EXHIBIT 10
AGREEMENT
THIS AGREEMENT is made and entered into as of this 16th of June 2003 by and
among Biovest International, Inc., a Delaware corporation ("Biovest") and
Accentia, Inc., a Florida corporation ("Accentia") RECITALS:
WHEREAS, Biovest and Accentia have entered into an Investment Agreement
dated April 10, 2003, which was amended by an Amendment to Agreement dated June
16th, 2003 (collectively referred to as the Investment Agreement);
WHEREAS, pursuant to the Investment Agreement, Accentia is purchasing 81%
of the outstanding capital stock of Biovest;
WHEREAS, as a material inducement for Accentia to enter into the Investment
Agreement and to purchase shares of Biovest capital stock, Biovest has agreed to
grant Accentia the right to maintain its ownership of Biovest at 81% of the
outstanding capital stock of Biovset (the "First Right of Refusal"); and
WHEREAS, the parties wish to enter into this Agreement setting forth the
terms and provisions of the First Right of Refusal.
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein, the parties hereto agree as
follows:
1. First Right of Refusal - Accentia is hereby granted the absolute and
unconditional right, in the exercise of its sole discretion, to purchase
that number of shares of Biovest common stock that may, from time to time
during the First Right of Refusal Period, be required to maintain
Accentia's ownership of Biovest at 81% of the then outstanding capital
stock of Biovest. Should Biovest, for any reason, issue any shares of its
capital stock during the First Right of Refusal Period (the "Triggering
Shares"), Accentia shall have the absolute and unconditional right to
purchase that number of additional shares (the "First Right of Refusal
Shares") of Biovest authorized but unissued common stock that is required
to cause Accentia's ownership of Biovest to equal 81% of the Biovest
capital stock then outstanding following the issuance of both the
Triggering Shares and the First Right of Refusal Shares.. For purposes
hereof, the grant or issuance by Biovest of right, convertibles, options or
warrants, or other instruments during the First Right of Refusal Period
which may be converted or result in the issuance of shares of capital stock
of Biovest during or after the First Right of Refusal Period shall result
in Accentia having a First Right of Refusal with regard thereto. The First
Right of Refusal applies to all shares which may be issued by Biovest
during the First Right of Refusal Period including, but not limited to,
shares issued in new financings, acquisitions, options and warrant
exercises and the conversion of convertible notes.
2. First Right of Refusal Period - The First Right of Refusal Period shall
commence on the date hereof and end on the last day on which any
Biovest option, warrant or convertible note listed on Exhibit A hereto
remains outstanding or in effect.
3. Purchase Price - The purchase price to be paid by Accentia for the First
Right of Refusal Shares shall be an amount equal to the aggregate price
paid by the third party for the Triggering Shares (i.e., the Accentia First
Right of Refusal Purchase Price for all shares required to maintain
Accentia's ownership at 81% of the then outstanding capital stock will
equal the aggregate price paid by the third party for all of the shares
which triggered the First Right of Refusal as opposed to matching the Per
Share Purchase Price paid by the third party. The Per Share Purchase Price
to be paid by Accentia shall be the aggregate Purchase Price (i.e., the
aggregate purchase price paid by the third party for the Triggering Shares)
divided by the total number of First Right of Refusal Shares being
purchased by Accentia (the "Per Share Purchase Price"). Accordingly, the
Accentia First Right of Refusal Per Share Purchase Price may be
significantly lower than the per share purchase price paid by the third
party for the Triggering Shares.
4. Payment of Purchase Price - The Per Share Purchase Price may, in the
discretion of Accentia, be either be paid in cash or by five-year
Promissory Note bearing the lowest rate of interest permitted by applicable
corporate law. In the event of payment by promissory note, the Promissory
Note shall be an unsecured corporate obligation of Accentia and shall
provide for all interest and principal to be paid in one installment at the
maturity of the Promissory Note.
5. Unconditional. The First Right of Refusal is an absolute and unconditional
right granted to Accentia and constitutes a material inducement for
Accentia to enter into the Investment Agreement and to purchase capital
stock of Biovest. Other than as expressly set forth in this Agreement,
there are no conditions or limitations on the First Right of Refusal or on
Accentia's right to purchase additional authorized but unissued shares of
Biovest common stock pursuant to the First Right of Refusal. Biovest
acknowledges and agrees that the First Right of Refusal may result in the
issuance of a significant number of additional shares of Biovest capital
stock to Accentia at Per Share Purchase Prices which may be significantly
less that the then current market price or appraisal value of Biovest
capital stock. Biovest agrees that during the First Right of Refusal Period
to maintain sufficient authorized but unissued capital stock to fulfill its
obligations under the First Right of Refusal. Biovest agrees, at its cost,
to defend the validity and enforcibilty of this Agreement and to indemnify
Accentia from any cost, expense or loss arising from or related to any
claim or action arising out of or relating to this Agreement.
6. Notice - Upon any event which gives rise to Accentia's First Right of
Refusal, Biovest shall provide Accentia with written notice of Accentia's
First Right of Refusal together with a calculation of Per Share Purchase
Price and the number of First Right of Refusal Shares available for
purchase. Accentia shall have 30 calendar days after receipt of such
written notice to provide Biovest with written notice of its exercise of
the First Right of Refusal.
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7. Miscellaneous
a. Assignability - This Agreement shall be binding upon and shall inure
to the benefit of the parties and their assigns and successors in
interest.
b. Law This Agreement shall be construed in accordance with the laws of
the State of Florida.
c. Survival - This Agreement and all undertakings in this Agreement shall
survive not only this Agreement, but the closing of the Investment
Agreement between the parties.
d. Headings - All paragraph headings herein are inserted for convenience
of the parties only and are not part of, and shall not, in any way
modify or affect the construction of or interpretation of any
provision of this Agreement.
e. Counterparts - This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and
which together shall constitute one and the same instrument. This
Agreement may be executed by fax with fax execution having the same
legal effect as an original signature.
f. Notices - Any notice required to be given hereunder or any election of
the First Right of Refusal shall be in writing, personally delivered,
or sent by certified mail, or by telecopy at the addresses set forth
hereinbelow:
ACCENTIA:
Accentia, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Copy to:
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Xxxxxxx X. X'Xxxxxxx, Xx., M.D.
000 Xxx Xxxxxxxx Xxxx
Xxxx & Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
BIOVEST:
Biovest International, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
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Copy to:
Xxxxx Xxxxx
Fax:
g. Prior Agreement - Any conflict between this Agreement and any prior
letters of intent, deal points and agreements including, but not
limited to the Investment Agreement, shall be governed by this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Accentia, Inc. Biovest International, Inc.
By: By:
---------------------------- --------------------------------
Its: Its:
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