|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/19/2019|
the payment at Closing of the applicable Designated Contract Make-Whole Amounts) shall only be responsible for, Contracts designated by it as Transferred Contracts.
(e) Buyer shall continue to be entitled to designate in writing any Contract as a Transferred Contract following the Pre-Auction Designation Date but prior to the fifth Business Day prior to the Closing Date (and, in the event of any such designation, the Sellers shall use commercially reasonable efforts to comply with the notice and filing obligations set forth in clauses (x) and (y) of the first sentence of Section 2.6(d)); provided, that, unless otherwise agreed to in writing by and among the Sellers, the Buyer and the applicable counterparty, the Buyer shall pay all Cure Claims associated with the assumption of any Transferred Contract designated as such pursuant to this Section 2.6(e), which payment shall, in the case of any Cure Claim, be made at the Closing and, in the case of any Disputed Cure Claim, pursuant to an Order of the Bankruptcy Court.
Section 2.7 Consideration.
(a) Subject to Section 2.7(b), the aggregate consideration for the sale, assignment, transfer, conveyance and delivery of the Transferred Assets to the Buyer at the Closing shall consist of (x) (collectively, the "Purchase Price"): (i) the Specified DIP Credit Bid Consideration, (ii) the Specified Prepetition Credit Bid Consideration, (iii) the Treximet Consideration, (iv) an amount in cash equal to $5,000,000 (five million dollars) (the "Cash Component"), (v) at the election of the Buyer in the event there is any Positive Product Working Capital, such amount either in cash or Positive Product Working Capital Credit Bid Consideration, or a combination thereof and (vi) the Lockbox Cash Amount, and (y) the assumption at Closing of the Assumed Liabilities; provided, that the Cash Component shall be increased by the excess (if any) of Buyer Taxes paid by Sellers prior to the Closing ("Seller-Paid Buyer Taxes"), over Seller Taxes not paid by Sellers prior to Closing ("Unpaid Seller Taxes"), or reduced (but not below zero) by the excess (if any) of Unpaid Seller Taxes over Seller-Paid Buyer Taxes (as applicable).
(b) In the event the Bankruptcy Court approves a Treximet Sale, the Treximet Consideration shall no longer constitute part of the Purchase Price.
Section 2.8 Determination of the Purchase Price. Not less than five (5) Business Days prior to the anticipated Closing Date, the Sellers shall deliver to the Buyer a written statement setting forth their good faith estimate of the Excess Cash Amount, Net Product Working Capital, Seller-Paid Buyer Taxes, and Unpaid Seller Taxes, together with reasonable supporting evidence (the "Pre-Closing Statement"). The Pre-Closing Statement shall be accompanied by a certificate of the Chief Financial Officer of the Seller Parent certifying that the Pre-Closing Statement (and the estimates set forth therein) have been prepared in accordance with the Accounting Principles and the Reference Statement. The Sellers shall cause their respective Representatives to assist the Buyer and its Representatives in its review of the Pre-Closing Statement and provide any information as may be reasonably requested by the Buyer in order to allow it to review the calculations set forth in the Pre-Closing Statement. The Sellers shall consider in good faith any comments or objections to any amounts set forth on the Pre-Closing Statement that are notified to it by the Buyer at least 2 Business Days prior to the Closing, and, prior to the Closing, the Sellers may make any modification to the Pre-Closing Statement as requested or approved by the