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Subsequent Event
12 Months Ended
Dec. 31, 2014
Subsequent Events [Abstract]  
Subsequent Event
Subsequent Event

During the first quarter of 2015 the Company initiated and reached a decision to sell the Zohydro ER business. On March 10, 2015, the Company entered into an asset purchase agreement (the Asset Purchase Agreement) with Pernix Ireland Limited and Pernix Therapeutics Holdings, Inc., (Pernix Therapeutics, and, together with Pernix Ireland Limited, Pernix), pursuant to which, and on the terms and subject to the conditions thereof, among other things, the Company agreed to sell its Zohydro ER business to Pernix, including the registered patents and trademarks, certain contracts, the NDA and other regulatory approvals, documentation and authorizations, the books and records, marketing materials and product data relating to Zohydro ER. The Company is currently in process of evaluating the carrying value of assets and liabilities, as well as the related income (loss), associated with the disposal group.

Under the terms of the Asset Purchase Agreement, Pernix will pay $30,000,000 in cash upon the closing (the Closing)of the transaction, $3,000,000 of which will be deposited into escrow to fund potential indemnification claims for a period of 12 months The Escrow Period). At the Closing, the Company will also receive $50,000,000 in the form of a secured promissory note (the Note) and $20,000,000 in common stock consideration from Pernix (based on the $11.89 per share closing price of Pernix Therapeutics’ common stock on the trading day immediately preceding the execution date). The Note will mature four months after the Closing, which maturity date may be extended in Pernix’s sole discretion by up to an additional two months and, in the case of certain intellectual property matters, by up to an additional four months, for an aggregate extension of the maturity date to ten months from the Closing. The Note is subject to customary events of default, including cross-defaults to certain defaults under Pernix’s debt facilities, and will be secured by substantially all of the purchased assets. Upon repayment of the Note, $7,000,000 of the $50,000,000 payable thereunder will be deposited into escrow to fund potential indemnification claims through the Escrow Period. In addition, the Company has agreed to indemnify Pernix for certain intellectual property matters up to an aggregate amount of $5,000,000.
In addition to the upfront cash payment, the Company is eligible to receive cash payments of up to $283,500,000 based on the achievement of pre-determined milestones, including a $12,500,000 payment upon approval by the FDA of an abuse-deterrent extended-release hydrocodone tablet (currently in development in collaboration with Altus) and up to $271,000,000 in potential sales milestone payments. Pursuant to the Asset Purchase Agreement, Pernix has agreed to use commercially reasonable efforts (as defined in the Asset Purchase Agreement) to meet such milestones. Furthermore, Pernix will assume responsibility for the Company’s obligations under the purchased contracts and regulatory approvals, as well as other liabilities associated with the Zohydro ER business arising after the Closing date. The Company will retain all liabilities associated with the Zohydro ER business arising prior to the Closing date.
In connection with the stock consideration the Company will receive pursuant to the Asset Purchase Agreement, Pernix Therapeutics will use commercially reasonable efforts to file a resale shelf registration statement and to have such registration statement declared effective no later than five months after the Closing date. The Company will agree not to sell its shares in Pernix Therapeutics for a period of six months after such Closing date.
The Asset Purchase Agreement contains customary representations, warranties and covenants, including covenants to cooperate in seeking regulatory approvals, as well as the Company’s covenant not to compete in the single entity, extended release hydrocodone market for five years following the Closing.
The obligation of Pernix to purchase the Zohydro ER business is subject to the satisfaction or waiver of a number of conditions set forth in the Asset Purchase Agreement, including (i) the accuracy of the representations and warranties and compliance with covenants contained in the Asset Purchase Agreement, (ii) the absence of any law or order by any governmental authority that would make illegal or otherwise prohibit the consummation of the transactions under the Asset Purchase Agreement, (iii) all required consents of, notifications to and filings with any governmental authority shall have been made and any waiting periods shall have expired, including the expiration or termination of applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (iv) the absence of any actions or proceedings challenging or seeking to restrain or prohibit any of the transactions under the Asset Purchase Agreement, (v) there not having been a material adverse effect with respect to the Company's Zohydro ER business, (vi) the delivery to Pernix of a transition services agreement, registration rights agreement, escrow agreement and other ancillary transaction documents and receipt of third party consents, and (vii) other customary conditions. In addition, the Company is required to extinguish all encumbrances on the assets to be sold to Pernix, including the security interests previously granted to Oxford Finance LLC and Silicon Valley Bank (together, the lenders) pursuant to the Company’s loan and security agreement, dated December 30, 2014, with the lenders. The Company is currently in discussions with the lenders to amend the loan and security agreement to remove the security interests on the assets to be sold to Pernix. However, if the Company is unable to reach an agreement with the lenders, the Company expects to eliminate its existing debt obligation to the lenders by repaying all amounts owed under the loan and security agreement, including applicable termination fees, which as of December 31, 2014 was $23,300,000.
The Company expects the Closing to occur during April 2015, subject to the satisfaction of the foregoing closing conditions.
Either party may terminate the Asset Purchase Agreement if the closing has not occurred by May 9, 2015, provided that if the Closing has not occurred due to lack of governmental approval, the Closing may be extended up to an additional 60 days to obtain such approval. The Company and Pernix may also terminate the Asset Purchase Agreement by mutual consent, for a material uncured breach by the other party, or if a final governmental order prohibiting the transaction is issued.