ACQUISITION AGREEMENT
AGREEMENT dated 21st December 1998 ("the Agreement"), by,
between and among
ASCOT GROUP Inc, a company incorporated under the laws of the
State of Delaware
(herein referred to as ASCOT), the persons listed on Exhibit A
attached hereto and
made a part hereof, being all of the shareholders and executive
officers of ASCOT
(hereinafter referred to as "MANAGEMENT"); BIOENVISION INC, a
company
incorporated under the laws of the State of Delaware
(hereinafter referred to as
"BIOENVISION"); 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 7,013,897 shares of common
stock, $0.01 par
value, of BIOENVISION, said shares being 100% of the issued and
outstanding
common stock of BIOENVISION.
WHEREAS, the SELLERS desire to sell and ASCOT 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 ASCOT and ASCOT hereby agrees to purchase and acquire
from the SELLERS,
a total of 7,013,897 shares of common stock of BIOENVISION,
which equates to
one hundred percent (100%) percent of all of BIOENVISION's
currently issued and
outstanding common stock (the BIOENVISION Common Shares"),
in a tax-free
stock-for-stock acquisition.
2. Purchase Price - The aggregate purchase price to be
paid by ASCOT for the
BIOENVISION Common Shares shall be 7,013,897 post-reverse
split shares of
ASCOT $0.01 par value voting common stock (the "ASCOT Common
Shares").
The ASCOT Common Shares will be issued to the individual
SELLERS in
accordance with Exhibit "A-1" attached hereto.
3. Warranties Representations and Covenants of BIOENVISION
and BIOENVISION
PRINCIPALS - In order to induce ASCOT to enter into this
Agreement and to
complete the transaction contemplated hereby, BIOENVISION
and its principal
executive officers (hereinafter referred to as the
"BIOENVISION PRINCIPALS",
jointly and severally warrant and represent to ASCOT that:
(a) Organization and Standing BIOENVISION is a
corporation duly organized,
validly existing and in a good standing under the laws of
the State of Delaware, 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
BIOENVISION's
Certificate of Incorporation, amendments thereto and all
current \by-laws of
BIOENVISION. No changes thereto will be made in any of
the Exhibit "B"
documents before the closing. BIOENVISION 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 BIOENVISION's
entire authorized equity
capital consists of 7,013,897 shares of $0.01 par value, of
which 7,013,897 shares of
Common Stock will be 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
BIOENVISION or the SELLERS are bound, calling for the
issuance of any
additional shares of common stock or any other voting or
equity security.
The 7,013,897 issued and outstanding BIOENVISION Common
Shares to be
transferred by SELLERS constitutes one hundred (100%)
percent of the currently
issued and outstanding shares of Common Stock of
BIOENVISION, which includes
inter-claim, that same percentage of BIOENVISION'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 BIOENVISION Shares Each SELLER warrants
and represents,
severally, that as of the date hereof, such SELLER is the
sole owner of the
BIOENVISION Common Shares listed by his or her name on
Exhibit "A-1", free
and clear of all liens, encumbrances, and restrictions
whatsoever, except that the
BIOENVISION 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 BIOENVISION Common Shares
to ASCOT
pursuant to this Agreement. ASCOT will thereby acquire 100%
of the outstanding
capital stock of BIOENVISION, free and clear of all liens,
encumbrances and
restrictions of any nature whatsoever, except by reason of
the fact that the
BIOENVISION Common Shares will not have been registered
under the '33 Act, or
any applicable State securities laws.
(d) Taxes BIOENVISION 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
BIOENVISION. BIOENVISION's income tax returns have never
been audited by
any authority empowered to do so.
(e) Pending Actions There are no material legal actions,
lawsuits, proceedings or
investigations, either administrative or judicial, pending
or threatened, against or
affecting BIOENVISION, or against the BIOENVISION PRINCIPALS
that arrive
out of their operation of BIOENVISION, except as described
in Exhibit "C"
attached hereto. BIOENVISION is not knowingly in material
violation of any law,
material ordinance or regulation of any kind whatever,
including, but not limited to
laws, rules and regulations governing the sale of its
services, the 33 Act, the Securities
Exchange Act of 1934, as amended (the "34 Act"), the Rules
and Regulations of the
U.S. Securities and Exchange Commission ("SEC"), or the
Securities Laws and
Regulations of any state or nation.
(f) Government and Regulation BIOENVISION 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
BIOENVISION 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 "E"
attached hereto,
BIOENVISION 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 BIOENVISION 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 BIOENVISION 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
BIOENVISION PRINCIPALS nor any member of their families have
any material
interest of any nature whatever in any supplier, customer,
landlord or competitor of
BIOENVISION.
(i) No Debt Owed by BIOENVISION to BIOENVISION PRINCIPALS
Except as
set forth in Exhibit "F" attached hereto, BIOENVISION does
not owe any money,
securities, or property to either the BIOENVISION PRINCIPALS
or any member
of their families or to any company controlled by such a
person, directly or indirectly.
(j) Complete Records All of BIOENVISION'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 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 ASCOT 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 BIOENVISION 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 BIOENVISION, and constitutes
the valid and
binding obligation of each of them, enforceable in
accordance with its terms except
to the extent limited 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, BIOENVISION'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 BIOENVISION
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 BIOENVISION can continue
to be so
conducted after completion of the transaction contemplated
hereby, with
BIOENVISION as a wholly owned subsidiary of ASCOT
(m) Concepts and Approvals: Compliance with Laws Neither
BIOENVISION 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 BIOENVISION
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 ASCOT will have full and
free access to
BIOENVISION's books during the course of this transaction
prior to Closing,
during regular business hours, on reasonable notice.
4. Warranties, representations and Covenants of ASCOT
In order to induce the SELLERS and BIOENVISION to enter into
this Agreement and
to complete the transaction contemplated hereby, ASCOT
warrant, represent and
covenant to BIOENVISION and SELLERS that :
(a) Organization and Standing ASCOT 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. ASCOT has no subsidiaries or any other
investments or ownership
interests in any corporation, partnership, joint
venture or other business
enterprise.
(b) Capitalization ASCOT's entire authorized equity
capital consists of
25,000,000 shares of voting common stock, $0.01 par
value. As of the
Closing, after giving effect to (I) the proposed
one-for-15 reverse split of
ASCOT's 3,450,000 currently outstanding shares into
230,000 shares; and (II)
the issuance of 7,013,897 post-reverse split shares to
the SELLERS as
described in Exhibit A/A1 herein; Hereof, ASCOT will
have authorised
25,000,000 shares of common stock and have issued and
outstanding a
maximum of 7,243,897 shares of voting common stock,
$0.01 par value and
no shares of preferred stock issued as at closing.
Upon issuance, all of the
ASCOT Common Stock will be validly issued, fully paid
and non-assessable.
The relative rights and preferences of ASCOT's equity
securities are set forth
on the Certificate of Incorporation, as amended and
ASCOT'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 ASCOT is
bound, calling for
the issuance of any additional shares of common stock
or any other voting or
equity security. The By-laws of ASCOT 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 ASCOT. Cumulative voting
is not provided for
by the By-Laws or Certificate of Incorporation of
ASCOT. Accordingly, as
of the Closing the 7,013,897 shares being issued to and
acquired by the
SELLERS will constitute 98% of the 7,243,897 shares of
ASCOT, the 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 Shares By ASCOT's issuance of the
ASCOT 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 ASCOT shares will not have been
registered under the 33
Act, or any applicable state securities laws.
(d) Significant Agreements ASCOT 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 ASCOT 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. ASCOT's income tax
returns have never been
audited by say authority empowered to do so.
(f) Absence of Liabilities As of the Closing Date
ASCOT 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 ASCOT agrees to be
responsible and to pay in full
at or before the Closing.
(g)No Pending 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
ASCOT, or against any of
the ASCOT MANAGEMENT and arising out of their operation
of ASCOT.
ASCOT has been in compliance with, and has not received
notice of
violation of any law, ordinance of any kind whatever,
including, but not
limited to, the 33 Act, the Rules and Regulations of
the SEC, or the Securities
Laws and Regulations of any sale. ASCOT is not an
investment company as
defined in, or otherwise subject to regulation under,
the Investment
Company Act of 1940. ASCOT is not required to file
reports pursuant to
either Section 13 or Section 15 (d) of the 34 Act.
(h)Corporate Records All of ASCOT'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 BIOENVISION's authorized representatives
prior to the
Closing as provided by Section 4(I) herein, and will be
delivered to ASCOT's
new management at the Closing.
(i)No Misleading Statements or Omissions Neither this
agreement nor any
financial statement, exhibit, schedule or document
attached hereto or
presented to BIOENVISION 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 ASCOT 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 ASCOT, constitutes
a valid and
binding obligation of ASCOT 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, ASCOT'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 ASCOT 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 BIOENVISION 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 ASCOT
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 BIOENVISION and
SELLERS will have
full and free access to BIOENVISION's books and records
during the
course of this transaction prior to and at the Closing
on reasonable notice.
(m)ASCOT Financial Condition As of the Closing,
ASCOT will have no
assets or liabilities, except as disclosed in financial
statements.
(n)Directors and Shareholders Approval As of the
Closing, ASCOT's Board
of Directors and Shareholders, by meeting or consent
shall have properly
authorized the matters described in section
7(a)(iv)herein.
(o)The ASCOT Shares All of the ASCOT Common Shares
issued to
SELLERS shall be validly issued, fully-paid
non-assessable shares of ASCOT
Common Stock, with full voting rights, dividend rights,
and right to receive
the proceeds of liquidation , if any, as set forth in
ASCOT's Certificate of
Incorporation.
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
BIOENVISION MANAGEMENT ("management") of both parties to the
agreement hereby agree, jointly and severally, to indemnify,
defend, and hold
harmless ASCOT, BIOENVISION, 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
BIOENVISION MANAGEMENT or management in this Agreement.
1. Conditions Precedent to Closing (a) The obligations of
BIOENVISION 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 ASCOT'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 will deliver an executed
certification confirming
the foregoing;
(ii) That ASCOT 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 ASCOT's directors and shareholders, by
proper and sufficient vote
taken either by consent or at a meeting duly and
properly called and held,
shall have properly approved all of the matters
required to be approved by
ASCOT's directors and shareholders, respectively;
(iv) That ASCOT's Board of Directors, by proper and
sufficient vote, shall have
approved this Agreement and the transactions
contemplated hereby;
approved the contemplated reverse split of ASCOT's
outstanding Common
Stock without changing either the authorized shares or
the par value;
approved the change of ASCOT's corporate name to a name
selected by
BIOENVISION; approved the resignation of all of ASCOT's
current
directors and the election of up to three designees of
BIOENVISION to
serve as directors in place of ASCOT's current
directors; and will have
approved such other changes as are consistent with this
Agreement and
approved by BIOENVISION and ASCOT; and
(b) The obligations of ASCOT under this Agreement shall be
and are subject to
fulfillment, prior to or at the Closing of each of the
following conditions:
(i) That BIOENVISION'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 BIOENVISION
and the BIOENVISION PRINCIPALS shall deliver an
executed certification
confirming the foregoing;
That BIOENVISION and BIOENVISION 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 provision of this Agreement applicable to
a party shall be
materially untrue or fail to be accomplished on or
before December
31, 1998
(ii) 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. Closing The Closing of the transactions contemplated by
this Agreement ("Closing")
shall take place at the offices of ASCOT, at 1.00 P.M. on the
first business day after the
letter of the approval of SELLERS owning at least 80% of
BIOENVISION's Common
Stock or the shareholders of ASCOT approving this Agreement
and the matters referred
to in section 7(a)(vi) herein, or such other date as the
parties hereto shall mutually agree
upon. At the Closing, all of the documents and items referred
to herein shall be exchanged.
11 Governing Law This Agreement shall be governed by and
construed in accordance with the internal laws of the Sate of
Delaware.
12. 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.
ASCOT GROUP INC
By: ____________________________
BIOENVISION INC
By: ____________________________
