|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/19/2019|
may continue using the Pernix Marks in their respective corporate names and business names and otherwise in connection with their respective operations, including in connection with any proceedings before the Bankruptcy Court or any regulatory filings (it being understood that, for the avoidance of doubt, nothing in this Agreement shall be construed as preventing any Seller from making any fair use of any of the Pernix Marks).
Section 5.10 Assumed Liabilities; Adequate Assurance of Future Performance. The Parties agree that they will promptly take commercially reasonable actions to provide the evidence required to establish that the Buyer can provide adequate assurance of future performance of the Transferred Contracts, including such affidavits, non-confidential financial information and other documents or information as may be necessary or desirable for filing with the Bankruptcy Court and making the Buyer's and the Sellers' Representatives available to testify before the Bankruptcy Court.
Section 5.11 Sale Free and Clear. The Sellers acknowledge and agree, and the Sale Order shall be drafted to provide, without limitation, that, (a) on the Closing Date and concurrently with the Closing, all then existing or thereafter arising obligations, Liabilities and Interests, against or created by the Sellers, any of their Affiliates, or the bankruptcy estate, to the fullest extent permitted by Section 363 of the Bankruptcy Code, shall be fully released from and with respect to the Transferred Assets (other than Permitted Encumbrances and Assumed Liabilities) and (b) the Buyer is not a successor to any Seller or the bankruptcy estate by reason of any theory of law or equity, and the Buyer shall not assume or in any way be responsible for any Liability of the Sellers, any of their Affiliates and/or the bankruptcy estate, except as expressly provided in this Agreement. On the Closing Date, the Transferred Assets shall be transferred to the Buyer free and clear of any and all Interests, other than Permitted Encumbrances and Assumed Liabilities, to the fullest extent permitted by Section 363 of the Bankruptcy Code.
Section 5.12 Product Liability Insurance. The Buyer shall obtain (through assumption, in accordance with Section 2.6 hereof, or otherwise at or prior to the Closing, at Buyer's sole discretion) and maintain customary product liability insurance coverage in respect of all Transferred Assets, consistent with the Company Group's past practice, for not less than seven (7) years following the Closing, which coverage shall (x) include the Company Group as named insureds and (y) be maintained at a level consistent with the Company Group's past practices; provided, that such coverage of similar scope is commercially available and at a substantially similar cost to the Company Group's historical cost for such coverage. Buyer shall endeavor, whether under assumption or otherwise, to secure coverage with insurance companies currently providing the Company Group's product liability insurance policies (or, alternatively with an insurance company of similar reputation and creditworthiness). In lieu of the coverage described in the immediately preceding sentences, Buyer may, in its sole discretion, execute the "tail" provision under the current Company Group product liability insurance policies in respect of all Transferred Assets with an extended reporting claims period of not less than seven (7) years from the Closing.
Section 5.13 Intellectual Property Registrations. Prior to the Closing Date, Seller shall execute or have executed and file any documents reasonably requested, drafted and provided by Buyer to effect the change of ownership and recordals with any applicable patent, trademark, and