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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
Date of Report (Date of earliest event reported) February 20, 1997
UNIHOLDING CORPORATION
0 ------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-9833 58-1443790
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
96 Spring Street, New York, New York 10012
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 219-9496
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Item 2. Acquisition or Disposition of Assets.
The registrant's subsidiaries sold 5% of the shares of Unilabs SA, a
Switzerland corporation ("ULSA") to each of three institutions. More
specifically, the registrant's subsidiaries entered into and closed three Share
Purchase Agreements dated January 17, February 6 and February 17, 1997 with,
respectively, as purchasers, EIBA "Eidgenoessische Bank" Beteiligungs und
Finanzgesellschaft (a Swiss bank wholly-owned by Union Bank of Switzerland),
Banque Cantonale de Geneve and KK Trust AG. The third Agreement closed on
February 20, 1997. [CERTAIN CONFIDENTIAL PORTION OF INFORMATION HAS BEEN OMITTED
PURSUANT TO RULE 24b-2 AND FILED SEPARATELY WITH THE COMMISSION.] As a result of
this series of transactions, the Company has sold 15% of the shares of ULSA and
the Company now owns approximately 79% of ULSA.
ULSA and its subsidiaries operate a European clinical laboratory
network, including 20 laboratories and 27 specimen collection centers.
As announced on February 21, 1997, ULSA has retained bankers in
connection with a proposed initial public offering in Switzerland that may lead
to a listing of ULSA on the Swiss Stock Exchange during the second quarter of
1997. The lead-manager of the proposed initial public offering is Union Bank of
Switzerland (the parent of the first purchaser listed above).
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Item 7. Financial Statements and Exhibits.
(b) Pro forma financial information.
Any pro forma financial information that would be required pursuant to
Article 11 of Regulation S-X.
(c) Exhibits
(2-1) Share Purchase Agreement between Unilabs Management
Co. Ltd, as Seller, and EIBA "Eidgenoessische Bank"
Beteiligungs und Finanzgesellschaft, as Purchaser,
dated January 17, 1997.
(2-2) Share Purchase Agreement between Unilabs Group
Limited and Unilabs Management Co. Ltd. and Banque
Cantonale de Geneve, dated February 6, 1997.
(2-3) Share Purchase Agreement between Unilabs Group
Limited and KK Trust AG., dated February 17, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
UNIHOLDING CORPORATION
(Registrant)
Date: March 7, 1997 By: /s/ BRUNO ADAM
----------------------------
BRUNO ADAM
Chief Financial Officer
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EXHIBIT (2-1)
SHARE PURCHASE AGREEMENT
BETWEEN
Unilabs Management Co. Ltd., Gibraltar
as Seller
AND
Unilabs SA, Geneva
as Guarantor
AND
EIBA "Eidgenossische Bank" Beteiligungs- und Finanzge-
sellschaft, Zurich
as Purchaser
Relating to 5% of the Shares in Unilabs SA
Lenz & Staehelin
Zurich
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This Share Purchase Agreement was entered into on January 17, 1997 between the
following parties:
1. Unilabs Management Co. Ltd., Gibraltar
(hereinafter referred to as "Seller")
2. Unilabs SA, Place Cornavin 12, 1211 Geneva 11
(hereinafter referred to as the "Company")
of the first part
and
3. "EIBA Eidgenossische Bank" Beteiligungs - und Finanzge-
sellschaft, Bleicherweg 30, 8021 Zurich
(hereinafter referred to as "Purchaser")
of the other part
Introduction
The Seller is a wholly-owned subsidiary of the Company currently
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holding 10% of the Company's issued and outstanding share capital.
The Company intends to do an initial public offering ("IPO") by listing its
shares on the Swiss Stock Exchange. For purposes of preparing the IPO, the
Company is restructuring its debt and equity financings and the Purchaser is
prepared to buy an equity interest in the Company.
Based on the foregoing, the Parties agree as follows:
1. Sale and Purchase of Shares
The Seller agrees to sell to the Purchaser and the Purchaser agrees to
buy from the Seller 800 bearer shares of the Company with a nominal
value of Sfrs. 500.-- each, representing 5% of the total of the issued
and outstanding share capital of the Company (hereinafter referred to
as the "Shares").
2. Purchase Price
The purchase price for the Shares shall be Sfrs. [Confidential Portion]
in the aggregate (the "Purchase Price"). The Purchase Price shall be
payable at the Closing (as defined under Section 3.1 below) by wire
transfer to the account to be designated by the Seller and against
delivery of the Shares.
3. Closing
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3.1 Closing Date of Transaction
The sale and purchase of the Shares shall be consummated at the offices
of Union Bank of Switzerland or at such other place as the Parties may
agree, no later than 10 days after the conditions precedent set forth
in Section 3.2 below have been met.
3.2 Conditions Precedent
The sale and purchase of the Shares contemplated herein shall be
subject to the following conditions being met on or before January 31,
1997:
a) Due Diligence: The Purchaser has conducted a due
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diligence audit of the business of the Company prior to the
Closing. The results of such due diligence audit shall be
satisfactory to the Purchaser. In particular, such due
diligence audit shall not reveal any material problems
regarding the Company's subsidiaries in the United Kingdom.
Furthermore, the Company's new auditors, ATAG Ernest & Young,
shall have confirmed to the Purchaser in writing that the
Company's investments in the subsidiaries in Spain and Italy
do not need to be written down and that any write-offs that
may be necessary with respect to the Company's investments in
its subsidiaries in the United Kingdom will not exceed
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the amount of Sfrs. 33,3 million.
b) Group Restructuring: The Purchaser shall have obtained a
legal opinion regarding the valid legal transfer of the
following companies from UniHolding Corporation,
Delaware, to the Company:
- United Laboratories Espana SA (93%)
- Istituto Medico Torino S.p.A. (100%)
- Medil Srl (50%)
In addition, the Purchaser shall have obtained a tax opinion
regarding the tax consequences of such transfer the
conclusions of which shall be satisfactory to the Purchaser.
c) Credit Facility Agreement: Delivery of executed credit
facility agreement between the Company and Union Bank of
Switzerland relating to a term loan of Sfrs. 12.5
million.
d) Shareholders Agreement: Execution and delivery of a
shareholders agreement (the "Shareholders Agreement")
between Unilabs Group Ltd. and the Purchaser at terms
satisfactory to the Purchaser.
e) Board Approval: Approval of the purchase of the
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Shares by the board of directors of the Purchaser.
f) Election of Board Member: Resolution of Unilabs Group
Ltd. as majority shareholder of the Company electing a
representative of the Purchaser to the Company's board of
directors.
4. Representations and Warranties of Seller and Company
Each of the Seller and the Company hereby represents and warrants to
the Purchaser, such representations and warranties to be true as of the
signing of this Agreement and at Closing, the following:
a) Legal Existence: The Company and each of its
---------------
subsidiaries listed in Exhibit 1 (the "Subsidiaries") is
---------
a corporation duly incorporated and validly existing under the
laws of the jurisdiction in which it is incorporated, capable
of being sued in its own right. The Company has the power to
own its property and assets and the authority to carry on its
business as currently conducted.
b) Ownership Structure: The Company has a share capital of
Sfrs. 8,000,000.--, divided into 16,000 shares with a
nominal value of Sfrs. 500.-- each. No further capital,
non-voting stock, convertible securities or similar
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rights in the Company have been or will by the Closing be
created or issued or agreed to be issued. The Shares have been
validly issued and fully paid-up. Notwithstanding the
foregoing, a restructuring of the Company's share capital is
currently contemplated in view of the IPO. A proposal for the
Company's new dual capital structure is shown in Exhibit 1a.
c) Ownership. The Seller is the sole legal and beneficial
owner of the Shares, free and clear of all liens,
encumbrances, options, charges and other claims arising
from any privilege, pledge or security arrangement. The
Seller has full right and capacity to transfer and sell
the Shares.
Upon delivery of the Shares, the Purchaser will receive good
and valid title to the Shares, free and clear of all liens,
encumbrances or other rights of third parties.
d) Annual Accounts: The latest annual accounts and
consolidated annual accounts as per May 31, 1996 of the
Company and of each Subsidiary (as delivered to the
Purchaser in the course of the financial due diligence
audit) fairly represent the financial situation of the
Company (consolidated and non-consolidated) and of the
Subsidiaries as per the balance sheet date and have been
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prepared in compliance with generally accepted accounting
principles as applied in the United States (US GAAP) or in the
country where the relevant Subsidiary is incorporated.
e) Assets: Except as disclosed in Exhibit 2, the Company
------ ---------
and each of the Subsidiaries owns all real property, personal
property and other assets, tangible and intangible, reflected
in the latest annual balance sheet of the Company or the
relevant Subsidiary, free and clear of all liens, charges,
security interest and other encumbrances. There are no assets
which are used in the conduct of the business of the Company
or any of its Subsidiaries which are not reflected in the
latest annual balance sheet of the Company or the relevant
Subsidiary.
f) Accounts Receivable: The accounts receivable reflected in the
latest annual accounts of the Company and of each Subsidiary
are fully collectible within 90 days and, to the extent they
are not fully collectible, whether or not within a period of
90 days, the Company or the relevant Subsidiary has created
provisions sufficient to cover any shortfall.
g) No Undisclosed Liabilities: None of the Company and the
Subsidiaries have any liabilities or obligations of any
nature (absolute, accrued, contingent or otherwise),
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which are not fully reflected or reserved against in the
latest annual accounts of the Company or the relevant
Subsidiary.
h) Books and Records: The Company and each Subsidiary is in
possession and has accurately kept all accounts, books,
letters, financial and other records as required by
applicable law.
i) Taxes: The Company and each Subsidiary has timely filed
all tax returns for income tax, withholding taxes, stamp
taxes, sales taxes, social security taxes and all other
taxes of every kind whatsoever required by law to be
filed and all such tax returns are complete and accurate.
The Company and each Subsidiary has paid all taxes which have
become due and there is no further liability for any taxes and
no interests or penalties accrued or accruing with respect
thereto which would exceed the provisions created in the last
balance sheet of the Company or the relevant Subsidiary
specifically for such liabilities, interests or penalties.
j) No Material Adverse Change: Except as disclosed in
Exhibit 5, attached hereto, since the last balance sheet
date of May 31, 1996, the financial situation
(consolidated and non-consolidated) of the Company or its
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business has not been affected by any material adverse
change.
k) Permits and Authorizations: The Company and each
Subsidiary has all the permits and authorizations which
are necessary to carry on its business and neither the
execution of this Agreement nor the consummation of the
transaction contemplated herein will affect the
effectiveness of such permits and authorizations.
l) Compliance with Applicable Laws: In conducting its
-------------------------------
business as currently conducted, the Company and each
Subsidiary is in compliance with all applicable laws,
statutes, orders, rules and regulations of any governmental
authority. Without limiting the generality of the foregoing,
the Company and each Subsidiary is in compliance with all
environmental laws, regulations, orders and decrees applicable
to it.
m) Insurance: The insurance policies of the Company and of
each Subsidiary adequately cover the risks associated
with the business of the Company and the relevant
Subsidiary.
n) Intellectual Property Rights: The Company and each
Subsidiary owns all the knowhow, patents, trademarks,
copyrights and other intellectual property rights, if
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any, which are necessary for or used in the conduct of its
business as it is now being conducted or has adequate license
to such rights. None of such patents, trademarks, copyrights
or other intellectual property rights violate the rights of
any third party.
o) Information Technology: The Company and each subsidiary
has the rights to the information technology necessary to
conduct the business as currently conducted and such
rights will continue to be effective at least until
December 31, 1998. Exhibit 4 contains a complete list of
information technology rights (licenses, source codes,
etc.) currently used by the Company and the Subsidiaries.
p) No Litigation: No litigation, arbitration,
-------------
administrative proceedings (including tax proceedings) or
governmental or regulatory investigations are pending or, to
the best of the Company's or Seller's knowledge, threatened
against the Company or any Subsidiary and there are no
judgments or decisions which could jeopardize the conclusion,
performance or enforceability of this Agreement or which could
otherwise adversely affect this Agreement.
q) Group Structure: The group structure shown in Exhibit 1
is complete and accurate; except with resect to vivagen
diagnostics AG and SQ-Lab Aerztelabor AG, the share
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capital of each group company is fully paid-in.
r) Intercompany Dealings: Except as disclosed to the
Purchaser in Exhibit 5, all intercompany dealings between
companies of the group shown in Exhibit 1 or between
group companies and related parties have been made at
market conditions (arm's length).
s) Full Disclosure: The information and material provided
---------------
by the Company to the Purchaser for purposes of the due
diligence audit (legal, financial and business) is complete
and accurate in every material respect and no information has
been withheld from the Purchaser which would have affected its
decision to enter into this Agreement. Without limiting the
generality of the foregoing, there are no oral or written
agreements that have not been disclosed to the Purchaser and
which could affect the present or future ownership structure
of the Company.
5. Covenant
Each of the Seller and the company hereby covenants that any agreements
concluded with KK Trust AG or any other equity investor involving a put
option of the equity investor with respect to the shares of the
Company, or any contractual provisions equivalent to a put option, have
to adequately
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protect the rights of the Purchaser under the Shareholders Agreement.
Without limiting the generality of the foregoing, any put option or
other preferential sales rights of KK Trust AG or any other equity
investor are to be subordinated in all respects to the put option
granted to the Purchaser under the Shareholders Agreement.
6. Remedies
6.1 Term of Representations and Warranties
The representations and warranties set forth in Section 4 of this
Agreement shall continue to be in effect until December 31, 1997.
Notice of claims may be given by the Purchaser in writing until and
including December 31, 1997.
The Purchaser is not bound by any examination or notice requirements
otherwise applicable under Swiss law, except that upon discovery of a
claim notice shall be given by the Purchaser to the Seller as soon as
reasonably practicable, subject to the overall limitation provided for
in the preceding paragraph.
6.2 Remedies
In case of a breach of a representation and warranty or
covenant by the Seller or the Company, the Seller and the
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Company shall be jointly and severally liable to indemnify the
Purchaser against all losses suffered by the Purchaser as a result of
any such misrepresentations or breach of warranty or covenant. In case
of a breach of representations and warranties, the losses are
calculated based on the difference between the actual net asset value
of the Company, on a consolidated basis, and the consolidated net asset
value of the Company had the relevant representation and warranty been
accurate. With respect to a breach of covenant, the losses are
calculated based on the actual damage incurred by the Purchaser as a
result of such breach.
In addition, if the indemnity claim made by the Purchaser in accordance
with the preceding paragraph exceeds an amount of Sfrs. 2 million, the
Purchaser shall have the right at any time during the term of the
representations and warranties pursuant to Section 6.1 above to
exercise its put option pursuant to Section 6.2 of the Shareholders
Agreement. Notwithstanding the exercise of the put option by the
Purchaser, the Purchaser shall be entitled to claim losses and damages
as a result of a misrepresentation or breach of warranty or covenant.
6.3 Limitation
No claims may be raised by the Purchaser under Section 4 of this
Agreement, unless such claims in each single case of
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breach of warranty exceed Sfrs. 50'000.-- and, in the
aggregate, reach an amount of Sfrs. 100'000.--. For the
avoidance of doubt, if the claim of the Purchaser exceeds in
the aggregate Sfrs. 100'000.--, the Purchaser is entitled to
claim from the Seller and or the Company the entire amount and
not only the amount in excess of Sfrs. 100'000.--.
7. Joint and Several Liability
The Company agrees to be jointly and severally liable to the Purchaser
for the performance of any and all obligations of the Seller under this
Agreement.
8. Miscellaneous
8.1 Costs and Expenses
All reasonable costs and expenses incurred by the Purchaser in
connection with the preparation, negotiation, execution and performance
of this Agreement shall be borne by the Seller, including legal fees.
The Seller and the Company shall bear their own costs and expenses.
8.2 Arranging Fee
EIBA shall be entitled to an arranging fee of 1.75% of the
Purchase Price. Provided the Company enters into a credit
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facility agreement with Union Bank of Switzerland, EIBA's arranging fee
will be paid-out of, and will be an integral part of, the arranging fee
payable to Union Bank of Switzerland in accordance with the terms of
the credit facility agreement.
8.3 Taxes
Any taxes or other charges which become due in connection with the
execution or performance of this Agreement, such as securities transfer
tax, shall be shared equally between the Seller and the Purchaser.
8.4 Notices
Communications under this Agreement shall be made in writing by letter,
telex or telefax and addressed as follows:
if to the Purchaser:
EIBA "Eidgenossische Bank"
Beteiligungs- und Finanzgesellschaft
Mr. Daniel Furtwangler
Bleicherweg 30
8021 Zurich
Tel.: +41-1-281 10 81
Fax : +41-1-281 10 87
if to the Seller or the company:
Unilabs SA
Mr. Eric Wavre
12, place Cornavin
1201 Geneva
Tel.: +41-22-909-7777
Fax : +41-22-909-7707
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8.5 Entire Agreement
This Agreement embodies the entire agreement between the parties hereto
with respect to the transaction contemplated herein and there have been
and are no agreements or warranties between the parties other than
those set forth or provided for herein. This Agreement may be amended
only in writing through an instrument signed by all the parties hereto.
8.6 Confidentiality
The parties shall keep the terms of this Agreement confidential and
shall not disclose it to any third parties, except that the Purchaser
may disclose this Agreement to Union Bank of Switzerland.
8.7 Governing Law and Jurisdiction
This Agreement shall be governed by Swiss law. Disputes arising out of
or in connection with this Agreement shall be submitted to the
jurisdiction of the ordinary courts of the Canton of Zurich, venue
being Zurich. The Purchaser reserves the right to take legal action
against the Seller or the Company at their respective registered
offices or at any other competent lace of jurisdiction.
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Place and Date: Zurich, 17-1-97
Unilabs SA Unilabs Management Co. Ltd.
EIBA "Eidgenossische Bank"
Beteiligungs- und Finanzgesellschaft
LIST OF EXHIBITS:
Exhibit 1: Ownership Structure of Unilabs SA and its
operating subsidiaries (Section 4 (a) )
UL
Exhibit 1a: Proposal for Capital Restructuring of Unilabs SA
(Section 4(b) )
UL
Exhibit 2: List of assets not owned by the company or by its
subsidiaries or assets which are not free and clear
of liens, charges, security interests and other
encumbrances (section 4 (e) )
UL
Exhibit 3: List of material adverse changes since the last
balance sheet date of May 31, 1996 (Section 4 (j))
UL
Exhibit 4: List of information technology rights currently
used by Unilabs SA and its subsidiaries (Section 4
(o) )
UL
Exhibit 5: List of all intercompany transactions and of
transactions between Group companies and related
parties (Section 4 (r) )
UL
UL: Unilabs
L&S: Lenz & Staehelin
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EXHIBIT (2-2)
SHARE PURCHASE AGREEMENT
BETWEEN
Unilabs Group Limited, British Virgin Islands
and
Unilabs Management Company Limited, Gibraltar
as Sellers
AND
Cantonal Bank of Geneva, Switzerland
as Purchaser
Relating to 5% of the Shares in Unilabs SA
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This Share Purchase Agreement was entered into on February 6, 1997 between the
following parties:
1. Unilabs Group Limited, British Virgin Islands
(hereinafter referred to as "UGL")
and
Unilabs Management Company Limited, Gibraltar
(hereinafter referred to as "UMC")
of the first part
and
2. Cantonal Bank of Geneva, Switzerland
(hereinafter referred to as "Purchaser")
of the other part
Introduction
UGL is the majority shareholder of Unilabs SA, a Swiss corporation (the
"Company"), currently holding 79% of the Company's issued and outstanding share
capital.
UMC is a wholly-owned subsidiary of the Company currently holding 5% of the
Company's issued and outstanding share capital.
The Company intends to do an initial public offering ("IPO") by listing its
shares on the Swiss Stock Exchange. For purposes of preparing the IPO, the
Purchaser is prepared to buy an equity interest in the Company.
The Company accepts that the Purchaser will have the right but not the
obligation to act as co-lead manager in the IPO, subject to agreement of Union
Bank of Switzerland, the designated leadmanager.
Based on the foregoing, the Parties agree as follows:
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1. Sale and Purchase of Shares
UMC agrees to sell to the Purchaser and the Purchaser agrees to buy
from UMC 800 bearer shares of the Company with a nominal value of Sfrs.
500.-- each, representing 5.0% of the total of the issued and
outstanding share capital of the Company.
The 800 shares to be sold to the Purchaser are hereinafter
referred to as the "Shares."
2. Purchase Price
The purchase price for the Shares shall be Sfrs. [Confidential Portion]
per share, representing Sfrs. [Confidential Portion] in the aggregate
(the "Purchase Price"). The Purchase Price shall be payable at the
Closing (as defined under Section 3.1 below) by wire transfer to the
account to be designated by UMC and against delivery of the Shares.
3. Closing
3.1 Closing Date of Transaction
The sale and purchase of the Shares shall be consummated at the offices
of the Purchaser or at such other place as the Parties may agree, on
February 6, 1997 (the "Closing Date").
3.2 Conditions Precedent
The sale and purchase of the Shares contemplated herein shall be
subject to the following conditions being met on or before February 6,
1997:
a) Approval: Approval of the purchase of the Shares by the
General Management of the Purchaser.
b) Board Approvals: Approval of the purchase of the Shares
by the boards of directors of UGL and UMC.
4. Representations and Warranties of Seller and Company
UGL and UMC hereby represent and warrant to the Purchaser, such
representations and warranties to be true as of the signing of this
Agreement and at Closing, the following:
a) Legal Existence: The Company and each of its
subsidiaries listed in Exhibit 1 (the "Subsidiaries") is
a corporation duly incorporated and validly existing
under the laws of the jurisdiction in which it is
incorporated, capable of being sued in its own right.
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The Company has the power to own its property and assets and
the authority to carry on its business as currently conducted.
b) Ownership Structure: The Company has a share capital of
Sfrs. 8'000'000.--, divided into 16'000 shares with a
nominal value of Sfrs. 500.-- each. No further capital,
non-voting stock, convertible securities or similar
rights in the Company have been or will by the Closing be
created or issued or agreed to be issued. The Shares
have been validly issued and fully paid-up.
Notwithstanding the foregoing, a restructuring of the
Company's share capital is currently contemplated in view of
the IPO which will result in (i) a split of the nominal value
of the bearer shares from Sfrs. 500.-- to Sfrs. 40.-- and (ii)
the creation of a new class of registered shares of Sfrs.
20.-- nominal value which will represent 30% of the capital
and approximately 47% of the voting rights. The registered
shares will be reserved to UGL, and the Purchaser will receive
only bearer shares after the restructuring. This proposal for
the Company's new dual capital structure is shown in Exhibit
2.
c) Ownership: The Seller is the sole legal and beneficial
owner of the Shares, free and clear of all liens,
encumbrances, options, charges and other claims arising
from any privilege, pledge or security arrangement. The
Seller has full right and capacity to transfer and sell
the Shares.
Upon delivery of the Shares, the Purchaser will receive good
and valid title to the Shares, free and clear of all liens,
encumbrances or other rights of third parties.
On the Closing date, the ownership structure of the Company
will be as follows:
% of capital
Unilabs Group Ltd.: 79.0%
Unilabs Holding SA, Panama: 10.0%
EIBA: 5.0%
Cantonal Bank of Geneva: 5.0%
Unilabs Management Company Ltd.: -
Third Party: 1.0%
The Purchaser is aware that UGL is negotiating with KK Trust
AG the sale to KK Trust AG of another 5% of shares of Unilabs
SA, which it expects to complete by the end of February 1997.
d) Annual Accounts: The latest consolidated annual accounts
as per May 31, 1996 of the Company (as delivered to the
Purchaser) fairly represent the consolidated financial
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situation of the Company as per the balance sheet date and
have been prepared in compliance with generally accepted
accounting principles as applied in the United States (US
GAAP).
e) Assets: Except as disclosed in Exhibit 3, the Company
------ ---------
and each of the Subsidiaries owns all real property, personal
property and other assets, tangible and intangible, reflected
in the latest annual balance sheet of the Company or the
relevant Subsidiary, free and clear of all liens, charges,
security interests and other incumbrances. There are no assets
which are used in the conduct of the business of the Company
or any of its Subsidiaries which are not reflected in the
latest annual balance sheet of the Company or the relevant
Subsidiary.
f) Accounts Receivable: The accounts receivable reflected in the
latest annual accounts of the Company and of each Subsidiary
are fully collectible within 90 days and, to the extent they
are not fully collectible, whether or not within a period of
90 days, the Company or the relevant Subsidiary has created
provisions sufficient to cover any shortfall.
g) No Undisclosed Liabilities: Except as disclosed in
Exhibit 4, none of the Company and the Subsidiaries have
any liabilities or obligations of any nature (absolute,
accrued, contingent or otherwise), which are not fully
reflected or reserved against in the latest annual
accounts of the Company or the relevant Subsidiary.
h) Books and Records: The Company and each Subsidiary is in
possession and has accurately kept all accounts, books,
letters, financial and other records as required by
applicable law.
i) Taxes: The Company and each Subsidiary has timely filed
all tax returns for income tax, withholding taxes, stamp
taxes, sales taxes, social security taxes and all other
taxes of every kind whatsoever required by law to be
filed and all such tax returns are complete and accurate.
The Company and each Subsidiary has paid all taxes which have
become due and there is no further liability for any taxes and
no interests or penalties accrued or accruing with respect
thereto which would exceed the provisions created in the last
balance sheet of the Company or the relevant Subsidiary
specifically for such liabilities, interests or penalties.
j) No Material Adverse Change: Except as disclosed in
Exhibit 5 attached hereto, since the last balance sheet
date of May 31, 1996, the financial situation
(consolidated and non-consolidated) of the Company or its
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business has not been affected by any material adverse
change.
k) Permits and Authorizations: The Company and each
Subsidiary has all the permits and authorizations which
are necessary to carry on its business and neither the
execution of this Agreement nor the consummation of the
transaction contemplated herein will affect the
effectiveness of such permits and authorizations.
l) Compliance with Applicable Laws: In conducting its
-------------------------------
business as currently conducted, the Company and each
Subsidiary is in compliance with all applicable laws,
statutes, orders, rules and regulations of any governmental
authority. Without limiting the generality of the foregoing,
the Company and each Subsidiary is in compliance with all
environmental laws, regulations, orders and decrees applicable
to it.
m) Insurance: The insurance policies of the Company and of
each Subsidiary adequately cover the risks associated
with the business of the Company and the relevant
Subsidiary.
n) Intellectual Property Rights: The Company and each
----------------------------
Subsidiary owns all the knowhow, patents, trademarks,
copyrights and other intellectual property rights, if any,
which are necessary for or used in the conduct of its business
as it is now being conducted or has adequate license to such
rights. None of such patents, trademarks, copyrights or other
intellectual property rights violate the rights of any third
party.
o) Information Technology: The Company and each Subsidiary
has the rights to the information technology necessary to
conduct the business as currently conducted and such
rights will continue to be effective at least until
December 31, 1998. Exhibit 6 contains a complete list of
information technology rights (licences, source codes,
etc.) currently used by the Company and the Subsidiaries.
p) No Litigation: No litigation, arbitration,
-------------
administrative proceedings (including tax proceedings) or
governmental or regulatory investigations are pending or, to
the best of the Company's or Seller's knowledge, threatened
against the Company or any Subsidiary and there are no
judgments or decisions which could jeopardize the conclusion,
performance or enforceability of this Agreement or which could
otherwise adversely affect this Agreement.
q) Group Structure: The group structure shown in Exhibit 1
is complete and accurate; except with respect to Vivagen
Diagnostics AG and SQ-Lab Aerztelabor AG, the share
27
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capital of each group company is fully paid-in.
r) Intercompany Dealings: Except as disclosed to the
Purchaser in Exhibit 7, all intercompany dealings between
companies of the group shown in Exhibit 1 or between
group companies and related parties have been made at
market conditions (arm's length).
s) Full Disclosure: The information and material provided
---------------
by the Company to the Purchaser for purposes of the due
diligence audit (legal, financial and business) is complete
and accurate in every material respect and no information has
been withheld from the Purchaser which would have affected its
decision to enter into this Agreement. Without limiting the
generality of the foregoing, there are no oral or written
agreements that have not been disclosed to the Purchaser and
which could affect the present or future ownership structure
of the Company.
5. Remedies
5.1 Term of Representations and Warranties
The representations and warranties set forth in Section 4 of this
Agreement shall continue to be in effect until December 31, 1997.
Notice of claims may be given by the Purchaser in writing until and
including December 31, 1997.
The Purchaser is not bound by any examination or notice requirements
otherwise applicable under Swiss law, except that upon discovery of a
claim notice shall be given by the Purchaser to the Seller as soon as
reasonably practicable, subject to the overall limitation provided for
in the preceding paragraph.
5.2 Remedies
In case of a breach of a representation and warranty by UGL, UGL shall
be liable to indemnify the Purchaser against all losses suffered by the
Purchaser as a result of any such misrepresentations or breach of
warranty or covenant. In case of a breach of representations and
warranties, the losses are calculated based on the difference between
the actual net asset value of the Company, on a consolidated basis, and
the consolidated net asset value of the Company had the relevant
representation and warranty been accurate.
5.3 Limitation
No claims may be raised by the Purchaser under Section 5 of this
Agreement, unless such claims in each single case of breach of warranty
exceed Sfrs. 50'000.-- and, in the
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<PAGE>
aggregate, reach an amount of Sfrs. 100'000.--. For the
avoidance of doubt, if the claim of the Purchaser exceeds in
the aggregate Sfrs. 100'000.--, the Purchaser is entitled to
claim from UGL the entire amount and not only the amount in
excess of Sfrs. 100'000.--.
6. Sale in IPO
The Purchaser shall have the right to sell its shares to the public in
the event of an IPO. The sale of the shares in an IPO shall take place
at the terms and conditions set by all the parties involved in the IPO.
Such right shall be subordinated to a preference right granted to EIBA
pursuant to a Shareholders Agreement dated January 17, 1997 by and
between EIBA, UGL and the Company.
To enable the Purchaser to exercise its right to sell in an IPO, UGL
shall promptly indicate to the Purchaser in writing the terms and
conditions at which the IPO is to take place. Within five business days
of receipt of such information, the Purchaser shall notify UGL whether
or not it wishes to exercise its right at the terms indicated. If so,
the Purchaser shall deliver its shares in the Company to the Company,
or a party designated by the Company, against payment of the IPO
placement price.
7. Puts and Calls
7.1 Call Option of the Seller
For the period of August 1, 1998 to December 31, 2001 UGL, or a party
designated by UGL, shall have the right to purchase the Company's
shares then held by the Purchaser. The exercise price shall be equal to
the purchase price paid by the Purchaser pursuant to the Share Purchase
Agreement increased by 15% per annum, compounded annually and
calculated for the period between payment of the purchase price by the
Purchaser and exercise of the call option by UGL.
If UGL wishes to exercise its call option, it shall notify the
Purchaser in writing between August 1, 1998 and no later than by 12.00
noon on December 31, 2001. If such date is not a date on which banks
are open for business in Zurich and Geneva, the exercise notice shall
reach the Purchaser by 12.00 noon on the last business day of 2001. The
sale shall be completd within 10 busines days of receipt of the
exercise notice by the Purchaser and shall take place by the Purchaser
delivering its shares in the Company to UGL or its designee against
receipt of the exercise price. Each party shall bear its own costs and
expenses incurred in connection with the exercise of the call option,
except that UGL will pay all stamp duties related to the exercise of
the call option.
29
<PAGE>
7.2 Put Option for the Purchaser
For the period of February 1, 2000 until December 31, 2001 the
Purchaser shall have the right to sell its shares in the Company to
UGL.
The exercise price for the put option shall be equal to the purchase
price paid by the Purchaser pursuant to the Share Purchase Agreement,
increased by 12% per annum, compounded annually and calculated for the
period between the date of purchase by the Purchaser and the date of
exercise of the put option by the Purchaser.
If the Purchaser wishes to exercise its put option it shall notify UGL
in writing, indicating that it exercises its put option and the
exercise price. The sale shall be completed within 10 business days of
receipt of the exercise notice by UGL and shall take place by the
Purchaser delivering its shares in the Company against receipt of the
exercise price. Each party shall bear its own costs and expenses
incurred in connection with the exercise of the call option, except
that UGL will pay all stamp duties related to the exercise of the put
option.
7.3 Subordination of Put
The Purchaser hereby expressly acknowledges that any claim it may have
against UGL pursuant to Section 7.2 above will be subordinated to any
claim made by EIBA against UGL in connection with EIBA's put option
pursuant to its Shareholders Agreement dated January 17, 1997.
7.4 Expiration of Puts and Calls
It is agreed that both the call option of UGL pursuant to Section 7.1
above and the put option of the Purchaser pursuant to Section 7.2 above
shall cease to be valid if an IPO of the Company occurs.
8. Miscellaneous
8.1 Costs and Expenses
All costs and expenses incurred by the Purchaser in connection with the
preparation, negotiation, execution and performance of this Agreement
shall be borne by the Purchaser, including legal fees. UGL and UMC
shall bear their own costs and expenses.
8.2 Taxes
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<PAGE>
Each party shall bear all taxes or other charges which become due by
itself in connection with the execution or performance of this
Agreement, such as securities transfer tax, except with respect to
stamp duties to the extent provided under Sections 7.1 and 7.2.
8.3 Access to Information
UGL will procure that the Company grant the Purchaser full access to,
and provide it with, all information and material regarding the
ownership structure and the business of the Company and its
subsidiaries which the Purchaser may reasonably request. In particular,
the Seller shall keep the Purchaser duly informed of the IPO process.
This right of information is in addition to the statutory right of
information of the Purchaser as a shareholder of the Company. The
Purchaser undertakes to keep such information confidential and not to
disclose it to any third party.
8.4. Transfer Restrictions
For the term of this Agreement, UGL shall not be permitted to sell,
assign or otherwise transfer its controlling shareholding interest in
the Company without the prior written consent of the Purchaser. In the
event the transfer to UGL's controlling interest in the Company is to
be made to another company within the same group of companies, the
Purchaser and its affiliated and related companies (including
investment funds managed by the Purchaser) will not unreasonably
withhold such consent, provided the transferee agrees to be bound by
the terms of this Agreement.
8.5 Notices
Communications under this Agreement shall be made in writing by letter,
telex or telefax and addressed as follows:
if to the Purchaser:
Banque Cantonale de Geneve
Mr. Jean Buhler
Quai de I'lle 17
1204 Geneva
Tel.: 41-22-317.27.27
Fax: 41-22-311.81.71
if to UGL and/or UMC:
Unilabs SA
Mr. Eric Wavre
12, place Cornavin
1201 Geneva
Tel.: +41-22-909-7777
Fax: +41-22-909-7707
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<PAGE>
8.6 Entire Agreement
This Agreement embodies the entire agreement between the parties hereto
with respect to the transaction contemplated herein and there have been
and are no agreements or warranties between the parties other than
those set forth or provided for herein. This Agreement may be amended
only in writing through an instrument signed by all the parties hereto.
8.7 Confidentiality
The parties shall keep the terms of this Agreement confidential and
shall not disclose it to any third parties.
8.8 Governing Law and Jurisdiction
This Agrement shall be governed by Swiss law. Disputes arising out of
or in connection with this Agreement shall be submitted to the
jurisdiction of the ordinary courts of the Canton of Geneva, venue
being Geneva. The Purchaser reserves the right to take legal action
against UGL or UMC at their registered offices or at any other
competent place of jurisdiction.
32
<PAGE>
Place and Date:
Geneva, February 6, 1997
- ------------------------------- ------------------------------
Unilabs Management Company Unilabs Group Limited
- -------------------------------
Cantonal Bank of Geneva
33
<PAGE>
List of Exhibits
Exhibit 1: Structure of the Unilabs SA group
Exhibit 2: Proposal for Unilabs SA's new dual capital structure
Exhibit 3: List of assets not owned or not free and clear
Exhibit 4: List of interest bearing debts and contingent
liabilities
Exhibit 5: Material adverse change
Exhibit 6: List of information technology rights
Exhibit 7: List of intercompany transactions and transactions
with related parties
34
EXHIBIT (2-3)
SHARE PURCHASE AGREEMENT
BETWEEN
Unilabs Group Limited, British Virgin Islands
Uniholding Corporation, United States of America
Unilabs S.A., Switzerland
AND
KK Trust AG, Switzerland
Relating to 5% of the Shares of Unilabs SA
35
<PAGE>
This Share Purchase Agreement was entered into on February 17, 1997 between the
following parties:
1. Unilabs Group Limited, Road Town, Pasea Estate, P.O. Box
3149, Tortola, British Virgin Islands
(hereinafter referred to as "UGL")
of the first part
2. UniHolding Corporation, Delaware with its principal business
address at 96 Spring Street, New
York, N.Y. 10012, United States of
America
(hereinafter referred to as "UHLD")
of the second part
3. Unilabs SA, 53, Avenue Blanc, 1202 Geneva,
Switzerland
(hereinafter referred to as "the Company")
of the third part
and
4. KK Trust AG, Switzerland Grabenstrasse 32, 6301 Zug,
Switzerland
(hereinafter referred to as "Purchaser")
of the fourth part
Introduction
UGL is the majority shareholder of Unilabs SA, a Swiss corporation (the
"Company"), currently holding 79% of the Company's issued and outstanding share
capital.
UHLD is the sole shareholder of UGL.
The Company intends to do an initial public offering ("IPO") by listing its
shares on the Swiss Stock Exchange. For purposes of preparing the IPO, the
Purchaser is prepared to buy an equity interest in the Company.
36
<PAGE>
Based on the foregoing, the Parties agree as follows:
1. Sale and Purchase of Shares
UGL agrees to sell to the Purchaser and the Purchaser agrees to buy
from UGL 800 bearer shares of the Company with a nominal value of Sfrs.
500.-- each, representing 5% of the total of the issued and outstanding
share capital of the Company.
The 800 shares to be sold to the Purchaser are hereinafter referred to
as the "Shares".
2. Purchase Price
The purchase price for the Shares shall be Sfrs. [Confidential Portion]
per share, representing Sfrs. [Confidential Portion] in the aggregate
(the "Purchase Price"). The Purchase Price shall be payable at the
Closing (as defined under Section 3.1 below) by wire transfer to the
account to be designated by UGL and against delivery of the Shares.
3. Closing
3.1 Closing
The sale and purchase of the Shares shall be consummated at the offices
of Bar und Karrer, Seefeldstrasse 19, in Zurich, or at such other place
as the Parties may agree, no later than 3 days after the conditions
precedent set forth in Section 3.2 below have been met (the "Closing
Date"). At the Closing the Purchaser shall execute by wire transfer to
the account to be designated by UGL the Purchase Price against delivery
of the Shares.
3.2 Conditions Precedent
The sale and purchase of the Shares contemplated herein shall be
subject to the following conditions being met on or before February
17th, 1997:
a) Sale to EIBA: Confirmation by UGL to the Purchaser that
Eidgenossische Bank Beteiligungs- und Finanzgesellschaft
(hereinafter "EIB") has on January 17, 1997 signed a Share
Purchase Agreement pursuant to which EIBA has acquired 5% of
the share capital of the Company.
b) Board Approval: Approval of the purchase of the Shares by
the board of directors of the Purchaser.
c) Board Approvals: Approval of the purchase of the Shares
37
<PAGE>
by the boards of directors of UGL, the Company and UHLD.
d) EIBA Approval: Approval of EIBA of this Agreement.
4. Representations and Warranties of Seller and Company
UGL, the Company and UHLD hereby represent and warrant jointly and
severally to the Purchaser, such representations and warranties to be
true as of the signing of this Agreement and at Closing, the following:
a) Legal Existence: The Company and each of its
---------------
subsidiaries listed in Exhibit 1 (the "Subsidiaries") is
---------
a corporation duly incorporated and validly existing under the
laws of the jurisdiction in which it is incorporated, capable
of being sued in its own right. The Company has the power to
own its property and assets and the authority to carry on its
business as currently conducted.
b) Ownership Structure: The Company has a share capital of
Sfrs. 8,000,000.--, divided into 16,000 shares with a
nominal value of Sfrs. 500.-- each. No further capital,
non-voting stock, convertible securities or similar
rights in the Company have been or will by the Closing be
created or issued or agreed to be issued. The Shares
have been validly issued and fully paid-up.
Notwithstanding the foregoing, a restructuring of the
Company's share capital is currently contemplated in view of
the IPO which will result in (i) a split of the nominal value
of the bearer shares from Sfrs. 500.-- to Sfrs 40.-- and (ii)
the creation of a new class of registered shares of Sfrs 20.--
nominal value which will represent 30% of the capital and
approximately 47% of the voting rights. The registered shares
will be reserved to UGL and the Purchaser will receive only
bearer shares after the restructuring. This proposal for the
Company's new dual capital structure is shown in Exhibit 2.
c) Ownership. The Seller is the sole legal and beneficial
owner of the Shares, free and clear of all liens,
encumbrances, options, charges and other claims arising
from any privilege, pledge or security arrangement. The
Seller has full right and capacity to transfer and sell
the Shares.
Upon delivery of the Shares, the Purchaser will receive good
and valid title to the Shares, free and clear of all liens,
encumbrances or other rights of third parties. On the Closing
Date, the ownership structure of the Company will be as
follows:
38
<PAGE>
% of capital
Unilabs Group Ltd.: 74.0%
Unilabs Holding SA, Panama: 10.0%
EIBA: 5.0%
KK Trust AG: 5.0%
Banque Cantonale de Geneve.: 5.0%
Third Party 1.0%
d) Annual Accounts: The latest consolidated annual accounts as
per May 31, 1996 of the Company (as delivered to the
Purchaser) fairly represent the consolidated financial
situation of the Company as per the balance sheet date and
have been prepared in compliance with generally accepted
accounting principles as applied in the United States (US
GAAP).
e) Assets: Except as disclosed in Exhibit 3, the Company
------ ---------
and each of the Subsidiaries owns all real property, personal
property and other assets, tangible and intangible, reflected
in the latest annual balance sheet of the Company or the
relevant subsidiary, free and clear of all liens, charges,
security interest and other encumbrances. There are no assets
which are used in the conduct of the business of the Company
or any of its Subsidiaries which are not reflected in the
latest annual balance sheet of the Company or the relevant
Subsidiary.
f) Accounts Receivable: The accounts receivable reflected in the
latest annual accounts of the Company and of each Subsidiary
are fully collectible within 90 days and, to the extent they
are not fully collectible, whether or not within a period of
90 days, the Company or the relevant Subsidiary has created
provisions sufficient to cover any shortfall.
g) No Undisclosed Liabilities: Except as disclosed in
Exhibit 4, none of the Company and the Subsidiaries have
any liabilities or obligations of any nature (absolute,
accrued, contingent or otherwise), which are not fully
reflected or reserved against in the latest annual
accounts of the Company or the relevant Subsidiary.
h) Books and Records: The Company and each Subsidiary is in
possession and has accurately kept all accounts, books,
letters, financial and other records as required by
applicable law.
i) Taxes: The Company and each Subsidiary has timely filed
all tax returns for income tax, withholding taxes, stamp
taxes, sales taxes, social security taxes and all other
taxes of every kind whatsoever required by law to be
filed and all such tax returns are complete and accurate.
39
<PAGE>
The Company and each Subsidiary has paid all taxes which have
become due and there is no further liability for any taxes and
no interests or penalties accrued or accruing with respect
thereto which would exceed the provisions created in the last
balance sheet of the Company or the relevant Subsidiary
specifically for such liabilities, interests or penalties.
j) No Material Adverse Change: Except as disclosed in
Exhibit 5, attached hereto, since the last balance sheet
date of May 31, 1996, the financial situation
(consolidated and non-consolidated) of the Company or its
business has not been affected by any material adverse
change.
k) Permits and Authorizations: The Company and each
Subsidiary has all the permits and authorizations which
are necessary to carry on its business and neither the
execution of this Agreement nor the consummation of the
transaction contemplated herein will affect the
effectiveness of such permits and authorizations.
l) Compliance with Applicable Laws: In conducting its
business as currently conducted, the Company and each
Subsidiary is in compliance with all applicable laws,
statutes, orders, rules and regulations of any governmental
authority. Without limiting the generality of the foregoing,
the Company and each Subsidiary is in compliance with all
environmental laws, regulations, orders and decrees applicable
to it.
m) Insurance: The insurance policies of the Company and of
each Subsidiary adequately cover the risks associated
with the business of the Company and the relevant
Subsidiary.
n) Intellectual Property Rights: The Company and each
Subsidiary owns all the knowhow, patents, trademarks,
copyrights and other intellectual property rights, if any,
which are necessary for or used in the conduct of its business
as it is now being conducted or has adequate license to such
rights. None of such patents, trademarks, copyrights or other
intellectual property rights violate the rights of any third
party.
o) Information Technology: The Company and each Subsidiary
has the rights to the information technology necessary to
conduct the business as currently conducted and such
rights will continue to be effective at least until
December 31, 1998. Exhibit 6 contains a complete list of
information technology rights (licenses, source codes,
etc.) currently used by the Company and the Subsidiaries.
40
<PAGE>
p) No Litigation: No litigation, arbitration,
administrative proceedings (including tax proceedings) or
governmental or regulatory investigations are pending or, to
the best of the Company's or Seller's knowledge, threatened
against the Company or any Subsidiary and there are no
judgments or decisions which could jeopardize the conclusion,
performance or enforceability of this Agreement or which could
otherwise adversely affect this Agreement.
q) Group Structure: The group structure shown in Exhibit 1
is complete and accurate; except with respect to Vivagen
Diagnostics AG and SQ-Lab Aerztelabor AG, the share
capital of each group company is fully paid-in.
r) Intercompany Dealings: Except as disclosed to the
Purchaser in Exhibit 7, all intercompany dealings between
companies of the group shown in Exhibit 1 or between
group companies and related parties have been made at
market conditions (arm's length).
s) Full Disclosure: The information and material provided
by the company to the Purchaser is complete and accurate in
every material respect and no information has been withheld
from the Purchaser which would have affected its decision to
enter into this Agreement. Without limiting the generality of
the foregoing, there are no oral or written agreements that
have not been disclosed to the Purchaser and which could
affect the present or future ownership structure of the
Company.
5. Remedies
5.1 Term of Representations and Warranties
The representations and warranties set forth in Section 4 of this
Agreement shall continue to be in effect until February 1st, 2000.
Notice of claims may be given by the Purchaser in writing until and
including February 1st, 2000.
The Purchaser is not bound by any examination or notice requirements
otherwise applicable under Swiss law, except that upon discovery of a
claim notice shall be given by the Purchaser to the Seller as soon as
reasonably practicable, subject to the overall limitation provided for
in the preceding paragraph.
5.2 Remedies
In case of a breach of a representation and warranty UGL, the Company
and UHLD shall be jointly and severally liable to indemnify the
Purchaser against all losses suffered by the Purchaser as a result of
any such misrepresentations or breach of warranty or covenant. In case
of a breach of
41
<PAGE>
representations and warranties, the losses are calculated based on the
difference between the actual net asset value of the Company, on a
consolidated basis, and the consolidated net asset value of the Company
had the relevant representation and warranty been accurate.
Recession of this agreement and unwinding of the transaction in
accordance with "Article 208 du Code des Obligations" are excluded.
5.3 Limitation
No claims may be raised by the Purchaser under Section 5 of
this Agreement, unless such claims in each single case of
breach of warranty exceed Sfrs. 50'000.-- and, in the
aggregate, reach an amount of Sfrs. 100'000.--. For the
avoidance of doubt, if the claim of the Purchaser exceeds in
the aggregate Sfrs. 100'000.--, the Purchaser is entitled to
claim the entire amount and not only the amount in excess of
Sfrs. 100'000.--.
6. Sale in and after IPO
The Purchaser shall have the right to sell any or all of its shares to
the public in the event of an IPO as from the first day of trading on
the Swiss Exchange. The sale of the shares in an IPO shall take place
at the terms and conditions set by all the parties involved in the IPO.
Such right shall be subordinated to a preference right granted to EIBA
pursuant to a Shareholders Agreement dated January 17, 1997 by and
between EIBA, UGL and the Company.
To enable the Purchaser to exercise its right to sell in an IPO, UGL
shall promptly indicate to the Purchaser in writing the terms and
conditions at which the IPO is to take place. Within five business days
of receipt of such information, the Purchaser shall notify UGL whether
or not it wishes to exercise its right at the terms indicated. If so,
the Purchaser shall deliver its shares in the Company to the Company,
or a party designated by the Company, against payment of the IPO
placement price.
7. Puts and Calls
7.1 Call Option of the Seller
For the period of January 1, 1998 to December 31, 2001 UGL, or a party
designated by UGL, shall have the right to purchase the Company's
shares then held by the Purchaser. The exercise price shall be equal to
the purchase price paid by the Purchaser pursuant to the Share Purchase
Agreement increased by 20% per annum, compounded annually and
calculated for the
42
<PAGE>
period between payment of the purchase price by the Purchaser and
exercise of the call option by UGL.
If UGL wishes to exercise its call option, it shall notify the
Purchaser in writing no later than by 12.00 noon on December 31, 2001.
If such date is not a date on which banks are open for business in
Zurich, the exercise notice shall reach the Purchaser by 12.00 noon on
the last business day of 2001. The sale shall be completed within 10
business days of receipt of the exercise notice by the Purchaser and
shall take place by the Purchaser delivering its shares in the Company
to UGL or its designee against receipt of the exercise price. Each
party shall bear its own costs and expenses incurred in connection with
the exercise of the call option.
Notwithstanding the above, UGL hereby commits not to exercise its call
option as long as EIBA's put option against UGL, pursuant to its
Shareholders Agreement dated January 17, 1997, has not expired.
7.2 Put Option for the Purchaser
For the period of February 1st, 2000 until December 31st, 2001, or
immediately if UGL breaches Sec. 8.4, the Purchaser shall have the
right to sell its shares in the Company to one of the following parties
(in that order of priority): first, to UGL, second, if UGL fails to
fulfill its purchase obligation under this Sec. 7.2, within twenty days
of notification by the Purchaser, to the Company, and third, if the
company fails to fulfill its purchase obligation under this Sec. 7.2
within twenty days of notification by the purchaser, to UHLD.
The exercise price for the put option shall be equal to the purchase
price paid by the Purchaser pursuant to the Share Purchase Agreement,
increased by 12% per annum compounded annually and calculated for the
period between the date of purchase by the Purchaser and the date of
exercise of the put option by the Purchaser.
If the Purchaser wishes to exercise its put option it shall notify the
party concerned in writing, indicating that it exercises its put option
and the exercise price. The sale shall be completed within 10 business
days of receipt of the exercise notice by the party concerned and shall
take place by the Purchaser delivering its shares in the Company
against receipt of the exercise price. Each party shall bear its own
costs and expenses incurred in connection with the exercise of the call
option.
7.3 Subordination of Put
The Purchaser hereby expressly acknowledges that any claim it may have
against UGL and/or the Company pursuant to section
43
<PAGE>
7.2 above will be subordinated to any claim made by EIBA against UGL
and/or the Company in connection with EIBA's put option pursuant to its
Shareholders Agreement dated January 17, 1997, so that UGL, or the
Company, as the case may be, shall first perform the put option of EIBA
before performing the put option of the Purchaser.
Notwithstanding the foregoing, if EIBA, does not exercise its put
option within ten days after having received notice of the Purchaser
that the Purchaser exercises its put option, UGL or the Company can
perform the put option of the Purchaser.
7.4 Expiration of Puts and Calls
It is agreed that both the call option of UGL pursuant to Section 7.1
above and the put option of the Purchaser pursuant to Section 7.2 above
shall cease to be valid if an IPO of the Company occurs at the first
day of trading on the Swiss Exchange, provided that at least 35% of the
Company's shares have been placed with the public.
8. Miscellaneous
8.1 Cost and Expenses
Each Party shall pay its own legal fees, costs, traveling expenses and
other expenses in connection with this transaction.
8.2 Taxes
Each party shall bear all taxes or other charges which become due by
itself in connection with the execution or performance of this
Agreement, such as securities transfer tax.
8.3 Access to Information
The company grants the Purchaser full access to, and provide it with,
all information and material regarding the ownership structure and the
business of the company and its subsidiaries which the Purchaser may
reasonably request. In particular, the Seller shall keep the Purchaser
duly informed of the IPO process. This right of information is in
addition to the statutory right of information of the Purchaser as a
shareholder of the Company. The Purchaser undertakes to keep such
information confidential and not to disclose it to any third party
unless required to do so by law, a recognized stock exchange or
pursuant to an order of a competent governmental authority or court.
8.4 Transfer Restrictions
For the term of this Agreement, UGL shall not be permitted to sell,
assign or otherwise transfer its controlling
44
<PAGE>
shareholding interest in the Company without the prior written consent
of the Purchaser. In the event the transfer of UGL's controlling
interest in the Company is to be made to another company within the
same group of companies, the Purchaser will not unreasonably withhold
such consent, provided the transferee agrees to be bound by the terms
of this Agreement.
8.5 Representation on Company's Board
In the event EIBA ceases to be represented on the board of the Company,
the Purchaser shall have the right to be represented on the board of
directors of the Company. For this purpose, the Purchaser shall
nominate a person who shall be elected by the Company's general
shareholders' meeting to the Company's board of directors. UGL
undertakes to cast its vote at such general shareholders' meeting in
support of the election of the person nominated by the Purchaser.
8.6 Notices
Communications under this Agreement shall be made in writing by letter,
telex or telefax and addressed as follows:
if to the Purchaser:
K K Trust AG
Grabenstrasse 32
6301 Zug
Tel.: +41-711 4161
Fax : +41-711 4281
if to UGL, the Company or UHLD:
Unilabs SA
Mr. Eric Wavre
12, place Cornavin
1 2 01 Geneva
Tel: +41-22-909-7777
Fax: +41-22-909-7707
8.7 Entire Agreement
This Agreement embodies the entire agreement between the parties hereto
with respect to the transaction contemplated herein and there have been
and are no agreements or warranties between the parties other than
those set forth or provided for herein. This Agreement may be amended
only in writing through an instrument signed by all the parties hereto.
8.8 Confidentiality
The Parties hereto agree and undertake to keep the terms and contents
of this Agreement strictly confidential and not to
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disclose any related information to any third party without a written
consent of the other Parties, unless required to do so by law, a
recognized stock exchange or pursuant to an order of a competent
governmental authority of court. In such an event the Party concerned
shall inform the other Parties of such disclosure.
8.9 Governing Law and Jurisdiction
This Agreement shall be governed by Swiss law. Disputes arising out of
or in connection with this Agreement shall be submitted to the
jurisdiction of the ordinary courts of Canton of Zug, venue being Zug.
The Purchaser reserves the right to take legal action against UGL, the
Company or UHLD at their registered offices or at any other competent
place of jurisdiction.
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Place and Date:
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UNILABS GROUP LTD. K K TRUST AG
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UNILABS SA
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UNIHOLDING CORPORATION
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List of Exhibits
Exhibit 1: Structure of the Unilabs SA group.
Exhibit 2: Proposal for Unilabs SA's new dual capital
structure.
Exhibit 3: List of assets not owned or not free and clear
Exhibit 4: List of interest bearing debts and contingent
liabilities
Exhibit 5: Material adverse change
Exhibit 6: List of information technology rights
Exhibit 7: List of intercompany transactions and transactions
with related parties
