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, $0.001 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 $0.001 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 $0.001 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, $0.001 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,
$0.001 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: ____________________________
LIST OF EXHIBITS
Exhibit "A"/"A-1" List of Sellers
Exhibit "B" True and correct copies of BIOENVISION's
Certificate of
Incorporation, amendments thereto and all
current
By-laws.
Exhibit "C" Any material legal actions, lawsuits,
proceedings of
investigations, either administrative or
judicial,
pending or threatened, against or affecting
BIOENVISION,
or against the Sellers that arise out of
their operation
of BIOENVISION.
Exhibit "D" Evidence of BIOENVISION's licenses and
registrations necessary to permit
BIOENVISION to conduct its current business.
Exhibit "E" Any impediments to BIOENVISION's good,
marketable title including liens or
encumbrances of any nature
whatever.
Exhibit "F" Any money, securities, or property owned
by BIOENVISION to either the
Principals of BIOENVISION or any
member of their families or to any
company controlled by such a
person, directly or indirectly.
