EX-2 4 biovest8kjune2003ex-2.txt AMENDMENT TO INVESTMENT AGREEMENT EXHIBIT 2 AMENDMENT TO INVESTMENT AGREEMENT BETWEEN ACCENTIA, INC. AND BIOVEST INTERNATIONAL, INC. This document dated June 16, 2003 (the "Amendment"), sets forth the terms of an Amendment to the Investment Agreement by and between Accentia, Inc. and Biovest International, Inc., dated April 10, 2003 (the "Agreement"). Except where modified or augmented hereby (and by the terms of that certain escrow agreement dated an even date herewith (the "Escrow Agreement"), the terms of the Investment Agreement shall remain in full force and effect. This Amendment is entered into for good and valuable consideration in hand received and together with the Agreement (and the Escrow Agreement which terms are hereby incorporated herein) constitutes the entire understanding of the parties. 1. (I) PURCHASE PAYMENT TERMS: Section 1.01 of the Agreement is hereby amended to provide that the purchase price of $20,000,000 shall be paid as follows: (i) cash at closing of $2,500,000.00, less $530,000 sums advanced to or on behalf of Biovest by Accentia (pursuant to that certain Secured Note dated April 10, 2003 which is hereby satisfied and executed in full) prior to the Closing; (ii) $2,500,000.00 in the form of a Promissory Note (the "Second Closing Note") due on the 90 day anniversary of the date hereof bearing interest at a rate of 3% per annum. and (iii) delivery of a non-interest bearing note for $15,000,000 having the terms as provided in the Agreement (and the certificates evidencing shares of Biovest Common 1 Stock and Preferred Stock issuable to Accentia in respect of the subscription price therefor) which shall be held in escrow pursuant to and in accordance with the terms of the Escrow Agreement. (II) CLOSING DATE: The date of Closing shall be on the date hereof, or such other date as shall be mutually agreed upon by the parties. (III) SHARES TRANSFERRED: Section 1.01 is further amended to reflect that both Accentia and Biovest recognize that there are currently insufficient authorized, unissued shares of Biovest Common Stock to allow Biovest to transfer to Accentia the 81% stock ownership contemplated by the Investment Agreement. The parties hereby agree that in order to bring Accentia's equity ownership of Biovest up to the level of 81% as set forth in the Investment Agreement, Biovest shall, subject to the terms of the Escrow Agreement, issue to Accentia at Closing sufficient shares of Convertible Preferred Stock of Biovest to bring Accentia's total number of shares, post conversion, to the 81% level. These Preferred shares shall provide all rights held by common shares together with the right to be converted to Common Stock of Biovest on a 2-for-1 basis as soon as additional shares of Common Stock are authorized by Biovest's Shareholders at an annual (or special) Shareholder's Meeting or through such other mechanism as may be available. (IV) PETER PAPPAS AND ANGELO TSAKOPOULOS WORKING CAPITAL LOANS. Section 1.01 is further amended to reflect that at Closing the principal and 2 interest of the working capital loans in the approximate principal amount of $460,000 made by Peter Pappas and $250,000 made by Angelo Tsakopoulos to Biovest shall be converted into Convertible Notes having the following terms: (i) all principal and interest shall be paid in one installment on the third anniversary of Closing, subject to prepayment by Biovest upon thirty days written notice, (ii) the convertible notes shall earn interest at 7% per annum, (iii) the convertible notes, shall at the discretion of the Holder, be convertible into shares of Accentia common stock in accordance with Section 1.01 of the Agreement with the value per Accentia share being adjusted by a twenty percent (20%) discount from Accentia share value as established in accordance with Section 1.01 of the Agreement or, in the alternative, the convertible notes may be converted into shares of Biovest common stock in accordance with Section 1.01 of the Agreement with the price per Biovest share adjusted from $0.50 to $0.25 per share. In addition, Biovest shall adjust the exercise price on 200,000 Warrants issued to Peter Pappas in connection with these loans from $0.50 to $0.25 per share, and shall adjust the exercise price on 100,000 Warrants issued to Angelo Tsakopoulos in connection with this loan from $0.50 to $0.25 per share. (V) Satisfaction of Closing Conditions. Accentia hereby acknowledges the satisfaction by Biovest of all its closing conditions. (VI) Expenses. Following closing a current employee of Accentia, Julian Casciano, will serve as a full time employee of Biovest and, at Accentia's discretion, his compensation as set forth in his agreement as amended from time to time with Accentia shall either be 3 paid directly by Biovest to the employee or reimbursed to Accentia should Accentia elect to directly compensate the employee. Appropriate reimbursement shall be made by Biovest for any additional employees of Accentia that devote full or significant time to the services for Biovest. Additionally, fees and expenses in the approximate amount of $50,000 for the legal services of Samuel Duffey, Esq. incurred by Accentia in connection with this Agreement and the Closing shall be reimbursed by Biovest. (VII) Convertible Notes. The terms of the election options available to the convertible noteholders shall be adjusted as follows: A. Option 1 shall be to simply hold their existing Note, "as is" and be paid in accordance with its terms upon maturity. These notes shall remain unsecured; B. Option 2 shall be to elect to accept the extended term as set forth in the current from of "Unsecured Exchange Note", except that these Notes shall become SECURED as set forth in the current version of the "Secured Exchange Note" contained in our original package. In addition, these notes will retain their original issuance date and face amounts, so as to allow the holders to comply with the "holding period" requirements in SEC regulations in the event of conversion of this debt to equity. The Holders of these notes shall retain any Warrant holdings they obtained in connection with these Notes, or any previous extension thereof. 4 C. Andrew Alexander Wise shall be offered a repricing of the Warrants issued to them in connection with obtaining this Bridge Loan financing to a price of $0.50 on Warrants currently priced at $1.50 and $0.25 on Warrants currently priced at $1.25,so long as at least 60% of the Convertible Noteholders decide to accept Option 2. This repricing will be disclosed in the form of the new Note to be drafted for those electing Option 2. VIII. Certain Accrued Compensation. At the Closing, Othon Mourkakos shall tender his resignation as Director of Biovest, and shall further tender his resignation as President/COO of the Biovest. At the Closing, Dr. Kyriakides shall tender his resignation as Chief Executive Officer and as Chairman of the Board of Directors of Biovest, but shall retain his position as a member and Vice-Chairman of the Board of Directors. At the Closing, Dr. David DeFouw shall tender his resignation as Director of Biovest. At the Closing, Mr. Thomas Belleau shall tender his resignation as Chief Financial Officer of Biovest. Accrued executive compensation through June 30, 2003 for Mr. Mourkakos and Dr. Kyriakides ($855,000 for each of them) shall be paid as follows: B. A. By Convertible Secured Promissory Note in the amount of $655,000 to each, with a maturity date of four (4) years from the date of Closing and the 5 same security and conversion terms as are contained in the Amended Notes being offered to the Convertible Noteholders; the remaining $200,000 due to each shall be paid in two equal installments of $100,000, the first installment paid at Closing and the second installment paid 90 days from the date of Closing. All outstanding Options to Mr. Mourkakos or Dr. Kyriakides shall be converted to Warrants, exercisable six months from issuance and with a five-year term; One-half of the Warrants to each shall be priced at $0.25 per share; One-half of the Warrants to each shall be priced at $0.50 per share; Biovest shall continue to maintain or pay the current level of Health Insurance for both Mr. Mourkakos and Dr. Kyriakides through and including December 31, 2003; Mr. Mourkakos and Dr. Kyriakides shall have a period of 45 days from the date of Closing to submit requests for reimbursement of all ordinary and customary reimbursable expenses on appropriate Expense Reimbursement Vouchers, which shall be reviewed and paid in the ordinary course in accordance with Biovest's existing expense reimbursement procedures. Accrued compensation due to Dr. David DeFouw shall be paid within 120 days of the date of Closing, at the discretion of the Chief Financial Officer of Biovest, in a single lump payment or in installments. 6 Severance in the amount of one month's salary shall be paid to Mr. Belleau, and Biovest shall continue to provide health insurance benefits for Mr. Belleau for a period of six months after the Closing. All options previously issued to Dr. DeFouw (375,000) and Mr. Belleau (100,000) shall be cancelled at the time of Closing, and Biovest shall issue to Dr. DeFouw 375,000 Warrants with an exercise price of $0.50 per share, and shall issue to Mr. Belleau 100,000 Warrants with an exercise price of $0.50 per share, all being exercisable beginning six months after the date of issuance and having a five year term. David Moser, Director of Legal Affairs of Biovest, shall receive a performance bonus in the amount of $10,000.00, payable at Closing, and shall be issued 100,000 Options to purchase Biovest Common Stock priced at $0.50 per share. Options previously issued to Mr. Peter J. Pappas Sr. on or about March 6, 2003, shall be priced as follows: 500,000 Options shall be priced at $.0.50 per share, and 500,000 Options shall be priced at $0.25 per share. VIII. Accentia represents that it is engaged in various aspects of developing, commercializing and distributing biopharmaceutical products and that its subsidiaries, both directly and through subcontractor and vendor relationships, provide an array of product development and commercialization services, including, but not limited to, sales, marketing, specialty pharmacy distribution support, pharmaco-economic services, regulatory services and other development and commercialization services. Biovest 7 acknowledges that it needs and would benefit from these types of commercialization services and would desire to utilize such services to the extent such services were provided to it on terms no less favorable than the best that could be available in an arms length transaction with unrelated third parties. X. Escrow Agreement. Reference is made to the Escrow Agreement and the documents contemplated thereby which are hereby incorporated by reference as if set forth in full herein. The undersigned hereby agree to the modified and additional terms set forth hereinabove on the date first set forth above. Biovest International, Inc. Accentia, Inc. By: By: ------------------------------------- ---------------------------- Dr. Christopher Kyriakides, Chairman Dr. Frank O'Donnell, CEO 8