EXHIBIT 10.14
SECURITIES PURCHASE AGREEMENT
among
BIOENVISION, INC.
and
BIOACCELERATE INC.
Dated: As of March 24, 2000
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of the
24th day of March 2000, is entered into by and among BIOENVISION, INC., a
Delaware corporation (the "Company"); and BIOACCELERATE INC., a company
organized under the laws of the British Virgin Islands (the "Investor").
W I T N E S S E T H:
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WHEREAS, the Company desires to sell to the Investor, and the Investor
desires to purchase from the Company, shares of the Company's common stock, par
value $.001 (the "Common Stock") at $2.75 per share upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereby agree as follows:
1. AUTHORIZATION OF ISSUE.
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The Company has authorized the issuance and sale to an "accredited
investor" as that term is defined pursuant to Regulation D ("Regulation D") of
the Securities Act of 1933, as amended (the "Securities Act"), of up to
2,181,818 shares of its Common Stock against payment to the Company of
US$6,000,000.
2. ISSUANCE OF SHARES OF COMMON STOCK
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(a) Issuance of Initial Shares. On the terms and subject to the
conditions hereinafter set forth, on the date of the Initial Closing (as
hereinafter defined), the Company will issue and sell to the Investor, 727,272
shares of Common Stock (the "Initial Shares") against payment of the
consideration for those shares described below.
(b) Purchase Price; Payment of the Initial Shares. The purchase
price for the Initial Shares to be purchased pursuant to this Agreement shall be
US$2.75 per share, or the sum of US$2,000,000 for all 727,272 shares of the
Common Stock. The purchase price for the Initial Shares shall be paid by the
Investor to the Company at the Initial Closing by wire transfer of immediately
available funds to the bank account of the Company specified by the Company to
the Investor. The purchase price shall be payable by the Investor against
delivery of certificates evidencing the shares of Common Stock being purchased
by the Investor, all of which shall be registered in the name of the Investor.
3. ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK
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(a) Issuance of Milestone I Shares. On the terms and subject to
the conditions hereinafter set forth, the Investor shall have the option to
purchase an additional 727,273 shares of Common Stock (the "Milestone I Shares")
at any time through and including the Milestone I Shares Option Expiration Date
(as hereinafter defined).
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(b) Issuance of Milestone II Shares. On the terms and subject to
the conditions hereinafter set forth, the Investor shall have the option to
purchase an additional 727,272 shares of Common Stock (the "Milestone II
Shares") at any time through and including the Milestone II Shares Option
Expiration Date (as hereinafter defined). For purposes of this Agreement, the
Initial Shares, the Milestone I Shares and the Milestone II Shares are sometimes
herein referred to as the "Shares".
(c) Notice and Exercise of Options.
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(i) The Investor may exercise its option to purchase the
Milestone I Shares as set forth in paragraph (a) above in whole, but
not in part, at any time from the date hereof through 5:00 pm London
time on the Milestone I Shares Option Expiration Date (the "Milestone I
Shares Option Term"), by delivering to the Company (i) written notice,
executed by an authorized officer of the Investor, of the Investor's
election to exercise the option (the "Exercise Notice I"), which
Exercise Notice I must be received by the Company at its address for
notices pursuant to this Agreement prior to the Milestone I Shares
Option Expiration Date, and (ii) payment to the Company in immediately
available funds of the purchase price for the Milestone I Shares
pursuant to paragraph (d) below.
(ii) The Investor may exercise its option to purchase the
Milestone II Shares as set forth in paragraph (b) above in whole, but
not in part, at any time from the date hereof through 5:00 pm London
time on the Milestone II Shares Option Expiration Date (the "Milestone
II Shares Option Term"), by delivering to the Company (i) written
notice, executed by an authorized officer of the Investor, of the
Investor's election to exercise the option (the "Exercise Notice II"),
which Exercise Notice II must be received by the Company at its address
for notices pursuant to this Agreement prior to the Milestone II Shares
Option Expiration Date, and (ii) payment to the Company in immediately
available funds of the purchase price for the Milestone I Shares
pursuant to paragraph (d) below.
(d) Purchase Price; Payment for Shares.
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(i) The purchase price for the Milestone I Shares to be
purchased pursuant to this Agreement shall be $2.75 per share, or the
sum of $2,000,000 for all 727,273 shares of the Common Stock.
(ii) The purchase price for the Milestone II Shares to be
purchased pursuant to this Agreement shall be $2.75 per share, or the
sum of $2,000,000 for all 727,273 shares of the Common Stock.
(iii) The purchase price for the Milestone I Shares or the
Milestone II Shares shall be paid by wire transfer of immediately
available funds to the bank account of the Company. The purchase price
shall be payable by the Investor against delivery of certificates
evidencing the shares of Common Stock being purchased by the Investor,
all of which shall be registered in the name of the Investor.
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(e) Option Expiration Date.
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(i) The Company shall within five (5) business days after
the conditions set forth on Exhibit A have been achieved, send to the
Investor a written notice (the "Company Notice I") stating that such
conditions set forth on Exhibit A have been achieved. The Milestone I
Shares Option Expiration Date shall be the 30th day after the delivery
of Company Notice I. to the Investor (or, if the 30th day is not a
business day, the next succeeding business day). For purposes of this
Agreement, a "business day" shall be any day which is not a Saturday,
Sunday, or other day on which commercial banks in New York, New York
and London, England and not required or authorized by law to be closed.
(ii) The Company shall within five (5) business days after
the conditions set forth on Exhibit B have been achieved, send to the
Investor a written notice (the "Company Notice II") stating that such
conditions set forth on Exhibit B have been achieved. The Milestone II
Shares Option Expiration Date shall be the 30th day after the delivery
of Company Notice II. to the Investor (or, if the 30th day is not a
business day, the next succeeding business day).
(f) Options Not Transferable. Neither the Milestone I Shares
Option nor the Milestone II Shares Option, or any right or interest therein,
shall be transferable, directly or indirectly (including, without limitation, by
disposition, directly or indirectly, of assets or ownership interests of the
Investor, whether by sale, merger, reorganization or otherwise), in whole or in
part, to any person or entity, whether by contract, by operation of law, or
otherwise, and any attempt to do the same or the existence of any condition
which would tend to do the same shall automatically result in the applicable
Milestone I Shares Option or Milestone II Shares Option being void and
terminated, ab initio.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
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The Company hereby represents and warrants to the Investor, as follows:
(a) Organization and Good Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of its
state of incorporation, with full corporate power and authority to own its
properties and carry on its business as now being conducted.
(b) Capitalization of the Company. The authorized, issued and
outstanding capital stock of the Company is substantially as described on the
Company's Form 10-KSB for the fiscal year ended June 30, 1999 (the
"Form 10-KSB") and the Company's quarterly reports filed with the United States
Securities and Exchange Commission ("SEC"). The Company's Form 10-KSB and all
other documents and reports filed by the Company with the SEC since September 1,
1998 (the "SEC Documents") have been made available to the Investor or its
representatives on the Internet or otherwise.
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(c) Authorization, Execution and Effect of Agreements. The Company
has all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement and all other agreements and instruments
heretofore or hereafter executed and delivered by it pursuant to or in
connection with this Agreement (collectively, the "Transaction Documents"). The
execution and delivery of the Transaction Documents and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action of the Company. This Agreement and the other Transaction
Documents have each been duly executed and delivered and constitutes, and upon
execution and delivery in accordance herewith each other agreement or instrument
executed and delivered by the Company pursuant hereto, will constitute, the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject in each such case, to
applicable bankruptcy, insolvency, reorganization and similar laws affecting
creditors' rights and remedies generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(d) Conflicting Agreements and Other Matters. The execution,
delivery and performance by the Company of this Agreement and the other
Transaction Documents, and all other agreements and instruments heretofore or
hereafter to be executed and delivered by the Company in connection with the
consummation of the transactions contemplated by this Agreement and the other
Transaction Documents, and compliance by the Company with the terms and
provisions hereof and thereof applicable to it, including the issuance and sale
of the Shares, does not and will not (i) violate any provision of any law, rule,
regulation, order, writ, judgment, decree, administrative determination or award
having applicability to the Company, (ii) conflict with or result in a breach of
or constitute a default under the Certificate of Incorporation or By-Laws of the
Company, or any indenture or loan or credit agreement, or any other material
agreement or instrument, to which the Company is a party or by which the Company
or any of its properties are bound or affected, or (iii) result in, or require
the creation or imposition of, any lien upon or with respect to any of the
properties now owned by the Company or hereafter acquired by the Company.
(e) Financial Information. The (i) audited financial statements of
the Company for the fiscal years ended June 30, 1999 and June 30, 1998 as set
forth in the Form 10-KSB, as amended, and (ii) the unaudited financial
statements of the Company for the six months ended December 31, 1999 as set
forth in its Form 10-QSB, were prepared in accordance with generally accepted
accounting principles ("GAAP") consistently applied, and fairly present the
financial condition and results of operations of the Company for the periods
indicated therein; provided, that the unaudited financial statements do not
contain certain footnote disclosures required under GAAP for audited financial
statements and are subject to year end audit adjustments, none of which are
material.
(f) Use of Proceeds. The proceeds to the Company from the sale of
the Shares shall be used for general working capital purposes.
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(g) Accuracy of all SEC Public Filings. All SEC Reports available
to the Investor on the Internet or otherwise did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, except as
corrected in subsequent filings available to the Investor on the Internet or
otherwise. The Company filed all required forms, reports and documents with the
SEC required to be filed by it pursuant to the Securities Act and the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), all of which complied
at the time of filing in all material respects with all applicable requirements
of the Securities Act and the Exchange Act.
5. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
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The Investor hereby acknowledges, represents and warrants to, and
agrees with, the Company as follows:
(a) The Investor is acquiring the Shares for its own account as
principal, not as a nominee or agent, for investment purposes only, and not with
a view to, or for, resale, distribution or fractionalization thereof in whole or
in part and no other person has a direct or indirect beneficial interest in such
securities. Further, the Investor does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Shares for which the Investor is subscribing.
(b) The Investor has full power and authority to enter in to this
Agreement, the execution and delivery of this Agreement has been duly
authorized, if applicable, and this Agreement constitutes a valid and legally
binding obligation of the Investor.
(c) The Investor acknowledges its understanding that the offering
and sale of the Shares is intended to be exempt from registration under the
Securities Act by virtue of Section 4(2) of the Securities Act and the
provisions of regulations promulgated thereunder. In furtherance thereof, the
Investor represents and warrants to and agrees with the Company and its
affiliates as follows:
(i) The Investor is an "accredited" investor as that term
is defined pursuant to Regulation D promulgated under the Securities
Act. The Investor realizes that the statutory basis for the offering
exemption would not be present if the Investor intended to hold the
Shares for a short period, such as the capital gains period of tax
statutes, for a deferred sale, for a market rise, assuming that a
market develops, or for any other fixed period. Accordingly, the
Investor does not have in mind merely acquiring the Shares for fixed or
determinable period in the future and is not otherwise acquiring with a
view to distribute the Shares;
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(ii) The Investor has the financial ability to bear the
economic risk of its investment, has adequate means for providing for
its current needs and personal contingencies and has no need for
liquidity with respect to its investment in the Company; and
(iii) The Investor has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of the prospective investments in the Shares. If other
than an individual, the Investor also represents it has not been
organized for the purpose of acquiring the Shares.
(d) The Investor:
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(i) Has been provided an opportunity for a reasonable
time prior to the date hereof to obtain additional information
concerning the offering of the Shares, the Company and all other
information to the extent the Company possesses such information or can
acquire it without unreasonable effort or expense;
(ii) Has been given the opportunity for a reasonable time
prior to the date hereof to ask questions or, and receive answers from,
the Company or its representatives concerning the terms and conditions
of the offering of the Shares and other matters pertaining to this
investment, and have been given the opportunity for a reasonable time
prior to the date hereof to obtain such additional information
necessary to verify the accuracy of the information which was provided
in order for it to evaluate the merits and risks of purchase of Shares
to the extent to Company possesses such information or can acquire it
without unreasonable effort to expense; and
(iii) Has determined that the Shares are a suitable
investment for the Investor and that at this time the Investor could
bear a complete loss of such investment.
(e) The Investor is not relying on the Company, or any of its
affiliates or representatives with respect to economic considerations involved
in this investment. The Investor is capable of evaluating the merits and risks
of an investment in the Shares on the terms and conditions set forth herein.
(f) The Investor represents, warrants and agrees that it will not
sell or otherwise transfer the Shares without registration under the Securities
Act or an exemption therefrom and fully understands and agrees that it must bear
the economic risk of its purchase because, among other reasons, the Shares have
not been registered under the Securities Act or under the securities laws of any
state and, therefore, cannot be resold, pledged, assigned or otherwise disposed
of unless they are registered under the Securities Act and under the applicable
securities laws of such states or an exemption from such registration is
available prior to such sale, pledge, assignment or other disposition. In
particular, the Investor is aware that the Shares, when issued, will be
"restricted securities," as such term is defined in Rule 144 promulgated under
the Securities Act ("Rule 144"), and they may not be sold pursuant to Rule 144
unless all of the conditions of Rule 144 are met. The Investor also understands
that, except as otherwise provided herein, the Company is under no obligation to
register the Shares on its behalf or to assist it in complying with any
exemption from registration under the Securities Act or applicable state
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securities laws. The Investor further understands that sales or transfers of the
Shares are further restricted by applicable state securities laws and the
provisions of this Agreement. The Investor consents that the Company may, if it
desires, permit the transfer of the Shares out of its name only when the request
for transfer is accompanied by an opinion of counsel, which counsel and opinion
are reasonably satisfactory to counsel to the Company, that neither the sale nor
the proposed transfer results in a violation of the Securities Act.
(g) No representations or warranties have been made to the
Investor by the Company, or any officer, employee, agent, affiliate or
subsidiary of the Company, other than the representations of the Company
contained herein, and in subscribing for the Shares the Investor is not relying
upon any representations other than those contained herein.
(h) Any information which the Investor has heretofore furnished to
the Company with respect to its financial position and business experience is
correct and complete as of the date of this Agreement and if there should be any
material change in such information it will immediately furnish such revised or
corrected information to the Company.
(i) The Investor understands that an investment in the Shares is a
speculative investment which involves a high degree of risk of loss of its
entire investment.
(j) The Investor's overall commitment to investments which are not
readily marketable is not disproportionate to the Investor's net worth, and an
investment in the Shares will not cause such overall commitment to become
excessive.
(k) The Investor consents to the placing of legends and
stop-transfer orders with the transfer agent of the Company's securities with
respect to any Shares that may be registered in the name of the Investor or
beneficially owned by the Investor.
(l) The Investor understands that no federal or state agency has
made any finding or determination regarding the fairness of the offering of the
Shares or any recommendation or endorsement of the offering of the Shares.
(m) The Investor is not subscribing for the Shares as a result of
or subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media or broadcast over
television or radio, any seminar or meeting, or any solicitation or a
subscription by a person or entity not previously known to the Investor in
connection with investments in securities generally.
(n) Neither the execution, delivery nor performance of this
Agreement or any other required documents by the Investor violates or conflicts
with or creates (with or without the giving of notice or the lapse of time, or
both) a default under, or a lien or encumbrance upon, any of the Investor's
assets or properties pursuant to, or requires the consent, approval, or order of
any government or governmental agency or other person or entity under (x) any
note, indenture, lease, license or other material agreement to which the
Investor is a party or by which it or any of its assets or properties is bound
or (y) any statute, law, rule, regulation or court decree binding
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upon or applicable to the Investor or its asset or properties. If the Investor
is not a person, the execution and delivery by the Investor of this Agreement or
any other required documents have been duly authorized by all necessary
corporate or other action on behalf of the Investor and such investment will not
constitute a breach or violation of, or default under, the charter or by-laws or
equivalent governing documents of the Investor.
(o) The Investor has consulted its own financial, legal and tax
advisors with respect to the economic, legal and tax consequences of an
investment in the Shares and has not relied on this Agreement, the Company or
the Company's officers, directors, affiliates or professional advisors for
advice as to such consequences.
(p) THE UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT, FRAUD, OR OTHERWISE) IN ANY WAY ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT AND ANY OTHER REQUIRED DOCUMENTS OR THE UNDERSIGNED'S
PURCHASE OF THE SUBJECT UNITS.
(q) The Investor acknowledges and agrees that all information,
written and oral, concerning the Company furnished from time to time to the
Investor, including this Agreement and any other required documents, is provided
on a confidential basis. The Investor further acknowledges and agrees that it
shall not disclose such information, other than where such disclosure is
required by law or where such information is already available to the public
other than as a result of disclosure by the Investor, to anyone other than the
Investor's officers, directors, employees, legal counsel, accountants, or
authorized agents or advisors, who shall agree in writing to be bound by the
provisions of this paragraph.
6. COVENANTS.
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The Company agrees to comply with all of the covenants and agreements
on the part of the Company to be performed under the terms of the Transaction
Documents.
7. FINANCIAL STATEMENTS AND INSPECTION.
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(a) For as long as the Investor owns Shares which are not covered
by an effective Registration Statement filed with the SEC under the Securities
Act to permit the sale of those Shares, the Company will furnish to the Investor
copies of all Form 10-KSB Annual Reports and Form 10-QSB Quarterly Financial
Reports filed by the Company with the SEC.
8. TRANSFER OF SHARES.
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(a) Permissible Transfers. The Investor acknowledges that the
Company's securities being issued and sold to it hereunder are being so issued
and sold in transactions which are exempt from the registration requirements of
the Securities Act of 1933, as amended. None of the Shares may be distributed,
transferred, or otherwise disposed of by the Investor except pursuant to an
effective Registration Statement under such Act which is current with respect to
the securities offered thereby, or pursuant to an applicable exemption
therefrom, and pursuant to applicable "Blue Sky" or state securities laws or an
applicable exemption therefrom.
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(b) Legend. The Company shall cause to be set forth on the
certificates representing any Shares a legend substantially in the following
form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended. No transfer of
such shares shall be valid or effective except in accordance with an
effective registration statement covering such shares or an opinion of
counsel acceptable to the Company that registration of such shares is
not required pursuant to the applicable requirements of the Securities
Act of 1933, as amended."
9. REGISTRATION RIGHTS.
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(a) Piggyback Registration Rights. If at any time or from time to
time, the Company shall determine to register any of its Common Stock, for its
own account or the account of any of its stockholders, other than a registration
relating solely to employee benefit plans, or a registration relating solely to
an SEC Rule 145 transaction, a transaction relating solely to the sale of debt
or convertible debt instruments or a registration on any form (other than Form
X-0, X-0 or S-3, or their successor forms) which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of Common Stock, the Company will:
(i) give to the Investor written notice thereof as soon
as practicable prior to filing the registration statement; and
(ii) include in such registration and in any underwriting
involved therein, all the Shares specified in a written request, made
within fifteen (15) days after receipt of such written notice from the
Company by the Investor, provided that in no event shall Piggyback
Registration Rights apply to any shares (i) if the Investor is then
permitted to sell those shares pursuant to Rule 144 or a similar rule
or (ii) if the Investor seeks to register shares then having a fair
market value of less than US$500,000.
(b) Registrations Involving an Underwriting. If the registration
is for a registered public offering involving an underwriting, the Company shall
so advise the Investor as a part of the written notice given pursuant to
subsection 9(a)(i). In such event, the right of the Investor to registration
pursuant to Section 9 shall be conditioned upon the Investor's participation in
such underwriting and the inclusion of the Investor's Shares in the underwriting
to the extent provided herein. Should the Investor propose to distribute its
securities through such underwriting, it shall (together with the Company) enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 9, if a managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter
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may limit the number of Shares to be included in the registration and
underwriting. The Company shall so advise the Investor and the other persons
distributing their securities through such underwriting pursuant to Shares and
other securities that may be included in the registration and underwriting shall
be allocated among the Investor and other persons in proportion, as nearly as
practicable, to the respective percentage of the Company held by the Investor
and other securities held by other persons at the time of the filing of the
registration statement. If the Investor disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. Any Shares excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(c) Expenses. All reasonable expenses for registrations pursuant
to this Section 9, including, without limitation, printing expenses, expenses of
compliance with blue sky laws (provided that the Company shall not be obligated
to comply with the blue sky laws of an unreasonable number of jurisdictions and,
in no event, more than ten (10) states), fees and disbursements of counsel for
the Company and expenses of any audits incidental to or required by any such
registration statement, shall be borne by the Company, except that (i) all
expenses, fees and disbursements of any counsel retained by the Investor shall
be borne entirely by the Investor, and (ii) all registration and filing fees and
all brokerage and selling commissions shall be borne by the Investor, in pro
rata fashion, according to the quantity of its Shares so registered.
(d) Additional Instruments, etc. It shall be a condition to the
Company's obligations pursuant to this Section that the Investor shall enter
into customary agreements concerning indemnification, etc., and complete such
other steps as are customarily required of selling shareholders. Notwithstanding
anything to the contrary contained herein, the Company shall not be required to
qualify to do business as a foreign company in any jurisdiction in order to
permit the sale of shares by the Investor in such jurisdiction.
10. CONDITIONS PRECEDENT TO EACH CLOSING OR EXERCISE OF OPTIONS.
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(a) Conditions Precedent to Obligations of the Company. The
obligation of the Company to issue and sell the Shares hereunder is subject to
the fulfillment on or prior to the date of each Closing or the date of exercise
of any option hereunder of the following conditions:
(i) The representations and warranties made by the
Investor herein shall be true and correct in all material respects on
and as of date of each Closing and exercise with the same effect as
though such representations and warranties had been made on and as of
such date.
(ii) The sale of the Shares by the Company shall not be
prohibited or enjoined (temporarily or permanently) as of the date of
each Closing or exercise date.
(iii) The purchase of the Shares agreed to be purchased by
such Investor hereunder shall not be prohibited or enjoined
(temporarily or permanently) under the laws of any jurisdiction to
which such Investor is subject.
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(iv) All legal matters incident to the transactions
contemplated by this Agreement shall have been reasonably approved by
counsel to the Company.
(v) The Company shall have received payment in full for
the Initial Shares, the Milestone I Shares or the Milestone II Shares,
as the case may be.
11. BROKERS.
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(a) The Investor represents and warrants to the Company that it
has not engaged or authorized any broker, finder, investment banker or other
third party to act on its behalf, directly or indirectly, as a broker, finder,
investment banker or in any other like capacity in connection with the
transactions contemplated by this Agreement nor has it consented to or
acquiesced in anyone so acting, and it knows of no claim by any person for
compensation from it for so acting or of any basis for such a claim.
12. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
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All representations, warranties and agreements of the Company or of the
Investor contained in this Agreement or in any certificate, document, schedule
or instrument delivered pursuant hereto shall survive each Closing or exercise
of options hereunder and the delivery of any and all documents and instruments
hereunder, regardless of any investigation made by or on behalf of the Investor
or the Company, respectively.
13. NOTICES.
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Any notices or other communications required or permitted hereunder
shall be in writing and personally delivered or sent by telecopier or by
registered or certified mail, return receipt requested, postage prepaid,
addressed or telecopied as follows or to such other address or telecopier number
of which notice has been given pursuant hereto:
If to the Company: Bioenvision, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn.:
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With a copy to: Xxxxxxxxx Xxxxxxx, LLP
Met Life Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx X. Xxxxxxxxx, Esq.
If to the Investor: Bioaccelerate Inc.
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Attn.:
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14. ENTIRE AGREEMENT; AMENDMENT ETC.
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This Agreement and the Exhibits hereto represents the entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof. Neither this Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally, except by a statement in writing
authorized as aforesaid and signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
15. SUCCESSORS.
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This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective permitted successors and assigns.
16. SECTION HEADINGS; COUNTERPARTS.
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The section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
17. APPLICABLE LAW.
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This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of Delaware, United States of America,
without reference to or application of principles of conflicts of laws.
18. SEVERABILITY.
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If at any time subsequent to the date hereof, any provision of this
Agreement shall be held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this Agreement.
19. NO WAIVER.
----------
The failure of any party at any time or times to require performance of
any provision hereof shall in no manner affect the right at a later time to
enforce the same. No waiver by any party of any condition, or of the breach of
any provision, term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
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20. COUNTERPARTS.
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This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[the balance of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
The Company:
------------
BIOENVISION, INC.
By: /s/
-------------------------------------
Name:
Title:
The Investor:
-------------
BIOACCELERATE INC.
By: /s/
-------------------------------------
Name:
Title:
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