Exhibit 10.1
ACQUISITION AGREEMENT
AGREEMENT dated 1st September 2003 ("the Agreement"), by, between and among
EVOLVE ONCOLOGY INC, a company incorporated under the laws of the State of
Delaware (herein referred to as XXXX), of 000 Xxxxx Xxxxxx, Xxx Xxxx, XX, 00000,
the persons listed on Exhibit A attached hereto and made a part hereof, being
all of the shareholders and executive officers of XXXX (hereinafter referred to
as "MANAGEMENT"); and ANTIBODY TECHNOLOGIES INC, a company incorporated under
the laws of the State of Delaware (hereinafter referred to as "ANBT ") of 000
Xxxxx Xxxxxx, Xxx Xxxx, XX, 00000 ; 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 19,700,000 shares of common stock, $0.0001
par value of ANBT, said shares being 100% of the issued and outstanding common
stock of ANBT.
WHEREAS, the SELLERS desire to sell and XXXX 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 XXXX and XXXX hereby agrees to purchase and acquire from the
SELLERS, a total of 19,700,000 shares of common stock, $0.001 par value of
ANBT, which equates one hundred percent (100%) percent of all of ANBT 's
currently issued and outstanding stock (the ANBT Shares"), in a tax-free
stock-for-stock acquisition.
2. Consideration - The Consideration price to be paid by XXXX for the ANBT
Common Shares shall be 4,500,000 shares of XXXX common stock.
3. Warranties Representations and Covenants of ANBT and ANBT PRINCIPALS - In
order to induce XXXX to enter into this Agreement and to complete the
transaction contemplated hereby, ANBT and its principal executive officers
(hereinafter referred to as the "ANBT PRINCIPALS", jointly and severally
warrant and represent to AND that:
(a) Organization and Standing ANBT is a corporation duly organized,
validly existing and in a good standing under the laws of the United
Kingdom, is qualified to do business as a foreign corporation in
every other state or jurisdiction in which it operates to the extent
required by the laws of such states and jurisdictions, and has full
power and authority to carry on its business as now conducted and to
own and operate its assets, properties and business. Attached hereto
as Exhibit "B" are true and correct copies of ANBT 's Certificate of
Incorporation, amendments thereto and all current \by-laws of ANBT .
No changes thereto will be made in any of the Exhibit "B" documents
before the closing. ANBT 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 ANBT 's entire authorized
equity capital consists of 25,000,000 shares of common stock, $0.001
par value of which 19,700,000 shares of common stock, $0.001 par
value will be issued and outstanding as of the Closing. As of the
Closing Date, there will be no other voting or equity securities
authorized or issued, nor any authorized or issued securities
convertible into voting stock, and no outstanding subscriptions,
warrants, calls, options, rights, commitments or agreements by which
ANBT or the SELLERS are bound, ANBT for the issuance of any
additional shares of common stock or any other voting or equity
security, other than any agreements that ANBT has with any of its
subsidiaries. The 19,700,000 shares of common stock at $0.001 par
value issued and outstanding ANBT Shares to be transferred by
SELLERS constitutes one hundred (100%) percent of the currently
issued and outstanding shares of Common Stock of ANBT , which
includes inter-claim, that same percentage of ANBT '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 ANBT Shares Each SELLER warrants and represents,
severally, that as of the date hereof, such SELLER is the sole owner
of the ANBT Shares listed by his or her name on Exhibit "A-1", free
and clear of all liens, encumbrances, and restrictions whatsoever,
except that the ANBT 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 ANBT Shares to XXXX pursuant to this Agreement. XXXX will
thereby acquire 100% of the outstanding capital stock of ANBT , free
and clear of all liens, encumbrances and restrictions of any nature
whatsoever.
(d) Taxes ANBT 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 ANBT
. ANBT 's income tax returns have never been audited by any
authority empowered to do so.
(e) Pending Actions There are no known material legal actions, lawsuits,
proceedings or investigations, either administrative or judicial,
pending or threatened, against or affecting ANBT , or against the
ANBT PRINCIPALS that arrive out of their operation of ANBT , except
as described in Exhibit "C" attached hereto. ANBT is not knowingly
in material violation of any law, material ordinance or regulation
of any kind whatever.
(f) Government and Regulation ANBT 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 ANBT to conduct its current
business. All of such licenses and registrations are in full force
and effect, and there are no proceedings, hearings or other actions
pending that may affect the validity or continuation of any of them.
No approval of any other trade or professional association or agency
of government other than as set forth on Exhibit "D" is required for
any of the transactions effected by this Agreement, and the
completion of the transactions contemplated by this Agreement will
not, in and of themselves, affect or jeopardize the validity or
continuation of any of them.
(g) Ownership of Assets Except as set forth in Exhibit "F" attached
hereto, ANBT 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 ANBT 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
ANBT 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 ANBT PRINCIPALS nor any member of their families have
any material interest of any nature whatever in any supplier,
customer, landlord or competitor of ANBT .
(i) No Debt Owed by ANBT to ANBT PRINCIPALS Except as set forth in
Exhibit "F" attached hereto, ANBT does not owe any money,
securities, or property to either the ANBT PRINCIPALS or any member
of their families or to any company controlled by such a person,
directly or indirectly. To the extent that the ANBT PRINCIPLES may
have any undisclosed liability to pay any sum or property to any
such person or equity or any member of their families such liability
is hereby forever irrevocably released and discharged.
(j) Complete Records All of ANBT 's books and records, including,
without limitation, its books of account, corporate records, minute
book, stock certificate books and other records are up-to-date,
compete and reflect accurately and fairly the conduct of its
business in all material respects since its date of incorporation.
(k) No Misleading Statements or Omissions Neither this Agreement nor any
financial statement, exhibit, schedule or document attached hereto
or presented to XXXX 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 ANBT 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 ANBT ,
and constitutes the valid and binding obligation of each of them,
enforceable in accordance with its terms except to the extent Inc by
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws relating to or effecting generally the enforcement of
creditors rights. The execution and delivery of this Agreement and
the carrying out of its purposes will not result in the breach of
any of the terms and conditions of, or constitute a default under or
violate, ANBT '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
ANBT 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 ANBT can continue to be so conducted after completion
of the transaction contemplated hereby, with ANBT as a wholly owned
subsidiary of XXXX.
(m) Concepts and Approvals: Compliance with Laws Neither ANBT 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 ANBT 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 XXXX will have full and free access to
ANBT 's books during the course of this transaction prior to
Closing, during regular business hours, on reasonable notice.
4. Warranties, representations and Covenants of XXXX AND MANAGEMENT OF
XXXX("MANAGEMENT") In order to induce the SELLERS and ANBT to enter into
this Agreement and to complete the transaction contemplated hereby, XXXX
and MANAGEMENT jointly and severally warrant, represent and covenant to
ANBT and SELLERS that :
(a) Organization and Standing XXXX 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. XXXX has no subsidiaries or any other investments or
ownership interests in any corporation, partnership, joint venture
or other business enterprise.
(b) Capitalization XXXX'x entire authorized equity capital consists of
25,000,000 shares of voting common stock, $0.001 par value. Of which
16,931,549 shares of voting stock is currently issued and
outstanding. The issued and outstanding shares after closing of this
agreement shall be 21,431,549 shares. The relative rights and
preferences of XXXX'x equity securities are set forth on the
Certificate of Incorporation, as amended and XXXX'x 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
XXXX is bound, calling for the issuance of any additional shares of
common stock or any other voting or equity security. The By-laws of
XXXX 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 XXXX. Cumulative voting is not provided for by the
By-Laws or Certificate of Incorporation of XXXX.
(c) Ownership of Shares By XXXX'x issuance of the XXXX 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 XXXX shares will not have
been registered under the 33 Act, or any applicable state securities
laws.
(d) Significant Agreements XXXX 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 XXXX 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.
XXXX'x income tax returns have never been audited by say authority
empowered to do so.
(f) Absence of Liabilities As of the Closing Date XXXX 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 XXXX agrees to be
responsible and to pay in full at or before the Closing.
(g) NoPending Actions To the best of management's knowledge, there are
no legal actions, lawsuits, proceedings or investigations, either
administrative or judicial, pending or threatened against or
affecting XXXX, or against any of the XXXX MANAGEMENT and arising
out of their operation of XXXX. XXXX has been in compliance with,
and has not received notice of violation of any law, ordinance of
any kind whatever, including, but not Inc to, the 33 Act, the Rules
and Regulations of the SEC, or the Securities Laws and Regulations
of any sale. XXXX is not an investment company as defined in, or
otherwise subject to regulation under, the Investment Company Act of
1940. XXXX is not required to file reports pursuant to either
Section 13 or Section 15 (d) of the 34 Act.
(h) Corporate Records All of XXXX'x 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
ANBT's authorized representatives prior to the Closing as provided
by Section 4(I) herein, and will be delivered to XXXX'x new
management at the Closing.
(i) NoMisleading Statements or Omissions Neither this agreement nor any
financial statement, exhibit, schedule or document attached hereto
or presented to ANBT 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 XXXX 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 XXXX,
constitutes a valid and binding obligation of XXXX 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, XXXX'x Certificate of Incorporation or
By-Laws, or any agreement, lease, mortgage, bond, indenture, license
or other document or undertaking, oral or written, to which XXXX 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 ANBT 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 XXXX 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 ANBT and SELLERS will have full and free
access to ANBT 's books and records during the course of this
transaction prior to and at the Closing on reasonable notice.
(m) Directors and Shareholders Approval As of the Closing, XXXX'x Board
of Directors and Shareholders, by meeting or consent shall have
properly authorized the matters described in section 7(a)(iv)herein.
(n) The XXXX Shares All of the XXXX Common Shares issued to SELLERS
shall be validly issued, fully-paid non-assessable shares of XXXX
Common Stock, with full voting rights, dividend rights, and right to
receive the proceeds of liquidation , if any, as set forth in XXXX'x
Certificate of Incorporation.
(m) Change of Name Subsequent to the signing of this agreement ANBT will
file with Companies House in the United Kingdom to change its name
to Evolve Oncology Limited.
5. Term: Indemnification All representations, warranties, covenants and
agreements made herein and in the exhibits attached hereto shall
survive the execution and delivery of this Agreement and payment
pursuant thereto. MANAGEMENT and ANBT MANAGEMENT ("management") of
both parties to the agreement hereby agree, jointly and severally,
to indemnify, defend, and hold harmless XXXX, ANBT , 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 ANBT
MANAGEMENT or management in this Agreement.
6. Conditions Precedent to Closing (a) The obligations of ANBT 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 XXXX'x and MANAGEMENT's representations and warranties
contained herein shall be true and correct at the time of
Closing as if such representations and warranties were made at
such time, and MANAGEMENT will deliver an executed
certification confirming the foregoing;
(ii) That XXXX and MANAGEMENT shall have performed or complied with
all agreements, terms and conditions required by this
Agreement to be performed or complied with by them prior to or
at the time of the Closing;
(iii) That XXXX'x directors and shareholders, by proper and
sufficient vote taken either by consent or at a meeting duly
and properly ANBT led and held, shall have properly approved
all of the matters required to be approved by XXXX'x directors
and shareholders, respectively;
(iv) That XXXX'x Board of Directors, by proper and sufficient vote,
shall have approved this Agreement and the transactions
contemplated hereby; and
(b) The obligations of XXXX and MANAGEMENT under this Agreement shall be
and are subject to fulfillment, prior to or at the Closing of each
of the following conditions:
(i) That ANBT '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 ANBT and the ANBT PRINCIPALS shall deliver an
executed certification confirming the foregoing;
(ii) That ANBT and ANBT 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
8. 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:
(iii) 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.
9. Exhibits All Exhibits attached hereto are incorporated herein by this
reference as if they were set forth in their entirety.
10. 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.
11. Prohibited Actions Between the date hereof and the effective date of the
merger, neither Purchaser nor Seller will, except with the prior written
consent of the other:
(a) issue or sell any stock, bonds, or other corporate securities;
(b) incur any obligation or liability (absolute or contingent), except
current liabilities incurred, and obligations under contracts
entered into, other than in the ordinary course of business;
(c) discharge or satisfy any lien or encumbrance or pay any obligation
or liability (absolute or contingent) other than in the ordinary
course of business;
(d) make any dividend or other payment or distribution to its
shareholders or Purchase or redeem any shares of its capital stock
other than in the ordinary course of business;
(e)mortgage, pledge, create a security interest in, or subject to lien or
other encumbrance any of its assets, tangible or intangible other
than in the ordinary course of business;
(f)sell or transfer any of its tangible assets or cancel any debts or
claims except in each case in the ordinary course of business other
than in the ordinary course of business;
(g)sell, assign, or transfer any trademark, trade name, patent, or other
intangible asset;
(h)waive any right of any substantial value other than in the ordinary
course of business; or
(i) enter into any other transaction other than in the ordinary course
of business.
12. Further Instruments From time to time, as and when requested by the either
of the parties or by its successors or assigns, the other party will
execute and deliver, or cause to be delivered, all such deeds and other
instruments; and will take or cause to be taken such further or other
action as the parties may deem necessary or desirable in order to vest in
and confirm to the purchaser title to and possession of all its property,
rights, privileges, possessions, and franchises and otherwise to carry out
the intent and purposes of this agreement.
13. Governing Law This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
14. 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.
EVOLVE ONCOLOGY INC
By:
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ANTIBODY TECHNOLOGIES INC
By:
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