Looking for an agreement? Search from over 1 million agreements now.

First Modification To First Amended Joint Plan of Reorganization

This is an actual contract by Accentia Biopharmaceuticals.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
Exhibit 10.2

UNITED STATES BANKRUPTCY COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

In re: Chapter 11 ACCENTIA BIOPHARMACEUTICALS, INC., Case No. 8:08-bk-17795-KRM ANALYTICA INTERNATIONAL, INC., Case No. 8:08-bk-17798-KRM TEAMM PHARMACEUTICALS, INC., Case No. 8:08-bk-17800-KRM ACCENTRX, INC., Case No. 8:08-bk-17801-KRM ACCENTIA SPECIALTY PHARMACY, INC., Case No. 8:08-bk-17802-KRM

Debtors.

/

FIRST MODIFICATION TO FIRST AMENDED JOINT PLAN OF REORGANIZATION

OF ACCENTIA BIOPHARMACEUTICALS, INC., ANALYTICA INTERNATIONAL, INC.,

TEAMM PHARMACEUTICALS, INC., ACCENTRX, INC., AND ACCENTIA SPECIALTY

PHARMACY, INC. UNDER CHAPTER 11 OF TITLE 11, UNITED STATES CODE

STICHTER, RIEDEL, BLAIN & PROSSER, P.A. Charles A. Postler (Florida Bar No. 455318) 110 East Madison Street, Suite 200 Tampa, Florida 33602 Telephone: (813) 229-0144 Facsimile: (813) 229-1811 Email: cpostler@srbp.com Counsel for Debtors and Debtors in Possession

Tampa, Florida

Dated as of October 25, 2010


Accentia Biopharmaceuticals, Inc. and its wholly-owned subsidiaries, Analytica International, Inc., TEAMM Pharmaceuticals, Inc., AccentRx, Inc., and Accentia Specialty Pharmacy, Inc., as Debtors and Debtors in Possession in the Accentia Bankruptcy Cases, hereby modify and amend (the " First Modification" ) their First Amended Joint Plan of Reorganization of Accentia Biopharmaceuticals, Inc., Analytica International, Inc., TEAMM Pharmaceuticals, Inc., AccentRx, Inc., and Accentia Specialty Pharmacy, Inc. under Chapter 11 of Title 11, United States Code, dated as of August 16, 2010 [Doc. No. 910] (the " Plan" ), pursuant to the provisions of the Plan and the applicable provisions of the Bankruptcy Code and the Bankruptcy Rules, as follows:

1. The following Defined Terms shall be substituted for, and replace in their entirety, the corresponding Defined Terms contained in Article 2.1 of the Plan:

" Ballot" means the Ballot, accompanying the Disclosure Statement and the Plan, on which (a) Holders of Impaired Claims entitled to vote on the Plan may indicate their acceptance or rejection of the Plan in accordance with the Voting Instructions, (b) certain Holders of Unsecured Claims may make the Convenience Class Opt-In Election or the Convenience Class Opt-Out Election, and (c) Holders of Claims in Classes 3, 6, 8, 10 and 13 may make a Conversion Election.

" Causes of Action" means any and all of the Debtors' or the Debtors' Estates actions, claims, demands, rights, defenses, counterclaims, suits and causes of action, whether known or unknown, in law, equity or otherwise, against any Creditor or other third party, including (a) the Avoidance Actions, and (b) any and all other claims or rights or proceedings of any value whatsoever, at law or in equity, turnover actions and claims of the type referred to in the Disclosure Statement or in Article 8.12 of the Plan. The Causes of Action shall vest in the Reorganized Debtors on the Effective Date. When used in the Plan, the term " Causes of Action" shall not include any claims, obligations, suits, judgments, damages, rights, remedies, causes of action, charges, costs, debts, indebtedness, or liabilities released or waived by the Debtors pursuant to a Final Order of the Bankruptcy Court.

" Class 5 Plan Shares" has the meaning ascribed to such term in Articles 5.6.1.4, 5.6.1.5 and 5.6.1.8 of the Plan.

" Class 5 Plan Warrant" has the meaning ascribed to such term in Article 5.6.1.8 of the Plan.

2


" Confirmation Hearing" means the hearing which will be held before the Bankruptcy Court to consider Confirmation of the Plan and related matters pursuant to Section 1128(a) of the Bankruptcy Code, as such hearing may be adjourned or continued from time to time.

" Conversion Election" means the election by the Holder of a Class 3 Claim, a 2008 Secured Debentures Holder, the Holder of a Class 8 Claim, the Holder of a Class 10 Claim, or a Convertible Preferred Stock Holder to convert the Allowed Amount of its Claim into shares of Reorganized Accentia Common Stock as provided in Article 5 of the Plan.

" Distribution" means a distribution of Cash or shares of Reorganized Accentia Common Stock or Biovest Common Stock, as the context requires, to a Creditor on account of an Allowed Claim pursuant to the terms of the Plan.

" Distribution Date" means, when used with respect to an Allowed Administrative Expense Claim (including Allowed Administrative Expense Claims of Professionals) or an Allowed Unsecured Convenience Claim in Class 11, the date which is as soon as reasonably practicable (as determined by Reorganized Accentia) after the Determination Date, but in no event more than ten (10) days after the Determination Date. " Distribution Date," when used with respect to an Allowed Priority Tax Claim or Allowed Claims in Classes 1, 3, 4, 5, 6, 7, 8, 10 and 14, means the date or dates for any Distribution to Holders of Allowed Priority Tax Claims or Allowed Claims in Classes 1, 3, 4, 5, 6, 7, 8, 10 and 14 as provided in the Plan, unless such date or dates have been otherwise established by an order of the Bankruptcy Court.

" Plan Debentures" means, collectively, the Class 5 Plan Debentures, the Class 6 Plan Debentures, and the Class 9 Plan Debentures.

" Plan Notes" means, collectively, the Laurus/Valens Term Notes, the Class 3 Plan Note, the Class 3 Convertible Plan Note, the Class 4 Plan Note, and the Class 13 Plan Notes.

" Plan Shares" means, collectively, the Administrative Expense Shares, the Laurus/Valens Conversion Shares, the Laurus/Valens Class 5 Shares, the Laurus/Valens Class 13 Shares, the Class 3 Plan Shares, the Class 5 Plan Shares, the Class 6 Plan Shares, the Class 8 Plan Shares, the Class 9 Plan Shares, the Class 10 Plan Shares, the Class 13 Plan Shares, and the Class 15 Plan Shares.

" Plan Supplement" means the document containing the Plan Documents (to the extent not already on file with the Bankruptcy Court or delivered to the applicable Creditor), which shall be filed with the Bankruptcy Court in accordance with Article 14.17 of the Plan.

" Plan Warrants" means, collectively, the Class 5 Plan Warrants, the Class 6 Plan Warrants, the Class 9 Plan Warrants, and the Class 13 Plan Warrants.

" Record Date" means August 16, 2010, which shall be the date for determination of the ownership of the Class 15 Equity Interests for the purpose of voting on acceptance or rejection of the Plan by the Holders of the Class 15 Equity Interests.

3


" Reorganized Accentia Bylaws" has the meaning ascribed to such term in Article 8.7.2 of the Plan.

" Reorganized Accentia Charter" means the articles of incorporation of Reorganized Accentia, as amended or amended and restated pursuant to the Plan, the Confirmation Order, the Florida Act or otherwise and filed with the Office of the Secretary of State of the State of Florida.

" Security Documents" means the security agreements, stock pledge agreements, and other documents to be executed by Reorganized Accentia as described in Articles 5.4.1.4, 5.5.1.2, 5.6.1.2, and 5.7.1.2 of the Plan.

2. The following Defined Terms shall be added to Article 2.1 of the Plan:

" Administrative Expense Shares" has the meaning ascribed to such term in Article 3.1.1 of the Plan.

" Biovest Common Stock Equivalents" has the meaning ascribed to the term " Common Stock Equivalents" in the Securities Purchase Agreement.

" Class 5 Conversion Amount" has the meaning ascribed to such term in Article 5.6.1.4 of the Plan.

" Class 5 Exchange Amount" has the meaning ascribed to such term in Article 5.6.1.4 of the Plan.

" Class 5 Lock-Up Period" has the meaning ascribed to such term in Article 5.6.1.7 of the Plan.

" Class 5 Lock-Up Shares" has the meaning ascribed to such term in Article 5.6.1.7 of the Plan.

" Class 5 Plan Debenture" has the meaning ascribed to such term in Article 5.6.1.1 of the Plan.

" Class 5 Plan Debenture Maturity Date" has the meaning ascribed to such term in Article 5.6.1.1 of the Plan.

" McKesson Prepetition Principal Amount" has the meaning ascribed to such term in Article 5.5.1 of the Plan.

" Securities Purchase Agreement" has the meaning ascribed to such term in the Biovest Plan.

3. The following Defined Terms shall be deleted from Article 2.1 of the Plan:

" Class 4 Plan Shares" has the meaning ascribed to such term in Article 5.5.1.5 of the Plan.

4


" Collegium Adversary Proceeding" means the adversary proceeding filed in the Bankruptcy Cases styled as TEAMM Pharmaceuticals, Inc. and Accentia Biopharmaceuticals, Inc., Plaintiffs, vs. Collegium Pharmaceuticals, Inc., Defendant , Adv. Pro. No. 8:09-ap-00377-KRM.

4. Article 3.1.1 of the Plan shall be deleted in its entirety and the following shall be substituted therefore:

" 3.1.1 Except as otherwise provided in Articles 3.1.2 and 3.1.3 below, each Holder of an Allowed Administrative Expense Claim (including Allowed Administrative Expense Claims of Professionals) shall be paid (a) on the Distribution Date, an amount, in Cash, by Reorganized Accentia equal to the Allowed Amount of its Administrative Expense Claim, in accordance with Section 1129(a)(9)(A) of the Bankruptcy Code, or (b) under such other terms as may be agreed upon by both the Holder of such Allowed Administrative Expense Claim and the Debtors or the Reorganized Debtors, as the case may be, or (c) through a conversion of its Allowed Administrative Expense Claim into shares of Reorganized Accentia Common Stock (the " Administrative Expense Shares" ) at a conversion rate equal to the Market Price per share of Reorganized Accentia Common Stock (i.e., such Holder will receive that number of shares of Reorganized Accentia Common Stock determined by dividing its Allowed Administrative Expense Claim by the Market Price), provided that the right to convert under this subparagraph (c) shall not be applicable to any Professional, or (d) as otherwise ordered by a Final Order of the Bankruptcy Court. The Administrative Expense Shares shall be issued as soon as reasonably practicable following the Determination Date (but in no event more than five (5) Business Days following the Determination Date, subject to the procedures followed by the Transfer Agent) pursuant to Section 1145 of the Bankruptcy Code and shall not have any legend restricting the sale thereof under federal securities laws, but the transfer thereof shall be subject to the provisions of Article 9.12. The transfer or resale of the Administrative Expense Shares by any recipient thereof would not be exempted under Section 1145 of the Bankruptcy Code if such recipient is deemed to be an underwriter (see Article 8.9 of the Plan for a further discussion of the securities law issues relating to underwriters)."

5. Article 5.5 of the Plan shall be deleted in its entirety and the following shall be substituted therefore:

" 5.5 Class 4: Secured Claims and Other Claims of McKesson .

5.5.1 Class 4 consists of all of the McKesson Prepetition Claims. The Class 4 Claims of McKesson are secured by a pledge of the McKesson Pledged Biovest Shares. Under the Plan, the Class 4 Claims of McKesson will be allowed in an amount equal to the sum of (i) $3,613,121.00, which represents the outstanding principal due to McKesson on the Petition Date under the McKesson Prepetition Loan Documents (the " McKesson Prepetition Principal Amount" ), plus (ii) the amount of $722,624.00, which represents the interest that has accrued on the McKesson Prepetition Principal Amount at a rate of ten percent (10%) per annum (based on a 360-day year for actual days elapsed) for the period from the Petition Date through November 10, 2010, plus (iii) interest at a rate of ten percent (10%) per annum (based on a 360-day year for

5

actual days elapsed) on the McKesson Prepetition Principal Amount for the period from November 11, 2010 through the Effective Date (collectively, the " McKesson Allowed Class 4 Claim" ). Under the Plan, the following shall occur with respect to the McKesson Allowed Class 4 Claim:

5.5.1.1 On the Effective Date, Reorganized Accentia shall execute and deliver in favor of McKesson a promissory note (the " Class 4 Plan Note" ) in an original principal amount equal to the amount of the McKesson Allowed Class 4 Claim. The Class 4 Plan Note shall contain normal and customary terms and shall include the following terms: (a) a maturity date of forty (40) months following the Effective Date, (b) interest will accrue and be payable on the outstanding principal of the Class 4 Plan Note at a fixed rate of five percent (5%) per annum, calculated based on a 365 day year, commencing on the Effective Date through the maturity date, with an increase to ten percent (10%) per annum following the maturity date (whether due to acceleration or otherwise), conversion of the Accentia Bankruptcy Cases to Chapter 7, or other material defaults under the Class 4 Plan Note, (c) the outstanding principal together with all accrued and unpaid interest will be due and payable in full on the maturity date (whether due to acceleration or otherwise), (d) the Class 4 Plan Note will provide for the recovery of attorneys fees by McKesson in the ev
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |