EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT effective as of 31
st January, 2008.
BETWEEN:
OXON LIFE SCIENCE
LIMITED. , a company incorporated pursuant to the laws of
Nevis, British West Indies and having an address at Donegan,
Zetlands, Nevis, St Kitts & Nevis, West Indies
(the “
Seller ”)
AND:
NEXTGEN BIOSCIENCE
INC., a company incorporated pursuant to the laws of the State
of Nevada and having a business address at 4 th Floor,
36 Spital Square, London, England, E1 6DY
(the “
Buyer ”)
WHEREAS:
A. The Seller is
the owner of certain assets and undertakings relating to the
development of therapies for the treatment of certain types of
cancer;
B. The Buyer
desires to purchase from the Seller and the Seller desires to sell
and assign to the Buyer certain intellectual property assets of the
Seller in exchange for shares of the Buyer on the terms and subject
to the conditions of this Agreement; and
C. In
contemplation of the execution of this Agreement, the Seller has
filed a patent application relating to the intellectual property
assets contemplated hereby with the European Patent Office in the
name of the Buyer.
NOW THEREFORE , in consideration of the
mutual promises of the parties hereto, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually agreed by and between the parties
hereto as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Definitions
1.1 In this
Agreement, including the recitals and schedules, the following
words and phrases have the following meanings:
(a) “ Affiliate ”
in respect of a Person, means any other Person that, directly or
indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with, such first Person
where “control” means, with respect to the relationship
between or among two or more Persons, the possession, directly or
indirectly or as trustee, personal representative or executor, of
the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting
securities, as trustee, personal representative or executor, by
contract, credit arrangement or otherwise, including, without
limitation, the ownership, directly or indirectly, of securities
having the power to elect a majority of the board of directors or
similar body governing the affairs of such Person;
(b) “ Assets ”
means all property and assets set forth in Schedule A hereto, which
property and assets include, without limitation, the Contracts, the
Intellectual Property and the Permits and Licenses;
(c) “ Business Day
” means any day other than a Saturday, Sunday or public
holiday in London, England;
(d) “ Closing ”
means the completion of the purchase and sale of the Assets on the
terms and subject to the conditions contained in this Agreement by
the Buyer and the Seller respectively;
(e) “ Closing Date
” means the 1 st day of February, 2008, or such
other day as agreed to in writing between the Parties on which the
Closing is to occur;
(f) “ Disclosure
Schedule ” means the disclosure schedule attached as
Schedule B hereto. The Disclosure Schedule will be arranged in
sections corresponding to the numbered and lettered sections
contained in this Agreement and the disclosure in any section
qualifies other sections in this Agreement only to the extent that
such disclosure specifically references the fact that it also
qualifies or applies to such other specified sections;
(g) “ Encumbrance
” means any lien, claim, charge, pledge, hypothecation,
security interest, mortgage, title retention agreement, option,
assignment, license or other encumbrance or adverse claim of any
nature or kind whatsoever;
(h) “ Exchange Act
” means the United States Securities Exchange Act of 1934, as
amended;
(i) “ Intellectual
Property ” means all rights in and to patents and patent
applications, registered or unregistered trademarks, service marks,
and trademark or service mark registrations and applications, trade
names, logos, designs, Internet domain names, slogans and general
intangibles of like nature, together with all goodwill relating to
the foregoing, copyrights, copyright registrations, renewals and
applications, Software, licenses, agreements and all other
proprietary rights, which relate to the Assets;
(j) “ Party ”
means each party to this Agreement individually and “
Parties ” mean each Party collectively;
(k) “Person” is to
be broadly interpreted and includes an individual, a partnership, a
corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated
organization or association, or a Governmental Entity;
(l) “Purchase
Price” means the Shares of the Buyer to be issued to the
Seller at Closing in consideration for the purchase of the
Assets;
(m) “ Purchaser’s
Solicitors ” means Lang Michener LLP;
(n) “ SEC ” means
the United States Securities and Exchange Commission; (o) “
Securities Act ” means the United States Securities
Act of 1933, as amended; (p) “Shares” means
22,000,000 shares of the Buyer’s Common Stock;
Schedules
1.2 The following
schedules are attached to, form part of, and are hereby
incorporated by reference into this Agreement:
Schedule A –
Description of Assets
Schedule B –
Disclosure Schedule
Schedule C –
Assignment of Intellectual Property
ARTICLE 2
SALE AND TRANSFER OF ASSETS; CLOSING
2.1 Sale of
Assets. Subject to the terms and conditions of this Agreement,
and in reliance upon the representations, warranties, covenants and
agreements contained herein, at the Closing, the Seller shall sell,
convey, assign and transfer the Assets to the Buyer, and the Buyer
shall purchase the Assets from the Seller.
2.2
Consideration. In consideration of the sale, transfer and
assignment to the Buyer of the Assets, at the Closing, the Buyer
shall issue and deliver to the Seller the Shares, which Shares
shall be subject to any increase or decrease in the Buyer’s
share capital prior to Closing as a result of any subdivision or
consolidation of the Buyer’s share capital.
2.3 The
Closing. The Closing shall take place on the Closing Date at
the offices of the Buyer or such other place as the parties may
agree in writing.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE
SELLER
To induce the Buyer to execute, deliver and
perform this Agreement, and in acknowledgement of the Buyer’s
reliance on the following representations and warranties (in
addition to any other representations and warranties included in
this Agreement), the Seller represents and warrants to the Buyer as
follows as of the date hereof and as of the Closing Date:
3.1
Organization. The Seller is a corporation duly organized,
validly existing and in good standing under the applicable laws of
Nevis, West Indies with the power and authority to conduct its
business as it is now being conducted and to own its assets.
3.2 Power and
Authority. The Seller has the power and authority to execute,
deliver, and carry out its obligations under the Agreement and any
other agreements and instruments to be executed and delivered by it
in connection with the transactions contemplated hereby, and the
Seller has taken all necessary action to authorize the execution
and delivery of this Agreement and such other agreements and
instruments and the consummation of the transactions contemplated
hereby, including but not limited to the receipt of all necessary
regulatory approvals. This Agreement is, and the other agreements
and instruments to be executed and delivered by the Seller in
connection with the transactions contemplated hereby, when such
other agreements and instruments are executed and delivered, shall
be the valid and legally binding obligations of the Seller
enforceable against the Seller in accordance with their respective
terms.
3.3 Title to
Assets. The Seller is the owner of all of the Assets free and
clear of any and all Encumbrances. Without limiting the generality
of the foregoing, neither the Seller’s Affiliates,
consultants or clients, nor any employees of the Seller, own or
possess any of the Assets (including, without limitation, any
Intellectual Property) or any legal or beneficial interest in the
Assets.
3.4 No Rights
to Purchase Assets. There is no agreement, contract, option,
commitment or other right in favour of, or held by, any person for
the purchase of the Assets or any interest therein from the
Seller.
3.5 No
Conflict. Neither the execution and delivery of this Agreement
and the other agreements and instruments to be executed and
delivered in connection with the transactions contemplated hereby,
nor the consummation of the transactions contemplated hereby, will
violate or conflict with:
(a) any law, regulation, ordinance,
governmental restriction, order, judgment or decree applicable to
the Seller;
(b) any provision of any charter,
bylaw or other governing or organizational instrument of the
Seller; or
(c) any mortgage, indenture, license,
instrument, trust, contract, agreement, or other commitment or
arrangement to which the Seller is a party or by which the Seller
is bound.
3.6
Litigation. There are no actions, suits, claims,
applications, complaints or investigations, directive, or notice of
defect or non-compliance in any court or before any arbitrator or
before or by any regulatory body, board, tribunal, administrative
licensing or regulatory agency, body or office, or governmental
department or governmental or non-governmental body issued or
pending or, to the Seller’s knowledge, threatened by or
against the Seller, or related to its business, the Assets or
affecting the business or the operations of the business or the
transactions contemplated by this Agreement and to the
Seller’s knowledge there is not factual or legal basis which
could give rise to any such actions, suit, proceeding, claim,
application, complaint, investigation, directive or notice of
defect or non-compliance.
3.7
Intellectual Property.
(a) The Seller owns or has the valid
right to use all of its Intellectual Property.
(b) The Intellectual Property owned
or used by the Seller is free and clear of all liens, charges,
Encumbrances or other restrictions on transfer. The Seller is
registered with all applicable governmental agencies as the sole
owner of record for each application and registration listed on
Schedule A.
(c) The Seller owns no trademarks or
software related to the Assets in any form. The patent
registrations listed in Schedule A are valid and subsisting, in
full force and effect, and have not been cancelled, expired, or
abandoned. There is no pending or threatened opposition,
interference or cancellation proceeding before any court or
registration authority in any jurisdiction against such
registrations or against any of the Intellectual Property licensed
to the Seller pursuant to the License Agreements (as defined in the
next paragraph).
(d) Schedule A attached hereto sets
forth a complete and accurate list of all agreements pertaining to
the use of, or granting any right to use or practice any rights
under, the Intellectual Property, whether the Seller is the
licensee, licensor or user thereunder and whether written, oral,
express or implied, and any written settlements or consents
relating to any Intellectual Property and covenants not to sue
(collectively, the “License Agreements”), indicating
for each the title, the parties, date executed, and the
Intellectual Property covered thereby. Except as set forth in
Schedule B, there are no settlements, consents, judgments, or
orders or other agreements which restrict any of the Seller’s
rights to use any of the Intellectual Property or permit third
parties to use any Intellectual Property which would otherwise
infringe any of the Seller’s Intellectual Property.
(e) To the best of the Seller’s
knowledge, no third party is misappropriating, infringing,
diluting, or violating any of the Intellectual Property owned by,
assigned or licensed to the Seller, and no such claims are pending
against a third party by the Seller.
3.8 Investor
Representations. The Seller acknowledges and agrees that the
Shares will be offered and sold to the Seller without being
registered under the Securities Act and will be issued to the
Seller in accordance with Rule 903 of Regulation S of the
Securities Act in an “ offshore transaction ”
within the meaning of Regulation S based on the representations and
warranties of the Seller in this Agreement. As such, the Seller
further acknowledges and agrees that all Shares will, upon
issuance, be “ restricted securities ” within
the meaning of the Securities Act.
3.9 Agreement
Regarding Resale. The Seller agrees to resell the Shares only
in accordance with the provisions of Regulation S of the Securities
Act, pursuant to registration under the Securities Act, or pursuant
to an available exemption from registration pursuant to the
Securities Act, and otherwise in accordance with all applicable
state securities laws and the laws of any other jurisdiction. The
Seller agrees that the Buyer may require the opinion of legal
counsel reasonably acceptable to the Buyer in the event of any
offer, sale, pledge or transfer of any of the Shares by the Seller
pursuant to an exemption from registration under the Securities
Act.
3.10
Prohibition Against Hedging Transactions. The Seller agrees
not to engage in hedging transactions with regard to the Shares
unless in compliance with the Securities Act.
3.11 Right of
Company to Refuse Transfer. The Seller agrees that the Buyer
will refuse to register any transfer of the Shares not made in
accordance with the provisions of Regulation S of the Securities
Act, pursuant to registration under the Securities Act, pursuant to
an available exemption from registration, or otherwise pursuant to
this Agreement.
3.12 No
Obligation to Register. The Seller acknowledges that the Buyer
has not agreed and has no obligation to register the resale of the
Shares under the Securities Act.
3.13 Share
Certificates. The Seller acknowledges and agrees that any and
all certificates representing the Shares will be endorsed with the
following legend pursuant to Regulation S of the Securities Act or
such similar legend as deemed advisable by legal counsel for the
Buyer to ensure
compliance with Regulation S of the Securities
Act and to reflect the status of the Shares as restricted
securities:
“THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES
ACT”) OR UNDER THE STATE SECURITIES LAWS OF ANY OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES
FOR THE BENEFIT OF THE CORPORATION THAT SUCH SECURITIES MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION,
(B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF
REGULATIONS UNDER THE U.S. SECURITIES ACT, (C) WITHIN THE UNITED
STATES IN ACCORDANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE
U.S. SECURITIES ACT PROVIDED BY RULES 144 OR 144A THEREUNDER, IF
AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION
UNDER THE U.S. SECURITIES ACT OR APPLICABLE STATE SECURITIES LAWS,
AND, IN THE CASE OF (C) OR (D) THE SELLER HAS FURNISHED TO THE
CORPORATION AN OPINION TO SUCH EFFECT FROM COUNSEL, OF RECOGNIZED
STANDING REASONABLY SATISFACTORY TO THE CORPORATION PRIOR TO SUCH
OFFER, SALE OR TRANSFER.”
3.14 Issuance
of Shares. The Seller further represents and warrants to the
Buyer as follows, and acknowledges that the Buyer is relying upon
such covenants, representations and warranties in connection with
the issue of the Shares to the Seller:
(a) the Seller is not a “
U.S. Person ” as defined in Regulation S of the
Securities Act and is not acquiring the Shares for the account or
benefit of a U.S. Person;
(b) the Seller was not in the United
States at the time the offer to purchase the Shares was received or
this Agreement was executed;
(c) The Seller has not purchased the
Shares as a result of any form of general solicitation or general
advertising, including advertisements, articles, notices or other
communications published in any newspaper, magazine or similar
media or broadcast over radio, television or other form of
telecommunications, or any seminar or meeting whose attendees have
been invited by general solicitation or general advertising;
(d) the Seller has such knowledge,
sophistication and experience in business and financial matters
such that it is capable of evaluating the merits and risks of the
investment in the Shares. The Seller has evaluated the merits and
risks of an investment in the Shares. The Seller can bear the
economic risk of this investment, and is able to afford a complete
loss of this investment;
(e) the Seller acknowledges that the
Buyer is in the early stages of development of its business and the
Buyer’s success is subject to a number of significant risks,
including the risk that the Buyer will not be able to finance its
plan of operations. The Seller further acknowledges that (i) the
Buyer has limited cash and working capital, (ii) the Buyer will
have to raise additional capital in order to finance its plan of
operations which capital may be raised by the issue of additional
shares of its common stock which will result in dilution to the
Seller, and (iii) the
Buyer has no
arrangements for any financing in place and there is no assurance
that any financing will be completed;
(f) the Shares will be acquired by
the Seller for investment for the Seller's own account, not as a
nominee or agent, and not with a view to the resale or distribution
of any part thereof, and that the Seller has no present intention
of selling, granting any participation in, or otherwise
distributing the same in the United States or to any U.S. Person.
The Seller 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;
(g) the Seller has been afforded
access to information about the Buyer and the Buyer’s
financial condition, results of operations, business, properties,
management and prospects sufficient for it to evaluate an
investment in the Shares. The Seller further represents that it has
had an opportunity to ask questions and receive answers from
representatives of the Buyer regarding the terms and conditions of
the offerings completed by the Buyer and the business, properties,
prospects and financial condition of the Buyer, each as is
necessary to evaluate the merits and risks of investing in the
Shares. The Seller believes it has received all the information it
considers necessary or appropriate for deciding whether to purchase
the Shares. The Seller has had full opportunity to discuss this
information with the Seller’s legal and financial advisers
prior to execution of this Agreement;
(h) the Seller acknowledges that the
Buyer will rely on these representations in completing the issuance
of the Shares to the Seller;
(i) the Seller acknowledges that the
offering of the Shares by the Buyer has not been reviewed by the
United States Securities and Exchange Commission or any state
securities regulatory authority;
(j) this Agreement has been duly
authorized, validly executed and delivered by the Seller; and
(k) the Seller has satisfied itself
as to the full observance of the laws of its jurisdiction in
connection with the purchase of the Shares and the execution of
this Agreement, including (i) the legal requirements within its
jurisdiction of incorporation or residence of the Seller for the
purchase of the Shares; (ii) any local or foreign exchange
restrictions applicable to such purchase; (iii) any governmental or
other consents that may need to be obtained; (iv) the income tax
and other tax consequences, if any, that may be relevant to an
investment in the Shares; and (v) any restrictions on transfer
applicable to any disposition of the Shares imposed by the
jurisdiction in which the Seller is incorporated or resident.
3.15
Disclosure. No representation, warranty, or statement made
by the Seller in this Agreement or in any document or certificate
furnished or to be furnished to the Buyer pursuant to this
Agreement contains or will contain any untrue statement or omits or
will omit to state any fact necessary to make the statements
contained herein or therein not misleading. The Seller has
disclosed to the Buyer all facts known or reasonably available to
the Seller that are material to the use of the Assets.
3.16 Truth at
Closing. All of the representations, warranties and agreements
made by the Seller contained in this Agreement shall be true and
correct and in full force and effect as of the date hereof and as
of the Closing Date.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
BUYER
To induce the Seller to execute, deliver and
perform this Agreement, and in acknowledgement of the
Seller’s reliance on the following representations and
warranties, the Buyer hereby represents and warrants to the Seller
as follows as of the date hereof and as of the Closing Date:
4.1
Organization. The Buyer is a corporation duly incorporated,
validly existing and
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