SEC Filings

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

 

dispute in good faith any Estimated Make-Whole Amount set forth in the Make-Whole Notice by delivering a written notice to the Sellers (a “Dispute Notice”) setting forth in reasonable detail its disagreement with the calculation of such Estimated Make-Whole Amount and Buyer’s calculation of the Designated Contract Make-Whole Amount for such Excluded Designated Contract (the “Closing Make-Whole Payment”); provided that if Buyer does not timely deliver a Dispute Notice with respect to any Estimated Make-Whole Amount such Estimated Make-whole Amount shall be deemed to be the Closing Make-Whole Payment for such Excluded Designated Contract.

 

(b)                At the Closing, Buyer shall deliver to the Sellers an amount in cash equal to the Closing Make-Whole Payment for each Excluded Designated Contract by wire transfer of immediately available funds to a bank account or bank accounts designated in writing by Seller Parent to the Buyer at least two (2) Business Days prior to the Closing Date.

 

(c)                 If the Estimated Make-Whole Amount for any Excluded Designated Contract does not equal the Closing Make-Whole Payment for such Excluded Designated Contract (each, a “Disputed Make-Whole Amount), the Parties shall submit each such Disputed Make-Whole Amount for resolution to a nationally recognized certified public accounting firm as may be mutually selected by Buyer and Seller Parent (such firm, the “Auditor”). Seller Parent and Buyer shall promptly provide their assertions regarding each unresolved Disputed Make-Whole Amount in writing to the Auditor and each other. The Auditor shall be instructed to render its determination with respect to each Disputed Make-Whole Amount as soon as reasonably possible (which the Parties agree shall be no later than 20 days following the date on which the Disputes are referred to the Auditor). The Auditor shall base its determination solely on (i) the written submissions of the Parties and shall not conduct an independent investigation and (ii) the extent (if any) to which each Disputed Make-Whole Amount requires adjustment in order to be determined in accordance with the definition of Designated Contract Make-Whole Amount (including the definitions of the defined terms used therein). The Auditor shall not assign a value to any Disputed Make-Whole Payment submitted to the Auditor that is greater than the Estimated Make-Whole Payment or less than the Closing Make-Whole Payment for the applicable Excluded Designated Contract. The determination of the Auditor shall be final, conclusive and binding on the Parties. The Designated Contract Make-Whole Amount for any Excluded Designated Contract, as determined by the Auditor pursuant to this Section 2.13(c), is referred to herein as the “Final Make-Whole Amount” for such Excluded Designated Contract. If the Final Make-Whole Amount for any Excluded Designated Contract exceeds the Closing Make-Whole Payment for such Excluded Designated Contract (a “Make-Whole Surplus”), the Buyer shall promptly (and in any event within two (2) Business Days) deliver to the Sellers an amount in cash equal to such Make-Whole Surplus by wire transfer of immediately available funds to a bank account or bank accounts designated in writing by Seller Parent. All fees and expenses of the Auditor relating to the work, if any, to be performed by the Auditor hereunder with respect to any Disputed Make-Whole Amount shall be borne between Buyer, on the one hand, and the Sellers, on the other hand, based upon a fraction, the numerator of which is the portion of the difference between the Estimated Make-Whole Amount and Closing Make-Whole Payment of the applicable Excluded Designated Contract not awarded to the applicable party and the denominator of which is the difference between the Estimated Make-Whole Amount and Closing Make-Whole Payment of the applicable Excluded Designated Contract. For example, if the Estimated Make-Whole Amount for an Excluded Designated Contract is $1,000,000, and the

 

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