EXHIBIT 3
ESCROW AGREEMENT
among
Biovest International, Inc.,
Accentia, Inc.
and
XXXXXXXX XXXXX SINGER & XXXXXXXXX, LLP
as Escrow Agent
Dated June 16, 2003
ESCROW AGREEMENT ("Agreement"), dated June 16, 2003, among Accentia,
Inc., a Florida corporation with offices at 0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx
000, Xxxxx, Xxxxxxx 00000 ("Accentia"), Biovest International, Inc., a Delaware
corporation with offices at 0000 Xxxxxxxxx Xxxx., Xxxxxxxxxxx, XX 00000
("Biovest"), and Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP, as escrow agent (the
"Escrow Agent").
Whereas, Accentia and Biovest are party to that certain Investment
Agreement dated April 10, 2003 (as amended by the amendment thereto dated an
even date with this Agreement, the "Investment Agreement");
Whereas, Accentia and Biovest desire to enter into further amendments
to the Investment Agreement with respect to Accentia's agreement to subscribe
for shares of Biovest's capital stock and, in connection therewith, enter into
certain other agreements relating to the subject matter of the Investment
Agreement;
Whereas, the Investment Agreement (as further amended by the terms of
this Agreement) provides that Biovest is required to place certificates
evidencing shares of Biovest's capital stock in escrow for the benefit of
Accentia and Biovest pursuant to and in accordance with the terms of this
Agreement; and
Whereas, this Agreement is in the best interests of Accentia and
Biovest.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
DEFINED TERMS
-------------
Capitalized terms used in this Agreement without definition have the
respective meanings set forth in the Investment Agreement.
SECTION I
---------
Amendments to Investment Agreement; Related Agreements
------------------------------------------------------
1.1 Further Amendments. Notwithstanding anything to the contrary set forth
in the Investment Agreement, Accentia and Biovest agree, subject to the terms of
this Agreement, as follows:
(a) At the initial Closing of the subscription for Biovest capital
stock under the Investment Agreement, (i) upon payment by Accentia to Biovest of
$2,500,000 (less $530,000 evidenced by that certain secured Promissory Note
dated April 10, 2003 which is hereby satisfied and discharged in full), Biovest
shall issue 5,491,852 shares of Biovest common stock (the "Fully Paid Shares")
to Accentia; (ii) a stock certificate evidencing 5,491,852 shares of Biovest
common stock shall be placed in the escrow created by this Agreement for the
benefit of Accentia and Biovest to be held pursuant to the terms of this
Agreement and only transferred to Accentia in accordance with the terms of this
Agreement on the payment of Accentia's $2,500,000 promissory note evidencing the
subscription price therefor ("$2.5M Note") on the 90th day following the date
hereof (such stock certificate, the "Second Closing Stock
Certificate"); and (iii) share certificates evidencing 16,907,333 shares of
Biovest common stock and 8,021,886 shares of Biovest preferred stock purchasable
by Accentia upon any delivery of the $15M Note (as defined below) to Biovest
pursuant to this Agreement shall be placed in the escrow created by this
Agreement for the benefit of Accentia and Biovest to be held in accordance with
the terms of this Agreement (such certificates, together with the Second Closing
Stock Certificate, the "Escrowed Stock Certificates").
1.2 Completion of Due Diligence. Accentia acknowledges and confirms that it
has completed its due diligence investigation of Biovest in connection with the
Investment Agreement to Accentia's complete satisfaction where such due
diligence investigation did not reveal (and Accentia has no, and shall not make
any, claim in respect of ) any breach of representation, warranty or covenant
(to the extent the performable prior to the date hereof) of Biovest under the
Investment Agreement. All of the closing conditions to Accentia's obligations to
purchase shares of Biovest capital stock under the Investment Agreement have
been satisfied by Biovest. The issuance of the shares evidenced by the Escrowed
Stock Certificates (the "Shares"), and Accentia's obligation to pay the
subscription price therefor, are not subject to the satisfaction of any further
condition with respect to or on the part of Biovest and/or its business,
property, condition (financial or otherwise), assets or prospects. No further
events, circumstances, occurrences or conditions (or the absence thereof) with
respect to Biovest shall constitute a condition precedent to Accentia's
obligations to pay the purchase/subscription price for all of the Shares and to
pay the $15M Note when due.
1.3 Promissory Notes. The $2.5M Note and the $15,000,000 Promissory Note
(the "$15M Promissory Note") issued by Accentia in payment of the
purchase/subscription price for 16,907,333 common shares and 8,021,886 preferred
shares of the Shares referred to in Section 1.1(a)(iii) above shall be placed
into escrow in accordance with the terms of this Agreement and released to
Biovest in accordance with the terms of this Agreement.
1.4 Release of Escrowed Stock Certificates; Satisfaction of $2.5M Note. In
the event that the Escrowed Stock Certificates are not released to Accentia
because of the failure by Accentia timely to satisfy the Escrow Conditions (as
defined below), then Biovest shall be free to complete the Stock Powers (as
defined below) in order to retain the Shares (as treasury shares or to cancel
the Shares) and Accentia shall have no continuing rights under the Investment
Agreement to subscribe for, purchase and/or be issued any further shares of
Biovest capital stock. In such event, Accentia's rights under the Investment
Agreement shall terminate; provided that Accentia shall be entitled to retain
the Fully Paid Shares and Biovest shall be entitled to retain the purchase price
therefor. In the satisfaction of the Escrow Conditions, the $2.5M Note shall be
paid and satisfied by Accentia's payment in full in cash to Biovest which shall
be deemed to occur immediately prior to the satisfaction of all other Escrow
Conditions.
1.5 Voting Proxy. For so long as the shares evidenced by the Escrowed Stock
Certificates are held in escrow in accordance with the terms hereof, Accentia
does hereby constitute and appoint Xxxxxxxxxxx Xxxxxxxxxx as Accentia's proxy to
exercise the right to vote the Shares evidenced thereby (including the right to
act by consent and to call and attend all meetings by Biovest stockholders) with
full power to vote and act for Accentia in Accentia's name, place and stead and
in the same manner, to the same extent, and to the same effect that Accentia
would have if personally present at such meetings (or acting by written consent)
giving
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Xxxxxxxxxxx Xxxxxxxxxx' full power of substitution and revocation; in each case,
to vote on any proposal which comes before Biovest's stockholders; provided that
(a) in any vote with respect to a matter (other than capital-raising
transactions or transactions affecting Biovest's capital structure to the extent
that Accentia has not violated the terms of the Investment Agreement) presented
to the Biovest stockholders Xx. Xxxxxxxxxx shall vote the shares evidenced the
Escrowed Stock Certificates as directed by Accentia unless he disagrees with
Accentia's direction in which case he shall vote as he so elects with respect to
the shares evidenced by the Escrowed Stock Certificates and (b) without
Accentia's prior written consent, in exercising any voting rights with respect
to the shares evidenced the Escrowed Stock Certificates, Xx. Xxxxxxxxxx shall
not cast a vote in a manner that is materially adverse to Accentia's rights (i)
to purchase and be issued the shares evidenced by the Escrowed Stock
Certificates and/or (ii) relating to a financing transaction, merger, sale of
all or substantially all assets, or recapitalization (in each case, with respect
to Biovest's capital structure to the extent that Accentia has not violated the
terms of the Investment Agreement and/or any agreement, instrument or document
executed and delivered in connection therewith). THIS VOTING PROXY IS
IRREVOCABLE. THE VOTING PROXY CREATED BY THIS SECTION 1.5 SHALL CONTINUE IN FULL
FORCE AND EFFECT UNTIL THE TERMINATION OF THE ESCROW CREATED BY THIS AGREEMENT.
1.6 Transactions. Prior to the satisfaction of all of the Escrow
Conditions, Accentia will not, and will not permit or cause Biovest to, enter
into any transaction with respect to Biovest unless both Biovest and Accentia
have obtained the prior written consent to such transaction (after full
disclosure of the terms thereof by Accentia) of Xxxxxxxxxxx Xxxxxxxxxx.
1.7 Resignations; Employment and Other Matters. Concurrently with the
execution and delivery of this Agreement, Accentia shall furnish the Escrow
Agent to be held in escrow in accordance with the terms of this Agreement the
resignations of the following persons ("Nominees") from the Biovest Board of
Directors and from all Biovest executive offices: Xxxxx X'Xxxxxxx, M.D., Xxxxxxx
Xxxxxxx, PhD, Xxxxx Xxxxxxx, M.D., Xxxxxx Xxxx, Xxxxx Xxxxxxx, M.D., Xxxxxxxx
Xxxxxx, M.D. and Xxxxx XxXxxxx and all other directors and/or officers other
than Xx. Xxxxxxxxxx and Xx. Xxxxxxxxx (the "Resignations"). In the event of
Accentia's failure timely to satisfy the Escrow Conditions, the Resignations
shall be delivered to Biovest for acceptance and Accentia shall cause the
resignation of all such Nominees. Without the prior written consent of Xx.
Xxxxxxxxxx, Accentia, for the benefit of Biovest, agrees that Accentia will not
cause or permit Biovest to enter into any employment, advisory or consulting
agreement during the period that the escrow created by this Agreement is in
effect. In order to be effective, such consent is required to describe in
reasonable detail the terms of such agreement. Accentia shall indemnify and hold
Biovest (and its directors, shareholders, officers, agents, successors and
assigns) harmless from any and all losses, damages, payments and causes of
action of any nature whatsoever (including, without limitation, attorneys fees
and costs of collection) resulting from or relating to any such agreement
entered into without such consent being first obtained.
1.8 Security Agreement. Certain lenders to Biovest ("Lenders") have been
(and/or shall be) issued secured convertible promissory notes of Biovest in
connection with the Closing (the "Closing Secured Notes"). Attached to this
Agreement as Exhibit A is a form of security agreement (the "Security
Agreement") which is acceptable to Accentia and Biovest to further evidence and
address the grant of the security interest under the Closing Secured Notes
(other
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than the Secured Note to Escrow Agent). Accentia and Biovest agree that after
the initial Closing, Biovest shall promptly enter into the Security Agreement
with such changes (other than with respect to the senior indebtedness and
subordination of the loans evidenced by such Closing Secured Notes referred to
in the Security Agreement) as reasonably requested by the Lenders.
SECTION II
----------
Appointment of Escrow Agent, Resignation and Successor
------------------------------------------------------
2.1 Appointment of Escrow Agent. The Escrow Agent is hereby appointed, and
accepts its appointment and designation as, Escrow Agent pursuant to the terms
and conditions of this Agreement.
2.2 Resignation of Escrow Agent; Appointment of Successor. The Escrow Agent
acting at any time hereunder may resign at any time by giving at least 30 days'
prior written notice of resignation to Accentia and Biovest, such resignation to
be effective on the date specified in such notice. Upon receipt of such notice,
Accentia and Biovest shall use best efforts to appoint a successor Escrow Agent
and, unless they otherwise agree, appoint a bank or trust company with a
combined capital and surplus of at least $ 100 million as successor to the
Escrow Agent, by a written instrument delivered to such successor Escrow Agent,
Accentia and Biovest, whereupon such successor Escrow Agent shall succeed to all
the rights and obligations of the resigning Escrow Agent as of the effective
date of resignation as if originally named herein. Upon such assignment of this
Agreement, the resigning Escrow Agent shall duly transfer and deliver the
Escrowed Stock Certificates, appropriate stock powers executed by Accentia in
blank with respect to the Escrowed Stock Certificates (the "Stock Powers"), the
Resignations and the $15M Promissory Note (collectively, the "Escrowed Items"),
at the time held by the resigning Escrow Agent, to such successor Escrow Agent,
provided that, if no successor Escrow Agent shall have been appointed on the
effective date of resignation of the resigning Escrow Agent hereunder, the
resigning Escrow Agent may petition any court of competent jurisdiction for the
appointment of a successor Escrow Agent, or other appropriate relief. Any such
resulting appointment shall be binding upon all of the parties to this
Agreement. If no successor Escrow Agent shall have been designated by the
effective date of resignation of the resigning Escrow Agent hereunder, the
resigning Escrow Agent's obligations shall, nevertheless, cease and terminate,
provided that, the resigning Escrow Agent's sole responsibility thereafter shall
be to keep safely the Escrowed Items then held by it and to deliver the same to
a successor Escrow Agent designated by Accentia and Biovest, or in accordance
with the directions of a final order or judgment of a court of competent
jurisdiction.
SECTION III
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Escrow Arrangements
-------------------
3.1 Delivery of Escrowed Items, etc.
Biovest has delivered the Escrowed Stock Certificates to the Escrow Agent.
Accentia has delivered the $15M Promissory Note, the Resignations and the Stock
Powers to the Escrow Agent. The Escrow Agent shall hold the Escrowed Items.
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SECTION IV
----------
Release of the Escrowed Items
-----------------------------
The Escrow Agent shall release the Escrowed Items only in accordance with
this Section 4.
4.1 Procedure. Following the receipt by the Escrow Agent of the Escrowed
Items, the following procedure shall govern the release of the Escrowed Items:
(a) The Escrowed Stock Certificates, the Resignations and the Stock
Powers shall be furnished by Escrow Agent to Accentia only upon the satisfaction
of each of the following conditions precedent: (i), payments of $100,000 to Xx.
Xxxxxxxxxxx Xxxxxxxxxx and $100,000 to Xx. Xxxxx Xxxxxxxxx have been made (it
being understood that these required payments are in addition to the $100,000
required to be paid to each of Xx. Xxxxxxxxxx and Xx. Xxxxxxxxx at the initial
Closing), (ii) Accentia shall have paid in full (without offset or deduction
thereto) the $2.5M Note (it being understood that the required payment of the
$2.5M Note when due is in addition to the $2,500,000 paid at the initial
Closing); and (iii) Accentia shall have made the first two payments of principal
and interest contemplated by that certain convertible secured promissory note
and security agreement dated an even date herewith (the "Secured Note") to
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP in accordance with the terms of such
Secured Note. Upon the timely satisfaction of all such three conditions, the
$15M Promissory Note shall be furnished by the Escrow Agent to Biovest and the
Escrowed Stock Certificates, Stock Powers and Resignations and the $2.5M Note
(for cancellation) shall be furnished by the Escrow Agreement to Accentia. The
three conditions set forth in this Section 4.1(a) are collectively referred to
in this Agreement as the "Escrow Conditions". For purposes of this Agreement,
Escrow Agent shall be entitled to look solely to Biovest for evidence of the
satisfaction of the first two clauses (i) and (ii) of the Escrow Conditions, and
with respect to clause (iii) of the Escrow Conditions, Escrow Agent shall be
entitled to look solely to itself and such Escrow Condition may not be waived
absent a written instrument signed by all parties hereto.
(b) In the event that the Escrow Conditions have not been timely
satisfied by Accentia, then (i) the Escrowed Stock Certificates, the Stock
Powers and the Resignations shall be furnished by Escrow Agent to Biovest
(subject to the terms of Section I of this Agreement); (ii) the $15M Note ad
$2.5M Note shall be furnished by the Escrow Agent to Accentia; (iii) Accentia
shall be entitled to retain the Fully-Paid Shares; and (iv) the escrow created
by this Agreement shall terminate. In such event, neither Biovest nor Accentia
shall have any claim against the other arising out of this Agreement, the
failure of Accentia to satisfy the Escrow Conditions, the failure of Accentia to
pay the $2.5M Note, or the failure of Accentia to pay the $15M Note.
4.2 Dispute. In the event of any dispute among any of the parties to this
Agreement relating to the interpretation or administration of this Agreement
with respect to the Escrowed Items, the Escrow Agent shall not comply with any
such claims or demands from Accentia or Biovest as long as such dispute may
continue, and the Escrow Agent shall make no delivery or other disposition of
any portion of the Escrowed Items then held by it under this Agreement until
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it has received a certified copy of a final order of a court of competent
jurisdiction directing disposition of the Escrowed Items or joint written
instructions signed by Accentia and Biovest.
SECTION V
---------
Escrow Agent
------------
5.1 No Fee. For its services hereunder, the Escrow Agent shall not be
entitled to a fee (other than its fees for professional services rendered to
Biovest prior to the date hereof and in connection with the drafting of this
Agreement) and shall provide its services hereunder as a convenience to the
other parties. In addition, Accentia and Biovest shall bear the cost of
reimbursing the Escrow Agent for its out-of pocket expenses, including
attorney's fees in administering the Escrowed Items and performing its duties
under this Agreement.
5.2 Responsibilities of Escrow Agent. The Escrow Agent's acceptance of its
duties under this Agreement is subject to the following terms and conditions,
which the parties hereto agree shall govern and control with respect to Escrow
Agent's rights, duties, liabilities and immunities:
(a) Except as to its due execution and delivery of the Agreement, the
Escrow Agent makes no representation and has no responsibility as to the
validity of this Agreement or of any other instrument referred to herein, or as
to the correctness of any statement contained herein, and it shall not be
required to inquire as to the performance of any obligation under Investment
Agreement (as amended hereby);
(b) The Escrow Agent shall be protected in acting in reliance upon any
instructions, notice, request, certification, demand, consent, authorization,
receipt, power of attorney or other paper or document, without being required to
determine the authenticity or validity thereof or the correctness of any fact
stated therein, the propriety or validity of the service thereof, or the
jurisdiction of the court issuing any judgment or order, which it in good faith
believes to be genuine and what it purports to be;
(c) The Escrow Agent shall not be liable for any error of judgment, or
for any act done or step taken or omitted by it in good faith, or for any
mistake of fact or law, or for anything which it may do or refrain from doing in
connection therewith, except its own gross negligence, recklessness, or willful
misconduct;
(d) The Escrow Agent may consult with competent and responsible legal
counsel (including its own attorneys and internal attorneys) selected by it in
the event of any dispute or question as to the meaning or construction of any of
the provisions hereof or its duties hereunder, and it shall not be liable for
any action taken or omitted by it in good faith in accordance with the advice of
such counsel. Biovest and Accentia shall reimburse the Escrow Agent on demand
for amounts of such legal fees, disbursements and expenses;
(e) Biovest and Accentia, jointly and severally, agree to indemnify and
hold the Escrow Agent and its members, employees, officers, agents, successors
and assigns (collectively, the "Indemnified Parties") harmless from and against
any and all losses, claims, damages, liabilities and expenses (collectively,
"Damages"), including, without limitation,
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reasonable costs of investigation and counsel fees and expenses which may be
imposed on the Escrow Agent or incurred by it in connection with the performance
of its duties hereunder. Such indemnity includes, without limitation, Damages
incurred in connection with any litigation (whether at the trial or appellate
levels) arising from this Agreement or involving the subject matter hereof. The
indemnification provisions contained in this paragraph are in addition to any
other rights any of the Indemnified Parties may have by law or otherwise and
shall survive the termination of this Agreement or the resignation or removal of
the Escrow Agent. Notwithstanding any provision to the contrary in this
Agreement, no party hereto shall have any liability to the Indemnified Parties
with respect to any Damages that result, directly or indirectly, from the gross
negligence, recklessness, or willful misconduct of the Escrow Agent;
(f) The Escrow Agent shall have no duties or responsibilities except
those expressly set forth herein, and it shall not be bound by any modification
of this Agreement unless in writing and signed by all parties hereto or their
respective successors in interest;
(g) The recitals of facts in this Agreement shall be taken as the
statements of Biovest and Accentia, as the case may be, and the Escrow Agent
assumes no responsibility for the correctness of the same. The Escrow Agent
shall be under no obligation or duty to perform any act which would involve it
in an expense or liability or to institute or defend any suit in respect of this
Agreement or to advance any of its own monies unless, in its sole discretion,
the parties confirm the indemnity herein provided;
(h) The Escrow Agent shall be protected in acting in reliance upon any
instructions, notice, request, certification, deed, consent, authorization,
receipt, power of attorney or other paper or document reasonably believed by it
to be genuine and to have been signed and presented by the proper party or
parties. Without limiting the generality of the foregoing, the Escrow Agent
shall be protected in reliance upon the signatures appearing on the signature
pages hereof as specimen signatures of the parties hereto. Whenever the Escrow
Agent shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action under this Agreement, such
matter may be deemed inclusively proved and established by a certificate signed
by another party hereto, and such certificate shall constitute a full warranty
for any action taken or suffered in good faith under the provisions of this
Agreement;
(i) The Escrow Agent shall be under no duty to give the property held
in escrow by it hereunder any greater degree of care than it gives its own
similar property;
(j) Biovest and Accentia acknowledge that (i) the Escrow Agent is
counsel to Biovest and agree that the Escrow Agent may continue to represent
Biovest, whether in any dispute, controversy, action or legal proceeding
(including, without limitation, against Accentia or involving this Agreement
and/or the Investment Agreement, or otherwise and (ii) the Escrow Agent is
entitled to receive amounts under the Secured Note and, notwithstanding Escrow
Agent's status as an escrow agent hereunder, Escrow Agent shall continue to be
entitled to all of its rights remedies and benefits as a payee and secured party
under the Secured Note (including, without limitation, the right to convert
principal and accrued and unpaid interest thereon into equity of Biovest and/or
Accentia in accordance with the terms of the Secured Note); and
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(k) The Escrow Agent does not have any interest in the Escrowed Items
but is serving as Escrow Agent only and having only possession thereof. This
Section 5.2(k) shall survive notwithstanding any termination of this Agreement
or the resignation of the Escrow Agent.
SECTION VI
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Miscellaneous
-------------
6.1 Amendment; Waivers, etc. No amendment, modification or discharge of
this Agreement, and no waiver hereunder, shall be valid or binding unless set
forth in writing and duly executed by the party against whom enforcement of the
amendment, modification, discharge or waiver is sought. Any such waiver shall
constitute a waiver only with respect to the specific matter described in such
writing and shall in no way impair the rights of the party granting such waiver
in any other respect or at any other time. Neither the waiver by any of the
parties hereto of a breach of or a default under any of the provisions of is
Agreement, nor the failure by any of the parties, on one or more occasions, to
enforce any of the provisions of this Agreement or to exercise any right or
privilege hereunder, shall be construed as a waiver of any other breach or
default of a similar nature, or as a waiver of any of such provisions, rights or
privileges hereunder.
6.2 Termination. Article IV of this Agreement shall terminate automatically
at such time as all of the Escrowed Items have been paid or distributed from the
Escrow Account in accordance with the terms of this Agreement. Notwithstanding
the foregoing, all provisions concerning the indemnification of the Escrow Agent
shall survive any such termination.
6.3 Severability. If any provision of this Agreement, including any phrase,
sentence, clause, Section or subsection is inoperative or unenforceable for any
reason, such circumstances shall not have the effect of rendering the provision
in question inoperative or unenforceable in any other case or circumstance, or
of rendering any other provision or provisions herein contained invalid,
inoperative, or unenforceable to any extent whatsoever.
6.4 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (g) delivered
personally, (b) mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, or (c) sent by next-day or overnight: mail
or delivery or (d) sent by telecopy or telegram to, in the case of the parties
other than the Escrow Agent, to:
If to Biovest:
Biovest International, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
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With a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq. and Xxxxxx Xxxxxx, Esq.
Fax No. 000-000-0000
If to Accentia:
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
With copy to:
Xxxxxx X. Xxxxxx Esq.
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
If to Escrow Agent:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP 000 Xxxxxxxxx
Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Fax No. 000-000-0000
Attention: Xxxxxx X. Xxxxx, Esq. and Xxxxxx Xxxxxx, Esq.
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications shall
be deemed to have been received (w) if by personal delivery on the day after
such delivery, (x) if by certified or registered mail, on the seventh business
day after the mailing thereof, (y) if by next-day or overnight mail or delivery,
on the day delivered, (z) if by telecopy or telegram, on the next day following
the day on which such telecopy or telegram was sent, provided that a copy is
also sent by certified or registered mail.
6.5 Entire Agreement. This Agreement (together with the Investment
Agreement as amended hereby, and the documents, instruments and agreements
executed and delivered in connection with the closing thereof (including,
without limitation, the Secured Note and the Escrowed Items)) embody the entire
agreement and understanding among Accentia, Biovest, and the Escrow Agent with
respect to the subject matter hereof and supersedes any and all prior agreements
and understandings, oral and written, among Accentia, Biovest, and the Escrow
Agent with respect to the subject matter hereof.
6.6 Headings. The headings contained in this Agreement are for purposes of
convenience only and shall not affect the meaning or interpretation of this
Agreement.
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6.7 Governing Law, Etc. This Agreement shall be governed by and construed
in accordance with and enforced under the laws of the State of New York
applicable to agreements made and to be performed entirely in New York.
Accentia, Biovest and the Escrow Agent hereby irrevocably submit to the
jurisdiction of the courts of the State of New York and the Federal courts of
the United States of America located in the State, City and County of New York
solely in respect of the interpretation and enforcement of the provisions of
this Agreement, and hereby waive, and agree not to assert, as a defense in any
action, suit or proceeding for the interpretation or enforcement hereof or of
any such document that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or that the
venue thereof may not be appropriate or that this Agreement or any of such
document may not be enforced in or by said courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such New York State or Federal court. Accentia,
Biovest and the Escrow Agent hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of any
such dispute arid agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 6.4, or in
such other manner as may be permitted by law, shall be valid and sufficient
service thereof.
6.8 Counterparts. Telefacsimile transmissions of any executed original
document and/or retransmission of any executed telefacsimile transmission shall
be deemed to be the same as the delivery of an executed original. At the request
of any party hereto, the other parties hereto shall confirm telefacsimile
transmissions by executing duplicate original documents and delivering the same
to the requesting party or parties. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
ACCENTIA, INC.
By:____________________________________
Name:
Title:
BIOVEST INTERNATIONAL, INC.
By:____________________________________
Name:
Title:
XXXXXXXX XXXXX SINGER & XXXXXXXXX, LLP,
as Escrow Agent
By:____________________________________
Name:
Title:
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