|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/19/2019|
Section 8.3 Expense Reimbursement Amount.
(a) If this Agreement is terminated in accordance with the terms set forth in Section 8.1(a)(ii)(B) or Section 8.1(a)(iii)(A), then the Sellers, jointly and severally, shall pay to the Buyer in cash not later than two (2) Business Days following receipt of documentation supporting the request for reimbursement of out-of-pocket costs, fees and expenses, an amount equal to the reasonable and documented out-of-pocket costs, fees and expenses incurred by the Buyer and its Affiliates (including fees and expenses of legal, accounting and financial advisors) in connection with the development, execution, delivery and approval by the Bankruptcy Court of this Agreement and the transactions contemplated hereby in an amount not to exceed $1.134 million ($1,134,000.00) (the "Expense Reimbursement Amount"), in each case by wire transfer of immediately available funds to an account specified by the Buyer to the Sellers in writing. The Sellers' obligation to pay the Expense Reimbursement Amount pursuant to the terms of this Section 8.3(a) shall be subordinate and junior in all respects to the DIP Superpriority Claims, the DIP Obligations, any and all Encumbrances securing the DIP Obligations. The Sellers' obligation under this Agreement to pay the Expense Reimbursement Amount shall be without prejudice to, and shall not be construed as a limitation of or cap on, any obligation of any Seller to otherwise reimburse or pay the fees and expenses of the Buyer or any of its Affiliates under any Order of the Bankruptcy Court, other contract or by operation of law.
(b) The obligations of the Sellers to pay the Expense Reimbursement Amount as provided herein shall be entitled to superpriority administrative expense status pursuant to Sections 503(b)(1) and 507(a)(2) of the Bankruptcy Code, senior to all other general administrative expense claims and superpriority administrative expense claims granted such status pursuant to Sections 503(b)(1) and 507(a)(2) (but subordinate and junior in all respects to the DIP Superpriority Claims), in the Bankruptcy Case.
(c) The Sellers agree and acknowledge that the Buyer's due diligence, efforts, negotiation, and execution of this Agreement have involved substantial investment of management time and have required significant commitment of financial, legal, and other resources by the Buyer and their Affiliates, and that such due diligence, efforts, negotiation, and execution have provided value to the Sellers and, in the Sellers' reasonable business judgment, is necessary for the preservation of the value of the Sellers' estate. The Sellers further agree and acknowledge that the Expense Reimbursement Amount is reasonable in relation to Buyer' efforts, Buyer' lost opportunities from pursuing this transaction, and the magnitude of the transactions contemplated hereby. The provision of the Expense Reimbursement Amount is an integral part of this Agreement, without which the Buyer would not have entered into this Agreement. The Sellers' obligation to pay the Expense Reimbursement Amount shall be joint and several among the Sellers. The parties agree and understand that in no event shall the Sellers be required to pay the Expense Reimbursement Amount on more than one occasion. Notwithstanding anything to the contrary in this Agreement, other than in the case of Fraud or willful and intentional material breach of this Agreement or any Ancillary Agreement by a Seller, the payment of the Expense Reimbursement Amount from or on behalf of the Sellers in the circumstances in which it is payable shall be the sole and exclusive remedy of the Buyer against the Sellers and their Affiliates and none of the Sellers or any of their respective Affiliates shall have any further liability or obligation (whether at law, or equity, in contract, in tort or otherwise) in connection with this Agreement's termination.