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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 announcement concerning this
Agreement or the subject matter hereof without the prior written
consent of the other which shall not b
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