ptx_sc13d.htm

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SzvPGlc0uQH2MVVOgFN9Prn6/sXqfgJVDIhgPXrSE8GKKDS+85+LANFK5fT+KNUh 6XCBs9SxLDmRgEib5vynGA== 0001354488-10-002970.txt : 20100923 0001354488-10-002970.hdr.sgml : 20100923 20100923120704 ACCESSION NUMBER: 0001354488-10-002970 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20100923 DATE AS OF CHANGE: 20100923 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Waguespack David E. CENTRAL INDEX KEY: 0001485500 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 33219 FOREST WEST DRIVE CITY: MAGNOLIA STATE: TX ZIP: 77354 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PERNIX THERAPEUTICS HOLDINGS, INC. CENTRAL INDEX KEY: 0001024126 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 330724736 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-50927 FILM NUMBER: 101086160 BUSINESS ADDRESS: STREET 1: 33219 FOREST WEST STREET CITY: MAGNOLIA STATE: TX ZIP: 77354 BUSINESS PHONE: (832) 934-1825 MAIL ADDRESS: STREET 1: 33219 FOREST WEST STREET CITY: MAGNOLIA STATE: TX ZIP: 77354 FORMER COMPANY: FORMER CONFORMED NAME: GOLF TRUST OF AMERICA INC DATE OF NAME CHANGE: 19961002 SC 13D/A 1 ptx_sc13d.htm AMENDMENT NO. 1 TO SCHEDULE 13D ptx_sc13d.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 1)*

Pernix Therapeutics Holdings, Inc.

(Name of Issuer)

Common Stock, $0.01 par value

(Title of Class of Securities)

71426V108

(CUSIP Number)

David Waguespack

33219 Forest West Street

Magnolia, TX 77354

(832) 934-1825

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

September 10, 2010

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box □.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 71426V108
(1)	Names of Reporting Persons	David Waguespack
(2)	Check the Appropriate Box if a Member of a Group (See Instructions)	(a)
		(b)
(3)	SEC Use Only
(4)	Source of Funds (See Instructions)	N/A
(5)	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)	N/A
(6)	Citizenship or Place of Organization	United States
Number of Shares Beneficially Owned by Each Reporting Person with
	(7) Sole Voting Power	90,000
	(8) Shared Voting Power	0
	(9) Sole Dispositive Power	90,000
	(10) Shared Dispositive Power	90,000
(11)	Aggregate Amount Beneficially Owned by Each Reporting Person	90,000
(12)	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	N/A
(13)	Percent of Class Represented by Amount in Row (11)	0.40%
(14)	Type of Reporting Person (See Instructions)	IN

ITEM 1. SECURITY AND ISSUER.

This statement relates to the common stock, par value $0.01 per share (the “Common Stock”) of Pernix Therapeutics Holdings, Inc., a Maryland corporation (the “Issuer”). The address of the principal executive offices of the Issuer is 33219 Forest West Street, Magnolia, Texas 77354.

ITEM 2. IDENTITY AND BACKGROUND.

(a)	This statement is filed by David Waguespack (the “Reporting Person”).

(b)	The business address of the Reporting Person is 33219 Forest West Street, Magnolia, Texas 77354.

(c)	The Reporting Person is Director of Human Resources of Pernix Therapeutics, LLC, a wholly-owned subsidiary of the Issuer, which is a specialty pharmaceutical company focused on developing and commercializing branded pharmaceutical products, primarily in pediatrics.

(d)	The Reporting Person has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the past five years.

(e)

During the past five years, the Reporting Person has not been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction that resulted in (1) his being subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or (2) a finding of any violation with respect to such laws.

(f)	The Reporting Person is a United States citizen.

ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

Not applicable.

ITEM 4. PURPOSE OF TRANSACTION.

Not applicable.

ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.

(a)	As of the date hereof, the Reporting Person is the beneficial owner of 90,000 shares, representing 0.40% of the aggregate Common Stock outstanding.

(b)	The Reporting Person has the sole power to vote and dispose of all reported shares.

(c)

On September 10, 2010, the Issuer repurchased 2,000,000 shares of Common Stock from the Reporting Person pursuant to a Stock Purchase Agreement by and between the parties (the “Stock Purchase Agreement”). A copy of the Stock Purchase Agreement, which describes the transaction, is attached as Exhibit 1 and incorporated by reference herein.

(d)	Not applicable.

(e)	As of the date hereof, the Reporting Person has ceased to be the beneficial owner of more than five percent of the Common Stock.

ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

The Reporting Person’s remaining ownership of 90,000 shares of Common Stock continue to be subject to the terms of a stockholder agreement by and between the Reporting Person and the Issuer (the “Stockholder Agreement”) which was previously disclosed by the Reporting Person on a Schedule 13D, filed with the SEC on March 19, 2010.

The Stockholder Agreement was entered into in connection with a merger that was consummated on March 9, 2010 (the “Merger”). Under the terms of the Stockholder Agreement, the Reporting Person has agreed to two tiers of restrictions on resales and other transfers of these shares. No resales or other transfers are permitted during the initial period (the “Initial Lock-Up Term”) beginning with the consummation of the Merger and ending on the earlier of (i) March 15, 2011, or (ii) the date the shares become transferable under Rule 144 of the Securities Act of 1933 and the Issuer receives an opinion of legal counsel satisfactory to it regarding Rule 144 and other matters. After the first level of restrictions terminate, the contractual resale restrictions continue for a three-year perio d beginning on the termination of the Initial Lock-Up Term, but one-third of the shares will be released form these contractual transfer restrictions on each anniversary of termination of the Initial Lock-Up Term. These contractual resale restrictions are in addition to any restrictions imposed by applicable securities laws.

A copy of the Stockholder Agreement is attached as Exhibit 2 and incorporated by reference herein.

ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.

Exhibit 1

Stock Purchase Agreement by and between the Issuer and the Reporting Person, dated as of September 10, 2010.

Exhibit 2

Merger Partner Stockholder Agreement between the Issuer and the Reporting Person, dated as of October 6, 2009.

Signature. After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.


	9/21/2010		/s/ David Waguespack
	Date		Signature

			David Waguespack
			Name/Title

EX-1 2 ptx_ex1.htm STOCK PURCHASE AGREEMENT ptx_ex1.htm

Exhibit 1

STOCK PURCHASE AGREEMENT

by and between

Pernix Therapeutics Holdings, Inc.

and

David Waguespack

Dated as of September 10, 2010

STOCK PURCHASE AGREEMENT

This STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into as of this 10th day of September, 2010, by and between Pernix Therapeutics Holdings, Inc., a Maryland corporation (“Buyer” or the “Company”), and David Waguespack, an individual resident of the State of Louisiana (“Seller”).

RECITALS:

WHEREAS, Seller is the record and beneficial owner of 2,090,000 shares of the outstanding Common Stock, $.01 par value per share (the “Common Stock”) of the Company; and

WHEREAS, upon the terms and subject to the conditions set forth herein, Seller desires to sell 2,000,000 shares of Common Stock (the “Shares”) to Buyer and Buyer desires to purchase the Shares from Seller.

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants, representations, warranties, conditions, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties agree as follows:

ARTICLE 1

DEFINITIONS

Terms with their initial letters capitalized used but not otherwise defined in this Agreement shall have the meanings given to them in this Article 1.

1.1 “Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such first Person. The term “control” (including its correlative meanings “controlled by” and “under common control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or pol icies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).

1.2 “Business Day” means any day other than a Saturday, Sunday or day on which banking institutions in New Orleans, Louisiana are authorized or obligated pursuant to Law or executive order to be closed.

1.3 “Governmental Authority” means any federal, national, supranational, state, provincial, local, or similar government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body, including the Securities and Exchange Commission (the “SEC”) and any self regulatory organization within or outside t he United States.

1.4 “Knowledge” or “knowledge” means, with respect to any natural Person, actual knowledge after reasonable inquiry and, with respect to a Person who is not a natural Person, the Knowledge of its directors, executive officers, managers, trustees or Persons performing similar functions on its behalf.

1.5 “Law” means, with respect to any Person, any domestic or foreign federal or state statute, law, ordinance, rule, administrative code, administrative interpretation, regulation, order, consent, writ, injunction, directive, judgment, decree, policy, ordinance, decision, guideline or other requirement of (or agreement with) any Governmental Authority (including any memorandum of understanding or similar arrangement with any Governmental Authority), in each case binding on that Person or its property or assets.

1.6 “Lien” means any liens, pledges, charges, claims, security interests, and deeds of trust, mortgages, and deeds to secure debt, title retention agreements or other encumbrances.

1.7 “Losses” means all costs, damages, liabilities, awards, judgments, losses or costs and expenses, interest, awards, judgments and penalties that are imposed upon or otherwise incurred by an Indemnified Party (including reasonable attorneys’ and consultants’ fees and expenses) actually suffered or incurred.

1.8 “Parties” means Buyer and Seller, and “Party” means either of the Parties.

1.9 “Person” means any individual, corporation, business trust, partnership, association, limited liability company, unincorporated organization or similar organization, any Governmental Authority, fund, organized group of persons whether incorporated or not, or any receiver, trustee under Title 11 of the United States Code or similar official or any liquidating agent for any of the foregoing in his or her capacity as such.

1.10 “Transactions” means the transactions contemplated by this Agreement.

ARTICLE 2

PURCHASE AND SALE OF THE SHARES

2.1 Transfer of Shares. Upon the terms and subject to the conditions of this Agreement, at the Closing (as defined in Section 2.3), Seller shall sell, assign, transfer and convey, or cause to be sold, assigned, transferred and conveyed, to Buyer, and Buyer shall purchase, acquire and accept, all of the Shares.

2.2 Consideration. The consideration (the “Purchase Price”) that Buyer shall pay for the Shares, shall consist of cash in an amount equal to Three Million Six Hundred Thousand and No/100 Dollars ($3,600,000.00) payable to Seller as follows: (i) Three Hundred Thousand and No/100 Dollars ($300,000.00) shall be paid to Seller at the Closing by wire transfer of immediate ly available funds to an account designated by Seller (the “Closing Payment”), and (ii) Three Hundred Thousand and No/100 Dollars ($300,000.00) shall be paid to Seller by wire transfer of immediately available funds to an account designated by Seller on the first Business Day of each of the eleven (11) calendar quarters immediately following the Closing (the “Installment Payments”). Notwithstanding the forgoing, upon the occurrence of the sale, transfer, lease, license, pledge, or other disposition of all or substantially all of the assets of Buyer (a “Trigger Event”), the outstanding Installment Payments remaining to Seller shall be immediately due and payable upon the occurrence of such Trigger Event.

2.3 Closing.

(a) The closing of the Transactions provided for in this Agreement (the “Closing”) shall take place contemporaneously with the execution and delivery of this Agreement (the date on which the Closing is to occur is referred to herein as the “Closing Date”).

(b) At the Closing, Seller shall deliver or cause to be delivered to Buyer certificates representing all of the Shares, free and clear of all Liens (other than legends or other restrictions solely evidencing the restricted nature of such Shares pursuant to applicable state and federal securities Laws) duly endorsed to Buyer or in blank or accompanied by duly executed stock powers, and Buyer shall deliver to Seller the Closing Payment.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF SELLER

Seller represents and warrants to Buyer as follows:

3.1 Ownership. All of the Shares (i) are owned of record and beneficially, directly or indirectly, by Seller free and clear of all Liens, and (ii) have been duly authorized, validly issued and are fully paid and non-assessable and were not issued in violation of any preemptive rights. Upon consummation of the Transactions (including the execution and delivery of the documents to be delivered at the Closing), at the Closing, Buyer shall be ves ted with good and marketable title in and to the Shares, free and clear of all Liens created by Seller.

3.2 Authorization; Binding Obligations. Seller has the power and authority to (i) own such Shares, (ii) execute and deliver this Agreement and all of the other agreements, certificates and documents delivered at or prior to the Closing in connection with the Transactions (the “Ancillary Documents”); and (iii) consummate the Transactions. This Agreement and the Ancillary Documents have been duly executed and delivered by Seller and constitute the legal, valid, and binding obligation of Seller, enforceable against such Seller in accordance with its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency, moratorium or other similar Law, now or hereafter in effect, relating to or affecting the rights of creditors generally and the availability of specific remedies may be limited by legal and equitable principles of general applicability.

3.3 No Conflicts. Neither the execution and delivery of this Agreement by Seller, nor the consummation by Seller of the Transactions contemplated hereby will conflict with, result in a termination of, contravene or constitute a default under, or be an event that with the giving of notice or passage of time or both will become a default under, or give to any other Person any right of termination, payment, acceleration, vesting or cancellation of or under, or accel erate the performance required by or maturity of, or result in the creation of any Lien or loss of any rights of Seller pursuant to any of the terms, conditions or provisions of or under any Law.

3.4 Approvals. There are no notices, reports or other filings required to be made by Seller with, or consents required to be obtained by Seller from, any Governmental Authority or other Person in order for Seller to execute, deliver or perform this Agreement or to consummate the transactions contemplated hereby.

3.5 Litigation. There is no investigation, action, suit, proceeding, claim, arbitration or other litigation pending or, to the Knowledge of Seller, threatened, against Seller that, individually or in the aggregate, would (i) affect the legality, validity or enforceability of this Agreement or (ii) prevent or materially impair or delay the consummation of the Transactions.

3.6 Brokers. No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or similar fee or commission in connection with the Transactions based upon arrangements made by or on behalf of Seller except those for which Seller will be solely responsible.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer hereby represents and warrants to Seller as follows:

4.1 Organization and Good Standing. Buyer is a legal entity duly organized, validly existing and in good standing under the Law of its jurisdiction of organization and has all requisite power and authority to own, operate and lease its assets and to carry on its business as currently conducted.

4.2 Authorization; Binding Obligations. Buyer has all necessary power and authority to make, execute and deliver this Agreement and to perform all of the obligations to be performed by it hereunder. The making, execution, delivery and performance by Buyer of this Agreement and the consummation by it of the Transactions have been duly and validly authorized by all necessary corporate action on the part of Buyer. This Agreement has been duly a nd validly executed and delivered by Buyer, and assuming the due authorization, execution and delivery by Seller, this Agreement will constitute the valid, legal and binding obligation of Buyer, enforceable against it in accordance with its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency, moratorium or other similar Law, now or hereafter in effect, relating to or affecting the rights of creditors generally and the availability of specific remedies may be limited by legal and equitable principles of general applicability.

4.3 No Conflicts. Neither the execution and delivery of this Agreement by Buyer nor the consummation by Buyer of the transactions contemplated hereby will conflict with, result in a termination of, contravene or constitute a default under, or be an event that with the giving of notice or passage of time or both will become a default under, or give to any other Person any right of termination, payment, acceleration, vesting or cancellation of or under, or accelera te the performance required by or maturity of, or result in the creation of any Lien or loss of any rights of Buyer pursuant to any of the terms, conditions or provisions of or under the Articles of Incorporation or Bylaws of Buyer.

ARTICLE 5

ADDITIONAL COVENANTS OF THE PARTIES

5.1 Taxes. All transfer, documentary, sales, use, stamp, registration and other such Taxes and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with consummation of the Transactions contemplated by this Agreement shall be paid by Buyer when due, and Buyer will, at its own expense, file all necessary tax returns and other documentation with respect to all such taxes, fees and charges.

5.2 Further Assurances; Cooperation.

(a) Upon the terms and subject to the conditions of this Agreement, each of Seller and Buyer shall use its reasonable best efforts, to take, agree to take, or cause to be taken, any and all actions and to do, or cause to be done, any and all things reasonably necessary, proper or advisable under any applicable Law or otherwise, so as to, as promptly as practicable, enable consummation of the Transactions, and each such Party shall, and shall cause its respective Affiliates to, cooperate fully to that end.

(b) Seller shall timely prepare and furnish and file any documents or instruments that Seller is required by Law to furnish or file with any Governmental Authority in connection with the Transactions, including, without limitation, the preparation and filing with the SEC of an amendment to that certain Schedule 13D of Seller filed with the SEC on March 9, 2010. Seller shall cooperate fully with Buyer to allow Buyer to timely furnish or file any additional documents or instruments that Buyer is required by Law to furnish or file, or that Buyer voluntarily chooses to furnish or file in connection with the Transactions, with any G overnmental Authority.

(c) On or after the Closing Date, the Parties shall, on request, cooperate with one another by furnishing any additional information, executing and delivering any additional documents and instruments, and doing any and all such other things as may be reasonably required by the Parties or their counsel to consummate or otherwise implement the Transactions.

ARTICLE 6

INDEMNIFICATION

6.1 Survival of Representations and Warranties and Covenants.

(a) The representations and warranties set forth in this Agreement and the right to commence any claim with respect thereto shall survive indefinitely.

(b) This Section 6.1 shall not limit any covenant or agreement of the Parties contained in this Agreement which by its terms contemplates performance after the Closing.

6.2 Indemnification of Buyer. Subject to the terms of this Article 6, from and after the Closing Date, Seller shall indemnify, defend, save and hold harmless Buyer and its Affiliates and each of their respective officers, directors, employees, agents, representatives, successors and assigns (collectively, the “Buyer Indemnified Parties”), from and against any and all :

(a) Losses resulting from or arising out of any breach by Seller of any representation or warranty of Seller in this Agreement; and

(b) Losses resulting from or arising out of the failure by Seller to perform any of its covenants or agreements contained in this Agreement.

6.3 Indemnification of Seller. Subject to the terms of this Article 6, from and after the Closing Date, Buyer shall indemnify, defend, save and hold harmless Seller and his successors and assigns (collectively, the “Seller Indemnified Parties” and together with the Buyer Indemnified Parties, the “Indemnified Parties,” and each, an “Indemnified Party”) from and against any and all:

(a) Losses resulting from or arising out of any breach by Buyer of any representation or warranty of Buyer in this Agreement; and

(b) Losses resulting from or arising out of the failure by Buyer to perform any of its covenants or agreements contained in this Agreement.

6.4 Claims. Upon receipt by an Indemnified Party of notice of any action, suit, proceedings, claim, demand or assessment made or brought by an unaffiliated third party (a “Third Party Claim”) with respect to a matter for which such Indemnified Party is indemnified under this Article 6 (notwithstanding the application of any threshold or cap) which has or is reasonabl y expected to give rise to a claim for Losses, the Indemnified Party shall as soon as practicable, in the case of a Buyer Indemnified Party, notify Seller and in the case of a Seller Indemnified Party, notify Buyer (Seller or Buyer, as the case may be, the “Indemnifying Party”), in writing and in reasonable detail, indicating the nature of such Third Party Claim and the basis therefor; provided, however, that any delay or failure by the Indemnified Party to give notice to the Indemnifying Party shall relieve the Indemnifying Party of its obligations hereunder only to the extent, if at all, that it is prejudiced by reason of such delay or failure. The Indemnifying Party shall have thirty (30) days after receipt of notice to elect, at its option, to assume and control the defense of, at its own expense and by its own counsel, any such Third Party Claim and shall be entitled to assert any and all defenses available to the Indemnified Party to the fullest extent permitted under requirements of Law. If the Indemnifying Party shall undertake to compromise or defend any such Third Party Claim, it shall promptly, but in any event within ten (10) Business Days of the receipt of notice from the Indemnified Party of such Third Party Claim, notify the Indemnified Party of its intention to do so, and the Indemnified Party agrees to cooperate fully with the Indemnifying Party and its counsel in the compromise of, or defense against, any such Third Party Claim; provided, however, that the Indemnifying Party shall not settle, compromise or discharge, or admit any liabilit y with respect to, any such Third Party Claim without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld or delayed), unless the relief consists solely of money Losses to be paid by the Indemnifying Party and includes a provision whereby the plaintiff or claimant in the matter releases the Seller Indemnified Parties or the Buyer Indemnified Parties, as applicable, from all liability with respect thereto. Notwithstanding an election to assume the defense of such action or proceeding, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such action or proceeding, and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel if the (i) Indemnified Party shall have determined in good faith that an actual or potential conflict of interest makes representation by the same counsel or the counsel selected by the Indemnifying Party inappropriate or (ii) I ndemnifying Party shall have authorized the Indemnified Party to employ separate counsel at the Indemnifying Party’s expense. In any event, the Indemnified Party and Indemnifying Party and their counsel shall cooperate in the defense of any Third Party Claim subject to this Article 6, keep such Persons informed of all developments relating to any such Third Party Claims and provide copies of all relevant correspondence and documentation relating thereto. All costs and expenses incurred in connection with the Indemnified Party’s cooperation shall be borne by the Indemnifying Party. In any event, the Indemnified Party shall have the right at its own expense to participate in the defense of such asserted liability. If the Indemnifying Party receiving such notice of a Third Party Claim does not elect to defend such Third Party Claim or does not defend such Third Party Claim in good faith, the Indemnified Party shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnifying Party’s expense, to defend such Third Party Claim; provided, however, that the Indemnified Party shall not settle, compromise or discharge, or admit any liability with respect to, any such Third Party Claim without the written consent of the Indemnifying Party (which consent will not be unreasonably withheld or delayed).

6.5 Limitations; Payments.

(a) Notwithstanding anything contained in this Agreement to the contrary, Seller shall not be required to make indemnification payments pursuant to Section 6.2(a) to the extent indemnification payments thereunder would exceed in the aggregate the Purchase Price (the “Seller Indemnification Cap”); provided, that the foregoing limitations shall not apply with respect to a breach by Seller of any of the representations and warranties of Seller contained in Sect ions 3.1, 3.2, or 3.6.

(b) Notwithstanding anything contained in this Agreement to the contrary, Buyer shall not be required to make indemnification payments pursuant to Section 6.3(a) to the extent indemnification payments thereunder would exceed in the aggregate the Purchase Price (the “Buyer Indemnification Cap”); provided, that the foregoing limitation shall not apply with respect to a breach by Buyer of any of the representations and warranties of Buyer contained in Sections 4.1 or 4.2.

6.6 Remedies Exclusive. Except as otherwise specifically provided herein, the remedies provided in this Article 6 shall be the exclusive monetary remedies (including equitable remedies that involve monetary payment, such as restitution or disgorgement, other than specific performance to enforce any payment or performance due hereunder) of the Parties from and after the Closing in connection with any breach of a representation or warranty, or non performance, part ial or total, of any covenant or agreement contained herein.

6.7 Mitigation. Each Indemnified Party shall use reasonable best efforts to mitigate any claim or liability that an Indemnified Party asserts or may assert under this Article 6. In the event that an Indemnified Party shall fail to make such reasonable best efforts to mitigate any such claim or liability, then notwithstanding anything contained in this Agreement to the contrary, neither Seller nor Buyer, as the case may be, shall be required to indemnif y any Indemnified Party for that portion of any Losses that would reasonably be expected to have been avoided if the Indemnified Party had made such efforts.

ARTICLE 7

MISCELLANEOUS PROVISIONS

7.1 Notice. All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) by facsimile, receipt confirmed, (c) on the next Business Day when sent by overnight courier, or (d) on the second succeeding Business Day when sent by registered or certified mail (postage prepaid, return receipt requested), to the respe ctive Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):

If to Buyer:

Pernix Therapeutics Holdings, Inc.

33219 Forest West Street

Magnolia, Texas 77354

Attn: Cooper Collins

With a copy to:

Jones, Walker, Waechter, Poitevent, Carrère & Denègre

201 St. Charles Avenue

51st Floor

New Orleans, Louisiana 70170-5100

Attn: Allen Frederick

If to Seller:

David Waguespack

8654 Pontchartrain Blvd. #8

New Orleans, Louisiana 70124

With a copy to:

Phelps Dunbar LLP

400 Convention Street

Suite 1100

Baton Rouge, Louisiana 70802

Attn: Jeffrey W. Koonce

7.2 Entire Agreement. This Agreement, and all schedules, annexes and exhibits hereto, embody the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior agreements with respect thereto. The Parties intend that this Agreement shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial proceeding involving this Agreement.

7.3 Amendment and Modification. No amendment to this Agreement shall be effective unless it shall be in writing and signed by each Party. Any failure of a Party to comply with any obligation, covenant, agreement or condition contained in this Agreement may be waived by the Party entitled to the benefits thereof only by a written instrument duly executed and delivered by the Party granting such waiver, but such waiver or failure to insist upon strict co mpliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure of compliance.

7.4 Assignment; Binding Agreement. This Agreement and various rights and obligations arising hereunder shall inure to the benefit of and be binding upon the Parties hereto and their successors and permitted assigns. Neither this Agreement nor any of the rights, interests, or obligations hereunder shall be transferred, delegated, or assigned (by operation of law or otherwise), by the Parties hereto without the prior written consent of the other Party.

7.5 Waiver of Compliance; Consents. Any failure of Seller, on the one hand, or Buyer, on the other hand, to comply with any obligation, covenant, agreement or condition herein may be waived by Buyer, on the one hand, or Seller, on the other hand, only by a written instrument signed by the Party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Whenever this Agreement requires or permits consent by or on behalf of any Party hereto, such consent shall be given in writing in a manner consistent with the requirements for a waiver of compliance as set forth in this Section 7.5.

7.6 Expenses. All costs and expenses incurred by Buyer in connection with this Agreement and the Transactions contemplated hereby shall be paid by Buyer. All costs and expenses incurred by Seller in connection with this Agreement and the Transactions contemplated hereby shall be paid by Seller.

7.7 Counterparts. This Agreement may be executed in multiple counterparts, and on separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.

7.8 Severability. If any other provision of this Agreement shall be determined to be contrary to Law and unenforceable by any court of law, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions contemplated hereby are not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is inva lid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the Transactions contemplated hereby are fulfilled to the extent possible.

7.9 Remedies Cumulative. Except as otherwise provided herein, all rights and remedies of the Parties under this Agreement are cumulative and without prejudice to any other rights or remedies under Law. Nothing contained herein shall be construed as limiting the Parties’ rights to redress for fraud.

7.10 Governing Law. This Agreement shall in all respects be construed in accordance with and governed by the substantive laws of the State of Louisiana, without reference to its choice of law rules.

7.11 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

7.12 No Third Party Beneficiaries or Other Rights. Nothing herein shall grant to or create in any Person not a Party hereto, or any such Person’s dependents, heirs, successors or assigns, any right to any benefits hereunder, and no such party shall be entitled to sue any Party to this Agreement with respect thereto. The provisions of Article 6 will inure solely to the benefit of the Indemnified Parties. No Party may assign its rights o r obligations under this Agreement without the prior written consent of the other Party and any purported assignment without such consent shall be void. The representations and warranties contained in this Agreement are made for purposes of this Agreement only and shall not be construed to confer any additional rights on the Parties under applicable state and federal securities Laws.

7.13 Specific Performance and Other Equitable Relief. The Parties hereby expressly recognize and acknowledge that immediate, extensive and irreparable damage would result, no adequate remedy at law would exist and damages would be difficult to determine in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached. Therefore, in addition to, and not in limitation of, any other remedy a vailable to any Party, an aggrieved Party under this Agreement will be entitled to specific performance of the terms hereof and immediate injunctive relief, without the necessity of proving the inadequacy of money damages as a remedy. Such remedies, and any and all other remedies provided for in this Agreement, shall, however, be cumulative in nature and not exclusive and shall be in addition to any other remedies whatsoever which any Party may otherwise have.

7.14 Headings; Interpretation. The article and section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. Each reference in this Agreement to an Article, Section, Schedule or Exhibit, unless otherwise indicated, shall mean an Article or a Section of this Agreement or a Schedule or Exhibit attached to this Agreement, respectively. 60;Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement; (iv) the terms “include,” “includes,” “including,” and derivative or similar words shall b e construed to be followed by the phrase “without limitation”; and (v) references herein to “days” are to consecutive calendar days unless Business Days are specified. All accounting terms used herein and not expressly defined herein shall have the meanings given to them under generally accepted accounting principles. Both Parties have participated substantially in the negotiation and drafting of this Agreement and agree that no ambiguity herein should be construed against the draftsman.

7.15 No Other Representations or Warranties.

(a) Except for the representations and warranties contained in this Agreement, Seller does not make, and shall not be deemed to make, any representation or warranty to Buyer, express or implied, at law or in equity, on behalf of Seller, and Seller hereby excludes and disclaims any such representation or warranty, notwithstanding the delivery or disclosure to Buyer or any of its Affiliates or their respective officers, directors, employees or representatives or any other Person of any documentation or other information.

(b) Except for the representations and warranties contained in this Agreement, neither Buyer nor any of its Affiliates or their respective officers, directors, employees or representatives, nor any other Person, makes, or shall be deemed to make, any representation or warranty to Seller, express or implied, at law or in equity, on behalf of Buyer, and Buyer hereby excludes and disclaims any such representation or warranty, notwithstanding the delivery or disclosure to Seller.

[Remainder of page intentionally left blank; signature page attached.]

IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed as of the date first above written.

	“BUYER”

	PERNIX THERAPEUTICS HOLDINGS, INC.

	By:	/s/ Cooper C. Collins
	Name:	Cooper C. Collins
	Title:	President and Chief Executive Officer


	“SELLER”

		/s/ David Waguespack
		David Waguespack

[Signature Page to Stock Purchase Agreement]

EX-2 3 ptx_ex2.htm MERGER PARTNER STOCKHOLDER AGREEMENT ptx_ex2.htm

EXHIBIT 2

MERGER PARTNER

STOCKHOLDER AGREEMENT

THIS STOCKHOLDER AGREEMENT (this “Agreement”), dated as of October 6, 2009, is by and among Golf Trust of America, Inc., a Maryland corporation (“Public Company”), Pernix Therapeutics, Inc., a Louisiana corporation (“Merger Partner”), and the undersigned stockholder (“Stockholder”) of Merger Partner.

WHEREAS, concurrently with the execution and delivery of this Agreement, Public Company, GTA Acquisition, LLC, a Louisiana limited liability company and a wholly owned subsidiary of Public Company (the “Transitory Subsidiary”), and Merger Partner have entered into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended or supplemented from time to time pursuant to the terms thereof, the “Merger Agreement”), which provides for the merger (the “Merger”) of Merger Partner into Transitory Subsidiary in accordance with the terms of the Merger Agreement;

WHEREAS, Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of such number of shares of common stock of Merger Partner as is indicated on the signature page of this Agreement; and

WHEREAS, in consideration of the execution and delivery of the Merger Agreement by Public Company and the Transitory Subsidiary, Stockholder desires to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing, intending to be legally bound, the parties hereto hereby agree as follows:

1.	Certain Definitions. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Merger Agreement. For purposes of this Agreement, the following terms shall have the following meanings:

“Constructive Sale” means with respect to any security, a short sale with respect to such security, entering into or acquiring an offsetting derivative contract with respect to such security, entering into or acquiring a futures or forward contract to deliver such security or entering into any other hedging or other derivative transaction that has the effect of either directly or indirectly materially changing the economic benefits or risks of ownership.

“Merger Partner Shares” means (i) all shares of capital stock of Merger Partner owned, beneficially or of record, by Stockholder as of the date hereof, and (ii) all additional shares of capital stock of Merger Partner acquired by Stockholder, beneficially or of record, from the date of this Agreement and expiring on the Expiration Date (as such term is defined in Section 8 below).

“Transfer” means, with respect to any security, the direct or indirect assignment, sale, transfer, tender, exchange, pledge, hypothecation, or the grant, creation or suffrage of a lien, security interest or encumbrance in or upon, or the gift, placement in trust, or the Constructive Sale or other disposition of such security (including transfers by testamentary or intestate succession or otherwise by operation of law) or any right, title or interest therein (including, but not limited to, any right or power to vote to which the holder thereof may be entitled, whether such right or power is granted by proxy or otherwise), or the record or beneficial ownership thereof, the offer to make such a sale, transfer, Constructive Sale or other disposition, and each agree ment, arrangement or understanding, whether or not in writing, to effect any of the foregoing.

2.	Transfer Restrictions with Respect to the Merger Partner Shares.

At all times during the period commencing with the execution and delivery of this Agreement and expiring on the Expiration Date, Stockholder shall not, except in connection with the Merger, Transfer any of the Merger Partner Shares, or discuss, negotiate, make an offer or enter into an agreement, commitment or other arrangement with respect thereto. Notwithstanding the immediately preceding sentence, the foregoing restrictions shall not apply to any Transfer of Merger Partner Shares to any beneficiary of Stockholder pursuant to will, intestacy or other testamentary document or applicable laws of descent in the event of the death of Stockholder, provided that Stockholder’s heir or heirs thereof shall have executed and delivered a counterpart of this Agreement.

Stockholder understands and agrees that if Stockholder attempts to Transfer any of the Merger Partner Shares other than in compliance with this Agreement, Merger Partner shall not, and Stockholder hereby unconditionally and irrevocably instructs Merger Partner to not, (i) permit any such Transfer on its books and records or (ii) issue a new certificate representing any of the Merger Partner Shares, unless and until Stockholder shall have complied with the terms of this Agreement.

3.	Lock-Up with Respect to Public Company Common Stock.

Initial Lock-Up Period. Stockholder shall not during the period commencing upon the Effective Time and ending on the first anniversary of the filing of the Post-Merger 8-K with the SEC or such earlier period as may be determined by Public Company Board pursuant to Section 4 below (the “Initial Lock-Up Period”), Transfer any shares of Public Company Common Stock received in exchange for his Merger Partner Shares pursuant to the Merger. During each of the three years following the Initial Lock-Up Period, Stockholder shall not Transfer more than one-third of the aggregate number of shares of Public Company Common Stock received in exchange for his Merger Partner Shares.

Additional Restrictions. The restrictions on Transfer set forth in this Agreement shall be in addition to any restrictions on Transfer under any federal and state securities laws, including, without limitation, Rule 144 of the Securities Act of 1933. Additionally, the restrictions set forth in this Section 3 shall not apply to Transfers to any beneficiary of the Stockholder pursuant to will, intestacy or other testamentary document or applicable laws of descent in the event of the death of Stockholder, provided that Stockholder’s heir or heirs thereof shall have executed and delivered a counterpart of this Agreement.

Right to Decline Transfer. Public Company is hereby authorized to disclose the existence of this Agreement to its transfer agent and registrar. Stockholder also agrees and consents to (i) the entry of stop transfer instructions with Public Company’s transfer agent and registrar against the Transfer of Stockholder’s shares of Public Company Common Stock received in exchange for his Merger Partner Shares pursuant to the Merger except in compliance with the foregoing restrictions and (ii) the imprint of a legend on any certificate representing Stockholder’s shares of Public Company Common Stock received in exchange for his Merger Partner Shares pursuant to the Merger describing the restrictions contained herein. In the case of any shares of Public Company Common St ock received in exchange for his Merger Partner Shares pursuant to the Merger for which Stockholder is the beneficial but not the record holder, Stockholder agrees to cause the record holder to comply with the foregoing provisions of this Section 3(c).

Legal Opinion. Notwithstanding anything to the contrary contained in Section 3, in the event Public Company Board receives an opinion of counsel at any time following the Effective Time from such law firm and in such form as Public Company Board, in its sole and absolute discretion, deems satisfactory, opining that Public Company is not, and has not previously been, a “shell company” (as defined in Rule 405 of the Securities Act of 1933), and that Rule 144 of the Securities Act of 1933 is available for the resale of Public Company Common Stock, the Initial Lock-Up Period shall, without any further action on the part of any party to this Agreement, commence upon the Effective Time and end on the date on which the legal opinion indicates the shares of Public Company Common Stock received in exchange for Stockholder’s Merger Partner Shares pursuant to the Merger may be transferred without registration under the Securities Act of 1933 pursuant to Rule 144 thereof. Promptly following its determination that such legal opinion is satisfactory, Public Company shall notify Stockholder of the modification to the Initial Lock-Up Period pursuant to this Section 4.

Action in Stockholder Capacity Only. Stockholder makes no agreement or understanding herein as a director or officer of Merger Partner. Stockholder signs solely in Stockholder’s capacity as a record holder and beneficial owner, as applicable, of Merger Partner Shares, and nothing herein shall limit or affect any actions taken in Stockholder’s capacity as an officer or director of Merger Partner.

6.	Representations and Warranties of Stockholder. Stockholder hereby represents and warrants to Public Company as follows:

(i) Stockholder is the beneficial or record owner of the shares of capital stock of Merger Partner indicated on the signature page of this Agreement free and clear of any and all pledges, liens, security interests, mortgage, claims, charges, restrictions, options, title defects or encumbrances; (ii) Stockholder does not beneficially own any securities of Merger Partner other than the shares of capital stock set forth on the signature page of this Agreement; (iii) Stockholder has full power and authority to make, enter into and carry out the terms of this Agreement; and (iv) this Agreement has been duly and validly executed and delivered by Stockholder and constitutes a valid and binding agreement of Stockholder enforceable against Stockholder in accordance with its terms. Stockholder agrees to notify Public Company promptly of any addit ional shares of capital stock of Merger Partner of which Stockholder becomes the beneficial owner after the date of this Agreement.

The execution and delivery of this Agreement and the performance by Stockholder of his, her or its agreements and obligations hereunder will not result in any breach or violation of or be in conflict with or constitute a default under any term of any agreement, judgment, injunction, order, decree, law, regulation or arrangement to which Stockholder is a party or by which Stockholder (or any of his, her or its assets) is bound, except for any such breach, violation, conflict or default which, individually or in the aggregate, would not impair or adversely affect Stockholder’s ability to perform his obligations under this Agreement or render inaccurate any of the representations made by Stockholder herein.

Except as disclosed pursuant to the Merger Agreement, no investment banker, broker, finder or other intermediary is entitled to a fee or commission from Public Company, the Transitory Subsidiary or Merger Partner in respect of this Agreement based upon any arrangement or agreement made by or on behalf of Stockholder.

d.	Stockholder understands and acknowledges that Public Company, the Transitory Subsidiary and Merger Partner are entering into the Merger Agreement in reliance upon Stockholder’s execution and delivery of this Agreement and the representations and warranties of Stockholder contained herein.

Confidentiality. Stockholder recognizes that successful consummation of the Merger may be dependent upon confidentiality with respect to the matters referred to herein. In this connection, pending public disclosure thereof, and so that Public Company may rely on the safe harbor provisions of Rule 100(b)(2)(ii) of Regulation FD promulgated under the Securities Exchange Act of 1934, Stockholder hereby agrees not to disclose or discuss such matters with anyone not a party to this Agreement (other than its counsel and advisors, if any) without the prior written consent of Public Company and Merger Partner, except for disclosures Stockholder’s counsel advises are required by applicable law, in which case Stockholder shall give notice of such disclosure to Public Company and Me rger Partner as promptly as practicable so as to enable Public Company and Merger Partner to seek a protective order from a court of competent jurisdiction with respect thereto.

Termination. This Agreement, other than Sections 3, 4 and 9 hereof, shall terminate and be of no further force or effect whatsoever as of the earlier of (a) such date and time as the Merger Agreement shall have been validly terminated pursuant to the terms of Article IX thereof or (b) the Effective Time (the “Expiration Date”). Notwithstanding anything in this Agreement to the contrary, Sections 3, 4 and 9 hereof shall remain in full force and effect following the Effective Time for the time periods provided in Sections 3 and 4.

9.	Miscellaneous Provisions.

Amendments, Modifications and Waivers. This Agreement may not be amended or modified except by an instrument in writing signed on behalf of each of the parties hereto. Any agreement on the part of a party hereto to any waiver of any term or condition hereof shall be valid only if set forth in a written instrument signed on behalf of such party. Such waiver shall not be deemed to apply to any term or condition other than that which is specified in such waiver. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

b.	Entire Agreement. This Agreement constitutes the entire agreement among the parties to this Agreement and supersedes any prior understandings, agreements or representations by or among the parties hereto, or any of them, written or oral, with respect to the subject matter hereof.

Governing Law. All matters arising out of or relating to this Agreement and the transactions contemplated hereby (including without limitation its interpretation, construction, performance and enforcement) shall be governed by and construed in accordance with the internal laws of the State of Louisiana without giving effect to any choice or conflict of law provision or rule (whether of the State of Louisiana or any other jurisdiction) that would cause the application of laws of any jurisdictions other than those of the State of Louisiana.

Submission to Jurisdiction. Each of the parties to this Agreement (i) consents to submit itself to the exclusive personal jurisdiction of the State of Louisiana in any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that all claims in respect of such action or proceeding may be heard and determined in a court located in Louisiana, (iii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any court and (iv) agrees not to bring any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement in any other jurisdiction. Each of the parties hereto waives an y defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Any party may make service on another party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in Section 9(m) hereof. Nothing in this Section 9(d), however, shall affect the right of any party to serve legal process in any other manner permitted by law.

WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.

Indemnification; Attorneys’ Fees. Stockholder agrees to defend, protect, indemnify and hold harmless Merger Partner, Public Company, and their respective affiliates, parents, directors, officers, employees, representatives and agents, and each of them, for, from and against any and all Losses (as defined below), including third party claims, arising out of, caused by, relating to, resulting from or in connection with, a breach by Stockholder of the terms of this Agreement. “Loss” means any liability, claim, demand, damage, loss, fine, penalty, cause of action, suit or cost, of any kind or description, including, but not limited to, judgments, liens, expenses (including, but not limited to, court costs and attorneys’ fees) and amounts agreed upon in sett lement.

Assignment and Successors. No party may assign any of its rights or delegate any of its performance obligations under this Agreement, in whole or in part, by operation of law or otherwise without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns. Any purported assignment of rights or delegation of performance obligations in violation of this Section 9(g) shall be null and void.

h.	No Third Party Beneficiaries. This Agreement is not intended, and shall not be deemed, to confer any rights or remedies upon any person other than the parties hereto and their respective successors and permitted assigns, or to otherwise create any third-party beneficiary hereto.

Cooperation. Stockholder agrees to cooperate fully with Public Company and to execute and deliver such further documents, certificates, agreements and instruments and to take such other actions as may be reasonably requested by Public Company to evidence or reflect the transactions contemplated by this Agreement and to carry out the intent and purpose of this Agreement.

Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of th e invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

Specific Performance; Injunctive Relief. The parties hereto acknowledge that Public Company and Merger Partner shall be irreparably harmed and that there shall be no adequate remedy at law for a violation of any of the covenants or agreements of Stockholder set forth in this Agreement. Stockholder accordingly agrees that, in addition to any other remedies that may be available to Public Company or Merger Partner, as applicable upon any such violation, such party shall have the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to such party at law or in equity without posting any bond or other undertaking.

Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly delivered (i) four business days after being sent by registered or certified mail, return receipt requested, postage prepaid, or (ii) one business day after being sent for next business day delivery, fees prepaid, via a reputable nationwide overnight courier service, in each case to the intended recipient as follows: (A) if to Public Company or Merger Partner, to the address provided in the Merger Agreement, including to the persons designated therein to receive copies, and (B) if to Stockholder, to Stockholder’s address shown below Stockholder’s signature on the signature page hereof.

Counterparts and Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties hereto and delivered to the other parties, it being understood that all parties need not sign the same counterpart. The exchange of copies of this Agreement of amendments thereto and of signature pages by facsimile transmission or by email transmission in portable document format, or similar format, shall constitute effective execution and delivery of such instrument(s) as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or by email transmission in portable document format, or similar format, shall be deemed to be their original signatures for all purposes.

n.	Headings. The headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.

o.	Legal Representation. The parties have participated jointly in the negotiation and drafting of this Agreement. No provision of this Agreement will be interpreted for or against any party because his or its legal representative drafted the provision.

(Signature page(s) follows)

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the date first written above.

GOLF TRUST OF AMERICA, INC.		STOCKHOLDER:

/s/ Michael C. Pearce		/s/ David E. Waguespack
Name:	Michael C. Pearce	Name: David E. Waguespack
Title:	Chief Executive Officer and Chairman of the Board of Directors
		Address:
PERNIX THERAPEUTICS, INC.
		717 Nashville Avenue, Apt. 4
		New Orleans, LA 70115

/s/ Cooper C. Collins
Name:	Cooper C. Collins
Title:	President	Telephone: ( ) -
		Facsimile: ( ) -
		E-Mail Address:

		Shares Beneficially Owned by
		Stockholder:
		20 Merger Partner Shares

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