Exhibit 10.1
ACQUISITION AGREEMENT
AGREEMENT dated 1st September 2003 ("the Agreement"), by, between and among
BIOACCELERATE INC, a company incorporated under the laws of the State of
Delaware (herein referred to as BIOC), of 00 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx, 00000, the persons listed on Exhibit A attached hereto and made a part
hereof, being all of the shareholders and executive officers of BIOC(hereinafter
referred to as "MANAGEMENT"); and PHARMA MANUFACTURING SERVICES LIMITED, a
company incorporated under the laws of the United Kingdom (hereinafter referred
to as "PMSL ") of Xxxxxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxx XX0 0XX; and the
persons listed on Exhibit "A" attached hereto and made a part hereof,
(hereinafter referred to as the "SELLERS").
WHEREAS, the SELLERS own a total of 900 shares of common stock, (pound)1 par
value of PMSL, said shares being 100% of the issued and outstanding common stock
of PMSL.
WHEREAS, the SELLERS desire to sell and BIOC desires to purchase one hundred
(100%) percent of such shares.
NOW, THEREFORE, in consideration of the mutual convenants, agreements,
representations and warranties herein contained, the parties hereby agree as
follows:
1. PURCHASE AND SALE - The SELLERS hereby agree to sell, transfer, assign and
convey to BIOC and BIOC hereby agrees to purchase and acquire from the
SELLERS, a total of 900 shares of common stock, (pound)1 par value of PMSL,
which equates one hundred percent (100%) percent of all of PMSL 's
currently issued and outstanding stock (the PMSL Shares"), in a tax-free
stock-for-stock acquisition.
2. CONSIDERATION - The Consideration price to be paid by BIOC for the PMSL
Common Shares shall be 18,000,000 shares of BIOC common stock.
3. WARRANTIES REPRESENTATIONS AND COVENANTS OF PMSL AND PMSL PRINCIPALS - In
order to induce BIOC to enter into this Agreement and to complete the
transaction contemplated hereby, PMSL and its principal executive officers
(hereinafter referred to as the "PMSL PRINCIPALS", jointly and severally
warrant and represent to AND that:
(a) ORGANIZATION AND STANDING PMSL is a corporation duly organized,
validly existing and in a good standing under the laws of the United
Kingdom, is qualified to do business as a foreign corporation in every
other state or jurisdiction in which it operates to the extent
required by the laws of such states and jurisdictions, and has full
power and authority to carry on its business as now conducted and to
own and operate its assets, properties and business. Attached hereto
as Exhibit "B" are true and correct copies of PMSL 's Certificate of
Incorporation, amendments thereto and all current \by-laws of PMSL .
No changes thereto will be made in any of the Exhibit "B" documents
before the closing. PMSL has no subsidiaries except as listed or any
investments or ownership interests in any corporation, partnership,
joint venture or other business enterprise which is material to its
business.
(b) CAPITALIZATION As of the Closing Date of PMSL 's entire authorized and
issued equity capital consists of 1,000 shares of common stock,
(pound)1 par value of which 900 shares of common stock, (pound)1 par
value will be issued and outstanding as of the Closing. As of the
Closing Date, there will be no other voting or equity securities
authorized or issued, nor any authorized or issued securities
convertible into voting stock, and no outstanding subscriptions,
warrants, calls, options, rights, commitments or agreements by which
PMSL or the SELLERS are bound, PMSL for the issuance of any additional
shares of common stock or any other voting or equity security, other
than any agreements that PMSL has with any of its subsidiaries. The
900 shares of ordinary stock at (pound)1 par value issued and
outstanding PMSL Shares to be transferred by SELLERS constitutes one
hundred (100%) percent of the currently issued and outstanding shares
of Common Stock of PMSL , which includes inter-claim, that same
percentage of PMSL 's voting power, right to receive dividends, when,
as and if declared and paid, and the right to receive the proceeds of
liquidation attributable to common stock, if any.
(c) OWNERSHIP OF PMSL SHARES Each SELLER warrants and represents,
severally, that as of the date hereof, such SELLER is the sole owner
of the PMSL Shares listed by his or her name on Exhibit "A-1", free
and clear of all liens, encumbrances, and restrictions whatsoever,
except that the PMSL Common Shares so listed have not been registered
under the Securities Act of 1933, as amended (the "33 Act"), or any
applicable State Securities laws. By SELLERS' transfer of the PMSL
Shares to BIOC pursuant to this Agreement. BIOC will thereby acquire
100% of the outstanding capital stock of PMSL , free and clear of all
liens, encumbrances and restrictions of any nature whatsoever.
(d) TAXES PMSL has filed all federal, state and local income or other tax
returns and reports that it is required to file with all governmental
agencies, wherever situate, and has paid or accrued for payment all
taxes as shown on such returns, such that a failure to file, pay or
accrue will not have a material adverse effect on PMSL . PMSL 's
income tax returns have never been audited by any authority empowered
to do so.
(e) PENDING ACTIONS There are no known material legal actions, lawsuits,
proceedings or investigations, either administrative or judicial,
pending or threatened, against or affecting PMSL , or against the PMSL
PRINCIPALS that arrive out of their operation of PMSL , except as
described in Exhibit "C" attached hereto. PMSL is not knowingly in
material violation of any law, material ordinance or regulation of any
kind whatever.
(f) GOVERNMENT AND REGULATION PMSL holds the licenses and registrations
set forth on Exhibit "D" hereto from the jurisdictions set forth
therein, which licenses and registrations are all of the licenses and
registrations necessary to permit PMSL to conduct its current
business. All of such licenses and registrations are in full force and
effect, and there are no proceedings, hearings or other actions
pending that may affect the validity or continuation of any of them.
No approval of any other trade or professional association or agency
of government other than as set forth on Exhibit "D" is required for
any of the transactions effected by this Agreement, and the completion
of the transactions contemplated by this Agreement will not, in and of
themselves, affect or jeopardize the validity or continuation of any
of them.
(g) OWNERSHIP OF ASSETS Except as set forth in Exhibit "F" attached
hereto, PMSL has good, marketable title, without any liens or
encumbrances of any nature whatever, to all of the following, if any;
assets, properties and rights of every type and description,
including, without limitation, all cash on hand and in banks,
certificates of deposit, stocks, bonds, and other securities, good
will, customer lists, its corporate name and all variants thereof,
trademarks and trade names, copyrights and interests thereunder,
licenses and registrations, pending licenses and permits and
applications therefor, inventions, processes, know-how, trade secrets,
real estate and interests therein and improvements thereto, machinery,
equipment, vehicles, notes and accounts receivable, fixtures, rights
under agreements and leases, franchises, all rights and claims under
insurance policies and other contracts of whatever nature, rights in
funds of whatever nature, books and records and all other property and
rights of every kind and nature owned or held by PMSL as of this date,
and will continue to hold such title on and after the completion of
the transactions contemplated by this Agreement; nor, except in the
ordinary course of its business, has PMSL disposed of any such asset
since the date of the most recent balance sheet described in Section
3(0) of this Agreement.
(h) NO INTEREST IN SUPPLIERS, CUSTOMERS, LANDLORDS OR COMPETITORS Neither
the PMSL PRINCIPALS nor any member of their families have any material
interest of any nature whatever in any supplier, customer, landlord or
competitor of PMSL .
(i) NO DEBT OWED BY PMSL TO PMSL PRINCIPALS Except as set forth in Exhibit
"F" attached hereto, PMSL does not owe any money, securities, or
property to either the PMSL PRINCIPALS or any member of their families
or to any company controlled by such a person, directly or indirectly.
To the extent that the PMSL PRINCIPLES may have any undisclosed
liability to pay any sum or property to any such person or equity or
any member of their families such liability is hereby forever
irrevocably released and discharged.
(j) COMPLETE RECORDS All of PMSL 's books and records, including, without
limitation, its books of account, corporate records, minute book,
stock certificate books and other records are up-to-date, compete and
reflect accurately and fairly the conduct of its business in all
material respects since its date of incorporation.
(k) NO MISLEADING STATEMENTS OR OMISSIONS Neither this Agreement nor any
financial statement, exhibit, schedule or document attached hereto or
presented to BIOC in connection herewith, contains any materially
misleading statement or omits any fact or statement necessary to make
the other statements or facts therein set forth not materially
misleading.
(l) VALIDITY OF THIS AGREEMENT All corporate and other proceedings
required to be taken by the SELLERS and by PMSL in order to enter into
and carry out this Agreement have been duly and properly taken. This
Agreement has been duly executed by the SELLERS and by PMSL , and
constitutes the valid and binding obligation of each of them,
enforceable in accordance with its terms except to the extent Inc by
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws relating to or effecting generally the enforcement of creditors
rights. The execution and delivery of this Agreement and the carrying
out of its purposes will not result in the breach of any of the terms
and conditions of, or constitute a default under or violate, PMSL 's
Certificate of Incorporation or By-Laws, or any material agreement,
lease, mortgage, bond, indenture, license or other material document
or undertaking, oral or written, to which PMSL or the SELLERS is a
party or is bound or may be affected, nor will such execution,
delivery and carrying out violate any law, rule or regulation or any
order, with injunction or decree, of any court, regulatory agency or
other governmental body; and the business now conducted by PMSL can
continue to be so conducted after completion of the transaction
contemplated hereby, with PMSL as a wholly owned subsidiary of BIOC.
(m) CONCEPTS AND APPROVALS: COMPLIANCE WITH LAWS Neither PMSL nor the
SELLERS are required to make any filing with, or obtain the consent or
approval of, any person or entity as a condition to the consummation
of the transactions contemplated by this Agreement. The business of
PMSL has been operated in material compliance with all laws, rules,
and regulations applicable to its business, including, without
limitation, those related to securities matters, trade matters,
environmental matters, public health and safety, and labor and
employment.
(n) ACCESS TO BOOKS AND RECORDS BIOC will have full and free access to
PMSL 's books during the course of this transaction prior to Closing,
during regular business hours, on reasonable notice.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BIOC AND MANAGEMENT OF
BIOC("MANAGEMENT") In order to induce the SELLERS and PMSL to enter into
this Agreement and to complete the transaction contemplated hereby, BIOC
and MANAGEMENT jointly and severally warrant, represent and covenant to
PMSL and SELLERS that :
(a) ORGANIZATION AND STANDING BIOC is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, will be qualified to do business as a foreign corporation in
every other state and jurisdiction in which it operates to the extent
required by the laws of such states or jurisdictions, and will have
full power and authority to carry on its business as now conducted and
to own and operate its assets, properties and business. BIOC has no
subsidiaries or any other investments or ownership interests in any
corporation, partnership, joint venture or other business enterprise.
(b) CAPITALIZATION BIOC's entire authorized equity capital consists of
25,000,000 shares of voting common stock, $0.001 par value. Of which
5,000,000 shares of voting stock is currently issued and outstanding.
At the closing of this agreement the company will conduct a
simultaneous 5 for 1 reverse split of the company's issued and
outstanding common stock leaving 1,000,000 shares issued and
outstanding. The issued and outstanding shares after closing of this
agreement shall be 19,000,000 shares. The relative rights and
preferences of BIOC's equity securities are set forth on the
Certificate of Incorporation, as amended and BIOC's By-laws (Exhibit
"H" hereto). There are no other voting or equity securities authorized
or issued, not any authorized or issued securities convertible into
voting stock, and no outstanding subscriptions, warrants, calls,
options, rights, commitments or agreements by which BIOC is bound,
calling for the issuance of any additional shares of common stock or
any other voting or equity security. The By-laws of BIOC provide that
a simple majority of the shares voting at a stock holders' meeting at
which a quorum is present may elect all of the directors of BIOC.
Cumulative voting is not provided for by the By-Laws or Certificate of
Incorporation of BIOC.
(c) OWNERSHIP OF SHARES By BIOC's issuance of the BIOC Common Shares to
the SELLERS pursuant to this Agreement, the SELLERS will thereby
acquire good, absolute marketable title thereto, free and clear of all
liens, encumbrances and restrictions of any nature whatsoever, except
by reason of the fact that such BIOC shares will not have been
registered under the 33 Act, or any applicable state securities laws.
(d) SIGNIFICANT AGREEMENTS BIOC is not and will not at Closing be bound by
any of the following:
(i) Employment, advisory or consulting contract (except as described
in Section 12 herein).
(ii) Plan providing for employee benefits of any nature.
(iii) Lease with respect to any property or equipment. (iv) Contract
of commitments for any current expanditure.
(v) Contract or commitment pursuant to which it has assumed,
guaranteed, endorsed or otherwise become liable for any
obligation of any other person, firm or organization.
(vi) Contract, agreement, understanding, commitment or arrangement
either than in the normal course of business, not set forth in
the Agreement or an Exhibit hereto.
(vii) Agreement with any person relating to the dividend, purchase or
sale of securities, that has not been settled by the delivery of
payment of securities when due, and which remains unsettled upon
the date of this Agreement.
(e) TAXES BIOC has filed all federal, state and local income or other tax
returns and reports that it is required to file with all governmental
agencies, wherever situate, and has paid all taxes as shown on such
returns. All of such returns are true and complete. BIOC's income tax
returns have never been audited by say authority empowered to do so.
(f) ABSENCE OF LIABILITIES As of the Closing Date BIOC will have no
liabilities of any kind or nature, fixed or contingent, except for the
costs, including legal and accounting fees and other expenses, in
connection with this transaction, for which BIOC agrees to be
responsible and to pay in full at or before the Closing.
(g) NOPENDING ACTIONS To the best of management's knowledge, there are no
legal actions, lawsuits, proceedings or investigations, either
administrative or judicial, pending or threatened against or affecting
BIOC, or against any of the BIOC MANAGEMENT and arising out of their
operation of BIOC. BIOC has been in compliance with, and has not
received notice of violation of any law, ordinance of any kind
whatever, including, but not Inc to, the 33 Act, the Rules and
Regulations of the SEC, or the Securities Laws and Regulations of any
sale. BIOC is not an investment company as defined in, or otherwise
subject to regulation under, the Investment Company Act of 1940. BIOC
is not required to file reports pursuant to either Section 13 or
Section 15 (d) of the 34 Act.
(h) CORPORATE RECORDS All of BIOC's books and records, including, without
limitation, its books of account, corporate records, minute book,
stock certificate books and other records are up-to-date complete and
reflect accurately and fairly the conduct of its business in all
respects since its date of incorporation; all of said books and
records will be made available for inspection by PMSL's authorized
representatives prior to the Closing as provided by Section 4(I)
herein, and will be delivered to BIOC's new management at the Closing.
(i) NOMISLEADING STATEMENTS OR OMISSIONS Neither this agreement nor any
financial statement, exhibit, schedule or document attached hereto or
presented to PMSL in connection herewith contains any materially
misleading statement, or omits any fact or statement necessary to make
the other statements or facts therein set forth not materially
misleading.
(j) VALIDITY OF THIS AGREEMENT All corporate and other proceedings
required to be taken by BIOC in order to enter into and to carry out
this Agreement will have been duly and properly taken at or before the
Closing. This Agreement has been duly executed by BIOC, constitutes a
valid and binding obligation of BIOC enforceable in accordance with
its terms. The execution and delivery of this Agreement and the
carrying out of its purposes will not result in the breach of any of
the terms or conditions of, or constitute a default under or violate,
BIOC's Certificate of Incorporation or By-Laws, or any agreement,
lease, mortgage, bond, indenture, license or other document or
undertaking, oral or written, to which BIOC is a party or is bound or
may be affected nor will such execution, delivery and carrying out
violate any law, rule or regulation or any order, writ, injunction or
decree of any court, regulatory agency or other governmental body.
(k) CONSENTS AND APPROVALS, COMPLIANCE WITH LAWS Except for the notices to
be filed as described in Section 7(a)(v) herein, neither PMSL nor
MANAGEMENT is required to make any filing with, or obtain the consent
or approval of, any person or entity as a condition to the
consummation of the transactions contemplated by this Agreement. The
business of BIOC has been operated in compliance with all laws, rules
and regulations applicable to its business, including, without
limitation, those related to securities matters, trade matters,
environmental matters, public health and safety, and labor and
employment.
(l) ACCESS TO BOOKS AND RECORDS PMSL and SELLERS will have full and free
access to PMSL 's books and records during the course of this
transaction prior to and at the Closing on reasonable notice.
(m) DIRECTORS AND SHAREHOLDERS APPROVAL As of the Closing, BIOC's Board of
Directors and Shareholders, by meeting or consent shall have properly
authorized the matters described in section 7(a)(iv)herein.
(n) THE BIOC SHARES All of the BIOC Common Shares issued to SELLERS shall
be validly issued, fully-paid non-assessable shares of BIOC Common
Stock, with full voting rights, dividend rights, and right to receive
the proceeds of liquidation , if any, as set forth in BIOC's
Certificate of Incorporation.
(o) CHANGE OF NAME Subsequent to the signing of this agreement PMSL will
file with Companies House in the United Kingdom to change its name to
Bioaccelerate Limited.
5. TERM: INDEMNIFICATION All representations, warranties, covenants and
agreements made herein and in the exhibits attached hereto shall survive
the execution and delivery of this Agreement and payment pursuant thereto.
MANAGEMENT and PMSL MANAGEMENT ("management") of both parties to the
agreement hereby agree, jointly and severally, to indemnify, defend, and
hold harmless BIOC, PMSL , and the SELLERS from and against any damage,
loss, liability, or expense (including without limitation, reasonable
expenses of investigation and reasonable attorney's fees) arising out of
any material breech of any representation, warranty, covenant, or agreement
made by PMSL MANAGEMENT or management in this Agreement.
6. CONDITIONS PRECEDENT TO CLOSING
(a) The obligations of PMSL and the SELLERS under this Agreement shall be
and are subject to fulfillment, prior to or at the Closing, of each of
the following conditions:
(i) That BIOC's and MANAGEMENT's representations and warranties
contained herein shall be true and correct at the time of Closing
as if such representations and warranties were made at such time,
and MANAGEMENT will deliver an executed certification confirming
the foregoing;
(ii) That BIOC and MANAGEMENT shall have performed or complied with
all agreements, terms and conditions required by this Agreement
to be performed or complied with by them prior to or at the time
of the Closing;
(iii) That BIOC's directors and shareholders, by proper and sufficient
vote taken either by consent or at a meeting duly and properly
PMSL led and held, shall have properly approved all of the
matters required to be approved by BIOC's directors and
shareholders, respectively;
(iv) That BIOC's Board of Directors, by proper and sufficient vote,
shall have approved this Agreement and the transactions
contemplated hereby; and
(b) The obligations of BIOC and MANAGEMENT under this Agreement shall be
and are subject to fulfillment, prior to or at the Closing of each of
the following conditions:
(i) That PMSL 's and SELLERS' representations and warranties
contained herein shall be true and correct at the time of Closing
as if such representations and warranties were made at such time
and PMSL and the PMSL PRINCIPALS shall deliver an executed
certification confirming the foregoing;
(ii) That PMSL and PMSL PRINCIPALS shall have performed or complied
with all agreements, terms and conditions required by this
Agreement to be performed or complied with by them prior to or at
the time of Closing; and
7 TERMINATION This Agreement may be terminated at any time before or at
Closing, by;
(a) The mutual agreement of the parties;
(b) Any party if:
(i) Any legal proceeding shall have been instituted or shall be
imminently threatening to delay, restrain or prevent the
consummation of this Agreement.
Upon termination of this Agreement for any reason, in accordance with the terms
and conditions set forth in this paragraph, each said party shall bear all costs
and expenses as each party has incurred and no party shall be liable to the
other.
8. EXHIBITS All Exhibits attached hereto are incorporated herein by this
reference as if they were set forth in their entirety.
9. MISCELLANEOUS PROVISIONS This Agreement is the entire agreement between the
parties in respect of the subject matter hereof, and there are no other
agreements, written or oral, nor may this Agreement be modified except in
writing and executed by all of the parties hereto. The failure to insist
upon strict compliance with any of the terms, covenants or conditions of
this Agreement shall not be deemed a waiver or relinquishment of such
rights or power at any other time or times.
10. PROHIBITED ACTIONS Between the date hereof and the effective date of the
merger, neither Purchaser nor Seller will, except with the prior written
consent of the other:
(a) issue or sell any stock, bonds, or other corporate securities;
(b) incur any obligation or liability (absolute or contingent), except
current liabilities incurred, and obligations under contracts entered
into, other than in the ordinary course of business;
(c) discharge or satisfy any lien or encumbrance or pay any obligation or
liability (absolute or contingent) other than in the ordinary course
of business;
(d) make any dividend or other payment or distribution to its shareholders
or Purchase or redeem any shares of its capital stock other than in
the ordinary course of business;
(e) mortgage, pledge, create a security interest in, or subject to lien or
other encumbrance any of its assets, tangible or intangible other than
in the ordinary course of business;
(f) sell or transfer any of its tangible assets or cancel any debts or
claims except in each case in the ordinary course of business other
than in the ordinary course of business;
(g) sell, assign, or transfer any trademark, trade name, patent, or other
intangible asset;
(h) waive any right of any substantial value other than in the ordinary
course of business; or
(i) enter into any other transaction other than in the ordinary course of
business.
11. FURTHER INSTRUMENTS From time to time, as and when requested by the either
of the parties or by its successors or assigns, the other party will
execute and deliver, or cause to be delivered, all such deeds and other
instruments; and will take or cause to be taken such further or other
action as the parties may deem necessary or desirable in order to vest in
and confirm to the purchaser title to and possession of all its property,
rights, privileges, possessions, and franchises and otherwise to carry out
the intent and purposes of this agreement.
12. GOVERNING LAW This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
13. COUNTERPARTS This Agreement may be executed in duplicate facsimile
counterparts, each of which shall be deemed an original and together shall
constitute one and the same binding Agreement, with one counterpart being
delivered to each party hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the
date and year above first written.
BIOACCELERATE INC
By:
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PHARMA MANUFACTURING SERVICES LIMITED
By:
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