|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/19/2019|
(xix) all of the rights and claims of the Sellers available under the Bankruptcy Code, of whatever kind or nature, as set forth in sections 544 through 551, inclusive, 553, 558 and any other applicable provisions of the Bankruptcy Code solely with respect to trade obligations paid prior to the Petition Date, and any related claims and actions arising under such sections by operation of Law or otherwise, including any and all proceeds of the foregoing, (such rights and claims not to be prosecuted by the Buyer or any other entity);
(xx) all confidentiality agreements with former or current employees and agents of Sellers relating to the Business and all restrictive covenant and confidentiality agreements with Transferred Employees;
(xxi) all credits, prepaid expenses, security deposits, other deposits, refunds, prepaid assets or charges, rebates, setoffs, and loss carryforwards of the Sellers to the extent related to any Transferred Asset or any Assumed Liability (other than, in each case, with respect to Taxes);
(xxii) all Assumed Plans, together with any funding arrangements relating thereto (including but not limited to all assets, trusts, insurance policies and administration service contracts related thereto) and all rights and obligations thereunder to the extent relating to Transferred Employees; and
(xxiii) the Lockbox Accounts (including all cash contained therein as of 12:01 a.m. New York time on the Closing Date (it being understood and agreed that nothing in this Agreement shall restrict the Sellers’ right to transfer or “sweep” any or all cash in any Lockbox Account prior to 12:01 a.m. New York time on the Closing Date); provided, that if any Lockbox Account is not transferrable to Buyer at the Closing (A) such Lockbox Account shall be an Excluded Asset for all purposes hereunder and (B) the Sellers shall close such Lockbox Account effective as of 5:30 p.m. New York time as of the Business Day immediately prior to the Closing Date.
(b) At any time at least five (5) Business Days prior to the Closing, the Buyer may, in its discretion by written notice to the Sellers, designate any of the Transferred Assets (other than any Contract, which are addressed in Section 2.6) as additional Excluded Assets, which notice shall set forth in reasonable detail the Transferred Assets so designated; provided, that there shall be no modification to the Purchase Price if it elects to designate any Transferred Asset as an Excluded Asset (it being understood that, for the avoidance of doubt, with respect to any Transferred Asset designated as an Excluded Asset pursuant to this Section 2.1(b), any Intellectual Property owned or controlled by the Sellers and primarily related to such Transferred Asset shall be automatically designated as an Excluded Asset). Notwithstanding any other provision hereof, the Liabilities of the Sellers under or related to any Transferred Asset excluded under this paragraph will constitute Excluded Liabilities.
(c) In the event the Bankruptcy Court approves a Treximet Sale, the Treximet Assets shall automatically be designated as Excluded Assets and shall no longer be designated as Transferred Assets.
Section 2.2 Excluded Assets. Notwithstanding anything contained in Section 2.1 to the contrary, the Sellers are not selling, and the Buyer is not purchasing, any assets other than the