SEC Filings

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


(xviii)        make any change in any method of accounting or accounting practice or policy, except as required by applicable Law or GAAP; or


(xix)           agree or commit to any of the foregoing.


(c)                 Except (1) as otherwise contemplated by this Agreement, (2) as set forth in Section 5.1 of the Disclosure Letter, (3) as required by the Bankruptcy Code or by Order of the Bankruptcy Court (it being understood that no provision of this Section 5.1 will require the Sellers to make any payment to any of its creditors with respect to any amount owed to such creditors on the Petition Date or which would otherwise violate the Bankruptcy Code), (4) as otherwise required by Law or any Order, or (5) with the prior written consent of the Buyer (which consent will not be unreasonably withheld, conditioned or delayed), from the date of this Agreement until the Closing Date or earlier termination of this Agreement, the Sellers shall not:


(i)                  voluntarily pursue or seek, or fail to oppose any third party in pursuing or seeking, a conversion of the Bankruptcy Cases to cases under chapter 7 of the Bankruptcy Code, the appointment of a trustee under chapter 11 or chapter 7 of the Bankruptcy Code and/or the appointment of an examiner with expanded powers;


(ii)                enter into any Contract under which the Buyer would after the Closing be restricted in any material respect with respect to distribution, licensing, marketing, purchasing or development of products or services if such Contract were a Transferred Contract;


(iii)              create, incur, assume, or suffer to exist, directly or indirectly, any Encumbrances on any of the Transferred Assets (whether now owned or hereafter acquired) (other than any Permitted Encumbrances);


(iv)               authorize, or make any commitment with respect to, any single capital expenditure or series of related capital expenditures that is in excess of $150,000 or capital expenditures that are, in the aggregate, in excess of $250,000 for the Business taken as a whole; or


(v)                incur, assume, or otherwise become or remain, directly or indirectly, liable with respect to any Indebtedness other than Indebtedness incurred under the DIP Credit Agreement or any such Indebtedness that is an Excluded Liability and not secured by any Encumbrances (other than any Permitted Encumbrances) on any Transferred Asset.


(d)                  To the extent any of the Lockbox Accounts are Transferred Assets, from 12:01 a.m. of the Closing Date, Sellers shall not transfer any cash out of such Lockbox Account. 


Section 5.2                  Covenants Regarding Information.


(a)                 From the date hereof until the Closing Date, upon reasonable request, the Sellers shall afford the Buyer and its Representatives reasonable access during normal business hours to all of the properties, offices and other facilities, books and records (including Tax records) of the Sellers, and shall furnish the Buyer and its Representatives with such financial, operating and other data and information, and provide reasonable access, upon reasonable request, to all the officers, key employees, accountants and other Representatives of the Sellers as the Buyer may reasonably request. In addition, the Sellers shall cooperate to allow the Buyer reasonable access to employees in order to determine its designation of Transferred Employees. Notwithstanding anything to the contrary in this Agreement, the Sellers shall not be required to