|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/19/2019|
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of February 18, 2019 (this "Agreement"), by and among Pernix Therapeutics Holdings, Inc., a Maryland corporation ("Seller Parent"), Pernix Ireland Pain Designated Activity Company, a designated activity company incorporated under the laws of Ireland (formerly known as Pernix Ireland Pain Limited), each of the Sellers set forth on Annex A (Seller Parent together with the foregoing entities, each a "Seller" and collectively, the "Sellers") and Phoenix Top Holdings LLC, a Delaware limited liability company (the "Buyer").
The Sellers are engaged in the business of, directly or indirectly developing, making or having made, promoting or having promoted, using, licensing, selling or having sold, or otherwise commercializing the Products (such business, as conducted by the Sellers, the "Business").
Seller Parent and each of the other Sellers intend to file voluntary petitions (the "Petitions") for relief commencing a case under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court").
A. The Sellers believe, following consultation with their legal and financial advisor and consideration of available alternatives, that, in light of the current circumstances, a sale of substantially all of the Sellers' assets as provided herein is necessary to preserve and maximize value, and is in the best interest of the Sellers and their respective estates.
B. The Sellers desire to sell to the Buyer all of the Transferred Assets and transfer to the Buyer the Assumed Liabilities and the Buyer desires to purchase from the Sellers the Transferred Assets and assume the Assumed Liabilities, upon the terms and conditions hereinafter set forth.
C. The execution and delivery of this Agreement and the Sellers' ability to consummate the transactions set forth in this Agreement are subject to, among other things, the entry of the Sale Order under, inter alia, Sections 363 and 365 of the Bankruptcy Code, as further set forth herein. The Parties desire to consummate the proposed transaction as promptly as practicable after the Bankruptcy Court enters the Sale Order and in accordance with the Milestones.
D. Concurrently with the execution and delivery hereof, and as a substantial inducement to Sellers' willingness to enter into this Agreement and consummate the transactions contemplated hereby, Buyer has delivered to Seller Parent the duly executed Commitment Letters, under which Sellers are express third party beneficiaries.
In consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties agree as follows: