 days after termination. Please do not sign before the date of termination.)
RELEASE AGREEMENT
(Age 40 or Older)
In exchange for my receipt of the severance payments and benefits set forth in Sections 4.4.2 and 4.4.3 of my Employment Agreement, dated [            ], 201[    ] (as amended, my “ Employment Agreement ”), with Amneal Pharmaceuticals, Inc. (“ Amneal ”), and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, I do hereby release and forever discharge the “ Releasees ” hereunder, consisting of Amneal and its Subsidiaries (as defined below), and, in their capacity as such, each of their predecessors, successors, partners, directors, officers, employees, attorneys and agents, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “ Claims ”), which I now have or have ever had against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date I sign this Release Agreement. The Claims released herein include, but are not limited to: (1) all claims arising out of or in any way related to my service or employment relationship with any of the Releasees or the termination of that relationship; (2) all claims related to my compensation or benefits from the any of the Releasees, including salary, bonuses, commissions, Paid Time Off, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in Amneal or its Subsidiaries (collectively, the “ Group Entities ”); (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including (without limitation) claims for discrimination, harassment, retaliation, attorneys’ fees, and other claims arising under the Age Discrimination in Employment Act, as amended (the “ ADEA ”); Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Civil Rights Act of 1866; the Family and Medical Leave Act of 1993, as amended; the Americans with Disabilities Act of 1990, as amended; the False Claims Act, as amended; the Employee Retirement Income Security Act, as amended; the Fair Labor Standards Act, as amended; the Sarbanes-Oxley Act of 2002; the Worker Adjustment Notification and Retraining Act; the New Jersey Law Against Discrimination; the New Jersey Conscientious Employee Protection Act; the New Jersey Family Leave Act; the New Jersey Wage Payment Law; the New Jersey Wage and Hour Law; the New Jersey Equal Pay Act; and retaliation claims under the New Jersey Workers’ Compensation Law. For purposes of this Release Agreement, the term Subsidiary shall mean any entity with voting equity securities that is more than 50% controlled by Amneal as the parent company or the holding company.
Notwithstanding the foregoing, this Release Agreement shall not be construed in any way to release any Claim (i) to payments and benefits under Section 4.4.2 and 4.4.3 of my

Employment Agreement, (ii) to accrued or vested benefits I may have, if any, as of the date hereof under any applicable plan, policy, practice, program, contract or agreement with any Group Entity, (iii) for indemnification and/or advancement of expenses, arising under any indemnification agreement between me and any Group Entity or under the bylaws, certificate of incorporation or other similar governing document of any Group Entity, (iv) to any rights or benefits that may not be waived pursuant to applicable law, including, without limitation, any right to unemployment insurance benefits, or (v) to my right to communicate directly with, cooperate with, or provide information to, any federal, state or local government regulator.
For the avoidance of doubt, nothing in this Release will be construed to prohibit me from filing a charge with, reporting possible violations to, or participating or cooperating with any governmental agency or entity, including but not limited to the EEOC, the Department of Justice, the Securities and Exchange Commission, the National Labor Relations Board, Congress, or any agency Inspector General, or making other disclosures that are protected under the whistleblower, anti-discrimination, or anti-retaliation provisions of federal, state or local law or regulation; provided, however , that I may not disclose information of the Releasees that is protected by the attorney-client privilege, except as otherwise required by law. I do not need the prior authorization of the applicable Releasee to make any such reports or disclosures, and I am not required to notify the applicable Releasee that I have made such reports or disclosures.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA, and that the consideration given under my Employment Agreement for the waiver and release I am providing herein is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) my waiver and release do not apply to any rights or claims that may arise after the date I sign this Release Agreement; (b) I should consult with an attorney prior to signing this Release Agreement (although I may choose voluntarily not to do so); (c) I have forty-five (45) days to consider this Release Agreement (although I may choose voluntarily to sign this Release Agreement before the end of the 45-day period) and to return the signed Release Agreement to Amneal; (d) I have seven (7) days following the date I sign this Release Agreement (the “ Revocation Period ”) to revoke the Release Agreement as described below; and (e) this Release Agreement shall not be effective until the date upon which the Revocation Period has expired, which shall be the eighth day after I sign this Release Agreement (the “ Effective Date ”). I understand and agree that if I choose to revoke this Release Agreement, I must deliver notice of such revocation in writing, by personal delivery, email or mail, to [NAME], [TITLE] (            @            .com) at Amneal, [ADDRESS], no later than 5:00 p.m. Pacific Time on the last day of the Revocation Period. If mailed, the revocation must be properly addressed and postmarked no later than the last day of the Revocation Period.
I represent that I have no lawsuits, claims or actions pending in my name, or on behalf of myself or any other person or entity, against any of the Releasees. I agree that I will not voluntarily provide assistance, information or advice, directly or indirectly (including through agents or attorneys), to any person or entity in connection with any actual or potential claim or cause of action of any kind against the Releasees and I shall not induce or encourage any person or entity to do so, unless compelled or authorized to do so by law. Notwithstanding the

foregoing, I retain the right to file a charge with the Equal Employment Opportunity Commission and equivalent federal, state and local agencies, and to cooperate with investigations by any such agencies.
I acknowledge and represent that I have not suffered any discrimination or harassment by any of the Releasees on account of race, gender, national origin, religion, marital or registered domestic partner status, sexual orientation, age, disability, veteran status, medical condition or any other characteristic protected by applicable law. I acknowledge and represent that I have not been denied any leave, benefits or rights to which I may have been entitled under the FMLA or any other federal or state law, and that I have not suffered any job-related wrongs or injuries for which I might be entitled to compensation or relief. I further acknowledge and represent that, other than the benefits that will be provided to me pursuant to Sections 4.4.2 and 4.4.3 of my Employment Agreement, I have been paid all wages, bonuses, compensation, benefits and other amounts that any of the Releasees has ever owed to me, and I am not entitled to any additional compensation, severance or benefits after the date on which my employment with Amneal terminated, with the sole exception of any benefit the right to which has vested under the express terms of an Amneal benefit plan document.
In addition, I hereby acknowledge my continuing obligations under my Employee Confidentiality, Non-Solicitation and Ownership of Inventions Agreement with Amneal and under Section 6 of the Employment Agreement, including (without limitation) my obligations not to use or disclose any proprietary or confidential information of the Group Entities. Notwithstanding anything herein or in my Employee Confidentiality, Non-Solicitation and Ownership of Inventions Agreement with Amneal, I acknowledge and I agree that, pursuant to 18 USC Section 1833(b), I will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
I agree that if I commence any suit arising out of, based upon, or relating to any of the Claims released under this Release Agreement, then I will pay to the Releasees, and each of them, in addition to any other damages caused to the Releasees thereby, all attorneys’ fees incurred by the Releasees in defending or otherwise responding to such suit; provided, that, this paragraph shall not apply with respect to any compulsory counterclaims within the meaning of Rule 13(a) of the Federal Rules of Civil Procedure, asserted by me against the Releasees bringing claims against me.
I agree that if any provision of this Release Agreement is determined to be invalid or unenforceable, in whole or in part, this determination will not affect any other provision of this Release Agreement and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible under applicable law. I understand that this Release Agreement, together with my Employment Agreement, constitutes the complete, final and exclusive embodiment of the entire agreement between Amneal and me with regard to the subject matter hereof. I am not relying on any promise or representation by Amneal that is not expressly stated therein.

I acknowledge that in order for this Release Agreement to become effective, I must sign this Release Agreement and return it by email or mail to [NAME], [TITLE] (            @            .com) at Amneal, [ADDRESS], on or within forty-five (45) days after the date on which my employment terminated, and I must not exercise my right to revoke the Release Agreement as described above.
I have carefully read and fully understand this Release Agreement, and agree to be bound by its terms.

Printed Name:	 	 	

Signature:	 	 	

Date:	 	 	

Exhibit C
Proprietary Information Agreement

EMPLOYEE CONFIDENTIALITY, NON-SOLICITATION, AND
OWNERSHIP OF INVENTIONS AGREEMENT
THIS      EMPLOYEE CONFIDENTIALITY, NON-SOLICITATION, AND OWNERSHIP OF INVENTIONS AGREEMENT (the “ Agreement ”) is entered into this          day of              ,          by and between Amneal Pharmaceuticals LLC, (together with any past or present subsidiaries, “ Employer ”), and                  (“ Employee ”).
RECITALS
A.     Employer owns certain valuable Confidential Information (as defined below), some or all of which is used by or available to Employee in the ordinary course of his/her duties as an employee of the Employer, and protecting the Confidential Information is critical to the Employer’s success and ability to continue as a going concern; and
B.     Employer has established a policy of requiring all employees and contractors having access to its Confidential Information to enter into confidentiality agreements, and Employee acknowledges the importance of protecting the Confidential Information and is willing to enter into and be bound by this Agreement for that purpose.
AGREEMENT
NOW, THEREFORE , in consideration of the hiring and employment by the Employer of Employee, and the mutual promises set forth herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties intending to be legally bound hereby agree as follows:
1.     Recitals . The foregoing recitals are incorporated herein and made a substantive part of this Agreement.
2.     Applicability . The terms and conditions of this Agreement apply to Employee in the ordinary course of his/her duties as an employee of Employer.
3.     Confidential Information . For purposes of this Agreement, “ Confidential Information ” means all information or material of the Employer that is proprietary and confidential, including but not limited to the following types of information and material, as it may have existed in the past, currently exist or be planned, anticipated or exist in the future: (i) trade secrets, product specifications, data, know-how, formulae, formulations, compositions, designs, sketches, devices, photographs, graphs, drawings, samples, discoveries, inventions and ideas, improvements, research and development, methods and processes, customer lists, customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer and database technologies, systems, structures, and architectures, discoveries, concepts, financial information and statements, marketing and pricing strategies and decisions, financial projections and budgets, historical and projected sales, capital spending, budgets and plans, the terms of contracts to which the Employer is or has been a party, the names and backgrounds of key personnel, personnel training
 
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techniques and materials, and any other information concerning the business and affairs of the Employer; (ii) notes, analyses, compilations, studies, summaries and other material prepared by or for the Employer or any employee or consultant of the Employer, including without limitation Employee, containing or based, in whole or in part, on any information included in the foregoing; (iii) the knowledge and ability to put and use together various individual elements of Confidential Information and/or public information when such knowledge and ability has been learned or developed during Employee’s employment with the Employer, whether or not on the Employer’s premises; and (iv) information and materials received by the Employer from third parties in confidence. In addition, protection of the Employer’s trade secrets as referenced above are in addition to, and not a substitute for, the “trade secrets” protected by any applicable state statute.
4.     Confidentiality . Employee agrees Employee shall not disclose to others, nor shall Employee use for Employee’s or another’s benefit, any such Confidential Information, either during Employee’s employment with the Employer or thereafter. Employee shall use Confidential Information only for the benefit of the Employer within the scope of Employee’s assigned employment duties. Except as authorized by the Employer in advance and in writing, Employee agrees (i) not to disclose Confidential Information to any entity or person not employed or retained by the Employer and (ii) not to use, transfer, or assist others in using the Confidential Information or any other property of the Employer for any purpose other than in furtherance of the business of the Employer.
5.     Exceptions .
a.     The obligations of confidentiality of Section 4 hereof do not apply to any part of the Confidential Information which Employee can demonstrate by reliable written evidence (i) was, or becomes generally available to the public other than through a breach of this Agreement by Employee; or (ii) has been acquired by Employee on a non-confidential basis from any third party having a lawful right to disclose it to Employee; or (iii) was, or is, developed by Employee without reliance on the Confidential Information; or (iv) Employee is required by law to disclose, subject to the provisions of (b) below; or (v) was already in the possession of Employee.
b.     If, pursuant to a court or other legal order, Employee is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any information supplied to Employee during the course of Employee’s employment with Employer, it is agreed that Employee will provide Employer with prompt written notice of such request(s) or requirement (prior to complying with such disclosure request or requirement) so that Employer may seek an appropriate protective order and/or provide a limited waiver of Employee’s compliance with the provisions of this Agreement solely with respect to the referenced order.
c.     If Employee relies upon a fact or facts described in part (a) of this paragraph as the basis for disclosure of the Confidential Information, Employee bears the burden of proof with respect to the fact or facts relied upon.
 
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6.     Non-Solicitation of Employees .      Employee acknowledges that but for Employee’s employment with the Employer, Employee would not have had access to the Employer’s employees and the Confidential Information regarding same. Employee agrees that during the course of Employee’s employment and for a period of one (1) year after the cessation of Employee’s employment for any reason, Employee shall not, directly or indirectly, solicit on Employee’s behalf or on behalf of any individual or entity competing with or seeking to compete with the Employer, or directly or indirectly, assist any such individual or entity in soliciting, any employees of the Employer to leave the employ or in any other way modify or alter their respective employment or business relationship with the Employer. Employee agrees that if Employee violates any of the restrictions contained in this paragraph, the restrictive period provided for shall be increased by the period of time from the commencement of any such violation until the time such violation shall be cured by Employee; or, in the event the Employer seeks judicial enforcement of this Agreement, for a period of one (1) year from the date of any Court order enforcing the Agreement.
7.     Employer’s Ownership of Inventions and Confidential Information .     Employee agrees to immediately disclose to the Employer all Confidential Information developed in whole or in part by him/her during the term of Employee’s employment with the Employer. All right, title and interest in and to the Confidential Information including, without limitation, all intellectual property, inventions, improvements, and derivative works conceived, reduced to practice, participated in or made by Employee during his/her employment with the Employer (regardless of whether such inventions or improvements are made by Employee during his/her hours of employment or at the Employer’s facilities), are and shall remain the exclusive property of the Employer. Accordingly, Employee agrees to and hereby does grant and assign to Employer all right, title and interest in and to all Confidential Information existing now or in the future upon its creation. Notwithstanding the foregoing, Employee shall without further consideration undertake any reasonable action requested by the Employer to confirm or secure the Employer’s rights in the Confidential Information including, without limitation, the execution and delivery of conveyance documents.
8.     Records and Other Employer Property .     At the Employer’s request, or upon termination of Employee’s employment with Employer, whichever is sooner, Employee agrees to turn over to Employer all notes, data, tapes, lists, reference items, sketches, drawings, memoranda, records and other materials in any way containing, constituting or relating to any Confidential Information, and other documents which are in Employee’s possession or control belonging to Employer or relating to its business.
9.     Records .     At the Employer’s request, or upon termination of Employee’s employment with Employer, Employee agrees to turn over to Employer all notes, data, tapes, lists, reference items, sketches, drawings, memoranda, records and other materials in any way containing, constituting or relating to any Confidential Information, and other documents which are in Employee’s possession or control belonging to Employer or relating to its business.
10.     Miscellaneous .     This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes any previous or contemporaneous oral or written communications, representations, understandings or agreements with the Employer or any representative of the Employer regarding the subject matter hereof. If any provision of this
 
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Agreement is found to be invalid or unenforceable in any circumstance, such invalidity or unenforceability shall not affect the other provisions of this Agreement. This Agreement may not be modified or amended except by a writing signed by an authorized officer of the Employer. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, except to the extent the issue arising under the Agreement is governed by federal law, and any dispute arising out of this Agreement that cannot be settled amicably by the parties shall be adjudicated in the state or federal courts of the State of New Jersey, the exclusive jurisdiction and venue of which the parties hereby acknowledge and agree to. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. It is further understood and agreed that no failure or delay by a party hereto in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof, or the exercise of any right, power or privilege hereunder. The parties acknowledge and agree that the Employer shall be entitled to seek an injunction or other equitable relief to enforce its rights under this Agreement without the necessity of posting bond and shall be entitled to recover from Employee all costs incurred by it in enforcing its rights under this Agreement, including attorney’s fees.
IN WITNESS WHEREOF , the parties have executed this Employee Confidentiality, Non- Solicitation, And Ownership of Inventions Agreement as an instrument under seal as of the day and year first above written.

Amneal Pharmaceuticals LLC	 		 	Employee	
					
By:	 	 	 		 	By:	 	 	
Name:	 		 		 	Name:	 		
Date:	 		 		 	Date:	 		
 
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Exhibit 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (“ Agreement ”), entered into as of March 24, 2017, by and between Impax Laboratories, Inc., a Delaware corporation (the “ Company ”), and Paul M. Bisaro (the “ Executive ”).
WITNESSETH:
WHEREAS, the Executive possesses unique personal knowledge, experience and expertise;
WHEREAS, effective as of March 27, 2017 (the “ Effective Date ”), the Company desires to employ the Executive, and the Executive desires to be employed by the Company, upon the terms and subject to the conditions set forth in this Agreement; and
WHEREAS, the Company and the Executive desire to enter into this Agreement as to the terms and conditions of the Executive’s employment with the Company effective as of the Effective Date.
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
1.	EMPLOYMENT AND DUTIES	
1.1  Term of Employment . The Executive’s initial term of employment under this Agreement shall commence on the Effective Date and shall continue until the second anniversary of the Effective Date (the “ Initial Term ”), unless further extended or earlier terminated as provided in this Agreement. This Agreement will automatically be renewed for single one-year periods unless written notice of non-renewal (a “ Non-Renewal Notice ”) is provided by either party at least 90 days prior to the end of the Initial Term or the successive one-year period then in effect or unless earlier terminated as provided in this Agreement. Neither non-renewal of this Agreement for additional periods after the second anniversary of the Effective Date, nor expiration of this Agreement as a result of such non-renewal, shall, by itself, result in termination of the Executive’s employment. The period of time between the Effective Date and the termination of the Executive’s employment under this Agreement or the expiration of this Agreement, whichever is earlier, shall be referred to herein as the “ Term. ”

1.2  General .
1.2.1 During the Term, the Executive shall have the titles of President and Chief Executive Officer of the Company and shall have general supervision of all of the departments and business of the Company and shall prescribe the duties of all other officers and employees of the Company and such other authorities, duties and responsibilities as are prescribed by the Company’s bylaws and as may from time to time be delegated to him by the Board of Directors of the Company (the “ Board ”). The Executive shall faithfully and diligently discharge his duties hereunder and use his best efforts to implement the policies established by the Board from time to time. During the Term, the Executive shall be the highest ranking executive of the Company and no other officer will be appointed with authority over the Executive, and the Executive shall report directly to the Board.
1.2.2 The Executive shall devote all of his business time, attention, knowledge and skills faithfully, diligently and to the best of his ability, in furtherance of the business and activities of the Company; provided , however , that nothing in this Agreement shall preclude the Executive from devoting reasonable periods of time required for:
(i) serving as a director or member of a committee, in each case, in a non-lead, non-chair role, of up to two (2) publicly traded corporations and up to one (1) private organization or corporation, in each case, that does not, in the good faith determination of the Board, compete with the Company or otherwise create, or could create, in the good faith determination of the Board, a conflict of interest with the business of the Company;
(ii) delivering lectures, fulfilling speaking engagements, and any writing or publication relating to his area of expertise; provided , however , that any fees, royalties or honorariums received therefrom shall be promptly turned over to the Company;
(iii) engaging in professional organization and program activities;
 
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(iv) managing his personal passive investments and affairs; and
(v) participating in charitable or community affairs;
provided that such activities do not materially, individually or in the aggregate, interfere with the due performance of his duties and responsibilities under this Agreement or create a conflict of interest with the business of the Company, as determined in good faith by the Board. Notwithstanding the foregoing, the Executive shall be permitted to continue to serve on the boards of directors upon which he serves as of the Effective Date, provided, that he takes all reasonably necessary actions to terminate any such service that violates this Section 1.2.1 on or prior to the three-month anniversary of the Effective Date and, in the interim, shall cooperate with the Board to limit any interference, conflict or violation. The Company represents that, based on current facts and circumstances, for the purposes of this Section 1.2 and Section 6.3, the Company acknowledges and accepts the Executive’s service on the boards of directors of Allergan plc and Zoetis, Inc.
1.2.3 The Executive shall obtain a comprehensive medical examination every two years during the Term, and the Company shall reimburse the Executive the cost thereof to the extent not reimbursed by health insurance.
1.2.4 The Board shall appoint the Executive as a member of the Board no later than the first regularly scheduled meeting of the Board following the Executive’s commencement of employment. At or prior to such meeting, the Board shall amend the Company’s bylaws to increase the number of authorized directors to nine. Thereafter, during the Term, at each applicable annual meeting of the Company’s stockholders, the Board shall nominate and recommend the election of the Executive by the Company’s stockholders as a director. Upon Termination for any reason under this Agreement or upon the expiration of the Term of this Agreement, the Executive shall resign immediately upon request of the Board from all officer and director positions held by him with the Company and its affiliates.
 
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1.3  Reimbursement of Expenses . During the Term, the Company shall pay the reasonable expenses incurred by the Executive in the performance of his duties hereunder, including, without limitation, those incurred in connection with business related travel (including, in the discretion of Executive, first class or business class travel), or entertainment, or, if such expenses are paid directly by the Executive, the Company shall promptly reimburse him for such payments, provided that the Executive properly accounts for such expenses in accordance with the Company’s business expense reimbursement policy. To the extent any such reimbursements (and any other reimbursements of costs and expenses provided for herein) are includable in the Executive’s gross income for Federal income tax purposes, all such reimbursements shall be made no later than March 15 of the calendar year next following the calendar year in which the expenses to be reimbursed are incurred.
 
2.	COMPENSATION	
2.1  Base Salary . During the Term, the Executive shall be entitled to receive a base salary at the annual rate of $850,000, subject to increase, or decrease, only if salary decreases are concurrently implemented across the senior executives of the Company, as determined by the Board or its Compensation Committee from time to time in its discretion, payable in accordance with the payroll practices of the Company (the “ Base Salary ”).
2.2  Incentive Bonuses . In addition to the Base Salary, during the Term the Executive shall participate in the Company’s management bonus program whereby the Executive will be eligible to receive an annual cash incentive bonus based upon a percentage of the Base Salary and attainment of goals established in writing by the Board or its Compensation Committee at the beginning of each year (the “ Incentive Bonus ”) for each completed calendar year (subject to Section 4.4 hereof) of service with the Company. Such bonus shall be paid within 2-1/2 months following the end of the calendar year to which it relates, subject to Executive’s continuous employment through the last day of the calendar year to which such bonus relates. The Executive’s Incentive Bonus for 2017 (targeted at a minimum of 100% of the Base Salary and potentially up to 150% of the Base Salary depending upon the achievement of certain business and individual objectives and criteria) will be prorated based on the number of days elapsed in the year before and after the Effective Date.
 
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2.3  Stock Option Award . Subject to approval by the Board, on the Effective Date or as soon as reasonably practicable thereafter, the Company shall grant to the Executive an option (the “ Option ”) to purchase 850,000 shares of Company common stock under, or on substantially the same terms as, its Third Amended and Restated 2002 Equity Incentive Plan, as may be amended from time to time (the “ Plan ”). The Option shall have an exercise price per share equal to the closing trading price of Company common stock on the date of grant. The Option shall vest and become exercisable with respect to 25% of the shares subject to the Option on each of the first four anniversaries of the Effective Date, in each case, subject to Executive’s continued employment to the Company through the applicable vesting date. The Option will otherwise be subject to the terms and conditions of the Plan and the Company’s standard form of stock option agreement or terms and conditions substantially similar thereto. During the Term, the Executive shall be eligible to receive such other grants of equity awards in such amounts and subject to such terms as determined by the Compensation Committee in its sole discretion.
2.5  Additional Compensation . During the Term, in addition to the foregoing, the Executive shall be eligible to receive such other compensation as may from time to time be awarded him by either the Board or the Compensation Committee in its sole discretion.
 
3.	EMPLOYEE BENEFITS	
During the Term, the Executive shall be entitled to paid time off generally made available to executive personnel of the Company and to participate in and have the benefit of all group life, disability, hospital, surgical and major medical insurance plans and programs and other employee benefit plans and programs as generally are made available to executive personnel of the Company, as such benefit plans or programs may be amended or terminated in the sole discretion of the Board and with the concurrence of the Compensation Committee, from time to time. The Executive shall accrue up to twenty (20) days paid time off each calendar year which will accrue in accordance with the Company’s Paid Time Off (PTO) & Holiday Policy.
 
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4.	TERMINATION OF EMPLOYMENT	
4.1  General . The Executive’s employment under this Agreement may be terminated without any breach of this Agreement only on the following circumstances:
4.1.1  Death . The Executive’s employment under this Agreement shall terminate upon his death.
4.1.2  Disability . If the Executive suffers a Disability (as defined below), the Company may terminate the Executive’s employment under this Agreement upon 30 days prior written notice; provided that the Executive has not returned to full time performance of his duties during such 30-day period. For purposes of this Agreement, “ Disability ” shall mean the Executive’s inability to perform his duties and responsibilities hereunder, with or without reasonable accommodation, due to any physical or mental illness or incapacity, which condition either (i) has continued for a period of 180 days (including weekends and holidays) in any consecutive 365-day period, or (ii) is projected by the Board in good faith after consulting with a doctor selected by the Company and consented to by the Executive (or, in the event of the Executive’s incapacity, his legal representative), such consent not to be unreasonably withheld, that the condition is likely to continue for a period of at least six consecutive months from its commencement.
4.1.3  Good Reason . The Executive may terminate his employment under this Agreement for Good Reason (as defined below) at any time on or prior to the 60th day after the occurrence of any of the Good Reason events set forth in the following sentence. For purposes of this Agreement, “ Good Reason ” shall mean the occurrence of any of the following events without the Executive’s consent and which is not cured by the Company upon written notice by the Executive, such notice to have been provided by the Executive within 30 days of any such event having occurred:
(i) any action or inaction by the Company constituting a material breach of the Agreement by the Company;
(ii) a material diminution of the authorities, duties or responsibilities of the Executive set forth in Section 1.2 above (other than temporarily while the Executive is physically or mentally incapacitated and unable to properly perform such duties, as determined by the Board in good faith);
 
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(iii) the loss of any of the titles of the Executive with the Company set forth in Section 1.2 above;
(iv) a material reduction by the Company in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus, but, except in the case of a reduction following a Change in Control (as defined below), not including a reduction in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus which is consistent with the reduction in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus imposed on all senior executives of the Company;
(v) the failure by the Board to, at the end of the applicable Board term, nominate or renominate the Executive to serve as a member of the Board (other than as a result of the Executive’s death or Disability, or because of a legal prohibition under applicable law or regulation);
(vi) the assignment to the Executive of duties or responsibilities that are negatively and materially inconsistent with any of his duties and responsibilities set forth in Section 1.2 hereof;
(vii) a material change in the reporting structure set forth in Section 1.2.1 hereof;
(viii) the delivery to the Executive by the Company of a Non-Renewal Notice; or
(ix) a Change in Control occurs.
4.1.4  Without Good Reason . The Executive may voluntarily terminate his employment under this Agreement without Good Reason upon written notice by the Executive to the Company at least 60 days prior to the effective date of such termination (which termination the Company may, in its sole discretion, make effective earlier than the date set forth in the Notice of Termination (as defined below)).
 
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4.1.5  Cause . The Company may terminate the Executive’s employment under this Agreement at any time for Cause (as defined below). For purposes of this Agreement, termination for “ Cause ” shall mean termination of the Executive’s employment because of the occurrence of any of the following as determined in good faith by the Board:
(i) the willful and continued failure by the Executive to substantially perform his obligations under this Agreement (other than any such failure resulting from the Executive’s incapacity due to a Disability); provided , however , that the Company shall have provided the Executive with a Notice of Termination specifying such failure and the Executive shall have been afforded at least 15 business days within which to cure same;
(ii) the indictment of the Executive for, or his conviction of or plea of guilty or nolo contendere to, a felony or any other crime involving moral turpitude or dishonesty;
(iii) the Executive’s willful misconduct in the performance of his duties hereunder (including theft, fraud, embezzlement, and securities law violations;
(iv) the Executive’s violation of the Company’s Code of Conduct or other written policies; provided , however , that the Company shall have provided the Executive with a Notice of Termination specifying such failure and the Executive shall have been afforded at least 15 business days within which to cure same; or
(v) the Executive’s willful misconduct other than in the performance of his duties for the Company (including theft, fraud, embezzlement, and securities law violations) that is actually or potentially materially injurious to the Company in the Company’s reasonable business judgement, monetarily or otherwise.
For purposes of this Section 4.1.5, no act or failure to act on the part of the Executive shall be considered “ willful ,” unless done, or omitted to be done, without reasonable belief that his action or omission was in, or not opposed to, the best interest of the Company (including its reputation). Prior to any termination for Cause, the Company shall provide the Executive with a Notice of Termination specifying the event constituting Cause and shall give the Executive the opportunity to appear before the Board to present his views on the Cause event. If, after such hearing, the majority of the full Board (excluding the Executive) does not support such termination, the Notice of Termination shall be rescinded. After providing the notice in the foregoing sentence, the Board may suspend the Executive with full pay and benefits until a final determination pursuant to this Section has been made.
 
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4.1.6  Without Cause . The Company may terminate the Executive’s employment under this Agreement without Cause immediately upon written notice by the Company to the Executive, other than for death or Disability.
4.1.7  Definition of Change in Control . For purposes of this Agreement, a “ Change in Control ” shall be deemed to occur upon any of the following events, provided that such an event is a Change in Control Event within the meaning of Code Section 409A (as defined below): (a) any “ person ” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the common stock), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities; (b) during any period of 12 consecutive months, the individuals who, at the beginning of such period, constitute the Board, and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the 12-month period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the Board; (c) a merger or consolidation of the Company with any other corporation or other entity, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (and held by persons that are not affiliates of the acquirer) continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of
 
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the Company or such surviving entity outstanding immediately after such merger or consolidation; provided , however , that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person (other than those covered by the exceptions in clause (a) of this Section 4.4.4) acquires more than 50% of the combined voting power of the Company’s then outstanding securities shall not constitute a Change in Control; or (d) the consummation of a sale or other disposition by the Company of all or substantially all of the Company’s assets, including a liquidation, other than the sale or other disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, more than 50% of the combined voting power of the outstanding voting securities of the Company immediately prior to the time of the sale or other disposition.
4.2  Notice of Termination . Any termination of the Executive’s employment by the Company or by the Executive (other than termination by reason of the Executive’s death) shall be communicated by written Notice of Termination to the other party of this Agreement. For purposes of this Agreement, a “ Notice of Termination ” shall mean a written notice which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide the basis for such termination.
4.3  Date of Termination . The “ Date of Termination ” shall mean (a) if the termination is the result of the Executive’s death, the date of his death, (b) if the termination is pursuant to Section 4.1.2 hereof, 30 days after the Notice of Termination is given (provided that the Executive shall not have returned to the performance of his duties on a full-time basis during such 30-day period), (c) if the termination is pursuant to Section 4.1.3 or Section 4.1.5 hereof, the date specified in the Notice of Termination after the expiration of any applicable cure period, (d) if the termination is pursuant to Section 4.1.4 hereof, the date specified in the Notice of Termination which shall be at least 60 days after the Notice of Termination is given, or such earlier date as the Company shall determine in its sole discretion, and (e) if the termination is pursuant to Section 4.1.6 hereof, the date on which the Notice of Termination is given.
 
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4.4  Compensation Upon Termination .
4.4.1  Termination for Cause or without Good Reason . If the Executive’s employment shall be terminated by the Company for Cause or by the Executive without Good Reason, the Executive shall receive from the Company: (a) any earned but unpaid Base Salary through the Date of Termination, paid in accordance with the Company’s standard payroll practices; (b) any Incentive Bonus earned but unpaid for a prior fiscal year, paid in accordance with Section 2.2 (including payment timing); (c) reimbursement for any unreimbursed expenses properly incurred and paid in accordance with Section 1.3 hereof through the Date of Termination; (d) payment for any accrued but unused vacation time in accordance with Company policy; (e) all stock options and restricted stock previously granted to the Executive that have vested in accordance with the terms of such grants; and (f) such vested accrued benefits, and other payments, if any, as to which the Executive (and his eligible dependents) may be entitled under, and in accordance with the terms and conditions of, the employee benefit arrangements, plans and programs of the Company as of the Date of Termination, other than any severance pay plan (such amounts and benefits set forth in clauses (a) though (f) being referred to hereinafter as the “ Amounts and Benefits ”), and the Company shall have no further obligation with respect to this Agreement other than as provided in Sections 6.5, 7 and 8 hereof. Any stock options and restricted stock previously granted to the Executive that have not vested in accordance with the terms of their grants as of the Date of Termination shall be forfeited as of the Date of Termination.
4.4.2  Termination as a result of Death, Disability, Without Cause or For Good Reason . If, prior to the expiration of the Term, the Executive resigns from his employment hereunder for Good Reason, his employment is terminated by reason of his death or the Company terminates the Executive’s employment hereunder without Cause or for reason of Executive’s Disability, then the Company shall pay or provide the Executive the Amounts and Benefits and, subject to Section 4.4.8:
 
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(i) Subject to Section 8.10.2, an amount equal to the sum of (x) the balance of the Base Salary due under this Agreement or two times the Base Salary as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), whichever is greater, plus (y) an amount equal to two times the average of the Incentive Bonus the Executive received from the Company for all fiscal years completed during the Term, with the aggregate amount due paid in equal installments on the Company’s normal payroll dates for a period of 12 months from the Date of Termination in accordance with the normal payroll practices of the Company, with each such payment deemed to be a separate payment for the purposes of Code Section 409A (as defined below);
(ii) in the event such resignation or termination occurs following the Company’s first fiscal quarter of any year, a pro rata portion of the Executive’s Incentive Bonus for the fiscal year in which the Executive’s termination occurs based on actual results for such year (determined by multiplying the amount of such Incentive Bonus which would be due for the full fiscal year, as determined in good faith by the Board, by a fraction, the numerator of which is the number of days during the fiscal year of termination that the Executive is employed by the Company and the denominator of which is 365), paid in accordance with Section 2.2 (including payment timing, “ Pro Rata Bonus ”); and
(iii) the continuation of all benefits for 24 months from the Date of Termination.
In addition, subject to Section 4.4.8, the vesting of all unvested stock options and restricted stock previously granted to the Executive shall be accelerated by (x) 24 months, in the case of a termination by the Company without Cause or resignation for Good Reason or (y) 12 months, in the case of a termination on account of Executive’s death or Disability, and any such stock options, notwithstanding any provision to the contrary in the option or the plan pursuant to which the option was granted, shall remain exercisable for a period of 12 months following the Date of Termination or, if earlier, until the original expiration date of the option.
 
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4.4.3  Termination Following Change in Control . Anything contained herein to the contrary notwithstanding, in the event the Executive resigns from his employment hereunder for Good Reason, the Company terminates the Executive’s employment hereunder without Cause or Executive’s employment terminates by reason of death or Disability, in each case, within 60 days preceding or 12 months following a Change in Control (as defined below), or the Term expires or is not renewed due to the Company’s delivery of a notice of nonrenewal and the Executive’s employment is then terminated without Cause within 12 months following a Change in Control, then the Company shall pay or provide the Executive the Amounts and Benefits and, subject to Section 4.4.8, a severance payment as follows:
(i) subject to Section 8.9.2, an amount equal to the sum of (x) the balance of the Base Salary due under this Agreement or two and one half times the Base Salary as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), whichever is greater, plus (y) an amount equal to two and one half times the average of the Incentive Bonus the Executive received from the Company for all fiscal years completed during the Term, with the aggregate amount due paid in equal installments on the Company’s normal payroll dates for a period of 12 months from the Date of Termination in accordance with the normal payroll practices of the Company, with each such payment deemed to be a separate payment for the purposes of Code Section 409A (as defined below);
(ii) in the event such resignation or termination occurs following the Company’s first fiscal quarter of any year, a Pro Rata Bonus, paid in accordance with Section 2.2 (including payment timing); and
(iii) the continuation of all benefits for 24 months from the Date of Termination.
In addition, subject to Section 4.4.8, the vesting of all unvested stock options and restricted stock previously granted to the Executive shall be accelerated to the Date of Termination and any such stock options, notwithstanding any provision to the contrary in the option or the plan pursuant to which the option was granted, shall remain exercisable for a period of 12 months following the Date of Termination or, if earlier, until the original expiration date of the option.
 
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4.4.4  No Mitigation or Offset . The Executive shall not be required to mitigate the amount of any payment provided for in this Section 4.4 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 4.4 be reduced by any compensation earned by the Executive as the result of employment by another employer or business or by profits earned by the Executive from any other source at any time before and after the Date of Termination.
4.4.5  Release . Notwithstanding any provision to the contrary in this Agreement, the Company’s obligation to pay or provide the Executive with the payments and benefits under Sections 4.4.2 and 4.4.3 (other than the Amounts and Benefits), and any distributions with respect to the restricted stock and stock options under Sections 4.4.2 and 4.4.3, shall be conditioned on the Executive’s execution and failure to revoke a waiver and general release in a form generally consistent with Exhibit A hereto (subject to such changes as may be necessary at the time of execution in order to make such release enforceable) (the “ Release ”). The Company shall provide the Release to the Executive within seven days following the applicable Date of Termination. In order to receive the payments and benefits under Sections 4.4.2 and 4.4.3 (other than the Amounts and Benefits) and the distributions with respect to the restricted stock and stock options under Sections 4.4.2 and 4.4.3, the Executive will be required to execute and deliver the Release within 21 days after the date it is provided to him and not to revoke it within seven days following such execution and delivery. Notwithstanding anything to the contrary contained herein, (i) all payments delayed pursuant to this Section, except to the extent delayed pursuant to Section 8.10.2, shall be paid to the Executive in a lump sum on the first Company payroll date on or following the 60th day after the Date of Termination, and any remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein, with each such payment deemed to be a separate and distinct payment for the purposes of Code Section 409A (as defined below) and (ii) all distributions with respect to the restricted stock and stock options delayed pursuant to this Section, except to the extent delayed pursuant to Section 8.10.2, shall be distributed to the Executive on the 60th day after the Date of Termination.
 
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5.	INSURABILITY; RIGHT TO INSURE	
The Company shall have the right to maintain key man life insurance in its own name covering the Executive’s life in an amount of up to $50,000,000.00. The Executive shall fully cooperate in the procuring of such insurance, including submitting to any required medical examination and by completing, executing and delivering such applications and other instrument in writing as may be reasonably required by any insurance company to which application for insurance may be made by the Company. The Company’s ability to procure any key man life insurance covering Executive’s life shall not be a condition of employment.
 
6.	CONFIDENTIALITY; NON-COMPETITION; NON-SOLICITATION; NON- DISPARAGEMENT; COOPERATION	
6.1  Confidential Information . The Company and the Executive acknowledge that the services to be performed by the Executive under this Agreement are unique and extraordinary and, as a result of such employment, the Executive shall be in possession of Confidential Information (as defined below) relating to the business practices of the Company and its subsidiaries and affiliates (collectively, the “ Company Group ”). The term “ Confidential Information ” shall mean any and all information (oral and written) relating to the Company Group, or any of their respective activities, or of the clients, customers or business practices of the Company Group, other than such information which (i) is generally available to the public or within the relevant trade or industry, other than as the result of breach of the provisions of this Section 6.1, or (ii) the Executive is required to disclose under any applicable laws, regulations or directives of any government agency, tribunal or authority having jurisdiction in the matter or under subpoena or other process of law. Confidential Information includes, but it not limited to, information that the Executive creates, develops, derives, obtains, makes known, or learns about which has commercial value in the business in which the Company Group is involved and which is treated by the Company Group as confidential, such as trade secrets, ideas, processes, formulas, compounds, compositions, research and clinical data, know-how, discoveries, developments, designs, innovations,
 
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plans, strategies, pricing, costs, financial information, employee information, forecasts and current and prospective customer and supplier lists. The Executive shall not, during the Term or at any time thereafter, except as may be required in the course of the performance of his duties hereunder (including pursuant to Section 6.6 below) and except with respect to any litigation or arbitration involving this Agreement, including the enforcement hereof, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any Confidential Information acquired by the Executive during, or as a result of, his employment with the Company, without the prior written consent of the Company. Without limiting the foregoing, the Executive understands that the Executive shall be prohibited from misappropriating any trade secret of the Company Group or of the clients or customers of the Company Group acquired by the Executive during, or as a result of, his employment with the Company, at any time during or after the Term.
6.2  Return of Property . Upon the termination of the Executive’s employment for any reason all Company Group property that is in the possession of the Executive, including all documents, records, drug formulations, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials that contain Confidential Information that are in the possession of the Executive, including all copies thereof, shall be promptly returned to the Company. Anything to the contrary herein notwithstanding, the Executive shall be entitled to retain (i) papers and other materials of a personal nature, including photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes and (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the Company.
6.3  Non-Competition . Except in the case of a Termination pursuant to Section 4.4.3 following a Change in Control, the Executive hereby agrees that he shall not, during the Term, directly or indirectly, engage or have an interest in, or render any services to, any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise)
 
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(such activities hereinafter referred to collectively as “ Engaging ”) that competes directly with the Company. Notwithstanding the foregoing, nothing herein shall prevent the Executive from (i) owning securities in a publicly traded entity whose activities compete with those of the Company (or any member thereof), provided that such securities holdings are not greater than five percent of the equity ownership in such entity; (ii) Engaging in the business of the ownership and licensing (as licensor) of trademarks and brands if the products or services carrying such trademarks and brands do not compete with the products or services carrying the trademarks and brands owned and licensed (as licensor) by the Company, or that the Company is actively planning to own or license (as licensor), on the Date of Termination; or (iii) Engaging in an operating company (including ownership of securities of such operating company’s holding company) with annual revenues not in excess of $10,000,000.
6.4  Prohibition on Use of Confidential Information to Solicit Customers and Prospects . During the Executive’s employment, the Executive shall not engage in any other employment or activity that might materially interfere with the interests of the Company Group. Furthermore, the Executive shall not, except in the furtherance of the Executive’s duties hereunder, directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity, (i) during the Term (except in the good faith performance of his duties) and for a period of 24 months thereafter, solicit, aid or induce any employee, representative or agent of the Company to leave such employment or retention or to accept employment with or render services to or with any other person, firm, corporation or other entity unaffiliated with the Company or hire or retain any such employee, representative or agent, or take any action to materially assist or aid any other person, firm, corporation or other entity in identifying, hiring or soliciting any such employee, representative or agent, (ii) during the Term (except in the good faith performance of his duties) and for a period of 12 months thereafter, solicit, aid or induce (or attempt to do any of the foregoing) directly or indirectly, any current or prospective customer of the Company with whom the Executive in any way dealt with at any time during the last two years of the Executive’s employment to purchase goods or services then sold by the Company from another person, firm, corporation or other

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entity or assist or aid any other persons or entity in identifying or soliciting any such customer or (iii) during the Term (except in the good faith performance of his duties) and for a period of 24 months thereafter, interfere in any manner with the relationship of the Company and any of its vendors. An employee, representative or agent shall be deemed covered by this Section while so employed or retained by the Company and for six months thereafter. Anything to the contrary herein notwithstanding, the following shall not be deemed a violation of this Section 6.4: (a) the Executive’s solicitation of the Company’s customers and/or vendors in connection with, and directly related to, his Engaging in a business that complies with Sections 6.3(ii) or (iii); (b) the Executive’s responding to an unsolicited request for an employment reference regarding any former employee of the Company from such former employee, or from a third party, by providing a reference setting forth his personal views about such former employee; or (c) if an entity with which the Executive is associated hires or engages any employee of the Company, if the Executive was not, directly or indirectly, involved in hiring or identifying such person as a potential recruit or assisting in the recruitment of such employee. For purposes hereof, the Executive shall be deemed to have been involved “ indirectly ” in soliciting, hiring or identifying an employee only if the Executive (x) directs a third party to solicit or hire the Employee, (y) identifies an employee to a third party as a potential recruit or (z) aids, assists or participates with a third party in soliciting or hiring an employee.
6.5  Non-Disparagement . At no time during or within five years after the Term shall the Executive, directly or indirectly, disparage the Company Group or any of the Company Group’s past or present employees, directors, products or services. The Company shall advise its senior officers and the members of the Board (while serving in such capacities) not to disparage the Executive during the period. Notwithstanding the foregoing, nothing in this Section 6.5 shall prevent any person from making any truthful statement to the extent (i) necessary to rebut any untrue public statements made about him or her; (ii) necessary with respect to any litigation, arbitration or mediation involving this Agreement and the enforcement thereof; (iii) required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with jurisdiction over such person; or (iv) made as good faith competitive statements in the ordinary course of business.
 
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6.6  Cooperation . Upon the receipt of reasonable notice from the Company (including the Company’s outside counsel), the Executive shall, while employed by the Company and thereafter, respond and provide information with regard to matters of which the Executive has knowledge as a result of the Executive’s employment with the Company and will provide reasonable assistance to the Company Group and its representatives in defense of any claims that may be made against the Company Group (or any member thereof), and will provide reasonable assistance to the Company Group in the prosecution of any claims that may be made by the Company Group (or any member thereof), to the extent that such claims may relate to matters related to the Executive’s period of employment with the Company (or any predecessors). Any request for such cooperation shall take into account the Executive’s personal and business commitments. The Executive shall promptly inform the Company (to the extent the Executive is legally permitted to do so) if the Executive is asked to assist in any investigation of the Company Group (or any member thereof) or their actions, regardless of whether a lawsuit or other proceeding has then been filed with respect to such investigation. If the Executive is required to provide any services pursuant to this Section 6.6 following the Term, upon presentation of appropriate documentation, the Company shall promptly reimburse the Executive for reasonable out-of-pocket travel, lodging, communication and duplication expenses incurred in connection with the performance of such services and in accordance with the Company’s expense policy for its senior officers (provided that it shall be in Executive’s discretion to travel via first or business class, which costs shall be reimbursable by the Company), for reasonable legal fees to the extent the Executive in good faith believes that separate legal representation is reasonably required, and for the Executive’s time at a rate equivalent to the Executive’s most recent base salary. The Executive’s entitlement to reimbursement of such costs and expenses, including legal fees, pursuant to this Section 6.6, shall in no way affect the Executive’s rights, if any, to be indemnified and/or advanced expenses in accordance with the Company’s (or any of its subsidiaries’) corporate or other organizational documents, any applicable insurance policy, and/or in accordance with this Agreement.
 
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6.7  Remedies and Reformation . Without intending to limit the remedies available to the Company, the Executive acknowledges that a breach of any of the covenants contained in this Section 6 may result in material and irreparable injury to the Company, or its affiliates or subsidiaries, for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat the Company shall be entitled to a temporary restraining order and/or a preliminary or permanent injunction restraining the Executive from engaging in activities prohibited by this Section 6 or such other relief as may be required specifically to enforce any of the covenants in this Section 6. If for any reason it is held that the restrictions under this Section 6 are not reasonable or that consideration therefor is inadequate, such restrictions shall be interpreted or modified to include as much of the duration and scope identified in this Section as will render such restrictions valid and enforceable.
6.8  Violations . In the event of any violation of the provisions of this Section 6, the Executive acknowledges and agrees that: (a) the post-termination restrictions contained in this Section 6 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation; (b) any severance payable which remains unpaid or other benefits yet to be received under Section 4.4.2 or 4.4.3 shall be forfeited by the Executive; and (c) any vested options not exercised as of the date of any violation of the provisions of this Section 6 shall be forfeited.
 
7.	INDEMNIFICATION; DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE	
During the Term and thereafter, the Company shall indemnify and hold harmless the Executive and his heirs and representatives as, and to the extent, provided in the Company’s by-laws. During the Term and thereafter, the Company shall also cover the Executive under the Company’s directors’ and officers’ liability insurance on the same basis as it covers other senior executive officers and directors of the Company.
 
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8.	MISCELLANEOUS	
8.1  Notices . All notices or communications hereunder shall be in writing, addressed as follows (or to such other address as either party may have furnished to the other in writing by like notice):

                                    	 	To the Company:	 	Impax Laboratories, Inc.	
			
	 		 	31047 Genstar Rd.	
			
	 		 	Hayward, CA 94544	
			
	 		 	Attn: Chairman, Compensation Committee	
			
	 		 	To the Executive, at the last address for the Executive on the books of the Company.	
All such notices shall be conclusively deemed to be received and shall be effective (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy or facsimile transmission, upon confirmation of receipt by the sender of such transmission, (iii) if sent by overnight courier, one business day after being sent by overnight courier, or (iv) if sent by registered or certified mail, postage prepaid, return receipt requested, on the fifth day after the day on which such notice is mailed.
8.2  Testing; Verification . As a condition of the Executive’s employment with the Company, the Executive will be required to successfully complete a drug test, background check and credit check, the cost of which shall be paid by the Company. In addition, to comply with Department of Homeland Security, the Executive will be required to provide verification of the Executive’s identity and legal right to work in the United States and must complete a Form I-9 within the first three (3) days of the Effective Date. The Company shall notify the Executive of the identity of a clinic for drug testing that is local to the Executive, and the Executive hereby agrees to schedule an appointment with such clinic within forty-eight (48) hours of the date of this Agreement. In the event the Executive fails any such tests or such verification, then this Agreement shall be void ab initio and of no further force or effect.
 
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8.3  Severability . Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
8.4  Binding Effect; Benefits . The Executive may not delegate his duties or assign his rights hereunder. No rights or obligations of the Company under this Agreement may be assigned or transferred by the Company other than pursuant to a merger or consolidation in which the Company is not the continuing entity, or a sale, liquidation or other disposition of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets or businesses of the Company and assumes the liabilities, obligations and duties of the Company under this Agreement, either contractually or by operation of law. The Company further agrees that, in the event of any disposition of its business and assets described in the preceding sentence, it shall use its best efforts to cause such assignee or transferee expressly to assume the liabilities, obligations and duties of the Company hereunder. For the purposes of this Agreement, the term “ Company ” shall include the Company and, subject to the foregoing, any of its successors and assigns. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective heirs, legal representatives, successors and permitted assigns.
8.5 [Intentionally Omitted.]
8.6  Entire Agreement . This Agreement, including the Exhibits hereto, represent the entire agreement of the parties with respect to the subject matter hereof and shall supersede any and all previous contracts, arrangements, proposed terms or understandings between the Company and the Executive. This Agreement (including any of the Exhibits hereto) may be amended, modified or replaced at any time by mutual written agreement of the parties hereto. In the case of any conflict between any express term of this Agreement and any statement contained in any plan, program, arrangement, employment manual, memorandum or rule of general applicability of the Company, this Agreement shall control.
 
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8.7  Withholding . The payment of any amount pursuant to this Agreement shall be subject to applicable withholding and payroll taxes, and such other deductions as may be required by applicable law.
8.8  Governing Law . This Agreement and the performance of the parties hereunder shall be governed by the internal laws (and not the law of conflicts) of the State of Delaware.
8.9  Arbitration . Any dispute or controversy, including, but not limited to, discrimination claims and claims involving a class, arising under or in connection with this Agreement or the Executive’s employment with the Company, other than injunctive relief under Section 6.7 hereof, shall be settled exclusively by arbitration, conducted before a single arbitrator in Delaware (applying Delaware law) in accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration Association then in effect. The decision of the arbitrator will be final and binding upon the parties hereto. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The parties acknowledge and agree that in connection with any such arbitration and regardless of outcome (a) each party shall pay all its own costs and expenses, including without limitation its own legal fees and expenses, and (b) joint expenses shall be borne equally among the parties. EACH PARTY WAIVES RIGHT TO TRIAL BY JURY.
8.10  Section 409A of the Code .
8.10.1  General . It is intended that the provisions of this Agreement comply with Section 409A of the Internal Revenue Code and the regulations and guidance promulgated thereunder (collectively “ Code Section 409A ”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A, the Company shall, upon the specific request of the Executive, use its reasonable business efforts to in good faith reform
 
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such provision to comply with Code Section 409A; provided, that to the maximum extent practicable, the original intent and economic benefit to the Executive and the Company of the applicable provision shall be maintained. The Company shall timely use its reasonable business efforts to amend any plan or program in which the Executive participates to bring it in compliance with Code Section 409A.
8.10.2  Separation from Service; Six-Month Delay . A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “ Separation from Service ” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “ resignation ,” “ termination ,” “ termination of employment ” or like terms shall mean Separation from Service. If the Executive is deemed on the Date of Termination to be a “ specified employee ,” within the meaning of that term under Section (a)(2)(B) of Code Section 409A (“ Code Section 409(a)(2)(B) ”)and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard to any payment, the providing of any benefit or any distribution of equity made subject to this Section 8.10.2, to the extent required to be delayed in compliance with Code Section 409A(a)(2)(B), and any other payment, the provision of any other benefit or any other distribution of equity that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment, benefit or distribution shall not be made or provided prior to the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s Separation from Service or (ii) the date of the Executive’s death. On the first day of the seventh month following the date of the Executive’s Separation from Service or, if earlier, on the date of his death, (x) all payments delayed pursuant to this Section 8.10.2 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein and (y) all distributions of equity delayed pursuant to this Section 8.10.2 shall be made to the Executive. In addition
 
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to the foregoing, to the extent required by Code Section 409A(a)(2)(B), prior to the occurrence of both a Disability termination as provided in Section 4.1.2 hereof and the Executive’s becoming “disabled” under Code Section 409A, the payment of any compensation to the Executive under this Agreement shall be suspended for a period of six months commencing at such time that the Executive shall be deemed to have had a Separation from Service because either (A) a sick leave ceases to be a bona fide sick leave of absence, or (B) the permitted time period for a sick leave of absence expires (an “ SFS Disability ”), without regard to whether such SFS Disability actually results in a Disability termination. Promptly following the expiration of such six-month period, all compensation suspended pursuant to the foregoing sentence (whether it would have otherwise been payable in a single sum or in installments in the absence of such suspension) shall be paid or reimbursed to the Executive in a lump sum. On any delayed payment date under this Section 8.10.2, there shall be paid to the Executive or, if the Executive has died, to his estate, in a single cash lump sum together with the payment of such delayed payment, interest on the aggregate amount of such delayed payment at the Delayed Payment Interest Rate (as defined below) computed from the date on which such delayed payment otherwise would have been made to the Executive until the date paid. For purposes of the foregoing, the “ Delayed Payment Interest Rate ” shall mean the prime interest rate as reported in The Wall Street Journal as of the business day immediately preceding the payment date for the applicable delayed payment.
8.10.3  Expense Reimbursement . With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Internal Revenue Code and the regulations and guidance promulgated thereunder solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred.
 
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8.11  Survivorship . Except as otherwise expressly set forth in this Agreement, upon the expiration of the Term, the respective rights and obligations of the parties shall survive such expiration to the extent necessary to carry out the intentions of the parties as embodied in this Agreement. This Agreement shall continue in effect until there are no further rights or obligations of the parties outstanding hereunder and shall not be terminated by either party without the express prior written consent of both parties.
8.12  Counterparts . This Agreement may be executed in counterparts (including by electronic transmission) which, when taken together, shall constitute one and the same agreement of the parties.
8.13  Company Representations . The Company represents and warrants to the Executive that (i) the execution, delivery and performance of this Agreement (and the agreements referred to herein) by the Company has been fully and validly authorized by all necessary corporate action, (ii) the officer or director signing this Agreement on behalf of the Company is duly authorized to do so, (iii) the execution, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or decree or any agreement, plan or corporate governance document to which the Company is a party or by which it is bound and (iv) upon execution and delivery of this Agreement by the Executive and the Company, it shall be a valid and binding obligation of the Company enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.
[Signature Page Follows]
 
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed and the Executive has hereunto set his hand, as of the date first set forth above.

	 	Impax Laboratories, Inc.	
		
By:	 	/s/ Robert L. Burr	
Name:	 	Robert L. Burr	
Title:	 	Chairman of the Board of Directors	
		
	 	/s/ Paul M. Bisaro	
	 	Paul M. Bisaro	
 
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EXHIBIT A
Form of General Release and Waiver
General Release and Waiver
This General Release and Waiver (this “ Release ”) is entered into effective as of             , by Paul M. Bisaro (the “ Executive ”), on the one hand, and Impax Laboratories, Inc. and its subsidiaries and affiliates (collectively, the “ Company ”), on the other hand (the Executive and the Company are referred to collectively as the “ Parties ”). Defined terms used but not defined herein shall have the same meaning as set forth in the Employment Agreement between the Executive and the Company dated March 24, 2017 (“ Employment Agreement ”).
1.  Confirmation of Termination . The Executive’s employment with the Company is terminated as of             (the “ Termination Date ”). This Release sets forth the payments, benefits, and other terms and conditions that the Company will provide to the Executive under [, and serves as notice of, an election by the Company of a termination pursuant to Section 4.1.6 of] the Employment Agreement. If the Executive executes, delivers, and does not revoke this Release as set forth in Section 13 below, the Executive will be entitled to the payments and benefits pursuant to the terms hereof. Except as set forth in this Release, the Executive acknowledges and agrees that the Termination Date is the date of termination of his employment for all purposes, including for purposes of participation in and coverage under all benefit plans and programs sponsored by or through the Company. The Executive acknowledges and agrees that the Company shall not have any obligation to rehire the Executive, nor shall the Company have any obligation to consider him for employment after the Termination Date. The Executive acknowledges and agrees that he will not knowingly seek employment with the Company at any time in the future, and that the Company’s refusal to employ the Executive in any future capacity will not subject the Company to liability on any grounds. In the event that the Release does not become effective pursuant to Section 13 of this Release or otherwise, then Company reserves the right to claim that the Executive’s employment was terminated pursuant to Section 4.1.5 of the Employment Agreement.

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2.  Resignation . Effective as of the Termination Date, the Executive hereby resigns as an officer and director of the Company and all of its subsidiaries and affiliates and from any positions held with any other entities at the direction or request of the Company. The Executive agrees to promptly execute and deliver such other documents as the Company shall reasonably request to evidence such resignations. In addition, the Executive acknowledges and agrees that the Termination Date shall be the date of his termination from all other offices, positions, trusteeships, committee memberships and fiduciary capacities held with, or on behalf of, the Company. The Executive agrees to make himself available to assist and consult with the Company regarding matters relating to his former duties for a period of six months after his Termination Date, provided that the Executive is reimbursed for any and all reasonable expenses related to such cooperation, including but not limited to, travel, lodging, communication, and duplication expenses, and that the Executive is reimbursed for reasonable attorney fees if the Executive in good faith believes that separate legal representation is required, and that the Executive is compensated for the Executive’s time at a rate equivalent to the Executive’s most recent base salary.
3.  Termination Benefits . If the Executive executes and delivers this Release and does not revoke this Release within the time set forth in Section 13 below, then the Executive will be entitled, subject to the terms and conditions set forth below and in the plan documents, to the payments and benefits set forth in this Section 3 (collectively the “ Termination Benefits ”), which together satisfy in full the Company’s obligations with respect to payments and benefits under the Employment Agreement or otherwise:
a. [Separation Pay: The Company shall pay the Executive $            (representing             times the Executive’s Base Salary, (as defined in Section 2.1 of the Employment Agreement)), paid in equal installments on the Company’s normal payroll dates for a period of 12 consecutive months commencing from the Termination Date in accordance with the normal payroll practice of the Company, with each payment deemed to be a separate payment for purposes of IRS Code §409A. The first payment shall be made on the next normal payroll day following the Release Effective Date, as that term is defined in Section 13 below.]
 
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b. [Separation Bonus: The Company shall pay the Executive $            (representing             times the average of the Incentive Bonus (as defined in Section 2.2 of the Employment Agreement) the Executive received from the Company for all fiscal years completed during the term of the Employment Agreement), paid in equal installments on the Company’s normal payroll dates for a period of 12 consecutive months commencing from the Termination Date in accordance with the normal payroll practice of the Company, with each payment deemed to be a separate payment for purposes of IRS Code §409A. The first payment shall be made on the next normal payroll day following the Release Effective Date, as that term is defined in Section 13 below.]
c. [Pro Rata Bonus: No later than             , the Company shall pay the Executive a pro rata portion of the Executive’s Incentive Bonus for fiscal year             based solely on the Company’s actual results against the Company’s goals for the year (determined by multiplying the amount of such Incentive Bonus which would be due for the full fiscal year, as determined in good faith by the Board, by a fraction, the numerator of which is the number of days up to the Termination Date during the fiscal year of termination that the Executive was employed by the Company and the denominator of which is 365).]
d. Benefits
i. Medical Benefits: The Company will provide the Executive with information regarding eligibility to continue medical, dental, and vision benefits under the Consolidated Omnibus Budget Reconciliation Act, as amended (“ COBRA ”), in accordance with its terms. If the Executive timely and effectively elects under COBRA to continue medical benefit coverage after the Termination Date under the Company Independence Blue Cross medical plan (or any successor plan) for himself or any of his dependents currently enrolled on his plan (the “Dependents”), then the Company will pay the insurer such COBRA medical benefit premiums for as long as the Executive and/or his Dependents remain eligible for and enrolled under COBRA for up to             consecutive months

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commencing immediately after the Termination Date. In the event the Executive or his Dependents, after timely and effectively electing to continue such medical benefit coverage under COBRA, and after using all available COBRA, becomes ineligible to continue such medical benefit coverage under COBRA through no fault of their own, the Executive and/or his Dependents (but only if they would be eligible to obtain coverage under the Company Independence Blue Cross medical plan had the Executive been employed by the Company at such time), as applicable, may be eligible to convert to an individual Independence Blue Cross Individual Personal Choice medical plan (or any successor plan as set forth in the then applicable group medical plan documents) at the same cost to the Executive for coverage as described under the plan documents. In such event, the Company agrees to pay the insurer the premium for such individual plan for the period commencing from such COBRA ineligibility date and ending on the last day of the     -month period commencing immediately after the Termination Date.
ii. [Dental Benefits: The Executive will remain eligible to continue dental benefit coverage under the Company Delta Dental dental plan (or any successor plan) for himself and his Dependents for up to 24 consecutive months commencing immediately after the Termination Date. The Company will pay the insurer for any related dental benefit premiums under such group dental plan for as long as the Executive and/or his Dependents remain enrolled in such group dental benefit plan, for up to 24 consecutive months commencing immediately after the Termination Date.]
iii. [Vision Benefits: The Executive will remain eligible to continue vision benefit coverage under the Company VSP vision plan (or any successor plan) for himself and his Dependents for up to 24 consecutive months commencing immediately after the Termination Date. The Company will pay the insurer for any related vision benefit premiums under such vision plan for as long as the Executive and/or his Dependents remain enrolled in such group vision benefit plan, for up to 24 consecutive months commencing immediately after the Termination Date.]
 
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iv. Payment for Benefit Continuation. If it is not possible or convenient for the Company to pay the insurer directly for any medical, dental, or vision insurance benefit coverage set forth in Sections 3(d) hereunder, then the Executive will be solely responsible for timely making such payments and the Company will reimburse the Executive within 30 days of receipt from the Executive of reasonable proof that payment has been timely received by the insurer. The Executive agrees to notify the Company promptly in writing after the Executive or his Dependents become eligible for medical, dental or vision insurance benefits under another employer’s plan, in which case any obligation by the Company under this Section 3 or otherwise to extend such benefit(s) shall cease immediately.
e. [Stock Option and Restricted Stock Awards: If the Executive executes, delivers, and does not revoke this Release within the time set forth in Section 13 below, then (i) there shall be [a 12 month acceleration of vesting] for those stock options and shares of restricted stock described in Table 1 of Exhibit A hereof [and the Executive shall be entitled to exercise such stock options described in Table 1 of Exhibit A hereof during the 12 month period immediately following the Termination Date or, if earlier, until the original expiration date of the options, and (ii) the Executive shall be entitled to exercise those vested stock options described in Table 2 of Exhibit A hereof during the 12 month period immediately following the Termination Date or, if earlier, until the original expiration date of the options]. Each of these stock options and shares of restricted stock shall otherwise remain subject in all respects to the restrictions of the applicable stock option grant or restricted stock award agreements between the Executive and the Company and any applicable equity incentive plan. Except as set forth in this Section 3(e) and Exhibit A; all other stock options and shares of restricted stock held by the Executive that are unvested shall terminate and be forfeited.]
f. Subject to Section 3(e) above, any changes to the terms and conditions of the Company’s benefit plans that apply generally to employees or to the Company’s applicable equity incentive plan shall also apply to the Executive and his entitlement under this Release (e.g., changes to the premiums, changes to coverage, changes in insurers, changes to the equity incentive plans, etc.).
 
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g. Notwithstanding any other provision of this Release or the Employment Agreement, the Executive acknowledges and agrees that the Termination Benefits set forth in this Section 3 together with the Amounts and Benefits (as defined in Section 4.4.1 of the Employment Agreement), are the sole wages, payments, stock, stock options, insurance, and benefits to which the Executive is entitled, under the Employment Agreement or otherwise, and that no other wages, payments, stock, stock options, insurance, benefits or other monies of any nature are due from the Company. The Executive acknowledges and agrees that the Termination Benefits exceed any wages, payment, stock, stock options, insurance, benefit, or other thing of value to which the Executive might otherwise be entitled under any policy, plan or procedure of the Company and/or any other agreement between the Executive and the Company.
h. All payments made to the Executive pursuant to this Section 3 shall be subject to all applicable or required deductions, taxes, and withholdings.
4.  Acknowledgement of Payments Provided . Notwithstanding anything herein to the contrary, the Amounts and Benefits (as defined in Section 4.4.1 of the Employment Agreement) shall not be subject to the Executive’s execution of this Release. The Executive acknowledges and agrees that the Company has paid the Executive’s final wages (including any accrued, unused paid time off) and all other Amounts and Benefits in full and that the Executive has submitted and been reimbursed in full for all reasonable and necessary business expenses incurred through the Termination Date.
5.  Tax Liability . Although the Company shall make applicable tax withholdings from the Termination Benefits and the Amounts and Benefits, the Executive acknowledges and agrees that any and all tax liability, penalties and interest (including under Code Section 409A), if any, which may become due from the Executive or assessed against the Executive because of the Termination Benefits or Amounts and Benefits, and/or any other payments or benefits referenced in this Release is the Executive’s sole responsibility, and the Executive will timely pay any taxes, penalties and interest which may become due on it. The Executive shall indemnify and hold harmless the Company from any tax, tax penalty, interest, attorneys’ fees or other costs related to the failure by the Executive to pay any tax liability assessed against the Executive, including under Code Section 409A because of the payment of the Termination Benefits, Amounts and Benefits, and/or any other payments or benefits referenced in this Release.

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6.  General Release and Waiver . In consideration of the Termination Benefits and/or any other payments or benefits referenced in this Release, and for other good and valuable consideration, receipt of which is hereby acknowledged, the Executive for himself and for his heirs, executors, administrators, trustees, legal representatives and assigns (collectively, the “ Releasors ”), hereby releases, remises, and acquits the Company and its subsidiaries and affiliates and all of their respective past, present and future parent entities, subsidiaries, divisions, affiliates and related business entities, any of their successors and assigns, assets, employee benefit plans or funds, and any of their respective past and/or present directors, officers, fiduciaries, agents, trustees, administrators, managers, supervisors, shareholders, investors, employees, legal representatives, agents, counsel and assigns, whether acting on behalf of the Company or its subsidiaries or affiliates or, in their individual capacities (collectively, the “ Releasees ” and each a “ Releasee ”) from any and all claims, known or unknown, which the Releasors have or may have against any Releasee arising on or prior to the date that the Executive executes this Release and any and all liability which any such Releasee may have to the Releasors, whether denominated claims, demands, causes of action, obligations, damages or liabilities arising from any and all bases, however denominated, including but not limited to (a) any claim under the Age Discrimination in Employment Act of 1967 (“ ADEA ”), the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Civil Rights Act of 1964, the Civil Rights Act of 1991, Section 1981 of the Civil Rights Act of 1866, the Equal Pay Act, the Lilly Ledbetter Fair Pay Act, the Immigration Reform and Control Act of 1986, the Employee Retirement Income Security Act of 1974, (excluding claims for accrued, vested benefits under any employee benefit or pension plan of the Company, subject to the terms and conditions of such plan and applicable law), the Uniform Trade Secrets Act, the Sarbanes-Oxley Act of 2002, the Fair Labor Standards Act the Family and Medical Leave Act, the National Labor Relations Act, the Lilly Ledbetter Fair Pay Act, the Worker Adjustment and Retraining Notification Act, the New Jersey Law Against Discrimination (which may include claims for race, color, familial status, religious creed, ancestry, age, sex, pregnancy, national origin, or disability discrimination and harassment), New Jersey Wage Payment

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Laws, N.J.S.A. § 34:11-1 et seq., the New Jersey Conscientious Employee Protection Act, the New Jersey Family Leave Act, the New Jersey Worker Health and Safety Act, the New York State Human Rights Law, the New York Labor Law (including but not limited to the New York State Worker Adjustment and Retraining Notification Act, all provisions prohibiting discrimination and retaliation, and all provisions regulating wage and hour law), the New York State Correction Law, the New York State Civil Rights Law, Section 125 of the New York Workers’ Compensation Law, and the New York City Human Rights Law, all as amended; (b) any and all claims arising from or relating to the Executive’s employment relationship with Company and his service relationship as an officer or director of the Company or any of its subsidiaries or affiliates, or as a result of the termination of such relationships; (c) all claims related to the Executive’s compensation or benefits from the Company or the Releasees, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company or the Releasees; (d) all claims for breach of contract, wrongful termination and breach of the implied covenant of good faith and fair dealing; (e) all tort claims, including claims for fraud, defamation, privacy rights, emotional distress, and discharge in violation of public policy; and (f) all federal, state (including but not limited to the States of Delaware, California, New Jersey, New York and Pennsylvania), and local statutory or constitutional claims, including claims for compensation, discrimination, harassment, whistleblower protection, retaliation, attorneys’ fees, costs, disbursements, or other claims (referred to collectively as the “ Released Claims ”).
This Release does not release claims that cannot be released as a matter of law, or the right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission (“ EEOC ”), or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company. However, by executing this Release, the Executive hereby waives the right to recover in any proceeding the Executive may bring before the EEOC or any state human rights commission or in any proceeding brought by the EEOC or any state human rights commission on the Executive’s behalf. This Release is for any relief, no matter how denominated, including, but not limited to, injunctive relief, wages, back pay, front pay, compensatory damages, or punitive damages.
 
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This Release shall not apply to (i) the Executive’s rights to indemnification from the Company, if any, or rights, if any, to be covered under any applicable insurance policy with respect to any liability the Executive incurred or might incur as an employee, officer or director of the Company including, without limitation, the Executive’s rights under Section 7 of the Employment Agreement; or (ii) any right the Executive may have to obtain contribution as permitted by law in the event of entry of judgment against the Executive as a result of any act or failure to act for which the Executive, on the one hand, and Company or any other Releasee, on the other hand, are jointly liable.
The Executive waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California, to the extent applicable, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
The Executive hereby acknowledges that the foregoing waiver is an essential and material term of this Release.
7.  Continuing Covenants . Notwithstanding any other provisions of this Release, the Executive acknowledges and agrees that he remains subject to the provisions of Section 6 of the Employment Agreement and the Employee Invention and Proprietary Information Agreement (“Invention Agreement”), both of which shall remain in full force and effect for the periods set forth therein and are deemed part of this Release. The Executive acknowledges and agrees that he has made a diligent search for any Company property in his possession or control and that he has returned all such property to the Company. The Executive acknowledges and agrees that any action for injunctive relief brought for claims arising out of Section 6 of the Employment Agreement or the Invention Agreement, as well as any related claims for

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trade secret misappropriation, breach of fiduciary duty, unfair competition, or other related business tort claims, shall be brought exclusively in Delaware state court or Delaware federal court. The Executive shall submit to and accept the exclusive jurisdiction of such suit, legal action, or proceeding in Delaware state court or Delaware federal court. The Executive acknowledges and agrees to accept personal jurisdiction in Delaware and also acknowledges and agrees not to challenge the mandatory Delaware forum on any grounds whatsoever, including lack of jurisdiction or forum non-conveniens.
8.  No Claims . The Executive acknowledges and agrees that there are no claims or actions currently filed or pending relating to the subject matter of the Release, the Employment Agreement, or any Released Claims. The Executive acknowledges and agrees that the Executive will not file or permit to be filed on the Executive’s behalf any such claims or actions. The Executive hereby requests all administrative agencies having jurisdiction over employment and labor law matters and courts to honor the Executive’s release of claims under this Release. Should the Company ever request the Executive to execute any administrative dismissal forms, the Executive shall immediately execute the form and return it to the Company. Should the Executive file any claim or action relating to the subject matter of this Release, the Employment Agreement, or any Released Claims, such filing shall be considered an intentional breach of the Release and the Executive will be subject, among other rights Company may have, to all damages and costs available under law and equity, including without limitation, the amount of consideration paid hereunder. The Executive further acknowledges and agrees that the Executive has not failed to report any work-related occupational injuries or diseases arising out of or in the course of employment with the Company.
9.  No Admission . This Release does not constitute an admission of liability or wrongdoing of any kind by the Company or any other Releasee. This Release is not intended, and shall not be construed, as an admission that any Releasee has violated any federal, state or local law (statutory or decisional), ordinance or regulation, breached any contract or committed any wrong whatsoever against any Releasor.

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10.  Heirs and Assigns . The terms of this Release shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns.
11.  Miscellaneous . This Release will be construed and enforced in accordance with the laws of the State of Delaware without regard to the principles of conflicts of law. If any provision of this Release is held by a court of competent jurisdiction to be illegal, void or unenforceable, such provision shall have no effect; however, the remaining provisions will be enforced to the maximum extent possible. The parties acknowledge and agree that, except as otherwise set forth herein, this Release constitutes the entire agreement and complete understanding of the parties with regard to the matters set forth herein and, except as otherwise set forth in this Release, supersedes any and all agreements (including without limitation the Employment Agreement), understandings, and discussions, whether written or oral, between the parties. No other promises or agreements are binding unless in writing and signed by each of the Parties after the Release Effective Date (as defined below). Should any provision of this Release require interpretation or construction, it is agreed by the Parties that the entity interpreting or constructing this Release shall not apply a presumption against one party by reason of the rule of construction that a document is to be construed more strictly against the Party who prepared the document. The Parties agree to bear their own attorneys’ fees and costs with respect to this Release.
12.  Knowing and Voluntary Waiver . The Executive acknowledges and agrees that he: (a) has carefully read this Release in its entirety; (b) has had an opportunity to consider it for at least 21 calendar days; (c) is hereby advised by the Company in writing to consult with an attorney of his choosing in connection with this Release; (d) fully understands the significance of all of the terms and conditions of this Release and has discussed them with his independent legal counsel, or had a reasonable opportunity to do so; (e) has had answered to his satisfaction any questions he has asked with regard to the meaning and significance of any of the provisions of this Release and has not relied on any statements or explanations made by any Releasee or their counsel; (f) understands that he has seven calendar days in which to revoke this Release (as described in Section 13) after signing it and (g) is signing this Release voluntarily and of his own free will and agrees to abide by all the terms and conditions contained herein.
 
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13.  Effective Time of Release . The Executive may accept this Release by signing it and delivering it to the Company as provided in Section 15 of this Release within 21 days of his receipt hereof. After executing this Release, the Executive will have seven calendar days (the “ Revocation Period ”) to revoke this Release by indicating his desire to do so in writing delivered to the Company as provided in Section 15 of this Release by no later than 12:00 p.m. EST on the seventh calendar day following the date on which he executes and delivers this Release. The effective date of this Release shall be the eighth day after the Executive executes and delivers this Release (the “ Release Effective Date ”). If the last day of the Revocation Period falls on a Saturday, Sunday or holiday, the last day of the Revocation Period will be deemed to be the next business day. If the Executive does not execute this Release or exercises his right to revoke hereunder, he shall forfeit his right to receive any of the Termination Benefits set forth in Section 3 above and any other payments or benefits referenced in this Release with the sole exception of the Amounts and Benefits, and to the extent such Termination Benefits have already been provided, the Executive agrees that he will immediately reimburse the Company for the amounts of such payment.
14.  Confidentiality . The provisions of this Release shall be held in strictest confidence by the Executive. The Executive shall not publicize or disclose it in any manner whatsoever; provided, however, that the Executive may disclose this Release in confidence to his immediate family, attorney, accountant, tax preparer, and financial advisor and the Executive may also disclose this Release insofar as such disclosure may be necessary to enforce its terms or as otherwise required by law. Notwithstanding anything herein to the contrary, in the event of a breach of this Section 14, the Company’s remedies shall be injunctive relief and all damages caused proximately by such breach. In any legal action (including arbitration) the prevailing party shall be entitled to reasonable attorney’s fees. The Company may at its option withhold payments otherwise due under this Release (with the sole exception of the Amounts and Benefits) pending the resolution of any legal action (including arbitration) in which the breach of this Section 14 is being disputed. Ultimately, however, the remedies for a breach hereunder shall be limited as provided in this Section.
 
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15.  Notices . All notices or communications hereunder shall be in writing, and shall be addressed and delivered as follows (or to such other address as either Party may have furnished to the other in writing by like notice): (a) To the Company: Impax Laboratories, Inc., 31047 Genstar Road, Hayward, CA 94544, Attn: Vice President of Human Resources, (b) To the Executive: [ ],             . All such notices and/or communications shall be conclusively deemed to be received and shall be effective (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy or facsimile transmission, upon confirmation of receipt by the sender of such transmission, (iii) if sent by overnight courier, one business day after being sent by overnight courier, or (iv) if sent by registered or certified mail, postage prepaid, return receipt requested, on the fifth day after the day on which such notice or correspondence is mailed. All payments shall be made so that the recipient shall have immediately available US denominated funds on the due date for such payment, and shall be sent to the same addresses listed above.
16.  Breach of Release . Excluding the Executive’s duty of confidentiality, the breach of which shall be exclusively governed by Section 14 hereof, if the Executive violates any of his obligations under this Release, then the Company may at its option terminate the Executive’s rights to any and all Termination Benefits under Section 3 or any other payments or benefits referenced in this Release (with the sole exception of the Amounts and Benefits); provided, however, the Company may, in addition to any other rights it may have and in accordance with applicable law, demand a monetary payment equal to all Termination Benefits and other payments and benefits received by the Executive or any other payments or benefits referenced in this Release (with the sole exception of the Amounts and Benefits) and the Executive agrees to make such payment promptly upon such demand. In the event that the Company
alleges that the Executive breached the Release, the prevailing party will be entitled to reasonable attorney fees.
 
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17.  Dispute Resolution . Except as otherwise set forth herein, the Parties hereby agree that any and all claims, disputes, demands, or controversies of any nature whatsoever arising out of, or relating to, this Release, or its interpretation, enforcement, breach, performance or execution, the Executive’s employment with the Company, or the termination of such employment, including but not limited to any statutory claims, shall be resolved, to the fullest extent permitted by law, by final, binding and confidential arbitration in Delaware (applying Delaware law) in accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration Association then in effect. The decision of the arbitrator will be final and binding upon the parties thereto. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The Parties acknowledge and agree that in connection with any such arbitration and regardless of outcome: (a) each party shall bear its own costs and expenses, including without limitation its own legal fees and expenses, and (b) joint expenses shall be born equally among the parties. EACH PARTY WAIVES ITS RIGHT TO TRIAL BY JURY. Nothing in this Release is intended to prevent either the Executive or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any arbitration, including but not limited to injunctive relief sought pursuant to Section 7 of this Release.
[Signature Page Follows]

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Dated:	 	 	
	 	Paul M. Bisaro	
		
Dated:	 	 	
	 	[NAME AND TITLE]	
	 	Impax Laboratories, Inc.	

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EXHIBIT A
[Equity Awards]

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Exhibit 10.10
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (“ Agreement ”) is entered into as of January 24, 2018, by and among Amneal Pharmaceuticals LLC (“ Amneal ”), Amneal Holdings, LLC (“ Holdings ”) and Andrew Boyer (the “ Executive ” and, collectively with Amneal and Holdings, the “ Parties ”).
WITNESSETH:
WHEREAS, Amneal has entered into that certain Business Combination Agreement (the “ Business Combination Agreement ”), dated as of October 17, 2017 (and as subsequently amended), with, among others, Impax Laboratories, Inc. (“ Impax ”) and Atlas Holdings, Inc. (“Atlas”) which contemplates transactions (the “ Combination ”) pursuant to which Impax, following its conversion into a limited liability company, will become a wholly owned subsidiary of Amneal and Atlas, which will become a publicly traded company and be renamed Amneal Pharmaceuticals, Inc. in connection with the Combination. For purposes of this Agreement, the term the “ Company ” shall refer to (i) Amneal and its subsidiaries prior to the consummation of the Combination and (ii) Atlas and its subsidiaries on and after the consummation of the Combination, in each case, inclusive of any successors and assigns permitted by this Agreement.
WHEREAS, the Executive possesses unique personal knowledge, experience and expertise;
WHEREAS, effective as of February 5, 2018 (the “ Effective Date ”), the Company desires to employ the Executive, and the Executive desires to be employed by the Company, upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, effective as of immediately following the consummation of the Combination (the “ Closing ”), Holdings will hold the majority of the voting power of the Company’s common stock;
WHEREAS, commencing as of the Effective Date, the Executive shall serve as the Company’s Executive Vice President, Commercial Operations; and
WHEREAS, the Company and the Executive desire to enter into this Agreement as to the terms and conditions of the Executive’s employment with the Company effective as of the Effective Date.
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
 
1.	EMPLOYMENT AND DUTIES	
1.1     Term of Employment . Subject to Section 8.2 below, the Executive’s initial term of employment under this Agreement shall commence on the Effective Date and shall continue until June 30, 2021 (the “ Initial Term ”), unless further extended or earlier terminated as provided in this Agreement. This Agreement will automatically be renewed for single one-year

periods unless written notice of non-renewal (a “ Non-Renewal Notice ”) is provided by any party at least 90 days prior to the end of the Initial Term or the successive one-year period then in effect or unless earlier terminated as provided in this Agreement. Neither non-renewal of this Agreement for additional periods after the third anniversary of the Effective Date, nor expiration of this Agreement as a result of such non-renewal, shall, by itself, result in termination of the Executive’s employment. The period of time between the Effective Date and the termination of the Executive’s employment under this Agreement shall be referred to herein as the “ Term. ”
1.2     General .
1.2.1    Subject to the terms set forth herein, as of the Effective Date, the Executive shall serve as the Executive Vice President, Commercial Operations of the Company and shall perform such duties as are customarily associated with such position and such other reasonable duties consistent with such position as may from time to time be assigned to Executive by the Company.    During the Term (i) prior to the Closing, the Executive shall report to the President of Amneal and (ii) following the Closing, the Executive shall report to the President and Chief Executive Officer of the Company.
1.2.2    The Executive shall faithfully and diligently discharge his duties hereunder and use his reasonable best efforts to achieve the objectives assigned to him from time to time by the Company. The Executive shall devote substantially all of his business time, attention, knowledge and skills faithfully, diligently and to the best of his ability, in furtherance of the business and activities of the Company; provided , however , that nothing in this Agreement shall preclude the Executive from devoting reasonable periods of time required for:
(i)    serving as a director or member of a committee, in each case, in a non-lead, non-chair role, of up to two (2) publicly traded corporations and up to one (1) private organization or corporation, in each case, that does not, in the good faith determination of the Board, compete with the Company or otherwise create, or could create, in the good faith determination of the Board a conflict of interest with the business of the Company;
(ii)    delivering lectures, fulfilling speaking engagements, and any writing or publication relating to his area of expertise; provided , however , that any fees, royalties or honorariums received therefrom shall be promptly turned over to the Company;
(iii)    engaging in professional organization and program activities;
(iv)    managing his personal passive investments and affairs; and
(v)    participating in charitable or community affairs;
provided that such activities do not, either individually or in the aggregate, materially interfere with the performance of his duties and responsibilities under this Agreement or create a conflict of interest with the business of the Company as determined in good faith by the Board.
1.3     Reimbursement of Expenses . The Company shall promptly reimburse the Executive for all reasonable, documented, out-of-pocket travel and other business expenses incurred by the Executive in the performance of the Executive’s duties to the Company in
 
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accordance with the Company’s applicable expense reimbursement policies and procedures as are in effect from time to time. To the extent any such reimbursements (and any other reimbursements of costs and expenses provided for herein) are includable in the Executive’s gross income for Federal income tax purposes, all such reimbursements shall be made no later than March 15 of the calendar year next following the calendar year in which the expenses to be reimbursed are incurred.
 
2.	COMPENSATION	
2.1     Base Salary . During the Term, the Executive shall be entitled to receive a base salary at the annual rate of $650,000 (the “ Base Salary ”). The Base Salary shall be subject to increase but not decrease in the sole discretion of the Board, provided however, that any increase in Base Salary shall become the Base Salary under this Agreement and shall not be decreased from such increased amount. The Base Salary shall be paid in accordance with the payroll practices of the Company, but not less than monthly.
2.2     Incentive Bonuses . During the Term, the Executive shall be eligible to receive an annual bonus targeted at 80% of the Executive’s Base Salary (the “ Incentive Bonus ”) under the annual incentive program adopted by the Board, as may be amended from time to time. The amount of Incentive Bonus payable for any year shall be based on the achievement of reasonable performance objectives established by the Board, as determined in its discretion, and, based on achievement, may be between zero and 150% of the Executive’s Base Salary. The Incentive Bonus will be prorated for the Executive’s initial year of employment. Except as provided herein, the Executive must be employed by the Company through the date of payment any Incentive Bonus in order to remain eligible for such Incentive Bonus. The target amount of the Incentive Bonus shall be subject to increase but not decrease in the sole discretion of the Board. The Incentive Bonus will be paid to Executive at the same general time as paid to other senior executives of the Company, but no later than 75 days following the end of the applicable fiscal year for which the Incentive Bonus is payable.
2.3     Equity Awards .
2.3.1     Sign-On Restricted Stock Units . In consideration of the Executive’s commencement of employment with the Company, on, or as promptly as practicable following, the Closing, but no later than 30 days immediately following the Closing, the Company shall grant to the Executive an award of restricted stock units (the “ Sign-On RSUs ”) having a grant date fair value equal to $1,000,000. The Sign-On RSUs will vest in respect of 25% of the total number of Sign-On RSUs on each of the first four anniversaries of the Closing, subject to the Executive’s continuous services to the Company through the applicable vesting date. The Sign-On RSUs shall otherwise be subject to the terms of the plan pursuant to which they are granted and an award agreement to be entered into between the Executive and the Company and Section 4.4.2(iii) or 4.4.3(iii) (as applicable) below.
2.3.2     Stock Option Grant . On, or as promptly as practicable following, the Closing, but no later than 30 days immediately following the Closing, the Company shall grant to the Executive an option to purchase (the “ Initial Option ”) that number of shares of the Company common stock necessary for the Initial Option to have a grant date fair value of $2,000,000 (with
 
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such fair value determined on the same basis that grant values are determined for other senior executives of the Company). The per share exercise price of the Initial Option shall be equal to the per share fair market value of the Company’s common stock on the date of grant. The Initial Option shall vest and become exercisable with respect to 25% of the total number of shares subject to the Initial Option on each of the first four anniversaries of the Closing, subject to the Executive’s continuous service to the Company through the applicable vesting date. The Initial Option shall otherwise be subject to the terms of the plan pursuant to which they are granted and an award agreement to be entered into between the Executive and the Company and Section 4.4.2(iii) or 4.4.3(iii) (as applicable) below.
2.3.3     Substitute Unit Grant . In the event that the Business Combination Agreement is terminated without the consummation of the Combination (a “No-Closing Event”), the Company will grant to the Executive one or more Company profit participation unit awards (“Substitute Awards”) providing for an aggregate economic opportunity of not less than $3,000,000, based on reasonable assumptions regarding Company performance, such grant to be made within 30 days following such No-Closing Event.
2.3.4     Future Equity Awards . Following the Closing, the Executive will be eligible to receive stock options, restricted stock units and other equity incentive grants as determined by the Board in its sole discretion.
2.4     Additional Compensation . During the Term, in addition to the foregoing, the Executive shall be eligible to receive such other compensation as may from time to time be awarded him by the Board or the Compensation Committee of the Board.
 
3.	EMPLOYEE BENEFITS	
(a) During the Term, the Executive shall be entitled to participate in and have the benefit of all group life, disability, hospital, surgical and major medical insurance plans and programs and other employee benefit plans and programs as generally are made available to executive personnel of the Company, as such benefit plans or programs may be amended or terminated in the sole discretion of the Board or the Compensation Committee of the Board, from time to time.
(b) The Executive shall be entitled to at least 20 (or such greater number as offered generally to other senior executives of the Company) paid vacation days per calendar year in accordance with the Company’s vacation policy in effect from time to time, provided that any unused vacation days in any calendar year shall be carried over to the next calendar year subject to any accrual caps under the Company’s vacation policy.
 
4.	TERMINATION OF EMPLOYMENT	
4.1     General . The Executive’s employment under this Agreement may be terminated without any breach of this Agreement only on the following circumstances:
4.1.1     Death . The Executive’s employment under this Agreement shall terminate upon his death.
 
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4.1.2     Disability . If the Executive suffers a Disability (as defined below), the Board may terminate the Executive’s employment under this Agreement upon 30 days prior written notice; provided that the Executive has not returned to full time performance of his duties during such 30-day period. For purposes of this Agreement, “ Disability ” shall mean the Executive’s inability to perform his duties and responsibilities hereunder, with or without reasonable accommodation, due to any physical or mental illness or incapacity, which condition either (i) has continued for a period of 180 consecutive days (including weekends and holidays) in any 365-day period, or (ii) is projected by the Board in good faith after consulting with a licensed physician mutually selected by the Board and the Executive (or, in the event of the Executive’s incapacity, his legal representative), that the condition is likely to continue for a period of at least six consecutive months from its commencement.
4.1.3     Good Reason . The Executive may terminate his employment under this Agreement for Good Reason (as defined below). For purposes of this Agreement, “ Good Reason ” shall mean the occurrence of any of the following events without the Executive’s express written consent:
(i)    any action or inaction by the Company constituting a material breach of the Agreement by the Company;
(ii)    a material diminution of the titles, positions, reporting line, authorities, duties, or responsibilities of the Executive set forth in Section 1.2 above (other than temporarily while the Executive is physically or mentally incapacitated and unable to properly perform such duties, as determined by the Board in good faith), or the assignment to the Executive of titles, authorities, duties, or responsibilities that are inconsistent with his position of Executive Vice President, Commercial Operations of the Company;
(iii)    the loss of any of the titles of the Executive with the Company set forth in Section 1.2 above;
(iv)    a reduction by the Company in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus except for across-the-board reductions, not to exceed 10%, of base salary or incentive bonus generally affecting senior executives of the Company on a similar percentage basis;
(v)    the relocation of the Executive’s principal office more than 35 miles from Bridgewater, New Jersey;
(vi)    the delivery by the Board to the Executive of a Non-Renewal Notice in accordance with Section 1.1; or
(vii)    an adverse change in the reporting structure set forth in Section 1.2.1 hereof.
Notwithstanding the foregoing, the Executive may not terminate his employment for Good Reason under this Section 4.1.3 unless (i) the Executive provides written notice to the Board of the occurrence of an event constituting Good Reason within 30 days of the Executive’s knowledge of its initial occurrence and (ii) if curable, the Board shall fail to cure such event
 
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constituting Good Reason within 30 days following its receipt of such written notice. The Date of Termination shall be the date the Board receives the Executive’s Notice of Termination if the event constituting Good Reason is not curable and 30 days after the date the Board receives the Executive’s Notice of Termination if the event constituting Good Reason is curable and remains uncured 30 days after the Board receives the Executive’s notice of Termination. The foregoing notwithstanding, in the event that the event constituting Good Reason is the Board’s delivery to the Executive of a Non-Renewal Notice as set forth in Section 4.1.3(vi) prior to the date that is 30 days before the end of the Initial Term, then the Date of Termination shall be deemed to be the expiry of the Initial Term.
4.1.4     Without Good Reason . The Executive may voluntarily terminate his employment under this Agreement without Good Reason upon written notice by the Executive to the Board at least 60 days prior to the effective date of such termination (which termination the Board may, in its sole discretion, make effective earlier than the date set forth in the Notice of Termination (as defined below)).
4.1.5     Cause . The Board may terminate the Executive’s employment under this Agreement at any time for Cause (as defined below). For purposes of this Agreement, termination for “ Cause ” shall mean any of the following as determined in good faith by the Board:
(i)    the willful and continued failure by the Executive to substantially perform his obligations under this Agreement (other than any such failure resulting from the Executive’s incapacity due to a Disability); provided , however , that the Board shall have provided the Executive with a Notice of Termination specifying such failure and the Executive shall have been afforded at least 15 business days within which to cure same;
(ii)    the Executive’s conviction of or plea of guilty or nolo contendere to a felony or a misdemeanor involving material dishonesty;
(iii)    the Executive’s willful misconduct in the performance of his duties hereunder (including theft, fraud, embezzlement, and securities law violations) that results in material economic or reputational harm to the Company;
(iv)    the Executive’s violation of the Company’s Code of Conduct or other written policies made available to Executive or with respect to which he should reasonably be aware that results in material economic or reputational harm to the Company; provided , however , that the Board shall have provided the Executive with a Notice of Termination specifying such violation and the Executive shall have been afforded at least 15 business days within which to cure same; or
For purposes of this Section 4.1.5, no act or failure to act on the part of the Executive shall be considered “ willful ,” unless done, or omitted to be done, in good faith or without reasonable belief that his action or omission was in, or not opposed to, the best interest of the Company (including their reputation). For the avoidance of doubt, no act or failure to act on the part of the Executive based upon the direction or advice of legal counsel to the Company shall be deemed to constitute Cause hereunder.
 
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Prior to any termination for Cause, the Board shall provide the Executive with a Notice of Termination specifying the event constituting Cause and shall give the Executive the opportunity to appear before the Board, with or without counsel, to present his views on the Cause event. If, after such hearing, at least two-thirds of the full Board (excluding the Executive) does not support such termination, the Notice of Termination shall be rescinded. After providing the notice in the foregoing sentence, the Board may suspend the Executive with full pay and benefits until a final determination pursuant to this Section has been made.
4.1.6     Without Cause . The Board may terminate the Executive’s employment under this Agreement without Cause immediately upon written notice by the Board to the Executive, other than for death or Disability.
4.1.7     Definition of Change in Control . For purposes of this Agreement, a “ Change in Control ” shall be deemed to occur upon any of the following events that occurs after the Closing, provided that such an event constitutes a “change in control event” within the meaning of Section 409A of the Code (as defined below): (a) any “ person ” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the equity securities of the Company), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of equity securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding equity securities; (b) during any period of 12 consecutive months, the individuals who, at the beginning of such period, constitute the Board, and any new director whose election by the Board or nomination for election by the Company’s equityholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the 12-month period (or the Closing if later than such date) or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the Board; (c) a merger or consolidation of the Company with any other corporation or other entity, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (and held by persons that are not affiliates of the acquirer) continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided , however , that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person (other than those covered by the exceptions in clause (a) of this Section 4.1.7) acquires more than 50% of the combined voting power of the Company’s then outstanding securities shall not constitute a Change in Control; or (d) the consummation of a sale or other disposition by the Company of all or substantially all of the Company’s assets, including a liquidation, other than the sale or other disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, more than 50% of the combined voting power of the outstanding voting securities of the Company immediately prior to the time of the sale or other disposition. For the avoidance of doubt, the parties hereby agree that the Combination shall not constitute a Change in Control under this Agreement.
 
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4.2     Notice of Termination . Any termination of the Executive’s employment by the Board or by the Executive (other than termination by reason of the Executive’s death) shall be communicated by written Notice of Termination to the other party of this Agreement. For purposes of this Agreement, a “ Notice of Termination ” shall mean a written notice which shall indicate the specific termination provision in this Agreement relied upon and, other than with respect to a termination pursuant to Section 4.1.6 hereof, shall set forth in reasonable detail the facts and circumstances claimed to provide the basis for such termination.
4.3     Date of Termination . The “ Date of Termination ” shall mean (a) if the termination is the result of the Executive’s death, the date of his death, (b) if the termination is pursuant to Section 4.1.2 hereof, 30 days after the Notice of Termination is given (provided that the Executive shall not have returned to the performance of his duties on a full-time basis during such 30-day period), (c) if the termination is pursuant to Section 4.1.3 or Section 4.1.5 hereof, the date specified in the Notice of Termination after the expiration of any applicable cure period (subject to the last sentence of Section 4.1.3), (d) if the termination is pursuant to Section 4.1.4 hereof, the date specified in the Notice of Termination which shall be at least 60 days after the Notice of Termination is given, or such earlier date as the Board shall determine in its sole discretion, and (e) if the termination is pursuant to Section 4.1.6 hereof, the date on which the Notice of Termination is given.
4.4     Compensation Upon Termination .
4.4.1     Termination for Cause or without Good Reason . If the Executive’s employment shall be terminated by the Board for Cause or by the Executive without Good Reason, the Company shall pay or provide to the Executive: (a) any earned but unpaid Base Salary through the Date of Termination, paid in accordance with the Company’s standard payroll practices; (b) reimbursement for any unreimbursed expenses properly incurred and paid in accordance with Section 1.3 hereof through the Date of Termination; (c) payment for any accrued but unused vacation time in accordance with the Company’s policy; (d) all equity awards previously granted to the Executive that have vested in accordance with the terms of such grants; and (e) such vested accrued benefits, and other payments, if any, as to which the Executive (and his eligible dependents) may be entitled under, and in accordance with the terms and conditions of, the employee benefit arrangements, plans and programs of the Company as of the Date of Termination, other than any severance pay plan (such amounts and benefits set forth in clauses (a) though (e) being referred to hereinafter as the “ Amounts and Benefits ”), and the Company shall have no further obligation with respect to this Agreement other than as provided in Sections 5, 6.5 and 7 hereof. Any equity awards previously granted to the Executive that have not vested in accordance with the terms of their grants as of the Date of Termination shall be forfeited as of the Date of Termination.
4.4.2     Termination Apart from a Change in Control . If, at any time prior to the expiration of the Term and other than during a Change in Control Period (as defined below), the Executive resigns from his employment hereunder with Good Reason, or the Board terminates the Executive’s employment hereunder without Cause, then the Company shall pay or provide the Executive the Amounts and Benefits and, subject to Section 4.4.5, a severance payment and equity vesting as follows:
 
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(i)    an amount equal to two times the Base Salary as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), with the aggregate amount due paid in equal installments on the Company’s normal payroll dates for a period of 24 months from the Date of Termination in accordance with the normal payroll practices of the Company, with each such payment deemed to be a separate payment for the purposes of Section 409A of the Code;
(ii)    (A) a pro-rated portion of the Incentive Bonus for the year during which the Date of Termination occurs based on the number of days the Executive serves the Company during such year and actual performance of the corporate goals for such Incentive Bonus, inclusive of any adjustments made by the Board that are applied to all other executive participants in the annual incentive program, such pro-rated Incentive Bonus to be paid in a lump sum at the same time related bonuses are paid to executives who continue to be employed by the Company and, in any event, in the calendar year following the year during which the Date of Termination occurs and (B) the prior year’s bonus to the extent not then already paid with the amount based on the higher of target or actual performance of the relevant goals, such prior year’s Incentive Bonus to be paid in a lump sum at the same time related bonuses are paid to executives who continue to be employed by the Company;
(iii)    the vesting, and if applicable, exercisability of each outstanding equity award granted to the Executive by the Company shall accelerate in respect of that number of shares of Company common stock (or other equity securities) that would have vested had the Executive’s employment with the Company continued through the first anniversary of the Date of Termination and, to the extent applicable, shall remain exercisable for a period of not less than 12 months following the Date of Termination (unless doing so would not comply with Code Section 409A (as defined in Section 8.9 hereof);
(iv)    During the period commencing on the Date of Termination and ending as of the second anniversary of the Date of Termination, or, if earlier, the date on which the Executive becomes eligible for comparable replacement coverage under a subsequent employer’s group health plan (in any case, the “ COBRA Period ”), subject to the Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to the Executive and the Executive’s dependents, at the Company’s sole expense, or (B) reimburse the Executive and the Executive’s dependents for coverage under its group health plan (if any) at the same levels in effect on the Date of Termination; provided, however , that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health plans, or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining subsidy shall thereafter be paid to the Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof); and
(v)    Outplacement services provided to the Executive by a reputable national outplacement service provider for up to two years following the Date of Termination.
 
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4.4.3     Termination Following Change in Control . Anything contained herein to the contrary notwithstanding, in the event the Executive resigns from his employment hereunder with Good Reason, the Board terminates the Executive’s employment hereunder without Cause or Executive’s employment terminates by reason of death or Disability, in each case, within the period commencing three months prior to a Change in Control and ending 24 months following the Change in Control (a “ Change in Control Period ”), then, in lieu of any amount otherwise payable pursuant to Section 4.4.2, the Company shall pay or provide the Executive the Amounts and Benefits and, subject to Section 4.4.5, a severance payment as follows:
(i)    an amount equal to the sum of (x) two times the Base Salary as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), plus (y) an amount equal to two times the Executive’s target Incentive Bonus as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), with the aggregate amount due paid in a lump sum on the first payroll date on or following the 60th day after the Date of Termination;
(ii)    (A) a pro-rated portion of the Incentive Bonus for the year during which the Date of Termination occurs based on the number of days the Executive serves the Company during such year and actual performance of the corporate goals for such Incentive Bonus, inclusive of any adjustments made by the Board that are applied to all other executive participants in the annual incentive program, such pro-rated Incentive Bonus to be paid in a lump sum at the same time related bonuses are paid executives who continue to be employed by the Company and, in any event, in the calendar year following the year during which the Date of Termination occurs and (B) the prior year’s bonus to the extent not then already paid with the amount based on the higher of target or actual performance of the relevant goals, such prior year’s Incentive Bonus to be paid in a lump sum at the same time related bonuses are paid to executives who continue to be employed by the Company;
(iii)    During the COBRA Period, subject to the Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to the Executive and the Executive’s dependents, at the Company’s sole expense, or (B) reimburse the Executive and the Executive’s dependents for coverage under its group health plan (if any) at the same levels in effect on the Date of Termination; provided, however , that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health plans, or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining subsidy shall thereafter be paid to the Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof);
(iv)    The vesting and, if applicable, exercisability of each equity award granted to the Executive by the Company shall accelerate in respect of 100% of the shares of the Company common stock subject thereto effective as of the Date of Termination and, to the extent applicable, shall remain exercisable for a period of not less than 12 months following the Date of Termination (unless doing so would not comply with Code Section 409A (as defined in Section 8.9 hereof); and
 
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(v)    Outplacement services provided to the Executive by a reputable national outplacement service provider for up to two years following the Date of Termination.
4.4.4     No Mitigation or Offset; Nature of Payments . The Executive shall not be required to mitigate the amount of any payment provided for in this Section 4.4 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 4.4 be reduced by any compensation earned by the Executive as the result of employment by another employer or business or by profits earned by the Executive from any other source at any time before and after the Date of Termination. Any amounts due under this Section 4.4 are in the nature of severance payments considered to be reasonable by the Company and are not in the nature of a penalty.
4.4.5     Release . Notwithstanding any provision to the contrary in this Agreement, the Company’s obligation to pay or provide the Executive with the payments and benefits under Sections 4.4.2 and 4.4.3 (other than the Amounts and Benefits), and any accelerated vesting with respect to the equity awards under Section 4.4.3, shall be conditioned on the Executive’s execution and failure to revoke a waiver and general release in a form generally consistent with Exhibit B hereto (subject to such changes as may be necessary at the time of execution in order to make such release enforceable) (the “ Release ”). The Company shall provide the Release to the Executive within seven days following the applicable Date of Termination. In order to receive the payments and benefits under Sections 4.4.2 and 4.4.3 (other than the Amounts and Benefits) and the accelerated vesting with respect to the equity awards under Section 4.4.3, the Executive will be required to execute and deliver the Release within 45 days after the date it is provided to him and not to revoke it within seven days following such execution and delivery.
 
5.	INSURABILITY; RIGHT TO INSURE	
The Company shall have the right to maintain key man life insurance in its own name covering the Executive’s life in an amount of up to $50,000,000.00. The Executive shall fully cooperate in the procuring of such insurance, including submitting to any required medical examination and by completing, executing and delivering such applications and other instrument in writing as may be reasonably required by any insurance company to which application for insurance may be made by the Company. The Company’s ability to procure any key man life insurance covering Executive’s life shall not be a condition of employment.
 
6.	CONFIDENTIALITY; NON-COMPETITION; NON-SOLICITATION; NON- DISPARAGEMENT; COOPERATION	
6.1     Confidential Information . The Parties acknowledge that the services to be performed by the Executive under this Agreement are unique and extraordinary and, as a result of such employment, the Executive shall be in possession of Confidential Information (as defined below) relating to the business practices of the Company and the members thereof. The term “ Confidential Information ” shall mean any and all information (oral and written) relating to the Company, or any of their respective activities, or of the clients, customers or business
 
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practices of the Company, except (i) as such disclosure or use may be required or appropriate in connection with his work as an employee of the Company, (ii) when required to do so by a court of law, by any governmental agency having supervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order him to divulge, disclose or make accessible such information, (iii) as to such confidential information that becomes generally known to the public or trade without his violation of this Section 6.1, or (iv) to the Executive’s spouse, attorney and/or his personal tax and financial advisors as reasonably necessary or appropriate to advance the Executive’s tax, financial and other personal planning (each an “Exempt Person”), provided, however , that any disclosure or use of any trade secret or proprietary or confidential information of the Company by an Exempt Person shall be deemed to be a breach of this Section 6.1 by the Executive.
6.2    Confidential Information includes, but it not limited to, information that the Executive creates, develops, derives, obtains, makes known, or learns about which has commercial value in the business in which the Company is involved and which is treated by the Company as confidential, such as trade secrets, ideas, processes, formulas, compounds, compositions, research and clinical data, know-how, discoveries, developments, designs, innovations, plans, strategies, pricing, costs, financial information, employee information, forecasts and current and prospective customer and supplier lists. The Executive shall not, during the Term or at any time thereafter, except as may be required in the course of the performance of his duties hereunder (including pursuant to Section 6.6 below) and except with respect to any litigation or arbitration involving this Agreement (or otherwise between the Executive and the Company), including the enforcement hereof, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any Confidential Information acquired by the Executive during, or as a result of, his employment with the Company, without the prior written consent of the Board. Without limiting the foregoing, the Executive understands that the Executive shall be prohibited from misappropriating any trade secret of the Company or of the clients or customers of the Company acquired by the Executive during, or as a result of, his employment with the Company, at any time during or after the Term. Further without limiting the foregoing, as a condition of Executive’s employment with the Company, the Executive shall enter into the Company’s standard Employee Confidentiality, Non-Solicitation and Ownership of Inventions Agreement (the “ Proprietary Information Agreement ”). In the event of a conflict between this Agreement and the Proprietary Information Agreement, this Agreement shall control.
6.3     Return of Property . Upon the termination of the Executive’s employment for any reason all property of the Company that is in the possession of the Executive, including all documents, records, drug formulations, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials that contain Confidential Information that are in the possession of the Executive, including all copies thereof, shall be promptly returned to the Company. Anything to the contrary herein notwithstanding, the Executive shall be entitled to retain (i) papers and other materials of a personal nature, including photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes and (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the Company.
 
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6.4     Non-Competition . The Executive acknowledges that the Executive has been provided with Confidential Information and, during the Term, the Company from time to time will provide Executive with access to Confidential Information. Ancillary to the rights provided to the Executive as set forth in this Agreement, the Executive’s continued employment with the Company during the Term (subject to earlier termination as provided herein), and the Company’s provision of Confidential Information, and the Executive’s agreements regarding the use of same, in order to protect the value of any Confidential Information, and in consideration for good and valuable consideration received by the Executive, the Parties agree to the following provisions against unfair competition, which the Executive acknowledges represent a fair balance of the Company’s rights to protect its business and the Executive’s right to pursue employment.    The Executive hereby agrees that he shall not, during the Term and, except as provided below, for a period of 9 months thereafter, directly or indirectly, engage or have an interest in, or render any services to, any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) (such activities hereinafter referred to collectively as “ Engaging ”) that (i) competes directly with the Company and (ii) then constitutes one of the four top competitors of the Company by volume as determined by IMS. Notwithstanding the foregoing, nothing herein shall prevent the Executive from (i) owning securities in a publicly traded entity whose activities compete with those of the Company, provided that such securities holdings are not greater than five percent of the equity ownership in such entity or making passive investments in private equity funds, hedge funds, mutual funds or similar investment vehicles; (ii) Engaging in the business of the ownership and licensing (as licensor) of trademarks and brands if the products or services carrying such trademarks and brands do not compete with the products or services carrying the trademarks and brands owned and licensed (as licensor) by the Company, or that the Company is actively planning to own or license (as licensor), during the Term; or (iii) Engaging in an operating company (including ownership of securities of such operating company’s holding company) with annual revenues not in excess of $10,000,000.    The non-competition restrictions in this Section 6.4 shall cease to apply following the end of the Term if the Company provides a Non-Renewal Notice pursuant to Section 1.1 hereof.
6.5     Prohibition on Use of Confidential Information to Solicit Customers and Prospects . During the Executive’s employment, the Executive shall not engage in any other employment or activity that might materially interfere with the interests of the Company. Furthermore, the Executive shall not, except in the furtherance of the Executive’s duties hereunder, directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity, (i) during the Term (except in the good faith performance of his duties) and for a period of 24 months thereafter, solicit, aid or induce any employee, representative or agent of the Company to leave such employment or retention or to accept employment with or render services to or with any other person, firm, corporation or other entity unaffiliated with the Company or hire or retain any such employee, representative or agent, or take any action to materially assist or aid any other person, firm, corporation or other entity in identifying, hiring or soliciting any such employee, representative or agent, other (x) than any such employee, representative or agent whose employment has been terminated by the Company and (y) his personal assistant(s), (ii) during the Term (except in the good faith performance of his duties) and for a period of 12 months thereafter, solicit, aid or induce (or attempt to do any of the foregoing) directly or indirectly, any current or prospective customer of the Company with whom the Executive substantially dealt with at any time during the last two years of the
 
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Executive’s employment to purchase goods or services then sold by the Company from another person, firm, corporation or other entity or assist or aid any other persons or entity in identifying or soliciting any such customer or (iii) during the Term (except in the good faith performance of his duties) and for a period of 24 months thereafter, interfere in any manner with the relationship of the Company and any of its vendors. An employee, representative or agent shall be deemed covered by this Section 6.5 while so employed or retained by the Company and for six months thereafter. Anything to the contrary herein notwithstanding, the following shall not be deemed a violation of this Section 6.4: (a) the Executive’s solicitation of the Company’s customers and/or vendors in connection with, and directly related to, his Engaging in a business that complies with Sections 6.3(ii) or (iii); (b) the Executive’s responding to an unsolicited request for an employment reference regarding any former employee of the Company from such former employee, or from a third party, by providing a reference setting forth his personal views about such former employee; or (c) if an entity with which the Executive is associated hires or engages any employee of the Company, if the Executive was not, directly or indirectly, involved in hiring or identifying such person as a potential recruit or assisting in the recruitment of such employee. For purposes hereof, the Executive shall be deemed to have been involved “ indirectly ” in soliciting, hiring or identifying an employee only if the Executive (x) directs a third party to solicit or hire the Employee, (y) identifies an employee to a third party as a potential recruit or (z) aids, assists or participates with a third party in soliciting or hiring an employee.
6.6     Non-Disparagement . At no time during or within five years after the Term shall (x) the Executive, directly or indirectly, disparage the Company or any of the Company’s past or present employees, directors, products or services and (y) the Company, including its subsidiaries, parents and affiliates, directly or indirectly, disparage the Executive. In addition, the Company shall instruct and shall use reasonable efforts so that each director and officer of the Company and its subsidiaries and parents not to, directly or indirectly, disparage the Executive. Notwithstanding the foregoing, nothing in this Section 6.5 shall prevent any entity or person from making any truthful statement to the extent (i) necessary to rebut any untrue public statements made about him or her or it; (ii) necessary with respect to any litigation, arbitration or mediation involving this Agreement and the enforcement thereof; (iii) required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with jurisdiction over such person; (iv) made as good faith competitive statements in the ordinary course of business or (v) made in good faith in the performance of duties (e.g., in the course of providing performance reviews).
6.7     Cooperation . Upon the receipt of reasonable notice from the Company (including outside counsel), the Executive shall, while employed by the Company and thereafter, respond and provide information with regard to matters of which the Executive has knowledge as a result of the Executive’s employment with the Company and will provide reasonable assistance to the Company and its representatives in defense of any claims that may be made against the Company, and will provide reasonable assistance to the Company in the prosecution of any claims that may be made by the Company, to the extent that such claims may relate to matters related to the Executive’s period of employment with the Company. Any request for such cooperation shall take into account the Executive’s personal and business commitments and is subject to his personal and business schedule. The Executive shall promptly inform the Board (to the extent the Executive is legally permitted to do so) if the Executive is asked to assist in any investigation of the Company or their actions, regardless of whether a lawsuit or other
 
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proceeding has then been filed with respect to such investigation. If the Executive is required to provide any services pursuant to this Section 6.6 following the Term, upon presentation of appropriate documentation, the Company shall promptly reimburse the Executive for reasonable out-of-pocket travel, lodging, communication and duplication expenses incurred in connection with the performance of such services and in accordance with the Company’s expense policy for its senior officers (provided that it shall be in Executive’s discretion to travel via first or business class, which costs shall be reimbursable by the Company), for reasonable legal fees to the extent the Executive in good faith believes that separate legal representation is reasonably required, and for the Executive’s time at a rate equivalent to the Executive’s most recent base salary. In addition, if the Executive’s cooperation exceeds 2 days in any calendar month, then the Executive shall be compensated at a per diem rate of $5,000 for any full or partial day of such cooperation. The Executive’s entitlement to reimbursement of such costs and expenses, including legal fees, pursuant to this Section 6.6, shall in no way affect the Executive’s rights, if any, to be indemnified and/or advanced expenses in accordance with the Company’s (or any of its subsidiaries’) corporate or other organizational documents, any applicable insurance policy, and/or in accordance with this Agreement.
6.8     Remedies and Reformation . Without intending to limit the remedies available to the Company, the Executive acknowledges that a breach of any of the covenants contained in this Section 6 may result in material and irreparable injury to the Company for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat the Company shall be entitled to seek a temporary restraining order and/or a preliminary or permanent injunction in a court of jurisdiction restraining the Executive from engaging in activities prohibited by this Section 6 or such other relief as may be required specifically to enforce any of the covenants in this Section 6. If for any reason it is held that the restrictions under this Section 6 are not reasonable or that consideration therefor is inadequate, such restrictions shall be interpreted or modified to include as much of the duration and scope identified in this Section as will render such restrictions valid and enforceable.
6.9     Violations . In the event of any violation of the provisions of this Section 6, the Executive acknowledges and agrees that: (a) the post-termination restrictions contained in this Section 6 shall be extended by a period of time equal to the period of such violation, it being the intention of the Parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation; (b) any severance payable which remains unpaid or other benefits yet to be received under Section 4.4.2 or 4.4.3 shall be forfeited by the Executive; and (c) any vested options not exercised as of the date of any violation of the provisions of this Section 6 shall be forfeited.
 
7.	INDEMNIFICATION; DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE	
During the Term and thereafter, the Company shall indemnify and hold harmless the Executive and his heirs and representatives as, and to the extent, provided in the Company’s organizational documents. In addition, the Executive shall be entitled to enter into a form of indemnification agreement on terms and conditions no less favorable than the indemnification agreement entered into between the Company and members of the Board. The Company agrees to continue and maintain a directors and officers’ liability insurance policy covering the Executive to the extent the Company provides such coverage for its other executive officers.
 
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8.	MISCELLANEOUS	
8.1     Notices . All notices or communications hereunder shall be in writing, addressed as follows (or to such other address as either party may have furnished to the other in writing by like notice):

To the Company:	  	Amneal Pharmaceuticals LLC	
	  	400 Crossing Boulevard	
	  	Bridgewater, NJ 08807	
	  	Attention: President and Chief Executive Officer	
		
With a copy to:	  	General Counsel	
		
To the Executive:	  	At the last address for the Executive on the books of the Company.	
All such notices shall be conclusively deemed to be received and shall be effective (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy or facsimile transmission, upon confirmation of receipt by the sender of such transmission, (iii) if sent by overnight courier, one business day after being sent by overnight courier, or (iv) if sent by registered or certified mail, postage prepaid, return receipt requested, on the fifth day after the day on which such notice is mailed.
8.2     T esting; Verification . As a condition of the Executive’s employment with the Company, the Executive will be required to successfully complete the Company’s standard onboarding procedures, including any background check and drug testing, the cost of which shall be paid by the Company. In addition, to comply with Department of Homeland Security, the Executive will be required to provide verification of the Executive’s identity and legal right to work in the United States and must complete a Form I-9 within the first three (3) days of the Effective Date. The Company shall notify the Executive of the identity of a clinic for drug testing that is local to the Executive, and the Executive hereby agrees to schedule an appointment with such clinic within forty-eight (48) hours of the date of this Agreement. In the event the Executive fails any such tests or such verification, then this Agreement shall be void ab initio and of no further force or effect.
8.3     Severability . Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
8.4     Binding Effect; Benefits . The Executive may not delegate his duties or assign his rights hereunder. Except as explicitly provided in the Agreement, no rights or obligations of the Company under this Agreement may be assigned or transferred by the Company other than
 
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pursuant to a merger or consolidation in which the Company is not the continuing entity, or a sale, liquidation or other disposition of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets or businesses of the Company and assumes the liabilities, obligations and duties of the Company under this Agreement, either contractually or by operation of law. The Company further agree that, in the event of any disposition of their business and assets described in the preceding sentence, they shall use their best efforts to cause such assignee or transferee expressly to assume the liabilities, obligations and duties of the Company hereunder.
8.5     Entire Agreement . This Agreement, collectively with the Exhibits hereto and the Proprietary Information Agreement, represent the entire agreement of the Parties with respect to the subject matter hereof and shall supersede any and all previous contracts, arrangements, proposed terms or understandings between the Parties. This Agreement (including any of the Exhibits hereto) may be amended, modified or replaced at any time by mutual written agreement of the Parties. In the case of any conflict between any term or provision of this Agreement and any term or provision contained in any agreement, policy, plan, program, arrangement, employment manual, memorandum or other written document between or relating to the Company and the Executive or any rule of general applicability of the Company, this Agreement shall control and prevail.
8.6     Withholding . The payment of any amount pursuant to this Agreement shall be subject to applicable withholding and payroll taxes, and such other deductions as may be required by applicable law.
8.7     Governing Law . This Agreement and the performance of the Parties hereunder shall be governed by the internal laws (and not the law of conflicts) of the State of New Jersey, unless superseded by federal law.
8.8     Arbitration . Any dispute or controversy, including, but not limited to, discrimination claims and claims involving a class, arising under or in connection with this Agreement or the Executive’s employment with the Company, other than injunctive relief under Section 6.7 hereof, shall be settled exclusively by arbitration, conducted before a single arbitrator in New Jersey (applying New Jersey law) in accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration Association then in effect. The decision of the arbitrator will be final and binding upon the Parties hereto. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The Parties acknowledge and agree that in connection with any such arbitration and regardless of outcome (a) each party shall pay all its own costs and expenses, including without limitation its own legal fees and expenses, and (b) joint expenses shall be borne equally among the Parties. EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY.
8.9     Section 409A of the Code .
8.9.1     General . It is intended that the provisions of this Agreement comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and the regulations and guidance promulgated thereunder (collectively “ Code Section  409A ”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for
 
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avoiding taxes or penalties under Code Section 409A. If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A, the Company shall, upon the specific request of the Executive, use its reasonable business efforts to in good faith reform such provision to comply with Code Section 409A; provided, that to the maximum extent practicable, the original intent and economic benefit to the Parties of the applicable provision shall be maintained. The Company shall timely use its reasonable business efforts to amend any plan or program in which the Executive participates to bring it in compliance with Code Section 409A.
8.9.2     Separation from Service; Six-Month Delay . A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “ Separation from Service ” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “ resignation ,” “ termination ,” “ termination of employment ” or like terms shall mean Separation from Service. If the Executive is deemed on the Date of Termination to be a “ specified employee ,” within the meaning of that term under Section (a)(2)(B) of Code Section 409A (“ Code Section  409(a)(2)(B) ”) and using the identification methodology selected by the Company, as applicable, from time to time, or if none, the default methodology, then with regard to any payment, the providing of any benefit or any distribution of equity made subject to this Section 8.10.2, to the extent required to be delayed in compliance with Code Section 409A(a)(2)(B), and any other payment, the provision of any other benefit or any other distribution of equity that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment, benefit or distribution shall not be made or provided prior to the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s Separation from Service or (ii) the date of the Executive’s death. On the first day of the seventh month following the date of the Executive’s Separation from Service or, if earlier, on the date of his death, (x) all payments delayed pursuant to this Section 8.10.2 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein and (y) all distributions of equity delayed pursuant to this Section 8.10.2 shall be made to the Executive. In addition to the foregoing, to the extent required by Code Section 409A(a)(2)(B), prior to the occurrence of both a Disability termination as provided in Section 4.1.2 hereof and the Executive’s becoming “disabled” under Code Section 409A, the payment of any compensation to the Executive under this Agreement shall be suspended for a period of six months commencing at such time that the Executive shall be deemed to have had a Separation from Service because either (A) a sick leave ceases to be a bona fide sick leave of absence, or (B) the permitted time period for a sick leave of absence expires (an “ SFS Disability ”), without regard to whether such SFS Disability actually results in a Disability termination. Promptly following the expiration of such six-month period, all compensation suspended pursuant to the foregoing sentence (whether it would have otherwise been payable in a single sum or in installments in the absence of such suspension) shall be paid or reimbursed to the Executive in a lump sum. On any delayed payment date under this Section 8.10.2, there shall be paid to the Executive or, if the Executive has died, to his estate, in a single cash lump sum together with the payment of such delayed payment, interest on the aggregate amount of such delayed payment at the Delayed Payment Interest Rate (as
 
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defined below) computed from the date on which such delayed payment otherwise would have been made to the Executive until the date paid. For purposes of the foregoing, the “ Delayed Payment Interest Rate ” shall mean the prime interest rate as reported in The Wall Street Journal as of the business day immediately preceding the payment date for the applicable delayed payment.
8.9.3     Expense Reimbursement . With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Internal Revenue Code and the regulations and guidance promulgated thereunder solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred.
8.10     Consultants/Attorney’s Fees . The Company shall promptly pay directly or reimburse the Executive for all consultants and attorneys’ fees, disbursements and costs incurred by the Executive in connection with the negotiation, preparation and execution of this Agreement, which in the aggregate shall not exceed $7,500.
8.11     Survivorship . Except as otherwise expressly set forth in this Agreement, upon the expiration of the Term, the respective rights and obligations of the Parties shall survive such expiration to the extent necessary to carry out the intentions of the Parties as embodied in this Agreement. This Agreement shall continue in effect until there are no further rights or obligations of the Parties outstanding hereunder and shall not be terminated by either party without the express prior written consent of all Parties.
8.12     Counterparts . This Agreement may be executed in counterparts (including by electronic transmission) which, when taken together, shall constitute one and the same agreement of the Parties.
8.13     Company Representations . As of the Effective Date, the Company represents and warrants to the Executive that (i) the execution, delivery and performance of this Agreement (and the agreements referred to herein) by the Company has been fully and validly authorized by all necessary corporate action, (ii) the officer or director signing this Agreement on behalf of the Company is duly authorized to do so, (iii) the execution, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or decree or any agreement, plan or corporate governance document to which the Company is a party or by which it is bound and (iv) upon execution and delivery of this Agreement by the Executive and the Company, it shall be a valid and binding obligation of the Company enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.
 
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[Signature Page Follows]
 
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IN WITNESS WHEREOF, Amneal and Holdings have caused this Agreement to be duly executed and the Executive has hereunto set his hand, as of the date first set forth above.

Amneal Pharmaceuticals LLC	

By:	 	/s/ Chirag Patel	
			
Name:  Chirag Patel	
Title:   Co-CEO and Chairman	
 
Amneal Holdings, LLC	

By:	 	/s/ Chirag Patel	
			
Name:  Chirag Patel	
Title:   Management Member	

/s/ Andrew Boyer	
Andrew Boyer	
 
Signature Page to Employment Agreement

Exhibit A
(To be signed on or within 50 days after termination. Please do not sign before the date of termination.)
RELEASE AGREEMENT
(Age 40 or Older)
In exchange for my receipt of the severance payments and benefits set forth in Sections 4.4.2 and 4.4.3 of my Employment Agreement, dated [            ], 201[8] (as amended, my “ Employment Agreement ”), with Amneal Pharmaceuticals LLC (the “ Company ”) [and Amneal Pharmaceuticals, Inc. (“ Parent ”)], and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, I do hereby release and forever discharge the “ Releasees ” hereunder, consisting of the Company [and Parent], and each of their subsidiaries and affiliates, and, in their capacity as such, each of their predecessors, successors, partners, directors, officers, employees, attorneys and agents, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed or contingent, in connection with or arising under my employment with the Company [Parent] (hereinafter called “ Claims ”), which I now have or have ever had against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date I sign this Release Agreement. The Claims released herein include, and are limited to: (1) all claims arising out of or in any way related to my service or employment relationship with any of the Releasees or the termination of that relationship; (2) all claims related to my compensation or benefits from the any of the Releasees, including salary, bonuses, commissions, Paid Time Off, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in [Parent,] the Company or any of their respective subsidiaries and affiliates (collectively, the “ Group Entities ”); (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including (without limitation) claims for discrimination, harassment, retaliation, attorneys’ fees, and other claims arising under the Age Discrimination in Employment Act, as amended (the “ ADEA ”); Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Civil Rights Act of 1866; the Family and Medical Leave Act of 1993, as amended; the Americans with Disabilities Act of 1990, as amended; the False Claims Act, as amended; the Employee Retirement Income Security Act, as amended; the Fair Labor Standards Act, as amended; the Sarbanes-Oxley Act of 2002; the Worker Adjustment Notification and Retraining Act; the New Jersey Law Against Discrimination; the New Jersey Conscientious Employee Protection Act; the New Jersey Family Leave Act; the New Jersey Wage Payment Law; the New Jersey Wage and Hour Law; the New Jersey Equal Pay Act; and retaliation claims under the New Jersey Workers’ Compensation Law.
Notwithstanding the foregoing, this Release Agreement shall not be construed in any way to release any Claim (i) to payments and benefits under Section 4.4.2 and 4.4.3 of my Employment Agreement, (ii) to accrued or vested benefits I may have, if any, as of the date

hereof under any applicable plan, policy, practice, program, contract or agreement with any Group Entity, (iii) for indemnification and/or advancement of expenses, arising under any indemnification agreement between me and any Group Entity or under the bylaws, certificate of incorporation or other similar governing document of any Group Entity or to coverage under applicable directors’ and officers’ or other third party liability insurance policy(ies) maintained by the Company or any of its affiliates, (iv) to any rights or benefits that may not be waived pursuant to applicable law, including, without limitation, any right to unemployment insurance benefits, (v) that arises after the date I execute this Release Agreement, or (vi) to my right to communicate directly with, cooperate with, or provide information to, any federal, state or local government regulator.
For the avoidance of doubt, nothing in this Release will be construed to prohibit me from filing a charge with, reporting possible violations to, or participating or cooperating with any governmental agency or entity, including but not limited to the EEOC, the Department of Justice, the Securities and Exchange Commission, the National Labor Relations Board, Congress, or any agency Inspector General, or making other disclosures that are protected under the whistleblower, anti-discrimination, or anti-retaliation provisions of federal, state or local law or regulation; provided, however , that I may not disclose information of the Releasees that is protected by the attorney-client privilege, except as otherwise required by law. I do not need the prior authorization of the applicable Releasee to make any such reports or disclosures, and I am not required to notify the applicable Releasee that I have made such reports or disclosures.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA, and that the consideration given under my Employment Agreement for the waiver and release I am providing herein is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) my waiver and release do not apply to any rights or claims that may arise after the date I sign this Release Agreement; (b) I should consult with an attorney prior to signing this Release Agreement (although I may choose voluntarily not to do so); (c) I have forty-five (45) days to consider this Release Agreement (although I may choose voluntarily to sign this Release Agreement before the end of the 45-day period) and to return the signed Release Agreement to the Company; (d) I have seven (7) days following the date I sign this Release Agreement (the “ Revocation Period ”) to revoke the Release Agreement as described below; and (e) this Release Agreement shall not be effective until the date upon which the Revocation Period has expired, which shall be the eighth day after I sign this Release Agreement (the “ Effective Date ”). I understand and agree that if I choose to revoke this Release Agreement, I must deliver notice of such revocation in writing, by personal delivery, email or mail, to [NAME], [TITLE] (            @            .com) at the Company, [ADDRESS], no later than 5:00 p.m. Pacific Time on the last day of the Revocation Period. If mailed, the revocation must be properly addressed and postmarked no later than the last day of the Revocation Period.
I represent that I have no lawsuits, claims or actions pending in my name, or on behalf of myself or any other person or entity, against any of the Releasees. I agree that I will not voluntarily provide assistance, information or advice, directly or indirectly (including through agents or attorneys), to any person or entity in connection with any actual or potential claim or cause of action of any kind against the Releasees and I shall not induce or encourage any person or entity to do so, unless compelled or authorized to do so by law. Notwithstanding the

foregoing, I retain the right to file a charge with the Equal Employment Opportunity Commission and equivalent federal, state and local agencies, and to cooperate with investigations by any such agencies.
I acknowledge and represent that I have not suffered any discrimination or harassment by any of the Releasees on account of race, gender, national origin, religion, marital or registered domestic partner status, sexual orientation, age, disability, veteran status, medical condition or any other characteristic protected by applicable law. I acknowledge and represent that I have not been denied any leave, benefits or rights to which I may have been entitled under the FMLA or any other federal or state law, and that I have not suffered any job-related wrongs or injuries for which I might be entitled to compensation or relief. I further acknowledge and represent that, other than the benefits that will be provided to me pursuant to Sections 4.4.2 and 4.4.3 of my Employment Agreement, I have been paid all wages, bonuses, compensation, benefits and other amounts that any of the Releasees has ever owed to me, and I am not entitled to any additional compensation, severance or benefits after the date on which my employment with the Group Entities terminated, with the sole exception of any benefit the right to which has vested under the express terms of a Group Entity benefit plan document.
In addition, I hereby acknowledge my continuing obligations under my Employee Confidentiality, Non-Solicitation and Ownership of Inventions Agreement with the Company and under Section 6 of the Employment Agreement, including (without limitation) my obligations not to use or disclose any proprietary or confidential information of the Group Entities. Notwithstanding anything herein or in my Employee Confidentiality, Non-Solicitation and Ownership of Inventions Agreement with the Company, I acknowledge and I agree that, pursuant to 18 USC Section 1833(b), I will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
I agree that if I commence any suit arising out of, based upon, or relating to any of the Claims released under this Release Agreement, then I will pay to the Releasees, and each of them, in addition to any other damages caused to the Releasees thereby, all attorneys’ fees incurred by the Releasees in defending or otherwise responding to such suit; provided, that, this paragraph shall not apply with respect to any compulsory counterclaims within the meaning of Rule 13(a) of the Federal Rules of Civil Procedure, asserted by me against the Releasees bringing claims against me.
I agree that if any provision of this Release Agreement is determined to be invalid or unenforceable, in whole or in part, this determination will not affect any other provision of this Release Agreement and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the Parties insofar as possible under applicable law. I understand that this Release Agreement, together with my Employment Agreement, constitutes the complete, final and exclusive embodiment of the entire agreement between [Parent,] the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by [Parent or] the Company that is not expressly stated therein.

I acknowledge that in order for this Release Agreement to become effective, I must sign this Release Agreement and return it by email or mail to [NAME], [TITLE] (                @            .com) at the Company, [ADDRESS], on or within fifty (50) days after the date on which my employment terminated, and I must not exercise my right to revoke the Release Agreement as described above.
I have carefully read and fully understand this Release Agreement, and agree to be bound by its terms.

Printed Name:	 	 	

Signature:	 	 	

Date:	 	 	

Exhibit 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (“ Agreement ”), entered into as of December 12, 2012 (the “ Effective Date ”), by and between Impax Laboratories, Inc., a Delaware corporation (the “ Company ”), and Bryan M. Reasons (the “ Executive ”).
W I T N E S S E T H:
WHEREAS, the Executive possesses unique personal knowledge, experience and expertise concerning the business and operations conducted by the company;
WHEREAS, the Company desires to continue the employment of the Executive, and the Executive desires to continue to be employed by the Company, upon the terms and subject to the conditions set forth in this Agreement; and
WHEREAS, effective as of the Effective Date, the Company and the Executive desire to enter into this Agreement as to the terms and conditions of the Executive’s continued employment with the Company.
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
1.	EMPLOYMENT AND DUTIES	
1.1  Term of Employment . The Executive’s initial term of employment under this Agreement shall commence on the Effective Date and shall continue until December 31, 2013 (the “ Initial Term ”), unless further extended or earlier terminated as provided in this Agreement. This Agreement will automatically be renewed for single one-year periods unless written notice of non-renewal is provided by either party at least 90 days prior to the end of the Initial Term or the successive one-year period then in effect or unless earlier terminated as provided in this Agreement. Neither non-renewal of this Agreement for additional periods after December 31, 2013, nor expiration of this Agreement as a result of such non-renewal, shall, by itself, result in termination of Executive’s employment. The period of time between the Effective Date and the termination of the Executive’s employment under this Agreement or the expiration of this Agreement, whichever is earlier, shall be referred to herein as the “ Term. ”
1.2  General .
1.2.1 During the Term, the Executive shall have the title of Senior Vice President, Finance and Chief Financial Officer of the Company and shall have the authorities, duties and responsibilities of the principal financial and/or accounting officer of the Company and such other authorities, duties and responsibilities as are prescribed by the Company’s by-laws, or as may from time to time be delegated to him by the Board of Directors of the Company (the “Board”) or the Chief Executive Officer of the Company. The Executive shall faithfully and diligently discharge his duties hereunder and use his best efforts to implement the policies established by the Board from time to time. During the Term, the Executive shall report to the Chief Executive Officer.
 
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1.2.2 The Executive shall devote all of his business time, attention, knowledge and skills faithfully, diligently and to the best of his ability, in furtherance of the business and activities of the Company; provided , however , that nothing in this Agreement shall preclude the Executive from devoting reasonable periods of time required for:
(i) serving as a director or member of a committee of up to two (2) organizations or corporations that do not, in the good faith determination of the Board, compete with the Company or otherwise create, or could create, in the good faith determination of the Board, a conflict of interest with the business of the Company;
(ii) delivering lectures, fulfilling speaking engagements, and any writing or publication relating to his area of expertise; provided , however , that any fees, royalties or honorariums received therefrom shall be promptly turned over to the Company;
(iii) engaging in professional organization and program activities;
(iv) managing his personal passive investments and affairs; and
(v) participating in charitable or community affairs;
provided that such activities do not materially, individually or in the aggregate, interfere with the due performance of his duties and responsibilities under this Agreement or create a conflict of interest with the business of the Company, as determined in good faith by the Board.
1.2.3 The Executive shall obtain a comprehensive medical examination every two years during the Term, and the Company shall reimburse the Executive the cost thereof to the extent not reimbursed by health insurance.
1.3  Reimbursement of Expenses . During the Term, the Company shall pay the reasonable expenses incurred by the Executive in the performance of his duties hereunder, including, without limitation, those incurred in connection with business related travel or entertainment, or, if such expenses are paid directly by the Executive, the Company shall promptly reimburse him for such payments, provided that the Executive properly accounts for such expenses in accordance with the Company’s business expense reimbursement policy. To the extent any such reimbursements (and any other reimbursements of costs and expenses provided for herein) are includable in the Executive’s gross income for Federal income tax purposes, all such reimbursements shall be made no later than March 15 of the calendar year next following the calendar year in which the expenses to be reimbursed are incurred.
 
2.	COMPENSATION	
2.1  Base Salary . During the Term, the Executive shall be entitled to receive a base salary at the annual rate of $385,000.00, subject to increase or decrease, as determined by the Board or its Compensation Committee from time to time in its discretion, payable in accordance with the payroll practices of the Company (the “ Base Salary ”).
 
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2.2  Incentive Bonuses . In addition to the Base Salary, during the Term the Executive shall participate in the Company’s management bonus program whereby the Executive will be eligible to receive an annual cash incentive bonus based upon a percentage of the Base Salary and attainment of goals established in writing by the Board or its Compensation Committee at the beginning of each year (the “ Incentive Bonus ”) for each completed calendar year (subject to Section 5.4 hereof) of service with the Company. Such bonus shall be paid within 2-1/2 months following the end of the calendar year to which it relates. The Executive’s potential bonus for 2012 is targeted at 50% of the Base Salary and potentially up to 75% of the Base Salary, and for 2013 is targeted at 60% of the Base Salary and potentially up to 90% of the Base Salary, in each case, depending upon the achievement of certain business and individual objectives and criteria for each period.
2.3  Options and Stock Awards . During the Term, the Executive shall be eligible to receive such other grants of stock options and restricted stock in such amounts and subject to such terms as determined by the Compensation Committee in its sole discretion.
2.4  Relocation Allowance . The Company shall pay the Executive a relocation allowance in the gross amount of $130,000.00, less all applicable taxes and other required withholdings, which may be used toward any and all expenses that the Executive may incur in moving to the Bay Area in California. The Company shall pay such allowance as follows: (i) $65,000.00 within thirty (30) days following the Effective Date, and (ii) the remaining $65,000.00 on the first payroll date following the Executive’s relocation to the Bay Area as demonstrated by delivery to the Company of satisfactory proof of a permanent move; provided , however , that (i) if within one (1) year of the Effective Date the Executive voluntarily terminates his employment without Good Reason or the Company terminates the Executive’s employment for Cause (as such terms are defined below), then the Executive shall repay to the Company the full amount of the relocation allowance received, and (ii) if such an event as described in subparagraph (i) above occurs after the first anniversary of the Effective Date and prior to the second anniversary of the Effective Date, then the Executive shall repay to the Company the second of the relocation allowance payments received. If either relocation allowance is required to be repaid pursuant to the proviso in the preceding sentence, the Executive shall repay the applicable relocation allowance to the Company within thirty (30) days of the Executive’s last day of employment.
2.5  Home-Finding Trips . The Company will reimburse the Executive for reasonable and appropriate expenses for two home-finding trips during the six (6) months following the Effective Date, upon proper accounting for such expenses. Home-finding trips will be limited to no more than a combined total of 8 days.
2.6  Reimbursement of Temporary Living Expenses . Pending acquisition of a permanent residence in California’s Bay Area, the Company shall reimburse the Executive up to $3,000.00 per month for temporary living expenses for up to a period of eight (8) months following the Effective Date, upon proper accounting for such expenses. Such reimbursements will cease once the Executive becomes eligible to receive the second relocation allowance payment as set forth in Paragraph 2.4 above, or after a period of eight (8) months, whichever occurs first.
 
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2.7  Additional Compensation . During the Term, in addition to the foregoing, the Executive shall be eligible to receive such other compensation as may from time to time be awarded him by either the Board or the Compensation Committee in its sole discretion.
 
3.	PLACE OF PERFORMANCE	
In connection with his employment by the Company, the Executive shall be based at the Company’s principal executive offices in Hayward, California.
 
4.	EMPLOYEE BENEFITS	
During the Term, the Executive shall be entitled to paid time off generally made available to executive personnel of the Company and to participate in and have the benefit of all group life, disability, hospital, surgical and major medical insurance plans and programs and other employee benefit plans and programs as generally are made available to executive personnel of the Company, as such benefit plans or programs may be amended or terminated in the sole discretion of the Board and with the concurrence of the Compensation Committee, from time to time.
 
5.	TERMINATION OF EMPLOYMENT	
5.1  General . The Executive’s employment under this Agreement may be terminated without any breach of this Agreement only on the following circumstances:
5.1.1  Death . The Executive’s employment under this Agreement shall terminate upon his death.
5.1.2  Disability . If the Executive suffers a Disability (as defined below), the Company may terminate the Executive’s employment under this Agreement upon 30 days prior written notice; provided that the Executive has not returned to full time performance of his duties during such 30-day period. For purposes of this Agreement, “ Disability ” shall mean the Executive’s inability to perform his duties and responsibilities hereunder, with or without reasonable accommodation, due to any physical or mental illness or incapacity, which condition either (i) has continued for a period of 180 days (including weekends and holidays) in any consecutive 365-day period, or (ii) is projected by the Board in good faith after consulting with a doctor selected by the Company and consented to by the Executive (or, in the event of the Executive’s incapacity, his legal representative), such consent not to be unreasonably withheld, that the condition is likely to continue for a period of at least six consecutive months from its commencement.
5.1.3  Good Reason . The Executive may terminate his employment under this Agreement for Good Reason (as defined below) at any time on or prior to the 60th day after the occurrence of any of the Good Reason events set forth in the following sentence. For purposes of this Agreement, “ Good Reason ” shall mean the occurrence of any of the following events without the Executive’s consent and which is not cured by the Company upon written notice by the Executive, such notice to have been provided by the Executive within 30 days of any such event having occurred:
 
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(i) any action or inaction by the Company constituting a material breach of the Agreement by the Company;
(ii) a material diminution of the authorities, duties or responsibilities of the Executive set forth in Section 1.2 above (other than temporarily while the Executive is physically or mentally incapacitated and unable to properly perform such duties, as determined by the Board in good faith);
(iii) the loss of any of the titles of the Executive with the Company set forth in Section 1.2 above;
(iv) a material reduction by the Company in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus, but, except in the case of a reduction following a Change in Control (as defined below), not including (a) a reduction in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus which is consistent with the reduction in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus imposed on all senior executives of the Company or (b) a reduction in the Base Salary or in any of the percentages of the Base Salary payable as an Incentive Bonus based on the results of peer benchmark data obtained by the Board and after approval of the Board;
(v) the relocation of the Executive to an office more than 50 miles from its current Hayward location;
(vi) the assignment to the Executive of duties or responsibilities that are materially inconsistent with any of his duties and responsibilities set forth in Section 1.2 hereof;
(vii) a material change in the reporting structure set forth in Section 1.2.1 hereof; or
(viii) the failure of the Company to obtain the assumption in writing of its obligation to perform this Agreement by any successor in connection with a sale or other disposition by the Company of all or substantially all of the Company’s assets or businesses within 10 days after such sale or other disposition.
5.1.4  Without Good Reason . The Executive may voluntarily terminate his employment under this Agreement without Good Reason upon written notice by the Executive to the Company at least 60 days prior to the effective date of such termination (which termination the Company may, in its sole discretion, make effective earlier than the date set forth in the Notice of Termination (as defined below)).
5.1.5  Cause . The Company may terminate the Executive’s employment under this Agreement at any time for Cause (as defined below). For purposes of this Agreement, termination for “ Cause ” shall mean termination of the Executive’s employment because of the occurrence of any of the following as determined in good faith by the Board:
 
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(i) the willful and continued failure by the Executive to substantially perform his obligations under this Agreement (other than any such failure resulting from the Executive’s incapacity due to a Disability); provided , however , that the Company shall have provided the Executive with a Notice of Termination specifying such failure and the Executive shall have been afforded at least 15 days within which to cure same;
(ii) the indictment of the Executive for, or his conviction of or plea of guilty or nolo contendere to, a felony or any other crime involving moral turpitude or dishonesty;
(iii) the Executive’s willful misconduct in the performance of his duties hereunder (including theft, fraud, embezzlement, and securities law violations or violation of the Company’s Code of Conduct or other written policies); or
(iv) the Executive’s willful misconduct other than in the performance of his duties for the Company (including theft, fraud, embezzlement, and securities law violations) that is actually or potentially materially injurious to the Company, monetarily or otherwise.
For purposes of this Section 5.1.5, no act or failure to act on the part of the Executive shall be considered “ willful ,” unless done, or omitted to be done, without reasonable belief that his action or omission was in, or not opposed to, the best interest of the Company (including its reputation). Prior to any termination for Cause, the Company shall provide the Executive with a Notice of Termination specifying the event constituting Cause and shall give the Executive the opportunity to appear before the Board to present his views on the Cause event. If, after such hearing, the majority of the full Board (excluding the Executive) does not support such termination, the Notice of Termination shall be rescinded. After providing the notice in the foregoing sentence, the Board may suspend the Executive with full pay and benefits until a final determination pursuant to this Section has been made.
5.1.6  Without Cause . The Company may terminate the Executive’s employment under this Agreement without Cause immediately upon written notice by the Company to the Executive, other than for death or Disability.
5.2  Notice of Termination . Any termination of the Executive’s employment by the Company or by the Executive (other than termination by reason of the Executive’s death) shall be communicated by written Notice of Termination to the other party of this Agreement. For purposes of this Agreement, a “ Notice of Termination ” shall mean a written notice which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide the basis for such termination.
5.3  Date of Termination . The “ Date of Termination ” shall mean (a) if the termination is the result of the Executive’s death, the date of his death, (b) if the termination is pursuant to Section 5.1.2 hereof, 30 days after the Notice of Termination is given (provided that the Executive shall not have returned to the performance of his duties on a full-time basis during such 30-day period), (c) if the termination is pursuant to Section 5.1.5 or Section 5.1.3 hereof, the date specified in the Notice of Termination after the expiration of any applicable cure period, (d) if the termination is pursuant to Section 5.1.4 hereof, the date specified in the Notice of Termination which shall be at least 60 days after the Notice of Termination is given, or such earlier date as the Company shall determine in its sole discretion, and (e) if the termination is pursuant to Section 5.1.6 hereof, the date on which the Notice of Termination is given.
 
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5.4  Compensation Upon Termination .
5.4.1  Termination for Cause or without Good Reason . If the Executive’s employment shall be terminated by the Company for Cause or by the Executive without Good Reason, then the Executive shall receive from the Company: (a) any earned but unpaid portion of the Base Salary through the Date of Termination, paid in accordance with the Company’s standard payroll practices; (b) any Incentive Bonus earned but unpaid for a prior fiscal year, paid in accordance with Section 2.2; (c) reimbursement for any unreimbursed expenses properly incurred and paid in accordance with Section 1.3 and Sections 2.5 and 2.6 through the Date of Termination; (d) payment for any accrued but unused vacation time in accordance with Company policy; (e) all stock options and restricted stock previously granted to the Executive that have vested in accordance with the terms of such grants; and (f) such vested accrued benefits, and other payments, if any, as to which the Executive (and his eligible dependents) may be entitled under, and in accordance with the terms and conditions of, the employee benefit arrangements, plans and programs of the Company as of the Date of Termination, other than any severance pay plan (such amounts and benefits set forth in clauses (a) though (f) being referred to hereinafter as the “ Amounts and Benefits ”), and the Company shall have no further obligation with respect to this Agreement other than as provided in Sections 7.4, 8 and 9 hereof. Any stock options and restricted stock previously granted to the Executive that have not vested in accordance with the terms of their grants as of the Date of Termination shall be forfeited as of the Date of Termination.
5.4.2  Termination without Cause or For Good Reason . If, prior to the expiration of the Term, the Executive resigns from his employment hereunder for Good Reason or the Company terminates the Executive’s employment hereunder without Cause (other than a termination by reason of death or Disability), and Section 5.4.3 does not apply, then the Company shall pay or provide the Executive the Amounts and Benefits and, subject to Section 5.4.8:
(i) Subject to Section 9.9.2, an amount equal to the sum of (x) the balance of the Base Salary due under this Agreement or one and one half times the Base Salary as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), whichever is the greater, plus (y) an amount equal to one and one half times the average of the Incentive Bonus the Executive received from the Company for all fiscal years completed during the Term, with the aggregate amount due paid in equal installments on the Company’s normal payroll dates for a period of 12 months from the Date of Termination in accordance with the normal payroll practices of the Company, with each such payment deemed to be a separate payment for the purposes of Code Section 409A (as defined below);
(ii) in the event such resignation or termination occurs following the Company’s first fiscal quarter of any year, a pro rata portion of the Executive’s Incentive Bonus for the fiscal year in which the Executive’s termination occurs based on actual results for such year (determined by multiplying the amount of such Incentive Bonus which would be due for the full fiscal year, as determined in good faith by the Board, by a fraction, the numerator of which is the number of days during the fiscal year of termination that the Executive is employed by the Company and the denominator of which is 365), paid in accordance with, and at the times specified in, Section 2.2 (“ Pro Rata Bonus ”); and
 
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(iii) the continuation of all benefits for 24 months from the Date of Termination.
In addition, subject to Section 5.4.8, the vesting of all unvested stock options and restricted stock previously granted to the Executive shall be accelerated by 12 months, and any such stock options, notwithstanding any provision to the contrary in the option or the plan pursuant to which the option was granted, shall remain exercisable for a period of 12 months following the Date of Termination.
5.4.3  Termination Following Change in Control . Anything contained herein to the contrary notwithstanding, if the Executive resigns from his employment hereunder for Good Reason, the Company terminates the Executive’s employment hereunder without Cause (other than a termination by reason of death or Disability) within 60 days preceding or 12 months following a Change in Control (as defined below), or the Term expires or is not renewed due to the Company’s delivery of a notice of nonrenewal and the Executive’s employment is then terminated without Cause within 12 months following a Change in Control, then the Company shall pay or provide the Executive the Amounts and Benefits and, subject to Section 5.4.8, a change-in-control payment as follows:
(i) subject to Section 9.9.2, an amount equal to the sum of (x) the balance of the Base Salary due under this Agreement or two and one quarter times the Base Salary as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), whichever is the greater, plus (y) an amount equal to two and one quarter times the average of the Incentive Bonus the Executive received from the Company for all fiscal years completed during the Term, with the aggregate amount due paid in equal installments on the Company’s normal payroll dates for a period of 12 months from the Date of Termination in accordance with the normal payroll practices of the Company, with each such payment deemed to be a separate payment for the purposes of Code Section 409A (as defined below);
(ii) in the event such resignation or termination occurs following the Company’s first fiscal quarter of any year, a Pro Rata Bonus; and
(iii) the continuation of all benefits for 24 months from the Date of Termination.
In addition, subject to Section 5.4.8, the vesting of all unvested stock options and restricted stock previously granted to the Executive shall be accelerated to the Date of Termination, and any such stock options, notwithstanding any provision to the contrary in the option or the plan pursuant to which the option was granted, shall remain exercisable for a period of 12 months following the Date of Termination.
 
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5.4.4 For purposes of this Agreement, a “ Change in Control ” shall be deemed to occur upon any of the following events, provided that such an event is a Change in Control Event within the meaning of Code Section 409A (as defined below): (a) any “ person ” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the common stock), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities; (b) during any period of 12 consecutive months, the individuals who, at the beginning of such period, constitute the Board, and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the 12-month period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the Board; (c) a merger or consolidation of the Company with any other corporation or other entity, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (and held by persons that are not affiliates of the acquirer) continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided , however , that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person (other than those covered by the exceptions in clause (a) of this Section 5.4.4) acquires more than 50% of the combined voting power of the Company’s then outstanding securities shall not constitute a Change in Control; or (d) the consummation of a sale or other disposition by the Company of all or substantially all of the Company’s assets, including a liquidation, other than the sale or other disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, more than 50% of the combined voting power of the outstanding voting securities of the Company immediately prior to the time of the sale or other disposition.
5.4.5  Termination upon Death . In the event of the Executive’s death, the Company shall pay or provide to the Executive’s estate: (i) the Amounts and Benefits and (ii) a Pro Rata Bonus. In addition, (A) all of the then remaining unvested restricted stock previously granted to the Executive shall immediately become vested on the Date of Termination and shall be distributed to the Executive’s estate within 60 days of the Date of Termination and (B) the portion of the unvested stock options previously granted to the Executive that are scheduled to vest in the calendar year of the Executive’s death shall immediately become vested on the certification of the Compensation Committee based on the achievement of the performance goals for such year, calculated through the Date of Termination, and shall be distributed to the Executive’s estate 60 days after the Date of Termination. After giving effect to the foregoing, any portion of the stock options that remain unvested on the certification following the Executive’s death shall be forfeited.
5.4.6  Termination upon Disability . In the event the Company terminates the Executive’s employment hereunder for reason of Disability, the Company shall pay or provide to the Executive: (i) the Amounts and Benefits, (ii) a Pro Rata Bonus and (iii) medical benefits for six months. In addition, subject to Section 5.4.8, (A) 50% of the unvested restricted stock previously granted to the Executive shall immediately become vested on the Date of Termination and shall be distributed to the Executive as provided in, and subject to, Sections 5.4.8 and 9.9.2 and (B) the portion of the unvested stock options previously granted to the Executive that are scheduled to vest in the calendar year the Date of Termination occurs shall immediately become vested on the certification of the Compensation Committee based on the achievement of the performance goals for such year, calculated through the Date of Termination, and shall be distributed to the Executive as provided in, and subject to, Sections 5.4.8 and 9.9.2. After giving effect to the foregoing, any portion of the restricted shares and stock options that remain unvested on the certification following the Date of Termination shall be forfeited as of the Date of Termination.
 
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5.4.7  No Mitigation or Offset . The Executive shall not be required to mitigate the amount of any payment provided for in this Section 5.4 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 5.4 be reduced by any compensation earned by the Executive as the result of employment by another employer or business or by profits earned by the Executive from any other source at any time before and after the Date of Termination.
5.4.8  Release . Notwithstanding any provision to the contrary in this Agreement, the Company’s obligation to pay or provide the Executive with the payments and benefits under Sections 5.4.2 and 5.4.3 (other than the Amounts and Benefits), and any distributions with respect to the restricted stock and stock options under Sections 5.4.2, 5.4.3 and 5.4.6, shall be conditioned on the Executive’s execution and failure to revoke a waiver and general release in a form consistent with Exhibit A hereto (subject to such changes as may be necessary at the time of execution in order to make such release enforceable) (the “ Release ”). The Company shall provide the Release to the Executive within seven days following the applicable Date of Termination. In order to receive the payments and benefits under Sections 5.4.2 and 5.4.3 (other than the Amounts and Benefits) and the distributions with respect to the restricted stock and stock options under Sections 5.4.2, 5.4.3 and 5.4.6, the Executive will be required to execute and deliver the Release within 21 days after the date it is provided to him and not to revoke it within seven days following such execution and delivery. Notwithstanding anything to the contrary contained herein, (i) all payments delayed pursuant to this Section, except to the extent delayed pursuant to Section 9.9.2, shall be paid to the Executive in a lump sum on the first Company payroll date on or following the 60th day after the Date of Termination, and any remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein, with each such payment deemed to be a separate payment for the purposes of Code Section 409A (as defined below) and (ii) all distributions with respect to the restricted stock and stock options delayed pursuant to this Section, except to the extent delayed pursuant to Section 9.9.2, shall be distributed to the Executive on the 60th day after the Date of Termination.
 
6.	INSURABILITY; RIGHT TO INSURE	
The Company shall have the right to maintain key man life insurance in its own name covering the Executive’s life in an amount of up to $50,000,000.00. The Executive shall fully cooperate in the procuring of such insurance, including submitting to any required medical examination and by completing, executing and delivering such applications and other instrument in writing as may be reasonably required by any insurance company to which application for insurance may be made by the Company.
 
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7.	CONFIDENTIALITY; NON-SOLICITATION; NON-DISPARAGEMENT; COOPERATION	
7.1  Confidential Information.  The Company and the Executive acknowledge that the services to be performed by the Executive under this Agreement are unique and extraordinary and, as a result of such employment, the Executive shall be in possession of Confidential Information (as defined below) relating to the business practices of the Company and its subsidiaries and affiliates (collectively, the “ Company Group ”). The term “ Confidential Information ” shall mean any and all information (oral and written) relating to the Company Group, or any of their respective activities, or of the clients, customers or business practices of the Company Group, other than such information which (i) is generally available to the public or within the relevant trade or industry, other than as the result of breach of the provisions of this Section 7.1, or (ii) the Executive is required to disclose under any applicable laws, regulations or directives of any government agency, tribunal or authority having jurisdiction in the matter or under subpoena or other process of law. Confidential Information includes, but it not limited to, information that the Executive creates, develops, derives, obtains, makes known, or learns about which has commercial value in the business in which the Company Group is involved and which is treated by the Company Group as confidential, such as trade secrets, ideas, processes, formulas, compounds, compositions, research and clinical data, know-how, discoveries, developments, designs, innovations, plans, strategies, forecasts and customer and supplier lists. The Executive shall not, during the Term or at any time thereafter, except as may be required in the course of the performance of his duties hereunder (including pursuant to Section 7.5 below) and except with respect to any litigation or arbitration involving this Agreement, including the enforcement hereof, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any Confidential Information acquired by the Executive during, or as a result of, his employment with the Company, without the prior written consent of the Company. Without limiting the foregoing, the Executive understands that the Executive shall be prohibited from misappropriating any trade secret of the Company Group or of the clients or customers of the Company Group acquired by the Executive during, or as a result of, his employment with the Company, at any time during or after the Term.
7.2  Return of Property.  Upon the termination of the Executive’s employment for any reason, all Company Group property that is in the possession of the Executive, including all documents, records, drug formulations, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials that contain Confidential Information that are in the possession of the Executive, including all copies thereof, shall be promptly returned to the Company. Anything to the contrary herein notwithstanding, the Executive shall be entitled to retain (i) papers and other materials of a personal nature, including photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes and (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the Company.
 
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7.3  Prohibition on Use of Confidential Information to Solicit Customers and Prospects.  During the Executive’s employment, the Executive shall not engage in any other employment or activity that might materially interfere with or be in direct competition with the interests of the Company Group. Furthermore, the Executive shall not, except in the furtherance of the Executive’s duties hereunder, directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity, (i) during the Term (except in the good faith performance of his duties) and for a period of 24 months thereafter, solicit, aid or induce any employee, representative or agent of the Company to leave such employment or retention or to accept employment with or render services to or with any other person, firm, corporation or other entity unaffiliated with the Company or hire or retain any such employee, representative or agent, or take any action to materially assist or aid any other person, firm, corporation or other entity in identifying, hiring or soliciting any such employee, representative or agent, (ii) during the Term (except in the good faith performance of his duties) and for a period of 12 months thereafter, use any Confidential Information or trade secrets of the Company Group to solicit, aid, or induce (or attempt to do any of the foregoing), directly or indirectly, any customer or prospective customer of the Company with whom the Executive in any way dealt at any time during the last two years of his employment to purchase goods or services then sold by the Company from another person, firm, corporation or other entity or assist or aid any other persons or entity in identifying or soliciting any such customer or (iii) during the Term (except in the good faith performance of his duties) and for a period of 24 months thereafter, use any Confidential Information or trade secrets to interfere in any manner with the relationship of the Company and any of its vendors. An employee, representative or agent shall be deemed covered by this Section while so employed or retained by the Company and for six months thereafter. Anything to the contrary herein notwithstanding, the following shall not be deemed a violation of this Section 7.3: (a) the Executive’s responding to an unsolicited request for an employment reference regarding any former employee of the Company from such former employee, or from a third party, by providing a reference setting forth his personal views about such former employee; or (b) if an entity with which the Executive is associated hires or engages any employee of the Company, if the Executive was not, directly or indirectly, involved in hiring or identifying such person as a potential recruit or assisting in the recruitment of such employee. For purposes hereof, the Executive shall be deemed to have been involved “ indirectly ” in soliciting, hiring or identifying an employee only if the Executive (x) directs a third party to solicit or hire the Employee, (y) identifies an employee to a third party as a potential recruit or (z) aids, assists or participates with a third party in soliciting or hiring an employee.
7.4  Non-Disparagement.  At no time during or within five years after the Term shall the Executive, directly or indirectly, disparage the Company Group or any of the Company Group’s past or present employees, directors, products or services. The Company shall advise its senior officers and the members of the Board (while serving in such capacities) not to disparage the Executive during the period. Notwithstanding the foregoing, nothing in this Section 7.4 shall prevent any person from making any truthful statement to the extent (i) necessary to rebut any untrue public statements made about him or her; (ii) necessary with respect to any litigation, arbitration or mediation involving this Agreement and the enforcement thereof; (iii) required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with jurisdiction over such person; or (iv) made as good faith competitive statements in the ordinary course of business.
 
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7.5  Cooperation.  Upon the receipt of reasonable notice from the Company (including the Company’s outside counsel), the Executive shall, while employed by the Company and thereafter, respond and provide information with regard to matters of which the Executive has knowledge as a result of the Executive’s employment with the Company and will provide reasonable assistance to the Company Group and its representatives in defense of any claims that may be made against the Company Group (or any member thereof), and will provide reasonable assistance to the Company Group in the prosecution of any claims that may be made by the Company Group (or any member thereof), to the extent that such claims may relate to matters related to the Executive’s period of employment with the Company (or any predecessors). Any request for such cooperation shall take into account the Executive’s personal and business commitments. The Executive shall promptly inform the Company (to the extent the Executive is legally permitted to do so) if the Executive is asked to assist in any investigation of the Company Group (or any member thereof) or their actions, regardless of whether a lawsuit or other proceeding has then been filed with respect to such investigation. If the Executive is required to provide any services pursuant to this Section 7.5 following the Term, upon presentation of appropriate documentation, the Company shall promptly reimburse the Executive for reasonable out-of-pocket travel, lodging, communication and duplication expenses incurred in connection with the performance of such services and in accordance with the Company’s expense policy for its senior officers, and for reasonable legal fees to the extent the Board in good faith believes that separate legal representation is reasonably required. The Executive’s entitlement to reimbursement of such costs and expenses, including legal fees, pursuant to this Section 7.5, shall in no way affect the Executive’s rights, if any, to be indemnified and/or advanced expenses in accordance with the Company’s (or any of its subsidiaries’) corporate or other organizational documents, any applicable insurance policy, and/or in accordance with this Agreement.
7.6  Remedies and Reformation.  Without intending to limit the remedies available to the Company, the Executive acknowledges that a breach of any of the covenants contained in this Section 7 may result in material and irreparable injury to the Company, or its affiliates or subsidiaries, for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat the Company shall be entitled to a temporary restraining order and/or a preliminary or permanent injunction restraining the Executive from engaging in activities prohibited by this Section 7 or such other relief as may be required specifically to enforce any of the covenants in this Section 7. If for any reason it is held that the restrictions under this Section 7 are not reasonable or that consideration therefor is inadequate, such restrictions shall be interpreted or modified to include as much of the duration and scope identified in this Section as will render such restrictions valid and enforceable.
7.7  Violations.  In the event of any violation of the provisions of this Section 7, the Executive acknowledges and agrees that: (a) the post-termination restrictions contained in this Section 7 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation; (b) any severance payable which remains unpaid or other benefits yet to be received under Section 5.4.2 or 5.4.3 shall be forfeited by the Executive; and (c) any vested options not exercised as of the date of any violation of the provisions of this Section 7 shall be forfeited.
 
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8.	INDEMNIFICATION; DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE	
During the Term and thereafter, the Company shall indemnify and hold harmless the Executive and his heirs and representatives as, and to the extent, provided in the Company’s by-laws. During the Term and thereafter, the Company shall also cover Executive under the Company’s directors’ and officers’ liability insurance on the same basis as it covers other senior executive officers and directors of the Company.
 
9.	MISCELLANEOUS	
9.1  Notices . All notices or communications hereunder shall be in writing, addressed as follows (or to such other address as either party may have furnished to the other in writing by like notice):
To the Company:     Impax Laboratories, Inc.
                          31047 Genstar Rd.
                          Hayward, CA 94544
                         Attn: Chairman, Compensation Committee
To the Executive, at the last address for the Executive on the books of the Company.
All such notices shall be conclusively deemed to be received and shall be effective (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy or facsimile transmission, upon confirmation of receipt by the sender of such transmission, (iii) if sent by overnight courier, one business day after being sent by overnight courier, or (iv) if sent by registered or certified mail, postage prepaid, return receipt requested, on the fifth day after the day on which such notice is mailed.
9.2  Severability . Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
9.3  Binding Effect; Benefits . Executive may not delegate his duties or assign his rights hereunder. No rights or obligations of the Company under this Agreement may be assigned or transferred by the Company other than pursuant to a merger or consolidation in which the Company is not the continuing entity, or a sale, liquidation or other disposition of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets or businesses of the Company and assumes the liabilities, obligations and duties of the Company under this Agreement, either contractually or by operation of law. The Company further agrees that, in the event of any disposition of its business and assets described in the preceding sentence, it shall use its best efforts to cause such assignee or transferee expressly to assume the liabilities, obligations and duties of the Company hereunder. For the purposes of this Agreement, the term “ Company ” shall include the Company and, subject to the foregoing, any of its successors and assigns. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective heirs, legal representatives, successors and permitted assigns.
 
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9.4  Modification of Termination Benefits . In the event that RiskMetrics Group or a proxy advisory firm of similar stature recommends that stockholders do not vote in favor of the election of any of the Company’s Directors because of any provision of Sections 5 or 7 of this Agreement, the Executive shall, upon request of the Company, enter into an amendment of this Agreement modifying or eliminating such provision to the extent necessary to cause withdrawal of such recommendation.
9.5  Entire Agreement . This Agreement, including the Exhibits hereto, represent the entire agreement of the parties with respect to the subject matter hereof and shall supersede any and all previous contracts, arrangements, proposed terms, or understandings between the Company and the Executive. This Agreement (including any of the Exhibits hereto) may be amended at any time by mutual written agreement of the parties hereto. In the case of any conflict between any express term of this Agreement and any statement contained in any plan, program, arrangement, employment manual, memorandum or rule of general applicability of the Company, this Agreement shall control.
9.6  Withholding . The payment of any amount pursuant to this Agreement shall be subject to applicable withholding and payroll taxes, and such other deductions as may be required by applicable law.
9.7  Governing Law . This Agreement and the performance of the parties hereunder shall be governed by the internal laws (and not the law of conflicts) of the State of Delaware.
9.8  Arbitration . Any dispute or controversy, including but not limited to statutory discrimination claims and claims involving a class, arising under or in connection with this Agreement or the Executive’s employment with the Company, other than injunctive relief under Section 7.7 hereof, shall be settled exclusively by arbitration, conducted before a single arbitrator in San Francisco, California (applying Delaware law) in accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration Association then in effect. The decision of the arbitrator will be final and binding upon the parties hereto. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The parties acknowledge and agree that in connection with any such arbitration and regardless of outcome (a) each party shall pay all its own costs and expenses, including without limitation its own legal fees and expenses, and (b) joint expenses shall be borne equally among the parties. EACH PARTY WAIVES RIGHT TO TRIAL BY JURY.
9.9  Section 409A of the Code .
9.9.1 It is intended that the provisions of this Agreement comply with Section 409A of the Internal Revenue Code and the regulations and guidance promulgated thereunder (collectively “ Code Section 409A ”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A, the Company shall, upon the specific request of the Executive, use its reasonable business efforts to in good faith reform such provision to comply with Code Section 409A; provided, that to the maximum extent practicable, the original intent and economic benefit to the Executive and the Company of the applicable provision shall be maintained, but the Company shall have no obligation to make any changes that could create any additional economic cost or loss of benefit to the Company. The Company shall timely use its reasonable business efforts to amend any plan or program in which the Executive participates to bring it in compliance with Code Section 409A. Notwithstanding the foregoing, the Company shall have no liability with regard to any failure to comply with Code Section 409A so long as it has acted in good faith with regard to compliance therewith.
 
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9.9.2 A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “ Separation from Service ” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “ resignation, ” “ termination, ” “ termination of employment ” or like terms shall mean Separation from Service. If the Executive is deemed on the Date of Termination to be a “ specified employee ,” within the meaning of that term under Section (a)(2)(B) of Code Section 409A (“ Code Section 409(a)(2)(B) ”)and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard to any payment, the providing of any benefit or any distribution of equity made subject to this Section 9.9.2, to the extent required to be delayed in compliance with Code Section 409A(a)(2)(B), and any other payment, the provision of any other benefit or any other distribution of equity that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment, benefit or distribution shall not be made or provided prior to the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s Separation from Service or (ii) the date of the Executive’s death. On the first day of the seventh month following the date of Executive’s Separation from Service or, if earlier, on the date of his death, (x) all payments delayed pursuant to this Section 9.9.2 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein and (y) all distributions of equity delayed pursuant to this Section 9.9.2 shall be made to the Executive. In addition to the foregoing, to the extent required by Code Section 409A(a)(2)(B), prior to the occurrence of both a Disability termination as provided in Section 5.1.2 hereof and the Executive’s becoming “disabled” under Code Section 409A, the payment of any compensation to the Executive under this Agreement shall be suspended for a period of six months commencing at such time that the Executive shall be deemed to have had a Separation from Service because either (A) a sick leave ceases to be a bona fide sick leave of absence, or (B) the permitted time period for a sick leave of absence expires (an “ SFS Disability ”), without regard to whether such SFS Disability actually results in a Disability termination. Promptly following the expiration of such six-month period, all compensation suspended pursuant to the foregoing sentence (whether it would have otherwise been payable in a single sum or in installments in the absence of such suspension) shall be paid or reimbursed to the Executive in a lump sum. On any delayed payment date under this Section 9.9.2, there shall be paid to the Executive or, if the Executive has died, to his estate, in a single cash lump sum together with the payment of such delayed payment, interest on the aggregate amount of such delayed payment at the Delayed Payment Interest Rate (as defined below) computed from the date on which such delayed payment otherwise would have been made to the Executive until the date paid. For purposes of the foregoing, the “ Delayed Payment Interest Rate ” shall mean the short term Applicable Federal Rate as of the business day immediately preceding the payment date for the applicable delayed payment.
 
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9.9.3 With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Internal Revenue Code and the regulations and guidance promulgated thereunder solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred.
9.10  Survival . Except as otherwise expressly set forth in this Agreement, upon the expiration of the Term, the respective rights and obligations of the parties shall survive such expiration to the extent necessary to carry out the intentions of the parties as embodied in this Agreement. This Agreement shall continue in effect until there are no further rights or obligations of the parties outstanding hereunder and shall not be terminated by either party without the express prior written consent of both parties.
9.11  Counterparts . This Agreement may be executed in counterparts (including by electronic transmission) which, when taken together, shall constitute one and the same agreement of the parties.
9.12  Company Representations . The Company represents and warrants to the Executive that (i) the execution, delivery and performance of this Agreement (and the agreements referred to herein) by the Company has been fully and validly authorized by all necessary corporate action, (ii) the officer signing this Agreement on behalf of the Company is duly authorized to do so, (iii) the execution, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or decree or any agreement, plan or corporate governance document to which the Company is a party or by which it is bound and (iv) upon execution and delivery of this Agreement by the Executive and the Company, it shall be a valid and binding obligation of the Company enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.
[Signature Page Follows]
 
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed and the Executive has hereunto set his hand, as of the date first set forth above.

IMPAX LABORATORIES, INC.	
		
By:	 	/s/ Larry Hsu	
Larry Hsu	
President and Chief Executive Officer	
	
/s/ Bryan M. Reasons	
Bryan M. Reasons	
 
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EXHIBIT A
Form of General Release and Waiver
This General Release and Waiver (this “ Release ”) is entered into effective as of                     , 20        , by                (the “ Executive ”) in favor of Impax Laboratories, Inc. (the “ Company ”).
1.  Confirmation of Termination . The Executive’s employment with the Company is terminated as of                     , 20            (the “ Termination Date ”). Except as set forth in the Employment Agreement (as defined below), the Executive acknowledges that the Termination Date is the termination date of his employment for purposes of participation in and coverage under all benefit plans and programs sponsored by or through the Company. The Executive acknowledges and agrees that the Company shall not have any obligation to rehire the Executive, nor shall the Company have any obligation to consider him for employment, after the Termination Date. The Executive agrees that he will not seek employment with the Company at any time in the future.
2.  Resignation . Effective as of the Termination Date, the Executive hereby resigns as an officer and director of the Company and any of its affiliates and from any such positions held with any other entities at the direction or request of the Company or any of its affiliates. The Executive agrees to promptly execute and deliver such other documents as the Company shall reasonably request to evidence such resignations. In addition, the Executive hereby agrees and acknowledges that the Termination Date shall be date of his termination from all other offices, positions, trusteeships, committee memberships and fiduciary capacities held with, or on behalf of, the Company or any of its affiliates.
3.  Termination Benefits . Upon the Executive’s execution and delivery of this Release and failure to revoke it within the time specified in Section 10 below, then, subject to Section 9 below, the Executive will be entitled to the payments and benefits (subject to taxes and all applicable withholding requirements) set forth under Section [5.4.2] [5.4.3] of the Employment Agreement effective as of December 12, 2012 between the Company and the Executive (the “ Employment Agreement ”) and the distribution with respect to the restricted stock and stock options set forth under Section [5.4.2] [5.4.3] [5.4.6] of the Employment Agreement (the “ Termination Benefits ”). Notwithstanding anything herein to the contrary, the Amounts and Benefits (as defined in the Employment Agreement) shall not be subject to the Executive’s execution of this Release. The Executive acknowledges and agrees that the Termination Benefits exceed any payment, benefit, or other thing of value to which the Executive might otherwise be entitled under any policy, plan or procedure of the Company and/or any agreement between the Executive and the Company, except as provided above.
 
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4.  General Release and Waiver . In consideration of the Termination Benefits, and for other good and valuable consideration, receipt of which is hereby acknowledged, the Executive for himself and for his heirs, executors, administrators, trustees, legal representatives and assigns (collectively, the “ Releasors ”), hereby releases, remises, and acquits the Company and its affiliates and all of their respective past, present and future parent entities, subsidiaries, divisions, affiliates and related business entities, any of their successors and assigns, assets, employee benefit plans or funds, and any of their respective past and/or present directors, officers, fiduciaries, agents, trustees, administrators, managers, supervisors, shareholders, investors, employees, legal representatives, agents, counsel and assigns, whether acting on behalf of the Company or its affiliates or, in their individual capacities (collectively, the “ Releasees ” and each a “ Releasee ”) from any and all claims, known or unknown, which the Releasors have or may have against any Releasee arising on or prior to the date of this Release and any and all liability which any such Releasee may have to the Releasors, whether denominated claims, demands, causes of action, obligations, damages or liabilities arising from any and all bases, however denominated, including but not limited to (a) any claim under the Age Discrimination in Employment Act of 1967 including the Older Workers Benefits Protection Act, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, Section 1981 of the Civil Rights Act of 1866, the Equal Pay Act, the Lilly Ledbetter Fair Pay Act, the Immigration Reform and Control Act of 1986, the Employee Retirement Income Security Act of 1974, (excluding claims for accrued, vested benefits under any employee benefit or pension plan of the Company, subject to the terms and conditions of such plan and applicable law), and the Sarbanes-Oxley Act of 2002, all as amended; (b) any claim under the California Fair Employment and Housing Act and any other provision of the California Labor Law, all as amended, or any other similar state or local laws; (c) any claim under any other Federal, state, or local law and any workers’ compensation or disability claims under any such laws to the extent such claims are waivable; and (d) any claim for attorneys’ fees, costs, disbursements and/or the like. This Release includes, without limitation, any and all claims arising from or relating to the Executive’s employment relationship with Company and his service relationship as an officer or director of the Company or any of its affiliates, or as a result of the termination of such relationships. Notwithstanding any other provision of this Release, this Release is not intended to interfere with the Executive’s right to file a charge with the Equal Employment Opportunity Commission (“ EEOC ”) in connection with any claim he believes he may have against any Releasee. However, by executing this Release, the Executive hereby waives the right to recover in any proceeding the Executive may bring before the EEOC or any state human rights commission or in any proceeding brought by the EEOC or any state human rights commission on the Executive’s behalf. This Release is for any relief, no matter how denominated, including, but not limited to, injunctive relief, wages, back pay, front pay, compensatory damages, punitive damages, and attorneys’ fees. This Release shall not apply to (i) the obligation of the Company to provide the Executive with the Amounts and Benefits and the Termination Benefits and any provision relating thereto under the Employment Agreement; (ii) the Executive’s rights to indemnification from the Company or rights to be covered under any applicable insurance policy with respect to any liability the Executive incurred or might incur as an employee, officer or director of the Company including, without limitation, the Executive’s rights under Section 8 of the Employment Agreement; or (iii) any right the Executive may have to obtain contribution as permitted by law in the event of entry of judgment against the Executive as a result of any act or failure to act for which the Executive, on the one hand, and Company or any other Releasee, on the other hand, are jointly liable.
The Executive waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California, to the extent applicable, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
 
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The	Executive hereby acknowledges that the foregoing waiver is an essential and material term of this Release.	
5.  Continuing Covenants . The Executive acknowledges and agrees that he remains subject to the provisions of Section 7 of the Employment Agreement which shall remain in full force and effect for the periods set forth therein.
6.  No Admission . This Release does not constitute an admission of liability or wrongdoing of any kind by the Company or any other Releasee. This Release is not intended, and shall not be construed, as an admission that any Releasee has violated any federal, state or local law (statutory or decisional), ordinance or regulation, breached any contract or committed any wrong whatsoever against any Releasor.
7.  Heirs and Assigns . The terms of this Release shall be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns.
8.  Miscellaneous . This Release will be construed and enforced in accordance with the laws of the State of Delaware without regard to the principles of conflicts of law. If any provision of this Release is held by a court of competent jurisdiction to be illegal, void or unenforceable, such provision shall have no effect; however, the remaining provisions will be enforced to the maximum extent possible. The parties acknowledge and agree that, except as otherwise set forth herein, this Release constitutes the complete understanding between the parties with regard to the matters set forth herein and, except as otherwise set forth herein, supersede any and all agreements, understandings, and discussions, whether written or oral, between the parties. No other promises or agreements are binding unless in writing and signed by each of the parties after the Release Effective Date (as defined below). Should any provision of this Release require interpretation or construction, it is agreed by the parties that the entity interpreting or constructing this Release shall not apply a presumption against one party by reason of the rule of construction that a document is to be construed more strictly against the party who prepared the document.
9.  Knowing and Voluntary Waiver . The Executive acknowledges that he: (a) has carefully read this Release in its entirety; (b) has had an opportunity to consider it for at least 21 days; (c) is hereby advised by the Company in writing to consult with an attorney of his choosing in connection with this Release; (d) fully understands the significance of all of the terms and conditions of this Release and has discussed them with his independent legal counsel, or had a reasonable opportunity to do so; (e) has had answered to his satisfaction any questions he has asked with regard to the meaning and significance of any of the provisions of this Release and has not relied on any statements or explanations made by any Releasee or their counsel; (f) understands that he has seven days in which to revoke this Release (as described in Section 10) after signing it and (g) is signing this Release voluntarily and of his own free will and agrees to abide by all the terms and conditions contained herein.
 
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10.  Effective Time of Release . The Executive may accept this Release by signing it and delivering it to the Company as provided in Section 9.1 of the Employment Agreement within 21 days of his receipt hereof. After executing this Release, the Executive will have seven days (the “ Revocation Period ”) to revoke this Release by indicating his desire to do so in writing delivered to the Company in accordance with Section 9.1 of the Employment Agreement by no later than 5:00 p.m. EST on the seventh day following the date on which he executes and delivers this Agreement. The effective date of this Agreement shall be the eighth day after the Executive executes and delivers this Agreement (the “ Release Effective Date ”). If the last day of the Revocation Period falls on a Saturday, Sunday or holiday, the last day of the Revocation Period will be deemed to be the next business day. If the Executive does not execute this Release or exercises his right to revoke hereunder, he shall forfeit his right to receive any of the Termination Benefits, and to the extent such Termination Benefits have already been provided, the Executive agrees that he will immediately reimburse the Company for the amounts of such payment.
IN WITNESS WHEREOF, the Executive has duly executed this Release as of the date first set forth above.

EXECUTIVE:	

Name	
 
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Exhibit 10.12
AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (this “ Amendment ”) is made and entered into effective as of April 1, 2014 (the “ Effective Date ”), by and between Impax Laboratories, Inc., a Delaware corporation (the “ Company ”), and Bryan M. Reasons (the “ Executive ”).
WHEREAS , the Company and the Executive are parties to that certain Employment Agreement between the Company and the Executive, dated as of December 12, 2012 (the “ Agreement ”), which sets forth the terms of the Executive’s employment with the Company;
WHEREAS , the Company and the Executive desire to amend the Agreement, as set forth herein.
NOW, THEREFORE , in consideration of the premises and the mutual covenants and conditions herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Executive hereby agree as follows, effective as of the Effective Date.
1. The second sentence of Section 1.1 of the Agreement is hereby deleted and replaced in its entirety with the following:
“This Agreement will automatically be renewed for single one-year periods unless written notice of non-renewal (a “ Non-Renewal Notice ”) is provided by either party at least ninety (90) days prior to the end of the Initial Term or the successive one-year period then in effect or unless earlier terminated as provided in this Agreement.”
2. The word “or” at the end of Section 5.1.3(vii) of the Agreement is hereby deleted.
3. The following sentence is hereby inserted as Section 5.1.3(viii) of the Agreement and the remaining subsection of Section 5.1.3 of the Agreement is hereby renumbered accordingly:
“(viii) the delivery to Executive by the Company of a Non-Renewal Notice; or”
4. Counterparts . This Amendment may be executed in one or more facsimile, electronic or original counterparts, each of which shall be deemed an original and both of which together shall constitute the same instrument.
5. Ratification . All terms and provisions of the Agreement not amended hereby, either expressly or by necessary implication, shall remain in full force and effect. The Agreement, as hereby amended, and any attachments thereto, constitute the entire agreement between the parties with respect to their subject matter and supersede all prior agreements, arrangements, dealings or writings between the parties and from and after the date of this Amendment, all references to the term “ Agreement ” in this Amendment or the original Agreement shall include the terms contained in this Amendment.
[Signature Page Follows]

IN WITNESS WHEREOF , this Amendment to Employment Agreement has been duly executed by or on behalf of the parties hereto as of the Effective Date.

EXECUTIVE	  		  	IMPAX LABORATORIES, INC.	
				
/s/ Bryan M. Reasons
Name: Bryan M. Reasons	  		  	By:	  	/s/ Allen Chao, Ph.D.
Name: Allen Chao, Ph.D.
Title: Board Director	

Exhibit 10.13
THE IMPAX LABORATORIES, INC.
EXECUTIVE NON-QUALIFIED DEFERRED COMPENSATION
PLAN
Effective as of January 1, 2008
Amended and Restated as of December 31, 2007

IMPAX LABORATORIES, INC.
EXECUTIVE NON-QUALIFIED DEFERRED COMPENSATION PLAN
ARTICLE I — PURPOSE; EFFECTIVE DATE
 
1.1.	Purpose . The purpose of this Executive Non-Qualified Deferred Compensation Plan (hereinafter, the “Plan”) is to permit a select group of highly compensated employees of IMPAX LABORATORIES, INC. (and its selected subsidiaries and/or affiliates) to defer the receipt of income which would otherwise become payable to them. This Plan is intended to serve as an amendment to and restatement of the existing I MPAX L ABORATORIES , I NC . Executive Non-qualifiedDeferred Compensation Plan (hereinafter, the “Existing Plan”), applicable to certain individuals connected with the company, and the interests of any participant in the Existing Plan will become one hundred percent vested and subject to the terms and conditions of this Plan as of the effective date. It is intended that this Plan, by providing these eligible individuals an opportunity to defer the receipt of income, will assist in retaining and attracting individuals of exceptional ability.	
 
1.2.	Plan Type . For purposes of §409A, the portion of the amounts deferred by the Participants and benefits attributable thereto, shall be considered an elective account balance plan as defined in Treas. Reg. §1.409A -1(c)(2)(i)(A), or as otherwise provided by the Code; the portion of the amounts deferred as matching or employer contributions and benefits attributable thereto, shall be considered an nonelective account balance plan as defined in Treas. Reg. §1.409A -1(c)(2)(i)(B), or as otherwise provided by the Code.	
 
1.3.	Effective Date . The amended and restated Plan shall be initially effective as of January 1, 2008. It is the intent that all of the amounts deferred and benefits provided under this Plan will be subject to the terms of Section 409A of the Code, and that the Plan has been operated in good faith compliance with Section 409A of the Code and all applicable guidance as of January 1, 2005.	
ARTICLE II — DEFINITIONS
For the purpose of this Plan, the following terms shall have the meanings indicated, unless the context clearly indicates otherwise:
 
2.1.	Account(s) . “Account(s)” means the account or accounts maintained on the books of the Company used solely to calculate the amount payable to each Participant under this Plan and shall not constitute a separate fund of assets. Account(s) shall be deemed to exist from the time amounts are first credited to such Account(s) until such time that the entire Account Balance has been distributed in accordance with this Plan. The Accounts available for each Participant shall be identified as:	
 
 	a)	Company Match Account;	
 
 	b)	Retirement Account; and,	

 	c)	In-Service Account; each Participant may maintain up to two (2) In-Service Accounts based on selecting different times and/or form of payments as selected under Article 5, below.	
 
2.2.	Beneficiary . “Beneficiary” means the person, persons or entity as designated by the Participant, entitled under Article VI to receive any Plan benefits payable after the Participant’s death.	
 
2.3.	Board . “Board” means the Board of Directors of the Company.	
 
2.4.	Change in Control . A “Change in Control” shall mean a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, as defined and determined under Section 409A(a)(2)(A)(v) of the Code (or its successor provisions), Treasury Notice 2005-1 and any further guidance published with respect to such term. Without in any way limiting the scope of the preceding sentence, a Change of Control shall be deemed to occur on the date upon which one of the following events occurs:	
 
 	a)	any one person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or more than one person acting as a group (as determined under Treasury regulations), acquires ownership of stock of the Company that, together with stock held by such person or group, constitutes more than 50% of either the total fair market value or total voting power of the stock of the Company (except that the acquisition of additional control of the Company by the same person or persons during such 12-month period is not considered to cause a change in control of the Company); or	
 
 	b)	any one person (as such term is used in the Exchange Act), or more than one person acting as a group (as determined under Treasury regulations), acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company possessing 35% or more of the total voting power of the Company (except that the acquisition of additional control of the Company by the same person or persons during such 12-month period is not considered to cause a change in control of the Company); or	
 
 	c)	a majority of members of the Board is replaced during any 12-month period by directors whose appointment or election is not recommended by a majority of the members of the Board prior to the date of the appointment or election; or	
 
 	d)	any one person (as such term is used in the Exchange Act), or more than one person acting as a group (as determined under Treasury regulations), acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions.	

2.5.	Committee . “Committee” means the Committee appointed by the Board to administer the Plan pursuant to Article VII.	
 
2.6.	Company . “Company” I MPAX L ABORATORIES , I NC , a Delaware corporation, and any directly or indirectly affiliated subsidiary corporations, any other affiliate designated by the Board, or any successor to the business thereof.	
 
2.7.	Compensation . “Compensation” means the base salary payable to and bonus or incentive compensation (including commissions) earned by a Participant with respect to employment services performed for the Company by the Participant and considered to be “wages” for purposes of federal income tax withholding. For purposes of this Plan only, Compensation shall be calculated before reduction for any amounts deferred by the Participant pursuant to the Company’s tax qualified plans which may be maintained under Section 401(k) or Section 125 of the Internal Revenue Code of 1986, as amended, (the “Code”), or pursuant to this Plan or any other non-qualified plan which permits the voluntary deferral of compensation. Inclusion of any other forms of compensation is subject to Committee Approval.	
 
2.8.	Deferral Commitment . “Deferral Commitment” means a commitment made by a Participant to defer a portion of Compensation as set forth in Article III, and as permitted by the Committee in its sole discretion. The Deferral Commitment shall apply to each payment of Compensation payable to a Participant, and the Committee is empowered to group the various types of Compensation together for purposes of effecting the election to defer. By way of example: the Committee may apply the election to defer “salary” to salary, commissions, and any other regularly occurring form of compensation; or the Committee may apply the election to defer “bonus” to annual bonuses, short-term bonus, long term bonus arrangements and other forms of incentive based compensation. The Deferral Commitment shall specify the Account or Accounts to which the Compensation deferred shall be credited. With respect to the deferral of salary, such designation shall be made in the form of a whole percentage; with respect to a deferral of bonus or incentive compensation, such designation shall be in the form of a whole percentage, a whole percentage in excess of a stated dollar amount or an exact stated dollar amount. Such Deferral Commitment shall be made in a form and at a time deemed acceptable to the Committee. A Deferral Commitment with respect to any bonus or incentive compensation which is based on services performed over a period of at least twelve (12) months shall be made as provided by the Committee, but no later than six (6) months prior to the end of such performance period.	
 
2.9.	Deferral Period .“Deferral Period” means each calendar year, except that if a Participant first becomes eligible after the beginning of a calendar year, the initial Deferral Period shall be the date the Participant first becomes eligible to participate in this Plan through and including December 31 st of that calendar year.	
 
2.10.	Determination Date . “Determination Date” means each business day.	
 
2.11.	Disability . “Disability means a physical or mental condition whereby the Participant: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the participant’s employer.	

2.12.	Distribution Election . “Distribution Election” means the form prescribed by the Committee and completed by the Participant, indicating the chosen form of payment for benefits payable from each Account under this Plan, as elected by the Participant.	
 
2.13.	Discretionary Contribution . “Discretionary Contribution” means the Company contribution credited to a Participant’s Account(s) under Section 4.5, below.	
 
2.14.	Financial Hardship . “Financial Hardship” means a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s spouse, or a dependent (as defined in Section 152(a) of the Code) of the Participant, loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the participant.	
 
2.15.	401(k) Plan . “401(k) Plan” means the “Impax Laboratories, Inc. 401(k) Plan”, or any other successor defined contribution plan maintained by the Company that qualifies under Section 401(a) of the Code and satisfies the requirements of Section 401(k) of the Code.	
 
2.16.	Interest . “Interest” means the amount credited to or charged against a Participant’s Account(s) on each Determination Date, which shall be based on the Valuation Funds chosen by the Participant as provided in Section 2.23, below and in a manner consistent with Section 4.3, below. Such credits or charges to a Participant’s Account may be either positive or negative to reflect the increase or decrease in value of the Account in accordance with the provisions of this Plan.	
 
2.17.	Matching Contribution . “Matching Contribution” means the Company contribution credited to a Participant’s Account(s) under Section 4.4, below, as determined by the Committee in its sole discretion.	
 
2.18.	Participant . “Participant” means any individual who is eligible, pursuant to Section 3.1, below, to participate in this Plan, and who either, has elected to defer Compensation under this Plan in accordance with Article III, below, or who is determined by the Committee in their sole discretion as being eligible to receive a Discretionary Contribution, or who had an account maintained under the Existing Plan, which will now become subject to the terms and conditions of this Plan. Such individual shall remain a Participant in this Plan for the period of deferral, or credit, and until such time as all benefits payable under this Plan have been paid in accordance with the provisions hereof.	
 
2.19.	Performance Based Compensation . “Performance-Based Compensation” means any bonus or incentive compensation which is based on services performed over a period of at least twelve (12) months shall be made as provided by the Committee, and otherwise meets the definition of such under Treas. Regs. §1-409A-1(e) and other applicable guidance.	
 
2.20.	Plan . “Plan” means this Executive Non-Qualified Deferred Compensation Plan as amended from time to time.	

2.21.	Retirement . “Retirement” means the termination of a Participant’s employment with the Company, for reasons other than death or Disability, on or after the attainment of age fifty-five (55) with at least five (5) Years of Service with the Company.	
 
2.22.	Termination . “Termination”, “terminates employment” or any other similar such phrase means the a Participant’s “separation from service” with the Company, for any reason, within the meaning of Section 409A of the Code, and Treas Reg. §1.409A-1(h) and other applicable guidance.	
 
2.23.	Valuation Funds . “Valuation Funds” means one or more of the independently established funds or indices that are identified and listed by the Committee. These Valuation Funds are used solely to calculate the Interest that is credited to each Participant’s Account(s) in accordance with Article IV, below, and does not represent, nor should it be interpreted to convey any beneficial interest on the part of the Participant in any asset or other property of the Company. The determination of the increase or decrease in the performance of each Valuation Fund shall be made by the Committee in its reasonable discretion. The Committee shall select the various Valuation Funds available to the Participants with respect to this Plan and shall set forth a list of these Valuation Funds attached hereto as Exhibit A, which may be amended from time to time in the discretion of the Committee.	
 
2.24.	Years of Service . “Years of Service” shall have the meaning provided for such term for purposes of vesting under the 401(k) Plan, whether or not the Participant is a participant in such plan.	
ARTICLE III — ELIGIBILITY AND PARTICIPATION
 
3.1.	Eligibility and Participation .	
 
 	a)	Eligibility . Eligibility to participate in the Plan shall be limited to those select key employees of Company who are designated by the Committee from time to time, and approved by the Compensation Committee of the Board.	
 
 	b)	Participation . An individual’s participation in the Plan shall be effective upon notification to the individual by the Committee of eligibility to participate, and the earlier of a contribution under this Plan being made on behalf of the Participant by the Company or the completion and submission of a Deferral Commitment, a Distribution Election, an Allocation Form, and a Distribution Election to the Committee no later than fifteen (15) days prior to the beginning of the Deferral Period, or as otherwise permitted by the Committee.	
 
 	c)	First-Year Participation . When an individual first becomes eligible to participate in this Plan during a Deferral Period, and is not a Participant in another plan sponsored by the Company which is considered to be of a similar type as defined in Treas. Reg. §1.409A -1(c)(2)(i)(A) or (B), or as otherwise provided by the Code, a Deferral Commitment may be submitted to the Committee within thirty (30) days of the individual becoming eligible to participate. Such Deferral Commitment will be effective only with regard to Compensation earned and payable following submission of the Deferral Commitment to the Committee.	

3.2.	Form of Deferral Commitment . A Participant may elect to make a Deferral Commitment no later than fifteen (15) days prior to the beginning of the Deferral Period, or at such other time as permitted by the Committee, and in the form permitted by the Committee. The Deferral Commitment shall specify the following:	
 
 	a)	Timing of Deferral Election . With respect to the deferral of salary, the Participant shall make an election to defer Compensation by filing a Deferral Commitment with the Committee, and such election shall become irrevocable no later than the last day of the calendar year prior to the Deferral Period, except as provided in Section 3.1(c), above; with respect to the Deferral of Performance Based Compensation, the Participant shall make an election to defer Compensation by filing a Deferral Commitment with the Committee, and such election shall become irrevocable no later than six (6) months prior to the end of such performance period to which the compensation relates, except as provided in Section 3.1(c), above.	
 
 	b)	Deferral Amounts; Accounts . A Deferral Commitment shall be made with respect to each payment and/or type of Compensation payable by the Company to a Participant during the Deferral Period, and shall designate the portion of each deferral that shall be allocated among the various Retirement or In-Service Accounts. In addition, no amounts shall be deferred into an In-Service Account during a Deferral Period when amounts are scheduled to be made from such Account and until such time as that entire Account Balance has been completely distributed. The Participant shall set forth the amount to be deferred in the manner provided by the Committee.	
 
 	c)	Allocation to Valuation Funds . The Participant shall specify in a separate form (known as the “Allocation Form”) filed with the Committee, the Participant’s initial allocation of the amounts deferred into each Account among the various available Valuation Funds.	
 
 	d)	Maximum Deferral . The maximum amount of salary that may be deferred shall be seventy-five percent (75%); the maximum amount of bonus or incentive compensation that may be deferred shall be one hundred percent (100%).	
 
3.3.	Period of Commitment . Any Deferral Commitment made by a Participant with respect to Compensation shall remain in effect for the next succeeding Deferral Period, and shall remain in effect for all future Deferral Periods unless revoked or amended in writing by the Participant and delivered to the Committee no later than fifteen (15) days prior to the beginning of a subsequent Deferral Period, except that if a Participant suffers a Disability or terminates employment with Company prior to the end of the Deferral Period, the Deferral Period shall end as of the date of Disability or termination.	
 
3.4.	Modification of Deferral Commitment . Except as provided in Sections 3.3, above, and 5.5 and 5.6 below, a Deferral Commitment shall be irrevocable by the Participant during a Deferral Period.	

3.5.	Change in Status . If the Committee determines that a Participant’s employment performance is no longer at a level that warrants reward through participation in this Plan, but does not terminate the Participant’s employment with Company, the Participant’s existing Deferral Commitment shall terminate at the end of the Deferral Period, and no new Deferral Commitment may be made by such Participant after notice of such determination is given by the Committee, unless the Participant later satisfies the requirements of Section 3.1. If the Committee, in its sole discretion, determines that the Participant no longer qualifies as a member of a select group of management or highly compensated employees, as determined in accordance with the Employee Retirement Income Security Act of 1974, as amended, the Committee may, in its sole discretion terminate any Deferral Commitment for that year, and prohibit the Participant from making any future Deferral Commitments.	
 
3.6.	Defaults in Event of Incomplete or Inaccurate Deferral Commitments . In the event that a Participant submits a Deferral Commitment, Allocation Form or Distribution Election to the Committee that contains information necessary to the efficient operation of this Plan which, in the sole discretion of the Committee, is missing, incomplete or inaccurate, the Committee shall be authorized to treat such form as if the following elections had been made by the Participant, and such information shall be communicated to the Participant:	
 
 	a)	If no Account is listed — treat as if the Retirement Account was elected;	
 
 	b)	If Accounts listed equal less than 100% — treat as if the balance was deferred into Retirement Account;	
 
 	c)	If Accounts listed equal more than 100% — proportionately reduce each Account to equal 100%;	
 
 	d)	If In-Service Account is listed, but no deferrals can be made into that Account due to the fact that benefits are scheduled to be paid or are being paid from that In-Service Account, then the amounts elected to be deferred shall be credited to another In-Service Account, if such other In-Service Account is available for deferral, and if not, then to the Retirement Account during such period of payment, after which time the balance of the amounts elected to be deferred shall be credited to a subsequent In-Service Account with a distribution date as elected or as provided in sub- section (i), below;	
 
 	e)	If no Valuation Fund is selected — treat as if the Money Market Fund was elected;	
 
 	f)	If Valuation Fund(s) selected equal less than 100% — treat as if the Money Market Fund was elected for remaining balance;	
 
 	g)	If Valuation Fund(s) selected equal more than 100% — proportionately reduce each Valuation Fund to equal 100%;	
 
 	h)	If no Distribution Election is chosen -treat as if lump sum was elected for In-Service Account and treat as if three (3) year was elected for Retirement Account; and,	
 
 	i)	If no time of payment is chosen for In-Service Account -treat as if the earliest possible date available under the provisions of Section 5.2, below was elected.	

ARTICLE IV — DEFERRED COMPENSATION ACCOUNT
 
4.1.	Accounts . The Compensation deferred by a Participant under the Plan, any Matching or Discretionary Contributions and Interest shall be credited to the Participant’s Account(s) as selected by the Participant, or as otherwise provided in this Article. Separate accounts may be maintained on the books of the Company to reflect the different Accounts chosen by the Participant, and the Participant shall designate the portion of each deferral that will be credited to each Account as set forth in Section 3.2(b), above. These Accounts shall be used solely to calculate the amount payable to each Participant under this Plan and shall not constitute a separate fund of assets.	
 
4.2.	Timing of Credits; Withholding . A Participant’s deferred Compensation shall be credited to each Account designated by the Participant as soon as practical after the date the Compensation deferred would have otherwise been payable to the Participant. Any Matching and Discretionary Contributions shall be credited to the appropriate Account(s) as provided by the Committee. Any withholding of taxes or other amounts with respect to deferred Compensation or other amounts credited under this Plan that is required by local, state or federal law shall be withheld from the Participant’s corresponding non-deferred portion of the Compensation to the maximum extent possible, and any remaining amount shall reduce the amount credited to the Participant’s Account in a manner specified by the Committee.	
 
4.3.	Valuation Funds . A Participant shall designate, at a time and in a manner acceptable to the Committee, one or more Valuation Funds for each Account for the sole purpose of determining the amount of Interest to be credited or debited to such Account. Such election shall designate the portion of each deferral of Compensation made into each Account that shall be allocated among the available Valuation Fund(s), and such election shall apply to each succeeding deferral of Compensation until such time as the Participant shall file a new election with the Committee. Upon notice to the Committee, Participants shall also be permitted to reallocate the balance in each Valuation Fund among the other available Valuation Funds as determined by the Committee. The manner in which such elections shall be made and the frequency with which such elections may be changed and the manner in which such elections shall become effective shall be determined in accordance with the procedures to be adopted by the Committee or its delegates from time to time. As of the Effective Date, such elections may be made on a daily basis electronically, and such elections shall become effective on the date made or the next available Determination Date.	
 
4.4.	Matching Contributions . Company shall make a Matching Contribution to the Company Match Account of any Participant designated by the Committee, equal to fifty percent (50%) times the Participant’s Compensation elected to be deferred under this Plan up to a maximum of ten percent (10%) of Compensation. The Matching Contribution shall be credited to the Company Match Account as soon as practical after the end of the Deferral Period, but in no event later than 90 days after the close of such year.	
 
4.5.	Discretionary Contributions . In its sole discretion, Company may make Discretionary Contributions to a Participant’s Account. Discretionary Contributions shall be credited at such times and in such amounts as recommended by the Committee and approved by the Compensation Committee of the Board, or the Board in its sole discretion. Unless the Committee specifies otherwise, such Discretionary Contribution shall be allocated to the Retirement Account.	

4.6.	Determination of Accounts . Each Participant’s Account as of each Determination Date shall consist of the balance of the Account as of the immediately preceding Determination Date, adjusted as follows:	
 
 	a)	New Deferrals . Each Account shall be increased by any deferred Compensation credited since such prior Determination Date in the proportion chosen by the Participant, except that no amount of new deferrals shall be credited to an Account at the same time that a distribution is to be made from that Account.	
 
 	b)	Company Contributions . Each Account shall be increased by any Discretionary and/or Matching Contributions credited since such prior Determination as set forth above in sections 4.4, and 4.5 or as otherwise directed by the Committee.	
 
 	c)	Distributions . Each Account shall be reduced by the amount of each benefit payment made from that Account since the prior Determination Date. Distributions shall be deemed to have been made proportionally from each of the Valuation Funds maintained within such Account based on the proportion that such Valuation Fund bears to the sum of all Valuation Funds maintained within such Account for that Participant as of the Determination Date immediately preceding the date of payment.	
 
 	d)	Interest . Each Account shall be increased or decreased by the Interest credited to such Account since such Determination Date as though the balance of that Account as of the beginning of the current month had been invested in the applicable Valuation Funds chosen by the Participant.	
 
4.7.	Vesting of Accounts . Each Participant shall be vested in the amounts credited to such Participant’s Account and Interest thereon as follows:	
 
 	a)	Amounts Deferred . A Participant shall be one hundred percent (100%) vested at all times in the amount of Compensation elected to be deferred under this Plan, including any Interest thereon.	
 
 	b)	Matching Contributions . A Participant shall become vested in the amount of Matching Contributions credited under this Plan, including any Interest thereon according to the following schedule:	

Years of Service	  	Vesting Percentage	 	
Less than 1	  	 	0	% 	
1 but less than 2	  	 	20	% 	
2 but less than 3	  	 	40	% 	
3 but less than 4	  	 	60	% 	
4 but less than 5	  	 	80	% 	
5 or more	  	 	100	% 	
 
 	c)	Discretionary Contributions . A Participant’s Discretionary Contributions and Interest thereon shall become vested as determined by the Committee.	

 	d)	Death, Disability, Termination of Plan, or Change in Control . Notwithstanding anything else to the contrary, a Participant’s Accounts shall become one hundred percent (100%) vested upon death, Disability, Termination of this Plan (as provided in Article IX, below) or a Change in Control.	
 
4.8.	Statement of Accounts . To the extent that the Company does not arrange for Account balances to be accessible online by the Participant, the Committee shall provide to each Participant a statement showing the balances in the Participant’s Account no less frequently than annually.	
ARTICLE V — PLAN BENEFITS
 
5.1.	Company Match Account . The vested portion of a Participant’s Company Match Account shall be distributed to the Participant upon the termination of employment with the Company.	
 
 	a)	Timing of Payment. Benefits payable from the Company Match Account shall commence as soon as practical after the date of the Participant’s Termination, but in no event earlier than six (6) months following the Participant’s Termination.	
 
 	b)	Form of Payment. The form of benefit payment shall be that form applicable to the Retirement Account, selected by the Participant in accordance with the provisions of section 5.2, below. If the Form of Payment selected provides for subsequent payments, subsequent payments shall be made on or about the anniversary of the initial payment.	
 
5.2.	Retirement Account . The vested portion of a Participant’s Retirement Account shall be distributed to the Participant upon the termination of employment with the Company.	
 
 	a)	Timing of Payment. Benefits payable from the Retirement Account shall commence as soon as practical after the date of the Participant’s Termination, but in no event earlier than six (6) months following the Participant’s Termination.	
 
 	b)	Form of Payment. The form of benefit payment shall be that form selected by the Participant in the first Deferral Commitment which designated a portion of the Compensation deferred be allocated to the Retirement Account, and as permitted pursuant to Section 5.7 below, except that if the Participant terminates employment prior to Retirement, in which event, the Retirement Account shall be paid in the form of a lump sum payment. If the Form of Payment selected provides for subsequent payments, subsequent payments shall be made on or about the anniversary of the initial payment.	
 
 	c)	Special Adjustments . Notwithstanding anything to the contrary, Participants who participated in this Plan prior to December 31, 2007 and for whom an Account had been maintained, the following rules shall apply with respect to the time and form of payment:	
 
 	i)	Terminated — Those Participants who have terminated or do in fact terminate prior to December 31, 2007, shall have their Accounts paid out at the time and in the form previously selected under the terms of the Plan prior to Restatement;	
 
 	ii)	Active — Those Participants who remain employed by the Company after December 31, 2007 shall file a Distribution Election which changes the time and form of payment for the Account; such changes shall be reflected by the establishment of various Accounts as provided for and limited by the terms of this Plan. In the event the Participant does not submit such a form by December 31, 2007, the Employer shall be deemed to have submitted such a form indicating the amounts being established in the Retirement Account and providing for a three (3) year payout. Such Distribution Election, submitted by the Participant or deemed by the Employer, shall become irrevocable, except as herein provided, on December 31, 2007.	

5.3.	In-Service Account . The vested portion of a Participant’s In-Service Account shall generally be distributed to the Participant upon the date chosen by the Participant.	
 
 	a)	Timing of Payment . Benefits payable from the In-Service Account shall commence on or about April 15 th of the year specified in the first Deferral Commitment which designated a portion of the Compensation deferred be allocated to the In-Service Account. In no event shall the date selected be earlier than the first day of the sixth calendar year following the initial filing of the Deferral Commitment with respect to that In-Service Account. In the event that the Participant terminates employment with the Company prior to the date so specified, the benefits under this section shall commence as soon as administratively practical after termination of employment, but no later earlier than six (6) months following the Participant’s Termination.	
 
 	b)	Form of Payment . The form of benefit payment from the In-Service Account shall be that form selected by the Participant pursuant to Section 5.7, below, except that if the Participant terminates employment with the Company prior to the date so specified, then the In-Service Account shall be paid in the form of a lump sum payment. If the Form of Payment selected provides for subsequent payments, subsequent payments shall be made on or about the anniversary of the initial payment.	
 
 	c)	Change of Time and/or Form of Payment . The Participant may, subsequently amend the form of payment or the intended date of payment to a date later than that date initially chosen, by filing such amendment with the Committee no later that twelve (12) months prior to the current date of payment. The Participant may file this amendment, provided that each amendment must provide for a payout as otherwise permitted under this paragraph at a date no earlier than five (5) years after the date of payment in force immediately prior to the filing of such request, and the amendment may not take effect for twelve (12) months after the request is made.	
 
5.4.	Death Benefit . Upon the death of a Participant prior to the commencement of benefits under this Plan from any particular Account, Company shall pay to the Participant’s Beneficiary an amount equal to the vested Account balance in that Account in the form of a lump sum payment as soon as administratively possible. In the event of the death of the Participant after the commencement of benefits under this Plan from any Account, the benefits from that Account(s) shall be paid to the Participant’s designated Beneficiary from that Account at the same time and in the same manner as if the Participant had survived.	

5.5.	Hardship Distributions . Upon a finding that a Participant has suffered a Financial Hardship, the Committee may, in its sole discretion, terminate the existing Deferral Commitment, and/or make distributions from any or all of the Participant’s Accounts. The amount of such distribution shall be limited to the amount reasonably necessary to meet the Participant’s needs resulting from the Financial Hardship plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such Financial Hardship is or may be relieved through the reimbursement or compensation by insurance, or otherwise or by liquidation of the Participant’s assets (to the extent that liquidation of such assets would not itself cause severe financial hardship). The amount of such distribution will not exceed the Participant’s vested Account balances. If payment is made due to Financial Hardship, the Participant’s deferrals under this Plan shall cease for the period of the Financial Hardship and for twelve (12) months thereafter. If the Participant is again eligible to participate, any resumption of the Participant’s deferrals under the Plan after such twelve (12) month period shall be made only at the election of the Participant in accordance with Article III herein.	
 
5.6.	Disability Distributions . Upon a finding that a Participant has suffered a Disability, the Committee shall make a distribution of all of the Participant’s Accounts. The amount of such distribution shall be made in the form selected by the Participant applicable to the distribution of the Retirement Account under Section 5.1, above, and shall commence as soon as administratively practical after the determination of such Disability.	
 
5.7.	Form of Payment . Unless otherwise specified in this Article, the benefits payable from any Account under this Plan shall be paid in the form of benefit as provided below, and specified by the Participant in the Distribution Election applicable to that Account at the time of the initial deferral or credit to that Account. The permitted forms of benefit payments are:	
 
 	a)	A lump sum amount which is equal to the vested Account balance; and	
 
 	b)	Annual installments for a period of up to fifteen (15) years (or in the event of payment of the In-Service Account, a maximum of five (5) years) where the annual payment shall be equal to the balance of the Account immediately prior to the payment, multiplied by a fraction, the numerator of which is one (1) and the denominator of which commences at the number of annual payment initially chosen and is reduced by one (1) in each succeeding year. Interest on the unpaid balance shall be based on the most recent allocation among the available Valuation Funds chosen by the Participant, made in accordance with Section 4.3, above.	
 
5.8.	Small Account . If the Participant’s vested, unpaid Retirement Account balance as of the time the payments are to commence from the Retirement Account is less than $50,000, the remaining unpaid, vested Retirement Account shall be paid in a lump sum, notwithstanding any election by the Participant to the contrary; and, if the Participant’s vested, unpaid In-Service Account balance as of the time the payments are to commence from such In-Service Account is less than $25,000, the remaining unpaid, vested In-Service Account shall be paid in a lump sum, notwithstanding any election by the Participant to the contrary.	
 
5.9.	Withholding; Payroll Taxes . Company shall withhold from any payment made pursuant to this Plan any taxes required to be withheld from such payments under local, state or federal law. A Beneficiary, however, may elect not to have withholding of federal income tax pursuant to Section 3405(a)(2) of the Code, or any successor provision thereto.	

5.10.	Payments in Connection with a Domestic Relations Order . Notwithstanding anything to the contrary, the Company may make distributions to someone other than the Participant if such payment is necessary to comply with a domestic relations order, as defined in §414(p)(1)(B), involving the Participant. Where the domestic relations order permits discretion on the part of the non-Participant spouse and such discretion has not been exercised, the Company shall distribute to the non-Participant spouse the amounts subject to the order as soon as practical.	
 
5.11.	Payment to Guardian . If a Plan benefit is payable to a minor or a person declared incompetent or to a person incapable of handling the disposition of the property, the Committee may direct payment to the guardian, legal representative or person having the care and custody of such minor, incompetent or person. The Committee may require proof of incompetency, minority, incapacity or guardianship as it may deem appropriate prior to distribution. Such distribution shall completely discharge the Committee and Company from all liability with respect to such benefit.	
 
5.12.	Effect of Payment . The full payment of the applicable benefit under this Article V shall completely discharge all obligations on the part of the Company to the Participant (and the Participant’s Beneficiary) with respect to the operation of this Plan, and the Participant’s (and Participant’s Beneficiary’s) rights under this Plan shall terminate.	
ARTICLE VI — BENEFICIARY DESIGNATION
 
6.1.	Beneficiary Designation . Each Participant shall have the right, at any time, to designate one (1) or more persons or entity as Beneficiary (both primary as well as secondary) to whom benefits under this Plan shall be paid in the event of Participant’s death prior to complete distribution of the Participant’s vested Account balance. Each Beneficiary designation shall be in a written form prescribed by the Committee and shall be effective only when filed with the Committee during the Participant’s lifetime.	
 
6.2.	Changing Beneficiary . Any Beneficiary designation may be changed by a Participant without the consent of the previously named Beneficiary by the filing of a new Beneficiary designation with the Committee.	
 
6.3.	No Beneficiary Designation . If any Participant fails to designate a Beneficiary in the manner provided above, if the designation is void, or if the Beneficiary designated by a deceased Participant dies before the Participant or before complete distribution of the Participant’s benefits, the Participant’s Beneficiary shall be the person in the first of the following classes in which there is a survivor:	
 
 	a)	The Participant’s surviving spouse;	
 
 	b)	The Participant’s children in equal shares, except that if any of the children predeceases the Participant but leaves surviving issue, then such issue shall take by right of representation the share the deceased child would have taken if living;	
 
 	c)	The Participant’s estate.	

6.4.	Effect of Payment . Payment to the Beneficiary shall completely discharge the Company’s obligations under this Plan.	
ARTICLE VII — ADMINISTRATION
 
7.1.	Committee; Duties . This Plan shall be administered by the Committee, which shall consist of those individuals named by the Board, except in the event of a Change in Control as provided in Section 7.5 below. The Committee shall have the authority to make, amend, interpret and enforce all appropriate rules and regulations for the administration of the Plan and decide or resolve any and all questions, including interpretations of the Plan, as they may arise in such administration. A majority vote of the Committee members shall control any decision. Members of the Committee may be Participants under this Plan.	
 
7.2.	Agents . The Committee may, from time to time, employ agents and delegate to them such administrative duties as it sees fit, and may from time to time consult with counsel who may be counsel to the Company.	
 
7.3.	Binding Effect of Decisions . The decision or action of the Committee with respect to any question arising out of or in connection with the administration, interpretation and application of the Plan and the rules and regulations promulgated hereunder shall be final, conclusive and binding upon all persons having any interest in the Plan.	
 
7.4.	Indemnity of Committee . The Company shall indemnify and hold harmless the members of the Committee against any and all claims, loss, damage, expense or liability arising from any action or failure to act with respect to this Plan on account of such member’s service on the Committee, except in the case of gross negligence or willful misconduct.	
 
7.5.	Election of Committee After Change in Control . After a Change in Control, vacancies on the Committee shall be filled by majority vote of the remaining Committee members and Committee members may be removed only by such a vote. If no Committee members remain, a new Committee shall be elected by majority vote of the Participants in the Plan immediately preceding such Change in Control. After a Change in Control, no amendment shall be made to Article VII or other Plan provisions regarding Committee authority with respect to the Plan without prior approval by the Committee.	

ARTICLE VIII — CLAIMS PROCEDURE
 
8.1.	Claim . Any person or entity claiming a benefit, requesting an interpretation or ruling under the Plan (hereinafter referred to as “Claimant”), or requesting information under the Plan shall present the request in writing to the Committee, which shall respond in writing as soon as practical, but in no event later than ninety (90) days after receiving the initial claim (or no later than forty-five (45) days after receiving the initial claim regarding a Disability under this Plan).	
 
8.2.	Denial of Claim . If the claim or request is denied, the written notice of denial shall state:	
 
 	a)	The reasons for denial, with specific reference to the Plan provisions on which the denial is based;	
 
 	b)	A description of any additional material or information required and an explanation of why it is necessary, in which event the time frames listed in section 8.1 shall be one hundred and eighty (180) and seventy-five (75) days from the date of the initial claim respectively; and	
 
 	c)	An explanation of the Plan’s claim review procedure.	
 
8.3.	Review of Claim . Any Claimant whose claim or request is denied or who has not received a response within sixty (60) days (or one hundred and eighty (180) days in the event of a claim regarding a Disability) may request a review by notice given in writing to the Committee. Such request must be made within sixty (60) days (or one hundred and eighty (180) days in the event of a claim regarding a Disability) after receipt by the Claimant of the written notice of denial, or in the event Claimant has not received a response sixty (60) days (or one hundred and eighty (180) days in the event of a claim regarding a Disability) after receipt by the Committee of Claimant’s claim or request. The claim or request shall be reviewed by the Committee which may, but shall not be required to, grant the Claimant a hearing. On review, the claimant may have representation, examine pertinent documents, and submit issues and comments in writing.	
 
8.4.	Final Decision . The decision on review shall normally be made within sixty (60) days (or forty-five (45) days in the event of a claim regarding a Disability) after the Committee’s receipt of claimant’s claim or request. If an extension of time is required for a hearing or other special circumstances, the Claimant shall be notified and the time limit shall be one hundred twenty (120) days (or ninety (90) days in the event of a claim regarding a Disability). The decision shall be in writing and shall state the reasons and the relevant Plan provisions. All decisions on review shall be final and bind all parties concerned.	
ARTICLE IX — AMENDMENT AND TERMINATION OF PLAN
 
9.1.	Amendment . The Board may at any time amend the Plan by written instrument, notice of which is given to all Participants and to Beneficiary receiving installment payments, except that no amendment shall reduce the amount accrued in any Account as of the date the amendment is adopted.	

9.2.	Company’s Right to Terminate . The Board may, in its sole discretion, terminate the entire Plan, or terminate a portion of the Plan that is identified as an elective account balance plan as defined in Treas. Reg. §1.409A -1(c)(2)(i)(A), or as a nonelective account balance plan as defined in Treas. Reg. §1.409A -1(c)(2)(i)(B), and require distribution of all benefits due under the Plan or portion thereof, provided that:	
 
 	a)	The termination of the Plan does not occur proximate to a downturn in the financial health, as determined by the Committee, of the Company;	
 
 	b)	The Company also terminates all other plans or arrangements which are considered to be of a similar type as defined in Treas. Reg. §1.409A -1(c)(2)(i), or as otherwise provided by the Code, as the portion of the Plan which has been terminated;	
 
 	c)	No payments made in connection with the termination of the Plan occur earlier than 12 months following the Plan termination date other than payments the Plan would have made irrespective of Plan termination;	
 
 	d)	All payments made in connection with the termination of the Plan are completed within 24 months following the Plan termination date;	
 
 	e)	The Company does not establish a new plan of a similar type as defined in Treas. Reg. §1.409A -1(c)(2)(i), within 3 years following the Plan termination date as the portion of the Plan which has been terminated; and,	
 
 	f)	The Company meets any other requirements deemed necessary to comply with provisions of the Code and applicable regulations which permit the acceleration of the time and form of payment made in connection with plan terminations and liquidations.	
ARTICLE X — MISCELLANEOUS
 
10.1.	Unfunded Plan . This plan is an unfunded plan maintained primarily to provide deferred compensation benefits for a select group of “management or highly-compensated employees” within the meaning of Sections 201, 301, and 401 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and therefore is exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.	
 
10.2.	Unsecured General Creditor . Notwithstanding any other provision of this Plan, Participants and Participants’ Beneficiary shall be unsecured general creditors, with no secured or preferential rights to any assets of Company or any other party for payment of benefits under this Plan. Any property held by Company for the purpose of generating the cash flow for benefit payments shall remain its general, unpledged and unrestricted assets. Company’s obligation under the Plan shall be an unfunded and unsecured promise to pay money in the future.	
 
10.3.	Trust Fund . Company shall be responsible for the payment of all benefits provided under the Plan. At its discretion, Company may establish one (1) or more trusts, with such trustees as the Board may approve, for the purpose of assisting in the payment of such benefits. The assets of any such trust shall be held for payment of all Company’s general creditors in the event of insolvency. To the extent any benefits provided under the Plan are paid from any such trust, Company shall have no further obligation to pay them. If not paid from the trust, such benefits shall remain the obligation of Company.	

10.4.	Nonassignability . Neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are, expressly declared to be unassignable and non-transferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure or sequestration for the payment of any debts, judgements, alimony or separate maintenance owed by a Participant or any other person, nor be transferable by operation of law in the event of a Participant’s or any other person’s bankruptcy or insolvency.	
 
10.5.	Not a Contract of Employment . This Plan shall not constitute a contract of employment between Company and the Participant. Nothing in this Plan shall give a Participant the right to be retained in the service of Company or to interfere with the right of the Company to discipline or discharge a Participant at any time.	
 
10.6.	Protective Provisions . A Participant will cooperate with Company by furnishing any and all information requested by Company, in order to facilitate the payment of benefits hereunder, and by taking such physical examinations as Company may deem necessary and taking such other action as may be requested by Company.	
 
10.7.	Governing Law . The provisions of this Plan shall be construed and interpreted according to the laws of the Commonwealth of Pennsylvania, except as preempted by federal law.	
 
10.8.	Validity . If any provision of this Plan shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Plan shall be construed and enforced as if such illegal and invalid provision had never been inserted herein.	
 
10.9.	Notice . Any notice required or permitted under the Plan shall be sufficient if in writing and hand delivered or sent by registered or certified mail. Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification. Mailed notice to the Committee shall be directed to the company’s address. Mailed notice to a Participant or Beneficiary shall be directed to the individual’s last known address in company’s records.	
 
10.10.	Successors . The provisions of this Plan shall bind and inure to the benefit of Company and its successors and assigns. The term successors as used herein shall include any corporate or other business entity which shall, whether by merger, consolidation, purchase or otherwise acquire all or substantially all of the business and assets of Company, and successors of any such corporation or other business entity.	

I MPAX L ABORATORIES , I NC .	
	
BY:	
	
DATED:	

Exhibit 10.14
IMPAX LABORATORIES, INC.
EXECUTIVE NON-QUALIFIED DEFERRED
COMPENSATION PLAN
WHEREAS, the Company has adopted The Impax Laboratories, Inc. Executive Non-Qualified Deferred Compensation Plan (the “Plan”), as fully amended restated, effective as of January 1, 2008; and
WHEREAS, the Company desires to amend the Plan to comply with section 409A of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, effective as of January 1, 2009, the Plan is amended as follows:
 
1.	Section 2.14 is deleted in its entirety and replaced with the following:	
“ Financial Hardship . “Financial Hardship” means a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s spouse, or a dependent (as defined in Section 152 of the Code without regard to Section 152(b)(1), (b)(2) and (d)(1)(B)) of the Participant, loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the participant, and as otherwise defined in Treas. Reg. §1.409A-3(i)(3).”
 
2.	Section 3.5 is deleted in its entirety and replaced with the following:	
“ Change in Status . If the Committee determines, in its sole discretion, that a Participant’s employment performance is no longer at a level that warrants reward through participation in this Plan, but does not terminate the Participant’s employment with Company, or that Participant no longer qualifies as a member of a select group of management or highly compensated employees, as determined in accordance with the Employee Retirement Income Security Act of 1974, as amended, the Participant’s existing Deferral Commitment shall terminate at the end of the Deferral Period, and no new Deferral Commitment may be made by such Participant after notice of such determination is given by the Committee, unless the Participant later satisfies the requirements of Section 3.1.”

3.	Section 5.2(c)(ii) is deleted in its entirety and replaced with the following:	
“ Active – Those Participants who remain employed by the Company after December 31, 2007 shall file a Distribution Election which provides the time and form of payment for the Account; such changes shall be reflected by the establishment of various Accounts as provided for and limited by the terms of this Plan; provided, however, that any amount that would otherwise have been payable in the calendar year in which such Distribution Election is filed may not be payable pursuant to such Distribution Election after such calendar year, and any amount that would have otherwise been payable after the calendar year in which such Distribution Election is filed may not be payable pursuant to such Distribution Election in such calendar year. In the event the Participant does not submit such a form by December 31, 2007, the Employer shall be deemed to have submitted such a form indicating the amounts being established in the Retirement Account and providing for a three (3) year payout; provided, however, that any amount that would otherwise have been payable in a calendar year prior to 2008 may not be payable after such calendar year and any amount that would have otherwise been payable after 2007 may not be payable before 2008. Such Distribution Election, submitted by the Participant or deemed by the Employer, shall become irrevocable, except as herein provided, on December 31, 2007.”
ADOPTED this                  day of                 , 2008.

IMPAX LABORATORIES, INC.	
		
BY:	 	                          	

Exhibit 10.15

	  		  		
			
	  		  	RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Telephone: (212) 858-7000	
			
	  		  	June 25, 2015	
 
To:	Impax Laboratories, Inc.	
30831 Huntwood Avenue
Hayward, CA 94544
Attention:              Mark Schlossberg, SVP & General Counsel
Telephone No.:     (510) 240-6000
Facsimile No.:       (510) 240-6096
 
Re:	Base Warrants	
The purpose of this letter agreement (this “ Confirmation ”) is to confirm the terms and conditions of the Warrants issued by Impax Laboratories, Inc. (“ Company ”) to Royal Bank of Canada (“ Dealer ”) as of the Trade Date specified below (the “ Transaction ”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. This Confirmation shall replace any previous agreements and serve as the final documentation for the Transaction.
The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “ Equity Definitions ”), as published by the International Swaps and Derivatives Association, Inc. (“ ISDA ”), are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern.
Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.
1. This Confirmation evidences a complete and binding agreement between Dealer and Company as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “ Agreement ”) as if Dealer and Company had executed an agreement in such form (but without any Schedule except for (i) the election of the laws of the State of New York as the governing law (without reference to choice of law doctrine) and (ii) the election that the “Cross Default” provisions of Section 5(a)(vi) of the Agreement will apply to Company as if (a) the phrase”, or becoming capable at such time of being declared,” were deleted from Section 5(a)(vi)(1) of the Agreement, (b) the “Threshold Amount” were USD 35,000,000 and (c) the following language were added to the end of Section 5(a)(vi): “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational nature; (y) funds were available to enable the party to make the payment when due; and (z) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”) on the Trade Date. In the event of any inconsistency between provisions of that Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no Transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement.

2. The Transaction is a Warrant Transaction, which shall be considered a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular Transaction to which this Confirmation relates are as follows:
General Terms .

Trade Date:	  	June 25, 2015	
		
Effective Date:	  	The Trade Date	
		
Warrants:	  	Equity call warrants, each giving the holder the right to purchase a number of Shares equal to the Warrant Entitlement at a price per Share equal to the Strike Price, subject to the terms set forth under the caption “Settlement Terms” below. For the purposes of the Equity Definitions, each reference to a Warrant herein shall be deemed to be a reference to a Call Option.	
		
Warrant Style:	  	European	
		
Seller:	  	Company	
		
Buyer:	  	Dealer	
		
Shares:	  	The common stock of Company, par value USD 0.01 per share (Exchange symbol “IPXL”)	
		
Number of Warrants:	  	7,892,900. For the avoidance of doubt, the Number of Warrants shall be reduced by any Warrants exercised or deemed exercised hereunder. In no event will the Number of Warrants be less than zero.	
		
Warrant Entitlement:	  	One Share per Warrant	
		
Strike Price:	  	USD 81.2770	
		
	  	Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such adjustment, the Strike Price would be less than USD 47.81, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Company’s capitalization.	
		
Premium:	  	USD 73,600,000.00	
		
Premium Payment Date:	  	The closing date of the initial issuance of the Company’s 2.00% Convertible Senior Notes due June 15, 2022	
		
Exchange:	  	The NASDAQ Global Market	
		
Related Exchange(s):	  	All Exchanges	
Procedures for Exercise .

	 	Expiration Time:	  	                        The Valuation Time	
 
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Expiration Dates:	  	Each Scheduled Trading Day during the period from, and including, the First Expiration Date to, but excluding, the 100 th Scheduled Trading Day following the First Expiration Date shall be an “Expiration Date” for a number of Warrants equal to the Daily Number of Warrants on such date; provided that, notwithstanding anything to the contrary in the Equity Definitions, if any such date is a Disrupted Day, the Calculation Agent shall in good faith and in a commercially reasonable manner make adjustments, if applicable, to the Daily Number of Warrants or shall reduce such Daily Number of Warrants to zero for which such day shall be an Expiration Date and shall designate a Scheduled Trading Day or a number of Scheduled Trading Days as the Expiration Date(s) for the remaining Daily Number of Warrants or a portion thereof for the originally scheduled Expiration Date; and provided further that if such Expiration Date has not occurred pursuant to this clause as of the eighth Scheduled Trading Day following the last scheduled Expiration Date under the Transaction, then such Scheduled Trading Day shall be deemed to be an Expiration Date for the relevant Daily Number of Warrants and the Calculation Agent shall determine its good faith estimate of the fair market value for the Shares as of the Valuation Time on that eighth Scheduled Trading Day.	
		
First Expiration Date:	  	September 15, 2022 (or if such day is not a Scheduled Trading Day, the next following Scheduled Trading Day), subject to Market Disruption Event below.	
		
Daily Number of Warrants:	  	For any Expiration Date, the Number of Warrants that have not expired or been exercised as of such day, divided by the remaining number of Expiration Dates (including such day), rounded down to the nearest whole number, subject to adjustment pursuant to the provisos to “Expiration Dates”.	
		
Automatic Exercise:	  	Applicable; and means that for each Expiration Date, a number of Warrants equal to the Daily Number of Warrants for such Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date.	
		
Market Disruption Event:	  	Section 6.3(a) of the Equity Definitions is hereby amended by replacing clause (ii) in its entirety with “(ii) an Exchange Disruption, or” and inserting immediately following clause (iii) the phrase “; in each case that the Calculation Agent determines is material.”	
		
	  	Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the words “Scheduled Closing Time” in the fourth line thereof.	
Valuation Terms .

Valuation Time:	  	Scheduled Closing Time; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.	
		
Valuation Date:	  	Each Exercise Date.	
 
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Settlement Terms .

Settlement Method Election:	  	Applicable; provided that (i) references to “Physical Settlement” in Section 7.1 of the Equity Definitions shall be replaced by references to “Net Share Settlement”; (ii) Company may elect Cash Settlement only if Company represents and warrants to Dealer in writing on the date of such election that (A) Company and its Affiliates are not in possession of any material non-public information regarding Company or the Shares, (B) Company is electing Cash Settlement in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws, and (C) the assets of Company at their fair valuation exceed the liabilities of Company (including contingent liabilities), the capital of Company is adequate to conduct the business of Company, and Company has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature; and (iii) the same election of settlement method shall apply to all Expiration Dates hereunder.	
		
Electing Party:	  	Company	
		
Settlement Method Election Date:	  	The third Scheduled Trading Day immediately preceding the First Expiration Date.	
		
Default Settlement Method:	  	Net Share Settlement	
		
Net Share Settlement:	  	If Net Share Settlement is applicable, then on the relevant Settlement Date, Company shall deliver to Dealer a number of Shares equal to the Share Delivery Quantity for such Settlement Date to the account specified herein free of payment through the Clearance System, and Dealer shall be treated as the holder of record of such Shares at the time of delivery of such Shares or, if earlier, at 5:00 p.m. (New York City time) on such Settlement Date, and Company shall pay to Dealer cash in lieu of any fractional Share based on the Settlement Price on the relevant Valuation Date.	
		
Share Delivery Quantity:	  	For any Settlement Date, a number of Shares, as calculated by the Calculation Agent, equal to the Net Share Settlement Amount for such Settlement Date divided by the Settlement Price on the Valuation Date for such Settlement Date.	
		
Net Share Settlement Amount:	  	For any Settlement Date, an amount equal to the product of (i) the number of Warrants exercised or deemed exercised on the relevant Exercise Date , (ii) the Strike Price Differential for the relevant Valuation Date and (iii) the Warrant Entitlement.	
		
Cash Settlement:	  	If Cash Settlement is applicable, on the relevant Settlement Date, Company shall pay to Dealer an amount of cash in USD equal to the Net Share Settlement Amount for such Settlement Date.	
 
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Settlement Price:	  	For any Valuation Date, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page IPXL <equity> AQR (or any successor thereto) in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time on such Valuation Date (or if such volume-weighted average price is unavailable, the market value of one Share on such Valuation Date, as determined by the Calculation Agent). Notwithstanding the foregoing, if (i) any Expiration Date is a Disrupted Day and (ii) the Calculation Agent determines that such Expiration Date shall be an Expiration Date for fewer than the Daily Number of Warrants, as described above, then the Settlement Price for the relevant Valuation Date shall be the volume-weighted average price per Share on such Valuation Date on the Exchange, as determined by the Calculation Agent based on such sources as it deems appropriate using a volume-weighted methodology, for the portion of such Valuation Date for which the Calculation Agent determines there is no Market Disruption Event.	
		
Settlement Dates:	  	As determined pursuant to Section 9.4 of the Equity Definitions, subject to Section 9(m)(i) hereof; provided that Section 9.4 of the Equity Definitions is hereby amended by (i) inserting the words “or cash” immediately following the word “Shares” in the first line thereof and (ii) inserting the words “for the Shares” immediately following the words “Settlement Cycle” in the second line thereof.	
		
Other Applicable Provisions:	  	If Net Share Settlement is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Net Share Settled.” “Net Share Settled” in relation to any Warrant means that Net Share Settlement is applicable to that Warrant.	
		
Representation and Agreement:	  	Notwithstanding Section 9.11 of the Equity Definitions, the parties acknowledge that (i) any Shares delivered to Dealer may be, upon delivery, subject to restrictions and limitations arising from Company’s status as issuer of the Shares under applicable securities laws and (ii) any Shares delivered to Dealer may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “ Securities Act ”)).	
 
3.	Additional Terms applicable to the Transaction .	
Adjustments applicable to the Transaction:

Method of Adjustment:	  	Calculation Agent Adjustment, except that any adjustment in respect of a Potential Adjustment Event shall be made in a commercially reasonable manner and in consultation with Company. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(h) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions.	
 
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Extraordinary Events applicable to the Transaction:

New Shares:	  	Section 12.1(i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation”.	
Consequence of Merger Events:

Merger Event:	  	Applicable, except that any adjustment in respect of a Merger Event shall be made in a commercially reasonable manner and in consultation with Company; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(j)(ii)(B) of this Confirmation, the provisions of Section 9(j)(ii)(B) will apply.	
		
Share-for-Share:	  	Modified Calculation Agent Adjustment	
		
Share-for-Other:	  	Cancellation and Payment (Calculation Agent Determination)	
		
Share-for-Combined:	  	Component Adjustment	
		
Modified Calculation	  		
Agent Adjustment:	  	If, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Company being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Dealer, the Issuer of the Affected Shares and the entity that will be the Issuer of the New Shares shall, prior to the Merger Date, have entered into such documentation containing agreements relating to “tacking” and “holding period” related considerations under U.S. securities law and credit exposure assumed by Dealer as the result of the Merger Event, as reasonably requested by Dealer that Dealer has determined, in its good faith, reasonable judgment, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to preserve its hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal and regulatory requirements, and if such conditions are not met or if the Calculation Agent reasonably determines that no adjustment that it could make under Section 12.2(e)(i) of the Equity Definitions will produce a commercially reasonable result, then the consequences set forth in Section 12.2(e)(ii) of the Equity Definitions shall apply.	
 
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Consequence of Tender Offers:

Tender Offer:	  	Applicable; provided that Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “25%”; provided, further ,that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(j)(ii)(A) of this Confirmation, the provisions of Section 9(j)(ii)(A) will apply.	
		
Share-for-Share:	  	Modified Calculation Agent Adjustment	
		
Share-for-Other:	  	Modified Calculation Agent Adjustment	
		
Share-for-Combined:	  	Modified Calculation Agent Adjustment	
		
Consequences of Announcement Events:	  	Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions, except that any adjustment in respect of an Announcement Event shall be made in a commercially reasonable manner and in consultation with Company; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event” and (y) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material effect on the Transaction (and, if so, adjust the terms of the Transaction accordingly in a commercially reasonable manner) on one or more occasions on or after the date of the Announcement Event but no later than the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.	
 
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Announcement Event:	  	(i) The public announcement by any entity of (x) any transaction or event that is reasonably likely to be completed, as determined by the Calculation Agent and, if completed, would constitute a Merger Event or Tender Offer, (y) any potential acquisition by Issuer and/or its subsidiaries where the aggregate consideration exceeds 15% of the market capitalization of Issuer as of the date of such announcement (an “ Acquisition Transaction ”) or (z) the intention to enter into a Merger Event or Tender Offer or an Acquisition Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or an Acquisition Transaction or (iii) any subsequent public announcement by any entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded.	
		
Nationalization, Insolvency or Delisting:	  	Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange.	
		
Additional Disruption Events:	  		
		
Change in Law:	  	Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the word “Shares” with the phrase “Hedge Positions” in clause (X) thereof and (ii) inserting the parenthetical “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” at the end of clause (A) thereof.	
		
Failure to Deliver:	  	Not Applicable	
		
Insolvency Filing:	  	Applicable	
 
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Hedging Disruption:	  	Applicable; provided that,	
		
	  	(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following two phrases at the end of such Section:	
		
	  	“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and	
		
	  	(ii)  Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.	
		
Increased Cost of Hedging:	  	Applicable	
		
Loss of Stock Borrow:	  	Applicable	
		
Maximum Stock Loan Rate:	  	200 basis points	
		
Increased Cost of Stock Borrow:	  	Applicable	
		
Initial Stock Loan Rate:	  	0 basis points until June 15, 2022 and 25 basis points thereafter.	
		
Hedging Party:	  	For all applicable Additional Disruption Events, Dealer.	
		
Determining Party:	  	For all applicable Extraordinary Events, Dealer.	
		
Non-Reliance:	  	Applicable	
		
Agreements and Acknowledgments	  		
Regarding Hedging Activities:	  	Applicable	
		
Additional Acknowledgments:	  	Applicable	
 
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4.   Calculation Agent .	  	Dealer, whose judgments, determinations and calculations shall be made in good faith and in a commercially reasonable manner; provided that, following the occurrence and during the continuance of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, if the Calculation Agent fails to timely make any calculation, adjustment or determination required to be made by the Calculation Agent hereunder or to perform any obligation of the Calculation Agent hereunder and such failure continues for five (5) Exchange Business Days following notice to the Calculation Agent by Company of such failure, Company shall have the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a request by Company, the Calculation Agent shall promptly (but in any event within five Scheduled Trading Days) provide to Company by e-mail to the e-mail address provided by Company in such request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation (including any assumptions used in making such determination or calculation), it being understood that the Calculation Agent shall not be obligated to disclose any proprietary models or proprietary or confidential information used by it for such determination or calculation.	
 
5.	Account Details .	
 
 	(a)	Account for payments to Company:	
To be provided by Company.
Account for delivery of Shares from Company:
To be provided by Company.
 
 	(b)	Account for payments to Dealer:	
ABA: 021000021
JP Morgan Chase NY (CHASUS33)
A/C Royal Bank of Canada, NY Branch (ROYCUS3X)
A/C#: 920-1-033363
FFC A/C Name: RBC US Transit
FFC A/C#: 012692041499
Reference: Impax Laboratories, Inc.
Account for delivery of Shares to Dealer:
To be provided by Dealer.
 
6.	Offices .	
 
 	(a)	The Office of Company for the Transaction is: Inapplicable, Company is not a Multibranch Party.	
 
 	(b)	The Office of Dealer for the Transaction is: New York	
Royal Bank of Canada
c/o RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Attention:         Structured Derivatives Documentation
Telephone:        (212) 858-7000
Facsimile:         (212) 428-3053
 
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7.	Notices .	
 
 	(a)	Address for notices or communications to Company:	
Impax Laboratories, Inc.
30831 Huntwood Avenue
Hayward, CA 94544
Attention:             Mark Schlossberg, SVP & General Counsel
Telephone No.:    (510) 240-6000
Facsimile No.:      (510) 240-6096
Address for notices or communications to Dealer:
Royal Bank of Canada
c/o RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Attention:          Structured Derivatives Documentation
Telephone:        (212) 858-7000
Facsimile:         (212) 428-3053
Email:               RBCECMCorporateEquityLinkedDocumentation@rbc.com
 
8.	Representations and Warranties of Company .	
Other than for purposes of Section 5(a)(iv) of the Agreement, each of the representations and warranties of Company set forth in Section 3 of the Purchase Agreement (the “ Purchase Agreement ”), dated as of June 25, 2015, between Company and RBC Capital Markets, LLC, as representative of the initial purchasers party thereto (the “ Initial Purchasers ”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Company hereby further represents and warrants to Dealer on the date hereof, on and as of the Premium Payment Date and, in the case of the representations in Section 8(d), at all times until termination of the Transaction, that:
 
 	(a)	Company has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Company’s part; and this Confirmation has been duly and validly executed and delivered by Company and constitutes its valid and binding obligation, enforceable against Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.	
 
 	(b)	Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Company hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Company, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.	
 
 	(c)	No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Company of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.	
 
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 	(d)	A number of Shares equal to 10,544,266 (the “ Warrant Shares ”) have been reserved for issuance by all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrants following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully-paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights.	
 
 	(e)	Company is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.	
 
 	(f)	Company is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).	
 
 	(g)	Company and each of its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Company or the Shares.	
 
 	(h)	To Company’s knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares.	
 
 	(i)	Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.	
 
 	(j)	Without limiting the generality of Section 13.1 of the Equity Definitions, Company acknowledges that Dealer is not making any representations or warranties with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share , ASC Topic 815, Derivatives and Hedging , or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.	
 
9.	Other Provisions .	
 
 	(a)	Opinions . Company shall deliver to Dealer one or more opinions of counsel, dated as of the Premium Payment Date, given by Latham & Watkins LLP, with respect to the matters set forth in Sections 8(a) through (d) of this Confirmation; provided that any such opinion of counsel may contain customary exceptions and qualifications. Delivery of such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement. In addition, in connection with the entry into or consummation of any Redomicile Transaction (as defined below), Company shall deliver to Dealer an opinion of counsel (subject to customary qualifications, assumptions and exceptions), dated as of the date of such Redomicile Transaction, with respect to the matters set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (except the reference in Section 8(b) to “any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” shall be replaced with “any agreement or instrument to which Company or its subsidiaries is a party or to which Company or any of its subsidiaries is subject”). “ Redomicile Transaction ” means any Merger Event, reincorporation of Company, corporate redomiciliation of Company or similar transaction pursuant to which (x) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of a corporation that is not organized under the laws of the United States, any State thereof or the District of Columbia or (y) the Company following such Merger Event, reincorporation of Company, corporate redomiciliation of Company or similar transaction is not a corporation or is incorporated in a jurisdiction other than the United States, any State thereof or the District of Columbia.	
 
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 	(b)	Repurchase Notices . Company shall, on any day on which Company effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “ Repurchase Notice ”) on such day if following such repurchase, the number of outstanding Shares on such day, subject to any adjustments provided herein, is (i) less than 69.09 million (in the case of the first such notice) or (ii) thereafter more than 2.43 million less than the number of Shares included in the immediately preceding Repurchase Notice. Company agrees to indemnify and hold harmless Dealer and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “ Indemnified Person ”) from and against any and all losses (including losses relating to Dealer’s hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable expenses (including reasonable attorney’s fees), joint or several, which an Indemnified Person may become subject to, in each case, as a result of Company’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person as a result of Company’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, such Indemnified Person shall promptly notify Company in writing, and Company, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Company may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding. Company shall not be liable for any settlement of such proceeding that is effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Company agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Company shall not, without the prior written consent of the Indemnified Person, effect any settlement of any such proceeding that is pending or threatened in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then Company under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities. The remedies provided for in this paragraph (b) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction.	
 
 	(c)	Regulation M . Company is not on the Trade Date engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), of any securities of Company, other than a distribution meeting the requirements of the exception set forth in Rules 101(b) and 102(b) of Regulation M. Company shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution.	
 
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 	(d)	Rule 10b-18 . On each Settlement Date, neither Company nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“ Rule 10b-18 ”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares except through Dealer and except (w) purchases of Shares that do not constitute “Rule 10b-18 purchases” under subparagraphs (ii) or (iii) of Rule 10b-18(a)(13) and that are not reasonably expected to result in purchases of Shares in the market, (x) withholding of Shares from holders of employee stock options to cover amounts payable (including tax liabilities and/or payment of exercise price) in respect of the exercise of such employee stock options, (y) purchases of Shares from employees to satisfy obligations under employee compensation agreements with such employees and (z) privately negotiated off-exchange repurchases of Shares that are not reasonably expected to result in purchases of Shares in the market.	
 
 	(e)	Resolutions . On or prior to the Trade Date, Company shall deliver to Dealer a resolution of Company’s board of directors authorizing the Transaction.	
 
 	(f)	No Manipulation . Company is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Exchange Act.	
 
 	(g)	Transfer or Assignment . Company may not transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer. Dealer may, without Company’s consent, transfer or assign all or any part of its rights or obligations under the Transaction to any affiliate of Dealer or any internationally recognized investment bank; provided , that, in each case, as a result of such transfer or assignment, (i) Company will not be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Company would have been required to pay to Dealer in the absence of such transfer or assignment and (ii) such transferee provides either an IRS Form W-9 or W-8 (or successor form). If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Warrant Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “ Excess Ownership Position ”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Warrants in accordance with the preceding sentence on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “ Terminated Portion ”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a Terminated Portion, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Warrants equal to the number of Warrants underlying the Terminated Portion, (2) Company were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Company to Dealer pursuant to this sentence as if Company was not the Affected Party). The “ Section  16 Percentage ” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and each person subject to aggregation of Shares with Dealer under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) and (B) the denominator of which is the number of Shares outstanding. The “ Warrant Equity Percentage ” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Warrants and the Warrant Entitlement and (2) the aggregate number of Shares underlying any other warrants purchased by Dealer from Company, and (B) the denominator of which is the number of Shares outstanding. The “ Share Amount ” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “ Dealer Person ”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Company that are, in each case, applicable to ownership of Shares (“ Applicable Restrictions ”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “ Applicable Share Limit ” means a number of Shares equal to (A) the minimum number of Shares that gives rise to reporting or registration obligations (except for any filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in a material adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities, or make or receive any payment in cash, to or from Company, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities, or make or receive such payment in cash, and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Company to the extent of any such performance.	
 
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 	(h)	Dividends . If at any time during the period from and including the Effective Date, to and including the last Expiration Date, an ex-dividend date for a cash dividend occurs with respect to the Shares, then the Calculation Agent will adjust any of the Strike Price, Number of Warrants, Daily Number of Warrants and/or any other variable relevant to the exercise, settlement or payment of the Transaction to preserve the fair value of the Warrants to Dealer after taking into account such dividend.	
 
 	(i)	Role of Agent. Dealer has appointed, as its agent, its indirect wholly-owned subsidiary, RBC Capital Markets, LLC (“ RBCCM ”), for purposes of conducting, on Dealer’s behalf, a business in privately negotiated transactions in options and other derivatives. Company hereby is advised that Dealer, the principal and stated counterparty in such transactions, duly has authorized RBCCM to market, structure, negotiate, document, price, execute and hedge transactions in over-the-counter derivative products. RBCCM does not act as agent of Company. For the avoidance of doubt, any performance by Dealer of its obligations hereunder solely to RBCCM shall not relieve Dealer of such obligations. RBCCM’s performance to Company of Dealer’s obligations hereunder shall relieve Dealer of such obligations to the extent of such performance. Any performance by Company of its obligations (including notice obligations) through or by means of RBCCM’s agency for Dealer shall constitute good performance of Company’s obligations hereunder to Dealer.	
 
 	(j)	Additional Provisions .	
 
 	(i)	Amendments to the Equity Definitions:	
 
 	(A)	Section 11.2(a) of the Equity Definitions is hereby amended by deleting the words “a diluting or concentrative” and replacing them with the words “a material”; and adding the phrase “or Warrants” at the end of the sentence.	
 
 	(B)	Section 11.2(c) of the Equity Definitions is hereby amended by (w) replacing the words “a diluting or concentrative” with “a material” in the fifth line thereof, (x) adding the phrase “or Warrants” after the words “the relevant Shares” in the same sentence, (y) deleting the words “diluting or concentrative” in the sixth to last line thereof and (z) deleting the phrase “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing it with the phrase “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares).”	
 
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 	(C)	Section 11.2(e)(vii) of the Equity Definitions is hereby replaced in its entirety with the words “any other corporate event involving the Issuer or its securities that has a material economic effect on the Transaction.”	
 
 	(D)	Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) the occurrence of any of the events specified in Section 5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to that Issuer.”	
 
 	(E)	Section 12.9(b)(iv) of the Equity Definitions is hereby amended by:	
 
 	(x)	deleting (1) subsection (A) in its entirety, (2) the phrase “or (B)” following subsection (A) and (3) the phrase “in each case” in subsection (B); and	
 
 	(y)	replacing the phrase “neither the Non-Hedging Party nor the Lending Party lends Shares” with the phrase “such Lending Party does not lend Shares” in the penultimate sentence.	
 
 	(F)	Section 12.9(b)(v) of the Equity Definitions is hereby amended by:	
 
 	(x)	adding the word “or” immediately before subsection “(B)” and deleting the comma at the end of subsection (A); and	
 
 	(y)	(1) deleting subsection (C) in its entirety, (2) deleting the word “or” immediately preceding subsection (C), (3) deleting the penultimate sentence in its entirety and replacing it with the sentence “The Hedging Party will determine the Cancellation Amount payable by one party to the other.” and (4) deleting clause (X) in the final sentence.	
 
 	(ii)	Notwithstanding anything to the contrary in this Confirmation, upon the occurrence of one of the following events, with respect to the Transaction, (1) Dealer shall have the right to designate such event an Additional Termination Event and designate an Early Termination Date pursuant to Section 6(b) of the Agreement, (2) Company shall be deemed the sole Affected Party with respect to such Additional Termination Event and (3) the Transaction, or, at the election of Dealer in its sole discretion, any portion of the Transaction, shall be deemed the sole Affected Transaction; provided that if Dealer so designates an Early Termination Date with respect to a portion of the Transaction, (a) a payment shall be made pursuant to Section 6 of the Agreement as if an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Warrants equal to the number of Warrants included in the terminated portion of the Transaction, and (b) for the avoidance of doubt, the Transaction shall remain in full force and effect except that the Number of Warrants shall be reduced by the number of Warrants included in such terminated portion:	
 
 	(A)	A “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than Company, its wholly owned subsidiaries and its and their employee benefit plans, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the common equity of Company representing more than 50% of the voting power of all classes of such common equity entitled to vote generally in the election of its directors.	
 
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 	(B)	Consummation of (I) any recapitalization, reclassification or change of the Shares (other than changes resulting from a subdivision or combination) as a result of which the Shares would be converted into, or exchanged for, stock, other securities, other property or assets, (II) any share exchange, consolidation or merger of Company pursuant to which the Shares will be converted into cash, securities or other property or assets or (III) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of Company and its subsidiaries, taken as a whole, to any person other than one of Company’s wholly owned subsidiaries. Notwithstanding the foregoing, any transaction or transactions set forth in this clause (B) shall not constitute an Additional Termination Event if (x) at least 90% of the consideration received or to be received by holders of the Shares, excluding cash payments for fractional Shares and cash payments made pursuant to dissenters’ appraisal rights, in connection with such transaction or transactions consists of shares of common stock that are listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions, and (y) as a result of such transaction or transactions, the Shares will consist of such consideration, excluding cash payments for fractional Shares and cash payments made pursuant to dissenters’ appraisal rights.	
 
 	(C)	[Reserved.]	
 
 	(D)	Default by Company or any of its Significant Subsidiaries (as defined below) with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $35 million (or its foreign currency equivalent) in the aggregate of Company and/or any such subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable or (ii) constituting a failure to pay the principal or interest of any such debt when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, if such default is not cured or waived, or such acceleration is not rescinded within 30 days after written notice to Company.	
A “ Significant Subsidiary ” is a subsidiary that is a “significant subsidiary” as defined under Rule 1-02(w) of Regulation S-X under the Exchange Act.
 
 	(E)	[Reserved.]	
 
 	(F)	Dealer, despite using commercially reasonable efforts, is unable or reasonably determines, based on advice of counsel, that it is impractical or illegal, to hedge its exposure with respect to the Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer).	
 
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 	(G)	On any day during the period from and including the Trade Date, to and including the earlier of the Stockholder Approval Date and the final Expiration Date, (I) the Notional Unwind Shares (as defined below) as of such day exceeds a number of Shares equal to 75% of the Maximum Number of Shares, or (II) Company makes a public announcement of any transaction or event that, in the reasonable opinion of Dealer would, upon consummation of such transaction or upon the occurrence of such event, as applicable, and after giving effect to any applicable adjustments hereunder, cause the Notional Unwind Shares immediately following the consummation of such transaction or the occurrence of such event to exceed a number of Shares equal to 75% of the Maximum Number of Shares. The “ Notional Unwind Shares ” as of any day is a number of Shares equal to (1) the amount that would be payable pursuant to Section 6 of the Agreement (determined as of such day as if an Early Termination Date had been designated in respect of the Transaction and as if the Company were the sole Affected Party and the Transaction were the sole Affected Transaction), divided by (2) the Settlement Price (determined as if such day were a Valuation Date). “ Stockholder Approval Date ” means the first date on which (x) Shareholders of Company have approved an increase in the number of authorized but unissued Shares that are not reserved for other purposes sufficient for Company to issue and deliver upon exercise and settlement or termination of all Warrants evidenced hereby a number of Shares equal to two times the product of the Number of Warrants and the Warrant Entitlement (the “ Maximum Underlying Share Amount ”) and (y) Company has reserved for exercise and settlement or termination of all Warrants evidenced hereby a number of Shares equal to the Maximum Underlying Share Amount.	
 
 	(k)	Collateral and No Setoff . Notwithstanding any provision of the Agreement or any other agreement between the parties to the contrary, the obligations of Company hereunder are not secured by any collateral. Both parties waive any rights to set-off or netting, including in any bankruptcy proceedings of Company, amounts due either party with respect to any Transaction hereunder against amounts due to either party from the other party under any other agreement between the parties.	
 
 	(l)	Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events .	
 
 	(i)	If (a) an Early Termination Date (whether as a result of an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result of (i) a Nationalization, Insolvency or Merger Event in which the consideration to be paid to holders of Shares consists solely of cash, (ii) a Merger Event or Tender Offer that is within Company’s control, or (iii) an Event of Default in which Company is the Defaulting Party or a Termination Event in which Company is the Affected Party other than an Event of Default of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type described in Section 5(b) of the Agreement, in each case that resulted from an event or events outside Company’s control), and if Company would owe any amount to Dealer pursuant to Section 6(d)(ii) of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “ Payment Obligation ”), then Company shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below), unless (a) Company gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) Company remakes the representation set forth in Section 8(g) as of the date of such election and (c) Dealer agrees, such agreement not to be unreasonably withheld, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of Section 6(d)(ii) of the Agreement, as the case may be, shall apply.	

Share Termination Alternative:	  	If applicable, Company shall deliver to Dealer the Share Termination Delivery Property on the date (the “ Share Termination Payment Date ”) on which the Payment Obligation would otherwise be due pursuant to Section 12.7 or Section 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, subject to Section 9(m)(i) below, in satisfaction, subject to Section 9(m)(ii) below, of the relevant Payment Obligation, in the manner reasonably requested by Dealer free of payment.	
 
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Share Termination Delivery Property:	  	A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the relevant Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the amount of Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price (without giving effect to any discount pursuant to Section 9(m)(i)).	
		
Share Termination Unit Price:	  	The value to Dealer of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means. In the case of a Private Placement of Share Termination Delivery Units that are Restricted Shares (as defined below), as set forth in Section 9(m)(i) below, the Share Termination Unit Price shall be determined by the discounted price applicable to such Share Termination Delivery Units (with such price taking into account a commercially reasonable liquidity discount in the case where such securities are subject to restrictions under the Securities Act). In the case of a Registration Settlement of Share Termination Delivery Units that are Restricted Shares (as defined below) as set forth in Section 9(m)(ii) below, notwithstanding the foregoing, the Share Termination Unit Price shall be the Settlement Price on the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable. The Calculation Agent shall notify Company of the Share Termination Unit Price at the time of notification of such Payment
Obligation to Company or, if applicable, at the time the discounted price applicable to the relevant Share Termination Units is determined pursuant to Section 9(m)(i).	
		
Share Termination Delivery Unit:	  	One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “ Exchange Property ”), a unit consisting of the type and amount of Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event. If such Nationalization, Insolvency or Merger Event involves a choice of Exchange Property to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.	
 
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Failure to Deliver:	  	Inapplicable	
		
Other applicable provisions:	  	If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.11 and 9.12 (as modified above) of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.	
 
 	(ii)	Notwithstanding anything to the contrary in this Confirmation, any Payment Obligation under this Confirmation shall, for all purposes, be calculated as if the Maximum Number of Shares were equal to two times the product of the Number of Warrants and the Warrant Entitlement, but any deliveries under Section 9(l)(i) shall be limited to the Maximum Number of Shares as defined in Section 9(r)(i) hereof.	
 
 	(m)	Registration/Private Placement Procedures . If, in the reasonable opinion of Dealer, following any delivery of Shares or Share Termination Delivery Property to Dealer hereunder, such Shares or Share Termination Delivery Property would be in the hands of Dealer subject to any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery requirement for such Shares or Share Termination Delivery Property pursuant to any applicable federal or state securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act as a result of such Shares or Share Termination Delivery Property being “restricted securities”, as such term is defined in Rule 144 under the Securities Act, or as a result of the sale of such Shares or Share Termination Delivery Property being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or Share Termination Delivery Property, “ Restricted Shares ”), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the election of Company, unless Dealer waives the need for registration/private placement procedures set forth in (i) and (ii) below. Notwithstanding the foregoing, solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, if Dealer notifies Company of the need for registration or private placement procedures set forth in this Section 9(m), then Company shall elect, prior to the later of (x) the first Settlement Date for the first applicable Expiration Date and (y) the third Scheduled Trading Day following the date of such notification, a Private Placement Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all remaining Settlement Dates for such Warrants and the procedures in clause (i) or clause (ii) below shall apply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. The Calculation Agent shall make reasonable adjustments to settlement terms and provisions under this Confirmation to reflect a single Private Placement or Registration Settlement for such aggregate Restricted Shares delivered hereunder.	
 
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 	(i)	If Company elects to settle the Transaction pursuant to this clause (i) (a “ Private Placement Settlement ”), then delivery of Restricted Shares by Company shall be effected in accordance with private placement procedures with respect to such Restricted Shares customary for private placements of equity securities of substantially similar size reasonably acceptable to Dealer; provided that Company may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act for the sale by Company to Dealer (or any affiliate designated by Dealer) of the Restricted Shares or the exemption pursuant to Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such affiliate of Dealer). The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Restricted Shares by Dealer), opinions and certificates, and such other documentation as is customary for private placement agreements of equity securities of a substantially similar size, all reasonably acceptable to Dealer. In the case of a Private Placement Settlement, Dealer shall determine the appropriate discount to the Share Termination Unit Price (in the case of settlement of Share Termination Delivery Units pursuant to Section 9(l) above) or premium to any Settlement Price (in the case of settlement of Shares pursuant to Section 2 above) applicable to such Restricted Shares in a commercially reasonable manner and appropriately adjust the number of such Restricted Shares to be delivered to Dealer hereunder. Notwithstanding anything to the contrary in the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Exchange Business Day following notice by Dealer to Company of such applicable discount or premium, as the case may be, and the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the Share Termination Payment Date (in the case of settlement of Share Termination Delivery Units pursuant to Section 9(l) above) or on the Settlement Date for such Restricted Shares (in the case of settlement in Shares pursuant to Section 2 above).	
 
 	(ii)	If Company elects to settle the Transaction pursuant to this clause (ii) (a “ Registration Settlement ”), then Company shall promptly (but in any event no later than the beginning of the Resale Period) file and use its reasonable best efforts to make effective under the Securities Act a registration statement or supplement or amend an outstanding registration statement in form and substance reasonably satisfactory to Dealer, to cover the resale of such Restricted Shares in accordance with customary resale registration procedures for registered secondary offerings of a substantially similar size, including covenants, conditions, representations, underwriting discounts (if applicable), commissions (if applicable), indemnities due diligence rights, opinions and certificates, and such other documentation as is customary for equity resale underwriting agreements for registered secondary offerings of a substantially similar size, all reasonably acceptable to Dealer. If Dealer, in its sole reasonable discretion, is not satisfied with such procedures and documentation Private Placement Settlement shall apply. If Dealer is satisfied with such procedures and documentation, it shall sell the Restricted Shares pursuant to such registration statement during a period (the “ Resale Period ”) commencing on the Exchange Business Day following delivery of such Restricted Shares (which, for the avoidance of doubt, shall be (x) the Share Termination Payment Date in case of settlement in Share Termination Delivery Units pursuant to Section 9(l) above or (y) the Settlement Date in respect of the final Expiration Date for all Daily Number of Warrants) and ending on the Exchange Business Day on which Dealer completes the sale of all Restricted Shares or, in the case of settlement of Share Termination Delivery Units, a sufficient number of Restricted Shares so that the realized net proceeds of such sales equals or exceeds the Payment Obligation (as defined above). If the Payment Obligation exceeds the realized net proceeds from such resale, Company shall transfer to Dealer by the open of the regular trading session on the Exchange on the Exchange Trading Day immediately following such resale the amount of such excess (the “ Additional Amount ”) in cash or in a number of Shares (“ Make-whole Shares ”) in an amount that, based on the Settlement Price on such day (as if such day was the “Valuation Date” for purposes of computing such Settlement Price), has a dollar value equal to the Additional Amount. The Resale Period shall continue to enable the sale of the Make-whole Shares. If Company elects to pay the Additional Amount in Shares, the requirements and provisions for Registration Settlement shall apply. This provision shall be applied successively until the Additional Amount is equal to zero. In no event shall Company deliver a number of Restricted Shares greater than the Maximum Number of Shares.	
 
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 	(iii)	Without limiting the generality of the foregoing, Company agrees that (A) any Restricted Shares delivered to Dealer may be transferred by and among Dealer and its affiliates and Company shall effect such transfer without any further action by Dealer and (B) after the period of 6 months from the Trade Date (or 1 year from the Trade Date if, at such time, informational requirements of Rule 144(c) under the Securities Act are not satisfied with respect to Company) has elapsed in respect of any Restricted Shares delivered to Dealer, Company shall promptly remove, or cause the transfer agent for such Restricted Shares to remove, any legends referring to any such restrictions or requirements from such Restricted Shares upon request by Dealer (or such affiliate of Dealer) to Company or such transfer agent, without any requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer). Notwithstanding anything to the contrary herein, to the extent the provisions of Rule 144 of the Securities Act or any successor rule are amended, or the applicable interpretation thereof by the Securities and Exchange Commission or any court change after the Trade Date, the agreements of Company herein shall be deemed modified to the extent necessary, in the opinion of outside counsel of Company, to comply with Rule 144 of the Securities Act, as in effect at the time of delivery of the relevant Shares or Share Termination Delivery Property.	
 
 	(iv)	If the Private Placement Settlement or the Registration Settlement shall not be effected as set forth in clauses (i) or (ii), as applicable, then failure to effect such Private Placement Settlement or such Registration Settlement shall constitute an Event of Default with respect to which Company shall be the Defaulting Party.	
 
 	(n)	Limit on Beneficial Ownership . Notwithstanding any other provisions hereof, Dealer may not exercise any Warrant hereunder or be entitled to take delivery of any Shares deliverable hereunder, and Automatic Exercise shall not apply with respect to any Warrant hereunder, to the extent (but only to the extent) that, after such receipt of any Shares upon the exercise of such Warrant or otherwise hereunder, (i) the Section 16 Percentage would exceed 8.5%, or (ii) the Share Amount would exceed the Applicable Share Limit. Any purported delivery hereunder shall be void and have no effect to the extent (but only to the extent) that, after such delivery, (i) the Section 16 Percentage would exceed 8.5%, or (ii) the Share Amount would exceed the Applicable Share Limit. If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of this provision, Company’s obligation to make such delivery shall not be extinguished and Company shall make such delivery as promptly as practicable after, but in no event later than one Business Day after, Dealer gives notice to Company that, after such delivery, (i) the Section 16 Percentage would not exceed 8.5%, and (ii) the Share Amount would not exceed the Applicable Share Limit.	
 
 	(o)	Share Deliveries . Notwithstanding anything to the contrary herein, Company agrees that any delivery of Shares or Share Termination Delivery Property shall be effected by book-entry transfer through the facilities of DTC, or any successor depositary, if at the time of delivery, such class of Shares or class of Share Termination Delivery Property is in book-entry form at DTC or such successor depositary.	
 
 	(p)	Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided herein.	
 
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 	(q)	Tax Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Company and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Company relating to such tax treatment and tax structure.	
 
 	(r)	Maximum Share Delivery .	
 
 	(i)	Notwithstanding any other provision of this Confirmation, the Agreement or the Equity Definitions, in no event will Company at any time be required to deliver a number of Shares greater than the Maximum Number of Shares to Dealer in connection with the Transaction, subject to the provisions regarding Deficit Shares in Section 9(r)(ii). “ Maximum Number of Shares ” means (x) prior to the Stockholder Approval Date, 10,544,266 and (y) from and after the Stockholder Approval Date, a number of Shares equal to two times the product of the Number of Warrants and the Warrant Entitlement.	
 
 	(ii)	In the event Company shall not have delivered to Dealer the full number of Shares or Restricted Shares otherwise deliverable by Company to Dealer pursuant to the terms of the Transaction because Company has insufficient authorized but unissued Shares that are not reserved for other transactions (such deficit, the “ Deficit Shares ”), Company shall be continually obligated to deliver, from time to time, Shares or Restricted Shares, as the case may be, to Dealer until the full number of Deficit Shares have been delivered pursuant to this Section 9(r)(ii), when, and to the extent that, (A) Shares are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), (B) authorized and unissued Shares previously reserved for issuance in respect of other transactions become no longer so reserved or (C) Company additionally authorizes any unissued Shares that are not reserved for other transactions; provided that in no event shall Company deliver any Shares or Restricted Shares to Dealer pursuant to this Section 9(r)(ii) to the extent that such delivery would cause the aggregate number of Shares and Restricted Shares delivered to Dealer to exceed the Maximum Number of Shares. Company shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares subject to clause (A), (B) or (C) and the corresponding number of Shares or Restricted Shares, as the case may be, to be delivered) and promptly deliver such Shares or Restricted Shares, as the case may be, thereafter.	
 
 	(s)	Right to Extend. Dealer may postpone or add, in whole or in part, any Expiration Date or any other date of valuation or delivery with respect to some or all of the relevant Warrants (in which event the Calculation Agent shall make appropriate adjustments to the Daily Number of Warrants with respect to one or more Expiration Dates) if Dealer determines, based on the advice of counsel, that such extension is reasonably necessary or appropriate to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions that are materially different from those in existence as of the Trade Date or to enable Dealer to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Issuer or an affiliated purchaser of Issuer, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer; provided that no such Exchange Business Day or other date of valuation, payment or delivery may be postponed or added more than 50 Exchange Business Days after the original Exchange Business Day or other date of valuation, payment or delivery, as the case may be.	
 
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 	(t)	Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Company with respect to the Transaction that are senior to the claims of common stockholders of Company in any United States bankruptcy proceedings of Company; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Company of its obligations and agreements with respect to the Transaction; provided , further , that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.	
 
 	(u)	Securities Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code (Title 11 of the United States Code) (the “ Bankruptcy Code ”), and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code.	
 
 	(v)	Wall Street Transparency and Accountability Act . In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“ WSTAA ”), the parties hereby agree that neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption, Increased Cost of Hedging, an Excess Ownership Position, or Illegality (as defined in the Agreement)).	
 
 	(w)	Agreements and Acknowledgements Regarding Hedging . Company understands, acknowledges and agrees that: (A) at any time on and prior to the last Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the Transaction; (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Settlement Prices; and (D) any market activities of Dealer and its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Settlement Prices, each in a manner that may be adverse to Company.	
 
 	(x)	Early Unwind . In the event the sale of the “Underwritten Securities” (as defined in the Purchase Agreement) is not consummated with the Initial Purchasers for any reason, or Company fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date the “ Early Unwind Date ”),the Transaction shall automatically terminate (the “ Early Unwind ”),on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Company under the Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date. Each of Dealer and Company represents and acknowledges to the other that, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.	
 
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 	(y)	Payment by Dealer . In the event that (i) an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Dealer owes to Company an amount calculated under Section 6(e) of the Agreement, or (ii) Dealer owes to Company, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero.	
 
 	(z)	Listing of Warrant Shares . Company shall have submitted an application for the listing of the Warrant Shares on the Exchange, and such application and listing shall have been approved by the Exchange, subject only to official notice of issuance, in each case, on or prior to the Premium Payment Date. Company agrees and acknowledges that such submission and approval shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement.	
 
 	(aa)	Redomicile Transaction . Company shall not enter into or consummate any Redomicile Transaction unless:	
 
 	(i)	Company will be a corporation incorporated under the laws of the United States or any state thereof and a wholly-owned direct or indirect subsidiary of a successor Issuer immediately following such Redomicile Transaction, such successor Issuer fully and unconditionally guarantees the obligations of Company under this Confirmation (the “ Guaranteed Obligations ”) and repeats to Dealer immediately following such Redomicile Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (w) “Transaction” were replaced with “guarantee of the Guaranteed Obligations”, (x) “Company” were replaced with “Issuer”, (y) “Confirmation” were replaced with “guarantee of the Guaranteed Obligations” and (z) “any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” in Section 8(b) were replaced with “any agreement or instrument to which Issuer or its subsidiaries is a party or to which Issuer or any of its subsidiaries is subject”); or	
 
 	(ii)	the successor Issuer immediately following such Redomicile Transaction assumes Company’s rights and obligations hereunder, becoming “Company” for all purposes hereunder, and such successor Company immediately following such Redomicile Transaction repeats to Dealer immediately following such Redomicile Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (w) “execute, deliver” were replaced with “assume”, (x) “execution, delivery” and “execution and delivery” were replaced with “assumption”, (y) “executed and delivered” were replaced with “assumed” and (z) “any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” in Section 8(b) were replaced with “any agreement or instrument to which Company or its subsidiaries is a party or to which Company or any of its subsidiaries is subject”).	
Notwithstanding anything to the contrary in this Confirmation, following consummation of any Redomicile Transaction pursuant to which Issuer following such Redomicile Transaction is organized under the laws of a jurisdiction other than the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United Kingdom, then such Redomicile Transaction shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Company shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.
 
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If, at any time following the occurrence of any Redomicile Transaction, Dealer reasonably determines in its good faith judgment, following consultation with Company for a period of at least five Scheduled Trading Days (such consultation period, the “ Redomicile Event Consultation Period ”) that (i) (x) such Redomicile Transaction has had a material adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased (as compared with circumstances existing on the Trade Date) amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) and (ii) Dealer cannot promptly avoid the occurrence of each such material adverse effect or increased tax, duty, expense or fee by (x) transferring or assigning Dealer’s rights and obligations under this Confirmation and the Agreement without Company’s consent pursuant to Section to an affiliate of Dealer that would not suffer any such material adverse effect or increased tax, duty, expense or fee (it being understood that Dealer need not take any action that does not meet the Avoidance Criteria), (y) using commercially reasonable efforts to avoid such material adverse effect or increased tax, duty, expense or fee (it being understood that Dealer need not take any action that does not meet the Avoidance Criteria) or (z) amending the terms of this Confirmation (whether because amendments would not avoid such occurrence or because Company fails to agree promptly to such amendments) (it being understood, for the avoidance of doubt, that an event described in clause (i)(x) or clause (i)(y) above for which Dealer can avoid the occurrence of the relevant material adverse effect or increased tax, duty, expense or fee after giving effect to the related Price Adjustment referred to below shall be a Redomicile Event notwithstanding this clause (ii)(z)) (each of the events described in clause (i)(x) and clause (i)(y) above that also satisfies the conditions set forth in clause (ii) above, a “ Redomicile Event ”), then, in either case, Dealer shall give prompt notice to Company of such Redomicile Event.
“ Avoidance Criteria ” means with respect to an action by a party, as determined by the Calculation Agent in good faith, that (i) such action is legal (and, in the case of a Change in Law, in the reasonable judgment of Dealer is within the intent of the law or regulation that is the subject of the Change in Law) and complies with all applicable regulations, rules (including by self-regulatory organizations) and policies (whether written or oral) including policies of such party, (ii) such action would not cause or, in the judgment of Dealer, would not create a material risk of causing, an Additional Disruption Event (ignoring, for this purpose, any requirement to avoid such Additional Disruption Event as set forth herein), (iii) if such party or an affiliate is to establish one or more alternative Hedge Positions, there is sufficient liquidity in those alternative Hedge Positions available for that Hedging Party to hedge the Transaction and all other transactions into which that party has entered and for which that party determines that it needs to utilize those alternative Hedge Positions, (iv) such action is known by that party or known by other financial institutions that are leading derivatives dealers that are generally willing to enter into transactions similar to the Transaction; (v) by taking such action, such party would not incur, or there would not be a material risk that such party would incur, any one or more of an increased operational or administrative burden or expense, increased performance cost, increased hedging cost or increased capital charges (in each case as compared to circumstances on the Trade Date), (vi) such action would not require such party to (A) enter into arrangements with a counterparty, custodian, depositary and/or other third party that has no existing business relationship with that party in relation to positions, contracts, instruments, transactions, or other arrangements similar in type to such action or (B) exceed, individually or together with any other positions, contracts, transactions, instruments or other arrangements into which such party has entered (individually or on a portfolio basis), investment quotas, position limits, investment level restrictions, internal client limits, credit limits or risk-based requirements of such party, in each case, existing as of the Trade Date and regardless of whether imposed by law, governmental authority or regulation, and (vii) by taking such action, it would not be necessary for that party to make any filing or submission to any government or regulatory authority (including a taxing authority) and (viii) as applied to an avoidance of an Excess Ownership Position, such action does not cause, or would not create a material risk of causing, an interference or disruption to such party’s normal business practice or client service including, without limitation, market-making, trust or custody service.
 
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Concurrently with delivering such notice, Dealer shall give notice to Company of a commercially reasonable Price Adjustment that Dealer determines, in its good faith, commercially reasonable judgment, appropriate to account for the economic effect on the Transaction of such Redomicile Event and provide Company with supporting documentation for such Price Adjustment (unless Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, in which case Dealer shall so notify Company). Unless Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, within two Scheduled Trading Days of receipt of such notice, Company shall notify Dealer that it elects to (A) agree to amend the Transaction to take into account such Price Adjustment or (B) pay Dealer an amount determined by Dealer (and in respect of which Dealer has provided to Company supporting documentation) that corresponds to such Price Adjustment (and, in each case, Company shall be deemed to have repeated the representation set forth in Section 8(g) of this Confirmation as of the date of such election). If Company fails to give such notice to Dealer of its election by the end of that second Scheduled Trading Day, or if Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, then such failure or such determination, as the case may be, shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (1) Company shall be deemed to be the sole Affected Party, (2) the Transaction shall be the sole Affected Transaction and (3) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. For the avoidance of doubt, the parties hereto agree and acknowledge that the occurrence of a Redomicile Event shall not preclude the occurrence of one or more additional, subsequent Redomicile Events, it being understood and agreed that any Price Adjustment described in clause (A) above and/or any payment described in clause (B) above shall be calculated without duplication in respect of any prior such Price Adjustment and/or payment. For purposes of the foregoing, Dealer will be deemed to have not determined that no Price Adjustment will produce a commercially reasonable result unless Dealer has consulted with Company regarding such Price Adjustment determination for a period of at least five Scheduled Trading Days (it being understood that such consultation period may run concurrently with the Redomicile Event Consultation Period for the related Redomicile Event if Company receives notice of such Price Adjustment determination prior to the start of such Redomicile Event Consultation Period).
 
 	(bb)	FATCA and Dividend Equivalent Tax . “Indemnifiable Tax” as defined in Section 14 of the Agreement shall not include (i) any tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “ FATCA Withholding Tax ”) or (ii) any tax imposed on amounts treated as dividends from sources within the United States under Section 871(m) of the Code (or the United States Treasury Regulations or other guidance issued thereunder). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.	
 
 	(cc)	U.S. Federal Withholding Tax. If Dealer transfers or assigns all or any part of its rights and obligations under the Transaction without the Company’s consent to a transferee that (1) is not a United States person (as defined in the Code) and (2) does not provide a W-8ECI, the term “Indemnifiable Tax” as defined in Section 14 of the Agreement shall not include any U.S. federal withholding tax including, but not limited to (i) any FATCA Withholding Tax, (ii) any tax imposed on amounts treated as dividends from sources within the United States under Section 871(m) of the Code (or the United States Treasury Regulations or other guidance issued thereunder), or (iii) any tax imposed on amounts treated as distributions of property under Section 305 of the Code (or the United States Treasury Regulations or other guidance issued thereunder), and if, at any time, Company is required to remit an amount of tax in respect of any such U.S. federal withholding tax including, but not limited to any tax described under (i) through (iii) with respect to a payment (or deemed payment or deemed distribution) under the Transaction, then without duplication for any amount that Company has deducted on account of such tax from any amount paid to such transferee pursuant to the Transaction, the amount so required to be remitted shall be payable by such transferee to Company within 10 business days of written demand by the Company. For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.	
 
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 	(dd)	Part 2(b) of the ISDA Schedule – Payee Representation .	
 
 	(i)	For the purpose of Section 3(f) of this Agreement, Company makes the following representation to Dealer:	
Company is a corporation established under the laws of the State of Delaware and is a “United States person” (as that term is defined in Section 7701(a)(30) of the Code).
 
 	(ii)	For the purpose of Section 3(f) of this Agreement, Dealer makes the following representation to Company:	
Each payment received or to be received by it in connection with this Agreement is effectively connected with its conduct of a trade or business by Dealer within the United States; and
It is a “foreign person” (as that term is used in Section 1.6041-4(a)(4) of the United States Treasury Regulations) for United States federal income tax purposes.
 
 	(ee)	Part 3(a) of the ISDA Schedule – Tax Forms :	

Party Required to
Deliver Document	  	Form/Document/Certificate	  	Date by which to be Delivered	
Company	  	A complete and duly executed United States Internal Revenue Service Form W-9 (or successor thereto.)	  	(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Dealer; and (iii) promptly upon learning that any such Form previously provided by Company has become obsolete or incorrect.	
			
Dealer	  	A complete and duly executed United States Internal Revenue Service Form W-8ECI (or successor thereto)	  	(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Company; and (iii) promptly upon learning that any such Form previously provided by Dealer has become obsolete or incorrect.	
 
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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to Dealer.
                                     Very truly yours,

ROYAL BANK OF CANADA
by its agent
RBC Capital Markets, LLC	
		
By:	 	s/ Dawn T. Laabs	
Authorized Signatory	
Name:	

Accepted and confirmed
as of the Trade Date:	
	
IMPAX LABORATORIES, INC.	
		
By:	 	s/ Bryan Reasons	
Authorized Signatory	
Name:	

Exhibit 10.16

	  		  	
 
RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Telephone: (212) 858-7000
 
June 25, 2015	
 
To:	Impax Laboratories, Inc.	
30831 Huntwood Avenue
Hayward, CA 94544
Attention:         Mark Schlossberg, SVP & General Counsel
Telephone No.: (510) 240-6000
Facsimile No.:   (510) 240-6096
 
Re:	Base Call Option Transaction	
The purpose of this letter agreement (this “ Confirmation ”) is to confirm the terms and conditions of the call option transaction entered into between Royal Bank of Canada (“ Dealer ”) and Impax Laboratories, Inc. (“ Counterparty ”) as of the Trade Date specified below (the “ Transaction ”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. This Confirmation shall replace any previous agreements and serve as the final documentation for the Transaction.
The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “ Equity Definitions ”), as published by the International Swaps and Derivatives Association, Inc. (“ ISDA ”) are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated June 25, 2015 (the “ Offering Memorandum ”) relating to the 2.00% Convertible Senior Notes due 2022 (as originally issued by Counterparty, the “ Convertible Notes ” and each USD 1,000 principal amount of Convertible Notes, a “ Convertible Note ”) issued by Counterparty in an aggregate initial principal amount of USD 500,000,000 (as increased by up to an aggregate principal amount of USD 100,000,000 if and to the extent that the Initial Purchasers (as defined herein) exercise their option to purchase additional Convertible Notes pursuant to the Purchase Agreement (as defined herein)) pursuant to an Indenture to be dated June 30, 2015 between Counterparty and Wilmington Trust, National Association, as trustee (the “ Indenture ”). In the event of any inconsistency between the terms defined in the Offering Memorandum, the Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that this Confirmation is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture which are also defined herein by reference to the Indenture and (ii) sections of the Indenture that are referred to herein will conform to the descriptions thereof in the Offering Memorandum. If any such definitions in the Indenture or any such sections of the Indenture differ from the descriptions thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern for purposes of this Confirmation. The parties further acknowledge that the Indenture section numbers used herein are based on the draft of the Indenture last reviewed by Dealer as of the date of this Confirmation, and if any such section numbers are changed in the Indenture as executed, the parties will amend this Confirmation in good faith to preserve the intent of the parties. Subject to the foregoing, references to the Indenture herein are references to the Indenture as in effect on the date of its execution, and if the Indenture is amended or supplemented following such date (other than any amendment or supplement (x) pursuant to Section 10.01(m) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture, subject, in the case of this clause (y), to the second paragraph under “Method of Adjustment” in Section 3), any such amendment or supplement will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.
Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.

1. This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “ Agreement ”) as if Dealer and Counterparty had executed an agreement in such form (but without any Schedule except for (i) the election of the laws of the State of New York as the governing law (without reference to choice of law doctrine); and (ii) the election that the “Cross Default” provisions of Section 5(a)(vi) of the Agreement will apply to Dealer as if (a) the phrase “, or becoming capable at such time of being declared,” were deleted from Section 5(a)(vi)(1) of the Agreement, (b) the “Threshold Amount” with respect to Dealer were three percent (3%) of shareholders’ equity of Dealer as of the Trade Date, (c) the following language were added to the end of Section 5(a)(vi): “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational nature; (y) funds were available to enable the party to make the payment when due; and (z) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”; and (d) the term “Specified Indebtedness” had meaning specified in Section 14 of the Agreement, except that such term shall not include obligations in respect of deposits received in the ordinary course of Dealer’s banking business) on the Trade Date. In the event of any inconsistency between provisions of the Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement.
2. The terms of the particular Transaction to which this Confirmation relates are as follows:

	  	General Terms.	  		
			
	  	Trade Date:	  	June 25, 2015	
			
	  	Effective Date:	  	The Trade Date	
			
	  	Option Style:	  	“Modified American”, as described under “Procedures for Exercise” below	
			
	  	Option Type:	  	Call	
			
	  	Buyer:	  	Counterparty	
			
	  	Seller:	  	Dealer	
			
	  	Shares:	  	The common stock of Counterparty, par value USD 0.01 per share (Exchange symbol “IPXL”).	
			
	  	Number of Options:	  	500,000. For the avoidance of doubt, the Number of Options shall be reduced by any Options exercised by Counterparty. In no event will the Number of Options be less than zero.	
			
	  	Option Entitlement:	  	15.7858	
			
	  	Strike Price:	  	USD 63.35	
			
	  	Premium:	  	USD 122,500,000.00	
			
	  	Premium Payment Date:	  	The closing date of the initial issuance of the Convertible Notes	
			
	  	Exchange:	  	The NASDAQ Global Market	
			
	  	Related Exchange(s):	  	All Exchanges	
			
	  	Excluded Provisions:	  	Section 14.04(i) and Section 14.03 of the Indenture.	
 
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	 	Procedures for Exercise.	  		
			
	 	Conversion Date:	  	With respect to any conversion of a Convertible Note, the date on which the Holder (as such term is defined in the Indenture) of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section 14.02(b) of the Indenture.	
			
	 	Free Convertibility Date:	  	December 15, 2021	
			
	 	Expiration Time:	  	The Valuation Time	
			
	 	Expiration Date:	  	June 15, 2022, subject to earlier exercise.	
			
	 	Multiple Exercise:	  	Applicable, as described under “Automatic Exercise” below.	
			
	 	Automatic Exercise:	  	Notwithstanding Section 3.4 of the Equity Definitions, on each Conversion Date in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder, a number of Options equal to the number of Convertible Notes in denominations of USD 1,000 as to which such Conversion Date has occurred shall be deemed to be automatically exercised; provided that such Options shall be exercised or deemed exercised only if Counterparty has provided a Notice of Exercise to Dealer in accordance with “Notice of Exercise” below.	
			
	 		  	Notwithstanding the foregoing, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options.	
			
	 	Notice Deadline:	  	In respect of any exercise of Options on any Conversion Date, 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for such Options; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, the Notice Deadline is 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date; provided, further , that notwithstanding the foregoing, any Notice of Exercise and the related automatic exercise of the related Options shall be effective if given after the relevant Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this proviso, the Calculation Agent shall have the right to adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs and losses (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline.	
 
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	  	Notice of Exercise:	  	Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty must notify Dealer in writing before 5:00 p.m. (New York City time) on the applicable Notice Deadline of (i) the aggregate principal amount of Convertible Notes as to which such Conversion Date has occurred (including, if applicable, whether all or any portion of such Convertible Notes are Convertible Notes as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 14.03 of the Indenture (the “ Make-Whole Convertible Notes ”)), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the settlement method for the related Convertible Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “ Specified Cash Amount ”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (z) Combination Settlement, Dealer shall have received a separate notice (the “ Notice of Final Settlement Method ”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Scheduled Trading Day immediately following the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.	
			
	  	Valuation Time:	  	At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.	
 
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	  	Market Disruption Event:	  	Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following:	
			
	  		  	“‘Market Disruption Event’ means, in respect of a Share, (i) a failure by the primary United States national or regional securities exchange or market on which the Shares are listed or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. (New York City time) on any Scheduled Valid Day for the Shares for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Shares or in any options contracts or futures contracts relating to the Shares.”	
			
	  	Settlement Terms.	  		
			
	  	Settlement Method:	  	For any Option, Net Share Settlement; provided that if the Relevant Settlement Method set forth below for such Option is not Net Share Settlement, then the Settlement Method for such Option shall be such Relevant Settlement Method, but only if Counterparty shall have notified Dealer of the Relevant Settlement Method in the Notice of Exercise or Notice of Final Settlement Method, as applicable, for such Option.	
			
	  	Relevant Settlement Method:	  	In respect of any Option:
 
(i) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note (A) entirely in Shares pursuant to Section 14.02(a)(v)(A) of the Indenture (together with cash in lieu of fractional Shares) (such settlement method, “ Settlement in Shares ”), (B) in a combination of cash and Shares pursuant to Section 14.02(a)(v)(C) of the Indenture with a Specified Cash Amount less than USD 1,000 (such settlement method, “ Low Cash Combination Settlement ”) or (C) in a combination of cash and Shares pursuant to Section 14.02(a)(v)(C) of the Indenture with a Specified Cash Amount equal to USD 1,000, then, in each case, the Relevant Settlement Method for such Option shall be Net Share Settlement;	
			
	  		  	(ii) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in a combination of cash and Shares pursuant to Section 14.02(a)(v)(C) of the Indenture with a Specified Cash Amount greater than USD 1,000, then the Relevant Settlement Method for such Option shall be Combination Settlement; and	
			
	  		  	(iii) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note entirely in cash pursuant to Section 14.02(a)(v)(B) of the Indenture (such settlement method, “ Settlement in Cash ”), then the Relevant Settlement Method for such Option shall be Cash Settlement.	
			
	  	Net Share Settlement:	  	If Net Share Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement Date for each such Option, a number of Shares (the “ Net Share Settlement Amount ”) equal to the sum, for each Valid Day during the Settlement Averaging Period for each such Option, of (i) (a) the Daily Option Value for such Valid Day, divided by (b) the Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Net Share Settlement Amount for any Option exceed a number of Shares equal to the Applicable Limit for such Option divided by the Applicable Limit Price on the Settlement Date for such Option.	
 
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	 		  	Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Net Share Settlement Share Amount valued at the Relevant Price for the last Valid Day of the applicable Settlement Averaging Period.	
			
	 	Combination Settlement:	  	If Combination Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will pay and/or deliver, as the case may be, to Counterparty, on the relevant Settlement Date for each such Option:	
			
	 		  	(i) cash (the “ Combination Settlement Cash Amount ”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (A) an amount for such Valid Day (the “Daily Combination Settlement Cash Amount ”) equal to the lesser of (1) the Specified Cash Amount minus USD 1,000 and (2) the Daily Option Value for such Valid Day, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in clause (A) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Cash Amount for such Valid Day shall be deemed to be zero; and	
			
	 		  	(ii)  Shares (the “ Combination Settlement Share Amount ”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of a number of Shares for such Valid Day (the “ Daily Combination Settlement Share Amount ”) equal to (A) (1) the Daily Option Value on such Valid Day minus the Daily Combination Settlement Cash Amount for such Valid Day, divided by (2) the Relevant Price on such Valid Day, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in sub-clause (A)(1) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Share Amount for such Valid Day shall be deemed to be zero;	
			
	 		  	provided that in no event shall the sum of (x) the Combination Settlement Cash Amount for any Option and (y) the Combination Settlement Share Amount for such Option multiplied by the Applicable Limit Price on the Settlement Date for such Option, exceed the Applicable Limit for such Option.	
 
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	  		  	Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Combination Settlement Share Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period.	
			
	  	Cash Settlement:	  	If Cash Settlement is applicable to any Option exercised or deemed exercised hereunder, in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for each such Option, an amount of cash (the “ Cash Settlement Amount ”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period.	
			
	  	Daily Option Value:	  	For any Valid Day, an amount equal to (i) the Option Entitlement on such Valid Day, multiplied by (ii) the Relevant Price on such Valid Day less the Strike Price on such Valid Day; provided that if the calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Valid Day shall be deemed to be zero. In no event will the Daily Option Value be less than zero.	
			
	  	Make-Whole Adjustment:	  	Notwithstanding anything to the contrary herein, in respect of any exercise of Options relating to a conversion of Convertible Notes for which additional Shares will be added to the “Conversion Rate” (as defined in the Indenture) as determined pursuant to Section 14.03 of the Indenture, the Daily Option Value shall be calculated as if the Option Entitlement included such additional Shares as determined with reference to the adjustment set forth in such Section 14.03 of the Indenture; provided that if the sum of (i) the product of (a) the number of Shares (if any) deliverable by Dealer to Counterparty per exercised Option and (b) the Applicable Limit Price on the Settlement Date and (ii) the amount of cash (if any) payable by Dealer to Counterparty per exercised Option would otherwise exceed the amount per Option, as determined by the Calculation Agent, that would be payable by Dealer under Section 6 of the Agreement if (x) the relevant Conversion Date were an Early Termination Date resulting from an Additional Termination Event with respect to which the Transaction was the sole Affected Transaction and Counterparty was the sole Affected Party and (y) Section 14.03 of the Indenture were deleted, then each Daily Option Value shall be proportionately reduced to the extent necessary to eliminate such excess.	
			
	  	Applicable Limit:	  	For any Option, an amount of cash equal to the excess of (i) the aggregate of (A) the amount of cash, if any, paid to the Holder of the related Convertible Note upon conversion of such Convertible Note and (B) the number of Shares, if any, delivered to the Holder of the related Convertible Note upon conversion of such Convertible Note, in each case, pursuant to the terms of the Indenture multiplied by the Applicable Limit Price on the Settlement Date for such Option, over (ii) USD 1,000.	
 
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	  	Applicable Limit Price:	  	On any day, the opening price as displayed under the heading “Op” on Bloomberg page IPXL <equity> (or any successor thereto).	
			
	  	Valid Day:	  	A day on which (i) there is no Market Disruption Event and (ii) trading in the Shares generally occurs on the Exchange or, if the Shares are not then listed on the Exchange, on the principal other United States national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a United States national or regional securities exchange, on the principal other market on which the Shares are then listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Valid Day” means a Business Day.	
			
	  	Scheduled Valid Day:	  	A day that is scheduled to be a Valid Day on the principal United States national or regional securities exchange or market on which the Shares are listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Scheduled Valid Day” means a Business Day.	
			
	  	Business Day:	  	Any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.	
			
	  	Relevant Price:	  	On any Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page IPXL <equity> AQR (or its equivalent successor if such page is not available) in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time of the Exchange on such Valid Day (or if such volume-weighted average price is unavailable at such time, the market value of one Share on such Valid Day, as determined by the Calculation Agent using, if practicable, a volume-weighted average method). The Relevant Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.	
			
	  	Settlement Averaging Period:	  	For any Option and regardless of the Settlement Method applicable to such Option:	
			
	  		  	(i) if the related Conversion Date occurs prior to the Free Convertibility Date, the 40 consecutive Valid Days commencing on, and including, the second Valid Day following such Conversion Date; provided that if the Notice of Exercise for such Option specifies that Settlement in Shares or Low Cash Combination Settlement applies to the related Convertible Note, the Settlement Averaging Period shall be the 80 consecutive Valid Day period commencing on, and including, the second Valid Day immediately following such Conversion Date; or	
 
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	 		  	(ii)  if the related Conversion Date occurs on or following the Free Convertibility Date, the 40 consecutive Valid Days commencing on, and including, the 42 nd Scheduled Valid Day immediately prior to the Expiration Date; provided that if the Notice of Exercise or Notice of Final Settlement Method, as applicable, for such Option specifies that Settlement in Shares or Low Cash Combination Settlement applies to the related Convertible Note, the Settlement Averaging Period shall be the 80 consecutive Valid Days commencing on, and including, the 82 nd Scheduled Valid Day immediately prior to the Expiration Date.	
			
	 	Settlement Date:	  	For any Option, the third Business Day immediately following the final Valid Day of the Settlement Averaging Period for such Option.	
			
	 	Settlement Currency:	  	USD	
			
	 	Other Applicable Provisions:	  	The provisions of Sections 9.1(c), 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Settled”. “Share Settled” in relation to any Option means that Net Share Settlement or Combination Settlement is applicable to that Option.	
			
	 	Representation and Agreement:	  	Notwithstanding anything to the contrary in the Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge that (i) any Shares delivered to Counterparty shall be, upon delivery, subject to restrictions and limitations arising from Counterparty’s status as issuer of the Shares under applicable securities laws, (ii) Dealer may deliver any Shares required to be delivered hereunder in certificated form in lieu of delivery through the Clearance System and (iii) any Shares delivered to Counterparty may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “ Securities Act ”)).	
 
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3.	  	Additional Terms applicable to the Transaction.	  		
			
	  	Adjustments applicable to the Transaction:	  		
			
	  	Potential Adjustment Events:	  	Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that would result in an adjustment under the Indenture to the “Conversion Rate” or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price”, “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture). For the avoidance of doubt, Dealer shall not have any delivery or payment obligation hereunder, and no adjustment shall be made to the terms of the Transaction, on account of (x) any distribution of cash, property or securities by Counterparty to holders of the Convertible Notes (upon conversion or otherwise) or (y) any other transaction in which holders of the Convertible Notes are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to the fourth sentence of the first paragraph of Section 14.04(c) of the Indenture or the fourth sentence of Section 14.04(d) of the Indenture).	
			
	  	Method of Adjustment:	  	Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent, in a commercially reasonable manner and in consultation with Counterparty, shall make a corresponding adjustment to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Potential Adjustment Event.	
			
	  		  	Notwithstanding the foregoing and “Consequences of Merger Events” below, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 14.05 of the Indenture, Section 14.07 of the Indenture or any supplemental indenture entered into thereunder or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner and in consultation with Counterparty; provided, further , that, notwithstanding the foregoing, if any Potential Adjustment Event occurs during	
					
	  		  	the Settlement Averaging Period but no adjustment was made to any Convertible Note under the Indenture because the relevant Holder (as such term is defined in the Indenture) was deemed to be a record owner of the underlying Shares on the related Conversion Date, then the Calculation Agent shall make an adjustment, as determined by it, to the terms hereof in order to account for such Potential Adjustment Event in a commercially reasonable manner and in consultation with Counterparty.	
 
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	 	Dilution Adjustment Provisions:	  	Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture.	
			
	 	Extraordinary Events applicable to the Transaction:	  		
			
	 	Merger Events:	  	Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 14.07 of the Indenture.	
			
	 	Tender Offers:	  	Not applicable.	
			
	 	Consequences of Merger Events:	  	Subject to Section 9(bb) below and notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent, in a commercially reasonable manner and in consultation with Counterparty, shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event, subject to the second paragraph under “Method of Adjustment”; provided , however , that no adjustment shall be made in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision.	
			
	 	Nationalization, Insolvency or Delisting:	  	Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange.	
			
	 	Restrictions on Adjustments:	  	Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 14.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise.	
 
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	  	Additional Disruption Events:	  		
			
	  	Change in Law:	  	Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the word “Shares” with the phrase “Hedge Positions” in clause (X) thereof and (ii) inserting the parenthetical “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” at the end of clause (A) thereof.	
			
	  	Failure to Deliver:	  	Applicable	
			
	  	Hedging Disruption:	  	Applicable; provided that,	
			
	  		  	(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following two phrases at the end of such Section:	
			
	  		  	“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and	
			
	  		  	(ii)  Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.	
			
	  	Increased Cost of Hedging:	  	Applicable	
			
	  	Hedging Party:	  	For all applicable Additional Disruption Events, Dealer.	
			
	  	Determining Party:	  	For all applicable Extraordinary Events, Dealer.	
			
	  	Non-Reliance:	  	Applicable.	
			
	  	Agreements and Acknowledgments	  	Applicable	
	  	Regarding Hedging Activities:	  		
			
	  	Additional Acknowledgments:	  	Applicable	
 
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4.	  	Calculation Agent.	  	Dealer, whose judgments, determinations and calculations shall be made in good faith and in a commercially reasonable manner; provided that, following the occurrence and during the continuance of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, if the Calculation Agent fails to timely make any calculation, adjustment or determination required to be made by the Calculation Agent hereunder or to perform any obligation of the Calculation Agent hereunder and such failure continues for five (5) Exchange Business Days following notice to the Calculation Agent by Counterparty of such failure, Counterparty shall have the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a request by Counterparty, the Calculation Agent shall promptly (but in any event within five Scheduled Trading Days) provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation (including any assumptions used in making such determination or calculation), it being understood that the Calculation Agent shall not be obligated to disclose any proprietary models or proprietary or confidential information used by it for such determination or calculation.	
 
5. 	Account Details .	
 
 	(a)	Account for payments to Counterparty:	
To be provided by Counterparty.
Account for delivery of Shares to Counterparty:
To be provided by Counterparty.
 
 	(b)	Account for payments to Dealer:	
ABA: 021000021
JP Morgan Chase NY (CHASUS33)
A/C Royal Bank of Canada, NY Branch (ROYCUS3X)
A/C#: 920-1-033363
FFC A/C Name: RBC US Transit
FFC A/C#: 012692041499
Reference: Impax Laboratories, Inc.
Account for delivery of Shares from Dealer:
To be provided by Dealer.
 
6. 	Offices.	
 
 	(a)	The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party.	
 
 	(b)	The Office of Dealer for the Transaction is: New York	
Royal Bank of Canada
c/o RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Attention:     Structured Derivatives Documentation
Telephone:     (212) 858-7000
Facsimile:      (212) 428-3053
 
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7. 	Notices.	
 
 	(a)	Address for notices or communications to Counterparty:	
Impax Laboratories, Inc.
30831 Huntwood Avenue
Hayward, CA 94544
Attention: Mark Schlossberg, SVP & General Counsel
Telephone No.: (510) 240-6000
Facsimile No.: (510) 240-6096
Address for notices or communications to Dealer:
Royal Bank of Canada
c/o RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Attention: Structured Derivatives Documentation
Telephone: (212) 858-7000
Facsimile: (212) 428-3053
Email: RBCECMCorporateEquityLinkedDocumentation@rbc.com
 
8. 	Representations and Warranties of Counterparty .	
Other than for purposes of Section 5(a)(iv) of the Agreement, each of the representations and warranties of Counterparty set forth in Section 3 of the Purchase Agreement (the “ Purchase Agreement ”), dated as of June 25, 2015, between Counterparty and RBC Capital Markets, LLC, as representative of the initial purchasers party thereto (the “ Initial Purchasers ”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
 
 	(a)	Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.	
 
 	(b)	Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.	
 
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 	(c)	No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.	
 
 	(d)	Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.	
 
 	(e)	Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).	
 
 	(f)	Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.	
 
 	(g)	To Counterparty’s knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares.	
 
 	(h)	Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.	
 
 	(i)	Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share , ASC Topic 815, Derivatives and Hedging , or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.	
 
 	(j)	Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.	
 
 	(k)	(A) Counterparty is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary, (B) Counterparty is not relying on any communication (written or oral) of Dealer or any of its affiliates as investment advice or as a recommendation to enter into the Transaction (it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction) and (C) no communication (written or oral) received from Dealer or any of its affiliates shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.	
 
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9. 	Other Provisions .	
 
 	(a) 	Opinions . Counterparty shall deliver to Dealer one or more opinions of counsel, dated as of the Premium Payment Date, given by Latham & Watkins LLP, with respect to the matters set forth in Sections 8(a) through (c) of this Confirmation; provided that any such opinion of counsel may contain customary exceptions and qualifications. 1 Delivery of such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement. In addition, in connection with the entry into or consummation of any Redomicile Transaction, Counterparty shall deliver to Dealer an opinion of counsel (subject to customary qualifications, assumptions and exceptions), dated as of the date of such Redomicile Transaction, with respect to the matters set forth in Sections 8(a) through (c) of this Confirmation (except the reference in Section 8(b) to “any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” shall be replaced with “any agreement or instrument to which Counterparty or its subsidiaries is a party or to which Counterparty or any of its subsidiaries is subject”). “ Redomicile Transaction ” meansany Merger Event (as such term is defined in Section 12.1(b) of the Equity Definitions without regard to any amendment to such definition in this Confirmation), reincorporation of Counterparty, corporate redomiciliation of Counterparty or similar transaction pursuant to which (x) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of a corporation that is not organized under the laws of the United States, any State thereof or the District of Columbia or (y) the Counterparty following such Merger Event, reincorporation of Counterparty, corporate redomiciliation of Counterparty or similar transaction is not a corporation or is incorporated in a jurisdiction other than the United States, any State thereof or the District of Columbia.	
 
 	(b) 	Repurchase Notices . Counterparty shall, on any day on which Counterparty effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “ Repurchase Notice ”) on such day if following such repurchase, the number of outstanding Shares as determined on such day is (i) less than 69.09 million (in the case of the first such notice) or (ii) thereafter more than 2.43 million less than the number of Shares included in the immediately preceding Repurchase Notice. Counterparty agrees to indemnify and hold harmless Dealer and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “ Indemnified Person ”) from and against any and all losses (including losses relating to Dealer’s hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable expenses (including reasonable attorney’s fees), joint or several, which an Indemnified Person may become subject to, in each case, as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Counterparty may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding. Counterparty shall not be liable for any settlement of any such proceeding contemplated by this paragraph that is effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Counterparty shall not, without the prior written consent of the Indemnified Person, effect any settlement of such proceeding that is pending or threatened in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities. The remedies provided for in this paragraph (b) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction.	

1  	NTD: Opinion scope to be agreed orally between DPW and LW.	
 
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 	(c) 	Regulation M . Counterparty is not on the Trade Date engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), of any securities of Counterparty, other than a distribution meeting the requirements of the exception set forth in Rules 101(b) and 102(b) of Regulation M. Counterparty shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution.	
 
 	(d) 	Rule 10b-18. On the Trade Date neither Counterparty nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“ Rule 10b-18 ”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares.	
 
 	(e) 	Resolutions . On or prior to the Trade Date, Counterparty shall deliver to Dealer a resolution of Counterparty’s board of directors authorizing the Transaction.	
 
 	(f) 	Solvency . On each of the Trade Date and the Premium Payment Date, Counterparty is not, or will not be, “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “ Bankruptcy Code ”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the corporate laws of the jurisdiction of its incorporation.	
 
 	(g) 	Private Placement . Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act, by virtue of Section 4(a)(2) thereof. Accordingly, Counterparty represents and warrants to Dealer that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof and (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws.	
 
 	(h) 	No Manipulation . Counterparty is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Exchange Act.	
 
 	(i)	Transfer or Assignment .	
 
 	(i)	Counterparty shall have the right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “ Transfer Options ”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:	
 
 	(A)	With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to Section 9(b) or any obligations under Section 9(r) or 9(w) of this Confirmation;	
 
 	(B)	[Reserved]	
 
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 	(C)	Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested and reasonably satisfactory to Dealer;	
 
 	(D)	Dealer will not, as a result of such transfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer and assignment;	
 
 	(E)	An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;	
 
 	(F)	Without limiting the generality of clause (B), Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and	
 
 	(G)	Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.	
 
 	(ii)	Dealer may, without Counterparty’s consent, transfer or assign all or any part of its rights or obligations under the Transaction (A) to any affiliate of Dealer that is a dealer as defined under Section 475(c)(i) of the Code (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a full and unconditional customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) to any other third party that is a dealer as defined under Section 475(c)(i) of the Code with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its successor (“ S&P ”), or A3 by Moody’s Investor Service, Inc. (“ Moody’s ”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer. If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “ Excess Ownership Position ”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options in accordance with the preceding sentence on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “ Terminated Portion ”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(p) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “ Section 16 Percentage ” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and each person subject to aggregation of Shares with Dealer under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) and (B) the denominator of which is the number of Shares outstanding. The “ Option Equity Percentage ” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “ Share Amount ” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “ Dealer Person ”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“ Applicable Restrictions ”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “ Applicable Share Limit ” means a number of Shares equal to (A) the minimum number of Shares that gives rise to reporting or registration obligations (except for any filings on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in a material adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.	
 
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 	(iii)	Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities, or make or receive any payment in cash, to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities, or to make or receive such payment in cash, and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.	
 
 	(j) 	Staggered Settlement . If upon advice of counsel with respect to applicable legal and regulatory requirements, including any requirements relating to Dealer’s hedging activities hereunder, Dealer reasonably determines that it would not be advisable to deliver, or to acquire Shares to deliver, any or all of the Shares to be delivered by Dealer on any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “ Nominal Settlement Date ”), elect to deliver the Shares on two or more dates (each, a “ Staggered Settlement Date ”) as follows:	
 
 	(i)	in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date;	
 
 	(ii)	the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date; and	
 
 	(iii)	if the Net Share Settlement terms or the Combination Settlement terms set forth above were to apply on the Nominal Settlement Date, then the Net Share Settlement terms or the Combination Settlement terms, as the case may be, will apply on each Staggered Settlement Date, except that the Shares otherwise deliverable on such Nominal Settlement Date will be allocated among such Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above.	
 
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 	(k) 	Ratings Decline . If at any time prior to the “Stockholder Approval Date” (as defined in the Indenture) the long term, unsecured and unsubordinated indebtedness of Dealer is rated Ba1 or lower by Moody’s or BB+ or lower by S&P (any such rating, a “ Ratings Downgrade ”), then Counterparty may, at any time following the occurrence and during the continuation of such Ratings Downgrade, provide written notice to Dealer specifying that it elects for this Section 9(k) to apply (a “ Trigger Notice ”). Upon receipt by Dealer of a Trigger Notice from Counterparty, Dealer shall promptly elect that either (i) the parties shall negotiate in good faith terms for collateral arrangements pursuant to which Dealer is required to provide collateral (including, but not limited to, equity or equity-linked securities issued by Counterparty) to Counterparty in respect of the Transaction with a value equal to the full mark-to-market exposure of Counterparty under the Transaction, as determined by Dealer in a good faith commercially reasonable manner, or (ii) an Additional Termination Event shall occur and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, and (B) the Transaction shall be the sole Affected Transaction.	
 
 	(l) 	Role of Agent .Dealer has appointed, as its agent, its indirect wholly-owned subsidiary, RBC Capital Markets, LLC (“ RBCCM ”), for purposes of conducting, on Dealer’s behalf, a business in privately negotiated transactions in options and other derivatives. Counterparty hereby is advised that Dealer, the principal and stated counterparty in such transactions, duly has authorized RBCCM to market, structure, negotiate, document, price, execute and hedge transactions in over-the-counter derivative products. RBCCM does not act as agent of Counterparty. For the avoidance of doubt, any performance by Dealer of its obligations hereunder solely to RBCCM shall not relieve Dealer of such obligations. RBCCM’s performance to Counterparty of Dealer’s obligations hereunder shall relieve Dealer of such obligations to the extent of such performance. Any performance by Counterparty of its obligations (including notice obligations) through or by means of RBCCM’s agency for Dealer shall constitute good performance of Counterparty’s obligations hereunder to Dealer.	
 
 	(m) 	Additional Termination Events .	
 
 	(i)	If an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the terms of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Exchange Business Day as an Early Termination Date pursuant to Section 6(b) of the Agreement (which Exchange Business Day shall be on or as promptly as reasonably practicable after the occurrence of such acceleration).	
 
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 	(ii)	Within five Scheduled Trading Days promptly following any Repayment Event (as defined below), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “ Repayment Notice ”). The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this paragraph. Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “ Repayment Options ”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000 and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “ Repayment Unwind Payment ”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction. “ Repayment Event ” means that (i) any Convertible Notes are repurchased (whether in connection with or as a result of a fundamental change, howsoever defined, or for any other reason) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty or any of its subsidiaries in exchange for delivery of any property or assets of such party (howsoever described), (iii) any principal of any of the Convertible Notes is repaid prior to the final maturity date of the Convertible Notes (for any reason other than as a result of an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to the preceding Section (m)(i)), or (iv) any Convertible Notes are exchanged by or for the benefit of the holders thereof for any other securities of Counterparty or any of its subsidiaries (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction. For the avoidance of doubt, any conversion of Convertible Notes pursuant to the terms of the Indenture shall not constitute a Repayment Event.	
 
 	(n) 	Amendments to Equity Definitions .	
 
 	(i)	Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the ISDA Master Agreement with respect to that Issuer.”	
 
 	(ii)	Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section.	
 
 	(o) 	Setoff . Each party waives any and all rights it may have to set off obligations arising under the Agreement and the Transaction against other obligations between the parties, whether arising under any other agreement, applicable law or otherwise.	
 
 	(p) 	Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events . If (a) an Early Termination Date (whether as a result of an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result of (i) a Nationalization, Insolvency or Merger Event in which the consideration to be paid to holders of Shares consists solely of cash, (ii) a Merger Event that is within Counterparty’s control, or (iii) an Event of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the Affected Party other than an Event of Default of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type described in Section 5(b) of the Agreement, in each case that resulted from an event or events outside Counterparty’s control), and if Dealer would owe any amount to Counterparty pursuant to Section 6(d)(ii) of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “ Payment Obligation ”), then Dealer shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below), unless (a) Counterparty gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the Merger Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) Counterparty remakes the representation set forth in Section 8(f) as of the date of such election and (c) Dealer agrees, such agreement not to be unreasonably withheld, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of Section 6(d)(ii) of the Agreement, as the case may be, shall apply.	
 
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	 	Share Termination Alternative:	  	If applicable, Dealer shall deliver to Counterparty the Share Termination Delivery Property on, or within a commercially reasonable period of time after, the date when the relevant Payment Obligation would otherwise be due pursuant to Sections 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable, in satisfaction of such Payment Obligation in the manner reasonably requested by Counterparty free of payment.	
			
	 	Share Termination Delivery Property:	  	A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.	
			
	 	Share Termination Unit Price:	  	The value to Dealer of property contained in one Share Termination Delivery Unit, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation. For the avoidance of doubt, the parties agree that in determining the Share Termination Delivery Unit Price the Calculation Agent may consider the purchase price paid in connection with the purchase of Share Termination Delivery Property.	
			
	 	Share Termination Delivery Unit:	  	One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “ Exchange Property ”), a unit consisting of the type and amount of such Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event, as determined by the Calculation Agent.	
			
	 	Failure to Deliver:	  	Applicable	
			
	 	Other applicable provisions:	  	If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9 and 9.11 (as modified above) of the Equity Definitions and the provisions set forth opposite the caption “Representation and Agreement” in Section 2 will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.	
 
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 	(q) 	Waiver of Jury Trial . Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of either party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided herein.	
 
 	(r) 	Registration . Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer, the Shares (“ Hedge Shares ”) acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the public market by Dealer without registration under the Securities Act, Counterparty shall, at its election, either (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act and enter into an agreement, substantially similar to underwriting agreements customary for registered secondary offerings of a substantially similar size, in form and substance reasonably satisfactory to Dealer; provided , however , that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this paragraph shall apply at the election of Counterparty, (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities of a substantially similar size, in form and substance reasonably satisfactory to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement), or (iii) purchase the Hedge Shares from Dealer at the Relevant Price on such Exchange Business Days, and in the amounts, requested by Dealer.	
 
 	(s) 	Tax Disclosure . Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.	
 
 	(t) 	Right to Extend . Dealer may postpone or add, in whole or in part, any Valid Day or Valid Days during the Settlement Averaging Period or any other date of valuation, payment or delivery by Dealer, with respect to some or all of the Options hereunder, if Dealer reasonably determines, based on the advice of counsel, that such action is reasonably necessary or appropriate to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions that are materially different from those in existence as of the Trade Date or to enable Dealer to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer; provided that no such Valid Day or other date of valuation, payment or delivery may be postponed or added more than 50 Valid Days after the original Valid Day or other date of valuation, payment or delivery, as the case may be.	
 
23

 	(u) 	Status of Claims in Bankruptcy . Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Counterparty with respect to the Transaction that are senior to the claims of common stockholders of Counterparty in any United States bankruptcy proceedings of Counterparty; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Counterparty of its obligations and agreements with respect to the Transaction; provided , further , that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.	
 
 	(v) 	Securities Contract; Swap Agreement . The parties hereto intend for (i) the Transaction to be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code.	
 
 	(w) 	Notice of Certain Other Events . Counterparty covenants and agrees that:	
 
 	(i)	promptly following the public announcement of the results of any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, Counterparty shall give Dealer written notice of (x) the weighted average of the types and amounts of consideration that holders of Shares have elected to receive upon consummation of such Merger Event or (y) if no holders of Shares affirmatively make such election, the types and amounts of consideration actually received by holders of Shares (the date of such notification, the “ Consideration Notification Date ”); provided that in no event shall the Consideration Notification Date be later than the date on which such Merger Event is consummated; and	
 
 	(ii)	promptly following any adjustment to the Convertible Notes in connection with any Potential Adjustment Event or Merger Event, Counterparty shall give Dealer written notice of the details of such adjustment.	
 
 	(x) 	Wall Street Transparency and Accountability Act . In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“ WSTAA ”), the parties hereby agree that neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption, Increased Cost of Hedging, an Excess Ownership Position, or Illegality (as defined in the Agreement)).	
 
 	(y) 	Agreements and Acknowledgements Regarding Hedging . Counterparty understands, acknowledges and agrees that: (A) at any time on and prior to the Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the Transaction; (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Relevant Prices; and (D) any market activities of Dealer and its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Relevant Prices, each in a manner that may be adverse to Counterparty.	
 
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 	(z) 	Early Unwind . In the event the sale of the “Underwritten Securities” (as defined in the Purchase Agreement) is not consummated with the Initial Purchasers for any reason, or Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, the “ Early Unwind Date ”),the Transaction shall automatically terminate (the “ Early Unwind ”)on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date. Each of Dealer and Counterparty represents and acknowledges to the other that, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.	
 
 	(aa) 	Payment by Counterparty . In the event that, following payment of the Premium, (i) an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Counterparty owes to Dealer an amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty owes to Dealer, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero.	
 
 	(bb) 	Redomicile Transaction . Counterparty shall not enter into or consummate any Redomicile Transaction unless:	
 
 	(i)	Counterparty will be a corporation incorporated under the laws of the United States or any state thereof and a wholly-owned direct or indirect subsidiary of a successor Issuer immediately following such Redomicile Transaction, such successor Issuer fully and unconditionally guarantees the obligations of Counterparty under this Confirmation (the “ Guaranteed Obligations ”) and repeats to Dealer immediately following such Redomicile Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (w) “Transaction” were replaced with “guarantee of the Guaranteed Obligations”, (x) “Counterparty” were replaced with “Issuer”, (y) “Confirmation” were replaced with “guarantee of the Guaranteed Obligations”) and (z) “any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” in Section 8(b) were replaced with “any agreement or instrument to which Issuer or its subsidiaries is a party or to which Issuer or any of its subsidiaries is subject”; or	
 
 	(ii)	the successor Issuer immediately following such Redomicile Transaction assumes Counterparty’s rights and obligations hereunder, becoming the “Counterparty” for all purposes hereunder, and such successor Counterparty immediately following such Redomicile Transaction repeats to Dealer immediately following such Redomicile Transaction the representations and warranties set forth in Sections 8(a), 8(b) and 8(c) of this Confirmation (as if references therein to (w) “execute, deliver” were replaced with “assume”, (x) “execution, delivery” and “execution and delivery” were replaced with “assumption”, (y) “executed and delivered” were replaced with “assumed” and (z) “any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” in Section 8(b) were replaced with “any agreement or instrument to which Counterparty or its subsidiaries is a party or to which Counterparty or any of its subsidiaries is subject”).	
Notwithstanding anything to the contrary in this Confirmation, following consummation of any Redomicile Transaction pursuant to which Issuer following such Redomicile Transaction is organized under the laws of a jurisdiction other than the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United Kingdom, then such Redomicile Transaction shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.
 
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If, at any time following the occurrence of any Redomicile Transaction, Dealer reasonably determines in its good faith judgment, following consultation with Counterparty for a period of at least five Scheduled Trading Days (such consultation period, the “ Redomicile Event Consultation Period ”), that (i) (x) such Redomicile Transaction has had a material adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased (as compared with circumstances existing on the Trade Date) amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) and (ii) Dealer cannot promptly avoid the occurrence of each such material adverse effect or increased tax, duty, expense or fee by (x) transferring or assigning Dealer’s rights and obligations under this Confirmation and the Agreement without Counterparty’s consent pursuant to Section 9(i) to an affiliate of Dealer that would not suffer any such material adverse effect or increased tax, duty, expense or fee (it being understood that Dealer need not take any action that does not meet the Avoidance Criteria), (y) using commercially reasonable efforts to avoid such material adverse effect or increased tax, duty, expense or fee (it being understood that Dealer need not take any action that does not meet the Avoidance Criteria) or (z) amending the terms of this Confirmation (whether because amendments would not avoid such occurrence or because Counterparty fails to agree promptly to such amendments) (it being understood, for the avoidance of doubt, that an event described in clause (i)(x) or clause (i)(y) above for which Dealer can avoid the occurrence of the relevant material adverse effect or increased tax, duty, expense or fee after giving effect to the related Price Adjustment referred to below shall be a Redomicile Event notwithstanding this clause (ii)(z)) (each of the events described in clause (i)(x) and clause (i)(y) above that also satisfies the conditions set forth in clause (ii) above, a “ Redomicile Event ”), then, in either case, Dealer shall give prompt notice to Counterparty of such Redomicile Event.
“ Avoidance Criteria ” means with respect to an action by a party, as determined by the Calculation Agent in good faith, that (i) such action is legal (and, in the case of a Change in Law, in the reasonable judgment of Dealer is within the intent of the law or regulation that is the subject of the Change in Law) and complies with all applicable regulations, rules (including by self-regulatory organizations) and policies (whether written or oral) including policies of such party, (ii) such action would not cause or, in the judgment of Dealer, would not create a material risk of causing, an Additional Disruption Event (ignoring, for this purpose, any requirement to avoid such Additional Disruption Event as set forth herein), (iii) if such party or an affiliate is to establish one or more alternative Hedge Positions, there is sufficient liquidity in those alternative Hedge Positions available for that Hedging Party to hedge the Transaction and all other transactions into which that party has entered and for which that party determines that it needs to utilize those alternative Hedge Positions, (iv) such action is known by that party or known by other financial institutions that are leading derivatives dealers that are generally willing to enter into transactions similar to the Transaction; (v) by taking such action, such party would not incur, or there would not be a material risk that such party would incur, any one or more of an increased operational or administrative burden or expense, increased performance cost, increased hedging cost or increased capital charges (in each case as compared to circumstances on the Trade Date), (vi) such action would not require such party to (A) enter into arrangements with a counterparty, custodian, depositary and/or other third party that has no existing business relationship with that party in relation to positions, contracts, instruments, transactions, or other arrangements similar in type to such action or (B) exceed, individually or together with any other positions, contracts, transactions, instruments or other arrangements into which such party has entered (individually or on a portfolio basis), investment quotas, position limits, investment level restrictions, internal client limits, credit limits or risk-based requirements of such party, in each case, existing as of the Trade Date and regardless of whether imposed by law, governmental authority or regulation, and (vii) by taking such action, it would not be necessary for that party to make any filing or submission to any government or regulatory authority (including a taxing authority) and (viii) as applied to an avoidance of an Excess Ownership Position, such action does not cause, or would not create a material risk of causing, an interference or disruption to such party’s normal business practice or client service including, without limitation, market-making, trust or custody service.
 
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Concurrently with delivering such notice, Dealer shall give notice to Counterparty of a commercially reasonable Price Adjustment that Dealer determines, in its good faith, commercially reasonable judgment, appropriate to account for the economic effect on the Transaction of such Redomicile Event and provide Counterparty with supporting documentation for such Price Adjustment (unless Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, in which case Dealer shall so notify Counterparty). Unless Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, within two Scheduled Trading Days of receipt of such notice, Counterparty shall notify Dealer that it agrees that Dealer’s determination of Price Adjustment is commercially reasonable (and Counterparty shall be deemed to have repeated the representation set forth in Section 8(f) of this Confirmation as of the date of such election). If Counterparty fails to give such notice to Dealer of its election by the end of that second Scheduled Trading Day, or if Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, then such failure or such determination, as the case may be, shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (1) Counterparty shall be deemed to be the sole Affected Party, (2) the Transaction shall be the sole Affected Transaction and (3) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. For the avoidance of doubt, the parties hereto agree and acknowledge that the occurrence of a Redomicile Event shall not preclude the occurrence of one or more additional, subsequent Redomicile Events, it being understood and agreed that any Price Adjustment described in clause (A) above and/or any payment described in clause (B) above shall be calculated without duplication in respect of any prior such Price Adjustment and/or payment. For purposes of the foregoing, Dealer will be deemed to have not determined that no Price Adjustment will produce a commercially reasonable result unless Dealer has consulted with Counterparty regarding such Price Adjustment determination for a period of at least five Scheduled Trading Days (it being understood that such consultation period may run concurrently with the Redomicile Event Consultation Period for the related Redomicile Event if Counterparty receives notice of such Price Adjustment determination prior to the start of such Redomicile Event Consultation Period).
 
 	(cc) 	U.S. Federal Withholding Tax . If Counterparty transfers or assigns its rights and obligations hereunder with respect to the Options to a person that is not a United States person (as defined in the Code), the term “Indemnifiable Tax” as defined in Section 14 of the Agreement shall not include any U.S. federal withholding tax including, but not limited to (i) any tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “ FATCA Withholding Tax ”), (ii) any tax imposed on amounts treated as dividends from sources within the United States under Section 871(m) of the Code (or the United States Treasury Regulations or other guidance issued thereunder), or (iii) any tax imposed on amounts treated as distributions of property under Section 305 of the Code. For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.	
 
 	(dd) 	Part 2(b) of the ISDA Schedule – Payee Representation .	
 
 	(i)	For the purpose of Section 3(f) of this Agreement, Counterparty makes the following representation to Dealer:	
Counterparty is a corporation established under the laws of the State of Delaware and is a “United States person” (as that term is defined in Section 7701(a)(30) of the Code).
 
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 	(ii)	For the purpose of Section 3(f) of this Agreement, Dealer makes the following representation to Counterparty:	
Each payment received or to be received by it in connection with this Agreement is effectively connected with its conduct of a trade or business by Dealer within the United States; and
It is a “foreign person” (as that term is used in Section 1.6041-4(a)(4) of the United States Treasury Regulations) for United States federal income tax purposes.
 
 	(ee) 	Part 3(a) of the ISDA Schedule – Tax Forms :	

Party Required to
Deliver Document	  	Form/Document/Certificate	  	Date by which to be Delivered	
Counterparty	  	A complete and duly executed United States Internal Revenue Service Form W-9 (or successor thereto.)	  	(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Dealer; and (iii) promptly upon learning that any such Form previously provided by Counterparty has become obsolete or incorrect.	
			
Dealer	  	A complete and duly executed United States Internal Revenue Service Form W-8ECI (or successor thereto)	  	(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Counterparty; and (iii) promptly upon learning that any such Form previously provided by Dealer has become obsolete or incorrect.	
 
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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to Dealer.

			
Very truly yours,	

ROYAL BANK OF CANADA
by its agent
RBC Capital Markets, LLC	
		
By:	 	s/ Dawn T. Laabs	
Authorized Signatory	
Name:	
Accepted and confirmed
as of the Trade Date:

IMPAX LABORATORIES, INC.	
		
By:	 	s/ Bryan Reasons	
Authorized Signatory	
Name:	
[Bond Hedge Signature Page]

Exhibit 10.17

	 		 	
 
RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Telephone: (212) 858-7000
 
June 26, 2015	
 
To:	Impax Laboratories, Inc.	
    	30831 Huntwood Avenue	
    	Hayward, CA 94544	
    	Attention:                 Mark Schlossberg, SVP & General Counsel	
    	Telephone No.:        (510) 240-6000	
    	Facsimile No.:         (510) 240-6096	
 
Re:	Additional Warrants	
The purpose of this letter agreement (this “ Confirmation ”) is to confirm the terms and conditions of the Warrants issued by Impax Laboratories, Inc. (“ Company ”) to Royal Bank of Canada (“ Dealer ”) as of the Trade Date specified below (the “ Transaction ”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. This Confirmation shall replace any previous agreements and serve as the final documentation for the Transaction.
The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “ Equity Definitions ”), as published by the International Swaps and Derivatives Association, Inc. (“ ISDA ”), are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern.
Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.
1. This Confirmation evidences a complete and binding agreement between Dealer and Company as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “ Agreement ”) as if Dealer and Company had executed an agreement in such form (but without any Schedule except for (i) the election of the laws of the State of New York as the governing law (without reference to choice of law doctrine) and (ii) the election that the “Cross Default” provisions of Section 5(a)(vi) of the Agreement will apply to Company as if (a) the phrase”, or becoming capable at such time of being declared,” were deleted from Section 5(a)(vi)(1) of the Agreement, (b) the “Threshold Amount” were USD 35,000,000 and (c) the following language were added to the end of Section 5(a)(vi): “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational nature; (y) funds were available to enable the party to make the payment when due; and (z) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”) on the Trade Date. In the event of any inconsistency between provisions of that Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no Transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement.

2. The Transaction is a Warrant Transaction, which shall be considered a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular Transaction to which this Confirmation relates are as follows:

	  	General Terms.	  		
			
	  	Trade Date:	  	June 26, 2015	
			
	  	Effective Date:	  	The Trade Date	
			
	  	Warrants:	  	Equity call warrants, each giving the holder the right to purchase a number of Shares equal to the Warrant Entitlement at a price per Share equal to the Strike Price, subject to the terms set forth under the caption “Settlement Terms” below. For the purposes of the Equity Definitions, each reference to a Warrant herein shall be deemed to be a reference to a Call Option.	
			
	  	Warrant Style:	  	European	
			
	  	Seller:	  	Company	
			
	  	Buyer:	  	Dealer	
			
	  	Shares:	  	The common stock of Company, par value USD 0.01 per share (Exchange symbol “IPXL”)	
			
	  	Number of Warrants:	  	1,578,580. For the avoidance of doubt, the Number of Warrants shall be reduced by any Warrants exercised or deemed exercised hereunder. In no event will the Number of Warrants be less than zero.	
			
	  	Warrant Entitlement:	  	One Share per Warrant	
			
	  	Strike Price:	  	USD 81.2770.	
			
	  		  	Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such adjustment, the Strike Price would be less than USD 47.81, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Company’s capitalization.	
			
	  	Premium:	  	USD 14,720,000.00	
			
	  	Premium Payment Date:	  	The closing date of the initial issuance of the Company’s 2.00% Convertible Senior Notes due June 15, 2022	
			
	  	Exchange:	  	The NASDAQ Global Market	
			
	  	Related Exchange(s):	  	All Exchanges	
			
	  	Procedures for Exercise .	  		
			
	  	Expiration Time:	  	The Valuation Time	
 
2

					
	  	Expiration Dates:	  	Each Scheduled Trading Day during the period from, and including, the First Expiration Date to, but excluding, the 100 th Scheduled Trading Day following the First Expiration Date shall be an “Expiration Date” for a number of Warrants equal to the Daily Number of Warrants on such date; provided that, notwithstanding anything to the contrary in the Equity Definitions, if any such date is a Disrupted Day, the Calculation Agent shall in good faith and in a commercially reasonable manner make adjustments, if applicable, to the Daily Number of Warrants or shall reduce such Daily Number of Warrants to zero for which such day shall be an Expiration Date and shall designate a Scheduled Trading Day or a number of Scheduled Trading Days as the Expiration Date(s) for the remaining Daily Number of Warrants or a portion thereof for the originally scheduled Expiration Date; and provided further that if such Expiration Date has not occurred pursuant to this clause as of the eighth Scheduled Trading Day following the last scheduled Expiration Date under the Transaction, then such Scheduled Trading Day shall be deemed to be an Expiration Date for the relevant Daily Number of Warrants and the Calculation Agent shall determine its good faith estimate of the fair market value for the Shares as of the Valuation Time on that eighth Scheduled Trading Day.	
			
	  	First Expiration Date:	  	September 15, 2022 (or if such day is not a Scheduled Trading Day, the next following Scheduled Trading Day), subject to Market Disruption Event below.	
			
	  	Daily Number of Warrants:	  	For any Expiration Date, the Number of Warrants that have not expired or been exercised as of such day, divided by the remaining number of Expiration Dates (including such day), rounded down to the nearest whole number, subject to adjustment pursuant to the provisos to “Expiration Dates”.	
			
	  	Automatic Exercise:	  	Applicable; and means that for each Expiration Date, a number of Warrants equal to the Daily Number of Warrants for such Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date.	
			
	  	Market Disruption Event:	  	Section 6.3(a) of the Equity Definitions is hereby amended by replacing clause (ii) in its entirety with “(ii) an Exchange Disruption, or” and inserting immediately following clause (iii) the phrase “; in each case that the Calculation Agent determines is material.”
 
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the words “Scheduled Closing Time” in the fourth line thereof.	
			
	  	Valuation Terms .	  		
			
	  	Valuation Time:	  	Scheduled Closing Time; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.	
			
	  	Valuation Date:	  	Each Exercise Date.	
 
3

					
	  	Settlement Terms.	  		
			
	  	Settlement Method Election:	  	Applicable; provided that (i) references to “Physical Settlement” in Section 7.1 of the Equity Definitions shall be replaced by references to “Net Share Settlement”; (ii) Company may elect Cash Settlement only if Company represents and warrants to Dealer in writing on the date of such election that (A) Company and its Affiliates are not in possession of any material non-public information regarding Company or the Shares, (B) Company is electing Cash Settlement in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws, and (C) the assets of Company at their fair valuation exceed the liabilities of Company (including contingent liabilities), the capital of Company is adequate to conduct the business of Company, and Company has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature; and (iii) the same election of settlement method shall apply to all Expiration Dates hereunder.	
			
	  	Electing Party:	  	Company	
			
	  	Settlement Method Election Date:	  	The third Scheduled Trading Day immediately preceding the First Expiration Date.	
			
	  	Default Settlement Method:	  	Net Share Settlement	
			
	  	Net Share Settlement:	  	If Net Share Settlement is applicable, then on the relevant Settlement Date, Company shall deliver to Dealer a number of Shares equal to the Share Delivery Quantity for such Settlement Date to the account specified herein free of payment through the Clearance System, and Dealer shall be treated as the holder of record of such Shares at the time of delivery of such Shares or, if earlier, at 5:00 p.m. (New York City time) on such Settlement Date, and Company shall pay to Dealer cash in lieu of any fractional Share based on the Settlement Price on the relevant Valuation Date.	
			
	  	Share Delivery Quantity:	  	For any Settlement Date, a number of Shares, as calculated by the Calculation Agent, equal to the Net Share Settlement Amount for such Settlement Date divided by the Settlement Price on the Valuation Date for such Settlement Date.	
			
	  	Net Share Settlement Amount:	  	For any Settlement Date, an amount equal to the product of (i) the number of Warrants exercised or deemed exercised on the relevant Exercise Date , (ii) the Strike Price Differential for the relevant Valuation Date and (iii) the Warrant Entitlement.	
			
	  	Cash Settlement:	  	If Cash Settlement is applicable, on the relevant Settlement Date, Company shall pay to Dealer an amount of cash in USD equal to the Net Share Settlement Amount for such Settlement Date.	
 
4

					
	  	Settlement Price:	  	For any Valuation Date, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page IPXL <equity> AQR (or any successor thereto) in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time on such Valuation Date (or if such volume-weighted average price is unavailable, the market value of one Share on such Valuation Date, as determined by the Calculation Agent). Notwithstanding the foregoing, if (i) any Expiration Date is a Disrupted Day and (ii) the Calculation Agent determines that such Expiration Date shall be an Expiration Date for fewer than the Daily Number of Warrants, as described above, then the Settlement Price for the relevant Valuation Date shall be the volume-weighted average price per Share on such Valuation Date on the Exchange, as determined by the Calculation Agent based on such sources as it deems appropriate using a volume-weighted methodology, for the portion of such Valuation Date for which the Calculation Agent determines there is no Market Disruption Event.	
			
	  	Settlement Dates:	  	As determined pursuant to Section 9.4 of the Equity Definitions, subject to Section 9(m)(i) hereof; provided that Section 9.4 of the Equity Definitions is hereby amended by (i) inserting the words “or cash” immediately following the word “Shares” in the first line thereof and (ii) inserting the words “for the Shares” immediately following the words “Settlement Cycle” in the second line thereof.	
			
	  	Other Applicable Provisions:	  	If Net Share Settlement is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Net Share Settled.” “Net Share Settled” in relation to any Warrant means that Net Share Settlement is applicable to that Warrant.	
			
	  	Representation and Agreement:	  	Notwithstanding Section 9.11 of the Equity Definitions, the parties acknowledge that (i) any Shares delivered to Dealer may be, upon delivery, subject to restrictions and limitations arising from Company’s status as issuer of the Shares under applicable securities laws and (ii) any Shares delivered to Dealer may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “ Securities Act ”)).	
		
3 .	  	Additional Terms applicable to the Transaction.	
		
	  	Adjustments applicable to the Transaction:	
			
	  	Method of Adjustment:	  	Calculation Agent Adjustment, except that any adjustment in respect of a Potential Adjustment Event shall be made in a commercially reasonable manner and in consultation with Company. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(h) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions.	
 
5

					
	  	Extraordinary Events applicable to the Transaction:	  		
			
	  	New Shares:	  	Section 12.1(i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation”.	
			
	  	Consequence of Merger Events:	  		
			
	  	Merger Event:	  	Applicable, except that any adjustment in respect of a Merger Event shall be made in a commercially reasonable manner and in consultation with Company; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(j)(ii)(B) of this Confirmation, the provisions of Section 9(j)(ii)(B) will apply.	
			
	  	Share-for-Share:	  	Modified Calculation Agent Adjustment	
			
	  	Share-for-Other:	  	Cancellation and Payment (Calculation Agent Determination)	
			
	  	Share-for-Combined:	  	Component Adjustment	
			
	  	Modified Calculation	  		
	  	Agent Adjustment:	  	If, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Company being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Dealer, the Issuer of the Affected Shares and the entity that will be the Issuer of the New Shares shall, prior to the Merger Date, have entered into such documentation containing agreements relating to “tacking” and “holding period” related considerations under U.S. securities law and credit exposure assumed by Dealer as the result of the Merger Event, as reasonably requested by Dealer that Dealer has determined, in its good faith, reasonable judgment, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to preserve its hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal and regulatory requirements, and if such conditions are not met or if the Calculation Agent reasonably determines that no adjustment that it could make under Section 12.2(e)(i) of the Equity Definitions will produce a commercially reasonable result, then the consequences set forth in Section 12.2(e)(ii) of the Equity Definitions shall apply.	
 
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	  	Consequence of Tender Offers:	  		
			
	  	Tender Offer:	  	Applicable; provided that Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “25%”; provided, further ,that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(j)(ii)(A) of this Confirmation, the provisions of Section 9(j)(ii)(A) will apply.	
			
	  	Share-for-Share:	  	Modified Calculation Agent Adjustment	
			
	  	Share-for-Other:	  	Modified Calculation Agent Adjustment	
			
	  	Share-for-Combined:	  	Modified Calculation Agent Adjustment	
			
	  	Consequences of Announcement Events:	  	Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions, except that any adjustment in respect of an Announcement Event shall be made in a commercially reasonable manner and in consultation with Company; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event” and (y) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material effect on the Transaction (and, if so, adjust the terms of the Transaction accordingly in a commercially reasonable manner) on one or more occasions on or after the date of the Announcement Event but no later than the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.	
 
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	  	Announcement Event:	  	(i) The public announcement by any entity of (x) any transaction or event that is reasonably likely to be completed, as determined by the Calculation Agent and, if completed, would constitute a Merger Event or Tender Offer, (y) any potential acquisition by Issuer and/or its subsidiaries where the aggregate consideration exceeds 15% of the market capitalization of Issuer as of the date of such announcement (an “ Acquisition Transaction ”) or (z) the intention to enter into a Merger Event or Tender Offer or an Acquisition Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or an Acquisition Transaction or (iii) any subsequent public announcement by any entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded.	
			
	  	Nationalization, Insolvency or Delisting:	  	Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange.	
			
	  	Additional Disruption Events:	  		
			
	  	Change in Law:	  	Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the word “Shares” with the phrase “Hedge Positions” in clause (X) thereof and (ii) inserting the parenthetical “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” at the end of clause (A) thereof.	
			
	  	Failure to Deliver:	  	Not Applicable	
			
	  	Insolvency Filing:	  	Applicable	
 
8

					
			
	  	Hedging Disruption:	  	Applicable; provided that,	
			
	  		  	(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following two phrases at the end of such Section:
 
       “For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and	
			
	  		  	(ii)  Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.	
			
	  	Increased Cost of Hedging:	  	Applicable	
			
	  	Loss of Stock Borrow:	  	Applicable	
			
	  	Maximum Stock Loan Rate:	  	200 basis points	
			
	  	Increased Cost of Stock Borrow:	  	Applicable	
			
	  	Initial Stock Loan Rate:	  	0 basis points until June 15, 2022 and 25 basis points thereafter.	
			
	  	Hedging Party:	  	For all applicable Additional Disruption Events, Dealer.	
			
	  	Determining Party:	  	For all applicable Extraordinary Events, Dealer.	
			
	  	Non-Reliance:	  	Applicable	
			
	  	Agreements and Acknowledgments	  		
	  	Regarding Hedging Activities:	  	Applicable	
			
	  	Additional Acknowledgments:	  	Applicable	
 
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4.	  	Calculation Agent .	  	Dealer, whose judgments, determinations and calculations shall be made in good faith and in a commercially reasonable manner; provided that, following the occurrence and during the continuance of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, if the Calculation Agent fails to timely make any calculation, adjustment or determination required to be made by the Calculation Agent hereunder or to perform any obligation of the Calculation Agent hereunder and such failure continues for five (5) Exchange Business Days following notice to the Calculation Agent by Company of such failure, Company shall have the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a request by Company, the Calculation Agent shall promptly (but in any event within five Scheduled Trading Days) provide to Company by e-mail to the e-mail address provided by Company in such request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation (including any assumptions used in making such determination or calculation), it being understood that the Calculation Agent shall not be obligated to disclose any proprietary models or proprietary or confidential information used by it for such determination or calculation.	
 
5. 	Account Details .	
 
 	(a)	Account for payments to Company:	
To be provided by Company.
Account for delivery of Shares from Company:
To be provided by Company.
 
 	(b)	Account for payments to Dealer:	
ABA: 021000021
JP Morgan Chase NY (CHASUS33)
A/C Royal Bank of Canada, NY Branch (ROYCUS3X)
A/C#: 920-1-033363
FFC A/C Name: RBC US Transit
FFC A/C#: 012692041499
Reference: Impax Laboratories, Inc.
Account for delivery of Shares to Dealer:
To be provided by Dealer.
 
6. 	Offices .	
 
 	(a)	The Office of Company for the Transaction is: Inapplicable, Company is not a Multibranch Party.	
 
 	(b)	The Office of Dealer for the Transaction is: New York	
Royal Bank of Canada
c/o RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Attention:        Structured Derivatives Documentation
Telephone:      (212) 858-7000
Facsimile:       (212) 428-3053
 
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7. 	Notices .	
 
 	(a)	Address for notices or communications to Company:	
Impax Laboratories, Inc.
30831 Huntwood Avenue
Hayward, CA 94544
Attention:             Mark Schlossberg, SVP & General Counsel
Telephone No.:     (510) 240-6000
Facsimile No.:       (510) 240-6096
Address for notices or communications to Dealer:
Royal Bank of Canada
c/o RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Attention:     Structured Derivatives Documentation
Telephone:   (212) 858-7000
Facsimile:     (212) 428-3053
Email:           RBCECMCorporateEquityLinkedDocumentation@rbc.com
 
8. 	Representations and Warranties of Company .	
Other than for purposes of Section 5(a)(iv) of the Agreement, each of the representations and warranties of Company set forth in Section 3 of the Purchase Agreement (the “ Purchase Agreement ”), dated as of June 25, 2015, between Company and RBC Capital Markets, LLC, as representative of the initial purchasers party thereto (the “ Initial Purchasers ”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Company hereby further represents and warrants to Dealer on the date hereof, on and as of the Premium Payment Date and, in the case of the representations in Section 8(d), at all times until termination of the Transaction, that:
 
 	(a)	Company has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Company’s part; and this Confirmation has been duly and validly executed and delivered by Company and constitutes its valid and binding obligation, enforceable against Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.	
 
 	(b)	Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Company hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Company, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.	
 
 	(c)	No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Company of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.	
 
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 	(d)	A number of Shares equal to 2,108,853 (the “ Warrant Shares ”) have been reserved for issuance by all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrants following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully-paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights.	
 
 	(e)	Company is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.	
 
 	(f)	Company is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).	
 
 	(g)	Company and each of its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Company or the Shares.	
 
 	(h)	To Company’s knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares.	
 
 	(i)	Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.	
 
 	(j)	Without limiting the generality of Section 13.1 of the Equity Definitions, Company acknowledges that Dealer is not making any representations or warranties with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share , ASC Topic 815, Derivatives and Hedging , or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.	
 
9. 	Other Provisions .	
 
 	(a) 	Opinions . Company shall deliver to Dealer one or more opinions of counsel, dated as of the Premium Payment Date, given by Latham & Watkins LLP, with respect to the matters set forth in Sections 8(a) through (d) of this Confirmation; provided that any such opinion of counsel may contain customary exceptions and qualifications. Delivery of such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement. In addition, in connection with the entry into or consummation of any Redomicile Transaction (as defined below), Company shall deliver to Dealer an opinion of counsel (subject to customary qualifications, assumptions and exceptions), dated as of the date of such Redomicile Transaction, with respect to the matters set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (except the reference in Section 8(b) to “any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” shall be replaced with “any agreement or instrument to which Company or its subsidiaries is a party or to which Company or any of its subsidiaries is subject”). “ Redomicile Transaction ” means any Merger Event, reincorporation of Company, corporate redomiciliation of Company or similar transaction pursuant to which (x) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of a corporation that is not organized under the laws of the United States, any State thereof or the District of Columbia or (y) the Company following such Merger Event, reincorporation of Company, corporate redomiciliation of Company or similar transaction is not a corporation or is incorporated in a jurisdiction other than the United States, any State thereof or the District of Columbia.	
 
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 	(b) 	Repurchase Notices . Company shall, on any day on which Company effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “ Repurchase Notice ”) on such day if following such repurchase, the number of outstanding Shares on such day, subject to any adjustments provided herein, is (i) less than 69.09 million (in the case of the first such notice) or (ii) thereafter more than 2.43 million less than the number of Shares included in the immediately preceding Repurchase Notice. Company agrees to indemnify and hold harmless Dealer and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “ Indemnified Person ”) from and against any and all losses (including losses relating to Dealer’s hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable expenses (including reasonable attorney’s fees), joint or several, which an Indemnified Person may become subject to, in each case, as a result of Company’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person as a result of Company’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, such Indemnified Person shall promptly notify Company in writing, and Company, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Company may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding. Company shall not be liable for any settlement of such proceeding that is effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Company agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Company shall not, without the prior written consent of the Indemnified Person, effect any settlement of any such proceeding that is pending or threatened in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then Company under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities. The remedies provided for in this paragraph (b) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction.	
 
 	(c) 	Regulation M . Company is not on the Trade Date engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), of any securities of Company, other than a distribution meeting the requirements of the exception set forth in Rules 101(b) and 102(b) of Regulation M. Company shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution.	
 
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 	(d) 	Rule 10b-18 . On each Settlement Date, neither Company nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“ Rule 10b-18 ”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares except through Dealer and except (w) purchases of Shares that do not constitute “Rule 10b-18 purchases” under subparagraphs (ii) or (iii) of Rule 10b-18(a)(13) and that are not reasonably expected to result in purchases of Shares in the market, (x) withholding of Shares from holders of employee stock options to cover amounts payable (including tax liabilities and/or payment of exercise price) in respect of the exercise of such employee stock options, (y) purchases of Shares from employees to satisfy obligations under employee compensation agreements with such employees and (z) privately negotiated off-exchange repurchases of Shares that are not reasonably expected to result in purchases of Shares in the market.	
 
 	(e) 	Resolutions . On or prior to the Trade Date, Company shall deliver to Dealer a resolution of Company’s board of directors authorizing the Transaction.	
 
 	(f) 	No Manipulation . Company is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Exchange Act.	
 
 	(g) 	Transfer or Assignment . Company may not transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer. Dealer may, without Company’s consent, transfer or assign all or any part of its rights or obligations under the Transaction to any affiliate of Dealer or any internationally recognized investment bank; provided , that, in each case, as a result of such transfer or assignment, (i) Company will not be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Company would have been required to pay to Dealer in the absence of such transfer or assignment and (ii) such transferee provides either an IRS Form W-9 or W-8 (or successor form). If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Warrant Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “ Excess Ownership Position ”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Warrants in accordance with the preceding sentence on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “ Terminated Portion ”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a Terminated Portion, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Warrants equal to the number of Warrants underlying the Terminated Portion, (2) Company were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Company to Dealer pursuant to this sentence as if Company was not the Affected Party). The “ Section 16 Percentage ” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and each person subject to aggregation of Shares with Dealer under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) and (B) the denominator of which is the number of Shares outstanding. The “ Warrant Equity Percentage ” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Warrants and the Warrant Entitlement and (2) the aggregate number of Shares underlying any other warrants purchased by Dealer from Company, and (B) the denominator of which is the number of Shares outstanding. The “ Share Amount ” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “ Dealer Person ”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Company that are, in each case, applicable to ownership of Shares (“ Applicable Restrictions ”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “ Applicable Share Limit ” means a number of Shares equal to (A) the minimum number of Shares that gives rise to reporting or registration obligations (except for any filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in a material adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities, or make or receive any payment in cash, to or from Company, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities, or make or receive such payment in cash, and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Company to the extent of any such performance.	
 
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 	(h) 	Dividends . If at any time during the period from and including the Effective Date, to and including the last Expiration Date, an ex-dividend date for a cash dividend occurs with respect to the Shares, then the Calculation Agent will adjust any of the Strike Price, Number of Warrants, Daily Number of Warrants and/or any other variable relevant to the exercise, settlement or payment of the Transaction to preserve the fair value of the Warrants to Dealer after taking into account such dividend.	
 
 	(i) 	Role of Agent. Dealer has appointed, as its agent, its indirect wholly-owned subsidiary, RBC Capital Markets, LLC (“ RBCCM ”), for purposes of conducting, on Dealer’s behalf, a business in privately negotiated transactions in options and other derivatives. Company hereby is advised that Dealer, the principal and stated counterparty in such transactions, duly has authorized RBCCM to market, structure, negotiate, document, price, execute and hedge transactions in over-the-counter derivative products. RBCCM does not act as agent of Company. For the avoidance of doubt, any performance by Dealer of its obligations hereunder solely to RBCCM shall not relieve Dealer of such obligations. RBCCM’s performance to Company of Dealer’s obligations hereunder shall relieve Dealer of such obligations to the extent of such performance. Any performance by Company of its obligations (including notice obligations) through or by means of RBCCM’s agency for Dealer shall constitute good performance of Company’s obligations hereunder to Dealer.	
 
 	(j)	Additional Provisions.	
 
 	(i)	Amendments to the Equity Definitions:	
 
 	(A)	Section 11.2(a) of the Equity Definitions is hereby amended by deleting the words “a diluting or concentrative” and replacing them with the words “a material”; and adding the phrase “or Warrants” at the end of the sentence.	
 
 	(B)	Section 11.2(c) of the Equity Definitions is hereby amended by (w) replacing the words “a diluting or concentrative” with “a material” in the fifth line thereof, (x) adding the phrase “or Warrants” after the words “the relevant Shares” in the same sentence, (y) deleting the words “diluting or concentrative” in the sixth to last line thereof and (z) deleting the phrase “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing it with the phrase “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares).”	
 
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 	(C)	Section 11.2(e)(vii) of the Equity Definitions is hereby replaced in its entirety with the words “any other corporate event involving the Issuer or its securities that has a material economic effect on the Transaction.”	
 
 	(D)	Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) the occurrence of any of the events specified in Section 5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to that Issuer.”	
 
 	(E)	Section 12.9(b)(iv) of the Equity Definitions is hereby amended by:	
 
 	(x)	deleting (1) subsection (A) in its entirety, (2) the phrase “or (B)” following subsection (A) and (3) the phrase “in each case” in subsection (B); and	
 
 	(y)	replacing the phrase “neither the Non-Hedging Party nor the Lending Party lends Shares” with the phrase “such Lending Party does not lend Shares” in the penultimate sentence.	
 
 	(F)	Section 12.9(b)(v) of the Equity Definitions is hereby amended by:	
 
 	(x)	adding the word “or” immediately before subsection “(B)” and deleting the comma at the end of subsection (A); and	
 
 	(y)	(1) deleting subsection (C) in its entirety, (2) deleting the word “or” immediately preceding subsection (C), (3) deleting the penultimate sentence in its entirety and replacing it with the sentence “The Hedging Party will determine the Cancellation Amount payable by one party to the other.” and (4) deleting clause (X) in the final sentence.	
 
 	(ii)	Notwithstanding anything to the contrary in this Confirmation, upon the occurrence of one of the following events, with respect to the Transaction, (1) Dealer shall have the right to designate such event an Additional Termination Event and designate an Early Termination Date pursuant to Section 6(b) of the Agreement, (2) Company shall be deemed the sole Affected Party with respect to such Additional Termination Event and (3) the Transaction, or, at the election of Dealer in its sole discretion, any portion of the Transaction, shall be deemed the sole Affected Transaction; provided that if Dealer so designates an Early Termination Date with respect to a portion of the Transaction, (a) a payment shall be made pursuant to Section 6 of the Agreement as if an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Warrants equal to the number of Warrants included in the terminated portion of the Transaction, and (b) for the avoidance of doubt, the Transaction shall remain in full force and effect except that the Number of Warrants shall be reduced by the number of Warrants included in such terminated portion:	
 
 	(A)	A “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than Company, its wholly owned subsidiaries and its and their employee benefit plans, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the common equity of Company representing more than 50% of the voting power of all classes of such common equity entitled to vote generally in the election of its directors.	
 
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 	(B)	Consummation of (I) any recapitalization, reclassification or change of the Shares (other than changes resulting from a subdivision or combination) as a result of which the Shares would be converted into, or exchanged for, stock, other securities, other property or assets, (II) any share exchange, consolidation or merger of Company pursuant to which the Shares will be converted into cash, securities or other property or assets or (III) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of Company and its subsidiaries, taken as a whole, to any person other than one of Company’s wholly owned subsidiaries. Notwithstanding the foregoing, any transaction or transactions set forth in this clause (B) shall not constitute an Additional Termination Event if (x) at least 90% of the consideration received or to be received by holders of the Shares, excluding cash payments for fractional Shares and cash payments made pursuant to dissenters’ appraisal rights, in connection with such transaction or transactions consists of shares of common stock that are listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions, and (y) as a result of such transaction or transactions, the Shares will consist of such consideration, excluding cash payments for fractional Shares and cash payments made pursuant to dissenters’ appraisal rights.	
 
 	(C)	[Reserved.]	
 
 	(D)	Default by Company or any of its Significant Subsidiaries (as defined below) with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $35 million (or its foreign currency equivalent) in the aggregate of Company and/or any such subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable or (ii) constituting a failure to pay the principal or interest of any such debt when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, if such default is not cured or waived, or such acceleration is not rescinded within 30 days after written notice to Company.	
A “ Significant Subsidiary ” is a subsidiary that is a “significant subsidiary” as defined under Rule 1-02(w) of Regulation S-X under the Exchange Act.
 
 	(E)	[Reserved.]	
 
 	(F)	Dealer, despite using commercially reasonable efforts, is unable or reasonably determines, based on advice of counsel, that it is impractical or illegal, to hedge its exposure with respect to the Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer).	
 
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 	(G)	On any day during the period from and including the Trade Date, to and including the earlier of the Stockholder Approval Date and the final Expiration Date, (I) the Notional Unwind Shares (as defined below) as of such day exceeds a number of Shares equal to 75% of the Maximum Number of Shares, or (II) Company makes a public announcement of any transaction or event that, in the reasonable opinion of Dealer would, upon consummation of such transaction or upon the occurrence of such event, as applicable, and after giving effect to any applicable adjustments hereunder, cause the Notional Unwind Shares immediately following the consummation of such transaction or the occurrence of such event to exceed a number of Shares equal to 75% of the Maximum Number of Shares. The “ Notional Unwind Shares ” as of any day is a number of Shares equal to (1) the amount that would be payable pursuant to Section 6 of the Agreement (determined as of such day as if an Early Termination Date had been designated in respect of the Transaction and as if the Company were the sole Affected Party and the Transaction were the sole Affected Transaction), divided by (2) the Settlement Price (determined as if such day were a Valuation Date). For the purposes of this clause (G), the Share Delivery Quantity shall be deemed to include the “Share Delivery Quantity” (as defined in the letter agreement dated June 25, 2015 between Dealer and Company regarding Base Warrants (the “ Base Warrant Confirmation ”)) and the terms set forth above for determining the Share Delivery Quantity shall apply mutatis mutandis for the purposes of determining the “Share Delivery Quantity” under the Base Warrant Confirmation. “ Stockholder Approval Date ” means the first date on which (x) Shareholders of Company have approved an increase in the number of authorized but unissued Shares that are not reserved for other purposes sufficient for Company to issue and deliver upon exercise and settlement or termination of all Warrants evidenced hereby a number of Shares equal to two times the product of the Number of Warrants and the Warrant Entitlement (the “ Maximum Underlying Share Amount ”) and (y) Company has reserved for exercise and settlement or termination of all Warrants evidenced hereby a number of Shares equal to the Maximum Underlying Share Amount.	
 
 	(k) 	Collateral and No Setoff . Notwithstanding any provision of the Agreement or any other agreement between the parties to the contrary, the obligations of Company hereunder are not secured by any collateral. Both parties waive any rights to set-off or netting, including in any bankruptcy proceedings of Company, amounts due either party with respect to any Transaction hereunder against amounts due to either party from the other party under any other agreement between the parties.	
 
 	(l) 	Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events .	
 
 	(i)	If (a) an Early Termination Date (whether as a result of an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result of (i) a Nationalization, Insolvency or Merger Event in which the consideration to be paid to holders of Shares consists solely of cash, (ii) a Merger Event or Tender Offer that is within Company’s control, or (iii) an Event of Default in which Company is the Defaulting Party or a Termination Event in which Company is the Affected Party other than an Event of Default of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type described in Section 5(b) of the Agreement, in each case that resulted from an event or events outside Company’s control), and if Company would owe any amount to Dealer pursuant to Section 6(d)(ii) of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “ Payment Obligation ”), then Company shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below), unless (a) Company gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) Company remakes the representation set forth in Section 8(g) as of the date of such election and (c) Dealer agrees, such agreement not to be unreasonably withheld, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of Section 6(d)(ii) of the Agreement, as the case may be, shall apply.	
 
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	 	Share Termination Alternative:	  	If applicable, Company shall deliver to Dealer the Share Termination Delivery Property on the date (the “ Share Termination Payment Date ”) on which the Payment Obligation would otherwise be due pursuant to Section 12.7 or Section 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, subject to Section 9(m)(i) below, in satisfaction, subject to Section 9(m)(ii) below, of the relevant Payment Obligation, in the manner reasonably requested by Dealer free of payment.	
			
	 	Share Termination Delivery Property:	  	A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the relevant Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the amount of Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price (without giving effect to any discount pursuant to Section 9(m)(i)).	
			
	 	Share Termination Unit Price:	  	The value to Dealer of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means. In the case of a Private Placement of Share Termination Delivery Units that are Restricted Shares (as defined below), as set forth in Section 9(m)(i) below, the Share Termination Unit Price shall be determined by the discounted price applicable to such Share Termination Delivery Units (with such price taking into account a commercially reasonable liquidity discount in the case where such securities are subject to restrictions under the Securities Act). In the case of a Registration Settlement of Share Termination Delivery Units that are Restricted Shares (as defined below) as set forth in Section 9(m)(ii) below, notwithstanding the foregoing, the Share Termination Unit Price shall be the Settlement Price on the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable. The Calculation Agent shall notify Company of the Share Termination Unit Price at the time of notification of such Payment Obligation to Company or, if applicable, at the time the discounted price applicable to the relevant Share Termination Units is determined pursuant to Section 9(m)(i).	
 
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	  		  	Share Termination Delivery Unit:	  	One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “ Exchange Property ”), a unit consisting of the type and amount of Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event. If such Nationalization, Insolvency or Merger Event involves a choice of Exchange Property to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.	
				
	  		  	Failure to Deliver:	  	Inapplicable	
				
	  		  	Other applicable provisions:	  	If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.11 and 9.12 (as modified above) of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.	
			
	  	(ii)	  	Notwithstanding anything to the contrary in this Confirmation, any Payment Obligation under this Confirmation shall, for all purposes, be calculated as if the Maximum Number of Shares were equal to two times the product of the Number of Warrants and the Warrant Entitlement, but any deliveries under Section 9(l)(i) shall be limited to the Maximum Number of Shares as defined in Section 9(r)(i) hereof.	
		
(m)	  	Registration/Private Placement Procedures . If, in the reasonable opinion of Dealer, following any delivery of Shares or Share Termination Delivery Property to Dealer hereunder, such Shares or Share Termination Delivery Property would be in the hands of Dealer subject to any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery requirement for such Shares or Share Termination Delivery Property pursuant to any applicable federal or state securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act as a result of such Shares or Share Termination Delivery Property being “restricted securities”, as such term is defined in Rule 144 under the Securities Act, or as a result of the sale of such Shares or Share Termination Delivery Property being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or Share Termination Delivery Property, “ Restricted Shares ”), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the election of Company, unless Dealer waives the need for registration/private placement procedures set forth in (i) and (ii) below. Notwithstanding the foregoing, solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, if Dealer notifies Company of the need for registration or private placement procedures set forth in this Section 9(m), then Company shall elect, prior to the later of (x) the first Settlement Date for the first applicable Expiration Date and (y) the third Scheduled Trading Day following the date of such notification, a Private Placement Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all remaining Settlement Dates for such Warrants and the procedures in clause (i) or clause (ii) below shall apply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. The Calculation Agent shall make reasonable adjustments to settlement terms and provisions under this Confirmation to reflect a single Private Placement or Registration Settlement for such aggregate Restricted Shares delivered hereunder.	
 
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 	(i)	If Company elects to settle the Transaction pursuant to this clause (i) (a “ Private Placement Settlement ”), then delivery of Restricted Shares by Company shall be effected in accordance with private placement procedures with respect to such Restricted Shares customary for private placements of equity securities of substantially similar size reasonably acceptable to Dealer; provided that Company may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act for the sale by Company to Dealer (or any affiliate designated by Dealer) of the Restricted Shares or the exemption pursuant to Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such affiliate of Dealer). The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Restricted Shares by Dealer), opinions and certificates, and such other documentation as is customary for private placement agreements of equity securities of a substantially similar size, all reasonably acceptable to Dealer. In the case of a Private Placement Settlement, Dealer shall determine the appropriate discount to the Share Termination Unit Price (in the case of settlement of Share Termination Delivery Units pursuant to Section 9(l) above) or premium to any Settlement Price (in the case of settlement of Shares pursuant to Section 2 above) applicable to such Restricted Shares in a commercially reasonable manner and appropriately adjust the number of such Restricted Shares to be delivered to Dealer hereunder. Notwithstanding anything to the contrary in the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Exchange Business Day following notice by Dealer to Company of such applicable discount or premium, as the case may be, and the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the Share Termination Payment Date (in the case of settlement of Share Termination Delivery Units pursuant to Section 9(l) above) or on the Settlement Date for such Restricted Shares (in the case of settlement in Shares pursuant to Section 2 above).	
 
 	(ii)	If Company elects to settle the Transaction pursuant to this clause (ii) (a “ Registration Settlement ”), then Company shall promptly (but in any event no later than the beginning of the Resale Period) file and use its reasonable best efforts to make effective under the Securities Act a registration statement or supplement or amend an outstanding registration statement in form and substance reasonably satisfactory to Dealer, to cover the resale of such Restricted Shares in accordance with customary resale registration procedures for registered secondary offerings of a substantially similar size, including covenants, conditions, representations, underwriting discounts (if applicable), commissions (if applicable), indemnities due diligence rights, opinions and certificates, and such other documentation as is customary for equity resale underwriting agreements for registered secondary offerings of a substantially similar size, all reasonably acceptable to Dealer. If Dealer, in its sole reasonable discretion, is not satisfied with such procedures and documentation Private Placement Settlement shall apply. If Dealer is satisfied with such procedures and documentation, it shall sell the Restricted Shares pursuant to such registration statement during a period (the “ Resale Period ”) commencing on the Exchange Business Day following delivery of such Restricted Shares (which, for the avoidance of doubt, shall be (x) the Share Termination Payment Date in case of settlement in Share Termination Delivery Units pursuant to Section 9(l) above or (y) the Settlement Date in respect of the final Expiration Date for all Daily Number of Warrants) and ending on the Exchange Business Day on which Dealer completes the sale of all Restricted Shares or, in the case of settlement of Share Termination Delivery Units, a sufficient number of Restricted Shares so that the realized net proceeds of such sales equals or exceeds the Payment Obligation (as defined above). If the Payment Obligation exceeds the realized net proceeds from such resale, Company shall transfer to Dealer by the open of the regular trading session on the Exchange on the Exchange Trading Day immediately following such resale the amount of such excess (the “ Additional Amount ”) in cash or in a number of Shares (“ Make-whole Shares ”) in an amount that, based on the Settlement Price on such day (as if such day was the “Valuation Date” for purposes of computing such Settlement Price), has a dollar value equal to the Additional Amount. The Resale Period shall continue to enable the sale of the Make-whole Shares. If Company elects to pay the Additional Amount in Shares, the requirements and provisions for Registration Settlement shall apply. This provision shall be applied successively until the Additional Amount is equal to zero. In no event shall Company deliver a number of Restricted Shares greater than the Maximum Number of Shares.	
 
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 	(iii)	Without limiting the generality of the foregoing, Company agrees that (A) any Restricted Shares delivered to Dealer may be transferred by and among Dealer and its affiliates and Company shall effect such transfer without any further action by Dealer and (B) after the period of 6 months from the Trade Date (or 1 year from the Trade Date if, at such time, informational requirements of Rule 144(c) under the Securities Act are not satisfied with respect to Company) has elapsed in respect of any Restricted Shares delivered to Dealer, Company shall promptly remove, or cause the transfer agent for such Restricted Shares to remove, any legends referring to any such restrictions or requirements from such Restricted Shares upon request by Dealer (or such affiliate of Dealer) to Company or such transfer agent, without any requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer). Notwithstanding anything to the contrary herein, to the extent the provisions of Rule 144 of the Securities Act or any successor rule are amended, or the applicable interpretation thereof by the Securities and Exchange Commission or any court change after the Trade Date, the agreements of Company herein shall be deemed modified to the extent necessary, in the opinion of outside counsel of Company, to comply with Rule 144 of the Securities Act, as in effect at the time of delivery of the relevant Shares or Share Termination Delivery Property.	
 
 	(iv)	If the Private Placement Settlement or the Registration Settlement shall not be effected as set forth in clauses (i) or (ii), as applicable, then failure to effect such Private Placement Settlement or such Registration Settlement shall constitute an Event of Default with respect to which Company shall be the Defaulting Party.	
 
 	(n) 	Limit on Beneficial Ownership . Notwithstanding any other provisions hereof, Dealer may not exercise any Warrant hereunder or be entitled to take delivery of any Shares deliverable hereunder, and Automatic Exercise shall not apply with respect to any Warrant hereunder, to the extent (but only to the extent) that, after such receipt of any Shares upon the exercise of such Warrant or otherwise hereunder and after taking into account any Shares deliverable to Dealer under the Base Warrant Confirmation, (i) the Section 16 Percentage would exceed 8.5%, or (ii) the Share Amount would exceed the Applicable Share Limit. Any purported delivery hereunder shall be void and have no effect to the extent (but only to the extent) that, after such delivery and after taking into account any Shares deliverable to Dealer under the Base Warrant Confirmation, (i) the Section 16 Percentage would exceed 8.5%, or (ii) the Share Amount would exceed the Applicable Share Limit. If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of this provision, Company’s obligation to make such delivery shall not be extinguished and Company shall make such delivery as promptly as practicable after, but in no event later than one Business Day after, Dealer gives notice to Company that, after such delivery, (i) the Section 16 Percentage would not exceed 8.5%, and (ii) the Share Amount would not exceed the Applicable Share Limit.	
 
 	(o) 	Share Deliveries . Notwithstanding anything to the contrary herein, Company agrees that any delivery of Shares or Share Termination Delivery Property shall be effected by book-entry transfer through the facilities of DTC, or any successor depositary, if at the time of delivery, such class of Shares or class of Share Termination Delivery Property is in book-entry form at DTC or such successor depositary.	
 
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(p) 	Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided herein.	
 
(q) 	Tax Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Company and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Company relating to such tax treatment and tax structure.	
 
(r) 	Maximum Share Delivery .	
 
 	(i)	Notwithstanding any other provision of this Confirmation, the Agreement or the Equity Definitions, in no event will Company at any time be required to deliver a number of Shares greater than the Maximum Number of Shares to Dealer in connection with the Transaction, subject to the provisions regarding Deficit Shares in Section 9(r)(ii). “ Maximum Number of Shares ” means (x) prior to the Stockholder Approval Date, 2,108,853 and (y) from and after the Stockholder Approval Date, a number of Shares equal to two times the product of the Number of Warrants and the Warrant Entitlement.	
 
 	(ii)	In the event Company shall not have delivered to Dealer the full number of Shares or Restricted Shares otherwise deliverable by Company to Dealer pursuant to the terms of the Transaction because Company has insufficient authorized but unissued Shares that are not reserved for other transactions (such deficit, the “ Deficit Shares ”), Company shall be continually obligated to deliver, from time to time, Shares or Restricted Shares, as the case may be, to Dealer until the full number of Deficit Shares have been delivered pursuant to this Section 9(r)(ii), when, and to the extent that, (A) Shares are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), (B) authorized and unissued Shares previously reserved for issuance in respect of other transactions become no longer so reserved or (C) Company additionally authorizes any unissued Shares that are not reserved for other transactions; provided that in no event shall Company deliver any Shares or Restricted Shares to Dealer pursuant to this Section 9(r)(ii) to the extent that such delivery would cause the aggregate number of Shares and Restricted Shares delivered to Dealer to exceed the Maximum Number of Shares. Company shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares subject to clause (A), (B) or (C) and the corresponding number of Shares or Restricted Shares, as the case may be, to be delivered) and promptly deliver such Shares or Restricted Shares, as the case may be, thereafter.	
 
(s) 	Right to Extend. Dealer may postpone or add, in whole or in part, any Expiration Date or any other date of valuation or delivery with respect to some or all of the relevant Warrants (in which event the Calculation Agent shall make appropriate adjustments to the Daily Number of Warrants with respect to one or more Expiration Dates) if Dealer determines, based on the advice of counsel, that such extension is reasonably necessary or appropriate to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions that are materially different from those in existence as of the Trade Date or to enable Dealer to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Issuer or an affiliated purchaser of Issuer, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer; provided that no such Exchange Business Day or other date of valuation, payment or delivery may be postponed or added more than 50 Exchange Business Days after the original Exchange Business Day or other date of valuation, payment or delivery, as the case may be.	
 
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(t) 	Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Company with respect to the Transaction that are senior to the claims of common stockholders of Company in any United States bankruptcy proceedings of Company; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Company of its obligations and agreements with respect to the Transaction; provided , further , that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.	
 
(u) 	Securities Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code (Title 11 of the United States Code) (the “ Bankruptcy Code ”), and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code.	
 
(v) 	Wall Street Transparency and Accountability Act . In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“ WSTAA ”), the parties hereby agree that neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption, Increased Cost of Hedging, an Excess Ownership Position, or Illegality (as defined in the Agreement)).	
 
(w) 	Agreements and Acknowledgements Regarding Hedging . Company understands, acknowledges and agrees that: (A) at any time on and prior to the last Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the Transaction; (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Settlement Prices; and (D) any market activities of Dealer and its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Settlement Prices, each in a manner that may be adverse to Company.	
 
(x) 	Early Unwind . In the event the sale of the “Option Securities” (as defined in the Purchase Agreement) is not consummated with the Initial Purchasers for any reason, or Company fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date the “ Early Unwind Date ”),the Transaction shall automatically terminate (the “ Early Unwind ”),on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Company under the Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date. Each of Dealer and Company represents and acknowledges to the other that, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.	
 
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(y) 	Payment by Dealer . In the event that (i) an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Dealer owes to Company an amount calculated under Section 6(e) of the Agreement, or (ii) Dealer owes to Company, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero.	
 
(z) 	Listing of Warrant Shares . Company shall have submitted an application for the listing of the Warrant Shares on the Exchange, and such application and listing shall have been approved by the Exchange, subject only to official notice of issuance, in each case, on or prior to the Premium Payment Date. Company agrees and acknowledges that such submission and approval shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement.	
 
(aa) 	Redomicile Transaction . Company shall not enter into or consummate any Redomicile Transaction unless:	
 
 	(i)	Company will be a corporation incorporated under the laws of the United States or any state thereof and a wholly-owned direct or indirect subsidiary of a successor Issuer immediately following such Redomicile Transaction, such successor Issuer fully and unconditionally guarantees the obligations of Company under this Confirmation (the “ Guaranteed Obligations ”) and repeats to Dealer immediately following such Redomicile Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (w) “Transaction” were replaced with “guarantee of the Guaranteed Obligations”, (x) “Company” were replaced with “Issuer”, (y) “Confirmation” were replaced with “guarantee of the Guaranteed Obligations” and (z) “any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” in Section 8(b) were replaced with “any agreement or instrument to which Issuer or its subsidiaries is a party or to which Issuer or any of its subsidiaries is subject”); or	
 
 	(ii)	the successor Issuer immediately following such Redomicile Transaction assumes Company’s rights and obligations hereunder, becoming “Company” for all purposes hereunder, and such successor Company immediately following such Redomicile Transaction repeats to Dealer immediately following such Redomicile Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (w) “execute, deliver” were replaced with “assume”, (x) “execution, delivery” and “execution and delivery” were replaced with “assumption”, (y) “executed and delivered” were replaced with “assumed” and (z) “any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” in Section 8(b) were replaced with “any agreement or instrument to which Company or its subsidiaries is a party or to which Company or any of its subsidiaries is subject”).	
Notwithstanding anything to the contrary in this Confirmation, following consummation of any Redomicile Transaction pursuant to which Issuer following such Redomicile Transaction is organized under the laws of a jurisdiction other than the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United Kingdom, then such Redomicile Transaction shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Company shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.
 
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If, at any time following the occurrence of any Redomicile Transaction, Dealer reasonably determines in its good faith judgment, following consultation with Company for a period of at least five Scheduled Trading Days (such consultation period, the “ Redomicile Event Consultation Period ”) that (i) (x) such Redomicile Transaction has had a material adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased (as compared with circumstances existing on the Trade Date) amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) and (ii) Dealer cannot promptly avoid the occurrence of each such material adverse effect or increased tax, duty, expense or fee by (x) transferring or assigning Dealer’s rights and obligations under this Confirmation and the Agreement without Company’s consent pursuant to Section to an affiliate of Dealer that would not suffer any such material adverse effect or increased tax, duty, expense or fee (it being understood that Dealer need not take any action that does not meet the Avoidance Criteria), (y) using commercially reasonable efforts to avoid such material adverse effect or increased tax, duty, expense or fee (it being understood that Dealer need not take any action that does not meet the Avoidance Criteria) or (z) amending the terms of this Confirmation (whether because amendments would not avoid such occurrence or because Company fails to agree promptly to such amendments) (it being understood, for the avoidance of doubt, that an event described in clause (i)(x) or clause (i)(y) above for which Dealer can avoid the occurrence of the relevant material adverse effect or increased tax, duty, expense or fee after giving effect to the related Price Adjustment referred to below shall be a Redomicile Event notwithstanding this clause (ii)(z)) (each of the events described in clause (i)(x) and clause (i)(y) above that also satisfies the conditions set forth in clause (ii) above, a “ Redomicile Event ”), then, in either case, Dealer shall give prompt notice to Company of such Redomicile Event.
“ Avoidance Criteria ” means with respect to an action by a party, as determined by the Calculation Agent in good faith, that (i) such action is legal (and, in the case of a Change in Law, in the reasonable judgment of Dealer is within the intent of the law or regulation that is the subject of the Change in Law) and complies with all applicable regulations, rules (including by self-regulatory organizations) and policies (whether written or oral) including policies of such party, (ii) such action would not cause or, in the judgment of Dealer, would not create a material risk of causing, an Additional Disruption Event (ignoring, for this purpose, any requirement to avoid such Additional Disruption Event as set forth herein), (iii) if such party or an affiliate is to establish one or more alternative Hedge Positions, there is sufficient liquidity in those alternative Hedge Positions available for that Hedging Party to hedge the Transaction and all other transactions into which that party has entered and for which that party determines that it needs to utilize those alternative Hedge Positions, (iv) such action is known by that party or known by other financial institutions that are leading derivatives dealers that are generally willing to enter into transactions similar to the Transaction; (v) by taking such action, such party would not incur, or there would not be a material risk that such party would incur, any one or more of an increased operational or administrative burden or expense, increased performance cost, increased hedging cost or increased capital charges (in each case as compared to circumstances on the Trade Date), (vi) such action would not require such party to (A) enter into arrangements with a counterparty, custodian, depositary and/or other third party that has no existing business relationship with that party in relation to positions, contracts, instruments, transactions, or other arrangements similar in type to such action or (B) exceed, individually or together with any other positions, contracts, transactions, instruments or other arrangements into which such party has entered (individually or on a portfolio basis), investment quotas, position limits, investment level restrictions, internal client limits, credit limits or risk-based requirements of such party, in each case, existing as of the Trade Date and regardless of whether imposed by law, governmental authority or regulation, and (vii) by taking such action, it would not be necessary for that party to make any filing or submission to any government or regulatory authority (including a taxing authority) and (viii) as applied to an avoidance of an Excess Ownership Position, such action does not cause, or would not create a material risk of causing, an interference or disruption to such party’s normal business practice or client service including, without limitation, market-making, trust or custody service.
 
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 	Concurrently with delivering such notice, Dealer shall give notice to Company of a commercially reasonable Price Adjustment that Dealer determines, in its good faith, commercially reasonable judgment, appropriate to account for the economic effect on the Transaction of such Redomicile Event and provide Company with supporting documentation for such Price Adjustment (unless Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, in which case Dealer shall so notify Company). Unless Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, within two Scheduled Trading Days of receipt of such notice, Company shall notify Dealer that it elects to (A) agree to amend the Transaction to take into account such Price Adjustment or (B) pay Dealer an amount determined by Dealer (and in respect of which Dealer has provided to Company supporting documentation) that corresponds to such Price Adjustment (and, in each case, Company shall be deemed to have repeated the representation set forth in Section 8(g) of this Confirmation as of the date of such election). If Company fails to give such notice to Dealer of its election by the end of that second Scheduled Trading Day, or if Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, then such failure or such determination, as the case may be, shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (1) Company shall be deemed to be the sole Affected Party, (2) the Transaction shall be the sole Affected Transaction and (3) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. For the avoidance of doubt, the parties hereto agree and acknowledge that the occurrence of a Redomicile Event shall not preclude the occurrence of one or more additional, subsequent Redomicile Events, it being understood and agreed that any Price Adjustment described in clause (A) above and/or any payment described in clause (B) above shall be calculated without duplication in respect of any prior such Price Adjustment and/or payment. For purposes of the foregoing, Dealer will be deemed to have not determined that no Price Adjustment will produce a commercially reasonable result unless Dealer has consulted with Company regarding such Price Adjustment determination for a period of at least five Scheduled Trading Days (it being understood that such consultation period may run concurrently with the Redomicile Event Consultation Period for the related Redomicile Event if Company receives notice of such Price Adjustment determination prior to the start of such Redomicile Event Consultation Period).	
 
 	(bb) 	FATCA and Dividend Equivalent Tax . “Indemnifiable Tax” as defined in Section 14 of the Agreement shall not include (i) any tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “ FATCA Withholding Tax ”) or (ii) any tax imposed on amounts treated as dividends from sources within the United States under Section 871(m) of the Code (or the United States Treasury Regulations or other guidance issued thereunder). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.	
 
 	(cc) 	U.S. Federal Withholding Tax. If Dealer transfers or assigns all or any part of its rights and obligations under the Transaction without the Company’s consent to a transferee that (1) is not a United States person (as defined in the Code) and (2) does not provide a W-8ECI, the term “Indemnifiable Tax” as defined in Section 14 of the Agreement shall not include any U.S. federal withholding tax including, but not limited to (i) any FATCA Withholding Tax, (ii) any tax imposed on amounts treated as dividends from sources within the United States under Section 871(m) of the Code (or the United States Treasury Regulations or other guidance issued thereunder), or (iii) any tax imposed on amounts treated as distributions of property under Section 305 of the Code (or the United States Treasury Regulations or other guidance issued thereunder), and if, at any time, Company is required to remit an amount of tax in respect of any such U.S. federal withholding tax including, but not limited to any tax described under (i) through (iii) with respect to a payment (or deemed payment or deemed distribution) under the Transaction, then without duplication for any amount that Company has deducted on account of such tax from any amount paid to such transferee pursuant to the Transaction, the amount so required to be remitted shall be payable by such transferee to Company within 10 business days of written demand by the Company. For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.	
 
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 	(dd) 	Part 2(b) of the ISDA Schedule – Payee Representation .	
 
 	(i)	For the purpose of Section 3(f) of this Agreement, Company makes the following representation to Dealer:	
Company is a corporation established under the laws of the State of Delaware and is a “United States person” (as that term is defined in Section 7701(a)(30) of the Code).
 
 	(ii)	For the purpose of Section 3(f) of this Agreement, Dealer makes the following representation to Company:	
Each payment received or to be received by it in connection with this Agreement is effectively connected with its conduct of a trade or business by Dealer within the United States; and
It is a “foreign person” (as that term is used in Section 1.6041-4(a)(4) of the United States Treasury Regulations) for United States federal income tax purposes.
 
 	(ee) 	Part 3(a) of the ISDA Schedule – Tax Forms :	

Party Required to
Deliver Document	  	Form/Document/Certificate	  	Date by which to be Delivered	
Company	  	A complete and duly executed United States Internal Revenue Service Form W-9 (or successor thereto.)	  	(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Dealer; and (iii) promptly upon learning that any such Form previously provided by Company has become obsolete or incorrect.	
			
Dealer	  	A complete and duly executed United States Internal Revenue Service Form W-8ECI (or successor thereto)	  	(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Company; and (iii) promptly upon learning that any such Form previously provided by Dealer has become obsolete or incorrect.	
 
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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to Dealer.

					
Very truly yours,	
		
	 	ROYAL BANK OF CANADA
by its agent
RBC Capital Markets, LLC	
			
	 	By:	 	s/ Dawn T. Laabs	
	 	Authorized Signatory	
	 	Name:	
Accepted and confirmed
as of the Trade Date:

IMPAX LABORATORIES, INC.	

By:	 	s/ Bryan Reasons	
			
Authorized Signatory	
Name:	
[Additional Warrant Signature Page]

Exhibit 10.18

 
	
RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Telephone: (212) 858-7000
 
June 26, 2015                            	
 
To:	Impax Laboratories, Inc.	
30831 Huntwood Avenue
Hayward, CA 94544
Attention:              Mark Schlossberg, SVP & General Counsel
Telephone No.:     (510) 240-6000
Facsimile No.:      (510) 240-6096
 
Re:	Additional Call Option Transaction	
The purpose of this letter agreement (this “ Confirmation ”) is to confirm the terms and conditions of the call option transaction entered into between Royal Bank of Canada (“ Dealer ”) and Impax Laboratories, Inc. (“ Counterparty ”) as of the Trade Date specified below (the “ Transaction ”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. This Confirmation shall replace any previous agreements and serve as the final documentation for the Transaction.
The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “ Equity Definitions ”), as published by the International Swaps and Derivatives Association, Inc. (“ ISDA ”) are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated June 25, 2015 (the “ Offering Memorandum ”) relating to the 2.00% Convertible Senior Notes due 2022 (as originally issued by Counterparty, the “ Convertible Notes ” and each USD 1,000 principal amount of Convertible Notes, a “ Convertible Note ”) issued by Counterparty in an aggregate initial principal amount of USD 500,000,000 (as increased by an aggregate principal amount of USD 100,000,000 pursuant to the exercise by the Initial Purchasers (as defined herein) of their option to purchase additional Convertible Notes pursuant to the Purchase Agreement (as defined herein)) pursuant to an Indenture to be dated June 30, 2015 between Counterparty and Wilmington Trust, National Association, as trustee (the “ Indenture ”). In the event of any inconsistency between the terms defined in the Offering Memorandum, the Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that this Confirmation is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture which are also defined herein by reference to the Indenture and (ii) sections of the Indenture that are referred to herein will conform to the descriptions thereof in the Offering Memorandum. If any such definitions in the Indenture or any such sections of the Indenture differ from the descriptions thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern for purposes of this Confirmation. The parties further acknowledge that the Indenture section numbers used herein are based on the draft of the Indenture last reviewed by Dealer as of the date of this Confirmation, and if any such section numbers are changed in the Indenture as executed, the parties will amend this Confirmation in good faith to preserve the intent of the parties. Subject to the foregoing, references to the Indenture herein are references to the Indenture as in effect on the date of its execution, and if the Indenture is amended or supplemented following such date (other than any amendment or supplement (x) pursuant to Section 10.01(m) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture, subject, in the case of this clause (y), to the second paragraph under “Method of Adjustment” in Section 3), any such amendment or supplement will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.
Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.

1. This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “ Agreement ”) as if Dealer and Counterparty had executed an agreement in such form (but without any Schedule except for (i) the election of the laws of the State of New York as the governing law (without reference to choice of law doctrine); and (ii) the election that the “Cross Default” provisions of Section 5(a)(vi) of the Agreement will apply to Dealer as if (a) the phrase “, or becoming capable at such time of being declared,” were deleted from Section 5(a)(vi)(1) of the Agreement, (b) the “Threshold Amount” with respect to Dealer were three percent (3%) of shareholders’ equity of Dealer as of the Trade Date, (c) the following language were added to the end of Section 5(a)(vi): “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational nature; (y) funds were available to enable the party to make the payment when due; and (z) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”; and (d) the term “Specified Indebtedness” had meaning specified in Section 14 of the Agreement, except that such term shall not include obligations in respect of deposits received in the ordinary course of Dealer’s banking business) on the Trade Date. In the event of any inconsistency between provisions of the Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement.

2. The terms of the particular Transaction to which this Confirmation relates are as follows:	
		
	 	General Terms .	
				
	 		  	Trade Date:	  	June 26, 2015	
				
	 		  	Effective Date:	  	The Trade Date	
				
	 		  	Option Style:	  	“Modified American”, as described under “Procedures for Exercise” below	
				
	 		  	Option Type:	  	Call	
				
	 		  	Buyer:	  	Counterparty	
				
	 		  	Seller:	  	Dealer	
				
	 		  	Shares:	  	The common stock of Counterparty, par value USD 0.01 per share (Exchange symbol “IPXL”).	
				
	 		  	Number of Options:	  	100,000. For the avoidance of doubt, the Number of Options shall be reduced by any Options exercised by Counterparty. In no event will the Number of Options be less than zero.	
				
	 		  	Option Entitlement:	  	15.7858.	
				
	 		  	Strike Price:	  	USD 63.35	
				
	 		  	Premium:	  	USD 24,500,000.00	
				
	 		  	Premium Payment Date:	  	The closing date of the initial issuance of the Convertible Notes	
				
	 		  	Exchange:	  	The NASDAQ Global Market	
				
	 		  	Related Exchange(s):	  	All Exchanges	
				
	 		  	Excluded Provisions:	  	Section 14.04(i) and Section 14.03 of the Indenture.	
 
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	 	Procedures for Exercise.	  		
				
	 		  	Conversion Date:	  	With respect to any conversion of a Convertible Note, the date on which the Holder (as such term is defined in the Indenture) of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section 14.02(b) of the Indenture.	
				
	 		  	Free Convertibility Date:	  	December 15, 2021	
				
	 		  	Expiration Time:	  	The Valuation Time	
				
	 		  	Expiration Date:	  	June 15, 2022, subject to earlier exercise.	
				
	 		  	Multiple Exercise:	  	Applicable, as described under “Automatic Exercise” below.	
				
	 		  	Automatic Exercise:	  	Notwithstanding Section 3.4 of the Equity Definitions, on each Conversion Date in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder, a number of Options equal to (i) the number of Convertible Notes in denominations of USD 1,000 as to which such Conversion Date has occurred minus (ii) the number of Options that are or are deemed to be automatically exercised on such Conversion Date under the Base Call Option Transaction Confirmation letter agreement dated June 25, 2015 between Dealer and Counterparty (the “ Base Call Option Confirmation ”), shall be deemed to be automatically exercised; provided that such Options shall be exercised or deemed exercised only if Counterparty has provided a Notice of Exercise to Dealer in accordance with “Notice of Exercise” below.	
				
	 		  		  	Notwithstanding the foregoing, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options.	
				
	 		  	Notice Deadline:	  	In respect of any exercise of Options on any Conversion Date, 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for such Options; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, the Notice Deadline is 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date; provided, further , that notwithstanding the foregoing, any Notice of Exercise and the related automatic exercise of the related Options shall be effective if given after the relevant Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this proviso, the Calculation Agent shall have the right to adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs and losses (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline.	
 
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	 		 		  		  		  	Notice of Exercise:	  	Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty must notify Dealer in writing before 5:00 p.m. (New York City time) on the applicable Notice Deadline of (i) the aggregate principal amount of Convertible Notes as to which such Conversion Date has occurred (including, if applicable, whether all or any portion of such Convertible Notes are Convertible Notes as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 14.03 of the Indenture (the “ Make-Whole Convertible Notes ”)), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the settlement method for the related Convertible Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “ Specified Cash Amount ”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (z) Combination Settlement, Dealer shall have received a separate notice (the “ Notice of Final Settlement Method ”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Scheduled Trading Day immediately following the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above; provided , further , that any “Notice of Exercise” or “Notice of Final Settlement Method” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Notice of Exercise or Notice of Final Settlement Method, as the case may be, pursuant to this Confirmation and the terms of such Notice of Exercise or Notice of Final Settlement Method shall apply, mutatis mutandis , to this Confirmation. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.	
 
4

							
        	 		 	Valuation Time:	  	At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.	
				
	 		 	Market Disruption Event:	  	Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following:	
				
	 		 		  	“‘Market Disruption Event’ means, in respect of a Share, (i) a failure by the primary United States national or regional securities exchange or market on which the Shares are listed or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. (New York City time) on any Scheduled Valid Day for the Shares for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Shares or in any options contracts or futures contracts relating to the Shares.”	
			
	 	Settlement Terms .	  		
				
	 		 	Settlement Method:	  	For any Option, Net Share Settlement; provided that if the Relevant Settlement Method set forth below for such Option is not Net Share Settlement, then the Settlement Method for such Option shall be such Relevant Settlement Method, but only if Counterparty shall have notified Dealer of the Relevant Settlement Method in the Notice of Exercise or Notice of Final Settlement Method, as applicable, for such Option.	
				
	 		 	Relevant Settlement Method:	  	In respect of any Option:	
				
	 		 		  	(i) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note (A) entirely in Shares pursuant to Section 14.02(a)(v)(A) of the Indenture (together with cash in lieu of fractional Shares) (such settlement method, “ Settlement in Shares ”), (B) in a combination of cash and Shares pursuant to Section 14.02(a)(v)(C) of the Indenture with a Specified Cash Amount less than USD 1,000 (such settlement method, “ Low Cash Combination Settlement ”) or (C) in a combination of cash and Shares pursuant to Section 14.02(a)(v)(C) of the Indenture with a Specified Cash Amount equal to USD 1,000, then, in each case, the Relevant Settlement Method for such Option shall be Net Share Settlement;	
				
	 		 		  	(ii) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in a combination of cash and Shares pursuant to Section 14.02(a)(v)(C) of the Indenture with a Specified Cash Amount greater than USD 1,000, then the Relevant Settlement Method for such Option shall be Combination Settlement; and	
 
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	  		  		  	(iii) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note entirely in cash pursuant to Section 14.02(a)(v)(B) of the Indenture (such settlement method, “ Settlement in Cash ”), then the Relevant Settlement Method for such Option shall be Cash Settlement.	
				
	  		  	Net Share Settlement:	  	If Net Share Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement Date for each such Option, a number of Shares (the “ Net Share Settlement Amount ”) equal to the sum, for each Valid Day during the Settlement Averaging Period for each such Option, of (i) (a) the Daily Option Value for such Valid Day, divided by (b) the Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Net Share Settlement Amount for any Option exceed a number of Shares equal to the Applicable Limit for such Option divided by the Applicable Limit Price on the Settlement Date for such Option.	
				
	  		  		  	Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Net Share Settlement Share Amount valued at the Relevant Price for the last Valid Day of the applicable Settlement Averaging Period.	
				
	  		  	Combination Settlement:	  	If Combination Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will pay and/or deliver, as the case may be, to Counterparty, on the relevant Settlement Date for each such Option:	
					
	  		  		  	(i)	  	cash (the “ Combination Settlement Cash Amount ”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (A) an amount for such Valid Day (the “ Daily Combination Settlement Cash Amount ”) equal to the lesser of (1) the Specified Cash Amount minus USD 1,000 and (2) the Daily Option Value for such Valid Day, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in clause (A) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Cash Amount for such Valid Day shall be deemed to be zero; and	
 
6

							
	  		  		  	(ii)  Shares (the “ Combination Settlement Share Amount ”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of a number of Shares for such Valid Day (the “ Daily Combination Settlement Share Amount ”) equal to (A) (1) the Daily Option Value on such Valid Day minus the Daily Combination Settlement Cash Amount for such Valid Day, divided by (2) the Relevant Price on such Valid Day, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in sub-clause (A)(1) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Share Amount for such Valid Day shall be deemed to be zero;	
				
	  		  		  	provided that in no event shall the sum of (x) the Combination Settlement Cash Amount for any Option and (y) the Combination Settlement Share Amount for such Option multiplied by the Applicable Limit Price on the Settlement Date for such Option, exceed the Applicable Limit for such Option.	
				
	  		  		  	Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Combination Settlement Share Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period.	
				
	  		  	Cash Settlement:	  	If Cash Settlement is applicable to any Option exercised or deemed exercised hereunder, in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for each such Option, an amount of cash (the “ Cash Settlement Amount ”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period.	
				
	  		  	Daily Option Value:	  	For any Valid Day, an amount equal to (i) the Option Entitlement on such Valid Day, multiplied by (ii) the Relevant Price on such Valid Day less the Strike Price on such Valid Day; provided that if the calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Valid Day shall be deemed to be zero. In no event will the Daily Option Value be less than zero.	
				
	  		  	Make-Whole Adjustment:	  	Notwithstanding anything to the contrary herein, in respect of any exercise of Options relating to a conversion of Convertible Notes for which additional Shares will be added to the “Conversion Rate” (as defined in the Indenture) as determined pursuant to Section 14.03 of the Indenture, the Daily Option Value shall be calculated as if the Option Entitlement included such additional Shares as determined with reference to the adjustment set forth in such Section 14.03 of the Indenture; provided that if the sum of (i) the product of (a) the number of Shares (if any) deliverable by Dealer to Counterparty per exercised Option and (b) the Applicable Limit Price on the Settlement Date and (ii) the amount of cash (if any) payable by Dealer to Counterparty per exercised Option would otherwise exceed the amount per Option, as determined by the Calculation Agent, that would be payable by Dealer under Section 6 of the Agreement if (x) the relevant Conversion Date were an Early Termination Date resulting from an Additional Termination Event with respect to which the Transaction was the sole Affected Transaction and Counterparty was the sole Affected Party and (y) Section 14.03 of the Indenture were deleted, then each Daily Option Value shall be proportionately reduced to the extent necessary to eliminate such excess.	
 
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	  		  	Applicable Limit:	  	For any Option, an amount of cash equal to the excess of (i) the aggregate of (A) the amount of cash, if any, paid to the Holder of the related Convertible Note upon conversion of such Convertible Note and (B) the number of Shares, if any, delivered to the Holder of the related Convertible Note upon conversion of such Convertible Note, in each case, pursuant to the terms of the Indenture multiplied by the Applicable Limit Price on the Settlement Date for such Option, over (ii) USD 1,000.	
				
	  		  	Applicable Limit Price:	  	On any day, the opening price as displayed under the heading “Op” on Bloomberg page IPXL <equity> (or any successor thereto).	
				
	  		  	Valid Day:	  	A day on which (i) there is no Market Disruption Event and (ii) trading in the Shares generally occurs on the Exchange or, if the Shares are not then listed on the Exchange, on the principal other United States national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a United States national or regional securities exchange, on the principal other market on which the Shares are then listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Valid Day” means a Business Day.	
				
	  		  	Scheduled Valid Day:	  	A day that is scheduled to be a Valid Day on the principal United States national or regional securities exchange or market on which the Shares are listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Scheduled Valid Day” means a Business Day.	
				
	  		  	Business Day:	  	Any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.	
				
	  		  	Relevant Price:	  	On any Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page IPXL <equity> AQR (or its equivalent successor if such page is not available) in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time of the Exchange on such Valid Day (or if such volume-weighted average price is unavailable at such time, the market value of one Share on such Valid Day, as determined by the Calculation Agent using, if practicable, a volume-weighted average method). The Relevant Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.	
 
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	  		  	Settlement Averaging Period:	  	For any Option and regardless of the Settlement Method applicable to such Option:	
				
	  		  		  	(i) if the related Conversion Date occurs prior to the Free Convertibility Date, the 40 consecutive Valid Days commencing on, and including, the second Valid Day following such Conversion Date; provided that if the Notice of Exercise for such Option specifies that Settlement in Shares or Low Cash Combination Settlement applies to the related Convertible Note, the Settlement Averaging Period shall be the 80 consecutive Valid Day period commencing on, and including, the second Valid Day immediately following such Conversion Date; or	
				
	  		  		  	(ii)  if the related Conversion Date occurs on or following the Free Convertibility Date, the 40 consecutive Valid Days commencing on, and including, the 42 nd Scheduled Valid Day immediately prior to the Expiration Date; provided that if the Notice of Exercise or Notice of Final Settlement Method, as applicable, for such Option specifies that Settlement in Shares or Low Cash Combination Settlement applies to the related Convertible Note, the Settlement Averaging Period shall be the 80 consecutive Valid Days commencing on, and including, the 82 nd Scheduled Valid Day immediately prior to the Expiration Date.	
				
	  		  	Settlement Date:	  	For any Option, the third Business Day immediately following the final Valid Day of the Settlement Averaging Period for such Option.	
				
	  		  	Settlement Currency:	  	USD	
				
	  		  	Other Applicable Provisions:	  	The provisions of Sections 9.1(c), 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Settled”. “Share Settled” in relation to any Option means that Net Share Settlement or Combination Settlement is applicable to that Option.	
				
	  		  	Representation and Agreement:	  	Notwithstanding anything to the contrary in the Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge that (i) any Shares delivered to Counterparty shall be, upon delivery, subject to restrictions and limitations arising from Counterparty’s status as issuer of the Shares under applicable securities laws, (ii) Dealer may deliver any Shares required to be delivered hereunder in certificated form in lieu of delivery through the Clearance System and (iii) any Shares delivered to Counterparty may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “ Securities Act ”)).	
 
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3.	  	Additional Terms applicable to the Transaction.	  		
			
	  	Adjustments applicable to the Transaction:	  		
				
	  		  	Potential Adjustment Events:	  	Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that would result in an adjustment under the Indenture to the “Conversion Rate” or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price”, “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture). For the avoidance of doubt, Dealer shall not have any delivery or payment obligation hereunder, and no adjustment shall be made to the terms of the Transaction, on account of (x) any distribution of cash, property or securities by Counterparty to holders of the Convertible Notes (upon conversion or otherwise) or (y) any other transaction in which holders of the Convertible Notes are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to the fourth sentence of the first paragraph of Section 14.04(c) of the Indenture or the fourth sentence of Section 14.04(d) of the Indenture).	
				
	  		  	Method of Adjustment:	  	Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent, in a commercially reasonable manner and in consultation with Counterparty, shall make a corresponding adjustment to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Potential Adjustment Event.	
				
	  		  		  	Notwithstanding the foregoing and “Consequences of Merger Events” below, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 14.05 of the Indenture, Section 14.07 of the Indenture or any supplemental indenture entered into thereunder or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner and in consultation with Counterparty; provided, further , that, notwithstanding the foregoing, if any Potential Adjustment Event occurs during the Settlement Averaging Period but no adjustment was made to any Convertible Note under the Indenture because the relevant Holder (as such term is defined in the Indenture) was deemed to be a record owner of the underlying Shares on the related Conversion Date, then the Calculation Agent shall make an adjustment, as determined by it, to the terms hereof in order to account for such Potential Adjustment Event in a commercially reasonable manner and in consultation with Counterparty.	
 
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	  		  	Dilution Adjustment Provisions:	  	Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture.	
			
	  	Extraordinary Events applicable to the Transaction:	  		
				
	  		  	Merger Events:	  	Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 14.07 of the Indenture.	
				
	  		  	Tender Offers:	  	Not applicable.	
				
	  		  	Consequences of Merger Events:	  	Subject to Section 9(bb) below and notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent, in a commercially reasonable manner and in consultation with Counterparty, shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event, subject to the second paragraph under “Method of Adjustment”; provided , however , that no adjustment shall be made in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision.	
				
	  		  	Nationalization, Insolvency or Delisting:	  	Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange.	
 
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	  	Restrictions on Adjustments:	  	Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 14.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise.	
			
	  	Additional Disruption Events:	  		
				
	  		  	Change in Law:	  	Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the word “Shares” with the phrase “Hedge Positions” in clause (X) thereof and (ii) inserting the parenthetical “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” at the end of clause (A) thereof.	
				
	  		  	Failure to Deliver:	  	Applicable	
				
	  		  	Hedging Disruption:	  	Applicable; provided that,	
				
	  		  		  	(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following two phrases at the end of such Section:	
				
	  		  		  	“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and	
				
	  		  		  	(ii)  Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.	
				
	  		  	Increased Cost of Hedging:	  	Applicable	
				
	  		  	Hedging Party:	  	For all applicable Additional Disruption Events, Dealer.	
		
Determining Party:	  	For all applicable Extraordinary Events, Dealer.	
			
Non-Reliance:	  	Applicable.	  		
			
Agreements and Acknowledgments Regarding Hedging Activities:	  	Applicable	  		
			
Additional Acknowledgments:	  	Applicable	  		
 
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4.	  	Calculation Agent.	  	Dealer, whose judgments, determinations and calculations shall be made in good faith and in a commercially reasonable manner; provided that, following the occurrence and during the continuance of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, if the Calculation Agent fails to timely make any calculation, adjustment or determination required to be made by the Calculation Agent hereunder or to perform any obligation of the Calculation Agent hereunder and such failure continues for five (5) Exchange Business Days following notice to the Calculation Agent by Counterparty of such failure, Counterparty shall have the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a request by Counterparty, the Calculation Agent shall promptly (but in any event within five Scheduled Trading Days) provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation (including any assumptions used in making such determination or calculation), it being understood that the Calculation Agent shall not be obligated to disclose any proprietary models or proprietary or confidential information used by it for such determination or calculation.	
 
5. 	Account Details .	
 
 	(a)	Account for payments to Counterparty:	
To be provided by Counterparty.
Account for delivery of Shares to Counterparty:
To be provided by Counterparty.
 
 	(b)	Account for payments to Dealer:	
ABA: 021000021
JP Morgan Chase NY (CHASUS33)
A/C Royal Bank of Canada, NY Branch (ROYCUS3X)
A/C#: 920-1-033363
FFC A/C Name: RBC US Transit
FFC A/C#: 012692041499
Reference: Impax Laboratories, Inc.
Account for delivery of Shares from Dealer:
To be provided by Dealer.
 
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6. 	Offices .	
 
 	(a)	The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party.	
 
 	(b)	The Office of Dealer for the Transaction is: New York	
Royal Bank of Canada
c/o RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Attention:            Structured Derivatives Documentation
Telephone:          (212) 858-7000
Facsimile:           (212) 428-3053
 
7. 	Notices .	
 
 	(a)	Address for notices or communications to Counterparty:	
Impax Laboratories, Inc.
30831 Huntwood Avenue
Hayward, CA 94544
Attention:            Mark Schlossberg, SVP & General Counsel
Telephone No.:    (510) 240-6000
Facsimile No.:     (510) 240-6096
Address for notices or communications to Dealer:
Royal Bank of Canada
c/o RBC Capital Markets, LLC
3 World Financial Center
200 Vesey Street
New York, New York 10281
Attention:            Structured Derivatives Documentation
Telephone:          (212) 858-7000
Facsimile:           (212) 428-3053
Email:                 RBCECMCorporateEquityLinkedDocumentation@rbc.com
 
8. 	Representations and Warranties of Counterparty .	
Other than for purposes of Section 5(a)(iv) of the Agreement, each of the representations and warranties of Counterparty set forth in Section 3 of the Purchase Agreement (the “ Purchase Agreement ”), dated as of June 25, 2015, between Counterparty and RBC Capital Markets, LLC, as representative of the initial purchasers party thereto (the “ Initial Purchasers ”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
 
 	(a)	Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.	
 
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 	(b)	Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.	
 
 	(c)	No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.	
 
 	(d)	Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.	
 
 	(e)	Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).	
 
 	(f)	Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.	
 
 	(g)	To Counterparty’s knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares.	
 
 	(h)	Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.	
 
 	(i)	Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share , ASC Topic 815, Derivatives and Hedging , or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.	
 
 	(j)	Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.	
 
 	(k)	(A) Counterparty is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary, (B) Counterparty is not relying on any communication (written or oral) of Dealer or any of its affiliates as investment advice or as a recommendation to enter into the Transaction (it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction) and (C) no communication (written or oral) received from Dealer or any of its affiliates shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.	
 
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9. 	Other Provisions .	
 
 	(a) 	Opinions . Counterparty shall deliver to Dealer one or more opinions of counsel, dated as of the Premium Payment Date, given by Latham & Watkins LLP, with respect to the matters set forth in Sections 8(a) through (c) of this Confirmation; provided that any such opinion of counsel may contain customary exceptions and qualifications. 1 Delivery of such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement. In addition, in connection with the entry into or consummation of any Redomicile Transaction, Counterparty shall deliver to Dealer an opinion of counsel (subject to customary qualifications, assumptions and exceptions), dated as of the date of such Redomicile Transaction, with respect to the matters set forth in Sections 8(a) through (c) of this Confirmation (except the reference in Section 8(b) to “any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” shall be replaced with “any agreement or instrument to which Counterparty or its subsidiaries is a party or to which Counterparty or any of its subsidiaries is subject”). “ Redomicile Transaction ” meansany Merger Event (as such term is defined in Section 12.1(b) of the Equity Definitions without regard to any amendment to such definition in this Confirmation), reincorporation of Counterparty, corporate redomiciliation of Counterparty or similar transaction pursuant to which (x) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of a corporation that is not organized under the laws of the United States, any State thereof or the District of Columbia or (y) the Counterparty following such Merger Event, reincorporation of Counterparty, corporate redomiciliation of Counterparty or similar transaction is not a corporation or is incorporated in a jurisdiction other than the United States, any State thereof or the District of Columbia.	
 
 	(b) 	Repurchase Notices . Counterparty shall, on any day on which Counterparty effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “ Repurchase Notice ”) on such day if following such repurchase, the number of outstanding Shares as determined on such day is (i) less than 69.09 million (in the case of the first such notice) or (ii) thereafter more than 2.43 million less than the number of Shares included in the immediately preceding Repurchase Notice. Counterparty agrees to indemnify and hold harmless Dealer and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “ Indemnified Person ”) from and against any and all losses (including losses relating to Dealer’s hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable expenses (including reasonable attorney’s fees), joint or several, which an Indemnified Person may become subject to, in each case, as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Counterparty may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding. Counterparty shall not be liable for any settlement of any such proceeding contemplated by this paragraph that is effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Counterparty shall not, without the prior written consent of the Indemnified Person, effect any settlement of such proceeding that is pending or threatened in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities. The remedies provided for in this paragraph (b) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction.	

1  	NTD: Opinion scope to be agreed orally between DPW and LW.	
 
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 	(c) 	Regulation M . Counterparty is not on the Trade Date engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), of any securities of Counterparty, other than a distribution meeting the requirements of the exception set forth in Rules 101(b) and 102(b) of Regulation M. Counterparty shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution.	
 
 	(d) 	Rule 10b-18. On the Trade Date neither Counterparty nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“ Rule 10b-18 ”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares.	
 
 	(e) 	Resolutions . On or prior to the Trade Date, Counterparty shall deliver to Dealer a resolution of Counterparty’s board of directors authorizing the Transaction.	
 
 	(f) 	Solvency . On each of the Trade Date and the Premium Payment Date, Counterparty is not, or will not be, “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “ Bankruptcy Code ”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the corporate laws of the jurisdiction of its incorporation.	
 
 	(g) 	Private Placement . Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act, by virtue of Section 4(a)(2) thereof. Accordingly, Counterparty represents and warrants to Dealer that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof and (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws.	
 
 	(h) 	No Manipulation . Counterparty is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Exchange Act.	
 
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 	(i) 	Transfer or Assignment .	
 
 	(i)	Counterparty shall have the right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “ Transfer Options ”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:	
 
 	(A)	With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to Section 9(b) or any obligations under Section 9(r) or 9(w) of this Confirmation;	
 
 	(B)	[Reserved]	
 
 	(C)	Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested and reasonably satisfactory to Dealer;	
 
 	(D)	Dealer will not, as a result of such transfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer and assignment;	
 
 	(E)	An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;	
 
 	(F)	Without limiting the generality of clause (B), Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and	
 
 	(G)	Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.	
 
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 	(ii)	Dealer may, without Counterparty’s consent, transfer or assign all or any part of its rights or obligations under the Transaction (A) to any affiliate of Dealer that is a dealer as defined under Section 475(c)(i) of the Code (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a full and unconditional customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) to any other third party that is a dealer as defined under Section 475(c)(i) of the Code with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its successor (“ S&P ”), or A3 by Moody’s Investor Service, Inc. (“ Moody’s ”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer. If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “ Excess Ownership Position ”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options in accordance with the preceding sentence on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “ Terminated Portion ”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(p) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “ Section 16 Percentage ” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and each person subject to aggregation of Shares with Dealer under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) and (B) the denominator of which is the number of Shares outstanding. The “ Option Equity Percentage ” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “ Share Amount ” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “ Dealer Person ”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“ Applicable Restrictions ”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “ Applicable Share Limit ” means a number of Shares equal to (A) the minimum number of Shares that gives rise to reporting or registration obligations (except for any filings on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in a material adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.	
 
 	(iii)	Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities, or make or receive any payment in cash, to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities, or to make or receive such payment in cash, and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.	
 
 	(j) 	Staggered Settlement . If upon advice of counsel with respect to applicable legal and regulatory requirements, including any requirements relating to Dealer’s hedging activities hereunder, Dealer reasonably determines that it would not be advisable to deliver, or to acquire Shares to deliver, any or all of the Shares to be delivered by Dealer on any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “ Nominal Settlement Date ”), elect to deliver the Shares on two or more dates (each, a “ Staggered Settlement Date ”) as follows:	
 
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 	(i)	in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date;	
 
 	(ii)	the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date; and	
 
 	(iii)	if the Net Share Settlement terms or the Combination Settlement terms set forth above were to apply on the Nominal Settlement Date, then the Net Share Settlement terms or the Combination Settlement terms, as the case may be, will apply on each Staggered Settlement Date, except that the Shares otherwise deliverable on such Nominal Settlement Date will be allocated among such Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above.	
 
 	(k) 	Ratings Decline . If at any time prior to the “Stockholder Approval Date” (as defined in the Indenture) the long term, unsecured and unsubordinated indebtedness of Dealer is rated Ba1 or lower by Moody’s or BB+ or lower by S&P (any such rating, a “ Ratings Downgrade ”), then Counterparty may, at any time following the occurrence and during the continuation of such Ratings Downgrade, provide written notice to Dealer specifying that it elects for this Section 9(k) to apply (a “ Trigger Notice ”). Upon receipt by Dealer of a Trigger Notice from Counterparty, Dealer shall promptly elect that either (i) the parties shall negotiate in good faith terms for collateral arrangements pursuant to which Dealer is required to provide collateral (including, but not limited to, equity or equity-linked securities issued by Counterparty) to Counterparty in respect of the Transaction with a value equal to the full mark-to-market exposure of Counterparty under the Transaction, as determined by Dealer in a good faith commercially reasonable manner, or (ii) an Additional Termination Event shall occur and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, and (B) the Transaction shall be the sole Affected Transaction.	
 
 	(l) 	Role of Agent . Dealer has appointed, as its agent, its indirect wholly-owned subsidiary, RBC Capital Markets, LLC (“ RBCCM ”), for purposes of conducting, on Dealer’s behalf, a business in privately negotiated transactions in options and other derivatives. Counterparty hereby is advised that Dealer, the principal and stated counterparty in such transactions, duly has authorized RBCCM to market, structure, negotiate, document, price, execute and hedge transactions in over-the-counter derivative products. RBCCM does not act as agent of Counterparty. For the avoidance of doubt, any performance by Dealer of its obligations hereunder solely to RBCCM shall not relieve Dealer of such obligations. RBCCM’s performance to Counterparty of Dealer’s obligations hereunder shall relieve Dealer of such obligations to the extent of such performance. Any performance by Counterparty of its obligations (including notice obligations) through or by means of RBCCM’s agency for Dealer shall constitute good performance of Counterparty’s obligations hereunder to Dealer.	
 
 	(m) 	Additional Termination Events .	
 
 	(i)	If an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the terms of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Exchange Business Day as an Early Termination Date pursuant to Section 6(b) of the Agreement (which Exchange Business Day shall be on or as promptly as reasonably practicable after the occurrence of such acceleration).	
 
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 	(ii)	Within five Scheduled Trading Days promptly following any Repayment Event (as defined below), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “ Repayment Notice ”); provided that, any “Repayment Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis , to this Confirmation. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this paragraph. Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “ Repayment Options ”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the number of Repayment Options (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated), and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “ Repayment Unwind Payment ”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction. “ Repayment Event ” means that (i) any Convertible Notes are repurchased (whether in connection with or as a result of a fundamental change, howsoever defined, or for any other reason) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty or any of its subsidiaries in exchange for delivery of any property or assets of such party (howsoever described), (iii) any principal of any of the Convertible Notes is repaid prior to the final maturity date of the Convertible Notes (for any reason other than as a result of an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to the preceding Section (m)(i)), or (iv) any Convertible Notes are exchanged by or for the benefit of the holders thereof for any other securities of Counterparty or any of its subsidiaries (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction. For the avoidance of doubt, any conversion of Convertible Notes pursuant to the terms of the Indenture shall not constitute a Repayment Event.	
 
 	(n) 	Amendments to Equity Definitions .	
 
 	(i)	Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the ISDA Master Agreement with respect to that Issuer.”	
 
 	(ii)	Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section.	
 
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 	(o) 	Setoff . Each party waives any and all rights it may have to set off obligations arising under the Agreement and the Transaction against other obligations between the parties, whether arising under any other agreement, applicable law or otherwise.	
 
 	(p) 	Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events . If (a) an Early Termination Date (whether as a result of an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result of (i) a Nationalization, Insolvency or Merger Event in which the consideration to be paid to holders of Shares consists solely of cash, (ii) a Merger Event that is within Counterparty’s control, or (iii) an Event of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the Affected Party other than an Event of Default of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type described in Section 5(b) of the Agreement, in each case that resulted from an event or events outside Counterparty’s control), and if Dealer would owe any amount to Counterparty pursuant to Section 6(d)(ii) of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “ Payment Obligation ”), then Dealer shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below), unless (a) Counterparty gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the Merger Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) Counterparty remakes the representation set forth in Section 8(f) as of the date of such election and (c) Dealer agrees, such agreement not to be unreasonably withheld, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of Section 6(d)(ii) of the Agreement, as the case may be, shall apply.	

	  	Share Termination Alternative:	  	If applicable, Dealer shall deliver to Counterparty the Share Termination Delivery Property on, or within a commercially reasonable period of time after, the date when the relevant Payment Obligation would otherwise be due pursuant to Sections 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable, in satisfaction of such Payment Obligation in the manner reasonably requested by Counterparty free of payment.	
			
	  	Share Termination Delivery Property:	  	A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.	
			
	  	Share Termination Unit Price:	  	The value to Dealer of property contained in one Share Termination Delivery Unit, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation. For the avoidance of doubt, the parties agree that in determining the Share Termination Delivery Unit Price the Calculation Agent may consider the purchase price paid in connection with the purchase of Share Termination Delivery Property.	
 
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	  	Share Termination Delivery Unit:	  	One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “ Exchange Property ”), a unit consisting of the type and amount of such Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event, as determined by the Calculation Agent.	
			
	  	Failure to Deliver:	  	Applicable	
			
	  	Other applicable provisions:	  	If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9 and 9.11 (as modified above) of the Equity Definitions and the provisions set forth opposite the caption “Representation and Agreement” in Section 2 will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.	
 
 	(q) 	Waiver of Jury Trial . Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of either party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided herein.	
 
 	(r) 	Registration . Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer, the Shares (“ Hedge Shares ”) acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the public market by Dealer without registration under the Securities Act, Counterparty shall, at its election, either (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act and enter into an agreement, substantially similar to underwriting agreements customary for registered secondary offerings of a substantially similar size, in form and substance reasonably satisfactory to Dealer; provided , however , that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this paragraph shall apply at the election of Counterparty, (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities of a substantially similar size, in form and substance reasonably satisfactory to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement), or (iii) purchase the Hedge Shares from Dealer at the Relevant Price on such Exchange Business Days, and in the amounts, requested by Dealer.	
 
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 	(s) 	Tax Disclosure . Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.	
 
 	(t) 	Right to Extend . Dealer may postpone or add, in whole or in part, any Valid Day or Valid Days during the Settlement Averaging Period or any other date of valuation, payment or delivery by Dealer, with respect to some or all of the Options hereunder, if Dealer reasonably determines, based on the advice of counsel, that such action is reasonably necessary or appropriate to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions that are materially different from those in existence as of the Trade Date or to enable Dealer to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer; provided that no such Valid Day or other date of valuation, payment or delivery may be postponed or added more than 50 Valid Days after the original Valid Day or other date of valuation, payment or delivery, as the case may be.	
 
 	(u) 	Status of Claims in Bankruptcy . Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Counterparty with respect to the Transaction that are senior to the claims of common stockholders of Counterparty in any United States bankruptcy proceedings of Counterparty; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Counterparty of its obligations and agreements with respect to the Transaction; provided , further , that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.	
 
 	(v) 	Securities Contract; Swap Agreement . The parties hereto intend for (i) the Transaction to be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code.	
 
 	(w) 	Notice of Certain Other Events . Counterparty covenants and agrees that:	
 
 	(i)	promptly following the public announcement of the results of any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, Counterparty shall give Dealer written notice of (x) the weighted average of the types and amounts of consideration that holders of Shares have elected to receive upon consummation of such Merger Event or (y) if no holders of Shares affirmatively make such election, the types and amounts of consideration actually received by holders of Shares (the date of such notification, the “ Consideration Notification Date ”); provided that in no event shall the Consideration Notification Date be later than the date on which such Merger Event is consummated; and	
 
 	(ii)	promptly following any adjustment to the Convertible Notes in connection with any Potential Adjustment Event or Merger Event, Counterparty shall give Dealer written notice of the details of such adjustment.	
 
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 	(x) 	Wall Street Transparency and Accountability Act . In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“ WSTAA ”), the parties hereby agree that neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption, Increased Cost of Hedging, an Excess Ownership Position, or Illegality (as defined in the Agreement)).	
 
 	(y) 	Agreements and Acknowledgements Regarding Hedging . Counterparty understands, acknowledges and agrees that: (A) at any time on and prior to the Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the Transaction; (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Relevant Prices; and (D) any market activities of Dealer and its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Relevant Prices, each in a manner that may be adverse to Counterparty.	
 
 	(z) 	Early Unwind . In the event the sale of the “Option Securities” (as defined in the Purchase Agreement) is not consummated with the Initial Purchasers for any reason, or Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, the “ Early Unwind Date ”),the Transaction shall automatically terminate (the “ Early Unwind ”)on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date. Each of Dealer and Counterparty represents and acknowledges to the other that, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.	
 
 	(aa) 	Payment by Counterparty . In the event that, following payment of the Premium, (i) an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Counterparty owes to Dealer an amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty owes to Dealer, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero.	
 
 	(bb) 	Redomicile Transaction . Counterparty shall not enter into or consummate any Redomicile Transaction unless:	
 
 	(i)	Counterparty will be a corporation incorporated under the laws of the United States or any state thereof and a wholly-owned direct or indirect subsidiary of a successor Issuer immediately following such Redomicile Transaction, such successor Issuer fully and unconditionally guarantees the obligations of Counterparty under this Confirmation (the “ Guaranteed Obligations ”) and repeats to Dealer immediately following such Redomicile Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (w) “Transaction” were replaced with “guarantee of the Guaranteed Obligations”, (x) “Counterparty” were replaced with “Issuer”, (y) “Confirmation” were replaced with “guarantee of the Guaranteed Obligations”) and (z) “any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” in Section 8(b) were replaced with “any agreement or instrument to which Issuer or its subsidiaries is a party or to which Issuer or any of its subsidiaries is subject”; or	
 
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 	(ii)	the successor Issuer immediately following such Redomicile Transaction assumes Counterparty’s rights and obligations hereunder, becoming the “Counterparty” for all purposes hereunder, and such successor Counterparty immediately following such Redomicile Transaction repeats to Dealer immediately following such Redomicile Transaction the representations and warranties set forth in Sections 8(a), 8(b) and 8(c) of this Confirmation (as if references therein to (w) “execute, deliver” were replaced with “assume”, (x) “execution, delivery” and “execution and delivery” were replaced with “assumption”, (y) “executed and delivered” were replaced with “assumed” and (z) “any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2014, as updated by any subsequent filings” in Section 8(b) were replaced with “any agreement or instrument to which Counterparty or its subsidiaries is a party or to which Counterparty or any of its subsidiaries is subject”).	
Notwithstanding anything to the contrary in this Confirmation, following consummation of any Redomicile Transaction pursuant to which Issuer following such Redomicile Transaction is organized under the laws of a jurisdiction other than the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United Kingdom, then such Redomicile Transaction shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.
If, at any time following the occurrence of any Redomicile Transaction, Dealer reasonably determines in its good faith judgment, following consultation with Counterparty for a period of at least five Scheduled Trading Days (such consultation period, the “ Redomicile Event Consultation Period ”), that (i) (x) such Redomicile Transaction has had a material adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased (as compared with circumstances existing on the Trade Date) amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) and (ii) Dealer cannot promptly avoid the occurrence of each such material adverse effect or increased tax, duty, expense or fee by (x) transferring or assigning Dealer’s rights and obligations under this Confirmation and the Agreement without Counterparty’s consent pursuant to Section 9(i) to an affiliate of Dealer that would not suffer any such material adverse effect or increased tax, duty, expense or fee (it being understood that Dealer need not take any action that does not meet the Avoidance Criteria), (y) using commercially reasonable efforts to avoid such material adverse effect or increased tax, duty, expense or fee (it being understood that Dealer need not take any action that does not meet the Avoidance Criteria) or (z) amending the terms of this Confirmation (whether because amendments would not avoid such occurrence or because Counterparty fails to agree promptly to such amendments) (it being understood, for the avoidance of doubt, that an event described in clause (i)(x) or clause (i)(y) above for which Dealer can avoid the occurrence of the relevant material adverse effect or increased tax, duty, expense or fee after giving effect to the related Price Adjustment referred to below shall be a Redomicile Event notwithstanding this clause (ii)(z)) (each of the events described in clause (i)(x) and clause (i)(y) above that also satisfies the conditions set forth in clause (ii) above, a “ Redomicile Event ”), then, in either case, Dealer shall give prompt notice to Counterparty of such Redomicile Event.
 
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“ Avoidance Criteria ” means with respect to an action by a party, as determined by the Calculation Agent in good faith, that (i) such action is legal (and, in the case of a Change in Law, in the reasonable judgment of Dealer is within the intent of the law or regulation that is the subject of the Change in Law) and complies with all applicable regulations, rules (including by self-regulatory organizations) and policies (whether written or oral) including policies of such party, (ii) such action would not cause or, in the judgment of Dealer, would not create a material risk of causing, an Additional Disruption Event (ignoring, for this purpose, any requirement to avoid such Additional Disruption Event as set forth herein), (iii) if such party or an affiliate is to establish one or more alternative Hedge Positions, there is sufficient liquidity in those alternative Hedge Positions available for that Hedging Party to hedge the Transaction and all other transactions into which that party has entered and for which that party determines that it needs to utilize those alternative Hedge Positions, (iv) such action is known by that party or known by other financial institutions that are leading derivatives dealers that are generally willing to enter into transactions similar to the Transaction; (v) by taking such action, such party would not incur, or there would not be a material risk that such party would incur, any one or more of an increased operational or administrative burden or expense, increased performance cost, increased hedging cost or increased capital charges (in each case as compared to circumstances on the Trade Date), (vi) such action would not require such party to (A) enter into arrangements with a counterparty, custodian, depositary and/or other third party that has no existing business relationship with that party in relation to positions, contracts, instruments, transactions, or other arrangements similar in type to such action or (B) exceed, individually or together with any other positions, contracts, transactions, instruments or other arrangements into which such party has entered (individually or on a portfolio basis), investment quotas, position limits, investment level restrictions, internal client limits, credit limits or risk-based requirements of such party, in each case, existing as of the Trade Date and regardless of whether imposed by law, governmental authority or regulation, and (vii) by taking such action, it would not be necessary for that party to make any filing or submission to any government or regulatory authority (including a taxing authority) and (viii) as applied to an avoidance of an Excess Ownership Position, such action does not cause, or would not create a material risk of causing, an interference or disruption to such party’s normal business practice or client service including, without limitation, market-making, trust or custody service.
Concurrently with delivering such notice, Dealer shall give notice to Counterparty of a commercially reasonable Price Adjustment that Dealer determines, in its good faith, commercially reasonable judgment, appropriate to account for the economic effect on the Transaction of such Redomicile Event and provide Counterparty with supporting documentation for such Price Adjustment (unless Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, in which case Dealer shall so notify Counterparty). Unless Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, within two Scheduled Trading Days of receipt of such notice, Counterparty shall notify Dealer that it agrees that Dealer’s determination of Price Adjustment is commercially reasonable (and Counterparty shall be deemed to have repeated the representation set forth in Section 8(f) of this Confirmation as of the date of such election). If Counterparty fails to give such notice to Dealer of its election by the end of that second Scheduled Trading Day, or if Dealer determines in its good faith, commercially reasonable judgment that no Price Adjustment will produce a commercially reasonable result, then such failure or such determination, as the case may be, shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (1) Counterparty shall be deemed to be the sole Affected Party, (2) the Transaction shall be the sole Affected Transaction and (3) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. For the avoidance of doubt, the parties hereto agree and acknowledge that the occurrence of a Redomicile Event shall not preclude the occurrence of one or more additional, subsequent Redomicile Events, it being understood and agreed that any Price Adjustment described in clause (A) above and/or any payment described in clause (B) above shall be calculated without duplication in respect of any prior such Price Adjustment and/or payment. For purposes of the foregoing, Dealer will be deemed to have not determined that no Price Adjustment will produce a commercially reasonable result unless Dealer has consulted with Counterparty regarding such Price Adjustment determination for a period of at least five Scheduled Trading Days (it being understood that such consultation period may run concurrently with the Redomicile Event Consultation Period for the related Redomicile Event if Counterparty receives notice of such Price Adjustment determination prior to the start of such Redomicile Event Consultation Period).
 
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 	(cc) 	U.S. Federal Withholding Tax . If Counterparty transfers or assigns its rights and obligations hereunder with respect to the Options to a person that is not a United States person (as defined in the Code), the term “Indemnifiable Tax” as defined in Section 14 of the Agreement shall not include any U.S. federal withholding tax including, but not limited to (i) any tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “ FATCA Withholding Tax ”), (ii) any tax imposed on amounts treated as dividends from sources within the United States under Section 871(m) of the Code (or the United States Treasury Regulations or other guidance issued thereunder), or (iii) any tax imposed on amounts treated as distributions of property under Section 305 of the Code. For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.	
 
 	(dd) 	Part 2(b) of the ISDA Schedule – Payee Representation .	
 
 	(i)	For the purpose of Section 3(f) of this Agreement, Counterparty makes the following representation to Dealer:	
Counterparty is a corporation established under the laws of the State of Delaware and is a “United States person” (as that term is defined in Section 7701(a)(30) of the Code).
 
 	(ii)	For the purpose of Section 3(f) of this Agreement, Dealer makes the following representation to Counterparty:	
Each payment received or to be received by it in connection with this Agreement is effectively connected with its conduct of a trade or business by Dealer within the United States; and
It is a “foreign person” (as that term is used in Section 1.6041-4(a)(4) of the United States Treasury Regulations) for United States federal income tax purposes.
 
 	(ee) 	Part 3(a) of the ISDA Schedule – Tax Forms :	

 	 	Party Required to
Deliver Document	  	Form/Document/Certificate	  	Date by which to be Delivered	
	 	Counterparty	  	A complete and duly executed United States Internal Revenue Service Form W-9 (or successor thereto.)	  	(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Dealer; and (iii) promptly upon learning that any such Form previously provided by Counterparty has become obsolete or incorrect.	
				
	 	Dealer	  	A complete and duly executed United States Internal Revenue Service Form W-8ECI (or successor thereto)	  	(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Counterparty; and (iii) promptly upon learning that any such Form previously provided by Dealer has become obsolete or incorrect.	
 
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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to Dealer.

							
Very truly yours,	
			
	 		 	ROYAL BANK OF CANADA
by its agent
RBC Capital Markets, LLC	
				
	 		 	By:	 	s/ Dawn T. Laabs	
	 		 	Authorized Signatory	
	 		 	Name:	

Accepted and confirmed
as of the Trade Date:	
	
IMPAX LABORATORIES, INC.	
		
By:	 	s/ Bryan Reasons	
Authorized Signatory	
Name:	
[Additional Bond Hedge Signature Page]

Exhibit 10.19
TERMINATION AGREEMENT
dated as of May 7, 2018
Between IMPAX LABORATORIES, LLC (f/k/a IMPAX LABORATORIES, INC.) and ROYAL
BANK OF CANADA

 
THIS TERMINATION AGREEMENT (this “ Agreement ”) with respect to the Call Spread Confirmations (as defined below) is made as of May 7, 2018, between Impax Laboratories, LLC (formerly known as Impax Laboratories, Inc.) (“ Company ”) and Royal Bank of Canada (“ Dealer ”).
WHEREAS, Company issued $600,000,000 principal amount of 2.00% Convertible Senior Notes due 2022 (the “ Convertible Notes ”) pursuant to an Indenture dated as of June 30, 2015, between Company and Wilmington Trust, National Association, as trustee;
WHEREAS, in connection with the pricing of the Convertible Notes, Company and Dealer entered into (i) a Base Call Option Transaction (the “ Base Call Option Transaction ”) pursuant to an ISDA confirmation dated as of June 25, 2015, which supplements, forms a part of, and is subject to an agreement in the form of the 2002 ISDA Master Agreement, pursuant to which Company purchased from Dealer 500,000 call options (as amended, modified, terminated or unwound from time to time and including the side letter agreement thereto, the “ Base Call Option Confirmation ”) and (ii) a Base Warrants Transaction (the “ Base Warrants Transaction ” and, together with the Base Call Option Transaction, the “ Base Call Spread Transactions ”) pursuant to an ISDA confirmation dated as of June 25, 2015, which supplements, forms a part of, and is subject to an agreement in the form of the 2002 ISDA Master Agreement, pursuant to which Dealer purchased from Company 7,892,900 warrants to purchase shares of Company’s common stock, par value $0.01 per share (the “ Common Stock ”) (as amended, modified, terminated or unwound from time to time and including the side letter agreement thereto, the “ Base Warrants Confirmation ” and, together with the Base Call Option Confirmation, the “ Base Call Spread Confirmations ”);
WHEREAS, in connection with the exercise of the option by the initial purchasers of the Convertible Notes to purchase additional Convertible Notes, Company and Dealer entered into (i) an Additional Call Option Transaction (the “ Additional Call Option Transaction ”) pursuant to an ISDA confirmation dated as of June 26, 2015, which supplements, forms a part of, and is subject to an agreement in the form of the 2002 ISDA Master Agreement, pursuant to which Company purchased from Dealer 100,000 call options (as amended, modified, terminated or unwound from time to time and including the side letter agreement thereto, the “ Additional Call Option Confirmation ”) and (ii) an Additional Warrants Transaction (the “ Additional Warrants Transaction ” and, together with the Additional Call Option Transaction and the Base Call Spread Transactions, the “ Call Spread Transactions ”) pursuant to an ISDA confirmation dated as of June 26, 2015, which supplements, forms a part of, and is subject to an agreement in the form of the 2002 ISDA Master Agreement, pursuant to which Dealer purchased from Company 1,578,580 warrants to purchase shares of Common Stock (as amended, modified, terminated or unwound from time to time and including the side letter agreement thereto, the “ Additional Warrants Confirmation ” and, together with the Additional Call Option Confirmation and the Base Call Spread Confirmations, the “ Call Spread Confirmations ”); and
WHEREAS, in connection with the closing and effectiveness of the transactions contemplated by the Business Combination Agreement dated as of October 17, 2017 by and among Company, Amneal Pharmaceuticals, Inc., Atlas Holdings, Inc., and K2 Merger Sub Corporation, as amended by Amendment No. 1, dated November 21, 2017 and Amendment No. 2 dated December 16, 2017, on May 4, 2018, Company has requested full termination of the Call Spread Transactions;
NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:
1. Defined Terms . Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Call Spread Confirmations.
2. Termination . Notwithstanding anything to the contrary in the Call Spread Confirmations, Company and Dealer agree that, effective on the date hereof, the Call Spread Transactions shall automatically terminate and all of the respective rights and obligations of the parties under the Call Spread Confirmations shall be terminated, cancelled and extinguished, without any payment or delivery due by any of the parties thereto.

3. Representations and Warranties of Company . Company represents and warrants to Dealer on the date hereof that:
(a) it has the power to execute this Agreement and any other documentation relating to this Agreement to which it is a party, to deliver this Agreement and to perform its obligations under this Agreement and has taken all necessary action to authorize such execution, delivery and performance;
(b) such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any material contractual restriction binding on or affecting it or any of its assets;
(c) all governmental and other consents that are required to have been obtained by it with respect to this Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with;
(d) its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law));
(e) each of it and its affiliates is not in possession of any material nonpublic information regarding Company or the Shares;
(f) it is not entering into this Agreement to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Securities Exchange Act of 1934, as amended; and
(g) it (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50,000,000 as of the date hereof.
4. Representations and Warranties of Dealer . Dealer represents and warrants to Company on the date hereof that:
(a) it has the power to execute this Agreement and any other documentation relating to this Agreement to which it is a party, to deliver this Agreement and to perform its obligations under this Agreement and has taken all necessary action to authorize such execution, delivery and performance;
(b) such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any material contractual restriction binding on or affecting it or any of its assets;
(c) all governmental and other consents that are required to have been obtained by it with respect to this Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with; and
(d) its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).
5. Governing Law . This Agreement and any dispute arising hereunder shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).
6. Counterparts . This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all of the signatures thereto and hereto were upon the same instrument.
 
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7. No Reliance, etc . Company confirms that it has relied on the advice of its own counsel and other advisors (to the extent it deems appropriate) with respect to any legal, tax, accounting, or regulatory consequences of this Agreement, that it has not relied on Dealer or its affiliates in any respect in connection therewith, and that it will not hold Dealer or its affiliates accountable for any such consequences.
8. Designation by Dealer . Notwithstanding any other provision in this Agreement to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Company, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such shares or other securities and otherwise to perform Dealer obligations in respect of the transactions contemplated by this Agreement and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Company to the extent of any such performance.
9. Agreements and Acknowledgements Regarding Hedging . Company understands, acknowledges and agrees that: (A) Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into or unwind swaps or other derivative securities in order to terminate the Call Spread Transactions; (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the termination of the Call Spread Transactions; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Company shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the payment required under this Agreement; and (D) any market activities of Dealer and its affiliates with respect to Shares may affect the market price and volatility of Shares in a manner that may be adverse to Company.
10. Role of Agent . Dealer has appointed, as its agent, its indirect wholly-owned subsidiary, RBC Capital Markets, LLC (“ RBCCM ”), for purposes of conducting, on Dealer’s behalf, a business in privately negotiated transactions in options and other derivatives. Company hereby is advised that Dealer, the principal and stated counterparty in such transactions, duly has authorized RBCCM to market, structure, negotiate, document, price, execute and hedge transactions in over-the-counter derivative products. RBCCM does not act as agent of Company. For the avoidance of doubt, any performance by Dealer of its obligations hereunder solely to RBCCM shall not relieve Dealer of such obligations. RBCCM’s performance to Company of Dealer’s obligations hereunder shall relieve Dealer of such obligations to the extent of such performance. Any performance by Company of its obligations (including notice obligations) through or by means of RBCCM’s agency for Dealer shall constitute good performance of Company’s obligations hereunder to Dealer.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

ROYAL BANK OF CANADA
by its agent
RBC Capital Markets, LLC	

By:	 	/s/ Amy Disbrow	
	 	Name:  Amy Disbrow
Title:    Associate Director	

			
IMPAX LABORATORIES, LLC
(formerly known as Impax Laboratories, Inc.)	

By:	 	/s/ Bryan M. Reasons	
	 	Name: Bryan M. Reasons
Title: Chief Financial Officer	

Exhibit 21.1
SUBSIDIARIES OF THE REGISTRANT

Subsidiary	  	Jurisdiction of Incorporation	 	
K2 Merger Sub Corporation	  	 	Delaware	 	

Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Impax Laboratories, Inc.:
We consent to the use of our report dated March 1, 2018, with respect to the consolidated balance sheets of Impax Laboratories, Inc. and its subsidiaries as of December 31, 2017 and 2016, and the related consolidated statements of operations, comprehensive (loss) income, changes in stockholders’ equity and cash flows for each of the years in the three-year period ended December 31, 2017, and the related notes and the related financial statement schedule (collectively, the “consolidated financial statements”), included herein, and to the reference to our Firm under the section entitled “Experts” in the prospectus.
/s/ KPMG LLP
Philadelphia, Pennsylvania
May 7, 2018

Exhibit 23.3
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “ Experts ” and to the use of our report dated March 7, 2018, in the Registration Statement (Form S-1) and related Prospectus of Amneal Pharmaceuticals, Inc. for the registration of 224,996,163 shares of its Class A common stock.
Iselin, New Jersey
May 7, 2018
/s/ Ernst & Young LLP