SEC Filings

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


Tactical Credit Master Fund, L.P. (collectively, the "Commitment Parties") confirming each such Person's commitment to provide, or cause to be provided to, the Buyer with equity and debt financing in connection with the transactions contemplated by this Agreement in the amount, and on the terms and conditions, set forth in each Commitment Letter (the "Financing"). Each Commitment Letter is in full force and effect and is a valid and binding obligation of the Buyer and, the other parties thereto, enforceable against each Financing source in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). Except as set forth or described in the Commitment Letters, there are no side letters, contingencies or conditions precedent to the obligations of counterparties thereto to provide the Financing. Buyer has no reason to believe that any of the conditions precedent to consummate the Financing on or prior to the Closing Date will not be satisfied on a timely basis and, subject to the terms and conditions of the Commitment Letters, the aggregate proceeds of the Financing are in an amount sufficient to allow the Buyer to perform all of its obligations under this Agreement required to be performed prior to or at Closing and, when funded, Buyer will have sufficient unrestricted cash on hand from the Financing to enable it to make payment of the Purchase Price, the Designated Contract Make-Whole Payments and any other amounts, in any such case, required to be paid in cash by Buyer at the Closing pursuant to the terms of this Agreement and each Ancillary Agreement. Notwithstanding the foregoing, it is acknowledged and agreed that in no event shall the receipt by, or the availability of any Financing to Buyer or any of its Affiliates or any other financing be a condition to Buyer's obligation to consummate the transactions contemplated hereunder.


Section 4.5                  Brokers. The fees, commissions and expenses of any broker, finder or investment banker engaged by or on behalf of the Buyer in connection with the transactions contemplated hereby other than the fees, commissions and expenses of Ducera Partners LLC (which will be paid by the Sellers) will be paid by the Buyer.


Section 4.6                  Buyer's Investigation and Reliance. The Buyer is a sophisticated purchaser and has made its own independent investigation, review and analysis regarding the Business, the Transferred Assets, the Assumed Liabilities and the transactions contemplated hereby, which investigation, review and analysis was conducted by the Buyer together with expert advisors, including legal counsel, that it has engaged for such purpose. The Buyer and its Representatives have been provided with reasonable access to the Representatives, properties, offices, plants and other facilities, books and records of the Sellers relating to the Business and other information that they have requested in connection with their investigation of the Business, the Transferred Assets, the Assumed Liabilities and the transactions contemplated hereby. In entering into this Agreement, the Buyer acknowledges that it has relied solely upon (i) the aforementioned investigation, review and analysis and (ii) the representations and warranties set forth in Article III (and is not relying on any other factual representations or opinions of the Seller or its representatives). The Buyer acknowledges that, should the Closing occur, the Buyer shall acquire the Business and the Transferred Assets without any surviving representations or warranties, on an "as is" and "where is" basis and, other than the representations and warranties set forth in Article III, none of the Sellers, any of their Affiliates, or any of their respective officers, directors, employees, agents, Representatives or direct or indirect equityholders make or have made any representation or warranty, express or implied, at law or in equity, as to any