SEC Filings

PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/19/2019
Entire Document


Article I


Section 1.1                  Certain Defined Terms. For purposes of this Agreement:


"Accounting Principles" means the accounting policies, principles, practices and methodologies used in the preparation of the Seller Financial Statements, which are disclosed in the Company's 2017 Form 10K.


"Action" means any claim, action, suit, arbitration or proceeding by or before any Governmental Authority, other than an Avoidance Action.


"Affiliate" means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For the avoidance of doubt, Nalpropion shall be deemed not to be an Affiliate of any Party for purposes of this Agreement.


"Alternative Transaction" means the sale, transfer or other disposition, directly or indirectly, including through an asset sale, share sale, merger, amalgamation, or other similar transaction, including a plan of reorganization approved by the Bankruptcy Court, or resulting from the Auction, of a material portion of (i) the Transferred Assets within any Asset Class or (ii) the Transferred Assets relating to a given Product (in each case other than the Treximet Assets and any Inventory sold or disposed of in the Ordinary Course of Business and, for the avoidance of doubt, any asset designated as an Excluded Asset pursuant to Section 2.1(b)), in a transaction or series of transactions with one or more Persons other than Buyer or any of its Affiliates.


"Ancillary Agreements" means, collectively, this Agreement, including the Bill(s) of Sale, the IP Assignment Agreement(s), the IP License Agreement (but only if the Treximet Assets are Excluded Assets or any other assets are designated as Excluded Assets pursuant to Section 2.1(b)) and the other instruments and agreements required to be executed and delivered by any of the Parties in connection with the transactions contemplated hereby.


"Antitrust Law" means the HSR Act and any competition, merger control and antitrust Law of any other applicable supranational, national, federal, state, provincial or local Law designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolizing or restraining trade or lessening competition of any other country or jurisdiction, to the extent applicable to the transactions contemplated by this Agreement.


"Applicable Net Product Working Capital Forecast Amount" means the projected Net Product Working Capital for the week in which the Closing occurs, as set forth on Section 1.2(a) of the Disclosure Letter; provided that the Parties shall, for a period of ten days from the date hereof, discuss in good faith any proposed revisions to Section 1.2(a) of the Disclosure Letter and if the Parties mutually agree to any such revisions Section 1.2(a) shall be updated accordingly.


"Approved Budget" shall have the meaning set forth in the Interim DIP Order as it may be modified by the Final DIP Order.


"Asset Class" means each of (i) the Zohydro Assets, (ii) collectively, the Nalpropion Assets and the Services Agreement, (iii) the Treximet Assets and (iv) collectively, the Silenor