SCHEDULE 14C
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box:
[X] Preliminary Information Statement Confidential, for Use of
the Commission Only (as
permitted by Rule
14c-5(d)(2)
[ ] Definitive Information Statement
BIOENVISION, INC.
------------------------------------------
(Name of Registrant As Specified in Charter)
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[X] No Fee required.
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g)
and 0-11.
(1) Title of each class of securities to which transaction
applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act. Rule 0-11 (set, forth the
amount on which the filing fee is calculated and state how
it was determined)
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a) (2) and identify the filing for
which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the
Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
Copies to:
Andrew J. Cosentino, Esq.
Piper Marbury Rudnick & Wolfe LLP
1251 Avenue of the Americas
New York, New York 10020
Telephone:(212) 835-6000
Facsimile:(212) 835-6001
BIOENVISION, INC.
ONE ROCKEFELLER PLAZA, SUITE 1600
NEW YORK, NEW YORK 10020
Dear Fellow Shareholder:
The purpose of this information statement is to inform you that
on March 12, 2002, the Board of Directors of Bioenvision, Inc.
(the "Company") approved, and recommended that the Company's
Certificate of Incorporation be amended to include, the following
(the "Charter Amendment"):
1. To increase the number of authorized shares of common
stock, par value $.001 (the "Common Stock"), of the Company from
25,000,000 shares to 50,000,000 shares; and
2. To authorize 10,000,000 shares of preferred stock, par
value $.001 (the "Preferred Stock"), of the Company, which may be
issued in one or more series, with such rights, preferences,
privileges and restrictions as shall be fixed by the Company's
Board of Directors from time to time.
In addition, on March 12, 2002, the Board of Directors of the
Company approved, and recommended that the Company's By-Laws be
amended to include, the following (the "By-Laws Amendment", and
together with the Charter Amendment, the "Amendments"):
The number of directors serving on the Board of
Directors shall be established from time to time by the Board
of Directors, provided that the number shall not be less than
three (3) nor more than twelve (12).
As of March 12, 2002, the holders of approximately 63.8% of
the outstanding shares of Common Stock executed a written consent
adopting and approving the Amendments. Pursuant to the
provisions of the Delaware General Corporation Law and the
Company's Certificate of Incorporation, the holders of at least a
majority of the outstanding voting shares are permitted to
approve the Amendments by written consent in lieu of a meeting,
provided that prompt notice of such action is given to the other
stockholders of the Company. This written consent assures that
the Amendments will occur without your vote. Pursuant to the
rules and regulations promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), an information statement must be sent to
the holders of voting stock who do not sign the written consent
at least 20 days prior to the effective date of the action. This
notice, which is being sent to all holders of record on March 26,
2002, is intended to serve as such notice under Delaware law
and as the information statement required by the Exchange Act.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
The date of this information statement is April __, 2002. This
information statement was mailed on or about April __, 2002.
Sincerely,
/s/ Christopher B. Wood, M.D.
Christopher B. Wood, M.D.
Chief Executive Officer
TABLE OF CONTENTS TO SCHEDULE 14C INFORMATION STATEMENT
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . .1
QUESTIONS AND ANSWERS ABOUT THE AMENDMENTS . . . . . .2
AMENDMENT TO THE CERTIFICATE OF INCORPORATION
Proposals and Board Recommendation . . . . . . . . . .3
AMENDMENT TO THE BY-LAWS
Proposals and Board Recommendation . . . . . . . . . .5
DESCRIPTION OF SECURITIES. . . . . . . . . . . . . . .7
Description of Common Stock. . . . . . . . .7
Description of Preferred Stock . . . . . . .7
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT . . . . . . . . . . . . . . . . . . . . . .8
ANNEX A Form of Certificate of Amendment to
Certificate of Incorporation . . . . . . . . . . . .A-1
ANNEX B Form of Amendment to By-Laws . . . . . . .B-1
INTRODUCTION
On March 12, 2002, the Board of Directors of Bioenvision,
Inc. (the "Company") approved, and recommended that the Company's
Certificate of Incorporation be amended to include, the following
(the "Charter Amendment"):
1. To increase the number of authorized shares of common
stock, par value $.001 (the "Common Stock"), of the Company
from 25,000,000 shares to 50,000,000 shares; and
2. To authorize 10,000,000 shares of preferred stock, par
value $.001 (the "Preferred Stock"), of the Company, which
may be issued in one or more series, with such rights,
preferences, privileges and restrictions as shall be fixed
by the Company's Board of Directors from time to time in a
certificate of designations which the Board of Directors
shall have authority to file from time to time as required
by law.
As of March 12, 2002, the holders of approximately 63.8% of
the outstanding shares of Common Stock executed a written consent
adopting the Charter Amendment. As of the close of business on
March 12, 2002, Company records indicated that 16,687,786 shares
of its Common Stock were issued and outstanding.
On March 12, 2002, the Board of Directors of the Company
approved, and recommended that the Company's By-Laws, which
presently limits the number of directors on the Board to three
(3), be amended to include a provision to allow the number of
directors serving on the Board of Directors to be established
from time to time by the Board of Directors, without the need to
obtain the approval of the Stockholders, provided that such
number shall not be less than three (3) nor more than twelve (12)
(the "By-Laws Amendment", and together with the Charter
Amendment, the "Amendments").
As of March 12, 2002, the holders of approximately 63.8% of
the outstanding shares of Common Stock executed a written consent
adopting the By-Laws Amendment.
This information statement is being mailed on or about April
__, 2002 to holders of record of Common Stock at the close of
business on March 26, 2002, pursuant to Section 14(c) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and Regulation 14C promulgated thereunder. Pursuant to federal
securities laws, the Amendments will not be effective until
twenty (20) days following the mailing of this information
statement or shortly thereafter.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
QUESTIONS AND ANSWERS ABOUT THE AMENDMENTS
Q. Why did I receive this Information Statement?
A. Applicable laws require us to provide you information
regarding the Amendments even though your vote is neither
required nor requested for the Amendments to become effective.
Q. What will I receive if the Amendments are completed?
A. Nothing. The Amendments will only modify the
Certificate of Incorporation and the By-Laws.
Q. When do you expect the Amendments to become effective?
A. The Charter Amendment will become effective upon the
filing of the Charter Amendment with the Delaware Secretary of
State. The By-Laws Amendment will become effective twenty (20)
days following the mailing of this information statement. Copies
of the Form of Charter Amendment and the Form of By-Laws
Amendment are attached to this information statement as Annex A
and Annex B, respectively. We expect to file the Charter
Amendment with the Delaware Secretary of State at least 20 days
after this information statement has been sent to you.
Q. Why am I not being asked to vote?
A. The holders of a majority of the issued and outstanding
shares of Common Stock have already approved the Amendments
pursuant to a written consent in lieu of a meeting. Such
approval, together with the approval of the Company's Board of
Directors, is sufficient under Delaware law, and no further
approval by our stockholders is required.
Q. What do I need to do now?
A. Nothing. This information statement is purely for your
information and does not require or request you to do anything.
Q. Whom can I call with questions?
A. If you have any questions about the Amendments, please
contact Jeffrey Davis at (212) 554-4158.
For more detailed information about the Company,
including financial statements, you may refer to the Company's
Form 10K-SB/A, filed with the SEC on January 24, 2002, or the
Company's Forms 10-QSB filed with the SEC on December 5, 2001 and
February 14, 2002. These documents are available on the SEC's
EDGAR database at www.sec.gov or can be requested without cost by
calling Jeffrey Davis at (212) 554-4158.
AMENDMENT TO THE CERTIFICATE OF INCORPORATION
Proposals and Board Recommendation
On March 12, 2002, our Board of Directors, believing it to be
in the best interests of the Company and its stockholders,
approved, and recommended that the stockholders of the Company
approve, the Charter Amendment. The Charter Amendment is
reflected in the Form of Certificate of Amendment to Certificate
of Incorporation (the "Form of Charter Amendment") which is
attached hereto as Annex A, and incorporated herein by reference.
The authorization of additional shares of Common Stock and
Preferred Stock will allow the Company to proceed with potential
equity financings which are under negotiation as of the date
hereof. At this stage of negotiation, the Company does not know
(i) whether such equity financings may require the issuance
of Common Stock, Preferred Stock or both or (ii) the aggregate
number of shares such equity financings may require. In
addition, the authorization of additional shares of Common Stock
and Preferred Stock, and the authorization of the Board of
Directors to create and issue various series of Preferred Stock
without additional stockholder approval, will provide the Company
the flexibility to seek additional capital through equity
financings in a competitive environment from time to time in the
future and to use equity, rather than cash, to complete
acquisitions, from time to time in the future. As of the date
hereof, the Company has no commitments, arrangements or
understandings with respect to the issuance of the additional
Common Stock or Preferred Stock it is seeking to authorize. The
Company has no understandings or agreements at this time with
regard to any acquisitions.
(A) Increase in Authorized Common Stock of the Company. The
Company's Certificate of Incorporation currently authorizes the
Company to issue up to 25,000,000 shares of Common Stock. As of
March 12, 2002, Company records indicate that the Company had
issued and outstanding 16,687,786 shares of Common Stock. Of the
remaining authorized shares of Common Stock, (i) 2,200,000 shares
are reserved for issuance upon the exercise of outstanding
options issued to certain officers of the Company, (ii) 2,904,544
shares are reserved for issuance upon exercise of outstanding
options issued to persons other than officers of the Company and
(iii) 1,600,000 shares are reserved for issuance upon the
exercise of outstanding warrants. As a result, the number of
authorized, non-designated shares of Common Stock available for
issuance by the Company in the future has been reduced, and the
Company's flexibility with respect to possible future stock
splits, equity financings, stock-for-stock acquisitions, stock
dividends or other transactions that involve the issuance of
Common Stock has been severely diminished. The proposed increase
of authorized shares will increase the total number of shares of
unissued and unreserved authorized shares of Common Stock from
1,607,670 shares to 26,607,670 shares, an increase which the
Board of Directors believes will improve the Company's
flexibility to take such actions.
(B) Authorization of "Blank Check" Preferred Stock. The term
"blank check" preferred stock refers to stock for which the
designations, preferences, conversion rights, cumulative,
relative, participating, optional or other rights, including
voting rights, qualifications, limitations or restrictions
thereof are determined by the Board of Directors of a company.
Upon the effectiveness of the Charter Amendment, the Board of
Directors of the Company will be entitled to authorize the
designation and issuance of up to 10,000,000 shares of Preferred
Stock in one or more series with such limitations and
restrictions as may be determined in the sole discretion of the
Company's Board of Directors, with no further authorization by
stockholders required for the creation and issuance thereof, when
required by law and in accordance with the provisions of Section
151 of the General Corporation Law of the State of Delaware, the
Board of Directors of the Company shall have the express
authority to execute, acknowledge and file a certificate of
designations setting forth, any and all powers, designations,
preferences, rights, qualifications, limitations or restrictions
on the preferred stock. The Board of Directors believes that
having such blank check preferred stock available for, among
other things, proposed financing transactions, as well as
possible issuances in connection with such activities as public
or private offerings of shares for cash, dividends payable in
stock of the Company, acquisitions of other companies or
businesses, and otherwise, is in the best interest of the Company
and its stockholders.
Rights and Preferences With Respect to Common Stock. If the
Company issues Preferred Stock, such Preferred Stock will include
certain designations, preferences, conversion rights, cumulative,
relative, participating, optional or other rights, including
voting rights, qualifications, limitations or restrictions, any
of which may dilute the voting power and economic interest of the
holders of the Common Stock. For example, in a liquidation, the
holders of the Preferred Stock may be entitled to receive a
certain amount per share of Preferred Stock before the holders of
the Common Stock receive any distribution. In addition, the
holders of Preferred Stock may be entitled to a certain number of
votes per share of Preferred Stock and such votes may dilute the
voting rights of the holders of Common Stock when the Company
seeks to take corporate action. Furthermore, Preferred Stock
could be issued with certain preferences over the holders of
Common Stock with respect to dividends or the power to approve
the declaration of a dividend. The aforementioned are only
examples of how shares of Preferred Stock, if issued, could
dilute the interests of the holders of Common Stock.
Approval by Stockholders. As of March 12, 2002, the Company had
16,687,786 shares of its Common Stock issued and outstanding. As
of this same date, stockholders representing 10,646,948 shares of
Common Stock, or approximately 63.8% of the issued and
outstanding shares of Common Stock, approved the proposals to
amend the Company's Certificate of Incorporation to: (i) increase
the number of authorized shares of Common Stock of the Company to
50,000,000 shares from 25,000,000 shares; and (ii) authorize a
class of blank check Preferred Stock, par value $.001, of the
Company, consisting of 10,000,000 authorized shares, which may be
issued in one or more series, with such rights, preferences,
privileges and restrictions as shall be fixed by the Company's
Board of Directors from time to time. The full text of the
Charter Amendment is reflected in the Form of Charter Amendment
which is attached as Annex A of this information statement.
Pursuant to the provisions of Delaware law and the Company's
Certificate of Incorporation, the holders of at least a majority
of the outstanding voting shares are permitted to approve the
Charter Amendment by written consent in lieu of a meeting,
provided that prompt notice of such action is given to the other
stockholders. Pursuant to the rules and regulations promulgated
by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), an
information statement must be sent to the holders of voting stock
who do not sign the written consent at least 20 days prior to the
effective date of the action; that is, approximately April __.
2002. This notice, which is being sent to all holders of record
on March 26, 2002, is intended to serve as such notice under
Delaware law and as the information statement required by
the Exchange Act.
Possible Anti-Takeover Effect. In addition to financing
purposes, the Company could also issue shares of Common Stock or
Preferred Stock that may, depending on the terms of such series,
make more difficult or discourage an attempt to obtain control of
the Company by means of a merger, tender offer, proxy contest or
other means. When, in the judgment of the Board of Directors,
this action will be in the best interest of the stockholders and
the Company, such shares could be used to create voting or other
impediments or to discourage persons seeking to gain control of
the Company. Such shares also could be privately placed with
purchasers favorable to the Board of Directors in opposing
such action. In addition, the Board of Directors could authorize
holders of a series of Common or Preferred Stock to vote either
separately as a class or with the holders of the Company's Common
Stock, on any merger, sale or exchange of assets by the Company
or any other extraordinary corporate transaction. The existence
of the additional authorized shares could have the effect of
discouraging unsolicited takeover attempts. The issuance of new
shares also could be used to dilute the stock ownership of a
person or entity seeking to obtain control of the Company should
the Board of Directors consider the action of such entity or
person not to be in the best interest of the stockholders of the
Company. The issuance of new shares also could be used to
entrench current management or deter an attempt to replace the
Board of Directors by diluting the number or rights of shares
held by individuals seeking to control the Company by obtaining a
certain number of seats on the Board of Directors.
The Company anticipates that the Charter Amendment will be
effective 20 days after the mailing of this Information
Statement; that is, it will be effective on approximately April
__, 2002 or shortly thereafter.
THE CHARTER AMENDMENT HAS NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION PASSED UPON THE FAIRNESS OR MERIT OF THE
CHARTER AMENDMENT NOR UPON THE ACCURACY OR ADEQUACY OF THE
INFORMATION CONTAINED IN THIS INFORMATION STATEMENT. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
PLEASE NOTE THAT THIS IS NEITHER A REQUEST FOR YOUR VOTE NOR A
PROXY STATEMENT, BUT RATHER AN INFORMATION STATEMENT DESIGNED TO
INFORM YOU OF THE AMENDMENT THAT WILL OCCUR IF THE AMENDMENTS ARE
COMPLETED AND TO PROVIDE YOU WITH INFORMATION ABOUT THE AMENDMENT
AND THE BACKGROUND OF THESE TRANSACTIONS.
AMENDMENT TO THE BY-LAWS
Proposals and Board Recommendation
On March 12, 2002, our Board of Directors, believing it to be in
the best interests of the Company and its stockholders, approved,
and recommended that the stockholders of the Company approve, the
By-Laws Amendment. The By-Laws Amendment is reflected in the
Form of Amendment to By-Laws (the "Form of By-Laws Amendment")
which is attached hereto as Annex B, and incorporated herein by
reference.
Prior to the By-Laws Amendment, the By-Laws limited the number of
directors on the Board of Directors to three (3) and the Board of
Directors consisted of three (3) directors. Such limitation has
prevented the Company from offering new investors an opportunity
to serve as members of the Board of Directors without the prior
resignation from the Board of Directors of its preexisting
members or amendment to the By-Laws by the Company's
stockholders.
The Board of Directors determined that it is in the best interest
of the Company to provide the Board of Directors with the ability
to increase the number of directors in its sole discretion,
without the need to seek stockholder approval, since the Company
may be obligated to do so in connection with potential
financings, joint ventures or other arrangements in a competitive
environment. In addition, the Company may desire to appoint to
the Board of Directors individuals with certain specialized
experience whose expertise may allow the Board of Directors to
better manage the Company. As of the date hereof, neither the
Board of Directors nor the Company has approved the addition to
the Board of Directors of any specific individuals. However,
under the terms of the recently completed acquisition of
Pathagon Inc., the former stockholders of Pathagon Inc. are
entitled to nominate an individual to fill a vacancy on the
Company's Board of Directors once the number of directors
constituting the Company's Board of Directors is increased from
its current number of three directors, and the Company has agreed
that its Board of Directors would fill the vacancy with that
individual The identity of that individual has not yet been
furnished to the Company. In addition, Mr. Stuart Smith was a
director of the Company until he resigned on February 1, 2002 in
order to create a vacancy on the Company's Board of Directors
which was filled by an individual proposed by the former
stockholders of Pathagon Inc., Mr. Jeffrey Davis. The Company
has previously disclosed that Mr. Smith may be elected to fill a
vacancy on the Company's Board of Directors and rejoin the Board
of Directors once the number of directors constituting the
Company's Board of Directors is increased from three directors,
but Mr. Smith has not yet consented to do so and the Board has
not yet formally considered who will be elected to fill any
vacancy.
Approval by Stockholders. As of March 12, 2002, the Company had
16,687,786 shares of its Common Stock issued and outstanding. As
of this same date, stockholders representing 10,646,948 shares of
Common Stock, or approximately 63.8% of the issued and
outstanding shares of Common Stock, approved the By-Laws
Amendment. Pursuant to the provisions of Delaware law and the
Company's By-Laws, the holders of at least a majority of the
outstanding voting shares are permitted to approve the By-Laws
Amendment by written consent in lieu of a meeting, provided that
prompt notice of such action is given to the other stockholders.
Pursuant to the rules and regulations promulgated by the
Securities and Exchange Commission under the Exchange Act, an
information statement must be sent to the holders of voting stock
who do not sign the written consent at least 20 days prior to the
effective date of the action. This notice, which is being sent
to all holders of record on March 26, 2002, is intended to serve
as such notice under Delaware law and as the information
statement required by the Exchange Act.
Possible Anti-Takeover Effect. In addition to providing the
Board of Directors with the ability to allow, from time to time,
new investors an opportunity to designate members of the Board of
Directors, the By-Laws Amendment may also allow the Board of
Directors the ability to dilute the control or influence that
certain members of the Board of Directors may obtain by adding
additional members of whom it approves.
The Company anticipates that the By-Laws Amendment will be
effective 20 days after the mailing of this Information
Statement, April __, 2002 or shortly thereafter.
THE BY-LAWS AMENDMENT HAS NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION PASSED UPON THE FAIRNESS OR MERIT OF THE
BY-LAWS AMENDMENT NOR UPON THE ACCURACY OR ADEQUACY OF THE
INFORMATION CONTAINED IN THIS INFORMATION STATEMENT. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
PLEASE NOTE THAT THIS IS NEITHER A REQUEST FOR YOUR VOTE NOR A
PROXY STATEMENT, BUT RATHER AN INFORMATION STATEMENT DESIGNED TO
INFORM YOU OF THE AMENDMENT THAT WILL OCCUR IF THE AMENDMENT IS
COMPLETED AND TO PROVIDE YOU WITH INFORMATION ABOUT THE
AMENDMENTS AND THE BACKGROUND OF THESE TRANSACTIONS.
DESCRIPTION OF SECURITIES
Description of Common Stock
Number of Authorized and Outstanding Shares. After adoption of
the Charter Amendment, the Company's Certificate of Incorporation
will authorize the issuance of 50,000,000 shares of Common Stock,
$.001 par value per share, of which 16,687,786 shares were
outstanding on March 12, 2002. All of the outstanding shares of
Common Stock are fully paid and non-assessable.
Voting Rights. Holders of shares of Common Stock are entitled to
one vote for each share on all matters to be voted on by the
stockholders. Holders of Common Stock have no cumulative voting
rights. Accordingly, the holders of in excess of 50% of the
aggregate number of shares of Common Stock outstanding will be
able to elect all of the directors of the Company and to approve
or disapprove any other matter submitted to a vote of all
stockholders.
Other. Holders of Common Stock have no preemptive rights to
purchase the Company's Common Stock. There are no conversion
rights or redemption or sinking fund provisions with respect to
the Common Stock.
Transfer Agent. Shares of Common Stock are registered at the
transfer agent and are transferable at such office by the
registered holder (or duly authorized attorney) upon surrender of
the Common Stock certificate, properly endorsed. No transfer
shall be registered unless the Company is satisfied that such
transfer will not result in a violation of any applicable federal
or state securities laws. The Company's transfer agent for its
Common Stock is Liberty Transfer Company, 274B New York Avenue,
Huntington, New York 11743, Attention: Ms. Lisa Conger.
Description of Preferred Stock
Number of Authorized Shares. After adoption of the Charter
Amendment, the Company's Certificate of Incorporation will
authorize the issuance of up to 10,000,000 shares of preferred
stock, par value $.00l per share ("Preferred Stock") in one or
more series with such limitations and restrictions as may be
determined in the sole discretion of the Company's Board of
Directors, with no further authorization by stockholders required
for the creation and issuance thereof. Shares of Preferred Stock
will be registered on the books of the Company. The Company
currently anticipates that the Preferred Stock will not be
registered with the SEC pursuant to the Exchange Act. No
transfer shall be registered unless the Company is satisfied
that such transfer will not result in a violation of any
applicable federal or state securities laws.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the
beneficial ownership of Common Stock, as of March 12, 2002, by
(i) each person who is known by the Company to beneficially own
5% or more of the Common Stock, (ii) each director of the
Company, (iii) each person listed on the Summary Compensation
Table set forth in Item 10 of the Company's Form 10-KSB/A filed
on January 24, 2002 and (iv) all directors and executive officers
of the Company as a group.
NAME BENEFICIAL CURRENT PERCENTAGE
OWNERSHIP OF STOCK OF CLASS (1)
Christopher B. Wood (2) 3,957,342 20.01%
Kevin Leech (3) 1,900,000 11.05%
Lifescience Ventures Limited (4) 887,500 5.32%
David Chester (5) 887,500 5.32%
Bioaccelerate, Inc. (6) 2,181,816 12.03%
Stuart Smith (7) 840,895 4.89%
Thomas Nelson (8) 287,523 1.71%
SCO Capital Partners LLC (9) 6,721,613 36.75%
Jeffrey Davis (10) 499,243 2.99%
All Executive Officers and
Directors as a group
(four persons) (11) 5,585,003 28.03%
----------------
(1) Based on a total of 16,687,786 shares of Common Stock
outstanding as of March 12, 2002.
(2) Includes 318,750 shares of Common Stock owned by Julie Wood,
Dr. Wood's spouse, as to which Dr. Wood disclaims any
beneficial interest, and 1,500,000 options which are
exercisable at $1.25 for three years from April 30, 2001.
(3) These shares are owned of record by Phoenix Ventures
Limited, a Channel Islands (Jersey) corporation ("Phoenix"),
which, to the Company's knowledge, is wholly-owned by Kevin
Leech. These shares include 500,000 options which are
exercisable at $1.00 per share for the benefit of Phoenix.
(4) Lifescience Ventures is a Gibraltar limited company owned of
record by a Gibraltar trust. Lee J. Cole, in his capacity
as the trustee of the trust, has investment power and voting
power with respect to these shares, but disclaims any
beneficial ownership thereof.
(5) These shares are owned of record by General Capital Limited,
a Bermuda corporation which, to the Company's knowledge, is
wholly-owned by David Chester, a private investor.
(6) Bioaccelerate, Inc. is a BVI corporation, owned of record by
several private investors and includes options to acquire
1,454,544 shares of the Common Stock which are exercisable
at $1.25 per share for three years from April 30, 2001.
Barbara Platts, in her capacity as Managing Director of
Bioaccelerate, Inc., has investment power and voting power
with respect to these shares, but disclaims any beneficial
ownership thereof.
(7) Includes options to acquire 500,000 shares of the Common
Stock which are exercisable at $1.25 per share for three
years from April 30, 2001.
(8) Includes options to acquire 100,000 shares of the Common
Stock which are exercisable at $1.25 per share for three
years from April 30, 2001.
(9) Includes a warrant to purchase 1,500,000 shares of Common
Stock exercisable at $1.25 per share for five years from
November 16, 2001 and a warrant to purchase 100,000 shares
of Common Stock exercisable at $1.25 per share for five
years from November 16, 2001. Steven H. Rouhandeh, in his
capacity as President of SCO Capital Partners LLC, has
investment power and voting power with respect to these
shares, but disclaims any beneficial ownership thereof.
(10) Mr. Davis is the President of SCO Financial Group LLC, an
affiliate of SCO Capital Partners LLC. Mr. Davis disclaims
beneficial ownership of all shares of Common Stock deemed
beneficially owned by SCO Capital Partners LLC.
(11) Includes shares of Common Stock owned by Christopher B.
Wood, Stuart Smith, Thomas Nelson and Jeffrey Davis. Also
includes (a) 318,750 shares of Common Stock owned by Julie
Wood, Dr. Wood's spouse, as to which Dr. Wood disclaims any
beneficial interest, (b) Christopher Wood's options to
acquire 1,500,000 shares of Common Stock, (c) Stuart Smith's
options to acquire 500,000 shares of Common Stock and (d)
Thomas Nelson's options to acquire 100,000 shares of Common
Stock.
ANNEX A
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
BIOENVISION, INC.
BIOENVISION, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State
of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at
a meeting duly convened and held, adopted the following
resolution:
RESOLVED, that the Certificate of Incorporation be
amended by changing the article thereof numbered "FOURTH" so
that, as amended, said article shall be and read as follows:
"FOURTH. The total number of shares of all
classes of capital stock which the corporation
shall have the authority to issue is 60,000,000
shares consisting of: (1) 50,000,000 shares of
Common Stock, par value $0.00l per share and (2)
10,000,000 shares of Preferred Stock, par value
$0.001 per share. The Preferred Stock shall be
issuable in one or more series with such powers,
designations, preferences, rights, qualifications,
limitations or restrictions as may be determined in
the board's sole discretion, with no further
authorization by stockholders required for the
creation and issuance thereof. When required by
law and in accordance with the provisions of
Section 151 of the General Corporation Law of the
State of Delaware, the board shall have the express
authority to execute, acknowledge and file a
certificate of designations, preferences, rights,
qualifications, limitations or restrictions of the
Preferred Stock."
SECOND: That said amendment has been consented to and
authorized by the holders of a majority of the issued and
outstanding stock entitled to vote by a written consent given in
accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in
accordance with the applicable provisions of Sections 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this
Certificate of Amendment to Certificate of Incorporation to be
signed by its Chief Executive Officer this April __, 2002.
Christopher B. Wood, M.D.
Chief Executive Officer
ANNEX B
AMENDMENT
TO
BY-LAWS
OF
BIOENVISION, INC.
BIOENVISION, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State
of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at
a meeting duly convened and held, adopted the following
resolution:
RESOLVED, that the By-Laws be amended by changing
Section 1 of Article IV thereof so that, as amended, such
Section 1 shall be and read as follows:
Section 1. The business and affairs of the
corporation shall be managed by, or under the
direction of, its Board of Directors consisting
of such number of directors as shall be
established from time to time by resolution
adopted by the affirmative vote of a majority of
the entire Board of Directors, provided that the
number shall not be less than three (3) nor more
than twelve (12). A director shall hold office
until the next annual meeting of stockholders and
until his successor shall be elected and shall
qualify, subject, however, to his prior death,
resignation, retirement, disqualification or
removal from office. Any vacancy on the Board of
Directors that results from an increase in the
number of directors may be filled by a majority
of the directors then in office, although less
than a quorum, or by a sole remaining director.
Any director elected to fill a vacancy not
resulting from an increase in the number of
directors shall have the same remaining term as
that of his predecessor. The directors need not
be residents of this state or stockholders in the
corporation.
SECOND: That said amendment has been consented to and
authorized by the holders of a majority of the issued and
outstanding stock entitled to vote by a written consent given in
accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in
accordance with the applicable provisions of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this
Amendment to By-Laws to be signed by its Chief Executive Officer
this April __, 2002.
Christopher B. Wood, M.D.
Chief Executive Officer