SEC Filings

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


from the date hereof until the bid deadline pursuant to the Sales Procedure Order, Sellers shall (i) promptly (and in any event within one (1) Business Day) notify the Buyer of any written Competing Bid or written Treximet Bid, (ii) promptly (and in any event within one (1) Business Day) notify the Buyer of the identity of any Person making a written Competing Bid or written Treximet Bid and provide a copy of such Competing Bid or Treximet Bid and a summary of the material unwritten terms of any Competing Bid or Treximet Bid and any material updates thereto and (iii) make available to Buyer all written due diligence information made available to the Person making such written Competing Bid or written Treximet Bid and/or its Representatives that has not been made available to Buyer (the obligations set forth in clauses (i), (ii) and (iii), the "Competing Bid Obligations"). The Buyer's sole and exclusive remedy for any threatened or actual breach by the Sellers of their Competing Bid Obligations shall be to exercise their rights to specific performance under Section 9.15.


(g)                The Sellers shall give the Buyer reasonable advance notice and proposed drafts of all pleadings, motions, orders, notices, other papers, hearings, and other proceedings relating to this Agreement and the transactions contemplated hereby, and shall provide the Buyer and its counsel with a reasonable opportunity to review such papers prior to filing with the Bankruptcy Court unless such advance notice is impossible or impracticable under the circumstances, in which case the Sellers shall deliver copies of such papers substantially simultaneously with the filing with the Bankruptcy Court.


(h)                The Sellers shall serve notices of assumption of the Transferred Contracts, including designation of Cure Claims, in form and substance approved by the Buyer, on all necessary parties substantially concurrently with the filing of the Sale Motion.


(i)                  In the event an appeal is taken or a stay pending appeal is requested, from the Sale Order, the Sellers shall immediately notify the Buyer of such appeal or stay request and shall provide to the Buyer promptly a copy of the related notice of appeal or order of stay. The Sellers shall also provide the Buyer with written notice of any motion or application filed in connection with any appeal from such orders. The Sellers agree to take all action as may be reasonable and appropriate to defend against such appeal or stay request and the Sellers and the Buyer agree to use their reasonable efforts to obtain an expedited resolution of such appeal or stay request; provided, that nothing herein shall preclude the parties hereto from consummating the transactions contemplated hereby, if the Sale Order shall have been entered and has not been stayed and the Buyer, in its sole and absolute discretion, waives in writing the condition that the Sale Order be a Final Order.


(j)                  After entry of the Sale Order, to the extent the Buyer is the Successful Bidder, the Sellers shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Order unless the Buyer consents to such action in writing.


Section 5.9                  Pernix Marks. Except as provided in this Section 5.9 and the IP License Agreement (if delivered by the Parties at the Closing pursuant to Section 2.9), the Sellers shall, as promptly as practicable (but in no event later than thirty (30) Business Days) after the Closing, cease using and displaying any trademarks that are included in the Transferred Assets. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Sellers