Exhibit 10.138
TERMINATION
AGREEMENT
BETWEEN
BIOVEST INTERNATIONAL,
INC.
AND
ACCENTIA BIOPHARMACEUTICALS,
INC.
This Termination Agreement (this
“Termination Agreement”) effective as of October 31,
2006, by and between BIOVEST INTERNATIONAL, INC. , a
Delaware corporation (“BIOVEST”) and ACCENTIA
BIOPHARMACEUTICALS, INC ., f/k/a Accentia, Inc., a Florida
corporation, (“ACCENTIA”) (collectively the
“Parties”).
WITNESSETH:
Whereas, BIOVEST and ACCENTIA
entered in to an Agreement dated June 16, 2003 a copy of which
is attached as Exhibit A (the “First Right of Refusal
Agreement”);
Whereas, ACCENTIA has on a number of
occasions at the request of BIOVEST waived its right to exercise
its right to acquire stock under the First Right of Refusal
Agreement; and
Whereas, BIOVEST and ACCENTIA wish
to terminate the First Right of Refusal Agreement effective
immediately by entering into this Termination Agreement;
and
NOW, THEREFORE, in consideration of
the various promises and undertakings set forth herein, the Parties
agree as follows:
ARTICLE 1 -
DEFINITIONS
As used herein, capitalized terms
shall have the following meanings:
1.1 “Affiliate,” with
respect to any Party, shall mean any person or entity controlling,
controlled by, or under common control with such Party. For these
purposes, “control” shall refer to (i) the
possession, directly or indirectly, of the power to direct the
management or policies of a person or entity, whether through the
ownership of voting securities, by contract or otherwise or
(ii) the ownership, directly or indirectly, of at least 50% of
the voting securities or other ownership interest of a person or
entity.
1.2 “First Right of Refusal
Agreement” shall mean the Agreement dated June 16, 2003
by and between ACCENTIA and BIOVEST, a copy of which is attached as
Exhibit A.
1.3 “Effective Date”
shall mean the later of the date first written above.
ARTICLE 2 - REPRESENTATIONS AND
WARRANTIES
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; 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.
2.2 Representations and
Warranties of BIOVEST . BIOVEST hereby represents and warrants
that:
(a) The shares of BIOVEST common
stock issued in payment of the Purchase Price shall upon delivery
hereunder be fully paid and non-assessable.
ARTICLE 3 – TERMINATION OF
THE FIRST RIGHT OF REFUSAL AGREEMENT
3.1 Termination of the First
Right Of Refusal Agreement . On the Effective Date, the First
Right Of Refusal Agreement shall be terminated and of no continuing
effect (“Termination of the First Right of Refusal
Agreement”).
3.2 Purchase Price for
Termination of the First Right of Refusal Agreement. The
purchase price for the Termination of the First Right of Refusal
Agreement is Five Million Five Hundred Thousand Dollars
($5,500,000) (the “Purchase Price”). The Purchase Price
shall be paid by BIOVEST delivering to ACCENTIA at Closing Five
Million (5,000,000) shares of BIOVEST fully paid and
non-assessable common stock, $0.01 par value, valued at $1.10 per
share.
ARTICLE 4 -
MISCELLANEOUS
PROVISIONS
4.1 Further Actions . Each
Party agrees to execute, acknowledge and deliver such further
instructions, and to do all such other acts, as may be necessary or
appropriate in order to carry out the purposes and intent of this
Agreement.
4.2 Public Announcements .
Except as required by law, neither Party shall make any public
announ
