Exhibit 10.139
Biolender Purchase
Agreement
This Purchase Agreement (this
“Agreement”) is dated as of October 31, 2006, is made
by and between Biovest International, Inc., a Delaware corporation
(“Biovest”) and Accentia Biopharmaceuticals, Inc. a
Florida Corporation (“Accentia”).
WHEREAS , Biovest and Accentia are the only two members
of Biolender LLC, a Delaware Limited Liability Company
(“Biolender”); and
WHEREAS , Biovest wishes to acquire and Accentia wishes
to assign all of Accentia’s interest in Biolender subject to
the terms and provisions hereof.
NOW, THEREFORE
, in consideration of the mutual
covenants contained in this Agreement, and for other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, Biovest and Accentia agree as follows:
ARTICLE 1
Purchase and
Sale
Section 1.1. Transaction
. Subject to the terms and conditions of this Agreement, on the
Closing Date, Biovest shall purchase and Accentia shall sell and
assign to Biovest all of Accentia’s membership interests in
Biolender which shall on the Closing date equal seventy and one
half percent (70.5%) of the outstanding ownership interests of
Biolender (the “Membership Interests”).
Section 1.2 Purchase
Price . As the full and complete purchase price for the
Membership Interests, Biovest shall issue and deliver to Accentia
Ten million (10,000,000) shares of fully paid and
non-assessable common stock of Biovest, $0.01 par value per share
(the “Purchase Price”).
Section 1.3 Closing .
The purchase and sale shall be closed on October 31, 2006 at the
offices of Biovest or such other place as the parties may mutually
agree (the “Closing”).
Section 1.4 Closing
Deliveries .
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(a)
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At the Closing,
Accentia shall deliver or cause to be delivered to Biovest the
following (the “Accentia Deliverables”):
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(i)
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A certificate
evidencing seventy and one half percent (70.5%) of the
outstanding membership interests of Biolender together with a fully
executed assignment to Biovest;
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(ii)
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An amendment to
the Biolender Limited Liability Company Agreement executed by
Accentia reflecting the assignment of Accentia’s membership
interests to Biovest and the withdrawal of Accentia as a member of
Biolender; and
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(iii)
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A waiver
executed by Laurus Master Fund, Ltd. of Section 5(a) of that
certain Accentia Pledge Agreement, among Accentia, Biovest and
Laurus Master Fund, Ltd.
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(b)
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At the Closing,
Biovest shall deliver or cause to be delivered to Accentia the
following (the “Biovest Deliverables”, together with
the Accentia Deliverables, the “Closing
Deliverables”):
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(i)
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A dully issued
and executed certificate evidencing Ten Million shares of fully
paid and non-assessable Biovest common stock, $0.01 par value per
share, issued in the name of Accentia; and
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(ii)
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An amendment to
the Biolender Limited Liability Company Agreement by Biovest
reflecting the assignment of Accentia’s membership interests
to Biovest and the withdrawal of Accentia as a member of
Biolender.
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ARTICLE 2
Representations and
Warranties
Section 2.1. Representations
and Warranties of Both Parties . Each Party represents and
warrants to the other Party that: (i) it is free to enter into
this Agreement; (ii) in so doing, it will not violate any
other agreement to which it is a party or has received a waiver of
any such violation; and (iii) it has taken all corporate
action necessary to authorize the execution and delivery of this
Agreement and the performance of its obligations under this
Agreement.
Section 2.2. Representations
and Warranties of Accentia . Accentia hereby represents and
warrants to Biovest as follows:
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(a)
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Organization;
Authority . Accentia is
an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with the
requisite corporate power and authority to enter into
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and to consummate the
transactions contemplated by this Agreement and otherwise to carry
out its obligations hereunder. The execution, delivery and
performance by Accentia of the transactions contemplated by this
Agreement has been duly authorized by all necessary corporate
action on the part of Accentia. This Agreement has been duly
executed by Accentia, and when delivered by Accentia in accordance
with terms hereof, will constitute the valid and legally binding
obligation of Accentia, enforceable against it in accordance with
its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the
enforcement of, creditors’ rights and remedies or by other
equitable principles of general application. Neither the execution
and delivery by Accentia of this Agreement nor the performance of
any of the duties and obligations of Accentia under this Agreement
constitutes a violation of (a) the certificate of formation or
the operating agreement of Accentia; (b) any material
agreement by which Accentia is bound or to which any of its
property or assets is subject, or (c) any applicable
law.
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(b)
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Investment
Intent . Accentia is
acquiring the Securities as principal for its own account for
investment purposes only and not with a view to or for distributing
or reselling such Securities or any part thereof, without
prejudice, however, to such Accentia’s right at all times to
sell or otherwise dispose of all or any part of such Securities in
compliance with applicable federal and state securities laws.
Subject to the immediately preceding sentence, nothing contained
herein shall be deemed a representation or warranty by Accentia to
hold the Securities for any period of time. Accentia is acquiring
the Securities hereunder in the ordinary course of its
business.
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(c)
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Access to
Information . Accentia
acknowledges that it has such knowledge and experience in financial
and business matters so as to be capable of evaluating and
understanding, and has evaluated and understood, the merits and
risks of an investment in Biovest, and it has been given the
opportunity to review and that it has reviewed the Disclosure
Materials and has been afforded (i) the opportunity to ask
such questions as it has deemed necessary of, and to receive
answers from, representatives of biovest concerning the terms
and
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(d)
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conditions of
the offering of the Shares and the merits and risks of investing in
the Securities; (ii) access to information about Biovest and
its respective financial condition, results of operations,
business, properties, management and prospects sufficient to enable
it to evaluate its investment; and (iii) the opportunity to
obtain such additional information that Biovest possesses or can
acquire without unreasonable effort or expense that is necessary to
make an informed investment decision with respect to the
investment.
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Section 2.3. Representations
and Warranties of Biovest . Biovest hereby represents and
warrants to Accentia as follows:
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(a)
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Organization; Authority . Biovest is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its organization with the requisite corporate power and authority
to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations
hereunder. The execution, delivery and performance by Biovest of
the transactions contemplated by this Agreement has been duly
authorized by all necessary corporate action on the part of
Biovest. This Agreement has been duly executed by Biovest, and when
delivered by Biovest in accordance with terms hereof, will
constitute the valid and legally binding obligation of Biovest,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally the enforcement of, creditors’
rights and remedies or by other equitable principles of general
application. Neither the execution and delivery by Biovest of this
Agreement nor the performance of any of the duties and obligations
of Biovest under this Agreement constitutes a violation of
(a) the certificate of formation or the operating agreement of
Biovest; (b) any material agreement by which Biovest is bound
or to which any of its property or assets is subject, or
(c) any applicable law.
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