14-06150H

FIRST INSERTION
NOTICE OF FORECLOSURE SALE
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: 14-CA-3892
DIV: K
CORPS REAL, LLC, an Illinois limited liability company; and PABETI, INC., an Illinois corporation,
Plaintiffs, v.
ACCENTIA BIOPHARMACEUTICALS, INC., a Florida corporation; et al.,
Defendants.
Notice is hereby given pursuant to a Final Default Judgment of Foreclosure dated August 7, 2014, entered in Case No. 14-CA-3892, of the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, in favor of the Plaintiffs, Corps Real, LLC and Pabeti, Inc., and against the Defendants, ACCENTIA BIOPHARMACEUTICALS, INC.; ASM CAPITAL III, LP; BRIDGEPOINTE MASTER FUND LTD.; DIAMOND OPPORTUNITY FUND, LLC; MIDSUMMER INVESTMENT LIMITED; LLOYD MILLER; PANDORA SELECT PARTNERS, LP; R&R OPPORTUNITY FUND, L.P.; ROCKMORE INVESTMENT MASTER FUND LTD.; WHITEBOX CONCENTRATED CONVERTIBLE ARBITRAGE PARTNERS, L.P. a/k/a Whitebox Convertible Arbitrage Partners, L.P.; WHITEBOX CREDIT ARBITRAGE PARTNERS, L.P. f/k/a Whitebox Hedged High Yield Partners, L.P.; WHITEBOX L/S EQUITY PARTNERS, L.P. f/k/a Whitebox Intermarket Partners, LP (“Whitebox Intermarket”); WHITEBOX SPECIAL OPPORTUNITIES FUND SERIES B PARTNERS, LP; and WOLVERINE CONVERTIBLE ARBITRAGE FUND TRADING LIMITED, jointly and severally, that Plaintiff will sell to the highest and best bidder for cash at www.hillsborough.realforeclose.com on September 26, 2014, at 10:30 a.m. EST, the following described property as set forth in the Final Default Judgment of Foreclosure:
SEE ATTACHED EXHIBIT “A”
EXHIBIT “A”
The collateral shall include the following specific property and assets of Accentia Biopharmaceuticals, Inc. (“Accentia”) regardless of where located, and all proceeds, rents and products of all of the foregoing and all distributions thereon.
a) 12,000,000 shares of Biovest International, Inc. common stock owned by Accentia contained in Biovest International, Inc., stock certificate no. B12547;
b) 66.67% of Accentia's contractual rights (including but not limited to the purchase right granted to BioDelivery Sciences International, Inc. (“BDSI”) pertaining to the first product for which a new drug application (“NDA”) is filed with the U.S. Food and Drug Administration (the “FDA”) containing BEMA Granisetron following the date of Accentia's Settlement Agreement dated December 30, 2009 (the “Settlement Agreement”) with BDSI; provided, however, if BEMA Granisetron is not the first BEMA-based product for which an NDA is filed with the FDA by or on behalf of BDSI following that date, then the applicable product shall be the first BEMA-based product for which an NDA is filed with the FDA by or on behalf of BDSI following the date of the Settlement Agreement; provided, further however, that Royalty Product shall exclude any BEMA-based product containing Fentanyl or a Derivative thereof, or Buprenorphine or a Derivative thereof, as obtained in the Settlement Agreement with BDSI, as described in full in the Settlement Agreement;
c) 3,061,224 shares of Biovest International, Inc. common stock owned by Accentia contained in Biovest International, Inc. stock certificate no. B14539;
d) All of Accentia's right, title and interest in and to payments designated as “Earnout #2” as more particularly described in the Earnout Agreement with LA-SER Alpha Group Sarl dated October 31, 2011, and described herein in Schedule A-1;
e) 6,666,666 shares of Biovest International, Inc. common stock owned by Accentia; and
f) All assets and personal property of Accentia, including without limitation, the assets listed on Schedule A-2 attached.
Schedule A-1
LA-SER Alpha Group Sarl Earnout #2 owed to Accentia Biopharmaceuticals, Inc.
A maximum of four million five hundred thousand dollars (USD S4,500,000) (the “Earnout #2 Cap”) will be paid by LA-SER Alpha Group Sarl (“Purchaser”) to Accentia Biopharmaceuticals, Inc. ('the Company') on the 10th day following the Earnout #2(a) or Earnout #2(b) period as defined in the parties Asset Purchase Agreement dated October 31, 2011. The Earnout #2 payment will be in an amount equal to:
a. the difference between: (i) six (6) times EBITDA of Newcorp (as defined in the Asset Purchase Agreement between Purchaser and the Company) for the fiscal year 2013 AND (ii) the aggregate of: (a) the Upfront Purchase Price paid by Purchaser to the Company under the Asset Purchase Agreement and (b) the Earnout #1 already paid and (c) the amount of Research Services actually acquired as purchased by the Company with Credits under Section 7.4(a) of the Asset Purchase Agreement (i.e. USD $600,000). For the purpose of Earnout#2(a), the EBITDA will be measured for the twelve months ended March 31, 2013;
or, at the election of the Company:
b. the difference between: (i) six (6) times EBITDA of Newcorp (as defined in the Asset Purchase Agreement between Purchaser and the Company) for the fiscal year 2013 and 2014 AND (ii) the aggregate of: (a) the Upfront Purchase Price paid by Purchaser to the Company under the Asset Purchase Agreement and (b) the Earnout #1 already paid and (c) the amount of Research Services actually acquired as purchased by the Company with Credits under Section 7.4(a) of the Asset Purchase Agreement (i.e. USD S600,000). For the purpose of Earnout #2(b), the EBITDA will be measured for the average of the two twelve month periods ended March 31, 2013 and 2014.
Schedule A -2
PATENTS AND PATENT APPLICATIONS
TAB APPLICATION APP. # PUBLICATION PATENT APP. TITLE DATE OF PATENT # DATE ASSIGNMENT ASSIGNOR(S) ASSIGNEE(S)
FILED DATE DATE PUBLICATION # PATENT RECORDED
1 Sept. 22, 2011 13/240443 May 24, 2012 20120129206 Method of Identifying Patients. 02/10/12 Assignment #1: Assignment #1:
Suitable for High-Dose Robert A. Brodsky The Johns Hopkins
Cyclophosphamide Treatment Richard J. Jones University
Adam Kaplin
02/10/12 Assignment #2: Assignment #2:
Francis E. O'Donnell Accentia
Susan Bonitz Biopharmaceuticals,
Carlos Santos Inc.
2 Sept. 12, 2011 13/230212 June 14, 2012 20120148611 Cyclophosphamide in Combination 03/09/12 Assignment #1: Assignment #1:
with Anti-Idiotypic Vaccines Robert A. Brodsky The Johns Hopkins
Richard J. Jones University
03/09/12 Assignment #2: Assignment #2:
Francis E. O'Donnell Accentia
Susan Bonitz Biopharmaceuticals,
Carlos Santos Inc.
3 Sept. 22, 2011 13/240465 May 24, 2012 20120128685 Use of High-Dose Oxazaphosphorine 02/07/12 Assignment #1: Assignment #1:
Drugs in Combination with Robert A. Brodsky The Johns Hopkins
Monoclonal Antibodies for Treating Richard J. Jones University
Immune Disorders Adam Kaplin
02/07/12 Assignment #2: Assignment #2:
Francis E. O'Donnell Accentia
Susan Bonitz Biopharmaceuticals,
Carlos Santos Inc.
4 May 21, 2010 12/785224 May 19, 2011 20110117050 Methods of Providing a System of 01/12/11 Francis O'Donnell, Jr. Accentia
Care for an Oxazaphosphorine Drug Carlos Santos Biopharmaceuticals,
Regimen Inc.
5 May 21, 2010 12/785211 April 28, 2011 20110097426 Methods of Safe and Effective 01/11/11 Francis O'Donnell, Jr. Accentia
Treatment Using Oxazaphosphorine Carlos Santos Biopharmaceuticals,
Drug Inc.
6 Oct. 13, 2011 13/272864 June 14, 2012 20120148577 Use of High-Dose, Post- 05/11/12 Assignment #1: Assignment #1:
Transplantation Oxazaphosphorine Francis O'Donnell, Jr. Accentia
Drugs for Reduction of Transplant Carlos Santos Biopharmaceuticals,
Rejection Susan Bonitz Inc.
05/11/12 Assignment #2: Assignment #2:
Ephraim J. Fuchs The Johns Hopkins
Leo Luznik University
Robert A. Brodsky
Richard J. Jones
7 July 13, 2007 11/777890 June 5, 2008 20080131420 Methods and Compositions for 02/15/08 Assignment #1: Assignment #1:
Treating Mucosal Inflammation Francis E. O'Donnell, Jr. Accentia, Inc.
12/02/08 Assignment #2: Assignment #2:
Francis E. O'Donnell, Jr. Accentia
*Corrective Assignment to correct Biopharmaceuticals,
the Assignee Previously Recorded. Inc.
8 Mar. 31, 2009 12/415357 Oct. 15, 2009 20090258000 Mucosally Non-Irritative 05/29/09 Francis E. O'Donnell, Jr. Accentia
Amphotericin B Formulation and Donald Deroo Biopharmaceuticals,
Methods for Treating Non-Invasive Inc.
Fungus-Induced Mucositis
9 Aug. 3, 2009 12/534575 Dec. 3, 2009 20090297623 Formulation, Devices and July 3, 2012 8,211,460 03/26/12 Francis E. O'Donnell, Jr. Accentia
Methods for Treating and B2 Angelos M. Stergiou Biopharmaceuticals,
Preventing Mucositis Inc.
10 June 1, 2012 13/486197 Sept. 20, 2012 20120237618 Formulations, Devices, and Methods No Assignment Data Available.
for Treating and Preventing NOTE: On the Application and Publication, Accentia
Mucositis Biopharmaceuticals, Inc. is listed as Assignee.
12 May 27, 2010 12/789401 April 7, 2011 20110082115 Methods of Providing a System of 12/18/10 Francis O'Donnell, Jr. Accentia
Care for an Oxazaphosphorine Drug Carlos Santos Biopharmaceuticals,
Regimen Inc.
STUDIES AND TRIAL DATA
TITLE STUDY #
Key Symptoms of CRS Accentia study # ACC-QS-06-01
6 month minipig toxicity study MPI Research Study # 1260-002
Clinical trial data on SinuNase Accentia study #ACC-0501
CONTRACT RIGHTS
License Agreement between Accentia Biopharmaceuticals, Inc. and Hedgepath, LLC, dated August 12, 2013,
License Agreement between Accentia Biopharmaceuticals, Inc. and Revimmune, LLC, dated October 24, 2013
Emezine Settlement Agreement between BioDelivery Sciences International Inc., Arius Pharmaceuticals, Inc., Accentia Biopharmaceuticals, Inc., and TEAMM Pharmaceuticals, Inc., dated December 30, 2009
Any person claiming an interest in the surplus from the sale, if any, other than the property owner as of the date of the Lis Pendens, must file a claim within 60 days after the sale.
If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the ADA Coordinator, Hillsborough County Courthouse, 800 E. Twiggs St., Room 604, Tampa, Florida 33602, (813) 272-7040, at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.
Dated: August 25, 2014.
R. Marshall Rainey, Esquire
Florida Bar No. 794562
BURR & FORMAN LLP
One Tampa City Center, Suite 3200
201 North Franklin Street (33602)
Post Office Box 380 Tampa, Florida 33601
(813) 221-2626 (telephone)
(813) 221-7335 (facsimile)
[email protected] (primary)
[email protected] (secondary)
Attorneys for the Plaintiffs,
Corps Real, LLC and Pabeti, Inc.
Aug. 29; Sept. 5, 2014 14-06150H

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