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: ____________________________
