Asset Purchase Agreement [Amendment] (2015)Full Document 

Start of Preview

AMENDMENT TO ASSET PURCHASE AGREEMENT

THIS AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") is made as of April 23, 2015, by and among Zogenix, Inc., a Delaware corporation ("Seller"), Pernix Ireland Limited, an Irish corporation ("Purchaser"), and Pernix Therapeutics Holdings, Inc., a Maryland corporation ("Guarantor"). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Purchase Agreement (as defined below).

WHEREAS, Seller, Purchaser and, for purposes of Sections 5.9.2, 10.2, and 10.14 thereof only, Guarantor, entered into an Asset Purchase Agreement, dated as of March 10, 2015 (the "Purchase Agreement"), pursuant to which Seller agreed to sell, transfer, convey, assign and deliver to Purchaser all right, title and interest of Seller and its Affiliates in and to all Purchased Assets, and Purchaser agreed to purchase and accept from Seller (or such Affiliates) the Purchased Assets, in each case upon the terms and conditions set forth therein;

WHEREAS, Section 10.7 of the Purchase Agreement provides that the Purchase Agreement may be modified, amended, altered or supplemented only upon the execution and delivery of a written agreement executed by both Parties; and

WHEREAS, the Parties now wish to enter into this Amendment to, among other things, alter the composition of the Closing Payment, and provide Purchaser with the right to designate a substitute to serve as Purchaser for all purposes of the Purchase Agreement and the Ancillary Agreements to which Purchaser would be a party in the absence of the appointment of such Substitute Purchaser.

NOW, THEREFORE, in consideration of the foregoing, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending legally to be bound, hereby agree as follows:

1. Amendments to the Purchase Agreement.

(a) Table of Contents

(i) The portion of the Table of Contents on page I pertaining to ARTICLE 2 is hereby amended and restated to read in its entirety as follows:

"ARTICLE 2 SALE AND PURCHASE OF ASSETS; LIABILITIES;
SUBSTITUTE PURCHASER

23
2.1 Sale of Purchased Assets 23
2.2 Liabilities 24
2.3 Consideration 25
2.4 Escrow 30
2.5 Closing 31
2.6 Substitute Purchaser 31"


(b) Exhibit List

(i) The Exhibit List on page v of the Purchase Agreement is hereby amended and restated to read in its entirety as follows:

"EXHIBITS

Exhibit A Bill of Sale, Assignment and Assumption Agreement
Exhibit B Copyright Assignment Agreement
Exhibit C Domain Name Assignment Agreement
Exhibit D Patent Assignment Agreement
Exhibit E [RESERVED]
Exhibit F Registration Rights Agreement
Exhibit G [RESERVED]
Exhibit H Seller FDA Letters
Exhibit I Trademark Assignment Agreement
Exhibit J Transition Services Agreement
Exhibit K Press Release"

(c) Preamble. The Preamble of the Purchase Agreement is hereby amended and restated to read in its entirety as follows:

"This Asset Purchase Agreement (this "Agreement") is made and executed as of March 10, 2015 (the "Execution Date"), by and among Zogenix, Inc., a Delaware corporation ("Seller"), Pernix Ireland Limited, an Irish corporation, and, solely with respect to Sections 5.9.2, 10.2 and 10.14, Pernix Therapeutics Holdings, Inc., a Maryland corporation ("Guarantor"). Seller and Purchaser are sometimes referred to herein individually as a "Party" and collectively as the "Parties.""

(d) Restated Definitions.

(i) Section 1.1.11 of the Purchase Agreement is hereby amended and restated to read in its entirety as follows:

"1.1.11 "Ancillary Agreements" means Bill of Sale, the Transition Services Agreement, the Domain Name Assignment Agreement, the Patent Assignment Agreement, the Trademark Assignment Agreement, the Copyright Assignment Agreement, the Escrow Agreement, the Registration Rights Agreement, and the Senior Loan Amendment (as defined in the MidCap Signing Date Agreement and in form and substance reasonably satisfactory to Seller)."

(ii) Section 1.1.56 of the Purchase Agreement is hereby amended and restated to read in its entirety as follows:

1.1.56 "Escrow Amount" has the meaning set forth in Section 2.3.1."

(iii) Section 1.1.69 of the Purchase Agreement is hereby amended and restated to read in its entirety as follows:

"1.1.69 "Financing" means, collectively, Purchaser’s financing of the Closing Payment."

-2


(iv) Section 1.1.79 of the Purchase Agreement is hereby amended and restated to read in its entirety as follows:

"1.1.79 [RESERVED]"

(v) Section 1.1.89 of the Purchase Agreement is hereby amended and restated to read in its entirety as follows:

"1.1.89 [RESERVED]"

(vi) Section 1.1.137 of the Purchase Agreement is hereby amended and restated to read in its entirety as follows:

End of Preview