|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/19/2019|
Designated Buyer assuming such obligation at the Closing and no other Buyer or Designated Buyer.
(b) The above designation in Section 2.11(i) shall be made by the Buyer by way of a written notice to be delivered to the Sellers in no event later than five (5) Business Days prior to Closing which written notice shall identify the Designated Buyer(s) and indicate which Transferred Assets, Assumed Liabilities and Transferred Employees the Buyer intends such Designated Buyer(s) to purchase, assume and/or employ, as applicable, hereunder and include a signed counterpart to this Agreement, agreeing to be bound by the terms of this Agreement as it relates to such Designated Buyer(s) and authorizing the Buyer to act as such Designated Buyer(s)' agent for all purposes hereunder.
Section 2.12 Withholding. The Buyer and its Affiliates and Representatives shall be entitled to deduct and withhold from the consideration otherwise payable to the Sellers pursuant to this Agreement such Taxes as may be required to be deducted and withheld from such consideration under the Code or any other applicable provision of U.S. or foreign Tax Law. If Buyer reasonably believes that it is obligated under applicable Law to deduct or withhold any Taxes from the consideration payable to Sellers, it shall notify Seller Parent prior to the date such withholding is required to be made of its intention to withhold, which notice shall include a statement of the amounts it intends to deduct or withhold in respect of making of such payment and the applicable provision of law requiring the Buyer to withhold or deduct, in each case ten (10) days prior to the date such withholding is required to be made (unless a change in applicable Law prevents the Buyer from providing ten (10) days' advance notice, in which case notice shall be provided as soon as possible following the Buyer becoming aware of such change in Law), and shall reasonably cooperate with Seller to reduce or eliminate such deduction or withholding. To the extent that any amounts are so deducted or withheld, such deducted and withheld amounts shall be (a) remitted by the relevant payor to the applicable Governmental Authority and (b) treated for all purposes of this Agreement as having been paid to the Seller in respect of which such deduction and withholding was made, provided that, notwithstanding anything in this Agreement to the contrary, if withholding on the consideration otherwise payable to a Seller results from a present or former connection between the Designated Buyer and the jurisdiction (other than (x) the United States or (y) Ireland, in the case of a Designated Buyer that is organized under the Laws of Ireland (or a resident of Ireland for Tax purposes) purchasing Transferred Assets and/or assuming Assumed Liabilities from a Seller that is organized under the Laws of Ireland (or a resident of Ireland for Tax purposes) imposing such withholding and such withholding could reasonably be avoided by the use of a Designated Buyer in a different jurisdiction, Buyer shall be required to pay such additional amounts as may be necessary in order that the net amount received by Seller after such withholding or deduction shall equal the amount that would have been received if no withholding or deduction had been made.
Section 2.13 Designated Contract Make-Whole Amounts:
(a) At least three (3) Business Days prior to the Closing Date, the Sellers shall deliver to the Buyer a written notice (the “Make-Whole Notice”) setting forth the Sellers’ good faith calculation of the Designated Contract Make-Whole Amount for each Excluded Designated Contract (with respect to each Excluded Designated Contract, the “Estimated Make-Whole Amount”). Buyer shall have two (2) Business Days after receipt of the Make-Whole Notice to